Chapter 3: 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 Væhme 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’espée, lesquels doivent justicier vertueusement à l’espée tous ceux qui suient malveses compagnies, gens diffamez d’aucuns crimes, et gens fuites et forbannis ... et les doivent si vigoureusement et discrètement appréhender, que la bonne gent qui sont paisibles soient gardez paisiblement et que les malfeteurs soient espoantés.” To be thus arrested was to be seized “à le glaive de l’espée.” (Vetus Consuetudo Normanniæ, MS. part I, sect. I, Chapter 11.) The jurisconsults referred besides “in Charta Ludovici Hutum pro Normannis, chapter Servientes spathæ.” Servientes spathæ, in the gradual approach of base Latin to our idioms, became sergentes spadæ.