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
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-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
French Word Geyser i. e. to Lie because the Beasts that Feed there are there Levant and Couchant Lying and Rising Co. Instit 4 par fol. 293. Agistment is properly the Common of Herbage of any kind of Ground or Land or Woods or the Money due for the same Mr. Manwood par prior of his forest-Forest-Laws This Officer is Constituted by the King's Letters Patents And of these in such Forests where there is any Pawnage there be Four in Number Co. ibid. There Office consisteth in these Four Points 1. In Agistando 2. Recipiendo 3. Imbreviando 4. Et Certificando ibid. □ Pawnage Pannagium aliàs Pasnagium or Pennagium as it is Latined in Pupilla Oculi may be thought to come of the French Panez or Panets which is a Root muchwhat like to a Parsnip but less and ranker in Taste which Hogs do there Feed upon though it be Eaten by Men also It signifieth in our Common-Law the Money taken by the Agistors for the Feed of Hogs with the Mast of the King's Forest Cromp. Jurisd fol. 155. Mr. Manwood par prior of his Forest-Laws saith Pawnage is most properly the Mast of the Woods or Lands or Hedge-Rowes or the Money due to the Owners of the same for it Mr. Skene de Verbor Signif calleth it Pannagium and defineth it to be the Duty given to the King for the Pasturage of Swine in the Forest Quietum esse de Pannagio i. e. to be quit to pay any thing for Pawnage Vid. F. N. B. p. 230. CHAP. X. The Punishment for Killing the King's Deer NO Man from henceforth shall lose either Life or Member for Killing of Our Deer But if any Man be ☉ Taken and Convict for Taking of Our Venison he shall make a Grievous Fine if he have any thing whereof And if he have nothing to lose he shall be Imprisoned a Year and a Day And after the Year and the Day is expired if he can find sufficient Sureties he shall be Delivered and if not he shall Abjure the Realm of England Stat. 1. Ed. 3.8 Sess 1. Stat. 1. H. 7.7 Register fol. 80. In this and in other Chapters of this Statute Venatio signifieth Venison as in the Eighth and Sixteenth It is called Venison of the Mean whereby the Beasts are taken Quoniam ex Venatione Capiuntur and being Hunted are most Wholesome They are called Beasts of Venary not Venery as some term it because they are gotten by Hunting Ordinatio Forestae cap. 15. Co. Instit 4 par fol. 316. There be many Beasts of the Forest by the Laws of the Forests of England The Hart in Summer the Hinde in Winter and all that proceed as of them The Buck in Summer the Doe in Winter and the Proceed of them The Hare Male and Female and their Proceed The Wild-Boar Male and Female and their Proceed And the Wolf Male and Female and their Proceed The Martin Male and Female The Roe is no Beast of the Forest but it is a Beast of Chase and so it was resolved by the Justices and the King's Councel That Capreoli non sunt Bestiae de Foresta And this was the Reason of it eò quod fugant alias feras Hill 13 E. 3. coram Rege in Thesaur Co. Litt. Sect. 378. fol. 233. a. The Proceeds of the Hart and Hinde The Male the First Year a Calf the Second a Brocket the Third a Spayad the Fourth a Staggard the Fifth a Stagg the Sixth a Hart and so after The Female the First Year a Calf the Second a Brocket's Sister and the Third Year a Hinde Co. Instit 4 par fol. 316. The Proceeds of the Buck and Doe The First Year a Fawn the Second Year a Pricket the Third Year a Sorel the Fourth a Sore the Fifth a Buck of the First Head the Sixth a Great Buck. ibid. The Proceeds of the Hare The First Year a Leveret the Second Year a Hare the Third a Great Hare Of a Wild-Boar A Pigg a Hogg a Hogg-Stear a Boar and after a Sanglier The Seasons by the Law of the Forest for the Beasts of the Forest are these Of the Hart and the Buck beginneth at the Feast of St. John Baptist and endeth at Holy Rood-Day Of the Hinde and Doe beginneth at Holy-Rood and continueth till Candlemass Of the Fox at Christmass and continueth till the Twenty Fifth of March. Of the Hare at Michaelmass and lasteth till Mid-Summer Of the Boar from Christmass till Candlemass id ibid. ☉ Taken Taken with the Mayneer à Manu is in four kinds viz. Dog-draw that is Drawing after a Deer which he hath hurt Stable-stand viz At his Standing with any Knife Gun or Bow or close with Grey-Hounds in his Leash ready to Shoot or Course Back-bear Bracton lib. 3. fol. 32. that is Carrying away the Deer which he Killed Bloody-hand i. e. When he hath Shot or Coursed and is imbrued with Blood id fol. 294. If the King or other Lord do Pardon a Trespass in a Forest and the Offendor at a Justice-Seat by his Learned Councel plead the same in the Proceeding thereupon we do observe Two things 1. That by the Law of the Forest before any Allowance thereof the Justices charge the Ministers of the Forest to enquire whether the Delinquent hath done any Trespass in Vert or Venison after the Date of the Pardon 2. When the Pardon is allowed then the Entry is Quod invenit manucaptores quod à modo non forisfac ' i. non Delinqueret aut peccaret But if an Offendor be Convicted for Trespass in the Forest in Hunting c. and adjudged to be Fined or Imprisoned which Fine though it be paid yet shall he find Sureties for his good Abearing c. in these words Quod à modo se bene geret in Foresta praedicta non forisfac ' i. non Delinqueret seu peccaret Vnde forisfactura pro delicto idem fol. 313. CHAP. XI A Nobleman may Kill a Deer in a Forest WHatsoever Arch-Bishop Bishop Earl or Baron coming to Us at Our Commandment passing by our Forest it shall be Lawful for him to Take and Kill one or two of our Deer by View of our Forester if he be present or else he shall cause one to blow a Horn for him that he seem not to Steal Our Deer And they shall do so likewise in their Return from Us as it is aforesaid We find not any Chapter or Article of this Charta de Foresta doth extend to Chases or Parks but only this Eleventh Chapter Quicunque Archiepiscopus Episcopus Comes vel Baro ad mandatum nostrum transierit per Forestam nostram c. which doth not only extend to the Forests of the King but to His Chases and Parks also For so was the Law before the Making of this Act which is but in Affirmance of the Common-Law of the Forest before this Act. Co. Instit 4 par fol. 308. First In respect of the Persons For every Lord of Parliament be he Spiritual or