legal level in regard to the lighter offences of daily life as the common layman, and was a continual reminder that the clerical caste was within the limits of the municipal law. The permission of the privilege of the benefit of clergy in respect of graver crimes, even under the limitations already mentioned, was a concession to the Church of a substantial kind, and was also an admission for the time that the Church was too powerful for the withholding of all exceptional privileges from it. It was a curious compromise, imperfect, no doubt, but tending to prevent friction between the Sovereign and ecclesiastical authorities, for we have only to recollect the quarrel between Henry II. and Becket to understand the practical gravity of such disputes. The position was illustrative of an essentially transitional period in the history of English law, which is to some extent also the conclusion of a conflict of many years between the king and the Church, from which neither the temporal nor ecclesiastical powers were able to obtain a decisive advantage.

CHAPTER II.

THE FORESTAL LAWS AND FORESTS OF THE MIDDLE AGES.

IN mediæval England the existence of definite tracts of land which were royal forests, and within which a particular body of law was enforced, vitally and daily affected the lives of large numbers of the people. With the forests came into being forest laws, which occupy a considerable place in the earlier annals of English law. They were special in their nature and limited geographically, and were, therefore, variable in their application. They were enforced by officers of the forest, and recognised by the King's Courts, though the main link between the minor courts of the forest with its laws and the king as the fountain of justice, were the justices in eyre.

These itinerant justices were appointed by the sovereign to hear and determine pleas of the forest, as other justices in some instances the same men-were appointed every seven years to hear pleas of the Crown and common pleas. Of this elaborate system we are now able to take an accurate survey, for the publication in 1901 of a volume on "The Select Pleas of the Forest" (a) supplied the requisite material.

(a) The Select Pleas of the Forest. Edited for the Selden Society by G. J. Turner, M.A., Barrister-at-Law. London: Bernard Quaritch.

1901.

Before the publication of this book, the Treatise of Manwood, first published in 1598 and continued through various editions, was the authority to which it was always usual to refer for information on the forest laws. That work is an instance of the way in which a legal imagination can create legal fictions. Manwood constructed an ingenious but altogether fanciful and untrue theory of a contract between monarch and people. In return for the continual care and labour which he gave to the preservation of the whole realm, the king was presented by his subjects with the prerogative of having places of recreation and pastime wherever he might desire, and so he could make a forest at his will and pleasure for the shelter of beasts of the chase. Bracton long before Manwood's time had evolved the theory that as no private person had a property in wild animals they must therefore be the property of the king. If one could imagine a royal right over, we need not say property in, a red deer or a wild boar, it was easy to construct a theoretical right in the sovereign to have places where certain animals might be secure from the pursuit of any man except the sovereign and of one who was authorised to hunt by him. But Bracton also formulated the doctrine that occupancy was the basis of the right to property, and it was this doctrine which the Norman kings carried into practice. But something more than this was needed to justify many of their acts, for they were not careful at all times to respect private rights when afforesting land, often including towns and villages within a newly created forest with its indefinite metes and bounds. A specious theory, such as that of Manwood, was needed to give even a semblance of legal propriety to their conduct.

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But the prerogative of the king to have and to enjoy royal forests rose, in fact, from simple causes, partly because he was the only distinct representative of the State, and partly from superior individual power. The property of the Saxon sovereign in wastes and forests, which appears to have taken the place of an equally vague communal right, indefinite enough in its extent as it must have been, passed to the Conqueror when he was crowned at Westminster. From his own strength, from the weakness of his subjects, and from the disturbance, resulting from the Conquest, of the old order both of property and of government, he had the opportunity of increasing the number of places within the forestal jurisdiction of the sovereign. The king could, in fact, assert an actual forestal right over any part of the country which was not clearly the undoubted property of one of his subjects, and even then some excuse might be made for its forfeiture to the Crown. As he moved about his kingdom, passing from castle to castle and from town to town, opportunities constantly arose for him to gratify his desire for the extension of his territorial influence and power, and his passion for the chase. Thus in an inquiry as to the right to the bailiwick of the forests of the counties of Leicester and Rutland, we meet with an instance of what appears to be purely arbitrary afforestation:

"Upon a search among and an inspection of the rolls of the eyre of Geoffrey of Langley and his fellow-justices in eyre for pleas of the forest at Oakham in the thirtythird year of the lord king who now is, it is found that it was presented and proved before the same justices in their

eyre by twenty-four sworn knights and loyal men of the county of Rutland that when King Henry I., the son of king William the Bastard, was on his way towards northern parts, he passed through a certain wood, which is called Riseborough, in the county of Leicester. And there he saw five hinds. And he forthwith ordered a certain servant of his by name Pichard, to tarry in those parts until his return from the parts aforesaid, and in the meantime to guard the said hinds for his use. But it happened that in that year the said king did not return there; and in it the said Pichard associated himself to a certain serjeant of the same country who was called Hasculf of Allexton, whose house he frequented much. But when the year was passed, after the aforesaid king had returned from the northern parts, the said Pichard came to the king aforesaid, saying that he was unwilling to be custodian of the aforesaid bailiwick any longer. And on being then asked by the same king who would be a fit person to be custodian of the said bailiwick, he replied, the said Hasculf, who had lands near there, and was resident in the same bailiwick. And then the said king entrusted to the aforesaid Hasculf the custody of the said bailiwick, to wit, the forestry of the county of Leicester and also of Rutland; and he was custodian of it all his time, and he lived for a long time, that it is to say till the time of king Stephen, and was then killed in his own house by Bartholomew de Verdun. And after the death of this Hasculf, a certain Peter, his son, received the custody of the aforesaid bailiwick from king Henry, the grandfather of the lord king who now is" (b).

(b) Select Pleas of the Forest, p. 45.

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