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CHAPTER FORTY–FOUR. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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Homines qui manent extra forestam non veniant de cetero coram justiciariis nostris de foresta per communes summoniciones, nisi sint in placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro foresta.
Men who dwell without the forest need not henceforth come before our justiciars of the forest upon a general summons, except those who are impleaded, or who have become sureties for any person or persons attached for forest offences.
These provisions were intended to redress one of many abuses connected with the oppressive forest laws.
The Royal Forests.
The word “forest” had acquired an exact technical meaning, and was applied to certain wide districts, scattered irregularly throughout England, reserved to the Crown for purposes of sport. Here the wild boar and deer of various species found shelter, in which they were protected by the severe regulations of the “Forest Law.” It was the prevalence of this code which marked off the districts known as royal forests from all that lay extra forestam; and this made an accurate definition possible. A “forest” was a district where this law prevailed to the exclusion of the common law which ruled outside. The forests with their inhabitants had been omitted from the process by which the rest of England had been assimilated under a uniform lex terrae: this was the root from which many evils grew.
From this definition of a forest as a legal, not a physical, entity, it follows that the word is far from synonymous with terms such as “wood” or “covert,” implying merely natural characteristics. A forest was not necessarily covered with trees throughout the whole or even the greater part of its extent. Miles of moorland and heath and undulating downs might be included, and even fertile valleys, with ploughed fields and villages nestling among them. The same forest, indeed, might contain many woods, some of them on royal demesne and some the property of private owners. Within the imaginary line the King’s power was supreme, and he used it frankly for the preservation of beasts of the chase. The men who happened to dwell there were subject to a law, in the expressive words of Dr. Stubbs, “cruel to man and beast.” If accused of forest offences, they had no protection from the common law of England any more than from the law of a foreign land. It was something, however, that even in these high places of prerogative, customary rules grew up, obtained authoritative recognition, and hardened into laws which set some limits to royal caprice. Before John’s time the forest code, as set forth in the Assize of Woodstock, had taken its place as a definite system of law, distinct from common law and canon law alike.1
Origin of the Forests.
Before the Norman Conquest the Kings of England do not seem to have laid claim to any exclusive prerogative in this respect. The only ordinance of Canute on the subject, admitted to be authentic, enacted merely that every man should have his own hunting, while the King should have his.1 The rights of the Crown, however, were strengthened by the events of 1066, and by the hardening of feudal theory which followed. All unoccupied waste lands became royal property; and these were the natural resorts of the larger sorts of game. The King established a claim to an exclusive right to hunt the more important species of animals ferae naturae, known as “beasts of the forest”—embracing the red deer (harts and hinds), the fallow deer (bucks and does), the roe deer of both sexes, and the wild boar, with, exceptionally in one forest, the ordinary hare.2 Henry I. formulated the forest law, and it was probably due to him that “forest” acquired its technical meaning. With the special meaning came the express claim to a monopoly of hunting, together with supreme and exclusive jurisdiction. The disorders of Stephen’s reign lowered the Crown’s authority, and Henry II. found the forests much curtailed. He had no intention to acquiesce in this, but it was not till 1184 that he attempted, by the Assize of Woodstock, to formulate the rules of the forest law. In this sphere, as in so many others, Henry II. built on foundations laid by his grandfather. John’s attitude to the forest laws was not consistent. The monk of Barnwall relates how, in 1212, John allowed some relaxation in the severity of the forest code.3 More characteristic of his normal attitude was the order issued on 28th June, 1209, that hedges should be burned and ditches levelled, so that, while men starved, the beasts might fatten upon the crops and fruits.4
The local magistrates who administered the rest of England were excluded from the forests by a separate set of officials. At the head of this special organization was placed, in early times, the Forest Justiciar (called the chief forester in chapter 16 of the Carta de Foresta), whose duties were divided in the year 1238, after which there were two provinces separated by the river Trent.1 His appointment was permanent, and his duties, which continued between the eyres, were administrative rather than judicial. He had discretionary authority to release trespassers imprisoned for offences against the forest law.2 Under his general supervision each forest, or group of forests, was governed by a separate warden, aided by a number of petty officials known as foresters, whose duties were analogous to those of a modern gamekeeper, but with magisterial powers in addition. Wardens were of two classes—“the one appointed by letters patent under the great seal, holding office during the King’s pleasure; the other hereditary wardens.”3 There was situated in or near each forest of any extent a royal residence which, in the Middle Ages, naturally took the form of a stronghold. It was convenient that the office of warden should be combined with that of constable of this neighbouring castle.4 “The wardens were the executive officers of the King in his forests. Writs relating to the administration of forest business, as well as to the delivery of presents of venison and wood, were in general addressed to them.”5
The office was one of authority and profit, usually paid in kind rather than by a salary. The warden often held a fief by a tenure connected with the service, and enjoyed rights and perquisites always of a valuable nature, though varying with each forest. These were sufficient to provide him with an income adequate to his position, and to allow him to find the wages of his under–keepers, who ought thus to have been paid officials. Such was the theory; as matter of fact, the foresters, instead of receiving wages, paid large sums to the warden, and recouped themselves by extortions from the dwellers in their bailiwicks.1 These unpaid foresters were expressively said to “live upon the country.” They may be classified in various ways, as, into riding and walking foresters, or into foresters nominated by the wardens, and foresters in fee. These last had vested interests which the Forest Charter was careful to respect; as, where chapter 14 reserved to them the right to take “chiminage,” or way–leave, denied to other types of foresters. They might still enjoy, but not abuse, the “vested rights” reserved to them.2
With these professional gamekeepers there co–operated, in later times at least, several groups of unpaid magistrates appointed from the knights and freeholders of the district. Of these honorary officials, whose original function was to supply supplementary machinery for protecting the rights of the Crown, but whose position as county gentleman, with a stake in the district, led them also to act to some extent as arbitrators between the King and outside parties, there were three recognized kinds. (a) Towards the close of the twelfth century officers known as verderers (usually four for each forest) become prominent. They appear in the Carta de Foresta of 1217, but had not been mentioned in the Assize of Woodstock of 1184. It is probable that the office was devised in the interval as a check on the warden’s power; just as the office of coroner had been instituted in the reign of Richard as a drag on the sheriff. In other important respects the duties of the verderers within the forests resembled those of coroners within the rest of the county. They were not royal employees, but local landowners whose unpaid magisterial services were required only on special occasions. They were responsible directly to the King, not to the warden; and were appointed in the county court, their “election” taking place in accordance with the terms of the writ “de viredario eligendo.” They attended the forest courts and swanimotes, and it appears from chapter 16 of Henry’s forest charter that it was their duty to bring before the Justices in Eyre lists of all offenders indicted in the lower courts. These “rolls of attachment” were certified by their seals.1 (b) The Regarders were twelve knights appointed in each forest county to make tours of inspection every third year, finding answers to a series of questions known as the “Chapters of the Regard.” In this way they reviewed the Crown’s interests alike in “the venison and the vert” (the technical names for game and growing timber respectively), and reported upon all encroachments: upon hawks and falcons, bows and arrows, greyhounds and mastiffs (with special reference to “expeditation” or cutting of their claws),2 and generally upon everything owned by private individuals likely to harm the beasts of the forest.3 (c) The Agistors are mentioned in the same clause of the Assize of Woodstock which mentions the Regarders. Four knights were appointed to protect the King’s interests in all matters connected with the pasturing of swine or cattle within the royal woods. For thirty days at Michaelmas, pigs were turned loose to feed on acorns and beech mast, on payment by their owners of a small fixed sum per head. The four knights were required to take note of sums thus due, known as “pannage,” and to collect them at Martinmas.4
Mention ought, perhaps, to be made of the private foresters also, whom owners of woods within the forests were obliged to appoint. These “wood wards,” as they were sometimes called, while paid for by the owner of the wood, were expected to protect the King’s interests. In particular, they must prevent trees from being destroyed or wasted: these formed shelter for the game.
The judicial side of the forest system was developed in a manner equally elaborate. Three sets of tribunals must be distinguished: (1) The Court of Attachments (or “view of attachments”) was a petty tribunal, the chief duty of which was the taking of evidence to be laid in due course before a higher court. Exceptionally, however, it had power to inflict fines for small trespasses against the “vert”—namely, for acts of waste not exceeding the value of fourpence. It met once in every forty days,1 which seems in practice to have been interpreted as once every six weeks, the meetings being always held on the same day of the week.2 (2) Courts of Inquisitions. When a serious trespass was discovered, a special court was, in early days, immediately summoned. The foresters and verderers conducted the inquiry, but it was their right and duty to assemble the men of the neighbouring townships to help them. In strictness, all inhabitants might be compelled to attend. In practice, it was sufficient if four men and the reeve represented each of the four adjoining villages. Whenever a “beast” was found dead in the forest, twenty men had thus to assemble, to the neglect of their own affairs. In one district at least (Somerton) the definition of beasts of the chase extended to the ordinary hare; and we read3 how four townships sat in solemn judgment, and found “that the said hare died of murrain, and that they know of nothing else except misadventure,” and how, this verdict not giving satisfaction, the townships were fined on the pretext that they were not fully represented. The real offence was their failure to disclose the culprit. Some alleviation of the burden was effected when, at some date posterior to 1215, special inquisitions were superseded by one general inquisition, held at regular intervals (usually every six weeks), to cover all trespasses committed during the interval. These courts of inquiry (whether special or general) only “kept” pleas without “trying” them—that is to say, they received and recorded accusations, while judgment was reserved for the justices. (3) Courts of the forest justices in eyre. As the smaller courts, in the normal case, received verdicts and reports, without punishing the offences reported, it is evident that the whole system ultimately depended on the justices. Their eyres, however, were held at wide intervals—apparently once every seven years during the reign of Henry III. A full attendance of forest officials and of the public was summoned to meet them. The evidence, stored up as a result of the work of the smaller courts, supplemented by the Rolls of the Regard, was laid before the justices, who summarily judged “pleas of the vert,” and “of the venison.” These eyres came to be known as “Courts of Justice Seat,” but not until long after the reign of John. No juries were present; the justices punished offenders already convicted by juries at a lower court.
In addition, there should be mentioned two other kinds of assemblies which performed duties administrative rather than judicial, as these terms are now understood. (4) The regard, held once every three years—not by Crown officials, but by what was practically a jury of local knights—has already been referred to. These tours of inspection, sometime known as visitationes nemorum,1 and sometimes even as “views of expeditation,” were of great practical importance. The resulting report was placed before the justices of eyre as evidence of forest trespasses. (5) Three times every year, meetings, known from an early date as “Swanimotes,” were held to regulate the pasturing of swine and cattle within the royal woods. A fortnight before Michaelmas, the agistors met the foresters and verderers to provide for the agisting of the King’s woods, a process that lasted for thirty days—fifteen before and fifteen after Michaelmas. At Martinmas the agistors collected the pannage in presence of the same officials. A third meeting was held in June to make arrangements for excluding cattle from the King’s woods when the deer were fawning, but at this the presence of the agistors were not required.1
The Carta de Foresta applies to these assemblies, and to none other, the name “Swanimotes”—a word whose correct use has been the subject of much discussion. Its authoritative appearance in 1217 affords strong evidence of the original sense which it bore. In later days, however, it was more loosely used, being applied to inquisitions and also to courts of attachment. This has led to much confusion, while its derivation has also been the subject of discussion. Bishop Stubbs derived it from “swain,” on the supposition that courts so called were resorted to by swains or country people. As matter of fact (whatever doctrine may be correct philologically), these assemblies were connected, not with “swains,” but with “swine.” The peasantry were specially exempted; whereas all three meetings sought to regulate the entry or exclusion of pigs from the woods.
Chases, Parks, and Warrens.
Forests were necessarily royal monopolies and must on this and other grounds be distinguished from three things with which they are apt to be confused. (1) A “chase” was a district, once a royal forest, which had, without any formal act of disafforestation, been granted by the King to a private individual. The result was to transfer the monopoly of hunting to the grantee, while modifying the nature of the rights transferred. The full force of the forest laws was abated, although the extent and direction of this diminution was nowhere strictly defined, but varied from chase to chase. Such provisions of the forest law as continued to be binding were no longer enforced by royal officials and royal courts, but by those of the magnate, who obtained a franchise over the chase and the royal beasts it contained.1 (2) A “park” was any piece of ground enclosed with a paling, or hedge, whether with the object of protecting wild beasts or otherwise, and the right to effect this was quite independent of royal grant. If the owner of a manor in the near neighbourhood of a royal forest wished to keep deer of his own, which he might kill at pleasure, whether for sport or for food, without infringing the forest laws, he had to stock an enclosure with beasts legally his own, and to keep them under conditions which made confusion with the King’s deer impossible.2 In 1234 the barons asserted their right to keep private gaols for poachers taken in their parks (in parcis et vivariis suis), but the King refused to allow this.3 (3) A “warren,” which might belong either to the King or to any private owner, carried with it exclusive rights of hunting within its bounds all wild animals, except those technically defined as “beasts of the forest.”4 In practice it chiefly embraced hares and foxes.5 Neither parks nor warrens were protected by the forest law, but by that part of the common law which related to theft and trespass. This was, however, vigorously administered, passing gradually into the modern Game Laws.6 Dr. Stubbs held, apparently, too narrow a conception of warren, when he read it in its modern sense of “a rabbit warren.”7 It was a tract of land wherein exclusive rights of hunting lesser game (together with rabbits and other vermin) were preserved to its owner. The King might, and did, have his warrens and warreners, just as any subject might; and these royal warreners might inflict cruel injustice on the common people;8 but their power was less than that of foresters, as they were dependent on the common law. The forest code did not apply even to royal warrens.9
Forest Rights and Forest Grievances.
It is not difficult to understand the store which the Kings of England set upon their forests. They prized them not merely as a pleasure ground, but also as a source of revenue. Fines and amercements, individually small, but amounting to a large sum in the aggregate, flowed into the Exchequer. Great as were the pleasure and the profit to the King, the burden and loss inflicted upon the people were greater out of all proportion. Not only were the interests of forest–dwellers sacrificed to the royal hunting, not only were legal fines rendered trebly burdensome by the galling and wasteful manner of their collection; but the men who paid them were victims of illegal exactions in addition. These grievances may be considered under seven heads:—
The extent of the forests.
The Crown constantly strove to extend the boundaries; the people to contract them. The Conqueror and Rufus each “afforested” wide tracts of land, of which the New Forest is only one example. In the Charter of 1100, Henry bluntly declared:—“I retain in my hand, by the common consent of my barons, my forests as my father had them.” This consent of the magnates would suggest that the barons were allowed some share in royal rights of hunting, which led them here to make common cause with the Crown. Henry, as matter of fact, retained not only the forests of his father but those of Rufus, and created new ones of his own.1 Stephen, while retaining the forests of the two Williams, renounced those added by Henry I. Under Henry II., afforestation began anew.2 The words of the Great Charter leave no doubt that Henry of Anjou had extended the boundaries of Stephen’s forests; and that both Richard and John carried the process further, bringing within the circle of the cruel law, not only waste and moor, but also “woods” belonging to private owners. These royal encroachments were the more oppressive, occurring in an age when population was increasing and seeking outlet in the reclamation of waste places on the debateable land that surrounded the forests. The vagueness of the frontier aggravated this grievance, as it was often difficult for the honest reclaimer of barren land to know when he was committing a trepass for which he might be punished by a crushing fine.1
The monopoly of hunting.
The Crown also made the law more stringent. The Crown’s insistence on a strict monopoly may not seem an important grievance, but it was one likely to exasperate the sport–loving nobles. John, in 1207, admitted that his barons still retained some share in the hunting of royal beasts.2 These rights were formally recognized and defined in 1217. Chapter 11 of the Carta de foresta allowed each magnate when passing through a forest to take one or two beasts at sight of the foresters, or, if these officials could not be found, then after blowing a horn to show that nothing underhand was being done.
Interference with rights of property.
Freeholders whose lands lay in districts which the King was successful in afforesting, retained their freeholds, but their proprietary rights lost half their value. They could not root out trees, to clear their own lands for cultivation; for that was to commit an assart. They could not plough up waste land or pasture (even outside the covert) and turn it into arable, nor build a mill, nor take marl or lime from pits, nor make fishponds, nor enclose any space with hedge or paling; for these acts of ownership were purprestures or encroachments on the King’s rights. They could not destroy a tree or lop off branches (except under stringent conditions), without being guilty of waste.1 They could not agist their woods until a fortnight after Michaelmas, when the agisting of the King’s demesnes was over (thus reserving for him the best market and “pannage dues”).2 Heavy tolls were, under the name of “chiminage,” taken from carts and sumpter–horses passing through the woods. The Great Charter endeavoured to strike at the abuse of these Crown rights by providing machinery for the abolition of “evil customs.” The Carta de foresta entered more into detail. Not only were past trespasses of all three kinds—wastes, purprestures, and assarts—to be condoned, but the law was altered for the future. The long list of purprestures was curtailed: it was made lawful for a man to make (on his own freehold in the forest) mills, ponds, lime pits, ditches, and arable lands, provided these were not placed within the covert and did not infringe on any neighbour’s rights.3 He might also keep eyries for breeding falcons and other birds of prey, and take honey found on his own ground—rights previously denied.4
Interference with the pursuits of the poor.
If the rich suffered injury in their property, the poor suffered in a more pungent way: stern laws prevented them from supplying three of their primary needs; food, firewood, and building materials. On no account could they kill deer; while difficulties surrounded the taking of timber from the woods.5 It is true that even the Assize of Woodstock allowed them the privilege of “estovers” (that is of cutting firewood), but only under stringent rules. All waste was prohibited; and “waste” was a wide word covering, not merely wanton destruction, but all sales or gifts of logs; while nothing could be taken except at sight of the forester, whose consent would not be procured for nothing. This may be illustrated from a period sixty years later than John’s reign: Hugh of Stratford, who paid two and a half marks of yearly rent to the Warden for his post, recouped himself by taking “from the township of Denshanger for every virgate of land one quarter of wheat in return for their having paling for their corn and for collecting dead wood for their fuel in the demesne wood of the lord king; and from the same town he took from every house a goose and a hen in every year.”1 A sum might be taken for every load of sticks; the men of Somerset complained that “from the poor they take, from every man who carries wood upon his back, sixpence.”2 Dwellers within or near the forests were prohibited from keeping dogs, unless their value for other pursuits, as well as for hunting, was destroyed by the removal of three claws of the forefoot.3 Nor could they keep bows or arrows, so necessary for their protection amid the dangers that beset the inhabitants of lonely districts throughout the Middle Ages.4 No tanner or bleacher of hides could reside in forest districts, unless within a borough.5
Attendance at forest courts.
At every inquisition, representatives from neighbouring townships must be present, while the entire population were compelled to meet the justices on their forest eyres. Henry II. enforced this duty upon those outside the boundaries as well as on those within. The Assize of Woodstock admits no exemption for earl or baron, for knight or freeholder, nor even (according to one version) for archbishop or bishop. The double duty of doing suit at county courts and forest courts meant double loss of time, and double risk of amercement. This 11th Article of the Assize was repealed by chapter 44 of Magna Carta, which restricted the obligation to denizens of the forests, a concession confirmed in 1217.6
Fines and punishments.
Frequent exactions ground down the dwellers in royal forests to abject poverty. If they failed to attend one of the numerous inquisitions or to disclose the guilty poacher, they paid a fine. If they gave false information; sold or gave away timber; kept grey hounds or mastiffs, which had not been “lawed,” they paid a fine.1 If a bow or arrow were found in their keeping; if they committed any one of the numerous forms of waste or trespass, they paid a fine.
The Northampton Eyre Roll of 1209 illustrates how a township might suffer severely for no fault of their own. “The head of a hart recently dead was found in the wood of Henry Dawney at Maidford by the King’s foresters. And the forester of the aforesaid Henry is dead. And because nothing can be ascertained of that hart, it is ordered that the whole of the aforesaid town of Maidford be seized into the King’s hand, on the ground that the said Henry can certify nothing of that hart.”2 There was a strong inducement to find someone guilty.
In certain cases Henry II. would not accept a fine, but inflicted mutilation upon violators of the King’s monopoly. It was often better to kill a fellow–man than a boar or stag. Article 1 of the Assize of Woodstock announced that the full rigour of the laws would be enforced, as under Henry I., while article 12 laid down more definitely that sureties would only be accepted twice. For the third offence nothing would suffice save the body of the offender. John’s Magna Carta made no regulation on this head; but chapter 10 of the Carta de foresta in 1217 conceded that no one should henceforth lose life or limb for such offences. The culprit should lie in prison for year and day, and thereafter find sureties for his good behaviour, or be banished the realm.
Arbitrary government and illegal exactions.
If the laws of Henry’s code were stringent and the legal payments onerous, it was a worse evil that the law could be defied by Crown officials, and that payments of a perfectly illegal nature might be freely exacted. Within the forest bounds, the peasantry lived in daily fear of the discretionary authority of officials, whose most unreasonable wishes they dared not oppose. Sometimes a local tyrant established a veritable reign of terror. This happened in the forest of Riddlington under Peter de Neville, as the records of the Rutland Eyre, held in 1269, disclose. One item, taken almost at random from the long list of his evil deeds, will suffice: “The same Peter imprisoned Peter, the son of Constantine of Liddington, for two days and two nights at Allexton, and bound him with iron chains on suspicion of having taken a certain rabbit in Eastwood; and the same Peter the son of Constantine, gave two pence to the men of the aforesaid Peter of Neville, who had charge of him, to permit him to sit upon a certain bench in the gaol of the same Peter, which is full of water at the bottom.”1 Other examples are only too abundant. In 1225, Norman Samson, a petty official of the forest of Huntingdon, put men to the torture without cause, and only released them from their torments in return for heavy bribes. If such things could happen after the Charters of 1215 and 1217, it is not likely that foresters were more merciful before. John was always too indifferent or too busy to redress such wrongs. The only guarantee against their recurrence was that honest officials should be selected. Chapter 45 of Magna Carta, which tried to effect this, was withdrawn in 1216.
Some good must have resulted from chapter 16 of the Forest Charter, which forbade wardens to hold pleas of the forest. This prevented wardens from being judges in their own cause; but their arbitrary acts continued to be plentiful under Henry III., as has been already shown. Sixty years after Magna Carta, the men of Somerset complained that “foresters come with horses at harvest time and collect every kind of corn in sheaves within the bounds of the forest and outside near the forest, and then they make their ale from that collection, and those who do not come there to drink and do not give money at their will, are sorely punished at their pleas for dead wood, although the King has no demesne; nor does anyone dare to brew when the foresters brew, nor to sell ale so long as the foresters have any kind of ale to sell; and this every forester does year by year to the great grievance of the country.”1 Each one of these abuses had been forbidden by chapter 7 of the Carta de foresta, which had prohibited the making of “scotale” and the collection of corn, lambs, and pigs. Such rules were easier to enunciate than enforce.
Later History of Forests and Forest Laws.
The Forest Charter signally failed to secure a pure administration of the law; but two ameliorating processes were at work. The long struggle to define the boundaries ended, in the reign of Edward II., in the defeat of the King, who consented to the frontier being drawn to suit the barons.2 Within these restricted limits, time and the progress of civilization softened the severity of the forest code, many customs becoming obsolete.3 Charles I. made an ill–judged attempt to revive some of the Crown’s long–forgotten rights. Justice–seats were held by the Earl of Holland, accompanied by amercements and attempts to extend the forest bounds.4 The result was a drastic act of the Long Parliament, limiting them to their old extents.5 This statute, however, abolished neither the forests, the forest laws, nor the forest courts. After the Restoration a Justice–seat actually took place pro forma before the Earl of Oxford. Blackstone declares this to be the last ever held,6 although the offices of justice and warden of the forests were not abolished till 1817.7 The forests, much curtailed in extent, are still Crown property, now administered in the interests of the public by Commissioners of Woods and Forests.1 The operation of the common law is, of course, no longer excluded from their confines, the old antithesis between forest law and the law of England being a thing of the past.2
[1 ]A convenient, short account of the forests, with their special laws, special officials, and special courts, will be found in W. S. Holdsworth’s History of English Law, I. 340–352. For fuller information see Dialogus de Scaccario, I. xii.; John Manwood, Book of the Forests (1598); Coke, Fourth Institute, 289–317; Liebermann, Constitutiones de Foresta (1894); G. J. Turner, Preface to Select Pleas of the Forest (1901); and an article in the Edinburgh Review for April, 1902.
[1 ]Select Charters, 156.
[2 ]Select Pleas of the Forest, xiii.
[3 ]See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii.
[4 ]R. Wendover, III. 227. This, however, is clearly a hostile account of the King’s resumption of forest tracts illegally put under cultivation by way of purpresture.
[1 ]See Select Pleas of the Forest, xiv. The permanent routine work performed by this functionary must not be confused with the intermittent duties of the Justices of Forest Eyres, although he was usually a member of the commission who went on circuit: e.g. chapter 16 of the Forest Charter speaks of the Chief Forester holding pleas of the forest.
[2 ]Select Pleas, xv.
[3 ]Turner, in Select Pleas, xvii.
[4 ]Engelard de Cigogné, for example, whose name appears in chapter 50, occupied this double position. Chapter 16 of Carta de Foresta forbids castellans to determine pleas of the forests, thus strengthening the presumption that wardens were usually constables.
[5 ]Select Pleas, xix.
[1 ]Select Pleas, xxi.
[2 ]The same chapter, however, fixed the rates of “chiminage.”
[1 ]For the earliest notice of verderers see Select Pleas of the Forest, xix. n. Their appointment in county court may indicate that they acted in some measure as a check on the professional foresters in the interests of the people generally, as well as a check on the warden in the interests of the King. Within the forest the warden, with the verderers and foresters, offered an exact parallel to the sheriff with the coroners and bailiffs (or serjeants) in other parts of a county.
[2 ]See Carta de Foresta, c. 6.
[3 ]After 1217, if not before, it was their duty to fix the number of foresters required, so that the inhabitants need not groan under a heavier burden than necessary.
[4 ]In one document they were styled agistatores precii (Select Pleas, p. l.), which suggests that fixing the rate was their chief duty. “Agist” was a general term; it was apparently correct to speak of “agisting a wood,” of “agisting cattle,” and of “agisting the money due.”
[1 ]Carta de Foresta, c. 8.
[2 ]Select Pleas of the Forest, xxx.
[3 ]Select Pleas of the Forest, p. 42.
[1 ]Dialogus, I. xi. E.
[1 ]It is stated in Carta de Foresta (1217) that only verderers and foresters need be present at the June moot, and the same officers, with the agistors, at the two others. The public were exempted.
[1 ]Select Pleas of the Forest, cix. et seq.
[2 ]Ibid., cxvii.
[3 ]Statute of Merton, c. 11.
[4 ]Select Pleas of the Forest, cxxiii.
[5 ]Ibid., cxxviii.–cxxix. Wild cats should perhaps be added.
[6 ]See W. S. Holdsworth, History of English Law, I. 346.
[7 ]See Select Charters, 552.
[8 ]Some of these Magna Carta sought to guard against. See c. 48.
[9 ]Rights of hunting were conferred on subjects over territory not their own. Richard I. granted permission to Alan Basset to hunt foxes, hares, and wild cats throughout the realm. Round, Ancient Charters, No. 18.
[1 ]This is implied in the terms of Stephen’s Oxford Charter. An example of an act of afforestation by Henry is given in Select Pleas, 45, which shows how “a district could be afforested in a moment by the mere word of the monarch; it took centuries to free it from the royal dominion.” See Edinburgh Review, vol. cxcv. (1902), p. 459. Even the Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest woods on its own demesne—reserving, indeed, common of pasture to those with legal rights thereto.
[2 ]The policy of Henry I., Stephen, and Henry II. respectively is well illustrated by the case of Waltham forest in Essex. See Round, Geoffrey de Mandeville, 377–8.
[1 ]This group of grievances was partly remedied by chapters 47 and 53 of Magna Carta. The former provided for the summary disafforestation of all districts made forests by Richard and John, while the latter showed a more judicial spirit in the undoing of the similar work effected by their father. The Carta de Foresta of 1217 contained clauses which took the place of these somewhat crude provisions.
[2 ]See Rot. Claus., I. 85 (dated 11th June, 1207).
[1 ]For detailed information as to wastes, purprestures, and assarts with their ascending scale of penalties, see Select Pleas, lxxxii.
[2 ]See Assize of Woodstock, article 7.
[3 ]See Carta de Foresta, c. 12.
[4 ]Ibid., c. 13; another clause (c. 14) forbade ordinary foresters to exact chiminage, and fixed the rates payable to those with vested rights at two pennies for each cart per half–year, and one half–penny for each sumpter horse.
[5 ]See Assize of Woodstock, article 3.
[1 ]See Select Pleas, 123 (6 Edward I.).
[2 ]Select Pleas, (127 (1278–9). This was a heavy rate, the more remarkable in face of the provisions against “chiminage” in Carta de Foresta, c. 14.
[3 ]Assize of Woodstock, article 14. Cf. Carta de Foresta, c. 6.
[4 ]Ibid., article 2.
[5 ]Ibid., article 15.
[6 ]See Carta de Foresta, c. 2.
[1 ]It had been the practice to exact an ox in reparation of such transgression, thus leaving the peasant without means of tilling his land. The Forest Charter (c. 6) limited the fine to 3s.
[2 ]See Select Forest Pleas, p. 4.
[1 ]Select Pleas, 50.
[1 ]Select Pleas, 126.
[2 ]See infra, under c. 47.
[3 ]“Assisa et consuetudines forestae,” issued by Edward I. in 1278, although declaratory, may have done something towards curtailing discretionary authority. Statutes of Realm, I. 243; Bémont, Chartes, lxv.
[4 ]See S. R. Gardiner, Hist. Engl., VII. 363, and VIII. 282.
[5 ]16 Charles I. c. 16.
[6 ]Commentaries, III. 72.
[7 ]By 57 George III. c. 61.
[1 ]In virtue of a series of Acts of which 14–15 Victoria c. 42 is the latest.
[2 ]See Stephen, Commentaries, II. 465–6.