Reason and cause of a lawfull beginning and therefore a Forest may be by Prescription good in Law over other mens grounds But the King in his own grounds may make a Forest at this day which is proved by these two Chapters for such Forests are thereby saved and Enacted to stand Co. 4. Part. Instit fol. 300 301. Desertum id quod ab hominibus deseritur feris relinquitur CHAP. IV. No Purpresture Waste or Assart to be made in Forests ALL Archbishops Bishops Abbots Priors Earls Barons Knights and other our Freeholders who have their Woods in Forests shall have their Woods as they had them at the first ‖ Coronation of Henry our Grandfather so that they shall be quit for ever of all a Purprestures b Wastes and c Asserts made in those Woods after that time untill the beginning of the second year of our Coronation And those who from henceforth do make Purpresture without our Licence or Waste or Assert in the same shall answer unto us for the same Wastes Purprestures and Asserts a Purpresture cometh of the French word purprise or pourpris which signifieth an Inclosure or building and in legal understanding signifieth an encroachment on the King either upon part of the Kings demesne Lands of his Crown which are accounted in Law as res publicae semper favorabile fuit in Omni Republica Principis patrimonium or in the High wayes or in Common Rivers or in the Common streets of a City or generally when any Common Nusans is done to the King and his people endeavouring to make that private which ought to be publick which Glanvil lib. 9. cap. 11. very aptly describeth in these words Dicitur autem purprestura vel porprestura popriè quando aliquid super Dominum Regem injustè occupatur ut in Dominicis Regis vel in viis publicis obstruct ' vel in aquis publicis transversis à recto cursu vel quando aliquis in Civitate super regiam plateam aliquid aedificando occupaverit generaliter quoties aliquid fit ad nocumentum Regii tenementi vel Regiae viae vel Civitatis Co. 2. Instit fol. 272. It was an Article of the Eyre before the Statute de Bigamis in 4. Ed. 1. to enquire de purpresturis factis super Dominum Regem sive in Terra sive in Mari sive in aqua dulci sive infra libertatem sive extra Cap. itineris id ibid. It appeareth also by Glanvil that there be likewise Purprestures done to Subjects id ibid. b Waste Vastum dicitur à vastando of wasting and depopulating and for that waste is often alledged to be Timber which we call in Latine Maremium or Maresnium or Maresmium it is good to fetch both of them saith my Lord Coke from the Original First Timber is a Saxon word Secondly Maremium is derived of the French word Marreim or Marrein which properly signifieth Timber Co. 1. Instit fol. 52. b. 53. c Assert is so called of the effect as some hold and is derived say they of ad and sero assero because of Wood grounds Marishes or waste grounds they are converted to be sown with Corn and therefore in the Register and F. N. B. it is written assertare with an E. and so it is in this Chapter here in the Latin Bracton †Lib. 4. fol. 226. hereof saith Illud quod fuit aliquando boscus locus vastae solitudinis communia jam inde efficitur Assartum vel redactum est in Culturam And herewith with agreeth Fleta lib. 4. c. 22. lib. 2. cap. 25. illud olim fuit Foresta et boscus c. et jam efficitur Assartum reductum est in Culturam et idem dici poterit de Mariscis et aliis vastitatibus in culturam redactis Others fetch it otherwise but we hold that it is derived of the French word essarter to grub up or clear a ground of wood c. and this appeareth by Domesday Hereford-shire Merchela in eodem manerio sunt 58. acrae terrae provect de silva written over the same essars de essart silvae exeunt 17. s. and 4. d. E. being turned into A. Co. Instit 4. part fol. 306 307. ‖ Where it it is said tempore Coronationis Regis Henrici Avi that is of H. 2. it is to be known that he was Crowned twice viz. the 20. of December in the first year he caused his Son Henry to be Crowned King the 15. of June in the 16. year of his reign Henry his Son died the 11. of June in the 28. year of his reign after whose death King Henry Fitz-Empresse was Crowned again Id. fol. 293. CHAP. V. When Rangers are to make their Range in the Forest OUr Rangers shall go through the Forests to make range as it hath been accustomed at the time of the First Coronation of King Henry our Grandfather and not otherwise The Ranger is a sworn Officer of the Forest of which sort there seem to be twelve as you shall see in the 7. Chapter but he is not within the Forest having no charge of Vert but only of Venison that cometh out of the Forest into his charge or part of the Purlieu to safe conduct them back again And it is to be noted that in such Forests as have no Purlieus there is no Ranger but Foresters serve the turn This Ranger is made and appointed by the King his Letters patents under the great Seal and for his better encouragement in his duty he hath a yearly fee of twenty pounds or thirty pound paid out of the Exchequer and certain fee Dear both red and fallow his Office consisteth chiefly in these three points 1. Ad perambulandum quotidie per terras de afforestatas ad videndum audiendum inquirendum tam de Malefactis quam de Malefactoribus in Balliva sua 2. Ad Refugandum feras Forestae tam Veneris quam Chaseae de terris deafforestatis in terras afforestatas 3. Ad praesentandum omnes trangressiones Forestae in terris deafforestatis factas ad proximas Curias illius forestae tentas As for the Oath of the Ranger it is continually in these words You shall truly execute the Office of a Ranger in the Purlieu of P. upon the border of the Kings Forest of P. You shall rechase with your Hound and drive the Wild Beasts of the Forest as often as they shall range out of the same Forest into the purlieus You shall truly present all unlawfull hunting and hunters of Wild Beasts of Venary and Chase as well within the purlieus which proveth that the purlieus are no part of the Forest but distinct things as the Forest and those and all other offences you shall present at the Kings next Court of Attachments or Swanimote which shall first happen So help You God Co. Instit 4 Part. fol. 304. Purlieu is all that ground near any Forest which being made Forest by Henry the second Richard the first or King John
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-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