Part 3

In the customs that made up the inner life of the manor one finds a diversity too great for classification. However, those old English folk were a merry lot; with usages not sad nor savage, but having much sensible joy in good meat and drink. At Baldock, in Hertfordshire, the Customary Court was holden at dinner-time, whereto every baker and vintner within the bounds must send bread and ale which the steward and his jury "cam' to pree," and presently gave their verdict "if these be wholesome for man's body or no." To the Manor of Hutton Conyers there was attached a great common, where many townships pastured their sheep; and the shepherd of each township "did fealty by bringing to the Court a large apple pie, and a twopenny sweet cake." For refreshment, "furmity and mustard, well mixed in an earthen pot, is placed before the shepherds, which they sup with spoons provided by themselves, and if any forget his spoon then, for so the customary law wills it, he must lay him down upon his belly, and sup the furmity with his face to the pot or dish." And the custom further permits the bystanders "to dip his face into the furmity," to the great delight of all present. To finer issues is the money provided by Magdalen College, Oxford, for certain manors of theirs in Hampshire, _pro mulieribus hockantibus_, as the dog Latin of the college accounts hath it. On Hock Day, annually, "the women stop the ways with ropes, and pull passengers to them, desiring something to be laid out in pious uses": the men having hocked the women after the same fashion the day before. There are traces of this usage further afield than Hampshire. Not less jovial were the tenants of South Malling, in Kent, who were bound to pay scot-ale, which fund they agreeably expended in "drink with the bedel of the Lord Archbishop." The case of Stamford, in Lincoln, is noteworthy as showing the origin of one peculiar custom. In the time of King John, William, Earl Warren, was lord of the place. One day he saw from his castle wall "two bulls fighting for a cow in the castle meadow;" their bellowing attracted all the butcher's dogs in the place; and these, in company with a host of rag-tag and bobtail, chased one of the champions in and out the town till he went mad; all which so delighted Earl Warren, that he forthwith gifted the common to the butchers on condition that they provided a mad bull six weeks before Christmas Day, "for the continuance of that sport for ever."

It is impossible even to conjecture the origin of other customs. In most manors, when a copy-holder died, his widow had in free-bench (or what the common law calls dower) the whole or part of his lands. There was one restriction: she must remain "sole and chaste." Yet, if she forgot herself, her case was not altogether past praying for in the Manor of Enborne in Berkshire. At the next Customary Court she appeared strangely mounted upon a black ram, her face to the tail, the which grasping in her hand, she recited, sure the merriest, maddest rhyme it ever entered into the heart of man to conceive--

"Here I am Riding upon a black ram"----

Alas, that the rest must be silence! The _Spectator_, greatly daring, 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.