Part 4 (2/2)

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 Hamps.h.i.+re 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 pa.s.s 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 thegns.

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 n.o.ble 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 G.o.dliness. Alike the enemy of G.o.d 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 G.o.d.

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 fas.h.i.+onable 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 inst.i.tution 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 ill.u.s.tration 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 500 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 2,000 each, and the others 200 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 a.s.sembly 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 a.s.sembled 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 a.s.sembled, 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 a.s.sembly? 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.”

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