Const Hist Uk1911

8/12/2019 Const Hist Uk1911

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Published by the University o f Manchester atTH NI VERSI TYRESSH. M. MCKECHNIE,ecretary)

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Studies and Notessupplementary to

Stubbs Constitutional H istory

Y

C H A R L E S P E T I T D U T A I L L I SHon orar y A ofessor i n the Univ ersity of LilZe

Rector of the Academy of Grenohle

TRANSLATED YW. T WAUGH M A

Asszstant Lecturer in History

MANCHESTERAT THE UNIVERSITYIZESS

LONGMANS, GREEN CO.LONDON,EW YO H K , O M BAY,c.9 5


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PREFACE

UNIVERSITYF MANCHESTERUBLICATIONSNo XCI

As was foreshadowed in M Petit-Dutaillis' preface tothe French tr anslation of the first volume of the

Constitutional History of bishop Stubbs , the secondvolume, of which the French version appeared last year,has been found to need much less revision of the kindfor which footnotes are inadequate. Instead of thetwelve additional Studi es and Notes of volume I, whichwere translated by Mr. W. E. Rhodes and publishedunder my editorship by the Manchester UniversityPress in 1908, M. Petit-Dutailli s has thought it unneces-sary to append to volume I1 more than two such studies.The subjects with which they deal, Th e Forest and

Th e Causes and General Characteristics of the Risi ngof 1381 are, however, treated with such thoroughnessas to provide sufficient matter for another volume of

Supplementary Studies. In his preface M. Petit-Dutaillis holds out the hope that his additions to thethird volume of Stu bbs' work will be concerned withquestions more directly constitutional; but the Forestplayed a part in the contest between the English crownand people which makes the inclusion of the first essayin these studies quite appropriate, while the manyadditions that have been made to our knowledge of thePeasants' Revolt since Stubbs wrote constitute a suffi-cient justification for the second. Th e translation of thetwo studies has been made by my friend and colleagueMr. W. T. Waugh, and my duties as editor have beenexceedingly light. As in the first volume, a few foot-notes have been added in square brackets, in most casesby Mr. Waugh, who has also adapted the index fromthe one made by M Lefebvre for the French edition.

J AMES TAIT.THEUNIVERSITY,MANCHESTER,uly IOth 1914


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CONTENTS.

The Forest- P GEI ) The Forest and the Right of the Chase in

Mediaeval England rganisation of theForest I 4 9

2) Origin of the Forest evelopment of theSystem under the First three Norman Kings 166

3) The Forest under the Angevins I794) The Charter of the Forest of 1217 1875) Th e Forest in the Thirteenth Century I 9 96) The Struggle for Disafforestment 2097) Some Remarks on the Origin of the Purlieu 2338) Th e Decline of the Forest-Contrary Develop-

ment in France 239Causes and General Characteristics of th e Rising

o f 1 3 8 1 5I ) Causes of the Rising 552) General Characteristics and Results of the Rising 281

Index 305


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T H E F O R E S T .THE nstitution of the Forest, established by the Normankings and maintained by the Plantagenets, has strong

claims on the attention of the historian. Not~ { ~ ~ ~ ~nly, as an institution very characteristic ofthe times, does it throw valuable light on-certain features of medi zval society, law, and adminis-tra tion ; but the fact of its existence led to importan tresults in the constitutional crises of t he thirteen th andfourteenth centuries. One may regard the Forest as amelancholy and decisive witness to the brutality of theNorman Conquest, as an illustration of the despoticauthority of the Norman and Angevin kings, as a causeof the hostility of the bar ons an d higher clergy towardsthe crown, or as a ground for the hatred felt by thepeople towards the king s officers. Rut from everypoint of view the Forest is equally worthy of study.

Stubbs did no more than touch upon the subject, and,as far as we know, the history of the Forest in med izvalEngland has never been treated in its entirety on thegeneral lines which we wish to follow. Our intention isto set forth the most important of the results that havebeen achieved. W e have used such printed records-whether published in full or calendared-as we havebeen able to consult, and several valuable works ofmodern scholarship, among which special mentionshould be made of Dr. F. Liebermann s critical essayon the o n s t i tu t io n es d e Fo resta ascribed to Cnut, and

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148 S T U D I E S I N C O N S T I T U T I O N A L ISTORYMr. G. J. Turner's study on the Forest in its legal aspectdur ing the thirteenth centurp. In addition, the interest

of the task h as led us to make cautiousUseofthe expeditions into the realm of comparativecomparativemethod history. In seeking the origin s of the Eng-lish Forest we have turned to the Continent,where they are certainly to be found, and occasionallywe have drawn a paralle l between th e evolution of theForest in England and the corresponding process inFrance.

T H E F O R E S T A ND T H E R I G H T O F T H ECHASE IN MEDIEVAL ENGLAND.-ORGANISATION OF T HE FOREST.

W e have first to ask what meaning was attached inEngl and to the word Forest, in its legal sense,l as

used, for example, in the phrase ForestasMeaning of the retinui in thk charter of Henry I or inword oresb such expressions as bosci afforestati,I manere extra forestam, which appear in the charterof 1217

As early as the time of Henry 11, Richard Fitz-Neal,i n his Dia l ogu s d e Scaccar io gave a very clear definitionof the Forest. I t consists, he says, n

Definition in the preserves which the king has kept forDialogus deScaccario himself in certain well-wooded countieswhere there is good pasture for thevenison. There the king goes to forget his cares in thechase ; here he enjoys quiet and freedom : consequentlythose who commit an offence against the Forest laythemselves open to the personal vengeance of the king.Thei r punishme nt is no concern of th e ordinary courts,but depends entirely on the king, or his speciallyappointed delegate. Th e laws of the Forest spri ng notfrom the common law of the realm, but from the will ofprinces; so that what is done in accordance with themis said not to be just absolutely, but just according tothe forest law. Th e nature of the Forest could not bemore clearly stated, and the definitions given by Man-wood in the sixteenth centurp and Sir Edward Coke in

1 The word is also used, even by lawyers, in its modern sense of atract covered with trees; the author of the Dialogus de Scaccavio writes,Reddit cornpoturn. . . . de censu i l l ius nemoris vel foreste . . . . D i a l o g usd e Sc a c c a r to , 11 xi ; ed. Hughes, Crurnp, and Johnson, 1902, p. 141).2 Dtal . d e Sc a c c . I xi, xii ; ed. cit 105 sqq.

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150 S T U D I E S I N C O N S T IT U T I O N A L H IS T O R Y T H E F O R E S T O RG A N IS A TI ON 5the seventeenth, are based on those formulated byRichard Fitz-Neal.

The word Forest, adds the autho r of the Dialogus,comes from fera, wild beast, e being changed to 0

. Fanciful though it be, This derivation isT h e F o r e s t i s ahunting-preserre deduced from a perfectly correct notion :in law and in fact, if not in etymology,the Forest owed its origin to sport. The ores st or theForests-the word was used, in the middle ages, in boththe plural and the singular-consisted of a number ofgame-preserves protected by a special law. The y weremostly covered with woods, but also included moorland,pasture, and even agricultural land and village^.^

The Forest, as such, belonged to the king. It mustnot, indeed, be confused with the roval demesne: forthere were royal woods which were notn what sensedoesthe ~~~~~t Forest, and on the other hand, a forestbe long to the often comprised estates which were thec rown property of subjects, even of grea t lords.But it belonged to the king in the sense that it wascreated for his benefit, that within its limits none savehimself and those authorised by him might hunt thered deer, the fallow deer, the roe, and the wild boar ,3 and

1 A forrest doth chiefly consist of these foure things, that is to say,of vert, venison, particuler lawes and priviledges, and of certen meetofficers appointed for tha t purpose, to thend tha t the sam e may thebetter be preserved and kept for a place of recreation and pastim e, meetfor the royal1 digniti e of a prince (Manwood, Treat ise of the Lawes ofthe Forrest, 1598, f I) ; A Forest d oth consist of eigh t things, videlicetof soil, covert, laws, c ourts, judges, officers, gam e, and certain bou nds(Coke, Four th part of the Institutes of the Laws of Englan d, ed. 1644,P. 289).2. Th e word forestis, foresta, which is found in Merovingian document sof the seventh century, comes, according to Diez, from the Latin foris,and already m eant a district placed outside, or preserved, by royalcommand. Thi s etymology is quite in accordance with the sense of theword Forest in England, but after a careful study of Merovingian records,I am doubtful whether to accept it.3 These four were generally considered to be the beasts of the Forestto which the forest law applied. The list varied somewhat in differenttimes and places. See the very learned and sound paper of F. Lieber-mann, Ueber Pseudo-Cnuts Constitutiones de Foresta, 1894, p 20; G J .Turner, Select Pleas of the Forest (Selden Society, I ~ O I ) , sqq. Fromthe time of the first Norman kings neither the wolf nor the fox wasregarded as a beast of the forest. John of Salisbury says tha t theywere not hunt ed according to the rules of venery (1-iebermann , p. 23).

that it was subjected, throughout its extent, to verysevere laws, enacted arbitrarily by the kings for theprotection of the vert and venison, that is to say for thepreservation of the beasts of the Forest and the vegeta-tion which gave them cover and f0od.l

In m e di ~v al ocuments mention is also made of theking's pa rks an d warrens, an d sometimes of hi s chase.Chases androya l pa rks

There was, in our opinion, no real differencebetween the king's chase and the F o r e ~ t . ~Parks were distinguished by the fact that

they were enclosed by a wall 30r fence.4 But the recordspublished by Mr. Turner show that the royal parksformed part of the F~ r e s t , ~hat they were under theoversight of forester^ ^ and that offences committed i nthem were punished in the same way as forest offencesand in these respects isolated royal parks must have beenin the same case as those surrounded by Forest. As theking's object in making a park was the better preserva-tion of his game, i t would be absurd if the forest lawwere not applicable to it. It is well to insist on thispoint, for English historians have vied with one another

1. If the king alienated a part of his Forest the forest law might stillbe applied to it for the benefit of the new owner. This wa s the casein the forests held by the earls of Lan caster in the fourteenth century(Turner, pp. ix, cxi sqq.). But as a rule the forest, in such an event,became a ch ase (see below, p. 154).2 According to W. H. P. Greswell, Forests an d Deer Par ks of theCounty of Somerset (~ go g) , . 244, the chase was no t subject to the forestlaw. He gives no proof of this, and admit s that in certain documents

the Forest of Exmoor is called the Chase of Exmoor. Kingswood Forestin Essex is another case in point. In 1328 J. le Warre complainedthat some years before the gardeins de la chace had puthis manor en la chace de Kingeswode et de Fulwode ; so that he nolonger had the righ t to cut his wood (Rotuli Parliame ntorum , ii, 29).Kingswood was part of the forest of Essex (Turner, p. 69). Mr. Tu rner 'srem arks on chases (ibid., pp. cix sqq.) apply only to the chases of feudallnrd--

3 Fregit murum parci et intravit eum cum canibus Turner, p. 40).4. Operarii in parco predict0 ad reparan dum palicium (ibid., p. 55).5 Venacio data per dominum regem: comes Cornubye venitin foresta de Rokingham et cepit in parco et extra parcumbestias ad placitum. . (ibid., p. 91).6. Wille ln~us, orestarius pedes in patco de Bricstoke (ibid., p. 83).These foresters were sometimes styled parkers (ibid., p. 55).7. Ibid., pp. 4, 54 sqq., etc.


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152 S T U D I E S I N C O N S T I T U T I O N A L H IS T O R Y T H E F O R E S T O R G A N IS A T IO N 53in repeating that parks were not subject to the forest1aw.l In this general form, the statement is false : adistinction should be made between the royal parks andthose of the lords2

Th e position of the royal warrens has never, as itseems to me, been accurately stated. It is clear that the

word bore another meaning than the oneRoyal warrens it had in France, and was applied especiallyto land reserved for hare-hunting. It would, however, betoo much to say that royal warrens were entirely exemptfrom the forest lawj4 for in the Placita fores te we findthefts of hares from a warren judged by the same processas poaching in the F o re ~ t . ~ven in Middlesex there was

1 See, e.g., W. S. Holdsworth, History of Engl i sh Law (1go3), i, 346;MacKechnie, Magn a C ar t a (~go g), . 493. ,2 . The treatise of Mr. T urn er, who possesses well-deserved authori tyon the subject of the forest la w, does not tend to prevent this confusion.Although royal parks often appear in the documents he has edited, h edeals in his introduction only with the par ks of subjects. It is of thesethat he is speaking when he says (p. cxxii) The park was not subject tothe forest law.3. In Fra nce itself the meaning of the word changed-a fact which hascaused many blunders. It was only in the sixteenth century tha t

gare nne acquired the al ~u os t xclusive sense of rabbit-preserve. Seethe remarks of Olivier de Serres, Thddtre d'dgricu l ture, ed. 1805, II., 62sqq. There were certainly garennes connins in the Middle Ages, butthe word garenne had the quite general meaning of game preserve.See, among others, a document published in De Maulde, Condi t ionforest ikre de lJOrl6anais , p. 491 : ius habendi garennam adg r o s su m a n i m a l ; and an arr&t of the Parle ment of Paris, date d 1270,in O l i m , I., 835, n o xlix : in loco ubi rex habet garennam suamad grossam bestiam et minutam.4 As Mr. MacKechnie asserts ( Magn a C ar t a , p. 493).5. From the examples in the documents published by Mr. Turner, wehave selected three of different periods i. In 1209, in the pleas of theForest held at Shrewsbury, Hamon Fitz-Marescat was tried for stealinghare s in the warren of Bulridge (Tur ner, p. IO).-ii. In I255 the offencewas the theft of four har es in the warren of Somerton ; the presentmentwas made by the verderers ; the chief offender being a clerk of the king'scour t, the case was adjourne d. The inquisition had been held in theordinary way (pp. 41 sqq.). Th e title of the document from which thisillustration is drawn runs : Placi ta foreste in comi tatu Sumerset , and thesub-title Placi ta de warrena de Sumer ton . The document slso sum-marises an inquisition held concerning a hare found dead, and con-ducted like inquisitions on beasts of the Forest found dead.-iii. In 1286Placi ta Foreste apud Ifuntyndone . P laci ta warrenne de Cante-brigge (pp. 129-131) Thi s record is the most elaborate of the three,

a warren which was entirely subject to the forest law.'Such cases were, however, exceptional. Offences againstrights of warren had, as a rule, to be tried in the ordinarycourts of law.The question whether all the royal demesne wasregarded as warren has been investigated by Mr. Turner,

who concludes that the king- would pro-Theking s bably not consider his o w n lands t beright of warren warren unless they were sufficiently wellstocked with game to make hunting worth while.2Nevertheless we find Edward I taking care to specify in1305 tha t he had right of warren on all hi s demesnelands.3 From the beginnin g of the Norman period,moreover, private warrens had existed only by royalgrant. It may safely be inferred from this that the kingcould claim ri ght of warren over the whole realm. Andas a mat ter of fact, he did establish war rens for himselfin all parts : as late as the end of the thirteenth cedturyhe is found defending his right of warren in lands whichdid not belong to his deme~ne.~

In short, the king apparently claimed the right of the

and also the most st riking, for it certainly looks as if this Cambridgewarren lay quite apart from any forest. Evidently a large number ofarr ear s had to be cleared off .and delicate points decided. Thejustices of the Forest, sitting at Hunti ngdon , tried a large number ofcases of hare- poaching a nd gave decisions on claims pu t forwar d bythe inhabitants. See below, n. 4.1. In 1227 Henry III disafforested the warr en of Staines, in Middlesex.His charter shows that the warren had been subject to the forest law(Turner, p. cviii ; cf. R ot . L i t . C l au s . II., 197).2. Turner, p. cxxxiii.3 Statutes of the Rea lm, i,.I?4.4 . We have a very chara cterl st~c ocument of 1286 concerning the royalwarren at Cambr idge: ohannes Extraneus, dominus de Middilton,Warinu s de Insula, dominus de Ramton, e t templarii de Daneye clamanthabere libertalem warre nne in terris suis infra warrenam predictamdomini regis; et sepius cum leporariis suis ceperunt plures lepores ineisdem terr is suis pro voluntate sua. Idea preceptum est vice-comiti quod faciat venire predictos Johannem et Warinum et eciam pre-ceptorem ad ostendendum warantum si qhod inde habeant, vel ad satis-faciendum domino regi de transgressione predicta (Turner, pp.130-131) See also (p. 131) the claim of the Abbot of Ramsey.


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154 S T U D I E S I N C O N S T I T UT I O N AL H I S TO R Y T H E F O R E S T O R G A N IS A T IO N I 5 5chase in every pa rt of his rea1m.l In his view, this rightentitled him to hunt small game, not only on the wholeof hi s demesne, but als o in the warrens which he had onthe estates of his barons. But he preferred a noblerquarry, and so set apart for himself vast preserves forlarger game. These were called Forests or Chases, andParks when they were enclosed; and he established acode of forest law to protect them.

W e now come to the huntin g-rights possessed by theking's subjects. Apart from royal gran ts of the right to

hunt in the Forest, he barons and prelatesHunting had hases, parks, and warrensrights of thesubjects of thei r own. Th e chases of the lords weregenerally parts of the Forest which hadbeen alienated by the king : in a sense the grant did notinvolve complete disafforestment, or the burdens imposedon the inhabitants were maintained, at least in part, forthe benefit of the recipient? Th e parks of the lords, on

1 The matter is obscure, and in our opinion was a question of factrather tha n of law. English writer s on feudal law have tried to formulatetheories about it. Blackstone asserts that all the game in the realmbelongs to the king, and that nobody therefore may hunt without hispermission. Chris tian, however, in his notes on Blackstone, cites docu-ments which contradict this view, notably the following ancient pronounce-ments of English la w: Quan t beastes savages le roye aler hors delforrest, le property est hors del roy s'ilz sount hors del parke,capienti conceditur (Blackstone, C o m m e n t a r i e s , 17th ed., bk. II., cap.xxvii, n. 10).The following passages leave the impression that contemporaries hadrather vague notions as to the rights of the king over game which hadstrayed from forests and parks : Quedam dama evasit de parco dominiregis et venit quidam homo domine Hugeline de Neville cumduobus leporariis, et prosequebatur dictam dama m et cepit eam in campode Pizeford, et duxit dictam venacionem secum in domo domi ne Huge-line. Set non possunt attachiari quia manent extra forestam. As aninquisition was held, it was evidently though t tha t an offence had beencommitted (Turner, p. go, under the year 1250) Dicunt per sacra-mentum suum quod homines comitis de Ferrariis fugaverunt unumbrokettum dami infra libertatem usque ad aquam subtus Wodeford. Etbrokettus ibi transivit aquam et resistit in quodam butimine extra Wode-ford, et ibi custoditus fuit per villatam quousque Ricardus de Audewincle,viridarius, venit et per ipsum et per villatam ductus fuit ad fores tamsalvus et sanus ib id . , p. 105, under the year 1252).2 Numerous examples of these grant s are t o be found in the close rolls.3 Turner, pp. cix sqq

the other hand, though they were sometimes situated indistricts which had formerly been forest, were not underthe forest law. Provided that the king's hunting wasnot injured, a landowner was at liberty to make a parkand hunt there at his p1easure.l Sometimes the kingmade a gracious present of bucks and does to stock apark.z As for the warrens in private hands, they wereunenclosed tracts on a lord's derne~ne,~here he huntedother game than the beasts of the Forest-hares inparticular, but also rabbits, foxes, wild cats, partridges,pheasants, an d so forth. If noble game, like a buck, tookrefuge in a warren, the hunters might follow it therefrom outside without restriction, for it was not a beastof the warren. Warrens, as we have already said, wereestablished by royal charter. Thu s the abbot and monksof Battle had right of warren on all their lands by charterof William the Conqueror : they alone, that is to say,might hun t the beasts of the warren. It was laid downin these charters, that every breach of the right of warrenwas punishable by a fine of ten pounds to the king:

Outside these various preserves, royal and other, itappears that the chase was free in England during themiddle ages. On this point the evidence, thoughnaturally meagre, is sufficiently convincing.Vt was

I Turn er, pp. cxv sqq.2 Per breve, magister Simon de Wauton fecit capere in foresta deRokingham octo damas et quatuor damos vivos, de dono domini regis, ad

parcum suum instaurandurn (Anno 1253, ib id . , p. 106).3 The kin g was in general opposed to the elargacio of a seignorialwarren over the lands of the lord's free tenants or the lands of his neigh-bours (Turner, p. cxxv).4 Ibid . , pp. cxxiii sqq. ; cf. Ro t . Pa r l . ii, 75 b.5. As to lands where the chase w as free, besides the documents cited byTurner (pp. cxxiii, n. I cxxviii, cxxx, cxxxiii) see Ro t . Pu r l . i 33oa,no. 207, and in particul ar certain ch arters of disafforestment granted byJohn, notably the one in which he concedes the disafforestment of a dis-trict in Essex : ta quod tota foresta infra predictas metas contenta ethomines ibi manentes et heredes eorum sint deaforestati et liberi et solutiet quieti in perpetuum de nobis et heredibus nostris de omnibus que adforestam et forestarios pertinent, e t q u o d c a p t a nt e t h a b e a n t o m n i m o d a mv e n a t i o n e m q u a m c a p er e p o t er i n t i n f r a p r e di c ta s m e t a s ( Ro t . Ch a r t a r u m ,

ed. Hard y, p. 123. Cf. ib id . , pp. 122, 128, 132, 206).


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56 STUD IES IN CONSTITUTION L HISTORYonly at the end of the fourteenth century that the idea-long entertained by the nobility1-of depriving thecommon people of the right to hunt game, made itsappearance in English law.

In order to form an accura te estimate of the extent andvalidity of the grievances of the nation agai nst the crown,future writers on the Forest will have toImportance ofthequestion dispel the obscurity which surrounds thisofth e right of question of the ri ght of the chase in Eng-the chase land. And with their treatment of theForest they must combine tha t of the warrens, just a s thetwo are connected in article s of the Great Charter .=

W e come now to a subject which is better known-the organisation of the Forest at the time of its highest

develovment, that is, duri ng the rule of theTherganisationorest first Plantagenets. ~ t u b b sealt with thesubject ;3 but Mr. Turner's excellent studyhas given us more exact knowledge and corrected certainmistakes. From it we have drawn most of the shortsketch which follows, and the reader may be referred toit for all tha t concerns rhe details of forest procedure.

Nobody had the right, without royal permission: totake any of the game, wood, or pasture of the Forest-not even the baron or freeholder on hisThe protection own land, if that land lay within the boundsof the Forest of a forest. Those who dwell within theForest, writes the author of the Dia lo g u s de Scaccario ,

do not take of their own wood, even for the necessitiesof their house, except under the view of those who areappointed to keep the Forest. Th e righ t of cutt ing

1 Cf. Liebermann, P s e u d o -C n u t , pp. 45, 47.2. Omnes mal e consuetudines de forestis et warennis, et deforestariis e t warennariis3 C o n s t . H i s t . , vol. i (ed. 1go3), pp. 434 sqq.4. For authorisations t o make clearings or enclosures, and the preli-minary inquiries, see W. R. Fisher, Fores t of Ess ex , pp. 321-2 On per-mission ro ta ke g ame see below, pp. 187-188.5. D la lo g u s , I xi, pp 102-3.

T H E FOREST ORG NIS TION I 57wood, whether for fuel or making repairs,Trespasses tothe vert : was narrowly restricted : anyone who

waste,nd purpresturessart, exceeded his customary rights committedthe crime of waste v a s t u m ); he had topay a composition in order to keep the wood he had cut,

and was amerced whenever the itinerant justices cameround, until the damaged trees had grown to their formerstate. If trees were uprooted to turn woodland intoarable or merely to gain a few square feet of soil, a finewas inflicted; and though the offender was not requiredto plant other trees, he had to pay a composition onevery crop raised on this assart. Thi s system ofconverting a punishment into an annual rent and anoffence into a permanent source of revenue is extremelycharacteristic. The chase was certainly the parent ofthe Forest, but it is nevertheless true tha t this institutionquickly acquired a financial significance : the king waseven more concerned to secure an income at the expenseof the inhabi tants of the Forest than to prevent thedestruction of wood. Furthermore, there was the crimeof purpresture, committed whenever, by enla rging afield, making a mill or a fishpond, a hedge or a ditch,anyone encroached on the domain of the king 's deer orrestricted their movements 2 Th e offender was fined, andmight only keep the land he had gained, or the works

he had constructed, by payment of a furtherTrespasses sum. As for the destruction of game, it wasto thevenison punished more or less severely, according tothe period, and it was guarded against byvexatious rules to which we shall return later.

1 LMuch welcome light is thrown on forest finance by Miss Margar etL Baleley in her recently-published monograph, Th e Fores t of Dean zni t s R e la t z on s w i th t h e C r o w n d u r z n g t h e T w e l f t h a n d T h i r t e e n th C e n tu r i e s(Transactions of the Bristol and Gloucestershire Archreological Society,vol. xxxiii, pp. 153 sqq.). It appears that t he financial resources of thisforest were not properly exploited until the 13th century.]2 , p r p r e s t u r a has the general meaning of enqroachment, usurpa-tion. See the passage from Glanvill cited by D'u Cange, s v porpren-*. clear distinction was not always made between the offence ofassart and that of purpresture.


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158 S T U D I E S I N C O N S T I T U T I O N A L H IS T O R YThe supervision of the Forest and the punishment of

offences were provided f or by a complicated system ofofficials and institutions-functionaries ap-The forest pointed by the king, commissioners and jurorsofficials chosen by election, officerswho held their posts

by hereditary right, investigations by commissions ofenqui ry, local courts, and eyres of i tinerant justices.At the head of the forest administ ratio n we find thecapita l is forestarius mentioned in the charter of 1217, orelse two hig-h dignitaries, who in the.The head thirteenth century had the title of justices.the administration From 1238 onward, it was usual for theForest to be administered in this way by two justices,one for the district north, the other for that south, of theTrent.l

Each of the forests, or each group of forests, wasadministered by an official who was called warden, bailiff,seneschal, or chief fore~ter.~ is post wasThe wardens sometimes here dit ar~ ,~ut even in this case

he might be removed. Wh en the warden was appointedby letters patent, the snme document often conferred onhim the custody of the castle of the di ~ t r i c t .~

Besides the warden, there were in most of the largeforests one or more forestari i de feodo, foresters de fd

who likewise saw to the preservation of theT h e vert and the venison, -and executed theforesters in fee decisions of the itine rant justices. The y1 Turner, pp. xiv sqq. [Mr. Turner has printed a list of the justicesof the forests sou th of the T re nt (1217-1821) in E n g . H i s t . R e v . 1903, pp.

I 12-1 16.12 ~u ;n er , pp. xvi sqq. On the rights possessed by the wardens seeibid., pp. 66-7, and the passage quoted in the Introduc tion, p. xxi, n. ICf. an interesting document of the fourteenth century R o t . P a r l . ii, 79).LIn the Fr ench t he official under discussion is termed the chef-forestie?.Following Mr. Turne r (Introd., p. xvi) I shall refer to him as thewarden. 13 As in the case of John Fitz-Nigel, whose duties and rights weredetermi ned by an inquisition of 1266. In retu rn for the profits whichwere guaranteed to him, he paid the Icing forty shillings a year and keptthe forest of Bernwood (Tur ner, pp. 121-2).4. Turner, In trod . , p. xvii. LSee also Miss Bazeley's excellent acc ountof the rights and duties of the warden in the Forest of De an op. c it pp.175-191).J

T H E F O R E S T O R G A N IS A T IO N I59possessed certain rights over the Forest. Some, but notall, paid a ferm to the king.l They were not alwaysbound to obey the ~a r d e n . ~ome, without doubt, hadbeen enfeoffed by t he king, and owed submission to himonly; others had been enfeoffed by the ~ a r d e n . ~cca-sionally a whole forest would be put under the custodyof a forester-in-fee; his office would then be merged inthat of warden. An instance was the office of forester-in-fee of the forest s of Somerset, which was held in thefourteenth century by the family of M~ rt im e r. ~

The ordinary foresters were game-keepers who pur-sued and arrested offenders. A distinction is often made

between mounted foresters and under-Under foresters foresters who went on foot.5 They werechosen by the wardens, or, in some districts, by theforesters-in-fee, but they took an o ath of fidelity to theking. There were also private foresters,Woodwards called woodwards, who guarded the woodsheld by subjects within the limits o'i the Forest: theywere bound by oath to preserve the vert and venison forthe king's hunting ;and if they failed to do so, the wood

was confiscated. ~ a d horest, moreover, had asAgisters a rule four agis ta tores , charged with the over-sight of the a g i s t m e n t of the cattle an d swine in the

1. Turne r, pp: xxiii-iv, only touches upon the question of foresters-in-fee.Interesting deta~ls ill be found in Greswell, Forests of Som erset , pp. 136sqq. In Fleta , a legal treatise written about 1290, there are curious rulesfor the conduct of inqui sitions concerning foresters-in-fee F l e t a , lib. ii.c. 41, 30). [Miss Bazeley gives some particul arly interest ing informa -tion about the nine foresters-in-fee of the Fore st of Dea n (pp. 191 sqq.).See especially p. 194, where thei r possessions and obl igations ar e tabulate d.All paid an annual ferm to the kin g; but in the thirteenth century theycould assert no warr ant for their jurisdiction nisi antiqua tenura. ]2 A warden, H enry Stur my, declared in 1334 tha t all the forestarti defeodo in his forest owed him obedience R o t . P a r l . ii. 79). This wastherefo re not t he inval iable rule.3 Hugo de Stratford, quondam foresta rius de feodo de balliva deWakefeud, reddidit per annum domino Johanni de Nevyle, tunc senescalloforeste, pro predicta balliva, ad firmam, duas marcas et dimidiam, etc.(Turner, p. 123).4. Greswell, pp. 150 sqq.5. Fisher, Forest o f Essex, p. 1 37; Greswell, p. 144.


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160 STUDIES IN CONSTITUTIONAL HISTORY T H E FORES T ORGANISATION 161

woods and fields, and with the collection of the rentsexacted for pa~turage.~

The verderers belong to another class. They wereknights or substantial landowners who had property inthe Forest. They were elected in the countyVerderers court, generally t o the number of four in eachforest, to attend the forest courts of justice. OnceRegarders elected, they as a rule retained office for life.2Finally, the regarders were sworn ltnight~,~charged with a temporary commission of enquiry. Thefunctions of the verderers and regarders can best beunderstood by an examination of the working of theforest court^ ^

Stubbs' sketch of the administration of justice in theForest5 is rather meagre and even wanting in accuracy.

The swanimote, which he represents as ajustice. court of justice cor responding to theTh e swanimote county court, was only an assembly of the

foresters, held to mike arrangemenis about the hasture,to receive the rents which it brought in, and to takeprecautions against injury to the deer during the fawn-i n g ~eas o n .~There were really only two kinds of

tribunals-the court of attachment, attachia-The m e n t u m , held as a rule in each forest everyof at tachment six weeks, and the court of the itinerantjustices of the forests, justiciarii itinerantes ad placitaforeste , who held an eyre in each forest every few years.Th e functions of the court of at tachment were rather

1 Tur ner , pp. xx sqq., xxiv sqq., xxvi. Du Cange, s.v. agistare.2. Turner, pp. xix-xx, xxvi.3 [Turner, pp. lxxv sqq.]4. In re gard to the following section, see the details given by Coke ,F o u r t h I n s t i t u t e , ed. 1644, ch. Ixxiii, pp. 289-320; Tu rn er , pp. xxvii sqq.very clear su mmar y is given by W. S. Holdswortll, History o f Engl ishL a w , i, 342 sqq.5. Stubbs, Co n s t . N i s t . , i 437 sqq.6 This appears clearly from 8 of Hen ry 111's Char ter of the Forest.The misapprehension as to the nature of the s wan imo t~originated withManwood ; f. Turner , pp. xxvii sqq. The term swanimote is, however,sometimes applied to the courts of attachment and to the forest inquisi-tions.

administrative than judicia1.l Only minor trespassesagainst the vert were punished there: people who hadcut boughs, for instance, might be sentenced to a fineof a few pence. Important cases concerning the vert,and all concerning the venison, went before the justicesin eyre.

W e must now glance at the preliminary proceedingsin the cases which were broueht before the itinerant

justices. when the offender was notTh e court of theitinerant iustices: caught in the act by the foresters, there. -preliminary were several types of inquisition byproceedings which he might be discovered. As earlyas the twelfth century and perhaps before, there tookplace every three years the vis i ta t io nernorum or

( ( regard. 2 Th e regarders were twelve knights,Th e regardappointed by the sheriff at the instance of theking. Th is commission of enquiry had to visit the Forest

and investigate any offences that had been committed,basing their procedure on a list of questions which werecalled chapters of the regard. 3 Th e chief chapterswere those on assart, waste, and purpresture : othersconcerned the pasture on the demesne, the eyries offalcons and hawks, honey, forges and mines,4 h a r b o ~ rs , ~the weapons and dogs of the inhabitants of the Forest.

1. Attaclazamentum was the obligation to appear. The court of attach-ment was so called because its chief function wa s to view the attach-ments made by the foresters. Et praeterea singulis annis quadragintadiebus per toturn annum conveniant viridarii et forestarii ad videndumattachiamenta de foresta, tam de viridi quam de venacione, per presenta-cionem ipsor u~n orestariorum et coram ipsis attachiatis Charter of theForest, 8). At this court the attachme nts were enrolled, and the offendersfound sureties for their appeara nce before the itinera nt justices. Not-withstanding 8 of the charter, Mr. Turn er (pp. xxxv-vi) holds tha t as arule the nomination of sureties was performed in the court of atta chme ntonly for trespasses against the vert, and not for those against thevenison. See also p. XI2. Imminente visitatione nemorum, quam reguardam vulgo dicunt,que tertio anno fit Di a l . d e Scacc. I xi).3 Tur ner , pp. Ixxv-vi, mentions several versions of the chapters o f.the regard.4. Bec ause wood was needed to work forges and mines.5. The records furnish instances of wood beizg stolen in a forest nearthe sea, and put on shipboard.


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62 STUD IES IN CONSTITUTIONAL HISTORY T H E FORES T ORGANISATIONAs for ~o ac hi ng , t least from the beginning,

ThenquisitionPecia1 of the thirteenth century, and probablybefore ,it was the occasion of special inquisitions

which involved the whole countryside in trouble. If abeast of the Forest was found dead, an inquisition todiscover the offender must be held by the four townshipsnearest the spot.

Poachers detected by the inquisition of the four iown-ships, or surprised in the fact, were generally kept underarrest until they had found sureties for theirIrn risOnrnent appearance before the justices in eyre. Inanapledges this way they sometimes spent a year ormore in gaol. persons accused of trespasses to the vertmight also, in certain cases, be kept in detention.^

Th e visitations of the justices were arranged by royalwrit, nominating j u s t i c i a r i i i t i n e r an t e s to hear and deter-mine the pleas of the Forest in a particularFrequency of county or gr ou p of counties. In the twelfththe eyre century the eyres occurred once in threeyears, since the regards tooli. place at that interval andwere held in view o f the coming of the justices. In thetime of Hen ry I11 they occurred about every sevenyears, like the eyres of crown pleas and common pleas;and the intervals between them became longer and10 ng er .~ The justices were persons of some eminence.One of t he two Justices of the Forest was always of theirnumber.

1. On this las t point, see the details given by Turn er, pp. xxiii sqq.According to the Assize attributed to Edwar d I, offenders again st the vertwere not liable to arrest and impriso nment until afte r their third attachia-mentum. (For the meaning of this word, see above.) Post terciumattachiamentum corpus debet attachiari et retineri S ta tu te s , i. 243 .As a mat ter of fact, the itin erant justices of Edward I gave instructionsin conformity with this rule see the Provisions of the justices, atNottingham, in 1287 (Turner, p. 63). Cf. the Assizes of Henry I1 andRichard I, cited below.2 [See Miss Bazeley's list of eyres in Gloucestershire during the twelfthand thirteenth centuries op . c i t . p. 214 . They were more frequent underHenry I1 th an afterwards, though even at this early time, the intervalsbetween them varied greatly. Wit h respect to the thirteenth century, thelist confirms the generalisations in the text.]

The itinerant justices dealt separately with the pleas ofthe vert an d the pleas of the venison. The p r e s e n t m e n t

was made by the foresters and verderers,Procedureat not by a regular jury. Th e report of thethe forest eyre inquisition was generally taken as sufficientproof of the fact s; and it was seldom that the townshipswhich had made the inquisition were required to comeand confirm the evidence orallv. In thepunishm nts thirteenth century convicted delinquentsinflicted were fined, and if they did not pay , weresent back to prison till they found the money. If anyonecited failed to appear, he was summoned in the countycourt, and if he remained contumacious, was outlawed.

T o give a clear impression of the effects of this systemof administration, it would be necessary to draw a map of

the Forest at the beginni ng of the thirteenthE& ,:ftentury. In the present state of our know-ledge this is impossible. But there is no

doubt that t heTor est comprised a good part of the realm.Foreigners and travellers noted with astonishment itsenormous extent. The Italian Polydore Vergil, whocrossed the Channel at the beginn ing of the sixteenthcentury, asserted that a third of Engl and consisted ofparks and forest, and a century later Moryson could stillwrite that there were more deer in England than in allthe rest of Eur0pe.l The statement of Polydore Vergilis evidently a serious exaggeration, for it refers to aperiod subsequent to extensive disafforestments. But itmight not be far from the truth if applied to the beginnin gof the thirteenth century. At that time indeed, beforethe disa fforestments carried out by John, H enry 111, andthe three Edwards, there were only six counties out ofthirty-nine which contained no F ~ r e s t . ~hese consistedof a compact group of counties corresponding to the

1 Authorities cited by Greswell, p. 242.2. Cf. t he lists of counti es in P a r l . W r i t s , ed. Palgrave, i. 90-1, 396-7 ;and Turner, pp. xcvi n. I, xcvii n. 3 xcix sqq. ciii n. 5 cvi sqq.8


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164 STUD IES IN CONSTITUTIONAL HISTORY T H E FORES T ORGANISATION 65ancient East Anglia and its marches-Norfolk, Suffolk,Cambridgeshire, Bedfordshire, and Hertf0rdshire.l Inanother quarter there was Kent, to which one might,strictly speaking, add Middlesex.2 In Kent, Norfolk andSuffolk, more than anywhere else, the rural populationmaintained its freedom after the Conquest, and thesewere precisely the districts free from the forest law. Onthe other hand, thirty-three counties, representing six-sevenths of the area of the realm, conta ined forests, oftenof grea t extent. Essex, which was indeed an exceptionalcase, was entirely forest in the day s of Henry I andHenry 11.4

W e can imagi ne the result of the state of th ings justdescribed. Th e forests swarmed with game, and even in

time of famine it was unlawful to touch it.Effects of the It had freedom and protection, and mightforest systemeconomic ravage th e crops without fear of arrows.

Th e very owners of the soil were forbiddento make clearings, on pain of fines and yearly composi-tions. A tenant was not allowed to follow his ownwishes in the development of hi s land, even to the extentof making a hedge or ditch. Th e ancient customaryrights which had formerly ensured to the Saxon peasantmany advantages an d some prosperity, were now pretextsfor the infliction of fi nes; at a time when the cultivationof forage-crops was seldom practised, the law forbade theuse of the grass-land an d woods for the feeding of cattle ;and one might not cut down a tree or a bough on one sown property, except under the surveillance of the all-powerful forester, with his vexatious restrictions anddemands. It was within his power to make a family s

1. It is, however, not quite certain that the three last contained noforest. See on this Turner, p. cviii.2. As we have seen, Middlesex contained a w arren, which w as underthe forest law. It was suppressed in 227 (Turner, p. cviii). There wasno forest properly so called in the county.3. Vinogradoff, V i l l ai i z ag e i n E n g l a n d pp . 205 sqq., 218 sqq., 3164. J H. Round, F o r e s t o f E s s e x in the Journal of the Bri t i sh Archmo-log ica l Associut ion new series, iii, 39

lot intolerable, and in the event of opposi tion, to summonits members time after time before the court of attachmentand ruin them by countless fines.

It was not only in the economic sphere that the forestlaw made its effects felt. From a legal and political

standpoint, the forests were a dangerousii political anomaly. They were withdrawn from theoperation of the common law and of the custom of therealm, and governed by rules laid down in special assizesand ordinances. In them, too, there lived troops of royalofficers, who alone were allowed to bear arms and whowere pledged by oath to serve the interest s of the k ing.Th e Forest was the stronghold of arbi trary power.

Such was the character of the Forest at the time of i tsgreatest extent and influence. W e thought it best tobegin by describing it: we have now to account for itsexistence, and to trace its history from its rise to itsdecline. W e shall be concerned in particular to showhow the Forest , a natura l outcome of the Conquest,became perhaps the most oppressive and the most hatedof the instituti ons which the Norman and Angevin king ssought to impose on their subjects, and how it conse-quently strengthened the hostility of th e barons, andfurthered the union of the English a gainst the despoticpower of the crown.


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168 S T U D I E S I N C O N S T I T U T IO N A L H I S T O RYvanquished. Confiscations were numerous, and the smallSax on freeholder received a mortal b1ow.l Th is generalestimate, which we adopt on the authority of the mostlearned students of the eleventh century, justifies us inregarding as probable and natural the accounts ofchroniclers concerning the establishment of the Forestin En~land. The event which most im-The creation Of pressed contemporaries was the making ofthe New Forest the New Forest in Hampshire. As every-one knows, William Rufu s was killed by a n arrow whilehun ting . Florence of Worcester, who died in 1118,declares that hi s fate was a stroke of divine vengeance,punishing the son for a sin committed by the father.For William the Conqueror, he says, to make the NewForest, had ruined a hitherto prosperous country, drivenout the inhabitants, and destroyed housesDiscussion of and churches. Later writers have en-Florence of Worcester's account larged on the same theme. Quite recently,however, the late Mr. F. H. M. Parkerhas called this story into question. According to him,William Ruf us was the victim of a conspiracy : Henry1's complicity was not beyond doubt: and the storyabout divine vengeance was invented to remove sus-picion. Long ago the worthy David Hoiiard, in his com-mentary on Littleton, affirmed in his academic style thatWilliam the Conqueror did not resort to the excesseswhich some English historians cast in his teeth, andthat it was he monks who gave him his bad reputa-tion. No purpose would be served here by a detaileddiscussion of Pa rker 's article, sound as many of hiscomments are. It is enough to point out that Florence

1. See above, pp. 21 sqq.2. See the details given by Freeman, History of the Norman Conquest ,iv. 611 sqq.3 Florence of Worcester (ed. Thorpe, Eng. Hist. Soc.), ii. 44 5.4. The Forest Laws and the Death of Wz l l iam R u f u s E n g l . I i i s t . R ev . ,.1912, pp. 26 sqq.).5 . Anciennes lorx des Fra n~ oi s onservdes dans les coutum es angloisesrecuerlltes par Littleton (ed. 1766), i. 448.

T H E F O R E S T U N D E R T H E N O R M A N S 169of Worces ter wrote too soon after the creation of the NewForest to risk so flagrant a falsehood, and that, even onthe theory of a conspiracy, such a lie would have beenvery clumsy. William Rufus was universally hated,regarded as an enemy to God and man; if, as Parkersupposes, there was a political motive for the circulationof a story of divine vengeance, it would have sufficed torecall the crimes and extortions of Ru fus himself, and itwas as clumsy as dangerous to assert facts which theenemies of the new king could have disproved. Final ly,Henry I was himself a great hunter, and i Florence hadbeen trying to please him, he would certainly have takencare not to represent the creation of the New Forest a s acrime. Hi s denunciations can therefore only be explainedon grounds altogether opposed to those suggested byMr. Parker. If, while on the subject of the death ofRufus, he brought in the ravages perpetrated by Williamthe Conqueror, it was because contemporaries reallyremembered them, and connected the misdeeds of thefather with the violent death of the son.

There is reason, however, for reg ardi ng the statement ofFlorence as an exaggeration. It has been shown that the

district afforested in Hampshire was by~ : $ ~ ~ ~ ~ ~ o o ko means entirely an inhabited andregarding cultivated country. I am not speak ing ofthe New Forest the negative argument put forward byarchaeologists, who have found no traces of pre-Normanvillages in this region : archaeological arguments areonly convincing when positive. But there is the evidenceof Domesday ~ools,which has been examined by Mr.Baring. It shows that William I found in a corner ofHampshi re 75,000 acres of a lmost deserted country, andof this he made a forest. He added, however, fifteen ortwenty thousand acres of inhabited land, on which therewere a score of villages and a dozen ham lets; anddoubtless thr ough fear of poaching, he evicted fivehundred families, numbering about two thousand


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17 STUD IES IN CONSTITUTIONAL HISTORYpersons. Later, the New Forest was further increased bybetween ten and twenty thousand acres, which weremainly covered with wood and thinly popu1ated.l

William the Conqueror and his sons, therefore, madeforests at their pleasure, without troubling much about

the distress they caused. Of the utterlyArbitrary policy arbit rary nature of the ir policy, we mayof the Normankings give another illustration, reported at aninquisition in a most nai've and certainlymost sincere style. Whi le travelling through Leicester-shire, Henry I saw five hinds in Riseborough wood : hedecided to affo rest the wood, and left one of his servantsto guard the game, the office afterwards passing to aLeicestershire man who held land in the neighbourhood.The wood in question was in a populous and cultivateddistrict. Th e famous articles concerning the forests inthe charters of Henry I and Stephen prove clearly that

the ~ b r e s t ontinied to- grow during the~ ~ ~ ~ ~ ~ ~ ~ W t heigns of the first three Norman kings.3

Under He nry I, the whole of Essex wassubject to the forest law, including the hundred of

1 Baring, T h e Maki n g of t h e N ew F or es t E n g l . H i s t . R ev . , 1901,pp. 427 sqq. ; 1912, pp. 513 sqq.) [The first article also separately inhis D om es day T ab l e s (~gog) ,pp. 194-~03.12. The inquisition was made in the relgn of Henry 111; the documentis curious in more than one respect: Cu m rex Henricus primusitu rus fuisset versus partes aqui lonares, transivit per quendam boscum,qui vocatur Riseberwe, qu i boscus est in comitatu Leycestrie ; et ibi viditquinque bissas ; qui stati m precepit cuidam servienti suo nomine Pichardusquod in partibus illis moraretur usque ad reditum s uum a partibuspredictis et dictas bissas interim ad opus suum custodiret. Contigit autemquod infra annum illum dictus rex ibi non rediit ; infra quem annum dictusPichardus associavit se cuidam servienti euisdem patrie, qui vocabaturHascullus de .4thelakeston, ad cuius domum sepius conversabatur. Finit overo anrio illo, postquam predictus rex rediit a partibus aquilonaribus,adiit dictus Pichardus regem p redictum, dicens se nolle amplius ballivampredictam custodire. Et tunc requisitus ab ipso rege quis esset idoneusad dictam ballivam custodiendam, respondit dicens quod dictus Hascullus,qui terras ibidem habuit vicinas et manens erat in eadem balliva. Et tuncdictus rex commisit Hascullo predict0 dictam ballivam custodiendamscilicet forestariam de comitatu Leycestrie et similiter Rotelandie, qui eamcustodivit toto tempore suo (Turne r, p. 45).

3 See the passages quoted In Stubbs, C on s t . H i s t . , i. 435, notes Iand 2

THE FOREST UNDER THE NORMANS 7Tendring, which was afterwards disafforested? Henry1's contemporary, Ordericus Vitalis, asserts that he

claimed for himself the hun tin g of the beasts of theForest in all England and hardly granted to a smallnumber of nobles and friends the privilege of coursing intheir own woods. 2 Th is is unquestionably a grossexaggeration? Wh at is proved by this passage is that,as other documents show, Hen ry extended the bound s ofthe Forest, and thus restricted the exercise of the right ofhuntin g by reserving it to himself in lands which did notbelong to the royal demesne. His object was to securefor himself the possession of h uge game-preserves, and a tthe same time, no doubt, a substantial income of fines forforest offences 4

It i s impossible, in the present state of our knowledge,to estimate the territorial extent of the Forest reign byreign. Nor is it much more possible toThe forest law trace accurately the growth of the forestunder William Iand william 11 law and organisation. Th e records are soscanty, so vague, sometimes so difficult todate, that no indisputable conclusions can be reached.I am inclined to think that, in its essential features, theforest law was already formulated in Normandy beforethe Conquest and tha t Willia m I established he peaceof his beasts on lines which were in general followed

1 On the extent of th e Forest in Essex, see Round, The Forest ofEssex, in the Journ al of the British Archceological Associatio n, new series,iii. 37 sqq.2. Ordericus Vitalis, ed. Aug. le Prevost, iv. 238.

3 Cf. the charter granted by Henry I to the citizens of London, infine : Et cives habeant fugationes ad fugandum, sicut melius et pleniushabuerunt antecessores eorum, scilicet Ciltre et Middlesex et Sureie S e l .C h ar t e r s , ed. H W. C. Davis, pp. 129 sqq.).4. Mr. Ro und, w ho emphasises strongly the fiscal charact er of t heenlargement of the Forest, thinks that in the vast preserve constitutedby the county of Essex, the kings seldom hunted outside the district ofWaltham For est of Essex, p. 39).5. Thi s is stated by the Anglo-Saxon Chronicle (ed. Thorpe , i. 355).From William 1 s letter to the Londoners, forbidding them, unlessindividually authorised by the archbishop to chas e the red-deer, roe,or any other game in Lanfranc's manor of Harrow, it is clear thatbesides the king, there were already subjects with special hunting rights.See J. H . Rou nd's edition of this charter London ers and the Chase, in theAthenceurn, 30 June, 1894, p. 838).


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7 2 S T U D I E S I N C O N S T IT U T IO N A L H I S T O R Yto the death of Henr y I. The baronies of the Forestwhich he established for instance in Somerset, were nodoubt instituted fo r purposes of political supervision, butthey were also the orig in of foresterships-in-fee which arefound in existence in the next century.l

William Rufus unquestionably had officers who pro-tected the game, made enquiry into encroachments, andimposed fines for trespasses against the venison, even inlands which were not part of the de me ~n e. ~n this reignthe forest administration seemed so intolerable to smalllandowners and to the Saxon peasants, that William, towin their help against the rebellious Normans, promised,among ot her delusive concessions, to give u p his forests ;and with this hope before them, they supported himfai th f~l ly .~

W e have rather more information as to the organisationof the Forest under Henr y I. W e must not indeed acceptwithout hesitation the authori ty of the so-Documents of thereign of Henry 1 called Leges Henrici Primi. Dr. Lieber-

'The ''J-eges mann, who has studied the collections ofHenrici pr imi twelfth-century laws with great learningand insigh t, sees in them no more than traces of thelegislat ion of Henry 1.4 He admits,s however, that, asthe compiler states,G the Forest was reckoned as anappur tenance of the crown in the time of He nry I, andthe seventeenth chapter of the Leges , composed of headsof chapters which summarise the powers of the forestcourts, he considers to be a fragm ent of the instructionsgiven by Henr y to his justices of the Forest.' It appears

1. A baronia Foreste , held of William I per serviczurn Foreste, was theorigin of th e office of forester-in-fee in Somer set (Greswel l, pp. 42 sqq.,g 5 r2. See the passages cited by Liebermann, Ueber Pseztdo-Cnuts Const i tu -tiones de foresta, p. 21.3. See the passages cited in Stubbs, C on s t . H i s t . , i. 321 2.4 . Liebermann, op . c i t . p. 2 3 .5 Ibid.6 . De iure regis. Hec sunt iura que rex Anglie solus et super omneshomines habet in terra sua Foreste e g e s H e n . p r im i, cap. x, ;in Liebermann, Gesetze der Angelsachsen , 1 556).7. Pseudo-Cnut , p. 2 3 .

T H E F O R E S T U N D E R T H E N OR MA NS 73from this chapter1 that the holders of l ands under theforest law were exposed to countless annoyances : theright of making clearings, of put ting up buildings, ofcut ting wood, of car rying weapons, of keep ing dogs, wasalready denied them or was subject to most irksomerestrictions they had to attend the forest courts whensummoned, and to act as beaters when the king wenthunting.

Authentic documents of the time of Henry I, such ascharters and the pipe roll, confirm the impression made

by this chapter of the Leges and point to itsCharters Of trustworthiness. Th e charters show that theHenry I king had a staff of foresters, called venatores,servientes, ministri, ho not only had oversight of theroyal Forest, but also strove to enlarge it, made them-selves troublesome to the neighbouring landowners, andprevented them from hunting on their own estates andclearing their land.3 Th e Charter of t he Forest of 12 17proves that the egard was known in the days ofHenry I, since, according to the fifth article, the( ' egarders went hrough the forests to make theregard a t the time of the first coronation of H enry I1 ;and they had certainly not been instituted during theperiod of anarchy which followed Henry 1's death.4

1. It runs as follows De Placito Forestarum. Placitum quoqueforestarum multiplici satis est incommodi tate vallatum de essartis ; decesione ; de combustione ; de venacione ; de gestacione arcus et iaculorumin foresta ; de misera canum expeditacione ; si quis ad stabilitam nonvenit ; si quis pecuniam suam reclusam dimisit ; de edificiis in fo resta ;de summonicionibus supersessis; de obviacione alicuius in foresta cumcanibus ; de corio vel carne inventa (Liebermann, G es e t z e , i. 559).

2. See the address of a charter of Henry I gran ting t o the monastery ofAbingdon the tithe of the venison taken in Windsor Fores t: Willelmofilio Walteri, et Croco venatori, et Ricardo servienti, et omnibus ministrisde foresta Windesores Historia monaster i i de Abingdon, ed. J Stevenson,ii. 94 .3 Henricus, rex Anglie, Croco venatori, salutem. Permitte lucrariterram monachorum Abbendone de Civelea et de Ualingeforda, illamscilicet que non noceat foreste mee et qu ad non sit de foresta meai b i d . , ii. 83). Silvas de Bacchleia et Cumenara iste abbas Faritius aregis forestariorum causationibus funditus quietas et in eis capreorurn

venationem, regio obtinuit decreto i b i d . , ii. 3).4. See also the passage from the Chronicon abbat iae Rameseiensis .quoted below, p. 176, n. 4.


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174 S T U D I E S I N C O N S T I T U T IO N A L H I S T O R YFinal ly the still extant pipe roll of the thi rty-first year ofHenry 1's reign, claims particular attention. l

Th is valuable document makes occasional mention offines inflicted at the pleas of the F ~ r e s t , ~nd for thecounties of Essex and Hertford these formTh e pipe roll the matter of a special chapter entitled Dep la ci ti s f o r e ~ t e ~The grounds for the sentence havingno interest for the Exchequer, the accounts very seldomoffer any valuable details. W e find, however, evidenceof collective fines paid by townships at the pleas of theForest. If these are compared with similar fines paidin the thirteenth century, they prove beyond questionthat, a s early as the time of H enr y I, when a beast ofthe Forest was found dead, the nearest township mustdiscover the offender or else pay a fine. Such wasevidently the content of the instructions concerningdiscoveries of the remains of game-under the headin g

De corio vel carne inventa -in chapter xvii of theLeg es Hen r ic i p r imiFinally these accounts prove beyond dispute that,

under Henry I and perhaps before him, the justices ofthe Forest administered a written law, a forest

The forest assize, which contained a special prohibitionAssize I against keeping greyhounds in the royalForest.

1 Magnum rotulum Scaccarii vel magnum rotulum Pipae de anno 3 r0Henrici primi, ed. Hun ter, 1833.2 For example, p. 49, under Surrey Albericus clericus cornpoturnde xxxvis. viiid. de placitis Rad. Bass. de foresta.3 Pp. 157 159. The counties of Essex and Hertford had a singlesheriff. It is doubtful, as was said above, whether Hertfordshire con-tained any forest.4. E t de xxs de villata de Benflet Et de dimidia marc a de villatade Dunton. Et de dimidia marca de villata de Mucking. Et de xxs devillata de Neupo rt, etc. (ibid., p. 158).5. See above, p. 173, n. 16 Gilbertus de Mustiers reddidit com potum de viii li. xl d. proleporariis habitis contra assisam (p. 158). On the mean ing of the wordAssize, see Stubbs, Const. Hist., i 614 and note. We do not think

tha t this word can simply mean custom.

T H E F O R E S T U N D E R T H E N O RM AN S 7 5It would not, we think, be impossible to reconstruct

this assize with some approach to accuracy. TVe canform no theory as to its date, and there are no groundsfor ascribing it to Henry I rather than to William theConqueror. But some notion of its contents may begained by a s tudy of the so-called Assize of Woodstock,which certainly does not belong entirely to the reign ofHenry 11.

Th e Assize of VCToodstock was several t imes edited byStubbs. It is to be found in the G e s t a H e n r i c i S e c u n d iTh e Assize ofWoodstockcontains materialof earlier da te

ascribed to Benedict of Pe terborough, andin the chronicle of Rog er of Hoveden,while there are also separate copies of it.lStub bs asserts that he failed to find a single

satisfactory text, and indeed the wording of it is obscure,badly arranged, and sometimes inconsistent. It looks asi the text had never been officially fixed, and as ifdifferent copyists had s trung together artic les of variousperiods. Th e auth or of the Ges ta Hen r ic i S ecu n d i givesonly the earlier articles (I, 2, 3, and 6). Roger ofHoveden does not quote the four last (13, 14, I and 16).In the first article the king announces his resolve tosubject poachers to the cruel penalties of mutilationwhich had been inflicted in the time of h is grandfath erHenry I, whereas in the last he threatens them withimprisonment and fine only.

The twelfth article moreover begins with the wordsA p u d W o d e s t o k e r e x p re ce p it as if the precedingsections belonged to a period before the assembly atWoodstock. Stu bbs believed that the version whichappears in the Ges ta Hen r ic i S ecu n d i was an ancientassize: additions would afterwards be made to it, andarticle 12 would be inserted last, a t the time of the council

1 See the texts edited by Stubbs in Gesta regis Henrici SecundiBenedicti abbatis (R. S.), i. 323 ; ibid., ii, Appendix iv, a text collatedwith two copies of t he time of Elizabeth ; Roger of Hoveden, Chronicle(R. S.), ii. 45 sqq. ; Se l Charters, pp. 186sqq.


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176 STUDI ES IN CONSTITUTIONAL HISTORYat He nry' s hunting-lodge of VCToodstock.

Clauses which This view appears to me unconvincing.da te f rom the r e ignof Henrv I In my opinion, it would be more plausibleto regard as ancient clauses, dating atleast from the days of Hen ry I those to which parallelscan be found in the sources referred to above-chartersand accounts, survivals of Henry 1's legislation, andchronicles of the first Norman reigns. On this hypo-thesis, the assize mentioned in the pipe roll of Henry Iwill have contained the prohibition to carry arms and tokeep greyhounds in the Forestjl the order to mutilate thepaws of do gs in all places where the peace of the king 'sbeasts was establishedj2 the prohibition agains t destroy-ing the woods in the F ~ r e s t , ~he order for the triennialinspection of assarts, purprestures, and wastej4 and thecommand that all the inhabitants of the district shall attendthe pleas of the F o r e ~ t . ~ hese early rules are preserved,we think, in articles 2 14, 3, 5 10 and 11 of the Assizc:of W00dst0~1i. Finally article I of that assize evidentlyalludes to the fact that under Henry I poacl~erswerepunished by blinding and castration, and the old assize

1 Assize of Woodstock, 2 ; cf. the passages from the L eges H en .primi cited above, p. 173, n. I (de gestacione arcus et iaculorum in forestade obviacione alicuius in foresta cum canibus), and the passage fromthe Pipe Roll, s u pr a , p. 174, n. 6.2 Assire of Woodstock, 1.4; cf. Leges Hen. pr imi (de miseracanum expeditacione) and Ordericus Vitalis, ed. cit., iv. 238, (in referenceto Henry I) : Pedes etiam canum, qui in vicino silvarum morabantur, ex

parte precidi fecit. See also art. 6 of the Ch art er of the Fore st of 1217,which mentions the practice a s established a t the accession of Henry 11.3 Assize of Wood stock , 3 and 5 ; cf. L ~ g e s e n . pr im i (de cesione,de combustione), and Henry 1's writ to the huntsman Croc, supra, p. 173,n. 3.4. Assize of Woodstock, 10 ; cf. Leges Hen. pr imi (de essartis ; deedificiis in foresta), and art. of the Charter of the Forest of 1217,which takes us back to th e accession of Hen ry 11. William Rufusasserted his right t o have the forests of th e abbeys inspected by hisforesters de bestiis et de essartis Chron. abbat iae Rameseiensis , ed.Macray, p. 210). Henry I exempted an esta te of the abbey of Ramsey,de visionibus forestarum et essartis i b i d . , p. 214).5. Assize of Woodstock, 11 ; cf. L eges H en . p r i m i . de summoni-cionibus supersessis.

6 The text of the Assize of Woodstock in the Gesta I-lenrici Secundi(i. 323) is the only one which specifies ut a mit tat oculos et testiculos.In his Select Charters , Stubbs gives the milder version of other copyists.

TH E FOREST UNDER T H E NORMANS 77perhaps enjoined this penalty. In any case it must haveresembled the assizes of H enr y I1 and Richard I nentirely forbidding any interference with the king'sbeasts.

It is clear that Henry I was faithful to the declarationof his coronation Charter : he retained the Forest in hishand. He moreover enlarged it and probably increasedrather than lightened the severity of the forest law.

The exercise of the right of the chase, at the time whenHenry I ruled in England and Louis VI was king of

France, map be cited as a typical exampleof the power of the Norman k ings an d thewith France weakness of the Capetians. In France the

right belonged in theory to all the h u t s j u s t i c i ers andto those on whom they had conferred it; but in practiceit had often been acquired by force and in that case hadno other foundation than immemorial possession, or

eisin. It was distributed in an extremely complicatedand perplexing way, and was the object of numerousclaims and negotiations. Th e king had forests andwarrens, with an administrative system and foresters;but with respect to the chase, his prerogative cannot beclearly differentiated from the ri ghts of particular nobles,bishops, or even, in some cases, urban or rural communi-ties. He might possess hunt ing rights on land outsidehis demesne, but within the demesne there were chaseswhich did not belong to him. He had the privilege ofhunting in many forests which belonged to the Church,but there were others of these where the hun ting was inthe hands of a lay lord. It was only after the beginning

1 I do not venture to suggest a date for the remarkable thirteentharticle, which lays down that every man dwelling infra pacem venationisshall at the age of twelve swear to the peace of the venison. The endof t he clause (et clerici laicum feodum tenentes) is apparently a lat eraddition, which may be attributed to Henry 11. Ther e is here an evidentecho of Anglo-Saxon cust om : according to the laws of Cnut, every manof the age of twelve must swear not to be a thief (Liebermann, G es e t z e ,i. 324-5).


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178 S T U D I E S I N C O N S T I T U T I O N A L H I S T O R Yof the reign of St . Louis that the kin g claimed superiorright s in respect of warren.l

With the death of Henry I and the accession ofStephen , a chapter in the history of the Forest comes toan end. U p to this time, its bounds were continuallyadvancing, and its law was becoming, as it seems, moreand more oppressive. From now to the end of theMiddle Ages, periods of decline and progress succeedone another, according as the power of the crown wanesor waxes. Th e ( ' isafforestments soon begin, inter-rupted by new afforestations. The forest law, systematisedby the lawyers, but feebly defended by them-doubtlessbecause it was scarcely defensible-soon undergoesviolent attacks at the hand s of the nobles, and from thereign of John gradually decays. Its history is nowbound u p with the history of the Constitut ion, until,having become harmless, it ceases to be the theme ofcomplaints and falls into obscurity.

1 It is impossible to cite here the very numerous documents on whichthe last paragraph is based. They ar e drawn from royal records andthose of the Parlement of Paris, from the E n qu i t e s of St. Louis, fromCart ular ies, and so forth. They will be cited in an essay on The Forestand the Righ t of the Chase an France , which we hope to publish in 1915

T H E F O R E S T UN D ER T H E ANGE VI NS .In the charter which he granted in March or April

136, Stephen pledged himself to restore to the churchesand to the realm he forests which Henrv

Disafforestment I had added to those of Wil liam I andunder Stephen William 1I.l It has been proved that hepartially redeemed his promise, though he exacted pay-ment for the disafforestments2 Soon, however, therewas no need to buy his consent : the civil war reducedhim to impotence; and everyone was free to chase theking's deer and make encroachments on his F ~ r e s t . ~After these years of an archy came a reign marked bythe increase of royal power and the making of new laws.

A great hunter, Henry I1 was at the sameHenry I1restores time an administrator, a jurist, a nd a vigorousthe forest and strong-willed ruler. I n the charter which hejurisdiction issued after his coronation, he confirmed theliberties and grants bestowed by his grandfather, HenryI but said nothing about those conceded by Stephen.His silence has been explained on the ground that heregarded as excessive the advantages conferred on theC h ~ r c h . ~ ut without doubt he had equally strongobjections to the disafforestments promised in Stephen'scharter. Indeed he resumed the lands which, whether byvirtue of the charter of 1136 or in the confusion of thecivil war, had been disafforested in the reign of his feeble

1 Stubbs, C on s t . H i s t . , i. 348 ; [ S e l . C h ar t e r s , pp. 143 sqq.]2. Round, Forest of E s s ex , pp. 37-8. Stubbs' statement C on s t . H i s t . ,i 348) tha t Strp hen kept none of these promises, is therefore toostlong. See also op . c i t . , p. .3493 See the instances mentioned by R ound, Geoffrey de Mandevi l le ,

P 376 F or es t o f E s s ex , p. 39.4 BQmont, Chartes des l iber tes anglatses , Introd. xv. n. I

179


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18 STU D I ES I N C O N STI TU TIO N A L H I STO R Ypredecessor; and he also made some entirely new addi-tions to the Forest, which under his rule became largerthan ever.l Th e pipe rolls prove that he derived largesums from it through judicial fines and rents exacted ascompensation for encroachment^

The royal officials set themselves to formulate a legaltheory of the Forest. In the Dia lo ~u s e Scaccario, as

we have seen, Richard ~i&- Veal ,he treasurer,Theories ofthe lawyers examined the forest organisation, thoughwithout trying to justify it on other grounds

than the good pleasure of the king. Th e Constitutionesde Foresta attributed to Cnut are an apocryphal work ofslightly different tendency, written probably at the endof H enry 11's reign by one of his foresters3 The Forest,it seems, roused interest enough in the jurists for one ofthem to devote himself to fo rging a document in itshonour.

In these conditions it was natural that a law-givingking should publish an Assize of the Forest. Thi s hedid at Woodstock in the latter part of hi sHenry I reign. In a sixteenth-century copy the docu-Assize ment is entitled Assize of the lord KingHenry touching his Forest and his venison, by thecounsel and consent of the archbishops, bishops andbarons, earls, and nobles, at Woodstock." W e have

1. Cha rter of the Forest of 1217, j I : Omnes foreste quas Henricusrex avus noster afforestavit." See below (p. 215, n. 4) the passage fromthe royal lette rs of 1227 : . . tam bosci quos ipse ad forestam revocavitquam illi quos de novo afforestavit." It is scarcely necessary to say thatin the reign of Henry 11 as evidently at other times, the foresters playedgreat part in determining the territorial extent of the Forest, and thatits continued growth was due in great measure to their initiative. Cfthe letters of Henr y I11 published by Turner , p. xcvi . . et que foresteafforestate fuerunt per Henricu m regem avum nos trum tempore Alani deNeville vel tempore aliorum forestariorurn suorurn, de voluntate ipsiusregis vel de voluntate aliorum forestariorum suorum."2 Under the head of assarts, Essex in one year brought in 215 I 18 .(Round, Forest of E s s e x , p. 3 9 .3. Liebermann, Pseudo-Cnut, pp. 32, 35, 37.4. The title is given (of course in La tin) in MS C o t to n V e s p a s ia f l , F v(Roger of Hoveden, ed. Stubbs, ii. 245, n. 2 .

T H E F O R E S T U N D E R T H E A N G E VI NS 181tried to prove that part of this assize must have beenderived from a more ancient assize mentioned in thepipe roll of the thirty-first year of Henry I. But most

of the articles certainly bear the mark of theCheck administrati on of Henry 11. Such are articleson theforesters 4, 6, 7, 8, on the oversight of the Forests andthe pledges demanded from the foresters,those included who were appointed by individuals toguard private woods within the forest boundaries.Henry 11's foresters were zealous and greatly feared.Even villeins were at times appointed to the position.'Henry took care to protect h is forest: officials, and in 1175four knights were hanged for killing one of theme2 Atthe same time he would tolerate no corrupt dealings, asis shown by the famous instructions which have beenpublished under the title of the Inquest of Sheriffs.3 Thefirst and the last articles of the Assize of Wood -Penalties stock probably belong also to the reign ofHenry 11, despite the fact that they contradict each otheras to the punishment to be inflicted on poachers-a pointto which we shall return later. Article 12, which inflictsimprisonment on a delinquent after his third offence,begins with words-" at Woodstock the king ordained-which leave no doubt as to its origin. Finall y, it wascertainly Henry I1 who drew up article g, one of themost characterist ic and important of the assize-thearticle concerning clerical offenders.

1. Ex servis forestarios super provincias constituit (Ralph Niger,quoted by Liebermann, Pseudo-Cnut, p. 28).2. Ges ta I lenr ic i I I , i. 93-4.3. l n q t ~ c s t f SItertffs, art. 8, in S e l . C h a r te r s , p. 177 : "Et inquiraturquid vel quantum acceperint forestarii vel baillivi vel ministri eorum, postterminum praedictum, in baillivis suis, quocunqur. modo illud ceperint velquacunqur occasione ; et si quid perdonaverint de rectis regis pro praemiovel promissione vel pro arnicitia aliqua . et si forestarii vel baillivieorum aliquem ceperint vel attachiaverint per vadium et plegium, velretaverint, et postea sine judicio per se relaxaverint . . . On thisInquest, ordered by Henry I in 1170, after an absence of four years f romEllgland, sce Stubbs, C o n s t . H i s t . , i. 510 sqq., and Se l . C h a r te r s , pp.'74 sqq.


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182 S T U D I E S I N C O N S T I T U T I O N A L H I ST O R YThe king, this article states, orbids any clerk to

trespass against his venison or his forests;he has strictlyordered his foresters, if they find clerks tres-ClericaloEenenderspassing, to seize them without hesitation, keepthem in custody and attach them; and he him-

self will be their warranty. Thu s the clergy, thoughwithdrawn from the jurisdiction of the common law, cameunder that of the Forest. Some years before, in 1175,Henry I1 had commanded that all persons should besou ght out who, taking advant age of the rising of hissons, had chased the kin g's venison. Many clerks wereaccused and brought before the temporal courts; thepapal legate, Hugo Pierleoni, raised no protest : it wasunderstood between him and the king that the clergy,though in general exempt from secular justice, shouldlose their privilege in the case of forest offences1 Suc hwas the origin of the ninth article of the Assize ofWoodstock. From the point of view of Henry' sinterests, this clause was certainly unwise. Th e Churchwas the mistress of public opinion, and it was amistake to arouse her enmity. The clergy never

forgave the legate for his compliance,2 andHosti l ity o fthe the forest system became a theme forChurch towardsth e foresters clerical invective. So at least we may inferfrom a story told by Walter Map, one ofHenry 's itinerant justices. The bishop of Lincoln, St.Hugh, who had so great a moral influence at this time,said one day to Henry I1 that poor men oppressed by theforesters would enter paradise, but that the king and the

1. Ralph de Diceto, Ymagines h istoriarum, ed. St ubbs (R. S.), i. 402-3.See the passage from Henry 11's letter to the pope quoted in Stubbs,Const . Hist . , i. 436, n. 4. On the severity with which the offences of1175 were punished, cf. ibid. , p. 52 1 .2 G e s t a H e n . I I , i. ~ o j Praedictus cardinalis, qui in Angliam permandatum regis venerat, concessit et dedit domino regi licentiam implaci-tandi clericos regni sui de forestis suis e t de captione venationum.Ecce membrum Sathane Ecce ipsius Sathan ae conductus satellesqui tam subito factus de pastore raptor, videns lupum venientem, fugitet dimisit oves sibi a summo pontifice cornmissas.

T H E F O R E S T U N D E R T H E A NG E V IN S 183forestarii would remain for is , 0utside.l No doubt thepun had a great vogue, and reappeared in many sermonswhere the foresters were abused. Th e author of theM a g n a v i t a s a n c t i H u g o n i s declares that in his zealagai nst the foresters, enemies of the liberties of theChurch, St. Hugh went so far as to excommunicateGeoffrey, the su mmu s fo re s ta r iu s f enry I1 hadwinked at some of the deer-stealing and encroachmentsof the monks, he would perhaps have secured a littlemore peace for his successors.3Richard I-or rather those who governed Engl and for

1 [The beginning is wanting] verumtamen venatores hominum,quibus judicium est datum de vita vel de morte ferarum, mortiferi,comparatione quorum Minos est misericors, Rhadamanthus rationemamans, Aeacus aequanimis, nihil in his laetum nec letiferum. Hos Hugo,prior Selewude, iam electus Lincolniae, reperit r epulsos ab ostio thala miregis quos ut obiurgare vidit insolenter et indigne ferre, miratus ait :Qui vos?' Responderunt : Forestarii sumus.' Ait illis Forestariiforis stent.' Quod rex interius audiens risit, et exivit obviam ei. Cuiprior : ' Vos tangit haec parabola, quia, pauperibus quos hii torquentparadisum ingressis, cum forestariis foris stabitis.' Rex autem hocverbum serium habuit pro ridiculo, et ut Salomon excelsa non abstulit,forestarios non delevit, sed adhuc nunc post mortem suam sitant coramleviatan carnes hominum et sanguinem bibunt ; excelsa struunt, quae nisiDominus in manu forti non destruxerit, non auferuntur hii. Dominumsibi praesent em timent e t placant, do minum quem non vident offenderenon metuentes. Non dico quin multi viri timorati , boni et iusti, nobiscuminvolvantur in curia, nec quia aliqui sint in hac valle miseriae iudicesmisericordiae, sed secundum m aiorem et insaniore m loquor aciem." (Map,De nugis curia l ium, ed. Wright, pp. 7-8.) The author of the M a g n a r taSanct i Hugonis reports the saint's pun, but without mentioning the king :Recte homines isti et satis proprie nuncupantur forestarii, foris namquestabunt a regno Dei " (ed. Dimock, p. 176 .2 " Est . . inter alias abusionum pestes, prima in regno Anglorumtyrannidis forestarior um pestis videlicet provinciales depopulans. Huicviolentia pro lege est, rapina in laude, aequit as execrabilis, innocentiareatus. Huius immanitatem mali nulla conditio, gradu s nullus, nec quis-quam, u t totum breviter exprimamus, rege inferior, evasit indemnis, quemillius iniuriosa iurisdictio non saepe tentasset elidere. Ha c cum pernicie

primus Hugoni congressus fuit . . . Cum enim, more solito, ut in caeteros,ita et in suos homines, contr a ecclesiae suae libertatem, forestariidebacchari coepissent, eo usque res tandem processit, ut summum regisforestarium, nomine Galfridum, excommunicationis vinculo innodaret.Quo rex comperto vehementem exars it in iram " M a g n a v i t a S . Hu g o n i s ,ed. cit., pp. 125-6).3. On the procedure followed in the case of clerical offenders during thethirteenth century, and the complaints put forward by the clergy in 1257,see Turner, pp. lxxxvii sqq.


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184 S T U D I E S I N C O N S T IT U T IO N A L H I S T O R Y T H E FOR ST U N D E R T H E NGEVINS 185him durin g his long absences 1-and his successor John

maintained the severities of the forest law,The Forest and by extending the bounds of the forestsunder Richard Id made it yet more burdens~me.~ hen thebarons rose against Tohn and had him attheir mercy, they contemplated demanding the im-mediate reform of the Forest. W e have already re-printed an d discussed certain notes of an agent of Phil ip

Augustus, which, under the title of con-Originalf the baronsemands cessions of King John, throw much light

on the negotiations between the king andthe barons, and on the first demands presented by thelatter. Out of a dozen articles, three are concerned withthe Forest : and the impression of Philip 's agent wasthat the barons demanded the surrender of all the forestscreated by John, Richard I, and Henry 11; liberty forindividuals to take wood for their own use in the parts ofthe Forest which they h eld; a rule a s to the powers ofthe foresters in these same private woods; and the aboli-tion of punishment by death or mutilation for trespassesto the ~en ison .~The barons, however, let slip thisopportunity of endi ng the ty ranny of the forest system.

As a matter of fact, they inserted in their petition andin the Great Charter only two clauses specifically affect-

1 On the Forest under Richard I, see Hoveden, iv. 63. At the pleasof the Forest in 1198, the justices read certain praecepta regis whichrepeated (see the text in Hoveden, pp. 63 sqq.) Henr y 11's Assize, and addedseveral articles to it (arts . xiii, xiv, xvi). Trespasses to the venison,according to the Assize of 1198, were punished by blinding and cas tration(art. xiv.) A charter of Richard in favour of Ramsey abbey C ar t u l ar i u mmonasteri i de R ames e i a , ii. 296, no. 422) shows that the Church obtainedsome relaxation of the forest law only as an exceptional privilege.

2. The Great Charter alludes to $ores tati ons made by John andRichard (arts. 47 and 53). In the perambulationes published byMr. Tur ner (pp. 116 sqq.) and by Mr. Greswell F or es t s of S omer s e t ,pp. 272 sqq.) there are instances of afforestations made by John. On theother han d, a s we shall see later (pp. 2 2 sqq.), there were disafforestmentscarried out by Richard and Joh n, or at least promised by them, in returnfor money.3 See above, pp. 124 sqq.

inp the Forest: the king promised toClauses in theGreat Charter abandon the forests made by himself,lwithout formally pledging himself toabandon those made by ~i ch ar d-a nd e n r y1 ; and,secondly, the arbitrary summons to the pleas of theForest of those who dwelt outside i ts limits, was to bef ~ r b i d d en .~n addition the barons adopted a plan whichthreatened the whole system. They wanted to do awaywith the abuses which made the Forest intolerable, andwhich varied to a small extent in different par ts; andfearing lest some might be overlooked and spared, theydemanded the appointment of elected juries to holdinquisitions in every county regarding al l the evilcustoms touching forests, warrens, foresters, andwarreners the twelve sworn knig hts were even charged

with the complete and irrevocable suppres-Enquiry into sion of these kvil customs within the fifteenthe forests andwarrens days following the inquisition. The kinghad to accept this Draconian clause, andonly obtained, at the last moment, the concession that heshould receive notice before the abolition of any evilcustom was ann ~u nc ed .~ s early as 19 June, the realdate of the conclusion of peace between John and theb a r ~ n s , ~e called upon the sheriffs to cause these juriesto be elected in every cou nty ; and another writ of 27June shows that the knights were at once chosen, andtha t they were considered as local representatives of thecommittee of twenty-five b a r ~ n s . ~

1 Artides of the Barons, 47 ; Magna Carta, 47 : Omnes foresteque afforestate sunt telnpore nostro statim deafforestentur.2. He promised that complaints on this point should be impartiall yconsidered after his return from crusade (Magna Carta, 53).3 Articles of the Barons, 39 ; Magna Carta, 44.4. They added and rivers. See also 47 of th e Artic les and of MagnaCart a as to the disafforestment of rivers preserved by John. But thequestion of fishing played only a minor part, and was put on one side inthe Charter of the Forest.5. Articles of the Barons, 39 ; Magna Cart a, 48.6. MacKechnie, M agn a C ar t a , p. 47.7 Sel . Charters , p. 303 ; MacICechnie, op c i t . , pp. 576-7.8. MacKechnie, p. 577 ; the French text is in BBmont, C h ar t e s ,p. xxiv n.


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188 S T U D I E S I N C O N S T I T U T IO N A L H I S T O R Ythe principle laid down in this letter was confirmed inthe eleventh article of the Charter of the Forest everyarchbishop, bishop, earl, or baron passing through theForest, migh t take one or two head of venison under theoversight of the forester.

Another privilege of the king was that of reserving forhimself, thro ughout the realm, the eyries of the fowl ofthe Forest-hawks, falcons, eagles, andiioneyyriesand herons-and the wild honey found in thewoods. Th e Norman kings had in thiscase apparently brought over and converted into a royalprerogative a right which in France every lord seemsto have enjoyed on his estates.l By article 13 of theCharter of the Fores t, Hen ry I11 renounced these claimsevery free man might have the eyries and the honeyfound in his woods. Th e high prices which were paidfor the birds used in hawking, and the extensive usemade of honey and wax, gave much importance to thisconcession.

In the letter to Brian de l'Isle, mentioned above, Johnstated tha t the beasts of the Forest had more to fear fromthieves than from the barons. All manner ofMeasuresagainst precautions were talten against poaching bypoachers the inhabitants of the Forest or by dogs. Inmaintained the pleas of 1209 which have been print ed byM r Turner, wi read of poachers chased by the foresters,of inhabitants of the Forest prosecuted for possessingarms without permis

Const Hist Uk1911

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