gives it in full; but that was as far back as November 1st, 1714. A
like custom ruled the Manor of Kilmersdon, in Somerset, where the
doggerel, if briefer and blunter, is at least equally gross. And here
one must refer to the _jus primæ noctis_, that lewd historic jest
which, in England at any rate, was ever a sheer delusion. True that on
the marriage of a villein's daughter a fine was paid to the lord, but
this was not to spare her blushes, but as compensation to him for the
loss of her services--inasmuch as she took the domicile of her husband.
Nay, the custom of the manor usually made for morality. There was a
fine called child-wit exacted on the birth of an illegitimate child,
sometimes from the infant's father, or, again, from the father of its
mother. Nay, in one or two places the unlucky lover forfeited all his
goods and chattels. On the other hand a curious privilege attached to
an oak in Knoll Wood in the Manor of Terley in Staffordshire: "In case
oath were made that the bastard was got within the umbrage or reach of
its boughs," neither spiritual nor temporal power had ought to say, and
the man got off scot free.
The curious tenacity of the manorial custom is well shown in the case
of Pomber in Hampshire: the Annual Court, in accordance with immemorial
usage, must be held in the open air, but the inconvenience of this was
obviated by an immediate adjournment of the proceedings to the nearest
tavern. The records were not kept on parchment, but "on a piece of wood
called a tally, about three feet long and an inch and a half square,
furnished every day by the steward." In time these strange muniments
became worm-eaten and illegible; and, as occupying much needed room,
were thrown to the flames by the dozen. (It will be remembered that the
old Houses of Parliament were set on fire and destroyed on the burning
of the exchequer tallies, October 1834.) Some of the survivors were
produced as evidence in a case heard at Winchester, which fact provoked
"a counsellor on the opposite side of the question" to dub it "a wooden
cause." The obvious retort--that his was a wooden joke--seems lacking;
but possibly this gem of legal humour emanated from the Bench: how
often one has seen its like!
Still stranger was the Lawless Court of the Honour of Raleigh: it
was held in the darkness of cockcrow; the steward and the suitors
(i.e., those bound to attend the Court) mumbled their words in scarce
audible fashion; candles, pens, ink, were all forbidden; for, as the
authorities vaguely put it, "they supply that office with a coal." To
ensure a punctual attendance, the suitor "forfeits to his lord double
his rent every hour he is absent." The learned Camden affirms it was
all to punish the aboriginal tenants for a conspiracy hatched in the
darkness of the night; again he sees in it a remnant of an old Teutonic
custom; and in the end you suspect that he knows as little as yourself.
Then there was the white bull which the tenants of the monks of Bury
St Edmunds were bound by their leases to provide, that childless
women might present it to the shrine of the martyred king of East
Anglia; there was the fine called "thistletake," which the owner
of beasts crossing the common, and snatching at the "symbol dear,"
must pay to the lord of the Manor of Halton; there are the "three
clove-gillieflowers" which the tenants of Hame in Surrey shall render
at the King's coronation; there are all sorts of minute details as to
house-bote and fire-bote, and common of piscary and turbary. One more
custom and we have done. In the time of Richard the Lion-heart, Randal
Blundeville, Earl of Chester, was on one occasion sore pressed by the
Flintshire Welsh. He summoned to his aid his constable of Cheshire,
one Roger Lacy, "for his fierceness surnamed Hell." It was fair-time
at Chester, and Roger, putting himself at the head of the motley crowd
marched off to his relief. The Welsh heard, saw, and bolted, and the
grateful earl there and then promulgated a charter granting to Roger
and his heirs for ever, "power over all fiddlers, lechers, light
ladies (the charter has a briefer and stronger term), and cobblers in
Chester." Under Henry VII. we find the then grantee exacting from the
minstrels (_inter alia_) "four flagons of wine and a lance," whilst
each of the aforesaid ladies must pay fourpence on the feast of St
John the Baptist. Under Elizabeth, various acts were aimed at rogues,
vagabonds, and sturdy beggars, but always with a saving provision as
to this Chester jurisdiction, and in later times the Vagrant Act (17
George II., cap. 5) had a like reservation.
DEODANDS
At one time or other you have looked, one supposes, into that huge
collection of curiosities and horrors known as the State Trials. You
may possibly have noted the form of indictment in the murder cases;
and if so, one odd detail must have impressed you. Having set forth
the weapon used by the murderer, the document invariably goes on to
estimate its money value: for, having been instrumental in taking human
life, it was forfeit to the Crown, and it or its price had to be duly
accounted for. It was called a Deodand, but the name was applied to
many things besides arms used with malice aforethought. Thus, a man
died by misadventure: then was the material cause active or passive?
For instance, his end might come because a tree fell on him, or
because he fell from a tree, in either case the wood was a deodand,
and so forfeited. The name is from _Deo dandum_--a thing that must be
offered to God, and this because in early mediæval times the Church or
the poor had the ultimate benefit.
For the origin of the custom one must go far back. In Hebrew, Greek,
and Roman legislation, the physical object that caused the loss of
human life was held accursed, and hence was destroyed or forfeited.
In England a thing became a deodand only when the coroner's jury (or
more rarely some other authority) had found it the cause of death;
which death, moreover, must happen within a year and a day of the
accident. If it did, the thing was seized, no matter where it was, or
who had it. In default of delivery the township was liable, and it
was the Sheriff's duty to get the value therefrom. If a man had _per
infortunium_ (or without blame) used the article, the jury found that
as a fact, and he was acquitted, or rather pardoned; but in strict
law his goods were forfeit as late as 1828. And not everything causing
death was a deodand. If a man fell into the water, was carried under a
mill-wheel, and perished, the wheel was forfeit but not the mill. The
distinction was sometimes difficult. Here are two actual examples. A
cart and a waggon came into collision; the man in the cart was pitched
out under the waggon-wheels and died. The two vehicles, all they held,
the horses that drew them, were adjudged deodands, "because they all
moved _ad mortem_." Again, a ship was hauled up for repairs, toppled
over on a shipwright at work, and was declared forfeit. Your mediæval
lawyer was nothing if not subtle, and he soon raised doubts enough
to gravel a schoolman. He questioned if things fixed to the freehold
could become deodands. Suppose a man were ringing a church bell, and
the rope, getting twisted round his windpipe in some strange fashion,
choked the life out of him: how then? The rope seemed past praying
for, but what about the bell? The learned differed, yet all agreed that
if the timber holding the bell got loose, and came crashing down on the
sexton, the royal treasury, of clear right, pounced on rope, and bell,
and timber. How furiously, with what a wealth of legal learning and
invention, one fancies the utter barristers must have "mooted" those
fascinating points after supper in the halls of their ancient Inns!
The decisions were hard to reconcile. Thus, in Edward the Third's time,
it was held that if a man fall to his death from his horse against the
trunk of a tree, the horse is forfeit, but not the tree. But in the
same reign a distinction was drawn. One William Daventry, a servant to
John Blaburgh, engaged in watering a horse, was grievously hurt. He was
carried to his master's house "_apud Fleet Street in suburbio London_",
and there at even he died. At first the horse was adjudged a deodand,
but Blaburgh got the inquisition quashed on the ground that the horse
had not thrown his rider. Again, if a lad under fourteen fell from a
cart and was killed, there was no deodand: as some opined, because the
masses might be dispensed with, in the case of one presumed sinless
from his tender age, and the proper end of deodands was to procure
masses; but others urged it was "because he was not of discretion to
look to himself." The further question--what possible difference this
could make--was not raised; for even a mediæval lawyer's speculation
must stop somewhere. But how if the slayer were a lad? A Cornish case,
_temp._ 1302, supplies an answer. Jack of Burton, a boy of twelve, had
a mind to draw the bow. He rigged up a target in a house, and shot
thereat from the outside. One arrow missed the mark, and, glancing off
a hook, transfixed a woman called Rose. Rose died forthwith, and Jack
fled in horror. It was held that _le Hoke_ was a deodand, but that the
boy, on account of his age, was no whit to blame, and (with a touch of
kindliness) a proclamation was made far and wide that he might return
in safety. In this connection one recalls the awkward misadventure of
Abbot, Archbishop of Canterbury, in the reign of James I., who, being
out a-hunting, killed, by pure accident, Peter Hawkins, his keeper.
He had many enemies, and all sorts of ecclesiastical and temporal
penalties were threatened: at least, it was said, let all his goods be
confiscate. But the King turned a deaf ear to these suggestions: he
comforted the unlucky prelate with kindly words, and a full pardon,
dated 26th September 1621, removed all possible danger from his
reverend person.
If a man met his death afloat, there was deodand or no deodand as the
water was fresh or salt, for these rules had no force on the high
seas or in tidal rivers: because, said some, "there were so many
deaths at sea." "Nay," said others, "how forfeit the ocean?" "But at
least," it was replied, "one could take the ship"----but here again
speculation must stop. Although deodands first went to the Crown, and
were properly applied to pious or charitable uses, yet they were often
granted to lords of manors: so often, indeed, that one of the few
references to them in English literature--a couplet in Samuel Butler's
_Hudibras_--treats this as the general rule.
"For love should, like a deodand,
Still fall to the owner of the land."
This owner was not seldom exacting, and his claim was met in
characteristic English fashion. The coroner's jury returned the
value of the deodand at next to nothing, _e.g._, "a horse, value
three shillings," and the Court of "King's Bench" refused to disturb
the finding. Hence one absurdity balanced another, and the doctrine
was long defended. In 1820, Joseph Chitty, in his standard work on
_Prerogatives_, maintains that "the forfeiture is rational so far as it
strengthens the natural sensation of the mind at the sudden destruction
of human life." But in later years these mediæval ghosts began to
walk again to some purpose. In 1840 the London and Birmingham Railway
Company was amerced in £2000 as a deodand! Railway directors were no
doubt convinced that 9 and 10 Vic., c. 62, which in 1846 made an end
of the whole business, came not a day too soon. Had the law of twenty
years before that been restored, there might have been some warrant
for stripping those same directors of all their property after each
railway accident, and one shudders to think of the consequences had the
coroner's jury found the plant used not _per infortunium_.
One thing must be added, many held that the instruments of a murder,
though forfeited to the Crown, were not, properly speaking, deodands,
and they quoted as illustration the curious case of one Rempston,
who forced his boat's crew to row under London Bridge _invitis corum
dentibus_ in dangerous weather. He was thrown out and drowned, and the
jury, it was said, brought in a verdict of _felo de se_, to save the
boat from forfeiture. But the weight of authority was emphatically
against this view.
THE LAW OF THE FOREST
"A stretch of land, thick planted with trees;" so you picture a
forest to yourself, but old English law held otherwise. There were
miles of woodland that were not forest at all, and acres of pasture
that were. John Manwood, the Elizabethan lawyer, still our chief
authority on the subject, defines it as "a certain territory of woody
grounds and fruitful pastures, privileged for wild beasts and fowls
of forest, chase, and warren, to rest and abide in under the safe
protection of the king." Such a preserve was exactly delimited, and
might contain villages, churches, and so forth, within its bounds,
as the New Forest does to-day. The king had certain rights over all,
yet it was mainly private property; nay, there might be spaces in it,
but not of it,--within its Bounds, but not within its Regard, as the
phrase ran,--and so exempt from its peculiar laws. Manwood gives a
picturesque, though quite erroneous derivation of the term: it was _For
Rest_ of the wild beasts; but a sounder etymology traces the word to
_foris_ (= outside), for that it was outside the jurisdiction of the
Common Law, and had codes, courts, and officers of its own. The whole
business was for centuries alike insult and wrong to the Commons of
England.
Hunting was not merely the chief amusement of our early kings: it
was a necessary pursuit for the keeping down of the wild beasts
then a real danger to the fields and their cultivators. The Forest
Charter of Canute the Dane (dated 1016) is a myth; but it is certain
that, before the Conquest, the sovereign had a peculiar--howbeit, an
undefined--property in the woodland. The Conqueror, who, according
to the Saxon Chronicle, loved the tall deer as if he had been their
father, devastated far and wide to make the New Forest; and he and his
immediate successors punished hurt done to the deer with loss of life
or limb. The Great Charter contained provisions against this odious
abuse of power, and under Henry III. a special charter of the forest
enacted that no man should lose life or limb for killing deer, at the
same time that it disafforested (_i.e._, removed from the forest to
which they had been improperly joined) vast tracts of country. After
the New there was but one other forest made in England, that was the
land round Hampton Court, afforested under Henry VIII. by Act of
Parliament.
An attempt to revive royal rights over the woodland hastened the fall
of Charles the First, and then the Commonwealth gave the forest system
its death-blow, though it was not till the time of George III. that the
great mass of enactments was formally repealed. A Court of Swainmote
lingers in the New Forest and elsewhere, and its officials, called
Verderers, albeit shorn of their ancient power and splendour, do
their quaint antics still; but by an odd, though happily not singular
inversion, those old popular wrongs are now become popular privileges;
Epping Forest, for instance, could never have become a public park
but for the Crown rights, and these same rights over the woodlands
throughout the country now yield an income which more than covers the
cost of the whole Civil List. Had the Crown looked more sharply to its
own, the profit to ourselves had been still vaster.
The forest laws, however complex in detail, were all inspired by one
consistent idea--the preservation, to wit, of the king's venison.
Even under Edward I.'s comparatively humane rule the verderer held an
inquest upon a deer found dead in the Regard, just as the coroner did
upon a man's body, and the jury found how the creature came to its end.
The very arrows gleaned there were entered in the verderer's role. The
freeholder within that charmed ground might not fell his own timber
without leave, lest he should spoil the _Cover_: nor could he turn out
his goats to browse, for they would taint the pasture; whilst he must
feed his sheep in moderation, else he committed the grievous offence of
_surcharging_ the forest.
The forest had a huge staff of officers. First was a multitude of
subordinates; foresters--who, if they kept ale-houses in the Regard,
and encouraged folk to drink therein, committed a special crime called
_Scotale_--agistors, woodwards, keepers, verminers, sub-verminers, and
what not. These haled trespassers before the Court of Attachments,
which was held every forty days. In command of them were the verderers,
constituting, with representatives from the forest townships, the Court
of Swainmote, which met thrice a year for (_inter alia_) the trial of
the more important offences. Judgment on its findings was given at
the Court of Justice Seat, held but once in the three years, under
the presidency of a Lord Chief Justice in Eyre of the Forest. There
were but two--one for the north, the other for the south of the Trent;
and inasmuch as this officer was commonly some great noble--"A man,"
says my Lord Coke, with a touch of irony, "of greater dignity than of
knowledge of the laws of the forest"--some skilled professional folk
were joined with him in the commission. The last Court of Justice Seat
was held in 1670 by the Earl of Oxford. It was a mere form: the last
but one (in 1635) had created a fine pother by its exactions.
Offences were either trespasses _in Vert_ or trespasses _in Venison_.
The Vert (= green) was of course the cover; and the destruction
thereof was called _Waste_, while _Assart_ was stubbling it up to make
ploughland: and _Purpestre_ (a most grievous business) was building on
or enclosing part of the forest. (As late as the reign of Charles I.,
Sir Sampson Darnell was heavily fined for erecting a windmill on his
own ground in Windsor Chase). Moreover, Vert might be _Over Vert_ or
_Hault-Bois_, or it might be _Nether-Vert_ or _Sous-Bois_, according as
it was underwood or not; and in either case it was _Special Vert_ if
it bore fruit, such as pears, crabs, hips, and haws, whereon the deer
might feed.
Venison, as lawyers understood it, was composed of Beasts of Forest--to
wit, the hart, the hind, the hare, the boar, and the wolf--and Beasts
of Chase. A Chase, which was like a park, but was not enclosed, might
be held by a subject; but every forest was likewise a chase and a
warren, and the beasts of chase were the buck, the doe, the martern,
and the roe. These were described with wondrous detail. The hart--"the
most stately beast which goeth on the earth, having as it were a
majesty both in its gait and countenance"--was in his first year a
Calf, in his second a Broket, in his third a Spayad, in his fourth a
Staggard, in his fifth a Stag, and in his sixth a Hart. If he escaped
the pursuit of king or queen he became a Hart Royal, which no subject
might molest.
In 1194, Richard Coeur-de-Lion hunted a noble beast out of the forest
of Sherwood into Barnsdale in Yorkshire, and there losing him, made
proclamation "that no person should kill, hunt, or chase the said hart,
but that he might safely return into the forest again." An animal thus
honoured was called a Hart Royal Proclaimed, and in the 21st of King
Henry VII., a man was indicted for taking so precious a life, but the
case apparently went off for want of technical proof of proclamation.
Your precise woodman talked of a Bevy of roes, a Richesse of marterns,
a Lease of bucks. He said that a hart harboureth, whilst a buck
lodgeth, and a hare was seated. He dislodged the buck, but he started
the hare. He would tell you that the hart belloweth, the buck groaneth,
the boar freameth; and whilst the hart had a Tail, the roe had a
Single, the boar a Wreath, and the fox a Bush (not Brush be it noted)
or Holy Water Sprinkle. Their amours (_e.g._ a fox went to clicketing),
their young, their very excrements were dignified in a long array of
special terms, the divisions and subdivisions of the deers' antlers
being enough of themselves to gravel the tyro in woodcraft.
The peace of those precious animals was elaborately safeguarded, and
it was specially forbidden "to haunt the forest" during the _Fence
Moneth_, which was fifteen days before and after Midsummer. Most
forests were surrounded by Purlieus, that is, territory which had
been disafforested. Officers called Rangers patrolled this debateable
territory to drive back the errant deer, and whilst the Purlieu-man
(namely, the freeholder therein) might hunt on his own lands, he must
call off his dogs if the beast once touched the forest. And every three
years there was a special Drift of the forest, which was a sort of
census of the venison. A man taken _With the Manner_ (Main Ouverte),
that is, in the act of doing for the deer, was attached without bail.
The offender might thus be caught red-handed in four ways:--(1)
in _Dog-Draw_ he was chasing a wounded beast with hounds; (2) in
_Stable-Stand_ he was drawing his bow in ambush; (3) in _Back-Bare_ he
was carrying off his quarry; (4) in _Bloudy-Hand_ he bore the red marks
of his spoil. Divers statutes put a yet keener edge upon the common
law, as that under Henry VII., whereby hunting in the forest at night
with painted vizards was made a felony.
And what of the dogs? The forest freeholders might keep mastiffs for
the protection of home and homestead; but a Court of Regards was held
every three years for their Lawing or Expeditation. Thereat your
mastiff was made to place one of his paws upon a billet of wood, "then
one with a mallet, setting a chisel of three inches broad upon the
three claws of his forefoot, at one blow doth smite them clean off."
Other dogs of any size were summarily banished the precincts.
Royalty was ever jealous of these rights. A Fee-buck and a Fee-doe were
allotted to every verderer yearly (but these were but wages in kind);
and every lord of Parliament going or returning through the forest, on
summons from the king, might take one or two beasts, but if no forester
was at hand, he must sound his horn, lest the kill might seem done in
secret. But all the king's horses and all the king's men could not
quench English love of sport. Robin Hood and his merry band are but
the glorified types of a very multitude who chased the deer night and
day, for the forest stretched mile after mile over hill and dale, and
the tall deer were fair to look on, and the taste of their flesh was as
sweet to the wanderer and the outlaw as to the noble or the monarch;
and the law, albeit cruel, was weak, and a touch of danger but gave
zest to the pursuit. To take a later instance, was not Shakespeare
himself the most illustrious of poachers? Not on such rovers but
on the poor hard-working folk within the Regard did the forest laws
press with cruel weight, and yet old Manwood highly extols their sweet
reasonableness--"The king," he says, "wearied with his anxious care for
the weal of his subjects, is given by law these forests that he may
delight his eye at sight of the vert, and mind and body by the hunting
of the wild beasts," and so he finds it in his heart to regret that in
his day the forests were somewhat diminished. And since the sovereign's
good is now the peoples' good, we may agree with him, though not for
the same reason.
PAR NOBILE FRATRUM
JOHN DOE AND RICHARD ROE
Old English law being full of fictions, had pressing need ever and anon
of imaginary characters to play imaginary parts. Sometimes a name was
picked at random from the street, and Smith, you hear without surprise,
was in great request, or, as those shadows came and went in couples,
you find Richard Smith as often as not paired with William Styles.
But your ancient scribe lusted after quaintness. He loved a jingle,
so names like John Den and Richard Fen--rare in actual life--peopled
his parchment, and strove for mastery in his mock combats. But his
prime favourites were Doe and Roe, nor would he raise Den or Fen or
any other ghost, excepting he had need of more than two. Here is a
simple instance of their use. In early times a man who commenced an
action had to give surety that he would go on with it; nowadays, if
he discontinue, he must pay the costs of the other side, but costs,
incredible as it may sound, were not always the necessary shadow, or
perhaps the substance, of law; and hence the need for the pledge. Under
Edward III. the practice went out of use, but the form of it, as legal
forms are apt to do, lingered on for centuries in this style:--
_Pledges of Prosecution_ { JOHN DOE.
{ RICHARD ROE.