8

EXPLANATORY NOTES

ON THE

Charters of the Forests.

HE copy of the Forest Charter which occupies the preceding pages, is interesting, not only as having been the very earliest granted by a Sovereign of the Norman line, but also on account of its recent recovery, after Sir William Blackstone, nearly seventy years since, supposed that all traces of it were irretrievably lost. His reasons for assigning a priority to this edition, rather than to the supposititious one which Matthew Paris attributes to King John, having been already mentioned on pages 37, 38, 237, 238; it may firstly be observed, in illustrating its contents, that there are but few variations between this instrument and the later Inspeximus usually printed in the Statute Books,, which is, in general, either that granted in the 9th of Henry III., 1224; the Inspeximus of the 25th of Edward I., 1297; or his last Confirmation issued in 1299, the 28th year of his reign concerning which, vide the preceding Essay, pages 38-46. The more important additions, however, will be sufficiently distinguished by referring to them in the present Notes, though they are much less copious than those on the Great Charters, which form the principal subject of this volume.

As the arrangement of the Introduction of this Charter is very similar to that of Magna Charta, the Reader is referred to page 160 for some remarks on the opening of that instrument. It may be observed, however, that the address of the Second Forest Charter of Henry III. granted in 1224,

has the words "to all his faithful subjects who shall see this Charter," which certainly allude to the extensive dispersion of it by Commissioners, who carried copies into every County to enforce its execution: and they may also have a latent reference to the private issuing of the First Charter, the circulation of which was probably much more limited: these words were also first inserted in the Magna Charta published in 1217: vide page 118. Another variation, which is likewise common to both instruments, is the declaration that the Charters were granted by the King spontaneously and of his own free will, instead of by the advice of Cardinal Gualo, the Earl of Pembroke, and his Council. This difference will, perhaps, be most particularly remarked by comparing the First and Second Charters of Henry III. with his famous third one, issued after Honorious III. declared him of full age, when the Barons suspected that he would recall the liberties he had granted them about seven years before. Vide pages 106, 119, 132; and 38 in the preceding Essay.

The intent of these Chapters of the Forest Charter being to take away the illegal extension of the Royal Woods, it will be proper to introduce them by some account of their history and boundaries, that the nature and value of these clauses may be more perfectly understood.

The greater part of Britain originally consisted of Woods filled with wild animals, which were gradually cleared as the land became inhabited and dwellings were erected; the beasts retiring to those coverts which were still left standing, and lay remote from human habitations. The Saxons called these large remains of Forest-lands, Wealds or Wolds, signifying Woods; which term is still used to express the woody parts of a County, as in the instances of Kent and Sussex. For some time these coverts sheltered great numbers of wolves and foxes, but the former having been destroyed by King Edgar, between the years 961 and 964, and the other ravening animals being also reduced, the remainder were preserved as beasts of chase or luxurious food, whence originated the first protection of

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certain places for their residence, which were afterwards( constituted Royal Forests. Even in the times of the Saxon Heptarchy, however, about four centuries previous, it is supposed that Forests were appropriated by all the inferior Princes of Britain; and that when one Sovereign took possession of the throne, he also became lord of the numerous Woods which lay scattered over the whole country. The first authentic notices of the Royal Limits of Forests, occur in the Constitutions, or Charter of Canute, made in a National Assembly at Winchester, in the year 1016, Articles 27, 31, 33; but the antiquity of the English Forests is so remote, that there is no record of their original establishment, though they are repeatedly mentioned in ancient authors and statutes. The New Forest in Hampshire, made by William I., and the Forest of Hampton Court, erected in 1539, the 31st of Henry VIII., are the only two of which there is any authentic history; and even many of the additions made to the former, appear to have been on the borders of an anterior Forest, called Ytene. To these ancient Forests, however, several of the early Sovereigns of England made large additions, both for preserving of the game, and increasing their sport and jurisdiction; though such extensions were particularly oppressive to those who resided in their vicinity, not only by the spoliation of their property, but by the enlarged spread of the Forest-Laws, and the vexatious influence of their peculiar officers. These ancient additions of Wood-lands were so great, that it has been computed that nearly 17,000 acres were afforested in Hampshire, between the reigns of Edward the Confessor and William I.; by which a piece of land, amounting under the former Sovereign to £363 19s. 10d., was reduced under the latter to £129. In extenuation of this oppressive practice it may be observed, that anciently a King of England could seldom divert himself by reading, or the encouragement of the more elegant arts; and, as he could not converse with common society, his principal recreation was removing his Court from one palace to another, each being surrounded by a vast Forest for the chase, which, in the view of a sportsman, could never be too spacious, whilst at the same time it was

supposed that large uncultivated tracts contributed to magnificence. To reduce the Royal Forests, however, to their ancient limits, and give back all the common rights of their tenants, is the purpose of the above Chapters of the preceding instrument; which, like the Charters of Liberties, is only declarative and restoring, neither giving any new freedom, nor conferring any additional privileges.

Such, then, having been the causes of extension in the English Forests, it will next be proper to give a few particulars of their legal establishment and limits, as well as of the proceedings for disforesting them according to the ordinances of the Charta Foresta.

The word Forest is said to be derived from the Latin words Fera statio, an abode for wild animals, and should properly consist of eight principal features, as Soil, Covert, Laws, Courts, Judges, Officers, Game, and Bounds; a slight explanation of which will materially elucidate the provisions of the foregoing Charter. For the Soil, then, a Forest is a certain territory of woody grounds and fertile pastures to shelter and feed the deer, which could be established only in places naturally fitted for their formation. The Coverts of a Forest technically signify, thickets full of trees touching each other, those places wherein they are scattered and stand apart, being only termed Woods; and the importance of preserving these Coverts is esteemed so great, that even the Chief Justice of the Forests cannot license a tenant cutting his own Woods, unless there be enough left to shelter the wild animals. His license, also, extends only to felling, not to destroying these Woods, since the springs must be left in the ground that they may grow to be Coverts again : these retreats are called Coverts of Vert, which include every thing bearing of green leaves in a Forest. The Forest Laws, Courts, Judges, and Officers, will be explained in the subsequent Notes on this Charter; but it may be noticed that they are all peculiar, belonging to no other place, and that Forests differ from all other places since they are governed by laws, &c. of their own. The object of this constitution is the preservation of the place, the Vert, and the Venison; under which term is included all the Game

belonging to Forests; which consists of wild beasts and fowls of Forest, as the Hart, Hind, and Hare; of Chase, as the Buck, Doe, and Fox; and of Warren, as the Rabbit, Pheasant, and Partridge. It is the distinguishing mark of a Forest from all other Woods, that these animals are priviledged to reside in it under the King's protection for his delight and recreation; but though no other creatures are protected in it by royal authority, no person may presume to hunt or hawk there without license from the Sovereign, or the Chief Justice in Eyre. Strictly speaking, a Forest must always be provided with beasts of chase, for when there are no animals to shelter, it is no Forest, and the tenants may fell their Woods, destroy their Coverts, and convert their pastures into arable land, which otherwise cannot be done without special license. Lastly, the Bounds of a Forest are irremoveable Marks, or objects ascending in height, which mark its extent, as a tower or tree; Meers, or the distance between the Forest, and the land of other men, whereon a mark is placed; and other boundaries known either by prescription or matter of record: these surround a circuit of woodland which has a liberty within itself, and lies open, though it may contain several enclosures, and many persons hold property within it. These boundaries shew how a Forest is known from other lands, for though it remain open, it is as securely enclosed by them as by a stone wall.

Such are the limits and characteristics of a Forest, the ancient manner of establishing which, was by the King issuing a Commission in Chancery under the Great Seal, directed to certain persons, declaring his intention of making one in a certain place and County, commanding them to perambulate and view it within a compass of so many miles, and to bound and meet off so much as they should consider sufficient, surrounding it with boundaries that he might know it; all which proceedings were to be certified to the Court of Chancery before an appointed day. The ground being viewed, and a proper extent of territory considered, the perambulation was made and boundaries fixed of bridges, rivers, hills, highways, and, sometimes,