frankalmoign, or free alms, and this is the tenure by which the lands of
the church are for the most part held. This tenure is expressly excepted
from the statute, 12 Charles II., by which the other ancient tenures were
destroyed. It has no peculiar incidents, the tenants not being bound even
to do fealty to the lords, because, as Littleton says, the prayers and
other divine services of the tenants are better for the lords than any
doing of fealty. As the church is a body having perpetual existence, there
is, moreover, no chance of any escheat. By this tenure almost all the
monasteries and religious houses held their lands. It was an old Saxon
tenure; and continued under the Norman revolution, through the great
respect that was shewn to religion and religious men in ancient times.
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, principally Sussex,
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 principally 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
principal 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 PEACOCK, 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 documents, 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 anticipation 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
amusement, as well as appetite, 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 nobles 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 amusements 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 pass 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
theigns.
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 noble 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 godliness. Alike the
enemy of God 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 God.
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 institution
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 illustration 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 L500 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 L2,000 each, and the others L200 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 assembly
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 assembled 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 assembled, 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 assembly? 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."