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CHAPTER FORTY–SEVEN. - 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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Omnes foreste que afforestate sunt tempore nostro, statim deafforestentur; et ita fiat de ripariis que per nos tempore nostro posite sunt in defenso.
All forests that have been made such in our time shall forthwith be disafforested; and a similar course shall be followed with regard to river–banks that have been placed “in defence” by us in our time.
An analogy may be traced between the prerogatives of hunting and of falconry here brought together. William the Conqueror claimed wide and ill–defined rights to “afforest” whole districts at his discretion; and for protecting his preferential rights of fowling, whole rivers might be placed “in defence.” The parallel must not be pushed too far. River–banks were preserved only for such limited period as was covered by the King’s express command; and, although wardens were appointed to guard them,3 the Crown never established such absolute control over the banks of rivers as it did within districts declared “afforested.”
The provision of the present chapter, defining what riverbanks might be “defended,” disappeared, together with the relative clause of chapter 48 (“ripariis et earum custodibus”), from the reissue of 1216; but, in the “respiting” clause there was promised further deliberation, which resulted in its replacement in chapter 20 of the final version of Magna Carta.1
More attention is usually paid to the bearing of the present chapter upon the limits of the forests. John, if he had created no new forests, had extended the boundaries of the old ones. All such encroachments are to be immediately given up. This summary redress should be contrasted with the more judicial procedure appointed by chapter 53 for determining encroachments made by Henry II. and Richard. A somewhat similar distinction is also to be found in the corresponding provisions of the Forest Charter of 1217 (chapters 1 and 3); but the line is there differently drawn. Chapter 1 of the Carta de foresta extends the summary methods of redress to the disafforesting of all forests created by Richard as well as those created by John. The terms of the later document are also more detailed. Both seem to be directed against encroachments on the rights of landowners, affording no protection to the poor. While they deny the Crown’s right to afforest private woods “to the damage of any one” (that is, of barons or freeholders owning them), they admit the legality of past acts, whether of Henry, of Richard, or of John, in afforesting Crown lands, subject always to a saving clause in favour of freeholders in right of common of pasturage.2
Even if Henry III. had cordially co–operated with his barons to disafforest all tracts of ground afforested by Henry II. and his sons, difficulties of definition would still have made the task tedious. As it was, struggles to settle boundaries embittered the relations between Crown and Parliament, until the very close of Edward Plantagenet’s reign. Only the leading steps in the slow process by which the opposition triumphed need here be mentioned.
After the issue of Carta de foresta on 6th November, 1217,1 machinery was set in motion, in obedience to its terms, to ascertain the old boundaries and disafforest recent additions. The work of redress continued for some years, suffering no interruption from the issue of the new royal seal at Michaelmas, 1218.2 In face of many difficulties, only slow progress was possible. More strenuous efforts followed the reissue of the Charters on 11th February, 1225;3 for, five days later, justices were appointed to make new perambulations, which resulted in the disafforestation of wide tracts. Henry considered himself, and with some reason, unjustly treated by these justices, or by the local juries on whose verdicts they had relied. After he had proclaimed himself of age in January, 1227, he challenged their findings; and this has been misinterpreted as an attempt to annul the Forest Charter.4
Some of the knights who had perambulated the forests were persuaded or coerced into acknowledging that they had made mistakes; and, after further inquiry, Henry restored the wider bounds. His reactionary measures went on for two years; but thereafter the frontiers were fixed, in spite of many complaints, until strong pressure compelled Edward I. to reopen the whole question. Perambulations in 1277 and 1279 produced apparently no results. Renewed complaints were followed by new perambulations in 1299–1300, the reports of which were laid before a Parliament at Lincoln on 25th January, 1301. The King on 14th February confirmed the Forest Charter, and agreed to the reduced boundaries as defined by the most recent inquests. Edward had acted under constraint: on this plea he subsequently obtained from Pope Clement V. a bull, dated 29th December, 1305, revoking all concessions made at Lincoln.5 The Crown seemed thus to triumph once more; but the barons refused to accept defeat, forcing upon Edward II. the acceptance of the narrower bounds as defined at his father’s Parliament in 1301. This settlement was confirmed by statute in the first year of Edward III.1 and that King failed in all attempts to escape from its provisions. Thus the authoritative pronouncement made in 1301 by the Parliament of Lincoln furnished the basis on which the protracted controversy was finally determined.2
The further history of the forest boundaries may be told in a few sentences. No changes were made until the sixteenth century. When Henry VIII. afforested the districts surrounding Hampton Court in 1540, he did so by consent of Parliament, and on condition of compensating all who suffered damage. The same course was followed by Charles I. in creating the Forest of Richmond in 1634. Finally, as a result of attempts of the Stewarts to revive obsolete rights, a statute of the Long Parliament, reciting the Act of 1327, “ordained that the old perambulation of the forest in the time of King Edward the First should be thenceforth holden in like form as it was then ridden and bounded.”3
[3 ]Mention of these officers is made in c. 48. The phrase “in defence” is explained supra, pp. 301–3.
[1 ]Cf. supra, p. 147.
[2 ]G. J. Turner, Select Pleas of Forest, xciii., points out that although forests included open country as well as woods, yet Carta de foresta spoke only of “woods” in this connection.
[1 ]Cf. supra, p. 146.
[2 ]Cf. supra, p. 153, and see Select Pleas, xcv.
[3 ]Cf. supra, p. 154.
[4 ]Cf. Select Pleas, xcix.; and see also supra, p. 156.
[5 ]See Select Pleas, cv. Mr. Turner’s account of Edward’s conduct may be compared with the estimate of M. Bémont, Chartes, xlviii.
[1 ]1 Edward III., stat. 2, c. 1.
[2 ]See Select Pleas, cvi. There was one exception. On 26th December, 1327, Edward III. had to submit to further disafforestations in Surrey.
[3 ]16 Charles I. c. 16.