Forest Laws in United Kingdom

Introduction

Forest Laws, in English law, are legal restrictions regarding forests of the king. Forest laws applied not only to the royal forests of England but to Scotland as well.

The area subject to the jurisdiction of these courts in England included not only woodland but often pastures and villages. Some of these forests dated from the Anglo-Saxon period. Up to the time of Edward I their area was constantly added to by various kings by a summary proceeding known as afforestment. This consisted of a proclamation made by the king to the effect that any tract of land he desired, without compensation to the owner, was to be constituted a forest, after observing certain formalities, a right which it seems he had by common law. All offenders in such forests were punished by forest law and not by common law. There were three forests courts: woodmote, swainmote and justice seat. The woodmote was a court of attachment and had jurisdiction over minor offenses only, but could not convict. This court was presided over by verderers, officers chosen by freeholders of the forest. The swainmote had power to try and convict, but no power to pass judgment. It was presided over by the verderers, and all freeholders were obliged to attend. The court of justice seat had jurisdiction over all civil and criminal offenses committed in a forest. This court sat every third year and was presided over by the justices in eyre.

Under some of the kings of England the penalties for violations of the forest laws were inordinately severe, blinding and even death being the penalty for killing game during the reign of Henry I. These laws were mitigated by King John, but only under compulsion. Edward I finally abolished afforestment by force, yielding to the earnest desires of his subjects.

There were many royal forests in Scotland, but the code to which they were subject contained no such severe penalties as that of England, although otherwise the codes are very similar.

During the latter half of the 19th century Parliament disafforested, under the plea of public necessity, three royal forests, those of Whittlewood, Wichwood and Hainault. Epping Forest, which forms part of the ancient Waltham Forest was the subject of legislation by Parliament in 1871, and as a result was declared open to the public by Queen Victoria in 1882, the ancient court of verderers being revived. There are still royal forests in England and the Crown has certain rights in private forests in a limited number of places to this day.

History of Forest Laws in the United Kingdom

William the Conqueror, a great lover of hunting, established the system of forest law. This operated outside the common law, and served to protect game animals and their forest habitat from destruction. In the year of his death, 1087, a poem, “The Rime of King William”, inserted in the Peterborough Chronicle expresses English indignation at the forest laws.
Offences

Offences in forest law were divided into two categories: trespass against the vert (the vegetation of the forest) and the venison (the game). The five animals of the forest protected by law were given by Manwood as the hart and hind (red deer), boar, hare and wolf. (In England, the boar became extinct in the wild by the 13th century, and the wolf by the late 15th century). Protection was also said to be extended to the beasts of chase, the buck and doe (fallow deer), fox, marten, and roe deer, and the beasts and fowls of warren: the hare, coney, pheasant, and partridge.[6] The rights of chase and of warren (i.e., to hunt such beasts) were often granted to local nobility for a fee but are a quite separate concept.

Trespasses against the vert were rather extensive: they included purpresture, the inclosure of a pasture or erection of a building on forest lands, assarting, clearing forest land for agriculture, and felling trees or clearing shrubs, among others. Note that these laws applied to any land within the boundary of the forest, even if it were freely owned; although the Charter of the Forest in 1217 established that all freemen owning land within the forest enjoyed the rights of agistment and pannage (see below).

In addition, inhabitants of the forest were forbidden to bear hunting weapons, and dogs were banned from the forest; mastiffs were permitted as watchdogs, but they had to have their front claws removed to prevent them from hunting game.

Disafforested lands on the edge of the forest were known as purlieus; agriculture was permitted here and deer escaping from the forest into them was permitted to be killed if causing damage.

If these laws happened to be broken, offenders would either have their hands struck off, or would be blinded in both eyes.

Rights and privileges

The kings rapidly discovered that abridging their rights in the royal forests could provide a useful source of income. Local nobles could be granted a royal licence to take a certain amount of game. The common inhabitants of the forest might, depending on their location, possess a variety of rights: estover, the right of taking firewood, pannage, the right to pasture swine in the forest, turbary, the right to cut turf (as fuel), and various other rights of pasturage (agistment) and harvesting the products of the forest. Land might be disafforested entirely, or permission given for assart and purpresture.
Officers

The justices of the forest were the Justice in Eyre and the verderers.

The chief royal official was the Warden. As he was often an eminent and preoccupied magnate, his powers were frequently exercised by a deputy. He supervised the foresters and under-foresters, who personally went about preserving the forest and game and apprehending offenders against the law. The agisters supervised pannage and agistment and collected any fees thereto appertaining. The nomenclature of the officers can be somewhat confusing: the rank immediately below the constable were referred to as foresters-in-fee, or, later, woodwards, who held land in the forest in exchange for a rent, and advised the warden. They exercised various privileges within their bailiwicks. Their subordinates were the under-foresters, later referred to as rangers. The rangers are sometimes said to be patrollers of the purlieu.

Another group, called serjeants-in-fee, and later, foresters-in-fee (not to be confused with the above), held small estates in return for their service in patrolling the forest and apprehending offenders.

The forests also had surveyors, who determined the boundaries of the forest, and regarders. These last reported to the court of justice-seat and investigated encroachments on the forest and invasion of royal rights, such as assarting. While their visits were infrequent, due to the interval of time between courts, they provided a check against collusion between the foresters and local offenders.
Courts

Blackstone gives the following outline of the forest courts, as theoretically constructed:

Court of attachment, sometimes called the Forty-Day Court or Woodmote. This court was held every forty days, and was presided over by verderers and the Warden, or his deputy. The foresters attached persons who had committed crimes against the forest law and brought them before this court to have them enrolled; however, it did not possess the power to try or convict individuals, and such cases had to be passed upwards to the swainmote or the court of justice seat.
Court of regard, held every third year to enforce the law requiring declawing of dogs within the forest.
Swainmote or Sweinmote was held three times a year: the fortnight before the feast of St. Michael, about the feast of St. Martin, and the fortnight before the feast of St. John the Baptist. It was presided over by the Warden and verderers, the foresters and agisters being in attendance. The first two occasions were to regulate agistment and pannage, respectively; the third was for the purpose of trying offenders before a jury of swains, or freemen of the forest. (The name of the court is sometimes said to be derived from swine, probably a misapprehension through its regulation of pannage.)
Court of justice-seat or eyre was the highest of the forest courts. It was to be held every three years, to be announced forty days in advance, and was presided over by a Justice in Eyre. It was, in theory, the only court that could pass sentence upon offenders of the forest laws.

In practice, these fine distinctions were not always observed. In the Forest of Dean, swainmote and the court of attachment seem to have been one and the same throughout most of its history. As the courts of justice-seat were held less frequently, the lower courts assumed the power to fine offenders against the forest laws, according to a fixed schedule. The courts of justice-seat crept into disuse, and in 1817, the office of Justice in Eyre was abolished and its powers transferred to the First Commissioner of Woods and Forests. Courts of swainmote and attachment went out of existence at various dates in the different forests. A Court of Swainmote was re-established in the New Forest in 1877.

From Willian I

William I, original enactor of the Forest Law in England, did not harshly penalise offenders. The accusation that he “laid a law upon it, that whoever slew hart or hind should be blinded,” according to the Anglo-Saxon Chronicle is little more than propaganda. William Rufus, also a keen hunter, increased the severity of the penalties for various offences to include death and mutilation. The laws were in part codified under the Assize of the Forest (1184) of Henry II.

Magna Carta, the charter forced upon King John of England by the English barons in 1215, contained five clauses relating to royal forests. They aimed to limit, and even reduce, the King’s sole rights as enshrined in forest law. The clauses were as follows (taken from the text of Magna Carta):

(44) People who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence.

(47) All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly.

(48) All evil customs relating to forests and warrens, foresters, warreners, sheriffs and their servants, or river-banks and their wardens, are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably. But we, or our chief justice if we are not in England, are first to be informed.

(52) To any man whom we have deprived or dispossessed of lands, castles, liberties, or rights, without the lawful judgement of his equals, we will at once restore these. In cases of dispute the matter shall be resolved by the judgement of the twenty-five barons referred to below in the clause for securing the peace (§ 61). In cases, however, where a man was deprived or dispossessed of something without the lawful judgement of his equals by our father King Henry or our brother King Richard, and it remains in our hands or is held by others under our warranty, we shall have respite for the period commonly allowed to Crusaders, unless a lawsuit had been begun, or an enquiry had been made at our order, before we took the Cross as a Crusader. On our return from the Crusade, or if we abandon it, we will at once render justice in full.

(53) We shall have similar respite [to that in clause 52] in rendering justice in connexion with forests that are to be disafforested, or to remain forests, when these were first afforested by our father Henry or our brother Richard; with the guardianship of lands in another person’s `fee’, when we have hitherto had this by virtue of a `fee’ held of us for knight’s service by a third party; and with abbeys founded in another person’s `fee’, in which the lord of the `fee’ claims to own a right. On our return from the Crusade, or if we abandon it, we will at once do full justice to complaints about these matters.

After the death of John, Henry III was compelled to grant the Charter of the Forest (1217), which further reformed the forest law and established the rights of agistment and pannage on private land within the forests. It also checked certain of the extortions of the foresters. An “Ordinance of the Forest” under Edward I again checked the oppression of the officers, and introduced sworn juries in the forest courts.

The Great Perambulation and after

In 1300 many (if not all) forests were perambulated and reduced greatly in their extent, in theory to their extent in the time of Henry II. However, this depended on the determination of local juries, whose decisions often excluded from the Forest lands described in Domesday Book as within the forest. Successive kings tried to recover the “purlieus” excluded from a forest by the Great Perambulation of 1300. Forest officers periodically fined the inhabitants of the purlieus for failing to attend Forest Court or for forest offences. This led to complaints in Parliament. The king promised to remedy the grievances, but usually did nothing.

Several forests were alienated by Richard II and his successors, but generally the system decayed. Henry VII revived “Swainmotes” (forest courts) for several forests and held Forest Eyres in some of them. Henry VIII in 1547 placed the forests under the Court of Augmentations with two Masters and two Surveyors-General. On the abolition of that court, the two surveyors-general became responsible to the Exchequer. Their respective divisions were North and South of the river Trent.

Disafforestation, sale of forest lands and the Western Rising

By the Tudor period and after, forest law had largely become anachronistic, and served primarily to protect timber in the royal forests. James I caused enquiries to be made into assart lands of various forests. The commissioners appointed raised over £25000 by compounding with occupiers, whose ownership was confirmed, subject to a fixed rent. Under Charles I, several forests were disforested, the king receiving a portion of the waste land of the forest, which he then sold. The last serious exercise of forest law by a court of justice-seat (Forest Eyre) seems to have been in about 1635, in an attempt to raise money. The disafforestations caused riots in a number of West Country forests, including Gillingham, Braydon and Dean, as well as Feckenham. The events were known as the Western Rising.[7]
After the Restoration

A Forest Eyre was held for the New Forest in 1670, and a few for other forests in the 1660s and 1670s, but these were the last. From 1715, both surveyor’s posts were held by the same person. The remaining royal forests continued to be managed (in theory, at least) on behalf of the crown. However, the commoners’ rights of grazing often seem to have been more important than the rights of the crown.

In the late 1780s, a Royal Commission was appointed to inquire into the condition of Crown woods. North of the Trent only Sherwood Forest survived. South of it there were the New Forest and three others in Hampshire, Windsor Forest in Berkshire, the Forest of Dean in Gloucestershire, Waltham or Epping Forest in Essex, three forests in Northamptonshire, and Wychwood in Oxfordshire. Several of these no longer had swainmote courts, so that there was no official supervision. They divided the remaining forests into two classes, according to whether the Crown was or was not the major landowner. In certain Hampshire forests and the Forest of Dean, most of the soil belonged to the Crown and these should be reserved to grow timber, to meet the need for oak for shipbuilding. The others would be inclosed, the Crown receiving an allotment in lieu of its rights.

In 1810, responsibility for woods was moved from Surveyors-General (who accounted to the Auditors of Land Revenue) to a new Commission of Woods, Forests, and Land Revenues. From 1832 to 1851 “Works and Buildings” were added to their responsibilities. In 1851, the commissioners again became a Commissioner of Woods, Forests and Land Revenues. In 1924, the Royal Forests were transferred to the new Forestry Commission.

Forest Laws