CHAPTER FORTY-FOUR.

Homines qui manent extra forestam non veniant de cetero coram justiciariis nostris de foresta per communes summoniciones, nisi sint in placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro foresta.

Men who dwell without the forest need not henceforth come before our justiciars of the forest upon a general summons, except those who are impleaded, or who have become sureties for any person or persons attached for forest offences.

These provisions were intended to redress one of the many abuses connected with the administration of the oppressive forest laws.

I. _The Royal Forests._ For at least a century before John’s reign the word “forest” had acquired an exact technical meaning, and was applied to certain wide districts scattered irregularly throughout England, reserved to the Crown for purposes of sport. Here the wild boar and deer of various species found shelter, in which they were protected by the severe regulations of the “Forest Law.” It was the prevalence of this code which absolutely marked off the districts known as royal forests from all that lay _extra forestam_; and this made an accurate definition possible. A “forest” was a district where this oppressive law prevailed to the absolute exclusion of the common law which ruled outside. The forests with their inhabitants had been deliberately omitted from the unifying process, by which the rest of England had been assimilated under a uniform _lex terrae_. They remained in great measure at the discretion of the Crown. This exclusion of the common law from the confines of the forests was the root from which many evils grew. In no other sphere was the prerogative so unfettered as within the charmed circles which marked off these royal preserves from more fortunate parts of the kingdom.

From this definition of a forest as a _legal_, not a _physical_, entity, it follows that the word is far from synonymous with terms such as “wood” or “covert,” implying merely natural characteristics. A forest was not necessarily covered with trees throughout the whole or even the greater part of its extent. Miles of moorland and heath and undulating downs might be included, and even fertile valleys, with ploughed fields and villages nestling among them. The same forest, indeed, might contain many woods, some of them on royal demesne and some the property of private owners. In certain places the king’s proprietary rights might be co-extensive with his forestal rights; but, more frequently, large tracts of the _solum_ (whether wooded or bare) were owned by freeholders, whose rights of property tended to become merely nominal, when overridden by the king’s rights of the chase. Men might live, and did live, within the boundaries, but they could enjoy no rights of personal freedom or of property inconsistent with the rules laid down by the Crown to protect its own interests. Within the imaginary line the king’s power was supreme, and he used it frankly for the preservation of beasts of the chase, not for the good government of the men who happened to dwell there. These unhappy beings were absolutely subject to the harsh forest code, a law, in the expressive words of Dr. Stubbs, “cruel to man and beast.” If accused of forest offences, they had no protection from the common law of England any more than from the law of a foreign land. It was something, however, that even in these high places of royal prerogative, customary rules grew up, obtained authoritative recognition, and gradually hardened into laws which set some limits, however inadequate, to royal caprice. Before John’s time the forest code, as set forth in the Assize of Woodstock, and exemplified by the practice of forest officials, had taken its place as a definite system of law distinct from common law and canon law alike.[899]

Footnote 899:

A convenient short account of the forests, with their special laws, special officials, and special courts, will be found in W. S. Houldsworth’s _History of English Law_, pp. 340-352. For fuller information see _Dialogus de Scaccario_, I. xii.; John Manwood, _Book of the Forests_ (1598); Coke, _Fourth Institute_, 289–317; G. J. Turner, Preface to _Select Pleas of the Forest_ (1901); and an article in the _Edinburgh Review_ for April, 1902.

II. _Origin of the Forests._ Before the Norman Conquest the kings of England do not seem to have laid claim to any exclusive prerogative in this respect. The only ordinance of Cnut on the subject admitted to be authentic enacted merely that every man should have his own hunting, while the king should have his.[900] The rights of the Crown, however, were strengthened and consolidated by the events of 1066, and by the hardening of feudal theory which followed. All unoccupied waste lands became royal property; and these were the natural resorts of the larger sorts of game. The king established a claim to a preferential, and, at last, to an exclusive, right to hunt the more important species of animals _ferae naturae_, known as "beasts of the forest"—embracing the red deer (harts and hinds), the fallow deer (bucks and does), the roe deer of both sexes, and the wild boar, with, exceptionally in one forest, the ordinary hare.[901] The Conqueror and his sons set great store on their hunting, and warned all intruders off the wide tracts of land claimed as royal preserves. Henry I. formulated the doctrine of the forest law, and it was probably due to him that “forest” acquired its highly technical meaning. With the special meaning came the express claim to a monopoly of hunting, together with supreme and exclusive jurisdiction. The disorders of Stephen’s reign lowered the Crown’s authority in this respect as in so much else, and Henry II. found the forests much curtailed. He had no intention to acquiesce in this, but it was not till 1184 that he attempted, by the Assize of Woodstock, to formulate the rules of the forest law. In this sphere, as in so many others, the process of organization was completed by Henry II. building on the foundations laid by his grandfather; and the whole structure was bequeathed in a state of high efficiency to his sons. John’s attitude to the forest laws was not entirely consistent. The monk of Barnwall, whose work is incorporated by Walter of Coventry in his own, relates to John’s credit how, in the year 1212, he attempted, among other reforms meant to propitiate the people, some relaxations in the severity of the forest code.[902] Such clemency was exceptional. More characteristic of his normal attitude was the order issued on 28th June, 1209, that hedges should be burned and ditches levelled, so that while men starved, the beasts might fatten upon the crops and fruits.[903]

Footnote 900:

_Select Charters_, 156.

Footnote 901:

_Select Pleas of the Forest_, xiii.

Footnote 902:

See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii. By a writ of 18 May, 1204 (_New Rymer_, I. 89), he disafforested all Devonshire except Dartmouth and Exmoor.

Footnote 903:

R. Wendover, III. 227. This, however, is clearly a biased account of the king’s resumption of forest tracts illegally put under cultivation by way of purpresture.

III. _Forest Officials._ The local magistrates who administered the rest of England were excluded from the confines of the forests by a separate set of officials. At the head of this special organization was placed, in early times, the Forest Justiciar (called the chief forester in