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The flyman goeth

You’ll see it in the transcript of some of the oldest trials.

The jury is asked for its verdict, and the foreman stands to announce it.

Pilot with airplane on a background of sky“How say you?” asks the clerk of the court. “Guilty or not guilty?”

“Not guilty,” says the foreman.

And then comes the question.

“Did he fly for it?”1

Say what?

Just what is that supposed to mean?

Okay. Let’s start with the fact that there’s this old English word flyma. And it means “a runaway; fugitive; one escaped from justice.”2

And then there’s the extension of that to one who harbors a fugitive, and that was considered a crime against the Crown that went by the name of flyman-frymth: “In old English law. The offense of harboring a fugitive, the penalty attached to which was one of the rights of the crown.”3

So when someone was said to “fly for it,” he was running away, a fugitive trying to escape from justice.

And you don’t have to take The Legal Genealogist‘s word for it. There was a jury foreman back in 1817 who was just as confused as we might be today:

Mr. Barlow (clerk of the court). — … Gentlemen of the jury, look you upon the prisoner. How say you, is James Watson Guilty of the High Treason, whereof he stands indicted, or, Not Guilty?

Foreman. — Not guilty.

Mr. Barlow. — Did he fly for it?

Foreman. — I do not understand the question. Do you mean for our verdict?

Mr. Justice Bayley. — Did he fly away from justice?

Foreman. — No; no.4

But why was the question being asked at all?

Black’s Law Dictionary says only that it was the custom to ask but that the practice was abolished.5 But one edition of the source it cites — Wharton — offers more:

On a criminal trial in former times it was usual after the verdict, even of not guilty, to inquire also : ‘Did he fly for it?’ Forfeiture of goods followed a conviction upon such inquiry. This practice, after having been long discontinued, was generally abolished by the Criminal Law Act, 1827, 7 & 8 Geo. 4, c. 28, s. 5. There is a saying Fatetur facinus qui judicium fugit (3 Inst. 14)— ‘He who flies from justice confesses his guilt.’6

In other words, if the prisoner had tried to escape from justice, it could be considered as evidence that he was guilty — and if he was convicted of the crime after he did fly for it, he could forfeit what he owned to the state.


SOURCES

  1. See, for example, “Trial of Samuel Atkins,” Cobbett’s Complete Collection of State Trials, vol. VII (London : R. Bagshaw, 1810), 249-250; digital images, Google Books (http://books.google.com : accessed 10 April 2014).
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 501, “flyman.”
  3. Ibid., “flyman-frymth.”
  4. “Trial of James Watson,” in Thomas Jones Howell, A Complete Collection of State Trials…, vol. XXXII (London: Hurst, Rees, Orme, Brolwn & Green, 1824); digital images, Google Books (http://books.google.com : accessed 10 April 2014).
  5. Black, A Dictionary of Law, 501, “fly for it.”
  6. Edward A. Wurtzburg, editor, Wharton’s Law Lexicon, 12th ed. (London: Stevens & Sons, 1916); digital images, Google Books (http://books.google.com : accessed 10 April 2014).
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