The Anglo-Saxon Background

to Pre-Norman ‘Forest Law’
 

A short explanation by
Richard Rutherford-Moore

Though medieval ‘forest law’ in terms on interpretation towards The Legend of Robin Hood should perhaps only be based on 1066 and the arrival of the Normans, we should perhaps look at what ‘forest law’ might have meant before the arrival of the Normans to put it in perspective as the popular belief is that it was the Normans who introduced ‘forest law’ to England post-1066. The Norman ‘forest law’ was a Norman interpretation of an existing Frankish legal term and introduced after 1066 into England not to replace or supplant existing law but to reinforce it. After the introduction of ‘forest law’ by William I, severe penalties for breaches and offences followed until circa 1135 when offenders were no longer being punished by the loss of body parts and though the strictest penalty remained, were chastised mostly by financial penalties. Infangetheof is the old-English (Anglo-Saxon) legal term for a lord to have jurisdiction over a thief caught red-handed within the borders of his estate, and entitled them to hang offenders. Infangtheof did extend well beyond 1066 and can be seen in articles of land-grants in the 14th century. Did infangetheof  apply to Anglo-Saxon poachers ?  Within the letter of Anglo-Saxon law, evidently it did - and this leads to a question : what form of laws governed hunting (and obviously, poaching) during Anglo-Saxon times - and if so, why and how were they applied ?

In the 4th - 8th Century, there are indications that ‘fair game’ was a custom and a privilege placed on man to bring additional food to the table for his family through hunting. It was a valid claim in an Anglo-Saxon court in a controversy over trespass or theft that “I have always hunted this land, so did my father and so did my grandfather” (provided witnesses could be produced by the accused, which within the structure of Anglo-Saxon society could be easily established). In an increasingly settled and agricultural and husbandry society, it does indicate that ‘professional hunters’ roamed in a semi-nomadic fashion to supply settlements with meat and receive goods in return (probably governed by the Anglo-Saxon ‘barter system’ as cash was always short - the Anglo-Saxon ‘heriot’ in terms of a cash payment always caused complaint). “Offa’s Dyke” was a Mercian undertaking and a major earthwork built in the 8th Century : it did consume many thousands of man-hours and it does seem that ‘professional huntsmen’ were employed to augment the food of the workforce and presumably in doing so had King Offa’s permission to freely hunt over a wide area - it stands to reason that King Offa could legally give that permission.

Anglo-Saxon society it is commonly said was based on ‘free-men democracy’. This isn’t true as the roots of what finally became ‘feudalism’ (though the actual term is 17th Century) can be seen in Anglo-Saxon society well before 1066. That the king actually owns all the land and just permits others to have the use of it can be explained : he expects something in return, which is not only various forms of taxation but a military force before the years of what was deemed a ‘standing army’. This military force could only be raised and supported by a financial income and this income was measured and meant to be available to the king in times of war from his subjects allotted areas of land to administer and maintain to provide such an income. From the time of Alfred the Great, this began to filter through to ‘ranks of society’ (the ‘aristocracy’ of main land-lords down to various degrees of tenants and sub-tenants to the lowest common order). Most of this was based on ‘tradition, right, privilege and custom’ which of course was a constant form of dispute as nobody really knew - until Domesday Book - what the actual value of England as a ‘national product’ was (and this still had repercussions throughout the 18th Century and included the first General Census of 1800). In terms of a ‘Common Law’ being applied, tradition, right, privilege and custom complicated matters in courts through regional variations of what ‘common law’ was held to be in areas such as Wales, ‘Danelaw’, Kent and Wessex. At the time of Alfred the Great, the nation was described by ‘Aelfric Grammaticus’ as having three main supports which he defined as follows …

Laboratores : agricultural labourers, ploughmen and husbandmen who toil to provide food

Oratores : clergy and religious types who toil after ‘spiritual welfare’

Bellatores : those who guard the burghs and the land, and take up weapons to defeat an enemy

By the beginning of the 11th Century, a strata of ‘aristocracy’ was well-established in England and this definition from the time of Alfred the Great had become the society-strata of gesiths, eorl and thegas (men holding land and having various levels of due authority) with the first and widest definition becoming ceorls (or ‘churls’ - being men who ‘worked’). Some overlapping ‘grey areas’ did exist between the terms eorl and ceorl but a man’s overall status within the now-established ‘aristocracy’ did depend on how much land they either owned or administered.

The status of Women in Anglo-Saxon society was very important - they were highly privileged and could hold land and property in their own right and they did hunt - but is judged sufficiently well-known not to have to be repeated here.

The ‘high king’ or a sub-ruler of a minor kingdom did provide land to land-lords within this aristocracy in requiring the old ‘bellatores’ to support both themselves in peacetime and support him in times of war when land-lords were required to bring along to battle a set number of armed men from the land area, with the number of men and the state of their weapons and equipment being defined by the revenue the land-area in question was deemed to be able to provide. Mis-management of the land allotted was no excuse in time of war (though some provision was apparently made for ‘bad harvest’ in terms of the weather and even ‘harvest-time’). The revenue from the land did not limit itself to agriculture and husbandry and did include an assessment of natural resources timber and wild game. The changing styles of armour and the quality of weapons did become increasingly expensive (an example of this was a byrnie or a hauberk of mail in the year 1000 was worth the equivalent of a motor car today - but the actual cost is relative to ‘spending-power’) and any resource on allotted land had to be controlled to pay for this expensive facility. Beyond the 10th century when ‘Viking raids’ were no longer a threat, the ‘bellatores’ had no real application and turned to hunting as the main form of leisure and training until the time of the Crusades.  Several minor ‘rebellions’ occurred in the 11th century in England and Normandy when common folk were encouraged to rebel against toiling to provide what was seen as a redundant warrior-class (who ‘lorded it’ over most of the land) with the means to keep themselves supplied with horses, armour and ‘luxuries’. Such mutiny or rebellion was classed as ‘heresy’ even though clergy were often mixed up instigating it.

The Anglo-Saxon rule of thumb has been interpreted by historians that ‘five hides of land could support a soldier of the fyrd’. A ‘virgate’ was based on a common latin term and on average 30 acres and a quarter of a hide - but you will find that the basic measurement of land varied in Danelaw, ‘Jutish’ Kent and ‘Saxon’ Sussex and Wessex. These measurements were all derived from estimates based on how much land a plough drawn by a team of oxen could plough in a day. Grants of land usually came with rights of grazing in pasture and access to nearby woodland. The ‘fyrd’ was a rather inefficient and haphazard system of calling out the men of the land at time of war to defend it : they were expected to turn up armed and equipped on the basis of ‘five hides of land’.  In reality, only a surplus of produce would enable an investment in arms and armour for the fyrd - but the ‘landlords’ serving as the hardcore or ‘spear-point’ of a military force (especially if going overseas) would need to maintain themselves to be called-out at any time. The Anglo-Saxon term wapentake (literally ‘weapon-take’ or count) gave the lord or the king an estimate of just how many men would be able to fight in a given area. Wapentake is roughly equivalent to the same estimate within a ‘Hundred’. The ‘soldiers’ didn’t go unpaid - they received four shillings per hide as two months ‘expenses’ when ‘on campaign’ (but in terms of buying armour or weapons, these ‘expenses’ would not have gotten them very far). This system by 1066 seems to have evolved into ‘select fyrd’ (fully-armed and often armoured men) and the ‘general fyrd’ (who turned up with whatever was to hand or ‘improvised weapons’). Bowmen do not seem to have been very prevalent, though skilled huntsmen were sought and used as ‘light infantry, scouts or skirmishers’. Duke William at Hastings seems to have hired most of his soldiers as mercenaries (including the vaunted and dreaded Breton ‘crossbowmen’ who rather let the side down at Senlac) with these being paid-off in 1068 and the grants of land in England going mostly to ‘aristocratic’ Norman families or those related to him in some way.

‘Forest Law’ by the very name and definition is a post-Norman Conquest innovation but before the Norman Conquest, measures had been attempted to limit and prevent wholesale trespass and predation in areas where such natural resources were seen to be increasingly unable to be self-sustainable. The enormous woodland which had covered almost all of England in the 4th Century had by the 10th Century had shrunk in proportion to population-size. Many new areas were coming under agriculture and husbandry - and at a time where most building of any sort were created from timber and most ‘household’ utensils were made of wood, trees were a valuable resource. These vast woodlands also supported many forms of wild game from large mammals like boar and deer to a wide variety of birds and smaller mammals such as marten, coney and fox. Not all of these were hunted to be taken for food as some were classed as ‘vermin’ and also provided a valuable resource of fur and leather (and in some cases, for parts used as personal decoration). In several cases in Anglo-Saxon England  both eorls and churls employed or directed thralls or serfs (slaves)  to hunt classes of animal in areas known as ‘waste’ (as they were deemed ‘wild’ or ‘useless’ in terms of agriculture, being covered with heather, gorse or bramble and sometimes, were swamp and mire) but by 11th Century Anglo-Saxon England, the hunting of wild boar and deer had indeed become the sole preserve of the aristocracy as ‘practice for war’ and hunting these animals by churls or ‘common folk’ actively discouraged. Developments in hunting procedures and techniques had seen ‘ritual trappings’ (many of which are still in place today) replacing common tradition and privilege : the increased use of the horse to actually hunt game - rather than serve solely as a means of transport to the hunt or to the battle - had also eclipsed the old practice of huntsmen mostly following hounds on foot to make the ‘kill’ and the bow was being increasingly used by the aristocracy and employed huntsmen in stalking, following-up and even ‘driving’ game. It also saw boundaries of allotted lands becoming far more clearly defined rather than ‘general definitions of boundaries’ based on using natural geography such as rivers, lakes and hills : the Anglo-Saxon clergy became quite adept at this in controlling available resources and records of same were even used by Normans to ascertain regional ‘boundaries by custom’ until the ‘shire’ was scrapped in favour of the ‘county’ in 1087.

It is unlikely that any ‘free-hunting’ extended into the 10th century as control of the woodlands in terms of ‘resource’ had seen introductions of restrictive practices throughout the later Anglo-Saxon period but which appear to have largely ignored though many were pursued in Anglo-Saxon burgh or honour ‘moot-court’ through seeking compensation by the use of both bot and weregild to ascertain compensation as a monetary value in the same way as personal injury, damage to property or a thief discovered after the theft. Cnut in 1023 passed a law code forbidding poaching ‘on his private chases wherever he might have them, upon payment of full fine’. Crown attempts to limit - rather than prevent - wholesale predation of timber and game were made between 1017 and 1042 by defining certain areas as ‘royal hunting preserves’ but these do seem to have lacked the necessary stringent security measures to both apply and control restrictions in the face of established long-term ‘custom and privilege’ and hence widely ignored. Though these Anglo-Saxon ‘private chases’ were never as extensive as Norman ones, any offenders caught ‘red-handed’ or otherwise were still applicable and dealt with by ‘common law’ - but only the far more efficient and supported William I after 1066 was able to successfully apply such restrictions on hunting, which were clearly defined and covered by ‘Forest Law’ rather than ‘Common Law’. It wasn’t only the Normans who were pestered by predation by what the Anglo-Saxons termed ‘wolfsheads’ … outlaws.  Offences against Norman ‘forest law’ became no longer subject to Anglo-Saxon ‘common law’ and also fell outside the jurisdiction of consistory or secular courts. William I was able through efficiency in application and enforcement to extend these laws to cover all wild deer anywhere - and later included wild boar - within the boundaries of a designated ‘royal forest’ or outside one and the ‘vert’ that sheltered and fed them - in being the sole property of the Crown. Later Norman kings of England were also able to extend and increase ‘Afforestation’ - and it also led to an increase in outlaws - before the ‘feudal system’ adopted by William I led to unavoidable excess and avarice, private armies and castles to become wholesale anarchy in 1135 and ‘forest’ was the first target for any powerful land-grabbing baron in time of a weak monarch or civil war.

It is an odd paradox that warfare generally began by a force ‘ravaging’ the lands of the chosen target. This was done to prove that the ‘bellatores’ who owned or administered that land  could not defend it so did not deserve it : when the occupants screamed for protection, if their protectors sallied out to do so they would be at a military disadvantage in the face of a consolidated enemy force. It is also a paradox that any settlement would often see the ravaged lands ‘taken over’ by the very people who had ravaged them in the first place (in the case of the East-Anglian ‘Saxon rebel’ Hereward the Wake, with Danish support he ravaged his own lands). In a medieval battle, it was the foot on both sides that were cut to pieces by the mounted ‘chivalry’ of both sides as they were often un-armoured and an easy prey to mounted and armoured warriors - the ‘common folk’ were not taken prisoner as they could not be ransomed. The target for any medieval chevauchee were always the people and their settlements and valuable ‘woodland, forest and chase’ usually escaped any ravaging. The weapons carried by the ‘fyrd’ were probably the same as could be applied to hunting purposes - the spear, the bow, the hatchet and the dagger as some stipulations later came to be made by the ‘chivalry’ as to who was entitled to wear a sword. The only revenge and satisfaction a huntsman might get in battle was to kill from a safe distance an armoured mounted man worth many thousand times his own worth of value with an arrow costing less than a penny … an applied hunting technique that became a fact that came to play in military - and ‘outlaw’ - tactics after 1066 with ‘archers’ coming to the fore. It is notable that in addition to the Norse god Balder, Harold Hardrada, King Harold Godwineson, William II and Richard I and other leading-lights are all said to have killed by a shaft shot by a huntsman.