en as he
pleased, subject to an indefinite chance of imprisonment by the
'ordinary.' At a later period, he could still murder at the cost of
having M branded on the brawn of his thumb. But women and men who had
married two wives or one widow did not enjoy this remarkable privilege.
The rule seems as queer and arbitrary as any of the customs which excite
our wonder among primitive tribes. The explanation, of course throws a
curious light upon the struggle between Church and State in the middle
ages; and in the other direction helps to explain the singularities of
criminal legislation in the eighteenth century. Our grandfathers seem to
have thought that felony and misdemeanour were as much natural classes
as mammal and marsupial, and that all that they could do was to remove
the benefit of clergy when the corresponding class of crime happened to
be specially annoying. They managed to work out the strange system of
brutality and laxity and technicality in which the impunity of a good
many criminals was set off against excessive severity to others.

The spiritual courts, again, give strange glimpses into the old
ecclesiastical system. The records show that from the time of the
Conquest to that of the Stuarts a system prevailed which was equivalent
to the Spanish Inquisition, except that it did not use torture. It
interfered with all manner of moral offences such as that of Eleanor
Dalok, a 'communis skandalizatrix,' who 'utinizavit' (supposed to be a
perfect of _utinam_) 'se fuisse in inferno quamdiu Deus erit in caelo, ut
potuisset uncis infernalibus vindicare se de quodam Johanne Gybbys
mortuo.' The wrath provoked by this and more vexatious interferences
makes intelligible the sweeping away of the whole system in 1640. With
this is connected the long history of religious persecution, from the
time when (1382) the clergy forged an act of Parliament to give the
bishops a freer hand with heretics. Strange fragments and shadows of
these old systems still remain; and according to Fitzjames it would
still in strict law be a penal offence to publish Renan's 'Life of
Christ.'[178] The attempt to explain the law as referring to the manner,
not the matter, of the attack is, he thinks, sophistical and the law
should be simply repealed. A parallel case is that of seditious libels;
and there is a very curious history connected with the process by which
we have got rid of the simple, old doctrine that all attacks upon our
rulers, reaso