SOME QUEER LAWS

Evening Post, Volume CVIII, Issue 122, 19 November 1929, Page 15

SOME QUEER LAWS

RELICS OF THE PAST

A UTILITY BASIS

OLD MANNEKS AND WAYS

The above title, "Some Queer Laws," is perhaps not, strictly speaking, quite correct, says the "New Zealand Law journal," from which this article is taken* Any action or institution which may be described as "queer" is, in that case, meant as unsound, possessing no discoverable motive or purpose. But "queer" laws are only mysterious, erratic, or eccentric when regarded objectively. To the sympathetic student of English laws and legal customs, every statute, however grotesque it may appear to the twentieth century, had its definite basis of utility, which was sometimes, too, a basis for tho preservation of society.

Very recently, a "queer" bylaw was introduced in Biarritz, by which the gendarmes were empowered to arrest any fat man or woman who might be dressed in such inartistic garments as to offend, not the public sense of decency, but the public : sense of acstheticism. Such a law might seem amusing to us, but it certainly has its basis of utility, inasmuch as aesthetic conduct and moral conduct intertwine very closely; . -It is sometimes extremely difficult to differentiate, in a Court of law, between the moral aspect of an action and its aesthetic aspect. What may have been assumed-to have shocked a witness's sense of decency may really have offended merely his eyesight.

In the same way the curious statute enforced during the reigns of both Bichard H. and Henry IV. making it compulsory for men to practise the game of archery oh Sundays had its basis of utility in preparing the people for a state of war. Blaekstone quotes another. remarkable statute which was still uhrepeaied in. his own day, and endured' until-the reign of Queen Victoria. This was an Act (10 Edw. I.) which ordained that no man should be served at dinner or supper with more than two courses, except upon any great national holidays when he could be served with three courses. A concomitant law made; the wearing of expensive' garments (according to contemporary fashion—piked shoes, short' doublets ahdlong coats) a criminal matter. The motive of such laws was possibly to keep the'money concentrated in a few hands arid available to the King's tax gatherers. BAN ON TOBACCO GROWING. \ It was a queer law, introduced by James 1., which prevented Enriand from probably being, in our day a great tobaccos-producing country Be fore 1624, when the Abolition Order was carried out only .too effectually a good, deal of tobacco cultivation was in progress in England, especially in Gloucestershire. The law of James I empowered every sheriff to uproot all tobacco plants and so this part of -English agriculture speedily perished ±he reason for such an odious proclamation seems almost to arise from some erratic spitefulness of the monarch responsible for it. , Its real reason of course, was to -facilitate the collection of revenue upon tobacco, it beinjr so much easier to levy a duty at the Customs House upon importation from Virginia or.Bermuda (where it was then grown) than to collect a tax from every individual tobacco planter in England. "macco fires tj?™^ t0 fljld that domestic ares were once taxed in England "Smoke farthings" and "hearth money" we , Jearth to^W oftheclergy * the lat ter half of the seventeenth century, and there was even, at that time, a window tax, so that the people had even.to pay for their sunlight. Dames Barrington, the celebrated archaeologist, mentions an extraordinary legal ritual (a "queer law") designed to prove the innocence or guilt o± a prisoner upon trial. This was the bread and cheese ordeal. The food was blessed by a priest and the prisoner made to eat. it. If he were able to swallow it, then he was adjudged innocent and acquitted, but if he choked in the. ordeal, then he was adjudged guilty and received the consequences. Hence, perhaps/ remarks Barrington, the expression, 'I wish it may choke me.'" Fortunately, though it may be still true that a prisoner's demeanour plays a large part in a Magistrate's verdict, oilr rules of psychology are. rather less rough and ready than the bread arid cheese judgment. ADMISSION CHARGE TO COURTS. One wonders whether the sensational cases, such as tho recent Croydon inquest, which are so prominently featured in the newspapers, would still attract large queues of Court spectators if an admission fee v were charged. Such a suggestion, we know, could be promptly pooh-poohed on the ground of pubUic interest, but it is interesting to find >in the "queer" statutes 13 Edw. I, c. #2-44, that admittance to the Law : t GoUrts by outsiders was charged one .penny: equivalent to about Is 3d nowjadays. The statute, it should be noted, directed that the defendant and plaintiff should not be charged admission* Some time ago interest was aroused in a judgment upon a girl indicted for whistling in aii English churchyard. Upon appeal the judgment was reversed, so that one may fairly conclude that offences committed in a churchyard are now ho more culpable, in the eyes of English law, than those committed elsewhere. This was not the case in former years, when, according to the Statute 6, Edward VI., the offence of striking in a churchyard was punished by cutting off the delinquent's ears. The basis of utility, in this instance, however, was more than one of veneration, for it was instituted to prevent dangerous riots between the Papists and the Protestants upon the final establishment of the Eeformation. Nevertheless, Barrington, writing in 1775, notes that not many years previously there was an indictment under the same Act at the quarter sessions in Somersetshire. Striking in the King's Palace was once regarded as perhaps the highest outrage of all, and was, until the repealing act of George IV., punishable by perpetual imprisonment and fine at the King's pleasure, and also with the loss of the offender's right hand. Baker's "Chibnicle" describes the arraignment of one such delinquent.

"On tho 10th of Jtuie, 1541, Sir Edmund Knevet, of Norfolk, was arraigned before the officers of \ the Green Cloth for striking one Master Cleer within tho tennis court of the King's House. Being found guilty, ho had judgment to lose his Tight hand, and to forfeit all his lands and goods . . . tho said Knevet confessed and humbly submitted himself to the King's mercy; only he desired that tho King would spare his right hand and take his left: Because,' said he, 'if my right hand be spared, I may live to Ao the King good service,' of whose submission and reason of his suit, when the King was informed, he granted him to lose neither of his hands, and pardoned him also of his lands and goods." WORKS OF NECESSITY. Then there is the curious list of exceptions made from time to time to tho original Sabbath- Observance Act of 1677. Tho statute itself contains an

exemption in favour of cook's chops, and Was later extended to the baking of meat, puddings, and pies on a Sunday; this being■ regarded as "a work of piety and necessity." One justice is said to have observed at the time that "it was as reasonable that the baker should bake for the poor, as^that the cook should roast or boil for the magistrates." In the same reign, too, exception was made "for the crying or selling of milk before nine o'clock in the morning or after four of the clock in the afternoon. By a law of 10 Will;.lit., mackerel were permitted to be sold on Sundays before or after divine service; though why such a special mark of favour should be shown to mackerel is still obscure. At any rate, it proved to be the thin edge of the wedge for a provision which was afterwards reSSgnised by the 2nd of Geo. 111., also in favour of fish carts travelling on Sundays.

A discussion on the theme of queer laws of other days must inevitably lead to the question of those quaint arid effete laws which still encumber the statute book, and which still survive both in England and in this dominion' under frequent protest from judges and magistrates. In England hardly a day passes when someone in legal authority does not call for the coiriplete overhauling or revision of some law which has long outgrown its original purpose, of utility. All laws, however freakish they may appear on the face of things; were designed for a specific and reasonable purpose (whether that purpose was equitable or not). The only laws which are really queer and which may really be called freakish or eccentric are those which, suited to meet the manners and philosophy of another age, still linger in their fusty obsolescence to harass modern judges and modern seekers of justice.