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BEFORE I treat of the several Laws relating to the Game, it may be necessary to mention something of the Original and Growth of the grand Receptacles of the Game, which are the Forests and Great Britain.
To begin with the Time of the Britons, when their Princes and great Lords had no Occasion to set apart Places for the Preservation of Game and Beasts of Venary, (their Bruery, i.e. Thickets and uncultivated Lands, being such Nurseries and Shelter for them), it was the Interest of both Princes and Lords rather to destroy than preserve them. * VIII *
During the Wars between the Britons and Saxons, so many of the Britons were killed, and so many fled from the conquering Saxons, that the cultivated Lands were more than sufficient to maintain the Conquerors and the miserable Britons who staid amongst them; for at the Time there were no foreign Markets where the Saxons traded with the Produce of their Lands. When the Saxons found themselves Masters of the British Lands and People, the Saxons Captains, as Conquerors, in Common Council agreed to divide the Lands they had taken amongst themselves, their Friends and Companions in Conquest. The Woods, Wastes, and Bruery Lands, that were not appropriated to any particular Persons, remained to the Chief Captain, who in Process of Time assumed the Title of King, who, as Occasion offered, granted Parcels of such Woods to whom he thought fit. * IX *
On the Success of the Saxons in Britain, their hungry half-starved Friends and Relations swarmed out of the German Hive, to suck the sweet of out Island; Multitudes coming over Time after Time, more and more useless Woods were appropriated and improved; and as Improvements were made, the Game and Beasts of Venary retired from the thence for shelter into the unfrequented Woods; wither the Saxons Kings, that took Delight in Hunting, went for their Diversions, where was such Plenty of Game, that there was no Occasion for restraining Laws to preserve them. These Royal unimproved Woods are the Forests pointed at by Sir Edward Coke in his 4 Inst. 319. Who says, they are so ancient as no Record or History doth make any Mention of any of their Beginnings.
Whilst the ravenous Beasts of Prey were so numerous in the Royal Woods, as to prevent the Increase of the Beasts of * X * of delicious Taste for the Table, the Kings gave free Liberty to the Nobility and Gentry to hunt in their Woods; but in Edgars’s Time, the Breed of ravenous Beasts being much lessened, he having an elegant Taste prohibited Hunting his Deer, and appointed Officers to preserve all Game of the Table, in his Woods, who so rigorously put in Execution their Orders, that the Nobility and Gentry were prevented of taking their Diversion, and their Tenants of their Respective Rights: At length this arbitrary Procedure of the Officers grew to so great a Grievance, that Noblemen, Gentlemen and Farmers, made a great Complaints for Want of a Law to ascertain the King’s Prerogative and the People’s Privilege in this Case; on which King Canute, through his innate Goodness adn Justice, in a Parliament holden at Winchester in 1016. Brought the Proceedings to a Certainty, that all Men might know what they should, and should not do, by publishing * XI * Forest Laws, therein setting out the Bounds of his Forests, and limiting the Power of the Forest Officers. Manwood 401. 8o. says, they were first penned in the Danish Language; but Lord Coke in his 4 Inst. 320. says Canute never published any Law for England in the Danish Tongue, and by the Translation of them it may be fairly conjectured they were originally penned in Saxon, for the Saxon Words retained, and not by the Translator turned into Latin; which shews he was neither Master of the Saxon Language or Character: For Instance, he mistaking ___ for the Roman P. Makes Pegan, (and leaves it untranslated, which is neither Saxon nor Danish,) instead of pezen a Thane, and Lespegend he puts instead of Lestbegan, again mistaking the Saxon ___ for a Roman P. &c.
The Saxon Kings and the Danish King Canute made no new Forests, but were contented with the Woods that were * XII * their own Demeans, and were never granted to, or possessed by the Subjects; but the Kings of the Norman Race, not being satisfied with sixty-eight old Demean Woods or Forests, depopulated well-built Towns and Villages, to make to themselves Places appropriated to their own Diversion only.
William the Conqueror laid Waste thirty-six Towns in Hampshire to make a forest, which still retains the Name of the New Forest; and his Forest Officers, Mr. Gurdon says in his History 113. Exercised such arbitrary Rule, as to abridge even the great Barons of the Privileges they enjoyed under the Saxon and Danish Kings; not at all regarding the Liberties given to the Subject by Canute’s Forest Laws.
His Son William Rufus is recorded in History for the Severity of his Proceedings against all that hunted in his Forests; inflicting the Punishment of Death upon * XIII * such as killed a Stag or Buck in his Forests, without any other Law that that of his own Will.
Henry I. and Richard I. were as Arbitrary in this Case, as their Predecessors, [following their Precedents] in punishing Nobility and Gentry who hunted in the Royal Forests, which was with the greatest Severity, viz. with the Loss of Eyes and Testicles, other Offences fineable at the Will of the King; some were never to be pardoned, and no Person whatsoever was exempted from appearing at the Court of JusticeSeat, upon a Summons of the Chief Justice in Eyre; by which the People were grievously oppressed by those personal Services they were bound to perform at those Courts in the Forest.
In the Reign of King John, these and other Oppressions, having exasperated the Barons, they took up Arms and chose Robert Fitz-Walter their General, * XIV * and marched to Northampton, and by the Way of Bedford to London; from whence they sent Letters to the Earls, Barons and Knights that adhered to the King, that if they would not desert the perjured King, and join with them in asserting their Liberties, they would proceed against them as publick Enemies.
These Threats drew from the King most of the Barons that had adhered to him, which Defection left the King hopeless, and induced him to send William Earl of Pembroke and other faithful Messengers to let the confederated Barons know he would grant them the Laws and Liberties they desired: Upon which a Meeting of King and Barons was agreed to be on the fifteenth of June 1215, at Running-Mead, between Staines adn Windfor, wherea Conference began between the Barons the adhered to the King, and the confederated Barons, who were so superior in Number to the King’s Barons, that he seemed to make * XV * no Difficulty of granting the Laws and Liberties demanded; which were drawn up as the confederated Lords thought fit, in two Charters, viz. The Great Charter, and the Charted of the Liberties and Customs of the Forest.
Henry III, in 1225, in the ninth Year of his Reign confirmed the Charter of Liberties and of the Forest under his Seal, and sent one into each County of England: And this Charter was witnessed by thirty-one Bishops and Abbots, and by thirty-three Lay Barons; in his fourth Parliament also Archbishop Boniface denounced a Curse in Westmister-Hall, in the Presence of the King and several Bishops and Noblemen, against those who should break this Charter; and to add to the Solemnity, the Bishops were apparelled in their Pontificalibus, and each held a lighted Taper in his Hand, and the Archbishop denounced the Excommunication in the following Words, vix. “ By the Authority of God * XVI * the Father, the Son and the Holy Ghost, and of the Glorious Mother of God and perpetual Virgin Mary, and of the Blessed Apostles Peter and Paul, and of all the Apostles and Martyrs, of Blessed Edward King of England, and of all the Saints of Heaven, we excommunicate, accuse, and from the Benefit of our Holy Mother the Church we sequester all those who hereafter shall violate, break, diminish or change the free Customs and Liberties granted in the Charter of the Forest, by our Lord the King, to the Prelates, Earls, Barons, Knights, and other Freeholders of the Realm, and all who secretly or openly by Deed, Word or Counsel shall bring in Customs, and keep them when brought in, against the said Liberties, or any of them, and all those who shall presume to judge against them; all and every which persons, that shall willingly commit any of the Premisses, let them know that they incur * XVII * the aforesaid Sentence ipso facto, and those who commit them ignorantly ought to be admonished, and except they reform themselves with fifteen Days after such Admonition, and make full Satisfactions for what they have done at the Will of the Ordinary, shall be from thenceforth wrapped in the said Sentence, to the perpetual Memorial of which Thing we the aforesaid Prelates have put out Seals to these Presents.” Thus the grievous Oppressions, which the Subjects of England then laboured under, were remedied by this Charter, which the Reader will see under proper Heads in the following Treatise.