Until the reign of the Viking, Cnut, in the early 11th century, freemen could hunt anywhere, restricted only by the exclusive right to hunt associated with land ownership (”ratione soli”.) During the reign of Cnut, the king withdrew certain lands from free common access and reserved them for his own use, maintaining them primarily for exclusive royal hunting purposes or “chases.” Hunting in the Forest provided a substantial share of meat, nuts berries and wild edibles for the king, the nobility and their retainers.
In later reigns, it became a practice for kings to “forest” occupied areas. By virtue of “sovereign ownership” of all land, kings claimed the right to assert exclusive hunting privileges. Essentially, these were severed as a separate estate in the land and retained or granted severally. At one time, it has been estimated that almost one-third of the country had been converted into “royal forest.” by royal proclamation. Regulation of the hunting of game rested upon the theory of the Crown’s “sovereign ownership” of land and resources associated with it.
The Latin term “foris” actually referred to exclusion from the application of the ordinary law and not to a wooded land. A separate system of “Forest Laws” and enforcement mechanisms were introduced by the Normans, which set forth permitted use and dealt savagely with violators. English common law, equity and associated rights did not apply to crimes committed in relation to “forested” lands.
The Forest Charter under the Magna Carta codified Forest Law and set up a commission directed to make “perambulations” of the royal forest and to review forest extensions declared by Henry II, Richard and John, retaining only those that were legitimately within the king’s own demesne (personal properties.) When Henry came of age he forced a revision of the boundaries in his favor. These remained essentially the same until 1300, when Edward I was forced to deforest large tracts.
The Forest Charter designated the courts to enforce Forest Law. Local forest courts met every six weeks. Special forest inquisitions were held to deal with serious trespass with the royal forest eyre (circuit court) retaining ultimate jurisdiction. The local courts dealt with minor offenses to the “vert” - the greenwood of the forest: cutting; clearing; gathering dead wood, honey and nuts; allowing cattle to graze or pigs to feed on acorns or beechnuts. When a graver offense to the vert or a crime against the “venison,” (the right to hunt deer,) was committed, a special court was called to hear the case before the forest officers. The offender was either sent to prison until the next eyre or “attached” by other’s pledges to appear before it. Any evidence - arrows, antlers, skins, poachers’ greyhounds -was delivered to the forest officials to be produced before the justices.
Every seven years the forest eyre, made up of four barons and knights appointed by the king, traveled from county to county hearing the accumulated forest cases. Trespassers were brought from prison or produced by the sheriff. The foresters and other officers produced the record of special inquisition and the evidence. These were usually accepted as fact without further hearing and sentence was pronounced - usually a year and a day against the payment of ransom or fine. If the offender was poor, he was sometimes pardoned or if he had already spent a great deal of time in jail waiting, he was released. If he failed to appear, he was outlawed.
Every three years an inspection of the forests was made by a body of 12 knights, the “regarders” who were supposed to report any encroachments on the king’s demesne - the erection of a mill, fishpond, enlargement of a clearing, enclosure of land without a license, or any abuse of the right to cut wood.
The hierarchy of officials that admisistered the forest was headed by a justice who directed the whole forest administration of England. Next in authority were the wardens, also called stewards, then Baliffs or chief foresters, who had custody of single forests or groups of forests. Below them were officers called verderers, knights or landed gentry nominally in charge of the vert but actually performing a variety of duties. There were also foresters who acted as gamekeepers, responsible to the wardens and appointed by them. Usually, each forest also had four agisters appointed by the wardens to collect money for the pasturing during certain seasons of cattle and pigs in the king’s demesne forests. The agisters counted pigs as they entered the forest and collected the pennies as they came out. Landowners inside the forest also employed woodwards, their own foresters.
Many barons set up private forests or “chases” in wooded areas not set aside by Forest Law or through grants from the king of “vert and venison.” In the rein of Edward I, the royal forest of Dean contained the private chases of 36 landowners, mostly great magnates of the area.
Once the king granted a forest to a private baron, royal Forest Law did not apply and jurisdiction was surrendered to the baron who owned the chase. Under manorial law, the baron’s foresters could arrest trespassers against the venison, but only if they were caught by the manor in the act and with evidence. Then they were imprisoned until they paid a fine to the lord.
Sometimes districts were enclosed with palings or ditches and became private parks. The baron who created the park was obliged to keep it effectively enclosed so that the king’s beasts could not enter. At the time of Henry III, no license for park creation was necessary as long as it did not infringe upon royal forest. Later, a license was required. Some barons installed deer leaps which allowed deer in, but not out. Many of these were ordered removed and certain parks were ruled a legal “nuisance” when close to the king’s forest.
Vension could be taken as an exception to the forest law by an earl or baron for his party travelling through the royal forest. This had to be done in the presence of a forester or while blowing a hunting horn. The taking was recorded in the rolls of the special forest inquisitions as “Vension taken without warrant.” The specifc taking of deer could also be granted by the king, recorded as “venison given by the lord king.”
Forest officers were a hated class and local sympathies were often with the poachers. Usually the sons of knights or freeholders, foresters often abused their powers for gain - felling trees, killing deer, grazing their own cattle, embezzling, taking bribes, extorting stock or crops from the people (including nobles) at harvest. (Reference: E.F. Lincoln’s The Medieval Legacy, London, Macgibbon & Kee; c1961.)
A most excellent exposition.
Ic þe þancas do (Thank you in olde English)
Et tu brute?
Et tu brute?
Thank you. Do modern property rights lawyers and environmental officers know about this medieval legacy of forest management?