Many other lyke examples do remayne as well in writynge as in late remembraunce, whiche I passe ouer for this tyme.

CHAPTER VII.

Of promise and couenant.

CONCERNYNGE that parte of fidelitie which concerneth the kepynge of promise or couenauntes experience declareth howe litle it is nowe had in regarde; to the notable rebuke of all us whiche do professe Christes religion. Considerynge that the Turkes and Sarazens haue us therfore in contempt and deri

a Even in the author's own time, however, other writers gave a very different account. Thus Sir Anthony Sherley, who travelled in Turkey in the sixteenth century, speaking from personal experience of the manners and customs of the Turks, says: "For their breach of promise, they hold it an high and commend. able vertue; for they say, if a man speake what hee thinketh, his purposes will be preuented.'-Travels, ed. 1607. And a celebrated French traveller, Nicolas de Nicolay, who visited Turkey in the middle of the same century, says of the Emirs, or those who were reputed to be of the race of Mahomet: They are so mischieuous and unhappy, that for money they wil make no conscience to beare such false witnes, such as ye wil haue them: and specially if he be a Jewe or a Christian, unto whom they are mortal enimies . . . And for that they are of most peruerse and abhominable nature, diuers amongest these barbarous and rusticall people are constrayned, more for the feare which they haue of their false witnessing then for the holinesse which they know in them, to beare unto them greate honour and reuerence.'-Navigations into Turkie, p. 108, ed. 1585. A writer in the early part of the seventeenth century, describing the state of Turkey at that time, says, 'Justice in its common course is laid aside, and it's very rare when any Lawsuit is depending, but bargains are made for the sentence, and he hath most right who And it is hath most money to make him rectus in curia and advance his cause. the common course for both parties at variance, before they appear together in the judge's presence, to apply themselves singly to him, and try whose present has the most temptation in it; and 'tis no wonder if corrupt men exercise this kind of trafficking with justice, for having before bought the office, they must of consequence, tell the truth. Add hereunto the facility of the Turks, for the least kind of hire, to bear false witness any case; especially, and that with a word, when the least controversy happens between a Christian and a Turk, and then the pretence is for the Mussulmanleck, as they call it. The cause is religious, and hallows all falseness and forgery in the testimony.'- Hist. of the Turks, vol. iii. part 2, p. 30,

sion, they hauinge fidelite of promise aboue all thinge in reuerence. [Ina so moche as in their contractes they seldome use any bonde or othe. But, as I haue herde reported of men borne in those partes, after the mutuall consent of the parties, the bargaynour, or he that dothe promise, toucheth the grounde with his hande, and after layeth it on his hedde, as it were that he vouched all the worlde to bere wytnesse." But by this litle ceremonye he is so bounden, that if he be founden to breke touche willyngly, he is without any redemption condempned unto the pale, that is, to haue a

ed. 1719. How little change has taken place in this respect will be seen by the following extract from the Blue Books of 1876: 'If it be proved that a Turk slew a Christian at a certain place on a certain day, he will find witnesses who will prove that on the said day he was at another place at any distance from that where the crime was committed, and they will confirm their evidence by an oath on the Kitab (Koran). Then the scene suddenly changes, and severe penalties are incurred by the Giaour calumniators who have dared to profane the sanctuary of the courts with base lies and aspersions to the injury of an innocent Mussulman. Then the remarks and the just anger of the Cadi and Medjlis echo throughout the city, and those poor fellows are at once thrown manacled into prison, fined, and rendered infamous for ever.'-Mac Coll, The Eastern Question, p. 29, ed. 1877.

• The passage within brackets is omitted in all the subsequent editions.

There seems a striking resemblance in this ceremony to the ancient form of taking an oath observed by the Romans, and which is called by Polybius Per Jovem Lapidem.'-See post, p. 252.

• Though nearly three centuries and a half have elapsed since the passage in the text was written, this horrible method of torture has maintained its place as one of the recognised institutions of Turkey down to the present moment. In Mr. Kinglake's Eothen, describing his travels in that country in 1844, a picture is given of two robbers so impaled, and the author says, 'The poor fellows had been impaled upon high poles, and so propped up by the transverse spokes beneath them, that their skeletons, clothed with some white wax-like remains of flesh, still sat up lolling in the sunshine, and listlessly stared without eyes.'-P. 32, ed. 1844. The sensation created in England by Mr. Mac Coll's letter in the Times of Sept. 28, 1876, describing an instance of impalement of which he and Canon Liddon had been eye-witnesses is too recent to be forgotten. Shortly after the publication of this letter an affidavit sent to Dr. Liddon by Dr. Sandwith from Belgrade was published in the London papers, in which the deponent, Milan Paulovitch, a native of Novo Varosh, in Stara Serbia, stated that he had seen with his own eyes one of his fellow countrymen fastened to a stake: 'It was last year (1875), in the second half of the month of August, some days after the Feast of the Nativity of

longe stake thrast in at the secrete partes of his body, whereon he shall abide dyenge by a longe space. For feare of the which moste terrible execution, seldome any man under the Turkes dominion breketh his promise. But what hope is there to haue fidelitie well kept amonge us in promises and bargaynes, whan for the breache therof is prouided no punisshement, nor yet notorious rebuke; sauinge if it be tried by accion, suche praty damages as the iury shall assese, whiche perchaunce dayly practiseth semblable lightnes of purpose.

the Mother of God, that I have seen on the hill called Tikva, quite near to Novo Varosh, the well-known Servian Slovitch, of the village of Kratova, in Stara Serbia, fastened to a stake. The Turks had taken him some days before on this same hill, and immediately afterwards they put him on a stake. I saw him there two days afterwards, and then he was dead; but how long on the stake I cannot tell. The stake entered his body at the bottom and came out at behind his neck, near the occiput. A crowd of people saw with me this sad sight.'-The Eastern Question, p. 371. Mr. Mac Coll adds that the stakes (which are represented in Eothen) are exactly similar, length and all, to those which I saw on the banks of the Save, except that only one of the latter had a transverse spoke.'—P. 363.

So it is said in Doctor and Student, which was written about this time, 'If two men have a wood ioyntly, and the one of them sellyth the wood and kepyth al the money hollye to hymselfe, in this case his felowe shall haue no remedye agaynst hym by the lawe; for as they, when they toke the wood ioyntly, put eche other in truste, and were contentyd to occupy togyther, so the lawe sufferyth them to order the profyttes therof accordynge to the truste that eche of them put other in. And yet yf one toke all the profyttes he is bounde in conscyence to restore the halfe to his felowe; for as the lawe gyueth hym ryght onlye to the halfe lande, so it gyueth hym ryght onlye in consequence to the half profyttes. And yet neuertheles it can not be sayd in that case that the lawe is agaynst conscyence, for the lawe neyther wylleth ne commaundyth that one shuld take all the profyttes, but leuythe it to theyr conscyence, so that no defaute can be founde in the lawe, but in hym that takyth all the profyttes to hymselfe maye be assygned defaute, whiche he is bounde in conscyence to reforme yf he will saue his soule, though he can not be compellyd therto by the lawe.'-Fo. xliv. ed. 1531. But the grievance was even still worse, for the same authority tells us that 'yf a man wage his lawe untrulye in an accyon of dette upon a contracte in the kynges court, yet he shall not be suyd for that periurye in the spyrituall courte, and yet no remedye lyeth for that periurye in the kynges court.'—The. 2nd Dyal. cap. xxiv. ed. 1531.

That great corruption was employed in selecting the jury panel at this time is evident from the fact that in 1543 an act was passed, entitled, 'An Acte concerninge thapparaunce of Jurors in the Nisi Prius,' the preamble of which complains of the delay arising in the trial of actions by reason of mayntenance,

a

I omitte to speke nowe of attaintes in the lawe, rescruinge that mater to a place more conuenient.]

imbracerie, synister labour, and corrupt demeynors' in the persons returned to try such actions. This also appears from other sources; thus in a letter to Sir Robert Plumpton, dated 12th Feb. 1498, the writer says, 'By your letter I understand William Babthorp will have a nisi prius at this next assizes. Sir, it is necessary for you to get a copy of the panel, and then to enquire if any of them or of their wyfes be sybb or allied to Wil. Babthorp, and yf any cause in them bee wherby they may be chalenged. And also to make labor to them that they appeare not, or els to be favorable to you according to right, and enform them of the matter as wel as ye can for their consciences.'- Plumpton Correspond. p. 134, ed. 1839, Camden Soc. Harrison, too, says, 'Certes, it is a common practise (if the under shiriffe be not the better man) for the craftier or stronger side to procure and packe such a quest as he himselfe shall like of, whereby he is sure of the issue before the charge be giuen.'-Descript. of Engl. p. 155.

The process by writ of attaint was, as Mr. Forsyth says, 'at first in the nature of a new trial,' and was established in 1495 by the statute 2 Hen. VII. cap. 24. In the year in which The Governour was first published (1531) an amending act was passed, the preamble of which, after stating that 'The King our Soveraygne Lorde, of his moste goodly and gracious disposicion, calling to his remembrance howe that perjurie in this londe is in manyfolde causes by unreasonable meanes detestably used to the disheritaunce and greate damage of many and greate numbre of his subjectes well disposed, and to the mooste high displeasour of Almyghtie God, the good statutes ayenst all officers havyng retorne of writtes, and their deputies making panells parcially for rewardes to them geven agaynst unlawfull mayntenours, embrasours, and jurours, and ayenst jurours untruely gevyng their verdicte, notwithstanding,' proceeds to enact that upon every untrue verdict where the sum in dispute amounts to 40/., and 'concerneth not the jeopardie of manys liffe,' the party aggrieved by the verdict shall have a writ of attaint against every person hereafter so gevyng an untrue verdicte, and every of them and agaynst the partie which shall have judgment upon the same verdicte.' A jury of twenty-four was to be empanelled 'to enquier whether the firste jurie gave true verdicte or no.' If it was found that the first jury gave an untrue verdict, they were to forfeit 20/., and after that, that those of the said petite jurie so atteynted shall never after be in any credence, nor thir Othe accepted in any Courte.' (23 Hen. VIII. cap. 3.) This process, however, seems to have been much abused, for Harrison, a few years later, says, 'If the matter do justlie proceed against him (the plaintiff) it is a world to see now and then how the honest yeomen that have bona fide discharged their consciences shall be sued of an atteinct, and bound to appeare at the Starre Chamber; with what rigor they shall be caried from place to place, countie to countie, yea, and sometimes in carts; which hath and doth cause a great number of them to absteine from the assizes, and yeeld to paie their issues rather than they would for their good meaning be thus disturbed and dealt withall.' And he goes on to say, 'Neither was this kind of seruice at anie time halfe so paine

1

But no meruayle that a bare promise holdeth nat, where an othe upon the Euangelistes, solempnely and openly taken, is but litle estemed. Lorde god, howe frequent and familiar a thinge with euery astate and degre throughout Christenfull as at this present, for untill of late yeares, a man should not haue heard at one assise of more than two or three nisi prius, but verie seldome of an atteinct, wheras now an hundred and more of the first, and one or two of the later, are verie often perceiued, and some of them for a cause arising of six pence or twelue pence.'— Descript. of Engl. p. 155. So that Sir Thos. Smyth, writing at the end of the century, says,Attaints be verie seldome put in ure, partly because the gentlemen will not meete to slaunder and deface the honest yeomen, their neighbours; so that of a long time they had rather pay a meane fine than to appeare and make the enquest. And in the meane time they will intreate, so much as in them lyeth, the parties to come to some composition and agreement among them selues, as lightly they doe, except either the corruption of the enquest be too euident, or the one partie is too obstinate and headstrong. And if the gentlemen do appeare, gladlyer they will confirme the first sentence, for the causes which I haue saide, than go against it. But if the corruption be too much evident, they will not sticke to attaint the first enquest, yet after the gentlemen haue attainted the yeomen, if before the sentence be given by the Judge (which ordinarily for a time is differred) the parties be agreed, or one of them be dead, the attaint ceaseth.'-De Rep. Anglorum, p. 90, ed. 1584.

• This was generally termed a corporal oath,' which is defined to be 'when by some outward gesture in taking the oath, or when by some outward act we testify that we accept of it as it is ministred, as by laying hand on a booke, on our brest, or under his thigh that ministreth it, as Abraham's seruant did.'—An Apologie of certeine Proceedings in Courts Ecclesiastical, p. 114, ed. 1591. Paley asserts that 'the term is borrowed from the ancient usage of touching, on these occasions, the corporale or cloth which covered the consecrated elements,' but Mr. J. E. Tyler altogether repudiates such a derivation, and shows that it was so called as opposed to a mere declaration by word of mouth, and also to a mere written testimony.' 'Page after page in the Roman laws might be brought,' he says, 'to confirm this view, and the use which the jurists made of the word is,' he conceives, 'decisive.' The first action in all corporall oathes,' says a writer of the sixteenth century, 'taken either in Temporall or Ecclesiasticall Courts, is the laying of our hande upon a booke when we take the oath. The generall and chiefe ende of this or of any the like ceremonie used in this action, is to signifie thereby, that we doe then aduisedly attend and giue heede to the oath when we are charged, and that we doe accept of it and binde ourselues as it is giuen. The use of this in particular is to strike a more aduised feare and reuerence into us, when we consider the reuerence due to an oath, as it is described in that booke, and the curses there threatned against those that forsweare themselues or take the Lorde's name vainely.'-An Apologie, p. 118. Paley however believed that in no country in the world' was the form worse contrived, either to convey the meaning, or impress the obligation of an oath, than in our own.'-Moral and Pol. Philos. p. 121, ed. 1825.