Bailiff shall hold Plea of Forest neither for Δ Greenhue nor Venison but every Forester in Fee shall make Attachments for Pleas of Forest as well for Greenhue as Venison and shall present them to the Verderors of the Provinces And when they be Inrolled and Inclosed under the Seals of the Verderors they shall be presented to our * Chief Justicers of our Forest when they shall come into those Parts to hold the Pleas of the Forest and before them they shall be determined And these Liberties of the Forest we have granted to all Men saving to Arch-Bishops Bishops Abbots Priors Earls Barons Knights and to other Persons as well Spiritual as Temporal Templars Hospitallers their Liberties and free Customes as well within the Forest as without and in Warrens and other places which they have had All these Liberties and Customes We c. as it is in the End of MAGNA CHARTA and We do confirm and ratify these gifts c. as you may see there too is specified c. Δ Greenhue Vert is whatsoever beareth green Leaf but especially of green and thick Coverts And Vert is of divers Kinds some that beareth Fruit that may serve as well for Food of Men as of Beasts as Pear-Trees Chesnut-Trees Apple-Trees Service-Trees Nut-Trees Crab-Trees c. and for the shelter and defence of the Game some called Haut-Bois serving for Fod and Browse of and for the Game and for the defence of them as Oakes Beeches c. some Haut-Bois for browse and shelter and defence only as Ashes Poplers c. Of Sub-Bois some for Browse and Food of the Game and for shelter and defence as Maples c. some for Browse and defence as Birch Sallow Willow c. some for shelter and defence only as Alder Elder c. Of Bushes and other Vegetables Some for Food and Shelter as the Haw-Thorn Black-Thorn c. Some for hiding and shelter as Brakes Gorss Heath c. To Sum up all Plantarum tria sunt genera Arberes Arborescentes Herbae Arbores as Haut-Bois and Sub-Bois Arborescentes as Bushes Brakes c. Herbae as Herbs and Weeds which albeit they be Green yet our legal Viridis Greenhue extendeth not to them Co. Instit 4. par fol. 317. * The Court of the Justice-Seat hath Jurisdiction to inquire hear and determine two things 1. All Trespasses within the Forest according to the Laws of the Forests 2. All the Claims of Franchises Privileges and Liberties within the Forest as to have Parks Warrens Vivaries to be quit of Assarts and Purprestures 21. H. 7.30 to out down his own Woods without View of the Forester c. likewife Claims of Leets Hundreds Felons Goods Waifs Strayes Fugitives and to kill Hares and other Beasts of Chase within the Forest or to have a Wood Infra Metas Forestae extra Regardum Forestae that is to be out of Jurisdiction of the Forest and other Franchises Privileges Liberties Immunities Freedomes c. within the Forest whereof excellent Matter is to be Read in the Eire of Pickering in 8. E. 3. Rot. 3.1 Co. 4. Inst fol. 291. This Chief Justice may by the Stat. 32. H. 8. c. 35. make his Deputy yet all the Writs of Summons Antient and Late are Coram the Justice Itinerant Aut ejas Deputato Before any Justice-Seat be holden the Regarders of the Forest must make their Regard by Force of the King 's Writ and the Regard is Obambitlare to go through and view the whole Forest and every Bailywick of the same Ad videndum inquirendum imbreviandum certificandum all the Trespasses in the Forest His Office extendeth through the whole Forest and every Part thereof to inquire of all offences concerning Vert and Venison and of all Concealments of any Offences or Defaults of the Foresters and all other Officers of the King's Forest He is a Ministerial Officer and is Constituted either by Letters-Patents of the King or by the chief-Chief-Justice at the Justice-Seat or to be chosen by Writ to the Sheriff id ibid. Before a Justice-Seat there ought to be preparations for the same to the end that good Service may be done there Et quod Itinera non sint umbratilia ibid sequent Note Kilway 150.6 V. 21. H. 7.22 30. Before Scroop and other Justices in Eire according to the Course of the common-Common-Law a Man Claimed to be quit of Pawnage of the King's Forest And also he Claimed in the same Forest Pawnage of his Tenant Pour Agistes And for that this belonged to the Justices of the Forest they would not meddle with it And the Reason of that is the Words of the Chapter Praesententur Capitalibus Justiciariis nostris de Foresta cum in partes illas venerint coram eis terminentur So as the Termination and Ending thereof belongeth to the Chief Justices of the Forest by the express Words of this Chapter and where it saith Coram Capitalibus Justiciariis nostris c. It is to be known That there is but one Chief Justice of the Forests on this side Trent and he is named Justiciarius itinerans Forestarum c. citra Trentam And there is another Capitalis Justiciarius and he is Justiciarius Itinerans omnium Forestarum c. Vltra Trentam who commonly is a Man of greater Dignity than Knowledge in the Laws of the Forest And therefore when Justice-Seats are to be Holden there be Associated to him such as the King shall appoint who together with him shall determine Omnia placita c. Forestae with a Patent of Si non omnes and a Writ de Admittendo c. And the Chief Justice of the Forest and these Associates are Capitales Justiciarii Forestae and named Capitales in respect of the Verderors and others that to some purposes have inferiour Judicial Places FINIS
A DECLARATION Of The LIBERTYES Of The English Nation Principally with respect to FORESTS LONDON Printed for Richard Janeway in Queen's head Ally in Pater-noster-Row 1681. A DECLARATION Of The LIBERTYES Of The English Nation c. MAgna Charta and Charta de Foresta being both made in the Ninth year of Henry the Third and confirmed in the Eight and twentieth of Edward the First do in effect Treat of the same matter and therefore both are called the great Charters of the Liberties of England Which Charters were put under the Great Seal and sent to Arhbishops Bishops and other men of the Clergy to be safely kept whereof one of them remains at this day with the Archbishop of Canterbury This was a great reach of Policy to have them well preserved and besides The same was entred on Record in a Parliament Roll. And afterwards King Edward the First by Act of Parliament did ordain that both these Charters should be sent under the Great Seal as well to the Justices of the Forest as to others and to all Sheriffs and to all other the Kings Officers and to all Cities through the Realm and that the same Charters should be sent to all the Cathedral Churches and that they should be read and published in every County four times a year in full County viz. the next County day after the Feast of St. Michael the next County day after Christmas after Easter and after the Feast of St. John Magna Charta and Charta de Foresta my Lord Coke calls two glorious Lights and truly so for they were adjudged in Parliament to be taken as the Common Law and the Law is the Light and Guide of Judges And albeit Judgments in the Kings Courts are of high regard in Law and Judica are accounted as Juris dicta yet it is provided by the same Act of Parliament that if any Judgment be given contrary to any of the points of either of the Charters by the Justices or by any other of the Kings Ministers c. it shall be undone and holden for nought because the Judgment is given against the Law And in such high Estimation have these two Charters been that they have been confirmed established and commanded to be put in Execution by two and thirty several Acts of Parliament Henry King of England sent greeting to all Archbishops Bishops c. who shall see the Charter of Forests that to the Honour of Almighty God c. they had given and granted to all Archbishops Bishops Abbots Priors Earls Barons and to all Freemen of the Realm of England their Liberties following to be kept in the Kingdom of England for ever CHAP. 1. That Woods shall be disafforested IMprimis we will that all Forrests which King Henry our Grandfather afforested shall be view'd by good and lawful men and if he hath afforested any other a Wood more then his own Demesne by which the owner of the Wood hath dammage it shall be forthwith disafforested and if he hath afforested his own Wood then it shall remain Forest saving the b Common of Herbage and of other things in the same Forest to them who before were accustomed to have the same 3 Bulstrode 213. Ockam cap. quid Regis Foresta saith Foresta est tuta ferarum Mansio non quarum libet sed silvestrium non quibuslibet in locis sed certis ad hoc idoneis unde Foresta E. mutata in O. quasi Feresta hoc est ferarum statio Co. Litt. Sect. 378. Fol. 233. a. Forests and Chases are not inclosed but a Park must be the Forest and Chase do differ in Offices and Laws every Forest is a Chase but every Chase is not a Forest A Subject may have a Forest by special grant of the King as the Duke of Lancaster and Abbot of Whitby had id ibid. A Forest consisteth of Eight things viz. Of Soil Covert Laws Courts Judges Officers Game and certain Bounds Co. Inst 4. Part. Fol. 289. Foresta est nomen collectivum and by the grant thereof the Soil Game and a free Chase doth pass id ibid. King John the 15 of June in the 18 year of his Reign at Kummigs-mead alias Kyme-mead between Stanes and Windsor granted the like Charter as Charta de Foresta is id ibid. a This is an Act of Restitution for if the King might have made a Forest in other Mens Woods then could not the Owner have fell'd down his own Woods without View and License sic ad damnum illius c. id Fol. 300. b Note all manner of Commons are saved CHAP. II. Who bound to the Summons of the Forrest MEn that dwell out of the Forest from henceforth shall not come before the Justicers of our Forest by common Summons except they be impleaded there or be Sureties for some others that were Attached for the Forest This Statute of Charta de Foresta ha … been above Thirty times and lastly in 4. Hen. 5. confirmed and enacted and commanded to be put in execution Co. Inst 4. Part. Fol. 303. And it is very observable that if any Act of Parliament hath been made against any of the Articles of the Statute of Carta de Foresta by the Act of Parliament of 42. E. 3. the same is made void and by the Statute of Confirmationes Cartarum in 25. E. 1. all Judgments given against any of the points of Carta de Foresta shall be holden for void CHAP. III. What Woods made Forest shall be disafforested ALL Woods that have been made Forest by King Richard our Uncle or by King John our Father untill our first Coronation shall be forthwith disafforested unless it be our Demesne Wood. Whereas Henry 2. Fitz Empress claim'd that he might make Forrests not only within his own Woods and Grounds but in the Woods and Grounds of his Subjects and thereupon made divers such Forrests within his own and other mens Woods and Grounds Whereupon some Readers and others that have followed them are of opinion that Henry 2. might de Jure do that which he did This Act of Charta de Foresta which is but a declaratory Law restoring the Subject to his former right is directly against that conceipt as you may see before in the first Chapter of it and to the same effect is this third Chapter Neither could Henry 2. or any other King have made or rais'd a free Chase Park or Warren for himself in any of the grounds of the Subjects for it is truly said in Plowdens Commentaries Lord Berkely's case Note fol. 236. that the Common Law hath so admeasured the Kings Prerogatives that they should not take away nor prejudice the Inheritance of any But we agree that all the Lands of the Subject are originally derived from the Crown And therefore when the Ancient Kings had the most part in their own hands or at least great Desarts Waste and Woody grounds for want of habitation they might make what Forests it pleased them therein which may be a
sorts of Officers and what Number do belong to a Forest you may be satisfied in by my Lord Coke's Recital of them as they are found in the Eire of Pickering The Foresters by this Chapter for keeping of the Forests are to be so many as shall reasonably seem sufficient for the same The Verderors are most commonly Four in every of the King's Forests They are Judicial Officers of the Forest and chosen in Full-County by force of the King 's Writ The Office of a Verderer is to observe and keep the Assizes or Laws of the Forest and to View Receive and Inroll the Attachments and Presentments of all manner of Trespasses of the Forest of Vert and Venison and to do equal Right and Justice as well to Poor as to Rich. All this and much more you may read in the Oath which he taketh before the Sheriff Co. Instit 4 par fol. 292 293. The Form of it you may see in Manwood's First Part of his forest-Forest-Laws pag. 51. You shall truly serve our Sovereign Lord the King in the Office of a Verderour of the Forest of P. You shall to the utmost of your Power and Knowledge do for the Profit of the King so far as it doth appertain unto you to do You shall preserve and maintain the Antient Rights and Franchises of his Crown You shall not conceal from his Majesty any Rights or Priviledges nor any Offence either in Vert or Venison or any other thing You shall not with-draw nor abridge any Defaults but shall endeavour your self to manifest and to Redress the same And if you cannot do that of your self you shall give Knowledge thereof unto the King or unto his Justice of the Forest You shall deal Indifferently with all the King's Liege People You shall Execute the Laws of the Forest and do equal Right and Justice as well unto the Poor as unto the Rich in that appertaineth unto your Office You shall not oppress any Person by colour thereof for any Reward Favour or Malice All these Things you shall to the uttermost of your Power observe and keep The Regardatores or Rangers are by this Chapter to be Twelve at the least but by the said Eire of Pickering it appeareth there may be more for there are there set down Thirteen by name Vid. Co. Instit 4 par fol. 311. The Agistors or Gist-takers are Four in Number within every Forest Their Office you shall see more of in the Nineth Chapter And There are several others which you may see in Manwood par 2. cap. 1. nu 4 5. together with their Offices too long here to be inserted Δ Scotales Scotale derived of two English words Scot and Ale as much as to say a Tribute or Contribution of Drinking for the Ministers of the Forest when they came to the House of any whereunto others are Contributory within the Perambulation of the Forest which then was called Potura a Drinking And after they claimed the same for all Victuals for Themselves their Servants Horses and Dogs which was called Putura And this doth notably appear by a Record in 5 E. 3. in these words Putura in Chacea de Bowland i. Consuetudo clamata per Forestarios aliquando per Ballivos hundredorum recipere Victualia tam pro seipsis hominibus equis canibus de tenentibus inhabitantibus infra Perambulationem Forestae seu hundredi quando eò pervenerint nihil inde solvend And whereas it is enacted by the Statute 25 E. 3. c. 7. above-mentioned That no Forester or Keeper of Forest or Chase c. shall make or gather Sustenance c. against any Man's Will c. but that which is due of Old Right that is those Fees which time out of mind they ought to have within that Forest and as shall appear to be due by the Oaths of Twelve Regarders or Rangers Co. Instit 4 par fol. 307. CHAP. VIII When Swanimotes are to be kept and who to Repair to them NO Swanimote from hence-forth shall be kept within this our Realm but thrice in the Year viz. in the Beginning of Fifteen Dayes afore Michaelmass when that our Gest-takers or Walkers of our Woods come together to take Agistment in our Demesne Woods and about the Feast of Saint Martin in the Winter when that out Gest-takers shall receive our Pawnage And to these two Swanimotes shall come together our Foresters Verderors Gest-takers and none other by Distress And the Third Swanimote shall be kept in the Beginning of Fifteen Dayes before the Feast of Saint John Baptist when that our Gest-takers do meet to Hunt our Deer And at this Swanimote shall meet our Foresters Verderors and none other by Distress Moreover every Forty Dayes through the Year our Foresters and Verderors shall meet to see the Attachments of the Forest as well for Δ Greenhue as for Hunting by the Presentment of the same Foresters and before them Attached And the said Swanimotes shall not be kept but within the Counties wherein they have used to be kept Within every Forest there are these Courts First The Court of the Attachments or the Wood-mote Court This is to be kept before the Verderors every Forty Dayes throughout the Year and thereupon is called The Forty-day Court At this Court the Foresters bring in the Attachments de Viridi Venatione and the Presentment thereof and the Verderors do receive the same and inroll them But this Court can only Enquire and not Convict But it is to be observed that no Man ought to be attached by his Body for Vert or Venison unless he be taken with the Manner within the Forest otherwise the Attachment must be by his Goods Secondly 2 C. The Court of Regard or Survey of Dogs to be Holden every Third Year for Expeditation as before has been said Thirdly 3 C. The Court of Swanimote which is to be Holden before the Verderors as Judges by the Steward of the Swanimote thrice in the Year and the Foresters ought to present their Attachments at the next Swanimote-Court and the Freeholders within the Forest are to appear at the Swanimote to make Enquests and Juries And this Court may enquire de Superoneratione Forestariorum aliorum Ministrorum Forestae de corum oppressionibus populo nostro illatis And this Court may not only Enquire but Convict also but not give Judgment Vid. 1 E. 3. ca. 8.50 E. 3. Assiz 442. Co. Instit 4 par f. 289. Swanimote is derived of Swein that is Saxonicè Minister and Mote or Gemote which is Curia i. e. Curia Ministrorum Forestae so called because it is but a Preparative for the Justice-Seat a. Ordinat Forestae 34 Ed. 1. cap. 4. id ibid. For the Jurisdiction of this Court there is a Notable Case in 45 E. 3. in a Writ of Trespass of False Imprisonment brought against J. de W. the Defendant said he is Forester in fee of the Forest and that at a certain Swanimote it
was presented by the Foresters Verderors Regarders and Agistors that the Plaintiff had chased and taken Deer within the Forest Whereupon the Defendant being Forester in Fee came to the Plaintiff and pray'd him to find Pledges to answer the same before the Justice in Eire in this Country that is at the Justice-Seat and that to do the Plaintiff refused by force whereof he retain'd him until he had performed the Statute in that Case provided and justifyed the Imprisonment The Plaintiff replyed De son tort Demesne sans tiel cause and the Issue was received by the Court. And it was said That before the Justice in Eire he should have no Averment against the Presentment of the Foresters id f. 290. Hence are Six Conclusions observable First That the Law of the Forest is allow'd and bounded by the Common-Laws of this Realm Secondly That though the Verderors be Judges of the Swanimote and the Steward but a Minister yet the Presentment in that Court is as well by them as Verderors as by Foresters or Keepers Regarders and Agistors by the Law of the Forest Thirdly That a Forester or Keeper may Arrest any Man that Kills or Chaseth any Deer within the Forest when he is taken with the Manner within the Forest or if the Offendor be Indicted If a Man be so Imprisoned and after offer sufficient Pledges and they are not taken seeing Justice-Seats for Forests are very seldom Holden this is his Remedy In the Term-time he may have Ex merito Justitiae a Habeas Corpus out of the King 's Bench or if he have Priviledge out of the Court of Common-Pleas or of the Exchecquer or out of the Chancery without any Priviledge in Term or out of Term in time of Vacation and upon the Return of the Writ may be Bailed to appear at the next Eire to be Holden for the Forest c. and also may be Bailed by a Writ de Homine Replegiando directed Custodi Forestae if he be Arrested by the Officers of the Forest for Hunting c. whereof he stands Indicted or Presented taken with the Manner he finding Twelve Pledges But if he be adjudged by the Justices in Eire and Imprison'd he can't be Bailed by that Writ If he be unjustly proceeded against he hath there Remedy by Law Note a Difference between the Writ de Homine Replegiando directed to the Sheriff for he cannot by Stat. West 1. cap. 15. Replevy any Man imprisoned for the Forest being taken with the Manner or Indicted But this Statute reaches not to that of de Homine Replegiando directed Custodi Forestae Fourthly That the Offendor may be Retained by him until he hath found Pledges to appear before the Justice in Eire because as hath been said the Swanimote-Court hath no Power of Judicature But if sufficient Sureties be offered he ought not to be Imprisoned Fifthly The Justice in Eire at his Sessions may by the Law of the Forest proceed upon the Presentments or Verdicts in the Swanimote-Court though they are taken in another Court And Lastly Note The Issue joined upon the Plea of the Forester viz. De injuria sua propria absque tali causa and allowed by the Court and the Consequent thereupon Note also That if at the Swanimote the Presentment of the Foresters be found true by the Jury concerning Vert or Venison the Offendor standeth thereof Convict in Law and cannot Traverse the same But an Indictment or Presentment before the Chief-Justice of the Forest 21 E. 3.48 at a Court of the Justice-Seat by a Jury and not found in the Swanimote may be Traversed 8 E. 3. Itinere Pickering 147. a. because it is not Presented but by one Jury Co. Instit 4 par 290 291. There is also the Court of the Justice-Seat 4 C. holden before the Chief Justice of the Forest aptly called Justice in Eire for so he is and hath Authority and Jurisdiction to Hear and Determine concerning Vert and Venison c. by force of Letters Patents under the Great Seal whereof there are Two One for the Forest on this side of Trent the Other beyond Id. 291. The Court of the Justice-Seat can be kept but every Third Year and other Justices in Eire kept their Courts every Seventh Year And it must be Summoned Forty dayes at least before the Sitting thereof And one Writ of Summons is to be directed to the Sheriff of the County Id. Ibid. There is another Writ of Summons directed Custodi Forestae c. And this consists of Two Parts 1. To summon all the Officers of the Forest to bring with them all Records c. 2. All Persons who claim any Liberties or Franchises within the Forest c. to shew how they claim the same Id. Ibid. More of this shall be said in the Sixteenth Chapter Δ Greenhue is Vert and signifieth in the Laws of the Forest Every thing that doth Grow and bear Green Leaf within the Forest that may cover and hide a Deer Manwood 2 par Forest-Laws fol. 6. a. fol. 33. b. Vert is divided into General and Special Vert General is as above Defined Special is every Tree and Bush within the Forest to Feed the Deer withal as Pear-Trees Crab-Trees Hauthorns Black-Bush and the like And the reason of this Name is because the Offence of destroying such Vert is more highly punished than any other according to the Quantity thereof See more C. 16. Mensis Vetitus Fence-Month or Defence-Month so called because it is the Fawning-Month when the Does have Fawnes for the Preservation whereof they ought to be Fenced and Defended from Hurt and Disquiet It contains a Kalendar-Month of One and Thirty Dayes and begins the Fifteenth Day before Mid-Summer in the beginning whereof a Swanimote is to be holden and endeth Fifteen Dayes after as you may see by this Chapter The Third Swanimote to be kept in the beginning of Fifteen Dayes ante Festum Sancti Johannis Baptistae quando Agistatores nostri conveniunt pra * Faonatione seu Feonatione bestiarum Nostrarum Co. Instit 4 par fol. 313. In the Printed Book it is Venatione which ought to be amended and made Faonatione or Feonatione which signifieth the Fawning This word Faonatio or Feonatio is derived of the French word Faonier i. e. to Fawn or for Does to bring forth Id. ibid. CHAP. IX Who to take Agistment and Pawnage in Forests EVery Free-Man may Agist his own Wood within Our Forest at his Pleasure and shall take his □ Pawnage Also We do grant That every Free-Man may drive his Swine freely without Impediment through our Demesne Woods to Agist them in their own Woods or where else they will And if the Swine of any Free-Man lie one Night within our Forest there shall be no Occasion taken thereof whereby he may lose any thing of his own Agistator so called because he taketh Beasts to Agistment that is to Depasture within the Forest or to Feed upon the Pawnage and cometh of the