Forest Laws

Forest Laws, the general term for the old English restriction laws, dealing with forests. One of the most cherished prerogatives of the king of England, at the time when his power was at the highest, was that of converting any portion of the country into a forest in which he might enjoy the pleasures of the chase. The earliest struggles between the king and the people testify to the extent to which this prerogative became a public grievance, and the charter by which its exercise was bounded (Carta de Foresta) was in substance part of the greatest constitutional code imposed by his barons upon King John. At common law it appears to have been the right of the king to make a forest where he pleased, provided that certain legal formalities were observed. The king having a continual care for the preservation of the realm, and for the peace and quiet of his subjects, he had therefore amongst many privileges this prerogative, viz. to have his place of recreation wheresoever he would appoint.1 Land once afforested became subject to a peculiar system of laws, which, as well as the formalities required to constitute a valid afforestment, have been carefully ascertained by the Anglo-Norman lawyers. “A forest,” says Manwood, “is a certain territory of woody grounds and fruitful pastures, privileged for wild beasts and fowls of forest, chase, and warren to rest, and abide there in the safe protection of the king, for his delight and pleasure; which territory of ground so privileged is mered and bounded with unremovable marks, meres and boundaries, either known by matter of record or by prescription; and also replenished with wild beasts of venery or chase, and with great coverts of vert, for the succour of the said beasts there to abide: for the preservation and continuance of which said place, together with the vert and venison there are particular officers, laws, and privileges belonging to the same, requisite for that purpose, and proper only to a forest and to no other place.”2 And the same author distinguishes a forest, as “the highest franchise of princely pleasure,” from the inferior franchises of chase, park and warren—named in the order of their importance. The forest embraces all these, and it is distinguished by having laws and courts of its own, according to which offenders are justiceable. An offender in a chase is to be punished by the common law; an offender in a forest by the forest law. A chase is much the same as a park, only the latter is enclosed, and all of them are distinguished according to the class of wild beasts to which the privilege extended. Thus beasts of forest (the “five wild beasts of venery”) were the hart, the hind, the hare, the boar and the wolf. The beasts of chase were also five, viz. the buck, the doe, the fox, the marten and the roe. The beasts and fowls of warren were the hare, the coney, the pheasant and the partridge.

The courts of the forest were three in number, viz. the court of attachments, swainmote and justice-seat. The court of attachments (called also the wood-mote) is held every forty days for the foresters to bring in their attachments concerning any hurt done to vert or venison (in viridi et venatione) in the forest, and for the verderers to receive and mark the same, but no conviction takes place. The swainmote, held three times in the year, is the court to which all the freeholders within the forest owe suit and service, and of which the verderers are the judges. In this court all offences against the forest laws may be tried, but no judgment or punishment follows. This is reserved for the justice-seat, held every third year, to which the rolls of offences presented at the court of attachment, and tried at the swainmote, are presented by verderers. The justice-seat is the court of the chief justice in eyre, who, says Coke, “is commonly a man of greater dignity than knowledge of the laws of the forests; and therefore where justice-seats are to be held some other persons whom the king shall appoint are associated with him, who together are to determine omnia placita forestae.” There were two chief justices for the forests intra and ultra Trentam respectively. The necessary officers of a forest are a steward, verderers, foresters, regarders, agisters and woodwards. The verderer was a judicial officer chosen in full county by the freeholders in the same manner as the coroner. His office was to view and receive the attachments of the foresters, and to mark them on his rolls. A forester was “an officer sworn to preserve the vert and venison in the forest, and to attend upon the wild beasts within his bailiwick.” The regarders were of the nature of visitors: their duty was to make a regard (visitatio nemorum) every third year, to inquire of all offences, and of the concealment of such offences by any officer of the forest. The business of the agister was to look after the pasturage of the forest, and to receive the payments for the same by persons entitled to pasture their cattle in the forests. Both the pasturage and the payment were called “agistment.” The woodward was the officer who had the care of the woods and vert and presented offences at the court of attachment.

The legal conception of a forest was thus that of a definite territory within which the code of the forest law prevailed to the exclusion of the common law. The ownership of the soil might be in any one, but the rights of the proprietor were limited by the laws made for the protection of the king’s wild beasts. These laws, enforced by fines often arbitrary and excessive, were a great grievance to the unfortunate owners of land within or in the neighbourhood of the forest. The offence of “purpresture” may be cited as an example. This was an encroachment on the forest rights, by building a house within the forest, and it made no difference whether the land belonged to the builder or not. In either case it was an offence punishable by fines at discretion. And if a man converted woodlands within the forest into arable land, he was guilty of the offence known as “assarting,” whether the covert belonged to himself or not.

The hardships of the forest laws under the Norman kings, and their extension to private estates by the process of afforestment, were among the grievances which united the barons and people against the king in the reign of John. The Great Charter of King John contains clauses relating to the forest laws, but no separate charter of the forest. The first charter of the forest is that of Henry III., issued in 1217. “As an important piece of legislation,” said Stubbs,3 “it must be compared with the forest assize of 1184, and with 44th, 47th and 48th clauses of the charter of John. It is observable that most of the abuses which are remedied by it are regarded as having sprung up since the accession of Henry II.; but the most offensive afforestations have been made under Richard and John. These latter are at once disafforested; but those of Henry II. only so far as they had been carried out to the injury of the landowners and outside of the royal demesne.” Land which had thus been once forest land and was afterwards disafforested was known as purlieu—derived by Manwood from the French pur and lieu, i.e. “a place exempt from the forest.” The forest laws still applied in a modified manner to the purlieu. The benefit of the disafforestment existed only for the owner of the lands; as to all other persons the land was forest still, and the king’s wild beasts were to “have free recourse therein and safe return to the forest, without any hurt or destruction other than by the owners of the lands in the purlieu where they shall be found, and that only to hunt and chase them back again towards the forest without any forestalling” (Manwood, On the Forest Laws—article “Purlieu”).

The revival of the forest laws was one of the means resorted to by Charles I. for raising a revenue independently of parliament, and the royal forests in Essex were so enlarged that they were hyperbolically said to include the whole county. The 4th earl of Southampton was nearly ruined by a decision that stripped him of his estate near the New Forest. The boundaries of Rockingham Forest were increased from 6 m. to 60, and enormous fines imposed on the trespassers,—Lord Salisbury being assessed in £20,000, Lord Westmoreland in £19,000, Sir Christopher Hatton in £12,000 (Hallam’s Constitutional History of England, c. viii.). By the statute 16 Charles I. c. 16 (1640) the royal forests were determined for ever according to their boundaries in the twentieth year of James, all subsequent enlargements being annulled.

The forest laws, since the Revolution, have fallen into complete disuse.