Part 4

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.

In the old Action of Ejectment the pair were most active. So strange were their gambols that even the lay world was impressed. In the early years of Victoria John and Richard were common butts of popular satire. Nothing seemed more gratuitous, more idly superfluous; but, turn to their history, and you find how important and how serviceable were the parts they once played.

One must begin far back. In early feudal times the cultivator of another's land was either a serf or a person of no importance, holding at his lord's will. The tenant's position improved with the times, leases were granted, and if their conditions were broken, a Writ of Covenant, as the form of action was called, secured him in possession, and gave him damages for his wrongs. But this action lay, as the technical term is, between the original parties alone; so that if he were turned out by a complete stranger, or by a person claiming through another grant of the same landlord, his remedy was merely pecuniary. In the time of Henry III. a writ was invented giving him full protection against anyone interfering under colour of another lease from his lord: but the case of an Ouster (or dispossession) by an utter stranger was not adequately provided for until the beginning of Edward III.'s reign, when the writ of _Ejectio Firmæ_, or ejectment, was adapted from the proceeding in trespass. It called upon the wrong-doer of every species to show why, "with force and arms," he had entered on and taken possession of the plaintiff's land. But, again, the result was only money damages: so that he was driven for relief to the equitable jurisdiction of the Chancellor, who, by injunctions and so forth, secured him in, or restored him to, possession of the very land itself. Presently the Common Law Courts took it ill that so much of their legitimate business should go elsewhere; and, at the end of the fifteenth century, they allowed the term itself, as well as damages for the Ouster, to be recovered under a Writ of Ejectment, and this remedy was held proper against every species of wrong-doer.

And if, not the tenant, but the landlord himself, were deprived of his property? or, if anyone not in possession claimed a piece of land as his freehold? These forms of procedure were not available, since they were personal actions, and a claimant to the freehold must proceed by a real action. These last were in early times the most important of all. But their forms were numerous and varied (the assizes of _morte d'ancestor_ and _novel disseisin_, as they were called in old law French, were two of the best known), and their cumbersome and complicated technicalities were cause of much expense, irritation, and delay. At last it occurred to some ingenious, though forgotten, jurist so to twist this Writ of Ejectment, which had all the last improvements, as to make it available in an action for the recovery of the freehold. That was done in this way. A. was (let us suppose) the legal and rightful owner of an estate occupied in fact by B.; he entered on the land with C., to whom he, then and there, signed, sealed, and delivered a lease for the property in question; to them so engaged entered B., attracted by their manoeuvring, and speedily kicked both into the boundary ditch. Here were all the materials for the action of ejectment, since C. might truly declare himself dispossessed _vi et armis_ by B. from land whereof he held a lease from A. In this action the main point evidently was: Had A. a right to grant C. the lease? In other words, was A. the real owner of the land? If the jury said "Yes," then judgment for possession followed for C., who, being merely the nominee of A., forthwith passed the property over to him. Improvements were speedily suggested. Actual ejection was like to prove unpleasant, so A. and C., instead of ostentatiously soliciting B.'s attention, took with them a confederate D., who, in a friendly and affable manner, performed the function of a chucker-out, and this casual ejector (as they named him) was made nominal defendant in the action wherein C. was nominal plaintiff. Lest B. should be condemned unheard, it was provided that the casual ejector must give him notice of the proceedings, whereupon he was let in to defend in place of D. This device was a brilliant practical success. Real actions pure and simple fell speedily into disuse, though it was not till 1833 that, with a few exceptions further tampered with in 1860, they were legally abolished.

The Commonwealth was a time of legal as well as political change. The Lord Protector had, with quaint emphasis, described the Court of Chancery as "an ungodly jumble," and Rolle, his Lord Chief Justice of the Upper Bench, before and since known as the King's Bench, laid violent hands on the action of ejectment. "What," urged he in effect, "was the use of actual entry, lease and ouster? Let all be held as done: so that the Court may apply itself at once to the real question at issue." Finally, the action was in name _Doe_ against _Roe_, but the writ as a mere form was suppressed, and the first step was the declaration and notice to appear, both served on the real defendant or his tenant. The declaration stated that the land in question had been demised by A. (the real claimant) to John Doe; but that Richard Roe had entered thereon by force and arms and ejected him, "to the great damage of the said John Doe, and against the peace of our Lord the now King;" and that therefore he brought this action. To this there was appended a letter, signed "your loving friend Richard Roe," addressed to B., the real defendant, and informing him that the sender, hearing that he claimed the land, must now tell him that he (Richard), being sued "as a casual ejector only, and having no title to the same," he advised him (B.) to enter appearance as defendant, "otherwise I shall suffer judgment therein to be entered against me by default, and you will be turned out of possession." Now, to succeed in his action, the plaintiff must clearly prove four things--Title, Lease, Entry, and Ouster; and the three last he could not do, since they never happened. This little difficulty was got over by a consent rule: the Courts allowed B. to take Richard Roe's place as defendant, only on condition that he would confess those three things to have happened which never did happen: whereupon the real question of title alone remained.

So strangely had this action varied from its first use--which was to recover damages for wrongful possession of land--that in the result these were nominally estimated at a shilling; and if A. really wished to make B. disgorge the spoils of possession, he sued him again for Mesne Profits. Although the action was nominally "_Doe_ against _Roe_," the cases are usually cited as "_Doe on the demise of A._" (the real plaintiff) "against B." (the real defendant), and whilst John and Richard were the favourite styles, we have occasionally "_Good Title_ against _Bad Title_": a comically impudent begging of the question at issue. If the outside public mocked these venerable figures, _par nobile fratrum_, the suitor did so at his peril. A certain Unitt (_temp._ George I.), being served with a copy of a Declaration in Ejectment, "pronounced contemptuous words on the delivery of it," and the judges in solemn conclave held that he was in contempt, and was deserving of punishment therefor. So the masque of shadows went on till 1852, when the Common Law Procedure Act removed an obstacle which lawyers had walked round for centuries, and consigned John Doe and Richard Roe to that limbo where so much legal rubbish lies buried under ever-thickening clouds of dust.

SANCTUARY

Your old-world lawyer was an ardent, if uncritical, antiquary. He began at the beginning, and where facts ran short his fancy filled up the blank. In discussing Sanctuary he started with the biblical cities of refuge. He had something to say of Romulus and the foundation of Rome. Geoffrey of Monmouth supplied him with the name of a sovereign--Dunwallo Molmutius to wit--who flourished in Druidical Britain (B.C. 500 it was said), under whom cities and even ploughs were arks of refuge for the despairing fugitive. It might have been objected that the ancient Britons had neither ploughs nor cities; but such criticism was not yet in the land. We touch firmer ground in the centuries immediately preceding the Conquest. In early English legislation churches safeguarded the criminal from hasty vengeance, and so allowed time to settle the money compensation payable for his offence. Sanctuary was among the privileges that the Conqueror conferred upon his foundation of Battle Abbey--one of many cases wherefrom the Norman lawyers built up a system for mediæval England.

That system was not always consistent or clear, but its main outlines were as follows:--sanctuaries were of two kinds--general, as all churches and churchyards; special, as St Martin's Le Grand and Westminster. No doubt these last had originally also a religious sanction. Such places were twice consecrate: Pope and King, the Canon and the Common Law united in their favour. They protected felons, but not those guilty of sacrilege or (some held) of treason. They were not properly for debtors, whose reception was nevertheless justified by an ingenious quibble. Imprisonment might endanger life, and therefore (so the learned argued) the runaway debtor must be received. A man took sanctuary thus--Having stricken (let us say) his fellow, he fled to the cathedral and knocked (with how trembling a hand!) at the door of the galilee. Over the north porch were two chambers where watchers abode night and day. On the instant the door swung open, and had scarce closed behind the fugitive when the galilee bell proclaimed to the town that another life was safe from them that hunted. Then the prior assigned him a gown of black cloth marked on the left shoulder with the yellow cross of St Cuthbert, and therewith a narrow space where he might lie secure of life, though ill at ease. So it was at Durham. At Westminster the sanctuary man bore the cross keys for a badge, and walked in doleful state before the abbot at procession times; and there were, no doubt, countless variations. A phrase of the time reveals how close the watch was now and again. Under Edward II. it was complained that the sanctuary man might not remove so much as a step beyond the precincts, _causâ superflui deponendi_, without being seized and haled to prison. He was fed and lodged in some rough sort for forty days, within which time he must confess his crime before the coroner at the churchyard gate, and so constitute himself the king's felon. Then he swore to abjure the realm. The coroner assigned him a port of embarcation (chosen by himself), whither he must hasten with bare head, carrying in his hand a cross, not departing, save in direst need, from the King's highway. He might tarry on the shore but a single ebb and flow of the tide, unless it were impossible to come by a ship, in which case he must wade up to his knees in the sea every day. He was thus protected for another forty days, when, if he could not find passage, he returned whence he came, to try his luck elsewhere.

He who refused to confess and abjure was not driven forth, but if, after much spiritual admonition, he still refused to conform, he had neither meat nor drink given him, and so was ended, if not mended. A man unjustly deprived of sanctuary could plead the right before his judges. It was a declinatory plea, and must be urged before he answered as to his guilt or innocence; it availed him nothing to do so after, for he was strung up forthwith. This system, however harsh, had two very plain advantages. It was a short and easy method with a rascal, and it powerfully made for scientific accuracy in pleading. If a fugitive were caught and condemned ere he "took Westminster," as the town phrase ran, it was no advantage for him to escape on the way to execution, inasmuch as he was promptly haled forth to the gallows. A curious case in the eighth of Edward II. perplexed the ancient student. A woman was condemned to death, but a jury of matrons had no doubt as to her condition, and she was reprieved. She escaped to sanctuary before the arrival of the hangman's cart, and when the gaoler dragged her out, the judges bade him put her back again, whereat the learned shook their heads, opining that hard cases make bad law, and the jade should have swung like other folk.

On the whole the privilege was strictly respected. For instance, the King's justices were wont to hold session in St Martin's Gate. They sat on the very border. The accused were placed on the other side of the street; a channel ran between them and their judges, and if they once got across _that_ they claimed sanctuary, and all proceedings against them were annulled. And one sees the reason why Perkin Warbeck took such care "to squint one eye upon the crown and the other on the Sanctuary" (as Bacon curiously phrases it); yet the great case of Beckett is there to show that nothing was absolutely sacred in these violent years. Nor does it stand alone. In 1191, Jeffrey, Archbishop of York, and son of Henry II., was seized at the altar of St Martin's Priory, Dover; and dragged, episcopal robes and all, through dirty streets to the Castle: this, too, by order of William Longchamp, Bishop of Ely, and Papal Legate. In 1378, Archbishop Sudbury complained in Parliament that one Robert Hawley had been slain at the high altar even while the priest was saying a mass. It was rumoured indeed that one Thurstian, a Knight, chasing a sanctuary man with drawn sword, was of a sudden stricken with grievous ailments. But this and other like stories did not deter the citizens of London (_circa_ 1349) from assembling at supper time in a great crowd, and dragging forth a soldier who had escaped on the way from Newgate to Guildhall, where he was being taken for trial. In another case (_temp._ Henry VI.), where a youth had taken sanctuary after having foully slain a kind mistress, the good women about St Martin's broke in and despatched him with their distaffs. Of those who took sanctuary to good purpose the most famous was Elizabeth, widow of Edward IV., who, in 1471, registered herself a sanctuary woman in Westminster, and there sat, in Sir Thomas More's phrase, "Alow in the rushes." But you have read the tragic story in Shakespeare. And in a later age "beastly Skelton" (as Pope will have him), from that same Westminster safely lampooned the mighty Wolsey, though for that he needs must live and die there.

To catalogue the evils of the sanctuary system were to show lack of historical sympathy, nay, even of humour. The former days were not as these; it had its place with the shrine and the pilgrimage, the knight errant, and the trial by ordeal in the strange economy of a vanished world. As the times grew modern its practical inconvenience was felt for the first time. Yet the occasion of the first assault on the privilege of sanctuary was one where the benefits were conspicuous, and the assailant had the worst of motives. It was the case just noted of Edward IV.'s widow; she had the young Duke of York as yet safe with her. Her enemies were at a loss for the moment, and Buckingham, then the sworn ally of Richard of Gloucester, took occasion in the Privy Council to attack her place of refuge. "There were two chief plague-spots in London," he snarled: "one at the elbows of the city (Westminster), the other in the very bowels thereof (St Martin's le Grand). These places were the refuge of theeves, murtherers, and malitious, heynous traytors! nay," he added, "men's wives ran hither with their husbands' plate, and say they dare not abide their husbands for beating," with more to the same effect. Had not Elizabeth yielded, Westminster might have witnessed a violation as affecting as that of Canterbury.

Under Henry VIII. the old order was broken up, and sanctuary law, like much else, was changed and amended again and again. First, all special places save Wells, Westminster, and six others, lost the privilege. Divers classes of criminals --as traitors, and pirates (and afterwards) Egyptians--were formally rendered incapable of its enjoyment. Before the sanctuary man abjured the realm he was burned on the crown of the thumb "with the signe of an A," and if he did not depart on the instant, he had no further protection. But it occurred to over-anxious legislators that such a fugitive might carry beyond seas precious hints of the mysteries of trade or politics, or that, making as if for the nearest port, he might but proceed to infest another place. So he was ordered to abjure the liberty of the realm, but not the realm itself; and being branded, was confined under a governor in one or other of the sanctuaries. Whenever he ventured forth--as he might in the daytime--he must wear the prescribed badge of the refuge. He dare carry no weapon save a meat-knife, and that but at meal-times. He must likewise answer to the daily roll-call. If he committed another felony--and crimes done _sub spe redeundi_ had been a sore grievance of late--he was to lose his rights. The governor was empowered to hold courts for debt and minor offences within his bounds. And so "the sanctuary person abjured," as the Tudor lawyers phrased him, spent the last days of his evil life. I need not dwell on minor tinkerings of the system under Henry's children. In 1623 the Statute 21 James I., c. 28, s. 7 made a legal end of the right of sanctuary.