3. CIVIL JURISDICTION

(a) _The Writ for Removal._—The right to expel lepers was acknowledged before it was legally enforced. An entry upon the statute-book may be merely the official recognition of an established custom. The fact that where use and wont are sufficiently strong, law is unnecessary, is illustrated to-day in Japan, where public opinion alone enforces the separation of lepers. At length English civil law set its seal upon the theory of infection by the writ _De Leproso Amovendo_, authorizing the expulsion of lepers on account of manifest peril by contagion. An early instance of removal occurs in the Curia Regis Rolls (1220). It is mentioned that William, son of Nicholas Malesmeins, had been consigned with the assent [p053] of his friends to a certain Maladria in Bidelington, where he abode for two years. This was the leper-house near Bramber, mentioned four years previously in a Close Roll as “the hospital of the infirm of St. Mary Magdalene of Bidelington.” Legislation on this subject was chiefly local. The Assizes of London had proclaimed in 1276 that “no leper shall be in the city, nor come there, nor make any stay there.” Edward III supplemented existing measures by an urgent local edict for London and Middlesex. The royal proclamation sets forth that many publicly dwell among the citizens, being smitten with the taint of leprosy; these not only injure people by the contagion of their polluted breath, but they even strive to contaminate others by a loose and vicious life, resorting to houses of ill-fame, “that so, to their own wretched solace, they may have the more fellows in suffering.”[35] All persons proved leprous—citizens or others, of whatever sex or condition—are to quit the city within fifteen days, “and betake themselves to places in the country, solitary, and notably distant from the city and suburbs.” This order, sent to the mayor, was followed by a proclamation to the sheriff of the county. Lepers are to abandon the highways and field-ways between the city and Westminster, where several such persons sit and stay, associating with whole men, to the manifest danger of passers-by.[36] This social problem continued to vex municipal authorities. A precept was issued (1369) “that no leper beg in the street for fear of spreading infection.” The porters of the eight principal gates of the city were sworn [p054] to refuse them admittance. (That _barbers_—forerunners of the barber-chirurgeons—were included among the gate-keepers in 1310 and 1375, was perhaps due to their supposed capability of recognizing diseases.) If a leper tried to enter, he should forfeit his horse or his outer garment, and if persisting, be taken into custody. The foreman at “le loke” and an official at the Hackney lazar-house were also bound to prevent their entry into the city. The “Customs of Bristol,” written down by the recorder in 1344, declare “that in future no leper reside within the precincts of the town.” Imprisonment was the penalty—a plan of doubtful wisdom. The measures ordained by the burgesses of Berwick-on-Tweed were summary:— “No leper shall come within the gates of the borough; and if one gets in by chance, the serjeant shall put him out at once. If one wilfully forces his way in, his clothes shall be taken off him and burnt, and he shall be turned out naked. For we have already taken care that a proper place for lepers shall be kept up outside the town, and that alms shall be there given to them.”[37] It was comparatively easy for the civic authorities to control the ejection of lepers when the asylum was under their supervision, as it frequently was. At Exeter, ecclesiastical leniency permitted a continuance of the custom (which was already “ancient” in 1163) of allowing lepers to circulate freely in the town. In 1244 the bishop seems to have agreed with the mayor and corporation about the inadvisability of the practice; and he resigned the guardianship of the lazar-house, accepting in its stead that of St. John’s hospital. [p055] Municipal documents record the expulsion of lepers. In Gloucester (1273), Richard, Alice and Matilda gave trouble and would remain within the town “to the great damage and prejudice of the inhabitants.” John Mayn, after repeated warnings to provide for himself some dwelling outside London, was sworn to depart forthwith and not return, on pain of the pillory (1372). A Leet Roll among the records of Norwich states that “Thomas Tytel Webstere is a leper, therefore he must go out of the city” (1375). In the following instances, the infected were consigned to hospitals. Margaret Taylor came before the keepers of Beverley in the Gild Hall, and asked by way of charity permission to have a bed in the lepers’ house outside Keldgate Bar, which request was granted (1394). The town-clerk of Lydd makes an entry of ten shillings “Paied for delyvere of Simone Reede unto the howse of Lazaris” (_circa_ 1460). The manorial court sometimes dealt with such cases. That of the Bishop of Ely at Littleport recorded (1321):—“The jurors say upon their oath that Joan daughter of Geoffrey Whitring is leprous. Therefore be she set apart.”[38] The law evidently had no power to touch a leper unless he made himself a source of public danger. No one interfered with him as long as he remained in a quiet hiding-place, quitting it, perhaps, only at night. Individuals, sheltered by the affection or self-interest of relatives, might never come under the ban of the law: in the Norwich records, for example, Isabella Lucas seems to have been allowed to remain at home (1391). Judge Fitz-Herbert, commenting on the writ of removal, observes [p056] that it lies where a leper is dwelling in a town, and will come into the church or amongst his neighbors.[39] English legislation was never severe regarding lepers. We may believe that the tolerant spirit of a certain thirteenth-century Scottish canon prevailed throughout Great Britain. Lepers, it was declared, might well fulfil their parochial obligations, but “if they cannot be induced to do so, let no coercion be employed, seeing that affliction should not be accumulated upon the afflicted, but rather their misfortunes commiserated.”[40] In France, however, upon one terrible occasion, Philip V was guilty of the abominable cruelty of burning lepers on the pretext that they had maliciously poisoned wells. Mezeray says:—“they were burned alive in order that the fire might purify at once the infection of the body and of the soul.” The report of this inhuman act reached England and was recorded both in the Chronicle of Lanercost (under date 1318) and also by John Capgrave, who says:— “And in this same yere [1318] the Mysseles [lepers] thorow oute Cristendam were slaundered that thei had mad couenaunt with Sarasines for to poison alle Cristen men, to put uenym in wellis, and alle maner uesseles that long to mannes use; of whech malice mony of hem were conuicte, and brent, and many Jewes that gave hem councel and comfort.”[41] (b) _Property._—The legal status of the leper must now be examined. When pronounced a leper in early days, a man lost not only his liberty, but the right to inherit or bequeath property. A manuscript Norman law-book [p057] declares “that the mezel cannot be heir to any one.” In the days of Stephen, for example, Brien Fitz-Count was lord of Wallingford and Abergavenny. “He had two sons, whom, being lepers, he placed in the Priory of Bergavenny and gave lands and tithes there to for their support,” bequeathing his property to other kinsmen. Again, two women of the Fitz-Fulke family appeared in the King’s Court (1203) in a dispute about property at Sutton in Kent: Avice urged that Mabel, having a brother, had no claim—“but against this Mabel says that he is a leper.”[42] Even a grant made by such a person was void. In 1204 King John committed the lands of William of Newmarch to an official who should answer for them at the Exchequer, but “if he have given away any of his lands after he fell sick of the leprosy, cause the same to be restored to his barony.”[43] This illustrates Bracton’s statement that “a leprous person who is placed out of the communion of mankind cannot give . . . as he cannot ask,” and, again, “if the claimant be a leper and so deformed that the sight of him is insupportable, and such that he has been separated . . . [he] cannot plead or claim an inheritance.”[44] On the other hand, Lord Coke declares that “ideots, leapers &c. may be heires,” and he comments thus upon Bracton and Britton:—“if these ancient writers be understood of an appearance in person, I think their opinions are good law; for [lepers] ought not to sue nor defend in proper person, but by attorney.”[45] Possibly the Norman custom of disinheritance prevailed in England at one time and then died out. The case of Adam [p058] de Gaugy proves that in 1278 this Northumbrian baron was not liable to forfeiture. He was excused, indeed, from appearing in the presence of Edward I, but was directed to swear fealty to an official. Although spoken of as his brother’s heir, Adam did not long enjoy his property. He died the same year, childless, but leaving a widow (_Eve_), and the barony passed to a kinsman.[46] The Norman maxim that the leper “may possess the inheritance he had before he became a leper” is illustrated by the story of the youthful heir of Nicholas de Malesmeins. Having attained full age, he left the hospital where he had been confined, appeared before his feudal lord, did homage, made his payment, and entered his fief.[47]