Assize of Arms, 1181. The two remaining measures of Henry II. touching the provincial administration still to be noted are the Assize of Arms, issued in 1181, and the Assize of the Forest,2 issued in 1184. As has been heretofore pointed out, the primitive Teutonic national assembly was simply a meeting of the whole nation in arms; it was "parliament, law-court, and army in one." The national assemblies, or folk-moots, of the numberless petty states in which the Teutonic settlers grouped themselves in Britain, did not depart from the continental original; and when, in the process of aggregation, the primitive petty state descended to the rank of a shire, and its folk-moot became the shire-moot, there was still no material departure from ancient traditions, the assembly of the shire was still law court and army in one. A meeting of the whole free population of the shire under the presidency of the sheriff, the bishop, and the ealdorman made up the court of the shire; the same freemen, marshalled under the command of the ealdorman, made up the military force of the shire. The ancient landfyrd, the militia of the shire, surforce of the vived the Norman conquest, and its aid was more than once shire, invoked in great emergencies by the Conqueror and his sons. The object of Henry's Assize of Arms was to reorganize and rearm the ancient force as a body safer and more trustworthy for national defence than the feudal host. This assize was renewed and expanded by Henry III. in conjunction with the system of watch and ward; and through subsequent legislation by Eadward I., Henry IV., Philip and Mary, and James I., the ancient landfyrd, the constitutional force of the shire, the militia has been brought down in principle as the militia of modern times.6 Ancient military reorganized and rearmed, of modern times. Assize of the Forest, 1184. 5 As the folkland, the land of the people, silently passed into terra regis, the wooded parts of the public domain, which had been immemorially subject to the common use of the nation, came to be regarded as a special possession for the king's 1 Hoveden, vol. ii. p. 261; Benedictus, p. 278. 2 Benedictus, vol. ii. p. clix. 8 Essays in A. S. Law, p. 1. 5 In his character of leader of the host the ealdorman was sometimes styled in the charters heretoga. Freeman, Norm. Cong., vol. i. p. 51 and note K. Select Charters, pp. 153–156. ing-grounds ulations of exclusive profit and pleasure. That certain forests were Royal huntroyal hunting-grounds as early as the days of Cnut is mani- in the day's fest from that provision in his genuine laws which concedes of Cnut. to every man the right to hunt on his own ground, but which severely forbids all trespass upon the royal hunting "under penalty of the full wite."1 But not until after the Norman conquest were the uninclosed woodlands hedged about by a definite system of stringent regulations, cruel alike to man and beast. Large districts of country were afforested by the Forest regConqueror for purposes of the chase,2 and the forest regula- the Norman tions which are credited to him were made, under the admin- kings. istration of Rufus, extremely vexatious and burdensome to all classes of the people. In the comprehensive reforms of Henry I. a correction of the forest administration had no place. After the issuance of his charter for the reform of all other abuses, he declared that he would keep the forests in his own hands, as his father had before him :3 in his reign the forest laws were enforced with the strictest severity. The first forest code, the Assize of Woodstock, which was First forest code, 1184. issued by Henry II. in 1184, contains a set of stringent ordinances, somewhat less severe, however, than the usages which prevailed in the days of his grandfather. The forest administration when fully organized consisted of a set of special jurisdictions or franchises set up by the crown in those shires in which the royal forests were situated, each jurisdiction or franchise being governed by the special code of forest laws which were administered in the forest courts.5 "A forest is a certain territory of woody grounds and fruitful A forest a special jupastures, privileged for wild beasts and fowls, fowls of forest risdiction chase and warren, to rest and abide in the safe protection of 1 "And I will that every man be entitled to his hunting, in wood and in field, on his own possession. And let every one forego my hunting: take notice where I will have it untrespassed on, under penalty of the full wite.". Cnut, Secular Dooms, cap. 81. Cnut's hunting code, which may be found in Thorpe's Ancient Laws (vol. i. p. 358), is regarded as of very doubtful authenticity. Norm. Cong., vol. i. p. 291, note III.; Select Charters, p. 156. 2 Freeman, Norm. Conq., vol. v. pp. 82, 305. 8 Art. 10: 4 Benedictus, vol. ii. p. clix. 5 "It was a jurisdiction fenced in by heavy penalties, denounced against man and beast. Still it was a jurisdiction; it had a system of law, with courts to administer it."- Norm. Cong., vol. v. p. 306. or franchise. outside of the common law. tion of the 1 3. the king." The boundaries of the territory thus described marked the limits of the forest code, and the jurisdiction of the forest courts. From the Dialogue of the Exchequer 2 we learn that these courts which had exclusive jurisdiction of all offences committed in the forests in violation of the king's exclusive right of proprietorship 3 were outside of the common law; that they were not subject to the visitations of the ordinary judges from the king's court; and that they were governed by their own laws and customs, which were made rather in the interest of the beasts of the chase than Organiza of the king's subjects. The organization of the courts of the forest, like that of all other private jurisdictions, was modelled after the ordinary popular tribunals; in shires in which these royal franchises existed, the same persons who were required to attend the shire-moot were required to do suit at the forest courts. In the courts of the forest which still exist, as in the other franchises which have lived on without being absorbed into the general judicial system, may yet be found some of the best remaining illustrations of ancient local customs.5 From the greatest living master of the English constitution we learn that in the courts of the Forest of Knaresborough, in the Forest the district of his own birth, each township or berewic is still represented by the reeve and four men, the recognized representatives of the townships in the very earliest laws.6 forest courts. Courts of of Knares borough. Develop ment of the itinerant judica ture, and the origin of juries. 9. Having now drawn out the development of the Norman system of central judicature as embodied in the curia regis down to the reorganization of that court by Henry of Anjou, and having traced in the same way the unbroken history of the Old-English system of provincial judicature as embodied in the courts of the shire and the hundred down to their reorganization by the same king, the task remains to unfold 1 This is the definition of Manwood, Forest Laws, p. 40. Cf. Stephen, Hist. Crim. Law, vol. i. p. 135. 5 "Certain it is that, within the forest jurisdictions, some of the old forms of the ancient courts have gone on with less change than they did in gen 2 Dialogus de Scaccario, i. II. Hen. I. c. 17; Bigelow, Hist. Pro- eral."- Norman Conquest, vol. v. p. cedure, p. 144. 4 Assize of the Forest, art. II. For details as to the organization and procedure of the forest courts, see Stephen, Hist. Crim. Law, vol. i. pp. 135138; Bigelow, Procedure, pp. 144-146. 306. 6 I refer of course to Bishop Stubbs. See Const. Hist., vol. i. p. 107, in which is cited Hargrove, Hist. of Knaresbor• ough (ed. 1798), pp. 44, 45. law court of the union and shire the process through which the two systems were drawn together and finally amalgamated in one composite whole which retains to this day the strongest elements of both. The visi- Typical ble outcome of the union between the Norman curia and the English Old-English shire-moot is the typical English law court of the product modern times, in which witnesses depose to facts, upon which of curia the jury pass, under the guidance and direction of a judge moot. learned in the law. Wherever the English legal system prevails, this idea of a law court is so deeply imbedded in the minds not only of laymen but of lawyers, that it is hard for either class to realize the fact that it did not exist from the very beginning of things, and that in its earliest form it did not present the same aspect which it wears at the present day. Until this delusion is discarded it is impossible to comprehend the process of change and of growth through which the typical English law court was slowly evolved out of the union of elements alien and antagonistic to each other. Under the Old-English system, as the judicial powers of the Old-English judicawitan were only exercised upon extraordinary occasions, and ture. as the courts of the townships did not possess contentious jurisdiction, the ordinary administration of law was confined to the courts of the shire and the hundred. The whole tendency of the ancient system was to discourage suitors from seeking justice from a royal source: "the king and the witan frowned upon every symptom of popular discontent with the clumsy justice of popular tribunals, and forced suitors back upon the local courts." "1 As no cause could be Influence of carried to the shire until it had first been heard in the hun- tribunals. dred, so no cause could be carried to the king until it had first been heard in the shire. It must not be supposed, however, that this arrangement embodied a system of appeal in the modern sense of that term. The decision of each court was final, and it was only in the event that a court failed to decide in a prescribed time that the cause could be taken to a higher tribunal.2 In the light of this explanation it will be But little easier to understand those instances which survive of inter- from the ference by writ upon the part of the Old-English kings with central the local administration of justice. In the days of Æthelred the king sent his writ or insigel by the hands of Abbot Ælf2 See above, p. 200. 1 Essays in A. S. Law (Boston, 1876), p. 25. the local interference authority. Centraliza. tion of justice after the Conquest. The writ process. here to the shire-moot of Berkshire, bidding them to arbitrate Not until after the Norman conquest did the tendency to germ of free institutions, that existed in the judicial order, was not entirely destroyed."-Guizot, Hist. Rep. Govt. (Scoble's trans.), p. 297. 8 "Jurisdiction obtained by the king's court in this way may be called the extraordinary jurisdiction of the court. It was acquired by direct usurpation, in derogation of the rights of the popular courts and manorial franchises, upon the sole authority of the king.". Bigelow, Hist. of Procedure, p. 78. |