Staffordshire Historical Collections, Vol. 5 Part 1. Originally published by Staffordshire Record Society, London, 1884.
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Pleas of the Forest. Staffordshire.
The severity of the forest laws after the conquest of England by the Normans, and the intolerable hardships inflicted by them upon the English inhabitants, have been in all ages a fruitful theme for much sensational writing. The Saxon writers, to whom we are principally indebted for the history of the period immediately succeeding the Conquest, have allowed their prejudices of race to largely bias their statements respecting their Norman conquerors, and the modern historian, in place of scrutinizing these chronicles with care, has for the most part accepted their statements without discrimination, and in reproducing them has in many instances even exaggerated their original import.
That the penalties inflicted for breaches of the forest law were often cruel and barbarous there can be no doubt, but they were neither severe nor excessive if compared with the penalties inflicted by the ordinary criminal law for kindred offences, and their cruelty and barbarity are the characteristics of a rude and uncivilized age.
A common method of exaggeration adopted by the early writers is to represent the heaviest penalty inflicted by these laws, (viz., that for killing a stag) as the common penalty for hunting in the royal forests. As a matter of fact, the penalties for hunting the lesser animals were not excessive, nor when the means required in men, horses, and dogs, in order to run down and kill a stag, and the open and rebellious spirit of contempt for the law which it evinced, are taken into consideration, and when moreover we compare the penalty for this (the capital offence of the forest) with those inflicted under the ordinary criminal law of the period, even the fearful penalty of the deprivation of sight, loses much of its first aspect of cruelty and vindictiveness. (fn. 1)
The only forest laws in England prior to the Conquest, of which we have any cognizance, are those of Canute, and the penalties for their infraction, so far from being increased in severity by the Conqueror, were to some extent mitigated by him.
The laws of Canute prescribe that "if any freeman chases a beast of the forest, so that by the swiftness of the course the beast doth pant for breath, he shall forfeit 10s. to the King, and if he be not a freeman, he shall pay double, and if he be a bondman, he shall lose his skin. (fn. 2)
"But if either of them, by coursing or hunting, shall force a Royal beast, which the English call a staggon, to pant and be out of breath, the freeman shall lose his natural liberty for a year, the other shall lose his liberty for two years, and if he be a bondman, he shall be reckoned for an outlaw, which the English call a friendless man.
Another assumption of modern writers, for which I can find no warrant, is that the right of hunting within his own territory which every freeman enjoyed before the Conquest had been taken away by the Normans.
"Volo ut omnis liber homo pro libito suo habeat venerem sive viridem in planis suis super terras suas, sine chaceâ tamen (fn. 3) et devitent omnes meam, ubicunque eam habere voluero."
Bracton's Treatise and the It oils show clearly enough that every freeman had the right of hawking, and the right of chasing and taking game on his own land, but he could not hunt beasts of chase on the land of others, nor could he form a preserve for wild beasts within his own territory without licence from the King. The liberty of hawking was the great privilege of the commonalty, and to this fact, no doubt, was owing much of the popularity of this description of sport in former days. The extension of the restrictions respecting beasts of chase to winged game, by that impolitic prince King John, was one of the causes of the general discontent and insurrections of his reign. Clause 13 of the Charta de Forestâ of 9 H. III. removes this restriction, and provides that every freeman shall have within his own woods, eyries of Hawks, Falcons, Eagles, and Herons.
The great grievance of the people in the matter of the forests was not so much the stringency of the forest laws, to which they were accustomed, and which was common to all the kingdoms of Europe, as the rapid and continual extension of the limits of the forests at the mere will of the sovereign. These extensions absorbed within the forests all the neighbouring manors, (fn. 4) and were a real and substantial grievance, and one which it would be difficult to overestimate, but it is in connection with the extension of a forest in Hampshire that we find in the Chronicles the greatest exaggeration of which the early writers have been guilty.
Everyone has heard the story of the New Forest: how the Conqueror afforested an extensive district in the south of England, of the number of square miles of arable land withdrawn from cultivation and converted into a wilderness to form a shelter for wild beasts and an arena for the diversion of the King.
The forest existed before the Conquest; (fn. 5) the whole district consists of a well known geological feature of which the Aldershot and Bagshot sands form a part, and on which nothing but heather and pines will grow; and the only origin of the story seems to be the name by which the forest came to be known after the afforestation of the district by the Conqueror, and the premature deaths of two of the Conqueror's sons whilst in the actual enjoyment of the chase within its bounds. This latter circumstance strongly affected the superstitious feelings of the age, and was too good an opportunity for the monkish historians to let slip; yet it is on such slight foundations as these that has been built up the sensational story of the expulsion of the inhabitants, the burning of the villages and churches, and all the other incidents of an assumed act of despotism which brought down upon its authors the vengeance of Heaven.
A forest (fn. 6) is an extensive territory of uncultivated ground maintained for wild beasts and fowls of forest, chase, and warren, the meers or boundaries of which are fixed, and known by matter of record or prescription, and to which are attached particular officers and laws. The latter clause is essential to make a forest, without it such a territory would be a chace only. The so-called deer forests now existing in Scotland are properly speaking chaces; and on the other hand Cannock Chase in Staffordshire was a Royal forest. (fn. 7) A forest included within its metes not only the King's lands, which were known as the King's demesne woods, but also many manors belonging to private lords. These lords of manors within a forest could not convert their land from pasture into arable, nor could they cut down their woods, or make any enclosures against the assize of the forest; i.e., they could not make an enclosure which would not admit the larger game to pass freely in or out of the land. As some mitigation of these hardships and disabilities their cattle had the right of pasture within the forest.
A forest was the highest franchise known in ancient days; next in degree came the chace, which the great Barons mostly possessed. After that came the park, which was always enclosed; lastly the free warren. These last two franchises were held by most lords of manors after the thirteenth century whose lands were not within the metes of a forest, but they could be held only by special favour and grant of the Crown. The charter of free warren always contained the clause, "dum tamen terræ illæ non sint infra metas forestæ nostræ."
The old legal writers were of opinion that all wild beasts and fowls of chase and warren belonged to the King. Bracton says Habet etiam Rex de jure gentium in manu suâ, quæ de jure naturali deberent csse communia, sicut feras bestias, et ares non dumestieas;" and for this reason "it was not lawful for any man to make a chase, park, or warren in his own freehold, or elsewhere, to preserve such beasts, without the King's grant or warrant to do so, although men may kill such beasts or fowls while they are wild and found out of any forest, chase, park, or warren; yet as no man has any property in them until they have killed them, they may be said to be in manu Domini Regis whilst in their wild state."
The King only could make a forest, but a subject can be seised of a forest, by grant of the Crown or by prescription, and the Earls of Lancaster had a forest and executed the forest laws within it as fully as the King himself. The Duke of Gloucester, temp. Ric. II., likewise held the Forest of Dean by special grant.
It was held however by the judges in the case of Sir Richard Cromwell that although a subject could hold a forest and have courts of attachment and swanimote, he could not hold a justice seat to punish offenders without a special commission from the King; he must bring an action of trespass at common law and indict the offender.
The Steward, Seneschallus, Chief Warder, Custos, Chief Forester, Capitalis Forestarius, for he is described by all these titles on the Records, held an office of great honour and authority. It was always held in fee by grant of the Crown.
The Foresters were of various classes: the foresters in fee, Forestarii de feodo, held an hereditary office, and were mostly of knightly rank. Besides these there was the Forestarius equitans, Ryder or Ranger. These appear to have been appointed by the King, and held their office for life (fn. 8) or during pleasure. Under the foresters in fee were an inferior class of forester whose duties corresponded to those of the modern gamekeeper. All these offices were ministerial, and had no judicial functions.
The Verderer, Viridarius, was a judicial officer of the forest chosen by the freeholders of the county in full county court in the same manner as a coroner. He was sworn to maintain the laws of the forest, and to receive and enroll the attachments and presentments of all manner of trespass within the forest, whether of vert or of venison.
The Reguarders were officers of the forest appointed by the King or by the Chief Justice in Eyre of the forest, and were always twelve in number. In the event of vacancies occurring by death, the Sheriff was ordered to cause others to be elected in the county court.
The duties of the Reguarders was to keep a roll on which was written all the ancient assarts, wastes, and purprestures; and on another roll, such as had been newly made since the last Regard of the forest. Accompanied by the foresters, they surveyed all the old and new purprestures made within the forest, valued them, and wrote them down on their rolls; they also surveyed the King's demesne lands and woods, and the waste in them by felling of timber, or by destruction of underwood; also all fences, and whether they were according to the law of the forest.
The roll thus made up was taken by them to the Swanimote, and affirmed by the Reguarders under their hand and seal, and they presented the same to the Justices in Eyre of the forest at their next session.
Speaking generally, the Reguarders appear to have taken cognizance of every matter which was prejudicial to the forest, with the exception of trespasses against the wild beasts. The Eeguard of the forest was made at intervals of four years.
The Agisters were officers of the forest who received and accounted for the money paid for the herbage and pannage of the King's demesne lands and woods within the forest. Agistment was of two kinds: 1st, the herbage of the woods and pastures, and 2ndly of the mast of trees; the latter was called pannage. The Agistors also presented trespasses done by cattle, and, assisted by the foresters, they agisted the King's woods and lands, i.e., they made the agreements with the inhabitants of the neighbourhood, by which the number of the swine to be fed, and the sums to be paid for them, were settled. As regards the ordinary pasturage, no man could agist his beasts within the King's forest but one who was an inhabitant of the forest, and had common appendant or appurtenant, by reason of his land lying within the forest.
According to the Charta de Forestâ, every freeman holding land within the forest could agist his own woods and lands, and take the pannage, but he could not agist goats without special license, as they injured the herbage. The time for agisting commonable beasts for herbage began fifteen days before Midsummer Day, and ended on Holyrood Day, i.e., fifteen days before Michaelmas Day.
At Holyrood Day began the agistment of swine to feed on the mast. This lasted till the Feast of St. Martin; the money received for this agistment was called Pannagium, a word which is used both for the feeding of the hogs and the money produced by it.
A Woodward (Wodewardus) was an officer of the forest, whose name denotes his duties: his charge was to look after the woods and vert. His insignia was a hatchet, which when called, he presented to the Chief Justice in Eyre of the forests. All the officers of the forest, including the woodward, had the power of arresting malefactors, secundum posse suum.
The Court of Attachment, the primary court of the forest, was held at intervals of forty days, whence it came to be called the Forty Days' Court. It dates from a very early period, for the Charta de Forestâ of 9 Hen. III. says, "Preterea singulis quadraginta diebus per totutn annum conveniant forestarii et viridarii ad videndum attachiamenta de forestâ tam de viridi quam de venatione." The object of this court was to receive the attachments of the foresters and woodwards, and to enter them on the rolls of the verderers.
The usual proceeding appears to have been, that if the foresters found any man trespassing on the vert of the forest, they might attach him by his body, and then cause him to find two pledges to appear at the next Court of Attachments. Upon his appearance at this court, he was mainprized until the next General Sessions or Iter of the Forest Justices. If he was found offending a second time, he had to find four pledges; if a third time, eight pledges; and if found offending a fourth time, he was detained in custody without bail or mainprize till the coming of the Justices.
If a man was taken killing the deer or carrying it away, which was called being taken with the manner (fn. 9) he could be attached by his body, and imprisoned until delivered by the command of the King, or the Chief Justice in Eyre of the Forest, or by the Chief Warden of the forest; but no other officer of lower degree than the Chief Warden could set him free or admit him to bail in these cases.
This court was the court of freeholders living within the forest, and was very similar in its constitution to the Hundred Court. In the same way as the chief bailiff of the Hundred presided over the Hundred Court, so the Chief Warden of the forest or his deputy presided in the Swanimote. A swein is Saxon for a free tenant, and mote in the same language signifies a court; thus the Halimote was the manorial court, the Folkmote the burgess court, and the Portmote that of the port or haven. But the Chief Warden, although he presided at this court, was not the judge of it. The judges were the verderers, who were elected in full county; and associated with them, and acting in fact as a jury, were the Reeves, and four men of the townships contiguous to the scene of the trespass complained of. In fact, it may be said that the whole body of freeholders living within the forest were the judges, as in the case of the other courts of Saxon origin, (fn. 10) the fundamental principle of the Saxon jurisdiction being, as already explained in the introduction to the Plea Rolls in these Collections, that the whole body of freeholders attending a court were the judges of it. An idea is prevalent that the forest laws were introduced by the Normans into this country, but this is clearly disproved by the name and constitution of the Swanimote, both of which are purely Saxon.
The Charta de Forestâ ordains that the Swanimote should not be held oftener than three times in the year, "Nullum Swanimotum de cetero tencatur in regnonostro,nisi ter in anno;" the dates were likewise fixed by the same charter. The first Swanimote was held fifteen days before Midsummer Day, when the agisters met together to fawn the deer; the second court was held fifteen days before Michaelmas, when the agistment of the woods began; and the third court on the Feast of St. Martin in November, when the agisters met to receive the pannage. All the officers of the forest had to appear at these courts, including the verderers, reguarders, agisters, woodwards, and "de quâlibet villatâ quatuor homines et propositus."
All the pleas of the forest were heard and determined before Justices specially assigned to hear the same by the King's commission. These Justices issued their warrants to the Sheriff of the county and the Chief Wardens of the forests to summon before them on a certain day named everybody who held land within the forest, whether laymen or clerics, and four men and the provost of every vill within the forest, and from every town within the same, twelve loyal and honest men, together with all foresters, verderers, reguarders, woodwards, or other officials of the forest. The Sheriff was likewise to make proclamation in all fairs, markets, or other public places, that everyone who held franchises within the forests should appear on the same day to claim them, together with all those who had been attached for trespasses against vert and venison since the last Iter of the Justices, with their pledges and manucaptors; and finally the Sheriff was ordered to be present in person on the same day with all his bailiffs to execute the process of the Court, &c.
The function of the Chief Justice in Eyre was not so much to try offenders against the Forest Laws, as to fix the fines and punishments of those who had been previously convicted at the Swanimotes. At the Forest Pleas of 14 E. I., William de Wrottesley, who had been convicted by the Kinver Swanimote of taking venison fourteen years before, viz., in 56 H. III., obtained another trial on the payment of a fine of 20s. (see page); but this is the only instance of the rehearing of a case before the Justice in Eyre of the Forests which I have met with on the Staffordshire Rolls.
Vert, called in Latin Viridis, is every tree, underwood or bush, growing in a forest and bearing green leaves which may cover or feed deer. It is of two sorts, the over vert, or haut bois, and the nether vert, or sous bois. Fern and heather were not accounted vert. Trees which bore fruit, such as oaks and beech, were accounted as special vert, and these could not be felled in any man's freehold within the limits of a Royal forest except by view of the foresters and verderers. By the Ordinances of the Forest of the 6th year of Edward I., freeholders dwelling within a forest could not cut housebotenor haybote within their own woods without the view of the foresters.
Venison, in Latin venatio, has a general signification on the
Forest Rolls, and means the flesh of any animal taken in hunting;
but as among the common people nothing was accounted venison
but the flesh of red and fallow deer, it gradually obtained its present
special signification. Budœus, the Monkish historian of the Art of
Hunting, gives this old distich respecting venison:—
"Non est inquirendum, unde venit venison
Nam si forte furto sit, sola fides sufficit." (fn. 11)
The beasts of forest were originally five in number, viz., the hart, the hind, the hare, the boar, and the wolf. The latter beast, however, was so destructive, it was excepted in the forest laws of Canute, and permission was given to kill them anywhere but in the Royal forests; if killed within a Royal forest, the offender was subject to a light fine, as a trespasser on the Royal chase, but to no other penalty. "Vulpes et lupi, nec forestæ, nec vencris habentur, et proinde eorum interfectio nulli emendatione subjacet; si tamen infra limites occiduntur, fractio sit regalis chaseæ et mitius emendatur." The story of all the wolves in England having been destroyed by King Edgar is obviously fictitious, for they are mentioned in the records for many centuries after the death of that monarch.
The beasts of chase were also five in number, viz., the buck, the doe, the fox, the martin, and the roe. The male and female both of the red deer and of the fallow deer were accounted as different beasts in venery, owing to their having entirely different seasons: the season of the hind and doe beginning when that of the hart and the buck ends.
The beasts and fowls of warren were the hare, the coney or rabbit, the pheasant, and the partridge. As the words in a grant of free warren are, "ita quod nullus intret terras illas, ad fugandum in eis vel aliquod capiendum quod ad warrennam pertinct," a charter of free warren would be rendered uncertain if it had not been laid down what were beasts and fowls of warren.
The hart or stag is the fera regalis or royal beast of the forest, and the penalty for killing it was originally very heavy, extending to the loss of life or members, until the reign of Henry II. That monarch substituted the penalties of fine and imprisonment for the barbarous enactments of his predecessors, and the Charta de Forestâ of Hen. III. ordained that "no man shall henceforth lose life or limb for killing the King's deer."
A hart Royal proclaimed, is a hart which has been driven out of the forest in hunting so far that he is not likely to return of himself, and because he has given such sport, the King causes proclamation to be made in all the towns and villages of the vicinity that no person shall kill or hunt him, and appoints men to look after him till he returns, or is driven back to the forest.
Foresters call the round roll of the horn next the head the bur the main horn is called the beam, the lowest antler is called the brow-antler or bezantler, the next is called the royal, the next above the sur-royal, and then the top.
The season of the roebuck began at Easter, and lasted till Michaelmas. The season of the roe began at Michaelmas, and lasted till the Purification or Candlemas Day, 2nd February. The season of the boar began at Christmas Day, and lasted till Candlemas.
An assart was a clearance made in woods, by which trees and bushes were eradicated, and the ground brought to tillage. Those who assarted lands within a forest paid a fine at every Forest Iter, which was calculated on the value of the crops grown on the land since the preceding Iter. Some of the assarts were allowed on the payment of this fine, in other cases they were ordered to be reduced again to forest.
Every freeholder or farmer dwelling within a forest might keep a mastiff for the security of his house and goods, but such mastiff must be expeditated, i.e., it must be mutilated by the removal of some of the claws of the fore foot. Greyhounds could not be kept within a forest except by special warrant.
called in Latin, the tempus vetitum, was the period of fawning ("fænationis") of the deer. It began at fifteen days before Midsummer Day, and ended on St. Cyril's Day, fifteen days after Midsummer Day. During this month no kind of dog was allowed to go at large in the forest, and the driving of cattle or any other proceeding tending to disturb the deer was also forbidden.
An enclosure in a forest must be formed, according to the assize of the forest, i.e., parvo fossato ct bassâ haiâ, secundum assisam forestæ. The assize of the forest was ruled to be in general terms that no man might enclose ground within the forest ad nocumentum ferarum. A man, however, may have a park within a forest by prescription or by grant of the King, but such a park must be so enclosed that the beasts of the forest cannot enter it, otherwise it is a forfeiture of the park. It is also a forfeiture if he makes a saltatorium or deer-leap, for the nature of a park is to be completely and securely enclosed, and if it be so slightly enclosed that deer can get in, the owner of a forest may enter and take the deer.
The saltatorium or deer-leap seems to have been a fence so constructed that the deer could pass in, but could not get back. These were absolutely forbidden within the Regard of a Royal forest, and it will be observed in the Pleas which follow that when the Bishop of Lichfield and Coventry claimed the right by prescription within Cannok Forest, it was disallowed.