Once a Week (magazine)/Series 1/Volume 7/Early English statutes
EARLY ENGLISH STATUTES.
A study of the law is commonly accepted as the driest, dullest, most monotonous investigation the mind can make. The speculations of antiquaries concerning dinted weapons, broken ware, or battered coins, are considered fascinating when compared to the dingy, heavy web of the law. No one takes up a law-book for leisure perusal: no one studies the law as a leisure pursuit. A curious quality, however, belongs to our theme: like architecture, the older it is the more picturesque it appears: like wine, the more remote its season the more mellow it proves. Modern law is a maze of verbiage; but law two centuries old is as clipped and trim as the trees in an old Dutch garden—not written in irritating black letter, but printed in plain, clear type, and its orthography only differs from our own in such minor points as old wine bottles do from new, affording just that conclusive evidence of age that is satisfactory. Ponderosity is not necessarily a feature of an old law-book, for a man may hold in his palm a volume before us, printed in 1679, containing abstracts of every statute then in force: neither is dryness an inevitable quality, for pictures of mediaeval manners and customs flash up from the tawny pages as from the lays and lyrics of the troubadours.
We will quote the abstract of a statute made by King James the First:
“No innkeeper, victualler, or alehouse keeper, shall suffer any town-dwellers to sit tippling in his house, on pain of 10sh., nor sell less than a full alequart of the best ale or beer, or two quarts of the small, for one penny, in pain of 20sh. And here the view of one justice, or proof by two witnesses upon oath before one justice is sufficient conviction.”
Is this not as Falstaffian as a page from the “Merry Wives of Windsor”? Who could the one justice be but Shallow? And do we not read of the “full ale-quart” as of a vast tankard chased and gilded at least? The thirsty “town-dweller” convicted of having sat “tippling in any inn” was to forfeit ten groats, and, says the abstract ambiguously, “being not found able to pay it shall remain in the stocks four hours.”
There is scarcely a limit to the variety of information we may thus obtain. Henry VIII. in passing an Act forbidding any person who was not possessed of lands to the value of 100l. per annum from shooting with, or even keeping in his house, crossbow, hand-gun, hagbut, or demi-hake, has handed down a list of the beasts and birds that inhabited Britain in his day, as well as an inventory of the small arms then in common use. Any subject who dwelt at a distance of two furlongs from a town might keep the weapons enumerated, and so might all those who lived within five miles of the sea coast; and the last-mentioned were further privileged to shoot “at any wild beast or fowl, save only deer, heron, shovelard, fesant, partridge, wild swan, or wild elke.” The keenest sportsman would have some difficulty to come up with shovelards (pelicans), wild swans, or wild elks in these latter days; and from the prohibition just quoted we may conclude that they were getting scarce in King Harry’s time. The “handgun,” remote progenitor of our Enfield and Whitworth rifles, appears to have had to fight its way through several enactments against its use. Edward VI. decreed that no one under the degree of a baron should shoot with a handgun in any city or town, at any fowl or with any hailshot, in pain of a fine of 10l. and three months’ imprisonment, with the exception of those persons privileged to shoot by Henry IV., who were not to be restricted, provided they forbore to use the objectionable hailshot. Bow staves and arrows, on the contrary, enjoyed royal patronage from very remote times. Henry IV. directed that arrow-heads should be well brazed and hardened at the points with steel, and that arrow makers failing to comply with this condition should forfeit their arrows, be thrown into prison, and be fined at his royal pleasure. Edward IV. enacted that every merchant-stranger should bring into the realm four bow-staves for every ton of merchandise, and specified that they should be brought from any place whence bow-staves had been formerly imported—thus marking a still earlier conformity with this practice. Richard III. decreed that ten bow-staves should be imported into his kingdom with every “but of Malmsey or Tyre, on pain of 13s. 4d. for every tun;” and Queen Elizabeth also dealt with this subject. She confirmed the statute of Edward IV., just mentioned, and made it especially binding upon merchants coming from the East parts, and from the twenty Hanse towns; and further enacted that every bowyer dwelling in London, or in the suburbs, should keep always ready fifty well-made bows of elm, witch hazel, or ash, on pain of a fine of 10s. for every bow failing that number—which penalty was to be divided between the queen and the prosecutor, who was to be either an armourer, fletcher, or bow-string maker. She also fixed a graduated scale of prices. A bow of the best sort, made of “outlandish elm,” was to be sold for 6s. 8d.; of the second sort for 3s. 4d.; of the commonest kind for 2s. A bow of English elm was not to be charged more than 2s. under penalty of a 40s. fine. These regulations are all given in the abstracts of the statutes in force in the reign of Charles II.
The early charters relating to forests, chases, parks, and warrens are as enjoyable as a portfolio of sylvan sketches: the perusal of the different clauses opens out glade after glade, mellow with green and gold, purple and rich brown tints. Forest laws made by Henry III. held good after the Restoration.
“A peer of the realm, being sent for by the king, in coming and returning, may kill a deer or two in the forest through which he passeth: howbeit it must not be done privily, but by the view of the Forester, if present; but if absent, by causing one to blow a horn for him, lest he seem to steal the deer.”
The ring of the horses’ hoofs, the echo of the horn, the rustle of the brushwood, the shouts of the cavalcade break on the ear as we read. If any one caught a stray hawk he was to give it up to the sheriff, who would make proclamation in “the good towns” of the county, and so ascertain her rightful owner; if, however, no owner was found within four months, the hawk was to be restored to the person who found it, if he happened to be “a man of estate who might conveniently keep a hawk;” but if the finder was a “mean man,” the sheriff was to retain the hawk, and make him some compensation for it. No one was to conceal a hawk: if they did so, they were to pay the value of it, and suffer two years’ imprisonment; and if they were not able to pay the price of the hawk, they were to be detained in prison a longer time. Every freeman was to have his honey that was found in the forest, also his “ayries of hawks, eagles, and herons.” The ministers of the forests have entailed among our surnames a great many variations of the terms of their respective offices. Forester, or, as it is frequently written, Foster, Parker, Warrener, and Ranger, are every day names with us: with Verdor, Regardor, Surcharger, and Agistor, we are scarcely so familiar. In these old times they had peculiar privileges, which we may congratulate ourselves are not also entailed upon this generation of their descendants.
“A forester, marker, or warrener shall not be questioned for killing a trespasser, who (after the peace cried unto him) will not yield himself, so that it be not done out of some other former malice.”
These and other difficulties, such as trespass of greenhue (everything growing green in the forest) and hunting, were settled at the Swainmote, or Swanimote—a court held three times a year by the Verderours, or forest judges, for the determination of such matters. The denseness of the forests, their extent, and their spotted herds, would cause them to be regarded as excellent covers by many lawless persons besides Robin Hood and his merry men. Hence a certain stringency was doubtless requisite. This consideration may have contributed to the abhorrence in which gipsies were held. Henry VI. decreed that if any persons calling themselves Egyptians came into his realm they should forfeit all their goods, and be thrown into prison if they did not depart immediately they were commanded to do so. Philip and Mary took additional precautions to prevent the landing of the swarthy strangers:
“None shall transport any lewd people who call themselves Egyptians into this realm or Wales, in pain of 40l. And it shall be felony (without clergy) for them to remain above a month in England or Wales.”
Elizabeth supplemented these regulations with additional severities, declaring that if any subject of hers consorted with Egyptians for the space of a month he should be adjudged a felon, without clergy.
There are two or three clues running through the labyrinth of ancient legislation, whose course can be clearly traced in successive centuries. One of these is a strong determination to maintain the commercial isolation of Britain: a second is an early recognition of the advantages of division of labour. The former of these we moderns have discarded: the second we have seized and elaborated. Numberless obstructions were placed in the way of import and export, and the goods of aliens were suspiciously examined for “deceit.” No one was to convey out of the realm brass, copper, laten, bell-metal, pan-metal, gun-metal or shroof-metal. No gold or silver, enacted Henry VI., shall be exported in pain of forfeiting it, save only for the ransom of prisoners, the reasonable cost of soldiers passing beyond the sea, and money to be expended for certain Scotch commodities as are licensed. Although Henry III. decreed that merchant-strangers, except those of an enemy’s country, should come and go, and buy and sell without exaction of excessive tolls, except in time of war, they were gradually harassed with restrictions as we have said. By the reign of Edward III., this comparative welcome had resolved itself into a permission to come to England with their goods and merchandise, to tarry and return if they paid the customs and subsidies. By the reign of Richard II. they were restricted from selling, by retail, wines and “great wares,” such as cloth of gold and silver, silk, sandal, napery cloth and canvas, which were to be sold in whole pieces only. They were to sell their commodities within a quarter of a year after their landing, and employ the money received in exchange in purchasing English goods. Edward III. made it felony for an Englishman, Welshman, or Irishman to transport wool, leather, woolfels or lead; or to transport either of these articles in a stranger’s name, or to keep a servant beyond the sea “to survey the sale thereof, or to receive money for them.”
Italian merchants laboured under distinct disabilities. They were to sell their merchandise at the port at which they landed them in the gross, and this within eight months after their arrival, and they were to purchase English commodities with the money taken in exchange. If they had not sold all their wares by the expiration of the eight months, they were to convey them out of the realm again or forfeit them. Richard III. enumerated a string of articles that were to be confiscated if brought into the kingdom by a foreigner, furnishing a catalogue of mediaeval objects, specimens of which would furnish forth an antiquary’s museum:—Girdles, harness for girdles, points, leather-laces, purses, pouches, pins, gloves, knives, hangers, tailor’s sheers, scissors, andirons, cobbards (irons on which spits turned), tongs, fire-forks, gridirons, stocklocks, keys, hinges and garnets; spurs, painted glasses, painted paper, painted images, painted cloths, beaten gold or silver wrought in paper for painters, saddles, saddle-trees, horse harness, boots, bits, stirrups, bucklers, chains, latten nails with iron shanks, turnels, hanging candlesticks, holy-water pots, chafing dishes, hanging lavers, curtain-rings, cards for wool, roan cards, sheers, bucklers for shoes, spits, bells, hawksbells, tin and leaden spoons, wire of latten and iron, iron candlesticks, grates, and horns for lanterns.
Like all the statutes we have quoted, this was in force in the reign of Charles II.; but the popular monarch had given his own subjects leave to export iron, armour, bandeliers, bridle-bits, halbert-heads, fire-arms, pike-heads, rapier-blades, saddles, snaffles, stirrups, and all manufactures made of leather. He also permitted the export of gunpowder when it did not exceed in price 5l. the barrel. We learn the prices of various comestibles, immediately after the Restoration, in the same incidental way: It shall be lawful (on paying a certain tonnage) to export wheat, rye, peas, beans, barley, malt and oats: beef, pork, bacon, butter, cheese and candles, when they do not exceed at the port whence they are laden, these prices, viz., “wheat, the quarter, 40s.; rye, beans and peas, 24s.; barley and malt the quarter, 20s.; oats, 16s.; beef, 5l. the barrel; pork, 6l. 10s.; bacon, the pound, 6d.; butter, the barrel, 4l. 10s.; cheese, the hundred-and-one-pound, 10s.; candles, the dozen pounds, 5s.” Thus the ale-wife, wishing to purchase a pound of candles, would have given for them the price of five full ale-quarts of her strong beer. Candles were useful in another way besides for lighting. A sale “by inch of candle” was a common proceeding. When the goods of a merchant, or of a company, were sold in lots, the time of bidding for each lot was confined to the period in which a small piece of wax candle kept a-light; when it went out the lot was the purchase of the last bidder. Such a sale must have been a Rembrandtish sight,—the earnest faces of the merchants, in their settings of long locks and vandyked collars, alternately obscured and garishly revealed as the candle flickered in its socket.
The early statutes also show us the continuous efforts made to improve the geographical features of the country. It is somewhat the fashion in the nineteenth century to laud the works of its own time as being without precedent except in the history of the ancient world; but as we scan the mottled pages of the book of abstracts, we are struck with the magnitude of the engineering enterprises of the days to which it relates. There were mediaeval coast-works, sea-defences, harbours and havens, locks, trenches and sewers, as well as illuminated missals and jewelled chalices. Henry VI. despatched a company of gentlemen, called a commission of sewers, into various parts of his realm to inquire into the condition of the existing sea-defences, and to superintend their repair. Edward IV., Henry VII. and Henry VIII., also granted commissions of sewers. The latter monarch declared that the sea-walls, ditches, banks, gutters, calcies, bridges and sewers by the sea-coast, and marshes, had suffered inestimable damage, as much by the rage of the sea as by the making, erecting, and enlarging streams, mills, bridges, ponds, fish-garths, mill-dams, locks, hebbing-wears, hecks, flood-gates; and they were then “dimpt, lacerate and broken.” Both Henry VIII. and Elizabeth passed Acts for the drainage of Plumstead Marsh. Their Scottish kinsman and successor, James, appears to have been still more energetic. He passed an Act for winning from inundation the drowned grounds and marshes of Lessness and Fants in Kent; another for draining the fens and low grounds in the Isle of Ely, containing about 6000 acres “compassed about with banks called the Ring of Waldersey and Coldham;” a third, to recover a great quantity of ground lately surrounded in Norfolk and Suffolk by the sea, “and to prevent the like for the future.” He also decreed that, for the means to maintain a college he intended to build at Chelsea, a trench should be made to convey water from the River Lea to London; another trench was to bring water from “Cadwel and Anwel in a trunk or vault.” Henry VIII. had previously enacted that no one was to pollute the Thames—an enactment which might have saved many lives if it had been enforced—and Elizabeth had further ensured the well-watering of London by making the River Lea navigable as far up as Ware. The 6000 acres of land recovered in the Isle of Ely were increased by 95,000 additional acres in the time of Charles II. Many Acts tell of structural operations—when bridges were built, when groups of decayed houses were repaired; when new houses were built on waste lands; others, again, relate to the maintenance of good highways, and of the paving of streets. These all show us mediæval England at work with spade and pickaxe, standing ankle-deep in mire, and splashed with clay—a different aspect to that presented in the royal progresses, the tournaments, the pageants, the rebellions, with subsequent display of heads on city-gates, with which it is habitually associated.
There were grades in commerce. Merchants, mercers, drapers, goldsmiths, ironmongers, embroiderers and clothiers dwelling in corporate towns, in Tudor times, were allowed to take no apprentices, except their own children, whose parents were not possessed of freehold property to the value of 40s. per annum; but artificers, smiths, wheelwrights, ploughwrights, millwrights, carpenters, rough masons, plasterers, sawyers, lime burners, bricklayers, tilers, salters, helyers, linen weavers, turners, coopers, millers, earthen potters, woollen weavers (of housewives’ cloths only), fullers, wood burners, thatchers and shinglers, might take apprentices whose parents had no land. No one might practise any “art or mystery” who had not properly served an apprenticeship to it. To maintain a requisite balance no one was allowed to keep more than three apprentices without employing a journeyman. All labourers and journeymen were to be hired by the year. These minute interferences extended to the materials used. Nothing was to be made of felt but hats; caps were to be made of knitted yarn and nothing else, and were only to be dyed two colours—either with copperas and gall, or woad and madder. Death did not put an end to the obligations of the law. “No corps shall be buried in any thing other than what is made of sheep’s wool, on pain of the forfeiture of 5l.” This edict, associated in most men’s minds with Queen Anne’s reign and Pope, was issued by Charles II. It further called upon all persons in Holy orders, or their substitutes, to keep a register of all persons buried in the precincts over which they held charge, and to obtain from the representative of each deceased person, within eight days of the interment, an affidavit that the said deceased was buried in conformity with this regulation. As a proof of the integrity with which the statutes reflected the spirit of the times in which they were passed, we add another clause: —“No penalty shall be incurred by reason of any that die of the plague.”
Mediæval rogues and vagabonds were a different class of persons to those that infest our streets. An Elizabethan statute gives us a category of the persons we might expect to meet on a highway, or skulking along the narrow streets under the shadows of the gabled houses. Her legislators speak of scholars (!) and seafaring men who beg; of wandering persons who either beg or use unlawful games and plays, or feign themselves to have skill in physiognomy, palmistry, or the like, or pretend to tell fortunes; of persons that are or pretend to be (undiscriminating legislators!) collectors for gaols, hospitals; of fencers, bear-wards, common players and minstrels wandering abroad without a written licence from a nobleman to do so; of jugglers, tinkers, pedlars and petty chapmen; of persons “pretending to be Egyptians,”—all of whom when found begging, or wandering, or “misordering themselves,” were to be half-stripped and openly whipped till they bled. Besides these rogues and vagabonds, we might expect to meet wandering soldiers and mariners, counterfeit and real, and wandering glassmen, who were permitted to wander provided they did not beg. We moderns think it more of a misdemeanor to stand still in the gutter or on the curb and beg; the Elizabethan vagabonds were all tramps.
In walled towns the gates were to be shut from sunset till sunrising; and no one might lodge without the town for the night unless his host would answer for him. Between Ascension Day and Michaelmas a night watch was to be kept at every gate, commencing at sunset: six men were to keep guard at each city gate: twelve men at a borough gate; and four or six men at a town gate, according to the number of the inhabitants. We close the book of abstracts of the early statutes, as the six men would close the city gate, knowing that we have but to open it again to stand in the midst of the flow of the quaint, earnest, picturesque life of the middle ages.