Legal Lore Part 4

This too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the Druids, among the Ancient Britons, had similar privileges. The tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it.

One of the most interesting tenures is that of Borough English. There are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district.

Borough English is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. In some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. In other manors, princ.i.p.ally Suss.e.x, the youngest daughter inherits. Again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. There are, moreover, places in which the copyhold land only is Borough English, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the Borough English custom.

The area over which this Borough English tenure prevails is an exceedingly wide one. It is found in nearly every part of Europe, except perhaps Italy and Spain--in Germany, Hungary, the Ural mountains, and in Asia as far as the borders of China. Many attempts have been made to explain the custom.

Littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. It is possible the origin may have come to us from the Tartars, amongst whom this custom of descent to the youngest son also prevails. That nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. And thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir.

The tenure of Gavelkind prevails princ.i.p.ally in the County of Kent. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. It seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that Gavelkind, before the Norman Conquest, was the general custom of the realm. The distinguishing properties of this tenure are various; some of the princ.i.p.al are these: 1. The tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. There never was any escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to the plough." 3. In most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. The lands descend not to the eldest, youngest, or any one son only, but to all the sons together. This last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like Borough English, it prevails to the present day. True it is that certain lands in Kent, once Gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county.

Gavelkind and Borough English, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded.

The ancient Barons of Buccleuch, both from feudal splendour and from their frontier situation, retained in their household at Branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle.

Nine and twenty knights of fame Hung their shields in Branksome Hall Nine and twenty squires of name Brought them their steeds from bower to stall.

Nine and twenty yeomen tall Waited duteous on them all.

They were all knights of metal true, Kinsmen to the bold Buccleuch.

"Lay of the Last Minstrel."--Scott.

Canto i., III.

Laws of the Forest.

BY EDWARD PEAc.o.c.k, F.S.A.

The subject of "The Laws of the Forest" and of the wild things which have their homes therein, both in our own island and elsewhere, has been a matter of discussion for ages; but very little has been written thereon which is of much service, except to legal specialists. It is, indeed, one of those difficult subjects which is hardly possible to make interesting to those whose thoughts range in the present rather than in the past.

There can be no doubt whatever, that from the birth of the human race, long ere we can trace our history back in written doc.u.ments, the killing of animals has been a sport as well as a means of procuring food; both these may be considered, whatever certain dreamers may aver to the contrary, as among the necessities of human life. We cannot be quite certain whether the stone axes, hammers, and spears, of which we see such numbers in our museums, were wrought in antic.i.p.ation of the delights of the chase, or whether they were simply, what may be called, the tools of the primaeval butcher; but, knowing as we do, the contempt in which every man at the present hour is held, who having wealth and leisure enough to indulge in what is called "sport," abstains from amusing himself in some form of slaughter, we may well believe that our palaeolithic predecessors, however empty the larder might be, would try to impose on themselves that what they did was done to amuse themselves, as a manly exercise, not a stern necessity. In confirmation of this, we must call mind that there have been found several weapons with the reindeer and other animals carved, or perhaps it would be better to say scratched, upon them with a high degree of pictorial excellence; we may therefore infer that amus.e.m.e.nt, as well as appet.i.te, occupied the minds of those early artists, who so deftly represented the creatures on whom they waged war. Had they merely been regarded as things to be eaten, such as the tinned meats we now buy from the provision merchant, they would never have been held worthy of artistic treatment.

One of the oldest proverbs that have come down to us, if indeed it be not the very oldest, is that wherein we are told something

"Of Nimrod the founder Of empire and chace, Who made the woods wonder And quake for their race."

That he was the first of the great hunters is a dream of Lord Byron's, not in any way countenanced by Holy Scriptures, or any of the old authorities.

We are simply told in Genesis that Nimrod was a son of Cush, and that "He began to be a mighty one in the earth. He was a mighty hunter before the Lord. Wherefore it is said, even as Nimrod the mighty hunter before the Lord."[7] The precise meaning of this has been questioned. It most likely signifies that Nimrod was the first person who organised those mighty hunting expeditions, which were so famous in the days of the great Oriental despotisms. From these tyrants it is probable that the Forest Laws of Mediaeval Europe had their origin. In the sculptures that have been unearthed in the dead cities of the East, hunting scenes of great magnificence are not uncommon, nor are they unknown in Egypt, where, however, the capture of fish was the more common sport, as the Nile may be said to have been at every man's door.

That Forest Laws of some kind or other existed in these far-off times may be accepted as certain, and we may take it for granted, when we call to mind the general legislation then in force, that they were terribly cruel according to our modern ideas, but we can at present only arrive at these conclusions by inference.

When Rome became the mistress of the world, we know that in many parts of the empire the wild creatures were rigorously preserved, but we do not think that they were often hunted by their owners. Such was rather the duty of freed men and slaves. Those which were fit for food were preserved as delicacies for the table, but the larger beasts, such as the lion, the tiger, the bear, the lynx, and perhaps even the wild cat, were reserved for the sports of the amphitheatre. Amphitheatres were much more common than is usually supposed. In a few places their remains exist still, but most of them have perished, serving as quarries for stone during the whole of the Middle Ages, and in Mohammedan lands to a much more modern period, perhaps even to the present day. We are not sure that any list of them has been preserved, or could now be compiled, but they were so numerous throughout the empire that the possession of wild beasts on the immense estates of the Roman patricians must have been a great source of wealth to their owners. The Roman n.o.bles did not care for field-sports as the northern nations did. A feeling or instinct of this kind dies hard. At the present day the Italian cares much less for such amus.e.m.e.nts than the Englishman, the German, or the inhabitants of northern France. Virgil, who represents more fully than any other heathen poet, the feelings of the better sort of Romans of his own time, says, attributing the words to another, but evidently speaking his own thoughts:--

"Above aught else let the woods be dear to me."[8]

This was, however, not for the sake of the slaughter that might be perpetrated therein, but on account of their many beauties and the grateful shade which they afforded. Virgil was in many respects a modern in his love of scenery, though we doubt whether snow-clad mountains and craggy heights would have appealed to him as they have done to us during the short time that has elapsed since we have been able to see them without discomfort.

When the Roman Empire was in the zenith of its glory, there does not seem to have been in Gaul or Britain any vast stretches of forest. The country was no doubt well wooded when we compare it with the France or England of to-day, for during the last two hundred years trees have been wantonly destroyed, to the great injury of agriculture as well as local beauty, for the sake of supplying land-owners with ready money. Long continued wars have also desolated the national forests for the sake of supplying timber to the shipbuilder.

After the various invasions which desolated so many parts of the Roman Empire, large portions of Gaul reverted to a state of nature. Towns and villages were burned, their inhabitants slaughtered, or scattered far away from their homes. A picturesque account of what followed is given in Montalembert's _Les Moines d'Occident_, from which we gather that much of Gaul had reverted to a state of nature, such as it was in ere civilisation had made its first incursions on the untamed wilderness. The lives of the early Gallic saints, found scattered through the many volumes of the _Acta Sanctorum_, bear the like testimony, as do many parts of the old romances, the scenes of which so often lie in the trackless forest.

In England, things may not have been quite so woeful. The population, we believe, never became so scanty as in Eastern Gaul. It is still a matter of controversy whether here the native folk were slaughtered or driven into the mountains of Wales, or whether the greater part of them were made bondmen. We hold the latter opinion, but the whole subject is beset with great difficulties. However this may be, it is quite certain that the population was very much reduced; many wide districts, which had been carefully cultivated by the Roman settlers, or natives who had adopted their manners, were laid waste. The picturesque villas, with their adjoining peasant homesteads, were all gone--burnt with fire,--and woodland, scrub, or mere sandy desolation supplied the place of the adjoining pleasure-grounds, farms, and pastures. One of these desolate tracts named Andredsweald stretched from Kent to the Hampshire Downs, at some points almost touching the Thames. Another great forest appears to have extended from a point a little to the north of London, till it reached the forests of Rockingham and Sherwood. The great level of Hatfield Chace seems to have been a spur of this, if not so, they were but separated by a narrow stretch of cultivated land from the forest itself.

Deer were plentiful on Hatfield Chace until the reign of Charles the First. They even continued to exist longer on the eastern side of the Trent, on a long and narrow belt of scrub which extended from Morton, near Gainsburgh, to the point where the Trent falls into the Humber. An ancestor of our own, who died as recently as 1758, was accustomed to hunt them there. As well as these larger forests, the whole land was dotted over with places once the sites of Roman dwellings, but which now had become either mere wastes, or woodlands covered with tall timber trees, interspersed with the elder, the nut, the thorn, the birch, the maple, and the alder. In some places the yew and the holly were abundant also, but they seem to have flourished only in widely separated patches.

The Saxon and the Danish conquests came about gradually, and the country was in so disturbed a state that it was impossible for rigid Forest Laws to be enacted, or even if written on parchment to be put in force.

Besides this, the Saxon and Danish leaders were of a different character from their Norman successors. A vague memory still haunted them of the free life once lived in Germany and Scandinavia; a life as different as can well be imagined from that of modern democracy, but still one in which every thrall, bondman, and slave had certain well ascertained rights, which were under the protection of the State and the Church.

Thus it came to pa.s.s that there were in almost every district stretches of forest land, which were, in a great degree, open to the people, where men could fell timber for their dwellings and slaughter animals for food; though even before the Norman Conquest had come as a shadow on the liberties of Englishmen, there is reason for thinking that forestal-rights had become, in name at least, a privilege of the king and his great thegns.

The Norman Forest Law was of a similar character to that which William's forefathers had enforced in Normandy. The country, which we have for ages known as France, was, in earlier times, broken up into many provinces, and it was only by a slow process that it became one. Each of these provinces had a Forest Law of its own. When the Normans settled in the goodly land which they called after themselves, they retained the customs which they found there. When William transferred the laws of his old duchy to his new kingdom, it could, at the first, only be by an act of favour that anyone could kill a beast of chase except himself or his retainers. This from the nature of things did not last long. William never could have intended to retain the whole of the vast territories which the victory of Senlac had given him in his own possession. He divided the kingdom among his chief tenants--tenants _in capite_,--and to these great men, with some slight exceptions, he handed over all forestal rights which existed in their domains, the king retaining to himself for his own pleasure, and as a mark of dignity, some great forests, which for ages have remained in royal hands.

Notwithstanding certain Danish and Saxon charters, it has always been traditionally held that our Forest Laws come from William the First, and this is substantially true, though objections to the statement might be taken. It would not be unsafe to say that no one but the Conqueror could have enforced so drastic a regulation. As the Bishop of Oxford has so truly said, "The King made and kept good peace. The Dane-geld and the Forest-Law were not too much to pay for the escape from private war and feudal disruption."[9] It is true that William had desolated large tracts of land to make them serve him for the chase; the crime was terrible, though exaggerated by modern historians; but he had many n.o.ble qualities, so that those who had not personally suffered were willing to overlook the evil. With his son, William the Red, the Forest Laws became unbearable, and were hated by baron and villain alike.

He was one of the worst kings which ever disgraced the English throne. In a deeply religious age he was wantonly opposed to all G.o.dliness. Alike the enemy of G.o.d and Man, a type and representative of all things evil, we need not wonder when he fell by an arrow in the New Forest, that men saw a visible judgment of G.o.d.

To him, and to Henry the First, are commonly ascribed the ferocity of the Forest Laws. Men believed that in after time kings would have mitigated matters had it been in their power. They said, and there is much truth in the averment, that these bad laws required the support of an army of evil men to work them efficiently, and that for the ordinary court officials, or the king himself, to thwart these people would be especially dangerous.

When we call to mind what have been from time to time the characters of the farmers of the taxes at Naples, and various parts of France, we cannot deny that there is much truth in the statement.

Affairs reached their most evil point when Henry II. was King. It was then the custom for the royal foresters to be a complete law unto themselves, they put to death and mutilated whom they would without any trial whatever, or with but the mockery of the water-ordeal, a farce which had already been condemned by the Church, but which was very fashionable with ruffians who were anxious to secure a conviction. One of these fellows laid hold of an ecclesiastic, with the intention of extracting from him a large sum of money. Well was it for him that he was of the diocese of Lincoln, and that at that time Hugh of Avalon was its bishop. The thunders of excommunication were at once heard, the ecclesiastic escaped from the forester's clutches, and from that time forward, though much yet remained to be done, the tide turned, and the Forest Laws were administered with something more nearly approaching to justice.

Trial by Jury in Old Times.

BY THOMAS FROST.

When we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in England, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the inst.i.tution has not always proved a safeguard when the court, acting under the influence of the Crown, endeavoured to obtain a conviction. It was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. An interesting ill.u.s.tration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of Sir Nicholas Throckmorton, in 1554, on a charge of high treason, in conspiring the death or deposition of the Queen, and the seizure by force of arms of the Tower of London. The prosecution was conducted by Serjeant Stanford and the Attorney-General, Griffin, the former leading; and it is noteworthy that both they and Chief Justice Bromley questioned the prisoner in much the same manner as is still customary in France and Belgium, striving to procure evidence that would convict him out of his own mouth. The endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of Winter and Crofts, who, however, were not called as witnesses.

The jury, after several hours' deliberation, returned a verdict of not guilty, upon which the Lord Chief Justice addressed them in threatening tones, saying, "Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the Queen's highness and yourselves also. Take good heed what you do." The jury were firm, however, and the foreman replied to the remonstrance of the bench, "We have found him not guilty, agreeable to all our consciences." Then the Attorney-General rose, and addressing the court, said, "An it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, I pray you for the Queen that they and every one of them may be bound in a recognizance of 500 a-piece, to answer to such matters as they shall be charged with in the Queen's behalf, whensoever they shall be charged or called." The court went beyond even this audacious request, for they actually committed the jury to prison! Four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the Star Chamber and severely dealt with, three being ordered to pay a fine of 2,000 each, and the others 200 each.

In the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future "good behaviour." A decision of the Lord Chancellor, the two Chief Justices, and the Chief Baron, in the reign of James I., sets forth that when a person is found _guilty_ on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the Star Chamber, "for their partiality in finding a manifest offender not guilty." In 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. Chief Justice Kelying in that year having fined a grand jury of the County of Somerset, for not finding a true bill against a man accused of murder; but, says the report, "because they were gentlemen of repute in the county, the court spared the fine." This case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the House of Commons, however, and that a.s.sembly resolved "that the precedents and practice of fining or imprisoning jurors for verdicts is illegal."

Notwithstanding this resolution of the House of Commons, William Penn, and another member of the Society of Friends, named Mead, being indicted at the Old Bailey for having, with other persons unknown, unlawfully and tumultuously a.s.sembled in Gracechurch Street, in the City of London, the Recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. The indictment set forth that Penn, by agreement with and abetment of Mead, did in the open street speak and preach to the persons there a.s.sembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the King and the law, and to the great terror and disturbance of many of His Majesty's liege subjects. The trial took place before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses had deposed that Penn had preached, and that Mead was there with him, the Recorder summed up the evidence, and the jury retired to consider their verdict. They were absent a considerable time, at length returning with the verdict that Penn was "guilty of speaking in Gracechurch Street."

"Is that all?" the Recorder asked.

"That is all I have in commission," replied the foreman.

"You had as good say nothing," observed the Recorder, and the Lord Mayor added, "Was it not an unlawful a.s.sembly? You mean he was speaking to a tumult of people there."

"My lord," returned the foreman, "that is all I have in commission."

"The law of England," said the Recorder "will not allow you to part until you have given in your verdict."

"We have given in our verdict," returned the jury, "and we can give in no other."

"Gentlemen," said the Recorder, "you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business."