Part 4 (1/2)
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, princ.i.p.ally Suss.e.x, 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 princ.i.p.ally 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 distinguis.h.i.+ng properties of this tenure are various; some of the princ.i.p.al 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 s.h.i.+elds 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 PEAc.o.c.k, 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 doc.u.ments, 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 antic.i.p.ation 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 amus.e.m.e.nt, as well as appet.i.te, 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 n.o.bles 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 amus.e.m.e.nts 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 s.h.i.+pbuilder.