chapter 16 of the _Carta de Foresta_), whose duties were divided in the

year 1238, after which there were two provinces separated by the river Trent.[904] His appointment was permanent, and his duties, which continued between the eyres, were administrative rather than judicial. He had discretionary authority to release trespassers imprisoned for offences against the forest laws.[905] Under his general supervision each forest, or group of forests, was governed by a separate _warden_, aided by a number of petty officials known as _foresters_, whose duties were analogous to those of a modern gamekeeper, but with magisterial powers in addition. Wardens were of two classes—"the one appointed by letters patent under the great seal, holding office during the king’s pleasure; the other hereditary wardens."[906] For the king’s use there was situated in or near each forest of any extent a royal residence which, in the Middle Ages, naturally took the form of a stronghold. It was convenient that the office of warden should be combined with that of constable of this neighbouring castle.[907] “The wardens were the executive officers of the king in his forests. Writs relating to the administration of forest business, as well as to the delivery of presents of venison and wood, were in general addressed to them.”[908]

Footnote 904:

See _Select Pleas of the Forest_, xiv. The permanent routine work performed by this functionary must not be confused with the intermittent duties of the Justices of Forest Eyres: although he was almost invariably a member of the commission who went on circuit: _e.g._ chapter 16 of the Forest Charter speaks of the Chief Forester holding pleas of the forest.

Footnote 905:

_Select Pleas_, xv.

Footnote 906:

Mr. Turner, in _Select Pleas_, xvii.

Footnote 907:

Engelard de Cygony, for example, whose name appears in chapter 50, occupied this double position. Chapter 16 of _Carta de Foresta_ forbids _castellans_ to determine pleas of the forests, thus strengthening the presumption that wardens were usually constables.

Footnote 908:

_Select Pleas_, xix.

The office was one of authority and of profit, usually paid in kind rather than by a salary. The warden often held a fief by a tenure connected with the service, and enjoyed rights and perquisites always of a valuable nature, though varying with each forest. These were sufficient to provide him with an income adequate to his position, and to allow him to find the wages of his under-keepers, who ought thus to have been paid officials. Such was the theory; as matter of fact, the foresters, instead of receiving wages, gladly paid large sums to the warden, and recouped themselves, with an ample profit, by extortions from the humble dwellers in their bailiwicks.[909] These unpaid foresters were expressively said “to live upon the country.” They formed a powerful official class, whose excessive numbers were a source of constant complaint. They may be classified in various ways, as, into riding and walking foresters (of whom there were one and four respectively in the normal case), or into foresters nominated by the wardens, and foresters in fee. These last had vested interests which the Forest Charter was careful to respect; as, where chapter 14 reserved to them the right to take “chiminage,” or way-leave, denied to other types of foresters; they might still enjoy, but not abuse, the “vested rights” reserved to them.[910]

Footnote 909:

_Ibid._, xxi.

Footnote 910:

The same chapter, however, fixed the rates of “chiminage.”

With these professional gamekeepers there co-operated, in later times at least, several groups of unpaid magistrates appointed from the knights and freeholders of the district. Of these honorary officials, whose original function was to supply supplementary machinery for protecting the rights of the Crown, but whose position as county gentlemen with a stake in the district led them also to act to some extent as arbitrators between the king and outside parties, there were three recognized kinds. (_a_) Towards the close of the twelfth century officers known as _verderers_ (usually four for each forest) become prominent. They appear in the _Carta de Foresta_ of 1217, but had not been mentioned in the Assize of Woodstock of 1184. It is probable that the office was devised in the interval as a check on the warden’s power, as the office of coroner had been instituted in the reign of Richard I. as a drag on the sheriff. In other important respects the duties of the verderers within the forests resembled those of coroners within the rest of the county. They were not royal employees, whose whole time was absorbed by the duties of office and remunerated by fixed salaries or by perquisites, but rather local landowners whose magisterial services were unpaid, and were presumably required only on special occasions. They were responsible directly to the king, and not to the warden; and were appointed in the county court, their “election” taking place in accordance with the terms of the writ “_de viredario eligendo_.” They attended the forest courts and swanimotes, and it appears from chapter 16 of Henry’s forest charter that it was their duty to bring before the Justices in Eyre lists of all offenders indicted in the lower courts. These “rolls of attachment” were certified by their seals.[911] (_b_) The _Regarders_ were twelve knights appointed in each forest county to make tours of inspection every third year, finding answers to a series of questions known as the “Chapters of the Regard.” In this way they reviewed the Crown’s interests alike in “the venison and the vert” (the technical names for game and growing timber respectively), and reported upon all encroachments: upon hawks and falcons, bows and arrows, greyhounds and mastiffs (with special reference to “expeditation” or cutting of their claws),[912] and generally upon everything owned by private individuals likely to harm the beasts of the forest.[913] (_c_) The _Agistors_ are mentioned in the same clause of the Assize of Woodstock which mentions the Regarders. Four knights were appointed, apparently by the warden of each forest, whose duty it was to protect the king’s interests in all matters connected with the pasturing of swine or cattle within the royal woods. For thirty days at Michaelmas pigs were turned loose with liberty to feed on the acorns and beech mast on payment by their owners of a small fixed sum per head. The four knights were required to take note of sums thus due, known as “pannage,” and to collect them at Martinmas.[914]

Footnote 911:

For the earliest notice of verderers see _Select Pleas of the Forest_, xix., n. Their appointment in the county court may indicate that they acted in some measure as a check on the professional foresters in the interests of the people generally, as well as a check on the warden in the interests of the king. Within the forest the warden, with the verderers and foresters, offered an exact parallel to the sheriff with the coroners and bailiffs (or serjeants) in other parts of a county.

Footnote 912:

See _Carta de Foresta_, c. 6.

Footnote 913:

After 1217, if not before, it was one of their duties to fix the number of foresters required, so that the inhabitants need not groan under a heavier burden than necessary.

Footnote 914:

In one document they were styled _agistatores precii_ (_Select Pleas_, p. 1.), which suggests that fixing the rate was their chief duty. “Agist” was a general term; it was apparently correct to speak of "agisting a wood”, of “agisting cattle,” and of “agisting the money due.”

Mention ought, perhaps, to be made of the private foresters also, whom owners of woods within the forests were obliged to appoint. These “wood wards,” as they were sometimes called, while paid for by the owner of the wood, were expected to protect the king’s interests. In particular, they must prevent trees under their care from being destroyed or wasted: the king was an interested party in these, since they formed shelter for his game.

IV. _Forest Courts._ The judicial side of the forest system was developed in a manner equally elaborate. Three sets of tribunals must be distinguished: (1) _The Court of Attachments_ (or “view of attachments”) was a petty tribunal, the chief duty of which was confined to taking evidence to be laid in due course before a higher court. Exceptionally, however, it had power to inflict fines for small trespasses against the "vert"—namely, for acts of waste not exceeding the value of fourpence. It met once in every forty days,[915] which seems in practice to have been interpreted as once every six weeks, the meetings being always held on the same day of the week.[916] (2) _Courts of Inquisitions._ When a serious trespass against the forest laws was discovered, a special court was, in early days, summoned immediately to make investigations. The foresters and verderers conducted the inquiry, but it was their right and their duty to assemble the men of the neighbouring townships to help them. In strictness, apparently, all the inhabitants might be compelled to attend. In practice, it was sufficient if four men and the reeve represented each of the four adjoining villages. Whenever a “beast” was found dead in the forest twenty men had thus to assemble, to the neglect of their own affairs; and they would be made to suffer if they failed to discover the culprit. In one district at least (Somerton) the definition of beasts of the chase extended to the ordinary hare; and we read[917] how four townships sat in solemn judgment, and found “that the said hare died of murrain, and that they know of nothing else except misadventure,” and how, this verdict not giving satisfaction, the townships were fined on the pretext that they were not fully represented. The real offence was their failure to disclose the culprit, which was held to imply a desire to shield him. Some alleviation of the burden of attendance was effected when, at some date posterior to 1215, _special inquisitions_ were superseded by one _general inquisition_, held at regular intervals (usually every six weeks), to cover all trespasses committed during the interval. These courts of inquiry (whether special or general) only “kept” pleas without “trying” them—that is to say, they received and recorded accusations, while the judgments were reserved for the justices. (3) _The courts of the forest justices in eyre._ As the smaller courts, in the normal case, received verdicts and reports, without punishing the offences reported, it is evident that the whole system ultimately depended on the justices. Their eyres, however, were held at wide intervals—apparently once every seven years during the reign of Henry III. A very full attendance of forest officials and of the public was summoned to meet them. The evidence stored up as a result of the work of the smaller courts, supplemented by the Rolls of the Regard, was laid before the justices, who summarily judged “pleas of the vert,” inflicting small amercements, and “pleas of the venison,” punishing by imprisonment those previously found guilty, until they ransomed themselves by heavy fines. These eyres came to be known as “Courts of Justice Seat,” but not until long after the reign of John. No juries were present, nor were they required; the justices punished offenders who had already been convicted by juries at a lower court.

Footnote 915:

_Carta de Foresta_, c. 8.

Footnote 916:

_Select Pleas of the Forest_, xxx.

Footnote 917:

_Select Pleas of the Forest_, p. 42.

These three classes of tribunals exercised functions analogous to those of a modern court of law. In addition, there should be mentioned two other kinds of assemblies which performed duties administrative rather than judicial, as these terms are now understood. (4) The _regard_, held once every three years—not by Crown officials, but by what was practically a jury of local knights—has already been referred to. These tours of inspection, sometime known as _visitationes nemorum_,[918] and sometimes even as “views of expeditation,” were of great practical importance. The resulting report was placed before the justices of eyre as evidence of forest trespasses. (5) Three times every year, meetings, known from an early date as “_Swanimotes_,” were held to regulate the pasturing of swine and cattle within the royal woods. A fortnight before Michaelmas the agistors met the foresters and verderers to provide for the agisting of the king’s woods, a process which lasted for thirty days—fifteen before and fifteen after Michaelmas. At Martinmas the agistors collected the pannage in presence of the same officials. A third meeting of officials was held in June to make arrangements for excluding cattle of all kinds from the king’s woods during the period when the deer were fawning, but at this the presence of the agistors was not required.[919]

Footnote 918:

_Dialogus_, I. xi. E.

Footnote 919:

It is expressly stated in the _Carta de Foresta_ (1217) that only the verderers and foresters need be present at the June moot, and the same officers, with the agistors, at the two others. The public were specially exempted.

The _Carta de Foresta_ applies to these assemblies, and to none other, the name "Swanimotes"—a word whose correct use has been the subject of much discussion, and whose ambiguity was in later centuries the source of many errors. Its authoritative appearance in 1217 affords strong evidence of the original sense which it bore. In later days, however, it was more loosely used, being applied to inquisitions, and also to courts of attachment. This has led to much confusion, while its derivation has also been the subject of discussion. Bishop Stubbs derived it from the word “swain,” on the supposition that courts so-called were normally resorted to by the general body of swains or country people. As matter of fact (whatever doctrine may be correct philologically), these assemblies were connected, not with “swains,” but with “swine.” The peasantry were specially exempted; whereas all three meetings sought to regulate the entry or exclusion of pigs from the woods.

V. _Chases, Parks, and Warrens._ Forests were necessarily royal monopolies, and must on this and other grounds be distinguished from three things with which they are apt to be confused. (1) A “chase” was a district which had once been a royal forest, but which had, without any formal act of disafforestation, been granted by the king to a private individual. The result was to transfer the monopoly of hunting therein from the Crown to the grantee, while somewhat modifying the nature of the rights transferred. The full force of the forest laws was abated, although the extent and direction of this diminution was nowhere strictly defined, varying from chase to chase. Such provisions of the forest law as continued to be binding were no longer enforced by royal officials and royal courts, but by those of the magnate, who thus obtained a franchise over the chase and the royal beasts it contained.[920] (2) A “park” was any piece of ground enclosed with a paling, or hedge, whether with the object of protecting wild beasts or otherwise, and the right to effect this was quite independent of royal grant. If the owner of a manor in the near neighbourhood of a royal forest wished to keep deer of his own, which he might kill at pleasure, whether for sport or for food, without infringing the forest laws, he had to stock an enclosure with beasts legally his own, and to keep them under conditions which made confusion with the king’s deer impossible.[921] In 1234 the barons asserted their right to keep private gaols for poachers taken in their parks (_in parcis et vivariis suis_), but the king refused to allow this.[922] (3) A “warren,” which might belong either to the king or to any private owner, carried with it exclusive rights of hunting within its bounds all wild animals, except those technically defined as “beasts of the forest.”[923] In practice it chiefly embraced hares and foxes.[924] Neither parks nor warrens were protected by the forest law, but by that part of the common law which related to theft and trespass. This was, however, vigorously administered for the preservation of game, so as to bear with increasing hardship on the common people, securing a monopoly of hunting to the land-owning aristocracy, and passing gradually into the modern Game Laws.[925] Dr. Stubbs held, apparently, too narrow a conception of warren when he read it in its modern sense of “a rabbit warren.”[926] It was a tract of land wherein exclusive rights of hunting lesser game (together with rabbits and other vermin) were preserved to its owner. The king might, and did, have his warrens and warreners, just as any subject might; and these royal warreners, like all Crown officials, great and small, might inflict cruel injustice on the common people;[927] but their power of doing harm was less than that of foresters, as they were dependent on the common law. The forest code did not apply even to royal warrens.[928]

Footnote 920:

_Select Pleas of the Forest_, cix. _et seq._

Footnote 921:

_Ibid._, cxvii.

Footnote 922:

Statute of Merton, c. 11.

Footnote 923:

_Select Pleas of the Forest_, cxxiii.

Footnote 924:

_Ibid._, cxxviii-cxxix. Wild cats should perhaps be added.

Footnote 925:

See W. S. Houldsworth, _History of English Law_, p. 346.

Footnote 926:

See _Select Charters_, 552.

Footnote 927:

Some of these Magna Carta sought to guard against. See c. 48.

Footnote 928:

Rights of hunting were sometimes conferred on subjects over territory which was not their own. Richard I., by a charter, granted permission to Alan Basset to hunt foxes, hares, and wild cats throughout the realm. See Round, _Ancient Charters_, No. 18.

VI. _Forest Rights and Forest Grievances._ It is not difficult to understand the store which the kings of England set upon their forests. They prized them not merely as a pleasure ground, but also as a source of revenue. Fines and amercements, individually small, but amounting to a large sum in the aggregate, flowed into the Exchequer. Great as were the pleasure and the profit to the king, the burden and loss inflicted upon the people, freeholders and peasantry alike, were greater out of all proportion. Not only were the best interests of the forest-dwellers deliberately sacrificed to the royal hunting, not only were the legal fines swelling the exchequer rendered trebly burdensome by the galling and wasteful manner of their collection; but the men who paid them were the victims of illegal exactions in addition. These grievances may be considered under seven heads:—(1) _The extent of the forests._ The Crown constantly strove to extend the boundaries; the people to contract them. The Conqueror and Rufus each “afforested” wide tracts of land, of which the New Forest is only one example. In the charter of 1100, Henry bluntly declared:—“I retain in my hand, by the common consent of my barons, my forests as my father had them.” This consent of the magnates, if more than a form and willingly given, would suggest that the barons were allowed some share in these royal rights of hunting which led them here to make common cause with the Crown. Henry, as a matter of fact, retained not only the forests of his father but those of Rufus as well, and created new ones of his own.[929] Stephen, while retaining the forests of the two Williams, renounced those added by Henry I. Under Henry II., afforestation began anew.[930] The words of the Great Charter leave no room to doubt that Henry of Anjou had extended the boundaries of Stephen’s forests; and that both Richard and John carried the process further, bringing within the circle of the cruel law, not only waste and moor, but also many “woods” belonging to private owners. These royal encroachments were the more oppressive, occurring as they did in an age when population was rapidly increasing and seeking an outlet in the reclamation of waste places on the debateable land which surrounded the forests. The vagueness of the frontier aggravated this grievance, as it was often difficult for the honest reclaimer of barren land to know whether he was committing a trespass for which he might be punished by a crushing fine.[931]

Footnote 929:

This is implied in the terms of Stephen’s Oxford Charter. An example of an act of afforestation by Henry is given in _Select Pleas_, 45, which shows how “a district could be afforested in a moment by the mere word of the monarch; it took centuries to free it from the royal dominion.” See _Edinburgh Review_, vol. cxcv. (1902), p. 459. Even the Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest woods on its own demesne—reserving, indeed, common of pasture to those with legal rights thereto.

Footnote 930:

The policy of Henry I., Stephen, and Henry II. respectively is well illustrated by the case of Waltham forest in Essex. See Round, _Geoffrey de Mandeville_, 377–8.

Footnote 931:

This group of grievances was partly remedied by chapters 47 and 53 of Magna Carta. The former provided for the summary disafforestation of all districts made forests by Richard and John, while the latter showed a more judicial spirit in the undoing of the similar work effected by their father. The _Carta de Foresta_ of 1217 contained clauses which took the place of these somewhat crude provisions.

(2) _The monopoly of hunting._ The Crown not only extended the bounds, but also made the law more stringent. Such privileges of hunting as the barons had were restricted as big game became scarce. The Crown’s insistence on a strict monopoly of the more exciting forms of the chase may not seem an important grievance, but it was one likely to exasperate the sport-loving nobles. John, in 1207, admitted that his barons still retained some vestiges of their right to share in the hunting of royal beasts.[932] These rights were formally recognized and defined in 1217.