to do profitable labours by the discrecions of the driuers aforesaid or of the more number of them Vnprofitable beastes to be killed than the same driuer or driuers shall cause the same vnprofitable beastes and euery of them to be killed the bodies of them to be buried in the ground or otherwise bestowed as no noyance therby shal com or grow to the people there néere inhabiting or thither resorting And it is c. that the Iustices of peace in euery shire ridyng and other place in their quarter sessions to be kept and holden by vertue of the kings commission of the peace to them directed and al stewardes of letes lawdaies in the same letes lawdaies shall haue authority by this acte to enquire of all defaultes contempts omissions and offences contrary to the effects aboue written and euery of them And all presentments thereof to be found in any of the said letes and lawdayes shall be certified by the stewarde or deputie steward or courtholder of the same lete or lawdaye in the next generall sessions of the peace to bee holden in the Countie where such presentment shal bee found or had or vnto the Custos Rotulorum of the same Shire within fourty dayes next after that presentment made which Iustices of peace in their quarter Sessions of the peare shall haue power and authoritie by this acte to heare and determine euery such presentment before themselues found or in any of the saide letes or lawdaies to be presented and certified as is aforesaide as well by examination as otherwise and if any such steward deputie steward or courtholder aforesaid inbesyl or conceal any such presentment or do not certifie the same as is afore written euery of them so offending shall forfait and lose for euery such offence xl.s. the one half of euery such forfeiture and of euery other of the forfeytures afore written to be to the king and the other halfe to the person or persons that will sue for the same before the said iustices of peace in their said quarter sessions by byl or information which Iustices shall haue full power and authoritie by vertue of this act to heare and determine euery such offence aswel by examinacion as otherwise as is before mencioned And be it further enacted by the authoritie aforesaide that no person or persons after the feast of saint Michael the archangell next comming shall haue or put to pasture any horse gelding or mare infected with scabbe or maunge in to or vpon any of the said forestschases moores marishes hethes commons wast groundes or common fieldes vpon paine to forfait for euery horse gelding or mare so infect pasturing in any of the said groundes ten shillings which offence shal be inquirable and presentable before the stewarde in euery lete as other common annoysance be And the forfeiture therefore to be to the Lord of the same lete where the saide offences shall be presented Prouided alway that this act or any thing therein contained shall not extend nor be preiudicall to any person or persons hauing any stoned horse or horses vnder the heightes altitudes aboue mentioned for or cōcerning the hauing or putting any of the saide horses to féeding in or vpon any cōmon or other waste grounds where any mares or fillies be not vsed nor suffered to be fed pastured or kept An. 32. H. 8. cap. 13. Assia de Woodstock ANd note that by the Lawes and statutes of the forest called the statutes of Woodstocke no forester shall walke or make any attachment for matters of the forest except he be a forester sworne for the wordes are these Nec aliquis aliqem attachiat nisi sit forestarius Iuratus that is to say neyther shall any forester attache another man but he that is a forester swarne And also it appeareth by some statutes that no man ought to remaine and abide within the forest being of the age of xii yeres and vpwards but he ought also to be sworne to be trewe vnto the Quéenes Maiesties game of the forest for the wordes are these Omnes etatis duodecem annorum manens in foresta pacem venationis sue Iurent Et clerici laicum feodum tenentes pacem eius Iurent which is that euery man of the age of xii yeares shall sweare the peace of hunting of the beastes of the forest and also Clergimen hauing Lay fée shall likewise sweare the peace of the Quéenes Maiesties wilde beastes of the forest And now for as much as it appeareth by those Lawes that the Inhabitantes and dwellers within the forestes ought to be sworne to bee of good behauior towardes her Maiesties game much more then ought those that are officers of the forest as verderors Foresters Woodwardes and Raungers which haue charge of her Maiesties game especially to be sworne for otherwise by collour of their office they might spoyle her Maiesties game and destroy the same wherefore to the end that those othes may the better be administred vnto such officers by those that haue authoritie thereunto and likewise obserued and kept by them that are compellable by the Lawes of the forest to take the same I haue collected their seuerall othes out of the auncient presidence of forest Lawes and set them downe as hereafter followeth The othes of the seuerall officers of the Forest The othe of a Woodward YOw shall trewly Execute the office of a Woodward of B. Woodes within the forest of W. so long as you shal be woodwarde their you shall not conceale any offence either in Vert or Venison that shal be cōmitted or don within your charge but you shall trewly present the same without any fauoure affection or rewarde And if you do see or know any malefactours or do finde any Déere killed or hurt you shall fourthwith do the Verderors to vnderstand thereof And you shall present the same at the next Court of the forest be it Swanimote or Court of attachments so helpe you God The othe of a Raunger of the Forest YOw shall trewly Execute the office of a Raunger in the purliewes of B. vpon the Borders of the kings forest of W. You shall rechase and with your hound driue backe againe the wilde beastes of the forest as often as they shall raunge out of the same forest into your Purliewes You shall trewly present al vnlawfull hunting and hunters of wild beastes of venerie aswell within the purliewes as within the forest And those and all other offences you shall present at the kinges next Court of Attachementes or Swanimote which shal first happen so helpe you God The othe of a Forester or vnderkeeper in the Forest YOw shall trewly Execute the office of a forester or kéeper of the kinges wilde beastes in the walke called P. within this forest of W. Yon shal be of good behauior your selfe towardes his Maiesties wild beasts the vert of the same forest Yow shal not conceale the offence of any other person either in
shall haue for euery yeare one Horse one Iaueline one shilde and iii. li in Money 8 And euery one of the saide seruile persons shall haue for euery yéere one Iaueline one Crosbowe and xv shillings of money 9 Let aswell all the saide foure cheefe men as also the saide meane men and the foresaide seruile officers be exempted and discharged from paying of any tribute also fréed and aquited from al prouincial sommons and popular plees which Englishmen do cal Hundred laghe and also from all charges of Armoure which Englishmen do call Warscot and also from forein sutes 10 The causes offences of these meane men seruile persons the correction of them as wel such causes offences as are Criminall as thosé that are Ciuil shal be adiudged decided by the prouident wisdome and discretion of those foure chéefe men but the offences of those foure chéefe men if any shal fortune to be lest that any haynous offence should remaine vnreuenged Wee our owne selfes shal punish the same in our Royall displeasure 11 These foure cheefe men shall haue one Roial authoritie sauing vnto vs our owne Roial presence and foure times in the yéere they shall keepe theire generall Sessions or Plées of the Forest all forfeitures as well of Vert as of Venison which Englishmen do call Much-hunt where they shall hold Plee of any matter concerning the Forest And they shall proceede to a thrée folde Iudgement which Englishmen do call of Gangfardell and this thréefolde Iudgement is thus to be had Hee that is accused must take with him selfe fiue other persons and himselfe must be the sixt person and so in swearing he shal haue a thréefold Iudgement or thréefolde oath But for any person to haue his triall or purgation by Fier is in no wise to be allowed or admitted except it be where the manifest trueth cannot otherwise be found out 12 But a fréeman which Englishmen call Pegen hauing his offence depending although he bee not within the compasse of the Seas yet hee may haue a trustie or faithfull friend that may sweare his oath for him which Englishmen call Foreath but if he haue not such a trustie man to sweare for him he him selfe shall sweare the oath neither shall he be pardoned for any oath 13 If a straunger or pilgrime which hath come from a far Contrey be accused of the offence of the Forest and his pouerty is such that he cannot haue a Pledge such as he ought to haue at the first accusation no Englishman may adiudge him therof then he must indure the Kinges imprisonment and there remaine vntill he may procéed forward to iudgement of the Iron and Water And yet notwithstanding if any person do hurt vnto him that is such a straunger or pilgrime comming from a far Countrey if those foure cheefe men shal determine any iudgement against the same stranger the same Iudgement shall be vnto him that did hurte the same straunger 14 Whosoeuer shall beare false witnes before my said foure cheefe men of the Forest shal be conuicted thereof afterwardes he is not worthy any more to be allowed a witnes or to beare any witnes for because he hath lost his ability therin for that offēce he shal paie vnto the King ten shillinges which the Danes do call Halfeshang alias Halshang 15 If any man shall offer any force to my said cheefe men of my Forest if he be a fréeman that shal so offend he shall lose his libertie or fréedome and all that he hath but if he be a bondman then his right hand shal be cutt 16 But if either of them shall offend againe then he shal be adiudged gilty of death for the same 17 But if any man shall contend in sute with any one of our cheefe men aforesaide against him then he shall make recompence for the same to the King according to the worth of him selfe which Englishmen do call Pere et Pite and also shall paie vnto our cheefe man for the same fourty shillinges 18 If any man shall breake the peace of the King in the presence of our meane men of the Forest aforesaide which Englishmen do call Geth-brech he shal yéeld recompence to the King for the same ten shillinges 19 If any of our meane men aforesaid with his wrath shall strike any man let him make such recompence to the King for the same as was acustomed to be made to me for the killing of a roial wilde beast 20 If any man be taken offending in our Forest it is conuenient for him to be punished according to the maner and kind of his offence 21. The punishment of a fréeman whom the Danes do call Eldermen shal not be one and the selfe same punishment of a man that is seruile or not frée Of a seruant and a maister Of a man that is knowen and of him that is not knowen Nor the punishment of Criminall causes of Ciuil causes shal be one and the self same Nor of wilde beasts of the Forest royall wild beasts nor the destroying of Vert of Venison For the offence of Venison or hunting not vnworthely haue bene accounted amongest the greatest offences of the Forest euen of auncient time But the offence of Vert except it be for the breach of our Roiall frée chace it is so little and of so smal an account that this our Constitution or Law doth scantly respect the same Yet notwithstanding he that shall offend in this offence let him be accounted gilty of an offence of the Forest 22 If any fréeman shall chase away a Dere or a wilde beast out of the Forest whether the same were done by chaunce or of a set purpose so that thereby the wilde beast is forced by swift running to lyll out the tong or to breath with his tong out of his mouth he shall paie to the King ten shillings for amends for the same offence but if he be a seruile person then he shall double the same recompence but if he be a bondman then he shall lose his Skinne 23 But if any of these men shall kill a wilde beast of the Forest let him paie double recompence for the same and also let him paie besides euen to the vttermost valew that he is worth and he shal be accounted as an offender against the King 24 But if either of them shall chase a Roiall wilde beaste of the Forest which Englishmen doe call a Stagon and thereby shall force him to hang out the tounge with swifte running then the one of them which is a fréeman shall lose his naturall libertie for one whole yéere and the other of them that is not a fréeman shall lose his naturall libertie for two whole yeeres But if he be a bondman then afterwards hee shall bee taken for an out-law which Englishmen do call Frendlesman 25 But if a freeman shall slea a wilde beaste he shall lose the defence of his libertie but if he be
incontinently deliuer such persons indicted to mainprise without taking any thing then the plaintife shall haue a writ out of the Chauncery to the shirife to attach the said warden to be before the king at a certaine day to aunswerer wherefore he hath not repleuied him that is so taken And the Shirife the verderors being claled to him shall deliuer him that is so taken by good mainprise in the presence of the verderors and shall deliuer the names of the mainpernors to the same Verderors to answere in the eire of the Iustices And if the chiefe warden be therof attainted the plaintife shall recouer his treble dammages and the said Warden to be committed to prison and raunsomed at the kings will And from hencefoorth it shal be written to them as to the chiefe Wardens of the forest because they may not be Iustices nor to haue any Record Anno 1. E. 3. cap. 8. Stat. 1. 25 No forester nor kéeper of forest or chase nor none other minister shall make or gather sustenance nor none other gathering of vitailes nor other thing by colour of their office against any mans will within their bailiwike nor without but that that is due of auncient right Anno. 25. E. 3. cap. 7. Stat. 5. 26 No maner of Iurie shall be from henceforth compelled by any minister of the forest to trauell from place to place out of the places where their charge is giuen to them against their grée nor by malyce nor by manace The verdict to be giuen vp where the charge is giuen them or other duresse constrained to say their verdict of a trespas done in the Forest otherwise than their conscience will cleerely informe them but they shall say their verdicts vpon their charge in the places where the charge is giuen them as aboue is saide Anno. 7. R. 2. cap. 3. 27 That no man be taken nor prisoned by any minister of the forest without due indictment or by manouerie or trespassing in the forest or els wher nor shal not be constrained to make any obligation or raunsome to any minister of the forest by any maner against their grée and the assise of the forest And if any do against this ordinance in any point and thereof be attainted he shall pay to the partie damnified their double dammages and fine and raunsome to the king for his offence Anno. 7. R. 2. cap. 4. 28 From henceforth all and euery the Iustice and Iustices of the kings forestes parkes chases within this realme Note that by the common law the Iustice of the forest is a Iudicial office and therefore he could not make a deputie to execute the same office before this statute which now be or hereafter shall be by their writing sealed with the seale of their office shall make assigne depute and appoint as many deputie or deputies for the exercising of the same office of the Iustice or Iustices of the forests as to such Iustice or Iustices from time to time shal be thought conuenient which deputie and deputies so appointed shall haue like power and authoritie to do and execute all things concerning the kings forestes parkes and chases and all other things concerning the office and offices of the Iustice of the forests to all intents and purposes But it seemeth that the office of the chiefe warden of the forest is no Iudiciall office because the writt of Homine replegiando is by the Statute of An. 1. E. 3. ca. 8. before here 24. to be directed to him And further if his office were a Iudicial place he could not make deputies as he doth to execute the same and in as large and ample manner and forme as the same Iustice or Iustices might or may lawfully doe or execute by the lawes of this realm and as though the same Iustice or Iustices were there personally present in his or their owne person or persons Anno. 32. H. 8. cap. 35. 27 Euery man that hath wood within the Forest may take the same wood without being attached by any officer of the Forest Anno. 1. E. cap. 2. so that he do it by the view of the Foresters Anno. 1. Ed. 3. cap. 2. Statut. 2. A man may hedge in or fence his wood and maintaine keepe the same in the Forest by this statute Nota per cest statute que vn auter person que le royne poit auer vn Forest per la comon ley Nota que cest statute fuit in le negatiue del comen ley ergo le comen ley fuit contrarie deuant ceo If any of the Quéenes Subiects hauing woods of his owne growing in his owne ground within any Forest Chase or Purliew of the same within this Realme of Englande shall cut or cause to be cut the same wood or part thereof by licence of the Queene or of her heires in her Forestes Chases or Purlewes or without licence in the Forest Chase or Purliewes of any other person or make any sale of the same wood it shal be lawfull to the same Subiect owner of the same ground whereupon the wood so cut did growe and to other such persons to whome such wood shall be solde Imediately after the wood so cut to coppie inclose the same ground with sufficient hedges able to kéepe out all maner beastes and cattell out of the same ground for the preseruing of their yong springs and the said hedges so made the said Subiects may kéepe them continually by the space of seuen yeares next after the same inclosing and repaire and sustaine the same as often as it shall néed within the same seuen yeares without sewing of any other licence of the Quéene or of her heires or other persons or any of their officers of the same Forestes Chases and Purliewes Anno. 22. E. 4. cap. 7. The Statute for the drift of the Forestes and what beastes are not to be suffered to common in the wast soyle of the Forest NO commons or commoners within any forest chase more marish hethe common or wast ground nor any officer or officers of or within any of the said forestes or chases nor any other person or persons whatsoeuer he or they be at any time after the last day of March which shal be in the yeare of our Lord God a thousond fiue hundred thrée fourty shall haue or put to pasture into or vpō any such ground forest chase more marish heth common or wast ground any stoned horse or horses being aboue the age of two yeare and not being of the altitude and height of fiftene handfulles to be measured from the lowest part of the houe of the forefoote vnto the highest part of the wither and euery handfull to containe iiii inches of the standerd to pasture feede or be in or vpon any of the said forestes chases commons moores marishes hethes or wast groundes within any of the shiers and territories of Norff. Suff. Cambridge Buck. Huntington Essex Rent Southampshyre Northwilshyre
c. et que le keepers ont garde le deere et le boys per idem tempus Et que del second iour de Iulii tanque le xiiii iour de mesme le mois 22. sauages fueront tues per persons disconus in negligence le pleintife Et hoc c. Yong Per negligence del officer lannuitie et loffice est extinct Et per Choke Iustice si Seneschall ne tient les courts ou ne eux tient pur le profit del seignior cest forfeiture de son office Newton Iustice Parker nē tenus de gard le parke chescun iour ne demaine iour ne festiuall iours mes serra al deuine seruice ne in le nuit ne degarder ceo contra vi ou viii hōes car vltra posse Et garden de prison que permit wilfull escape cest est forfeiture de son office mes escape in le nuite nest que negligence del officer quere inde Arderne plus est in le plee que ne besoigne s adire que les keepers ont garde le deere le boys in le parke Car ceo est intend en le ley Et tenetur quod neglexit custodire nest bon issue Car neglexit est adinier Yong il non custodiuit parcum per 12 dies vt supra Danby cest est le meliour pleading Et nota que est communiment dit quod quel ley est de Parker mesme le ley est de forester del vn forest Et in Anno quinto Edwardi quarti fol. 5. Anno 5. E 4. fo 5. Br. forfecture 55. Le case fuit aiudge que si Parker ne gard le parke tali die per que le deere sont occise per persons disconus ceo est forfeiture de son office pur ceo fuit le negligence del keeper del parke Et semble mesme le ley del forester del forest car il ad mesme le charge del dames come parker ad in son parke Et in Anno 11. H. 4. fol. 1. fuit tenus per Vauisour An. 11. E 4. fo 1. Br. forfecture 61. non attendance sur office per lofficer est forfeiture Et idem de fesans contrarie a son office Et idem de misfesans de son office que il ne fait droit al parties Et idem sil foit demaund pur vener de faire son office et ne vient et vide tiel matter 20. E 4. fol. 6. 20. E. 4. fo 6. Br. Forfecture 115. que officer que ne voit vener a faire son office forfeitera son office The Lord chiefe Iustice of the Forest hath an absolute authoritie appointed vnto him to determine of offences that are committed and done within the Queene Maiesties Forestes either in Vert or Venison And the same offences are to be determined before him and not before any other Iustices except those that are appointed by her Maiesties Commission vnder the great Seale of England to aide and assist the said Lord chiefe Iustice in that place as it doth appeare by the Statute of Carta de Foresta Cap. 16. in these wordes as followeth Charta de Foresta ca. 16. NVllus Constabularius Castellanus vel balliuus teneat placita de Foresta siue de viridi siue de venatione sed quilibet forestarius de feodo Attachiat placita de foresta tam de viridi quam de venatione et ea presentet viridarijs prouinciarū et cum irotulata fuerint et sub sigillis viridariorum inclusa presententur capitalibus Iusticiarijs nostris de foresta cum in partes illas venerint ad tenendum placita de foresta coram eis terminentur Has autem libertates de forestis concessimus omnibus c. By which words of the statute coram eis terminentur doth exclude any other Iustices to heare and determine the said offences of the Forestes but onely the Lord chiefe Iustice of the Forest and those that are in Commission appointed with him to aid and assist him For the statute is in the negatiue of the common Lawe and doth restraine all other Iustices and saith coram eis terminentur and in that sence the Statute is taken by the learned Iudges of the common Lawe For in Anno. 21. H. 7. fo 22. the case was such Anno. 21. H. 7. fo 22. nota 8. En trespas de malefactoribus in parcis et Count que le defendant intrauit in quandam Forestam et loppinion del court fuit que cest accion ne gist mye si non sit pur mis-fesans in parcis Car le statute de West 1. cap. 20. est cantsolement en Parkes et ceo serra pris stricte Issint le punishment que est done pur male fesans in forestes est punishable per lestatute de Charta de Foresta et nemy en auter maner c. By which case there are two things to be noted that is to saye First that the statute de malefactoribus in parcis doth not extende to a Forest Stat. Westm 1 cap. 20. de malefactor ' in Parcis for that a Forest and a Parke are two distinct things at the common lawe and therefore that statute that was made to reforme iniuries done in the one doth not extend to any hurtes done in the other The second is that by the said case it doth appeare Charta de Foresta ca. 16. that by the construction of the statute of Charta de Foresta made for offenders in the Forests they are to be punished according to the same statute and not in any other manner as it doth there more plainly appeare And in Anno. 21. H. 7. fol. 30. nota 7. 21. H. 7. fo 30. nota 7. the case was as followeth Endictment de occiser de vn Hart proclame troue deuaunt Iustices de peace et lenditement fuit challenge pur ceo que il ne monstre en lendictment en quel lieu le proclamation fuit fait Et auxi il ne monstre en quel lieu il fuit occise car si fuit occise hors del boundes del forest il est loyal a luy de luy occiser fuit dit per seigniour Fineux que il puit pleder cest matter al iurisdiction del court pur ceo que les Iustices del forest determiner cest matter c. By which case there are sixe things especially to be noted 1 First that euery Indictment against any offendor for offences done in the forest must be certaine concerning the thing it selfe for which the offendor is Indited as to shew that it was for killing of a Hart and also to shew where he was proclaimed a Hart. 2 Secondly that it must be certaine concerning the place where the offence was done for that the killing of the Hart within the forest or without the forest doth make the same killing an offence or no offence therefore it must be shewed in the Indictement certaine Et vide le case 12
H. 8. fo 10. que proue qui si ceruus est extra forestam vagrans est loyal a chescū subiect a occider aprender ceo in what place of the forest the same Hart was killed for otherwise it doth not appeare that it was any offence by the Lawes of the forest 3 Thirdly it is to be noted that a Hart proclaimed which is called in Canutus Lawes fera Regalis a Roiall beast being a beast of the most estimation of any wilde beast in the forest yet if he be wandering out of the forest it is lawfull for any of the kings Subiects to kill him without any offence in the forest Lawes 4 Fourthly it is therefore especially to be noted that a forest must haue his limits and boundes within the which the wilde beastes of the forest are to haue a place of firme peace for them to abide in in the safe protection of the king frō the hurt of his subiects whereof the same doth receaue the name of Forest that is to saie a place for the wilde beastes to abide in for rest which by shortnes of speach is called Forest 5 Fiftly that such offences which were committed by any offenders within the forest are to be tryed before the Iustices of the forest only to be punished there by the forest Lawes for as much as there are Lawes appoynted for that purpose differing from all other Lawes 6 Sixtly that if any man be indicted or called in question for any such offences that are done or committed within any forest either in Vert or Venison in any other place then before the Iustices of the forest that then euery such offendor may plaed that matter to the iuridiction of the court where he shall so be called in question and shew vnto them that the offence for the which hee was called in question was done in such a forest and that the Iustices of the forest are to determine that matter only and that no other person haue power nor authoritie to determine that offence Ordinatio Forestae in which is in secund◠pars veterum Statutor fo 67 And further it is manifest that by the Statuit of Ordinatio Forestae it is ordained and appoynted that all offences that are done or committed within the forest either in Vert or Venison shal be presented at the next Swanimote and the statuit doth set down there in what order before whom it must be done that is to saie corā forestarijs viridarijs regardatoribus agistatoribus et alijs eorundem forestarum ministris c. et si in alio modo fiat Indict ' pro nullo penitus habeatur which doth not only shew that all offences committed and done within the forest either in Vert or venison are only to be presented before the officers of the forest but it doth perfectly sett downe the manner how the same shal be done if it be done in any other manner then there is set downe the same shal be voyd by which Statute it is to be gathered that all the procedings against offences committed in the forest in any other place then before the Iustices of the Forest shal be void and that none other haue power and authoritie to procede against offendors in the forest but the Iustices of the forest only Certaine cases and especiall notes meete to be learned of all men that will knowe the nature of wild beastes and who hath or ought to haue any interest or propertie in them All which are things very nesesarie for foresters and officers that doe belong to the forest to knowe ANno 43. Edwardi 3. fo 24. in an accion of trespasse it was holden that the writ shall not say damamsúam cepit 43. E. 3 fo 24. Br. Propertie 10. if he do not saie that it was taken in his park or warren or else say that he was damam domitam which doth proue that if the beast that was taken a way be not a tame beast the plaintife hath not any propertie in him when he is out of his ground for so long as he is in his parke or warren he hath then propertie in him ratione soli 22 〈…〉 Br. Propertie 19. And in Anno 22. Henrici 6. fol. 95. It is holden by Newton that in an accion of trespasse brought quare clausum suum fregit et damas cepit that there he may well saie damas suas and so you may sée that where wild beasts of nature be taken out of my soyl I haue propertie in them so long as they are in my soyle then I may saie Damas suas and when that they are out of my soyle I haue no propertie in them therefore he cannot saie Damas suas 7. H. 6. fo 38. Br. Propertie 20 And in 7. H. 6. fo 38. it is there holden that when sauage beasts of the kinges goe out of the forest the propertie is out of the king so you may sée that the king hath propertie in them when they are in the forest for it is said there that the land maketh the propertie of such wild beasts quod nota for if they be out of the forest of the king or out of the owners parke or warren then capienti conceditur And in 18. E. 4. 14. it is holden there that the deare in a parke which are wild of nature a gift of them is void 18. E. 4. fo 14 Br. Propertie 31 if he to whome the gift is made do not take kill them while they are in the parke for the owner hath propertie in them but ratione soli so that if they be out of the parke the owner of the parke hath no interest or propertie in them 43. E. 3. fo 24. Br. Propertie 37. And in Anno 43. E. 3. fo 24. it is holden that an accion of trespasse quare damam suam cepit doth not lie except the Déere were taken out of his soyl for otherwise he cannot saie damam suā because he hath no propertie nisi ratione soli but it is cōtrarie if it be damam suā domitā cepit for in tame déere the owner hath propertie quod nota diuersitatem for in Bées Foules or Fishes sauage Natura breuium fo 87. there is not any propertie nisi ratione soli Vide Natura breuium fo 87. de Esperuers Cunicles et Feris An. 12. H. 8. fo 10. Br. Propertie 45. And in An. 12. H. 8. fo 10 the case was as followeth a foster of the forest doth pursue followe a hunter that had chased a Hart out of the forest into his owne proper land and there killed him and the Foster of the Forest did pursue him and did take the Hart againe and the other that had killed the Harte brought an Accion of Trespasse de ceruo mortuo capto et asportato and he was barred of his accion for so long as a sauage beast Fishe or Foule is in my land I haue possession
writ out of the Chancery which hath ben in old time ordained for such persons indicted to be at mainprise vntill the Eyre And if such Warden after he hath receiued the writ do not incontinently deliuer such persons indicted without taking any thing Then the plaintife shall haue a writ out of the Chauncerie to the Shirife to attach the saide Warden to bee before the King at a certaine day to answere wherefore he hath not repleuied him that is so taken and the Shirife the Verderors being called to him The Recitall of the Statute of 1. E. 3. ca. 8. shall deliuer him that is so taken by good mainprise in the presence of the Verderors and shall deliuer the names of the mainpernors to the same Verderors to answer in the Eyre of the Iustices and if the chiefe Warden be thereof attainted the plaintife shall recouer his treble damages the said Warden to be committed to Prison and ransomed at the Kinges will And from hence foorth it shal be written to them as to the chief Wardens of the Forest because they may not be Iustices nor to haue any recorde And so note by that Statute that the writ aforesaide is directed to them as if it were to the Shirife to execute the same writ and such a writ is not directed to a iudiciall officer Also the same Statute doth saie that the names of the mainpernors shal be deliuered to the Verderors as if he should saie because they be as Iustices And that from hence foorth it shall be written to the saide Wardens as to the chiefe Wardens of the Forest because sayeth the Statute they meaning the same Wardens may not be Iustices nor haue any record Then Ergo the chiefe Warden of the Forest nor his Lieutenant are no iudiciall officers and then I sée not by what authoritie they should sit at the Swanimote And note that there are two Lieutenants most commonly in euery Forest vz 2. Lieutenants in the Forest the Lieutenant of the Lord Iustice in Eyre of the Forest and the Lieutenant of the chief Warden of the Forest Ordinatio Forestae And it appeareth very plainly by the Statute of Ordinatio Forestae caput 1. that the Foresters Verderors Regardors and all other ministers of the Forest These officers are bound to artend at the Swanimote are bounde to attend at euery Swanimote or else the indictmentes and presentmentes there taken are vtterly voide It is here to be noted what is ment by these words in the said Statute of Ordinatio Forestae cap. 1. ac alijs earundem forestar ' ministris for other ministers of the forest are Stewardes of the Swanimote who ought to be men very well learned and especially in the Lawes of the Forest Assisa consuetudines Forestae ca 20. And to proue that there ought to be a Steward at euery Swanimote it appeareth by the assises and customes of the forest wher it is said quod homo attachiatus pro ramis cesis placitū illud pertinet ad Swanimotum coram Senescallo c. There are also other officers of the Forest mentioned in the great Charter of the Forest Cap. 16. and Cap. 17. that is to saie Constabularij Castellani et Balliui et Bedelli c. if it do chaunce any of the said officers or ministers to be sicke so that he or they cānot be at the Swanimote then the Iustice of the forest or his deputie shal incontinētly place others in their places for them et hoc est secundum ordinationem Forestae Anno 34. An. 7. R 2. c. 3 E. 1. caput 2. And it is ordained in the assises of the Forest Anno 7. R. 2. caput 3. that the inquest shal not be compelled to trauel to any other place to giue their verdict but where they receiued their charge and note that the court of Swanimote hath power to inquire of all those matters that doe hereafter appeare in the charge of the Swanimote The power of the Swanimot and to take presentmentes of all such matters but no iudgement shal be giuen there nor execution awarded for that is reserued to the Iustices of the Forest only At this Court of the Swanimote all the presentmentes of the Foresters for any offence in the forest either in Vert or Venison are there deliuered to the Iurie which are sworne for that purpose to inquire the trueth of those matters and if the Iurie do find that those presentmentes that the Foresters haue presented be trewe then the offender against whome they were presented doth stand conuicted thereof in Law and then the entrée thereof is presentatum est per Forestarios et duodecem Iuratores et conuictum per viridarios Ordinatio Forestae ca. 1. All the freeholders that dwell within the Forest do owe sute to this court Asserts Purprestures are to be enquired of Consuetudines ca. 4. Purprestures that be arented Vide ante the case of my Lord Dyer fo And this much concerning the Courte of Swanimote and hereafter doth followe the charge of the same The charge of the Courte of Swanimote for the Forest INprimis you shall inquire if all those that owe sute to this Courte of Swanimote be there or no and those which be not shall you present their names 2 Item if there be any assertes or purprestures within the Forest newly made more then hath ben made by the kings graunt or any of his Progenitors in what place the same is and by what authoritie by whome and what harme it is to the King except it be arrented 3 Item if there be any that maketh any great closes or small closes which are annexed to the borders of the Forest This is Purpresture and inlargeth his owne ground with setting out of his hedges and ditches and so straytneth the Forest 4 Item if any man haue raised digged vp or carried away This is a Trespas Purpresture For Omnes metae Forestae sunt integro domino Regi any land Stone or stake that was set or laid for any marke or bound of the Forest ye shal doe vs to wete of their names the daie and place when the same was done 5 Item if any man maketh any Mines Clay-pittes or turueth for Iron without licence in any place within the Forest 6 Item if any man leuieth any Mille within the Forest without the Kinges licence you shall inquire what hurt the same is to the Forest and who it is that doth so and present the same 7 Item if any haue made any Swine-house or Shéepe-house or any other house or Cote within the landes of the Forest without licence you shall present it 8 Item if there be moe Foresters or Walkers within the Forest then haue bene of old time accustomed in oppressing of the Kings people or ouer charging of the Forest who hath made them and by what authoritie he hath done it 9 Item if there be any minister of the
man that may dispend fortie shillings by the yeare of frée hold and therefore the same doth take the name of Parlew that is to saie Purlui Word Purlui that is for him and no other person but he that may dispend fortie shillings by the yeare at the least of free holde The King may disaforest any parte of the Forest by his letters Patens Also the King may dissaforest any landes that are aforested by his letters patents as he did to the Abbot of Stratforde for Wale-Wood in Essex within the Forest of Waltham which although the same be nowe at this time Forest yet the same was once no Forest And here note that all such land as is so dissaforested after the dissaforesting of the same then that land or Wood is Purlew Walewood id est Purlui for the same is a Forest still as vnto him that is no Purlew man and the same is Frée Purlui only for him that is a Purlew man What is ment by Purlui Purlieu Puraler there is Purlui Purlieu and Puraler Purlui for him that is to saie only for him to hunt that may dispend fortie shillings by the yeare Purlieu that is to saie The wilde beastes of the Purliew must haue Free returning to the Forest if they can escape for the place so that he must be a Purlew man in the place where he doth hunte or else he is no Purlew man there Puraler that is to say to goe and come so that if a man be a sufficient Purlewman in the same place wher he doth hunt yet he may not forestall or foreset the Deare but he must hunt the wilde beastes so that if they haue a mind of returning to the Forest again they may as the worde is Puraler A case goe home to the Forest againe if they can escape and ouer runne the Grey-houndes being put on after the game The grauntee of the King may haue a Forest with Foresters c. And if the King which hath a Forest with all the incidentes do graunt the same to another man then the grauntée shall haue the same Forest with all the officers and incidentes belōging to the same which connot be seuered as kéepers Foresters Agistors and Woodmen as it appeareth by Maister Treherne in his reading of the Lawes of the Forest fo 4. But quere of Verderors and Regardors A Iustice of the Forest must be made by the King vnder the great Seale of England for they are chosen by the Kings writ But such a grauntée shall not haue Iustices in his Forest saieth Master Treherne for no man can haue a Iustice in his Forest but the King only for such a Iustice must be made by the Kings commission vnder the great Seale of England Before the making of the Statute of Carta de Foresta there was no Lawe certaine for offences committed in Forests for at the beginning the same was at the pleasure and arbitrement of the King to punish the offenders in Forestes The beginning of the Forest Lawes vntill that King Canutus and others did make certaine Canons and Constitutions for the maintenance of Vert and Venison which afterwardes by continuance of time such Constitutions were taken for a lawe and such lawes were not certaine neither The beginning of Forest Lawes before the making of this Statute lawe of Carta de Foresta But the Lawes of the Forest were alwayes differing from the Lawes of this Realme as it dothe appeare in the booke of the Exchequere aforesaid where it is written as followeth Sane Forestarum Lex ratio Libro Rubro Scaccarii pena quoque vel absolutio delinquentium siue pecuniaria fuerit siue corporalis scorsum ab alijs regni iudicijs secernuntur Here you may note that offenders in Forests before the Statute of Carta de Foresta wer punishable at the wil pleasure of the King onely Et solius regis arbitrio seu cuiuslibet familiaris ad haec specialiter deputati subiecitur legibus quidem proprijs subsistit quas non Iure communi sed voluntaria principum Institutione subnixas esse debent adeo vt quod per legem eius factum fuerit non Iustum absolute sed Iustum secundum legem Forestae dicatur quia in Forestis penetralia regum sunt eorum maxime deliciae ad has quidem venandi causa curis quandoque depositis accedunt vt modica quiete recreentur illic Serijs simul multis Curiae tumultibus omissis in naturalis libertatis gratiam paulisper respirant vnde sit vt delinquentes in ea soli regie subiaciant animaduersioni which in English is this Truely saith the said Booke the Lawes of the Forest the reason and punishment the Pardon or absolution of the offenders whether the same be pecuniarie or corporall it shal be differing from other Iudgements of the Lawes of the Realme By this it appeareth that the Lord chief Iustice of the Forest hath alwaies bin one of the noble men of this Realme and shal be subiect vnto the Iudgement of the King only to determine at his will and pleasure or of some of dis Nobles thereunto especially appointed for that purpose which foresaid Lawe reason punishment and pardon shall not be tyed to the order of the Common Lawe of this Realme but vnto the voluntarie appointment of the Prince so that the same which by his Lawe in that behalfe shal be appointed or determined shal not be accounted or called absolute Iustice or Lawe but Iustice or Lawe according to the Lawes of the Forestes Because that in the Forestes there are the secrete pleasures and Princely delights of the Kings For Kings and Princes do resort to the Forest for their pleasure of hunting hauing for that time layde asyde all cares to the ende that they might there be refreshed with some quiet being wearyed with the continuall busines of the Court they might as it were breath a whyle for the refreshing of their free libertie And thereupon it commeth to passe that such offenders in Forestes for their offences are subiect vnto the onely Iudgement and determination of the King And so before the making of the Statute of Carta de Foresta and alwayes since vnto this daye the Lawe of the Forest did differ from the Common Lawes of the Realme And by this Statute the Lawes of the Forest which were not certaine before are nowe by the same made certaine in most things And whereas this Statute was defectiue the same hath beene since supplyed by other necessarie Statutes as you may see here before And whereas the wordes before rehearsed are Et solius Regis arbitrio seu cuiuslibet familiaris ad haec specialiter deputati It doeth appeare that the Office of the Lorde chiefe Iustice of the Forest is a place both of great honour and of high authoritie and that the same place is to be executed by some great Peere of the Realme that is alwayes one of
the Kinges most honorable priuie Counsell The authoritie of the Lord Iustice in Eyre And then when that any such noble person is made Lorde chiefe Iustice in Eyre of the Forest by the Kinges especiall Commission hee hath by that as great authoritie as any other Iustice in Oyer hath and more For then he may punish all trespasses of the Forestes according to the Lawes of the Forest A man may prescribe to haue waife straye but not felons goods And he may heare and determine all the Clames of the liberties and franchises which be within the Forest as to haue Parkes Warrens and Viuaries And also of them which do Clame to be quite of assartes and Purprestures of them which do Clame Leetes hundreds felons goods waifes and fugitiues and other liberties within the Forest and likewise of them which do Clame to keepe Hares and other beastes of the Chase within the Forest For by lawfull and good Clames men may iustifie the doing of many things within the forest which otherwise were vnlawfull But those Clames must be such Clames as I haue shewed before that haue beene allowed before the Iustice in Eyre within the time of Prescription The diuersitie betweene the Iustice of the Forest and Iustices in Oyer at large and other Iustices is that the Iustice of the Forest shall punish those that be indicted at the Swanimote and presented before them in their Sessions by fine and imprisonment at their discretion and the partie indicted shall not trauerse it because he is presented by more persons than by twelue and that is a condemnation against him But the Iustices in Oyer and other Iustices of the peace if they do determine such Trespasses done in Forestes which by the Lawe they cannot do which is presented before them by waye of indictment then the parties so indicted shall haue their trauerse allowed them which they shall not haue of the Enditement taken in the Swanimote and tryed before the Iustice of the Forest Those which be Iustices of the Forest when they haue their Commission from the King The warrant of the Lorde Iustice in Eyre to warne the Sessions of the Forest for the keeping and holding of the Iustice Seate there they shall make their warrant and Precept to the Shirife of the Shire within the which the same Forest is where the Iustice Seate shal be holden which saide Precept is in these wordes Thomas Louell nobilis ordinis garterij Miles Iusticiarius Itinerans omnium Forestarum Domini Regis in Anglia tam citra Trent quam vltra Vic' Essex salutem ex parte dicti Domini Regis tibi precipio quod summoneas per bonos summonator ' omnes Archiepiscopos Episcopos Abbates De qualibet villa villata quatuor homines propositus duodecem probos legales homines Priores Comites Barones Milites eorū liberi tenentes qui terr' aut tenementa habent infra metas Forestae domini Regis de Waltham in Com' Essex de qualibet villa villata infra easdē metas quatuor homines propositus de quolibet Burgo infra metas eiusdem forestae duodecem probos legales homines omnes alios qui coram Iusticiar ' placita Forestae ten ' venire solent debent quod sint apud Waltham die Lunae prox ' post festum Sancti Petri apostoli prox ' futur ' coram me praefato Iusticiario Itineranto vel meo in hac parte deputato audituri factur ' ea quae ad placit ' Forestae ibidem pertenent Et vlterius tibi precipio quod totam balliuam tuam videlicet tam in Burgis alijs villis quam in Ferijs The generall Sessions of the Forest proclaimed Mercatis alijs locis publicis publice proclamare facias Quod omnes illi quicunque qui per Cartas dicti Domini Regis antecessoris seu progenitor ' aut alio modo aliquas libertates Franchesias aut liberas Consuetud Forestae infra dictum forestam habere clament sint coram me praefat Iusticiar aut meo in hac parte deputato die loco praedictis ostensuri quas libertates habere clament Et omnes attachiati pro virid venatione infra forestam praedictam post vltimam placit forestae tenent ac eorum pleg manucaptor habuerent diem per manucaptionem coram Iusticiar Domini Regis Itinerant proxim illic venient quod adtunc sint ibi coram me praefat Iusticiar ad stand recto ad faciendum ea quae secundum legem forestae facere debent quod tu ipse fis ibidem cum Balliuis tuis ad exequend cerciorand me super his alijs negotijs illis tangentibus habeas ibi summonator hoc breue Teste c. Also when that the Iustices of the Forest haue obtained their Commission at the handes of the King to holde their generall Sessions for the Forest It is to be vnderstood that when they doe make out their Write of generall Summons for to Summon and commaunde all manner of persons to appeare there where the same is to bee appoynted by the saide writ in such maner and forme as is before declared they must by the order and course of the Lawe of very necessitie giue vnto these officers and others that are to appeare there a daie of resonable warning by the space of forty daies at the least to hold their Sessions in in the same manner as the Iustices in Eyer at large doe make Fourtie dayes warning and they shall hold Plées of quo warranto as the other Iustices do and that is the generall Summons that the Statute of Carta de Foresta doth speake of And there is also another kind of generall Summons which the Iustices of the Forest shall cause to be made by directing of their warrant to the chiefe Warden of the Forest which warrant is in the forme as followeth Thomas Louell nobilis Ordinis Garterij miles Iusticiaries itinerans omnium Forestarum domini Regis in Anglia tam citra Trent quam vltra Iohanni de Vere comiti Oxon. The writ to the chife warden custod'Forestae domini Regis vel eius locum tenent ' in eodem salutem ex parte dicti domini Regis vobis mando ac firmiter iniungentes quod venire facias corā me prefat ' Iusticiar ' apud Waltham die Lunae proximum post festum Sancti Petri Apostoli prox futur omnes Forestarios Veridarios Regardatores Woodwardos ac alios ministros eiusdem Forestae qui nunc sunt et qui post vltimam placit ' Forestae predict tent ' fuerunt et eorum quemlibet cum omnibus rotulis scriptis minumentis et attachiamentis Forestae tam de viride quam de venatione quae post vltimam placitam illa emersa et non determinat extiterunt facias Regardatores Forestae qui sunt et qui post vltimam placitam predict tent ' ibidem
fuerunt cum omnibus regardis suis per idem tempus factis et irrotulatis faciasque insuper ad tunc et ibidem omnes agistatores eiusdem Forestae qui nunc sunt et qui post tempus predictum fuerunt et eorum quemlibet cum omnibus attachiamentis suis et rotulis agistamentor Rotula Regardatorum ad stand'inde recte et ad faciend'ea que eis et eorum quamlibet secundum legem Forestae iniungent aut que facere debent Rotulo Agistatorum facias etiam venire omnes illos qui clament habere aliquas libertates aut franchesias infra Forestam predictam quod sint coram me aut loco meo teneÌ„te ad predict ' diem et locum ostensur ' quomodo clamant habere libertates franchesias seu priuilegia et quo waranto et quod vos sitis ad tunc ibidem cum nominibus omniuÌ„ predict ' ministror ' et hoc breue nobis remittente teste c. It appeareth by this writ that the authoritie of the Iustice of the Forest doth differ from the authoritie of other Iustices in Eyer for the Iustices of the Forest may make their deputie or Lieutenant to execute their office and place The Iustice of the Forest may make a deputy by the Statute of 32. H. 8. ca. and so cannot other Iustices in Eyer do but that is by reason of the Statute of 32. of King Henry the 8. for before the making of that Statute it séemeth that the Iustices of the Forest could not make a deputie or Lieutenant to execute their place or office for as much as the same is a iudiciall place of authoritie And if the King which hath a Forest with all the incidentes vnto the same he doth graunt the same vnto any other person the grauntée shall not haue the Iusticeship of the Forest by the same graunt nor he shall not haue a Court of Swanimote in the proper nature of the same for if such a grauntée do kéepe a Court of Swanimote for his Forest he cannot do any thing in the same but take presentmeÌ„tes against offenders as they do commonly vse to do in the Court of Attachementes the reason is because that the grauntée by such a graunt cannot haue Verderors nor Regardors for they are chosen by the Kings writ and there can be no procedings against offenders in Forests in the Court of Swanimote Treherne in his reading of the Lawes of the Forest fo 7 Master Hesket in his reading of the Lawes of the Forest fo 7. without the Verderors and Regardors And again it shal be in vaine to haue a Court of Swanimote and such officers in a Forest as is aforesaide if he may not by the Lawe haue a Iustice of the same Forest that may cause Iustice to be executed of such presentments against such offenders but yet such a grauntée as is aforesaide by the same graunt may haue Foresters Agisters and Woodwardes for the safe kéeping of his Vert and Venison as it doth appeare by Maister Hesket in his learned reading of the Lawes of the Forest A Forest in the handes of the King but a Chase in the handes of another man fo 7. But if such a grauntée chaunce to haue any trespasse done in his Forest by offenders in the same he may very well haue his remedie against them by an Action at the common Lawe and so the comon Lawe hath not lefte such a grauntee vnprouided of his remedie against such offenders and because that such a grauntée doth wante some parte of the authoritie of a Forest by such a graunt as is aforesaide A Forest in the handes of the King may be a Forest in the handes of another by the Kings especiall graunt Note the difference therefore the same Forest is not properly a Forest in deede but rather a chase being in the handes of such a grauntee and yet the same was a Forest in the handes of the King But if the King by his letters patents do graunt a Forest to any of his Subiects and by the same his letters patents he doth giue and graunt vnto the grauntee full power and authoritie to make a Iustice of his Forest and to haue all the officers of a Forest as is aforesaide as Verderors Regardors c. which is Iura regalia in that defalse then such a grauntee may well haue the whole authoritie of a Forest in his owne proper nature and then the same Forest doth continue a Forest still in the handes of such a grauntee by reason of such a graunt onely Note the difference Whereas the wordes of the Statute of Carta de Foresta Articulo Secundo are homines vero qui manent extra Forestam non venâ—ant de cetero coram Iusticiarijs nostris de Foresta per coÌ„munes Summonitiones nisi sint implacitati vel plegij alicuius vel aliquorum qui Attachiati sunt propter Forestam NOwe it is to bee seene what persons are compellable by this Statute to appeare before the Iustices of the Forest by this generall Sumons mentioned in the braunche of the same Statute And it is to be vnderstood that before the making of this Statute of Carta de Foresta the Lawe of the Forest was that all men within the Countie aswell those that did dwell out of the Forest as also all those that did dwell within the Forest were bounde to appeare before the Iustices of the Forest by this generall Sumons when they did hold their Eyer or Sessions of the Forest in that Countie and all Earles Barrons Knightes Fréeholders and others were bound to appeare before the Iustices of the Forest by this generall Sunioâ—s at their generall Sessions before the making of this Statute as it doth appeare in assisa Forestae facta tempore Henrici Secundi Caput 19. in hec verba Comites Barrones Assisa Forestae H. 2 cap. 19. Milites et liberi tenentes et omnes homines de comitatu veniant ad Sumonicionem nostri forestarij sicut se voluerint defendi ne incidant in manuÌ„ Regis ad placitand'placitaÌ„ de Forestis suis vel ad alia negotia faciend'in comÌ„ And also the same is affirmed proued by the words of the Statute vz de cetero which is that from hencefoorth no man that doth dwell within the Forest shal be compelled to come before the Iustices of the Forest by this generall Sumons of the Forest by which worde from hencefoorth it is plainly noted and shewed vnto vs that before the making of this Statute all persons that did dwell without the Forest within the same Countie were then bound to appeare before the Iustices of the Forest by the general Summons which was a very great vexation and trouble to all persons which did dwell without the boundes of the Forest to giue their attendance there during all the time of the Sessions The reason of the making of this Lawe And it doth