Thus it was declared that a squire's testimony was equal to the testimony of four yeomen, and a notary's was equal to three. Blind, deaf, or dumb persons could not testify. The testimony of women and servants was not received in any court of justice. Josephus says: "The testimony of women was refused because of the levity and boldness of their sex, and the testimony of servants was refused because of the ignobility of their souls." No one who had committed an offense against the law could be a witness. Out of this practice grew still another rule. It came to be that the number of witnesses required in a case depended upon the standing of the accused. If the accused held some exalted position it was necessary that much more evidence be produced against him than against one of lower rank. At one time the law required that before a bishop could be convicted, at least twelve witnesses must have testified against him. Four witnesses were required to convict an alderman or a sergeant, and from six to eight to convict a squire. St. Paul in writing to Timothy (1 Tim. 5:19) said: "Against an elder receive not an accusation but before two or three witnesses." Thus, when Raleigh insisted that under the law he could not be convicted unless at least two witnesses testified against him, he was insisting upon a law that was as old as the race itself, and which we recognize to-day as one of the fundamental guaranties of our American liberty. In our Federal Constitution it is provided: "No one can be convicted of treason except upon the testimony of two witnesses to the same overt act." When, however, Raleigh insisted upon. being brought face to face with his accuser, he was a pioneer blazing the way, for until the beginning of the seven teenth century witnesses were very seldom brought into the court to testify. Their evidence was received either by someone who had conversed with them, or by written statement signed and acknowledged by them. So profoundly, however, was England aroused over the barbarity of Raleigh's execution, that ́in less than fifty years thereafter Parliament enacted a law which provided that in all capital cases the accused must be faced by his accuser. In the fifteenth century more than forty thousand persons were put to death by the Inquisition, yet in no case was the accused confronted by his accuser. Prior to the sixteenth century both the judges and the juries. were at liberty to obtain the evidence in any way they chose. In a trial for robbery in London in 1303 the sheriff, when called by the judge to know whether the jury was ready, announced publicly: "Your Worship: The least informed of them has taken great pains to go up and down in every hole and corner of Westminsterthey and their wives-and to learn all they can concerning the past and present life of the prisoner.' The jurors were always allowed a fortnight in which to prepare themselves for the trial, by hearing all the gossip possible, and by talking to the litigants. It was only by such tremendous sacrifices as the death of Raleigh that the great principle of compelling the accuser to face his accused became one of the guaranties of our liberty. Our forefathers wrote it in this language in the 6th Amendment to the Federal Constitution: "The accused shall enjoy the right to be confronted with the witnesses against him and have the assistance of counsel for his defense." William N. Gemmill (1 Jac. 266) BY HON. ROUSSEAU A. BURCH* HE case of Shelley v. Westbrooke, 1 Jac. 266, 23 Revised Rep. 47, is interesting for a number of reasons. The question involved was the right of a father to rear his own infant son and daughter. The parent concerned was the poet Shelley, the greatest lyrical genius of his age, or indeed of any age. The ground of interference was the father's profession of atheism, the expression of views contrary to the prevailing notions of the marriage relation, and conduct supposed to be the effect of such views. The case was brought in the Court of Chancery, the highest legal tribunal in the British Kingdom, about which clustered so many ancient dignities and regal privileges and powers. The hearing was before Lord Eldon, perhaps the profoundest English lawyer of his time, and the cause was argued on one side by Sir Samuel Romilly, then the most distinguished man at the chancery bar, and later the bearer of high judicial honors; and on the other side by counsel of great experience, prudence, and skill. The interest aroused by the case at the time is shown by the following paragraph from the London Examiner, appearing January 26, 1817, some days after the hearing, and while the matter was under advisement by the court: "A cause is now privately pending before the Chancellor, which involves considerations of the greatest importance to all the most tolerant and best affections of humanity, public and private. It is of a novel description, and not only threatens to exhibit a most impolitic distinc * Address delivered before the Kansas State Bar Association. tion between the prince and the subject, but trenches already upon questions which the progress of liberality and selfknowledge has been tacitly supposed to have swept aside, and the return of which would be bringing new and frightful obstacles in the way of the general harmony." Shelley was then but twenty-five, and little known. At the age of eighteen, when at school, he had written a poem, "Queen Mab," which was privately printed, but not published. In this poem, and in the notes appended to it, he expressed sentiments antagonistic to the received notions of Christianity, and strongly reprobated the institution of marriage as it then existed in the English legal system, as involving "the sale of love" and constituting the essence of tyranny. Such other of his writings as were known had furnished jokes for punstering reviewers, and and whatever political and social philosophy he held was supposed to belong to the class of the revolutionary and the doctrinaire. When he had reached the mature age of nineteen years, and had been expelled from school for exercising a mind of his own, Harriet Westbrooke, a comely maiden of sixteen, suffering under the tyranny of a harsh parent, and consequently the bitterness of an unhappy home, threw herself upon his protection, and to save her they ran away and sought the balm of a Scotch marriage. Afterwards, when a child had been born to them, they were remarried in England in a church for the express purpose of protecting the child under all the customs and canons of society and its laws. Although he was prospective heir to a baronetcy, Shelley did not receive any 1 Dowden's "The Life of Percy Bysshe Shelley." Photo by Boston Photo News Co. From Drawing by Miss A. Curran in National Portrait Gallery, London Wolstoncraft, author of "The Rights of Women." They both fell most genuinely and passionately in love, and eloped to the Continent. Except for the circumstances of its beginning this union was stainless to the end. After the separation from Harriet her conduct became quite dissolute, and she ended her woes by drowning herself in the Serpentine river. In the meantime Mary bore to him a son, and immediately upon Harriet's death Shelley married her in St. Mildred's Church, London, in full compliance with every formality of civil and ecclesiastical law. This marriage pre the distressed father, the chancery suit was begun. The bill of complaint was filed by the infants, Eliza Ïanthe and Charles Bysshe Shelley, aged respectively three and two years, by a next friend, against their maternal grandfather, John Westbrooke, his daughter, Elizabeth Westbrooke, their father, and other defendants, praying that they be not placed in the custody of their father, but under the guardianship of the Court of Chancery, and that their father be restrained from taking possession of them. The cause was heard upon bill and answer, and after having held it under advisement until March 27th, the Chancellor rendered an opinion the material portions of which are as follows: "This is a case in which, as the matter appears to me, the father's principles cannot be misunderstood, in which his conduct, which I cannot but consider highly immoral, has been established in proof, and established as the effect of those principles; conduct nevertheless which he represents to himself and others, not as conduct to be considered immoral, but to be recommended and observed in practice, and as worthy of approbation. "I consider this, therefore, as a case in which the father has demonstrated that he must and does deem it to be matter of duty which his principles impose upon him, to recommend to those whose opinions and habits he may take upon himself to form, that conduct in some of the most important relations of life, as moral and virtuous, which the law calls upon me to consider as immoral and vicious,-conduct which the law animadverts upon as inconsistent with the duties of persons in such relations of life, and which it considers as injuriously affecting both the interests of such persons and those of the community. "I cannot, therefore, think that I should be justified in delivering over these children for their education exclusively, to what is called the care to which Mr. S. wishes it to be intrusted." In the argument Romilly at first placed chief stress upon Shelley's anti-theological creed as a disqualification for the duties of fatherhood. In this country the question of the right or power of courts to investigate any man's view upon religion or theology had been determined before Shelley's birth. We are all familiar with the provisions of the Federal and state constitutions upon the subject, and so thoroughly compatible have they been with. the sentiments of the people that no attempt has ever been made to alter or infringe them; and it is commonplace to us that the state has no power to invade the citadel of conscience and the sanctuary of the soul,-and this not from any indifference, but that the infinite spirit. of eternal truth may move in perfect freedom, purity, and power. But this case of Shelley v. Westbrooke proves that our prohibitions upon the power of government are wise, and that any attempt to make such a question the subject of judicial investigation results in injustice. Now that the fury of the hour has subsided we can perceive what reverent admiration Shelley felt for Jesus of Nazareth, and how profoundly he understood the true character of his teaching. His many allusions, as in "Adonais," to that power "Which wields the world with never wearied love Sustains it from beneath and kindles it above," were express personal acknowledgments of the God which poor, crude "Queen Mab" denied; and his belief in immortality was as perfect as it was beautiful. It is now plain that Shelley's fierce tirades against historic Christianity were really directed against an ecclesiastical system of spiritual tyranny, hypocrisy, and superstition, which, as he saw where Eldon was blind, retarded the growth of free institutions and fettered the human soul. He understood the Christ who sealed the gospel of love with his blood; he anathematized only those churchmen who would have been the first to crucify their Lord if returned to earth. But more than this: Shelley put his creed into works. His constant occupation was the helping of the needy and the relieving of the sick. He gave money freely when he could illy spare it; he kept memoranda of the necessities of deserving poor, and when he became heir to the richest baronetcy in Sussex he continued as before, in a simple, unostentatious way, to visit the sick in their beds and to find refuges for the homeless. Never has there been exhibited more of— "That best portion of a good man's life, His little, nameless, unremembered acts Of kindness and of love," than in Shelley. These and the genuine greatness of soul and purity and sweetness of character which produced them are beyond the power of any court to estimate or weigh, and it is almost a sacrilege to make the attempt. "Queen Mab" was written at eigh2 Symond's "Percy Bysshe Shelley." |