_ PART II: BOOK THE FOURTH. THE CELL OF TORTURE
CHAPTER III. LEX, REX, FEX
Unexplained arrest, which would greatly astonish an Englishman nowadays, was then a very usual proceeding of the police. Recourse was had to it, notwithstanding the Habeas Corpus Act, up to George II.'s time, especially in such delicate cases as were provided for by _lettres de cachet_ in France; and one of the accusations against which Walpole had to defend himself was that he had caused or allowed Neuhoff to be arrested in that manner. The accusation was probably without foundation, for Neuhoff, King of Corsica, was put in prison by his creditors.
These silent captures of the person, very usual with the Holy Vaehme in Germany, were admitted by German custom, which rules one half of the old English laws, and recommended in certain cases by Norman custom, which rules the other half. Justinian's chief of the palace police was called "_silentiarius imperialis_." The English magistrates who practised the captures in question relied upon numerous Norman texts:--_Canes latrant, sergentes silent. Sergenter agere, id est tacere_. They quoted Lundulphus Sagax, paragraph 16: _Facit imperator silentium_. They quoted the charter of King Philip in 1307: _Multos tenebimus bastonerios qui, obmutescentes, sergentare valeant_. They quoted the statutes of Henry I. of England, cap. 53: _Surge signo jussus. Taciturnior esto. Hoc est esse in captione regis_. They took advantage especially of the following description, held to form part of the ancient feudal franchises of England:--"Sous les viscomtes sont les serjans de l'espee, lesquels doivent justicier vertueusement a l'espee tous ceux qui suient malveses compagnies, gens diffamez d'aucuns crimes, et gens fuites et forbannis.... et les doivent si vigoureusement et discretement apprehender, que la bonne gent qui sont paisibles soient gardez paisiblement et que les malfeteurs soient espoantes." To be thus arrested was to be seized "a le glaive de l'espee." (_Vetus Consuetudo Normanniae_, MS. part I, sect. I, ch. 11.) The jurisconsults referred besides "_in Charta Ludovici Hutum pro Normannis_, chapter _Servientes spathae_." _Servientes spathae_, in the gradual approach of base Latin to our idioms, became _sergentes spadae_.
These silent arrests were the contrary of the _Clameur de Haro_, and gave warning that it was advisable to hold one's tongue until such time as light should be thrown upon certain matters still in the dark. They signified questions reserved, and showed in the operation of the police a certain amount of _raison d'etat_.
The legal term "private" was applied to arrests of this description. It was thus that Edward III., according to some chroniclers, caused Mortimer to be seized in the bed of his mother, Isabella of France. This, again, we may take leave to doubt; for Mortimer sustained a siege in his town before being captured.
Warwick, the king-maker, delighted in practising this mode of "attaching people." Cromwell made use of it, especially in Connaught; and it was with this precaution of silence that Trailie Arcklo, a relation of the Earl of Ormond, was arrested at Kilmacaugh.
These captures of the body by the mere motion of justice represented rather the _mandat de comparution_ than the warrant of arrest. Sometimes they were but processes of inquiry, and even argued, by the silence imposed upon all, a certain consideration for the person seized. For the mass of the people, little versed as they were in the estimate of such shades of difference, they had peculiar terrors.
It must not be forgotten that in 1705, and even much later, England was far from being what she is to-day. The general features of its constitution were confused and at times very oppressive. Daniel Defoe, who had himself had a taste of the pillory, characterizes the social order of England, somewhere in his writings, as the "iron hands of the law." There was not only the law; there was its arbitrary administration. We have but to recall Steele, ejected from Parliament; Locke, driven from his chair; Hobbes and Gibbon, compelled to flight; Charles Churchill, Hume, and Priestley, persecuted; John Wilkes sent to the Tower. The task would be a long one, were we to count over the victims of the statute against seditious libel. The Inquisition had, to some extent, spread its arrangements throughout Europe, and its police practice was taken as a guide. A monstrous attempt against all rights was possible in England. We have only to recall the _Gazetier Cuirasse_. In the midst of the eighteenth century, Louis XV. had writers, whose works displeased him, arrested in Piccadilly. It is true that George II. laid his hands on the Pretender in France, right in the middle of the hall at the opera. Those were two long arms--that of the King of France reaching London; that of the King of England, Paris! Such was the liberty of the period. _