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.