The severity of the laws under William and his immediate successors was monstrous. “In the Saxon times,” says Blackstone, “though no man was allowed to kill or chace the king’s deer, yet he might start any game, pursue and kill it on his own estate, but the rigour of those new constitutions vested the sole property of all the game in England in the king alone; and no man was entitled to disturb any fowl of the air, or any beast of the field, of such kinds as were specifically reserved for the royal amusement of the sovereign, without express license from the king, of a chase or a free warren; and these franchises were granted as much to preserve the breed of animals as to indulge the subject. From a similar principle to which, though the forest laws are now mitigated, and by degrees grown entirely obsolete, yet from this root has sprung a bastard slip, known by the name of the Game Law, now arrived to and wantoning in its highest vigour; both founded upon the same notion of permanent property in wild creatures, and both productive of the same tyranny to the commons; but with this difference, that the forest laws established only one mighty hunter throughout the land; the game laws have raised a little Nimrod in every manor. And in one respect, the ancient law was much less unreasonable than the modern, for the king’s grantee of a chase or free-warren might kill game in every part of his franchise, but now, though a freeholder of less than 100l. a-year is forbidden to kill a partridge upon his own estate, yet nobody else, not even the lord of the manor, unless he hath a grant of free-warren, can do it without committing a trespass, and subjecting himself to an action.”—Commentaries, iv. 415, 8vo.
The full rigour of the forest laws of the Norman dynasty must be a curious subject of contemplation to an Englishman now. William decreed the eyes of any person to be pulled out, who took either a buck or a boar. Rufus made the stealing of a doe, a hanging matter. The taking a hare was fined 20s., and a coney 10s., as money was then! Eadmer adds, that fifty persons of fortune, being apprehended by the last prince for killing his bucks, were forced to purge themselves by the fire of ordeal, etc. Henry I. made no distinction between him who killed a man, and him who killed a buck; and punished them who destroyed the game, though not in the forest, either by forfeiture of their goods or loss of limbs. The monstrous severities of Geoffrey de Langley, who, in the reign of Henry II. had a patent for all benefits accruing from the expeditation of dogs, and rode through most parts of England with an armed band, committing the greatest oppressions, and extorting vast sums, especially from the northern gentry, are recorded with indignation by Matthew Paris. Richard I. enacted mutilation and pulling out of eyes for hunting in the forest, though he afterwards relaxed a little, and contented himself with banishment, imprisonment, or fine. Whoever was summoned to the chase, and refused to go, paid a fine of 50s. to the king.
The feeling created amongst the people by this bloody code, may be imagined by the language of John of Salisbury, who, after speaking of the higher offences, says,—“What is more extraordinary is, that it is often made by law criminal to set traps or snares for birds, to allure them by springes and pipes, or use any craft to take them; and offenders are punished by forfeiture of goods, loss of limbs, or even death. One would suppose that the birds of the air and the fish of the sea were common to all; but they belong to the crown, and are claimed by the forest laws wherever they fly. Hands off! keep clear! lest you incur the guilt of high treason, and fall into the clutch of the hunters. The swains are driven from their fields, while the beasts of the forest have a liberty of roving; and the farmer’s meadows are taken from him to increase their pasture. The new-sown grounds are taken from the farmer, the pastures from the grazier and shepherd; the beehives are turned away from the flowery bank, and the very bees are hardly allowed their natural liberty.”—Polycraticon, i. 4.
Ah! Johannes Sarisburiensis, thou wert a radical! Can any body read the indignant spirit of this passage, and say that radicalism is anything new under the sun? This is the very soul of Hampden. The inhumanity of those proceedings occasioned frequent disturbances, till the revolt of the barons extorted from Henry III. the Charta de Foresta, by which he repealed those severe laws, and enacted others more equitable. These, again, were from time to time softened by different monarchs, as civilization and popular power and influence advanced, by what are called Assises of the Forest, which were a kind of revision and re-enactment of the forest laws, by different kings; omitting or modifying any former provisions which might seem contrary to the spirit of the time; and adding such others as were deemed necessary. As, for instance, the assise of Edward I., the preamble of which was thus:—“Here followeth the Assise of Forest of our lorde the kinge E., sonne of kinge H. and his commandements of his forests in englonde, made by the assent and counsell of Archbusshoppes, busshoppes, abbots, earls, barons, knyghtes of all his realme.” This consists of twenty items; and provides principally, that any person found in the forest, or the woods of the forest, trespassing on the venison, shall be taken, and, on conviction of hunting or taking the king’s venison, he shall be imprisoned, and not delivered without the king’s especial commandment, or that of his justice of the forest.[18] That all trespassers on the vert shall be taken before the verderers, and they shall find sufficient surety to come before the next court of attachment; and such attachment shall be enrolled, to be presented to the justices of the forest when they next come into those parts to hold the pleas of the forest. That none who held woods within the forest should suffer those woods to be without a keeper, or they should be taken into the king’s hands again. Such holders of woods, or any other persons inhabiting within the forest, should not have any bows, arrows, or arbalasts; or any brach, greyhound, or any other engine “to hurte the king of his Deare.” But any dogs introduced into the forest shall be expeditated; or, according to the English phrase, lamed, so that they may not be able to seize the deer; and that the expeditation, or laming of dogs, shall be made every three years. This practice of laming is differently described by different writers. Some define it as consisting in cutting off at least one of the fore-feet; others in cutting off the claws only; and others, in cutting out the fleshy part of both fore-paws. Probably the practice differed in different forests, and different ages. At all events, the dogs were so mutilated as to be unable to seize a deer; the Latin term implies the actual lopping off the foot. Future assizes confine this laming to mastiffs; no greyhounds, brachs, or brackets being allowed entrance at all. No mower was allowed to bring “a great mastiff to drive away the deer of our lord the king, but little dogs to look after such things as lie open.”
[18] An old rhyme, full of mystery to uninitiated ears, contained the law of attachment in this case. Any person was to be seized and conveyed before a forester or verderer, who was found,—
At dog-draw, stable-stand,
Back-berond, or bloody-hand.
Which mean,—at dog-draw, having a dog in a leash, following a deer by the scent, in order to come upon it and slay it; or having wounded a deer, and following the dog-draw, or guidance of the dog to overtake it. At stable-stand, standing in the forest with bow ready to discharge at the deer, or with a dog in a leash ready to slip him on its appearance. At back-bear or back-berond, actually carrying any forest property away. At bloody-hand, with hands or person bloody, as from the actual slaughter of game. Though three of these are truly called by the lawyers presumption, they were held sufficient for attachment and conviction.
The assize continues—but no holders of foreign woods in the forest shall agiste[19] before the regular time of the king’s agistment, “which begins at mychalmas and lastes to martinmasse then next followinge.” That none shall assart[20] in the forest without being taken before the verderer, and giving surety to appear at the next attachment. That no tanner or whittawer of leather dwell in the forest, out of boroughs, towns, etc. That any archbishops, bishops, barons, or knight being found hunting, the forester shall demand “a wedde and a pledge,” and if he refuse, the forester shall see “his dede,” and cause it to be enrolled to be presented before the justice of the forest. Other assizes say, that the bodies of such dignitaries, whether temporal or spiritual, shall be seized till they give security for their appearance; but that any such nobleman, or dignitary, being sent for to the king on any business, shall have the privilege of hunting one or two deer as he goes through the forest, and the same on his return, provided it be in view of the forester, otherwise he shall blow a horn, lest he seem to steal it.
[19] That is, turn in cattle to graze, at so much per head, which was done in most forests, and the money paid to the verderer,—a certain number of persons mostly having a right of common besides, by grant or charter.
[20] Root up the covert and make a clearing.