WOODS AND FORESTS COMMITTEE.

LETTER

TO THE EDITOR OF THE SPECTATOR.

SIR—I proceed to explain some of the legal characteristics and usages of a Forest.

With the exception of the New Forest, which was made in the reign of William the Conqueror, Windsor Forest, in the reign of Henry the Eighth, and Richmond Forest, in the reign of Charles the First, there is no record of the commencement of the Royal Forests. They were formerly sixty-nine in number; but the statute of the 16th Charles L c. 16 provided that no place should thereafter be accounted forest where Forest Courts had not been held within sixty years before the first year of the reign of that King. They were the cause of the most dreadful tyranny and op- pression; and the Carta de Foresta of the 9th Henry III., which placed some limits on the laws enforced in them, was long regarded as second only to the Great Charter in the public security it afforded. Yet the Forest laws continued to be vexatious and burdensome for some centuries, until they at last fell into disuse. Charles the First made an attempt to revive these laws; and it was among the many fatal measures which contributed to his downfall—" those laws, of which in elder times so many complaints had been heard, exacting money by means of preten- sions which long disuse had rendered dubious, and showing himself to those who lived on the borders of those domains in the hateful light of a litigious and en- croaching neighbour. The Earl of Holland held a court almost every (third ?) year, as Chief Justice in Eyre for the recovery of the King's forestal rights, which made great havoc with private property. No prescription could be pleaded against the King's title; which was found, indeed, by the inquest of a jury, but under the direction of a very partial tribunal. The Royal Forests in Essex were so enlarged that they were hyperbolically said to include the whole county. The Earl of Southampton was nearly ruined by a decision which stripped him of his estate near the New Forest. The boundaries of Rockingham Forest were increased from six miles to sixty, and enormous fines imposed on the trespassers; Lord Salis- bury being amerced in 20,0001., Lord Westmoreland in 19,0001., and Sir Christo- pher Hatton in 12,0001." (Halkun's Const. that. vol. IL p. 13.)

After the Restoration, (in 16700 the Court of the Chief Justice in Eyre, called the Justice Seat, at which the chief iniquities of the Forest laws were displayed, was again held: but, to the honour of succeeding times, no commission to authorize its sittings was subsequently issued.

It is strange, however, that the Forest laws were never repealed by Parliament; and though Hampshire has abounded in Representatives,—having, in addition to its County Members before the Reform Act passed, Members for Lymington, Christ-

church, Southampton, Andover, Newport, Stockbridge, Whitchurch, Petersfield, Yarmouth, Newtown, Portsmouth, and Winchester, (twenty-six Representatives,) —they never appear to have taken a part in Parliament in any effort to redress the forest grievances of the inhabitants of the county. Even the act of the 9th William III. c. 36 provides that the Forest laws shall continue in force. By the Forest law, it was not lawful for a man, for his own use, to cut down woods, bushes, trees, or to cut turf on his own lands without a licence: for the vert of a forest consisted of every plant bearing a green leaf that might hide or

cover deer; and was known by the names of nether vert, such as bushes, thorns, or gorse; special vert, such as pear-trees, crab-trees, hawthorns, and black bush;

and hank vert, such as all great trees. He could not plough up his own meadow or pasture without a licence: if he felled wood for sale, a mere licence was not sufficient, but he must first have had a writ ad guod damnunz: those who used rights of common could not have any one to attend the cattle, (called staff-

hearding,) as the deer that would otherwise feed with the cattle might be frightened: it was decided that a man could not erect a windmill on his own

ground, as it might alarm the wild animals. If a man held a manor court within

the forest, it was ordered to be ascertained, to save a forfeiture, if he had an able steward to discharge the duties of the office; if he had constables, ale-tasters, and things necessary for the execution of justice, such as a pillory, stocks, and cucking-stool; or if he neglected to put bakers in the pillory whom he had other- wise punished more than three times.

Most of these things are still as unlawful to do by the Forest law, as that Mr. Hallett, whose case was mentioned in my last letter, should, the other day, have enclosed his own waste freehold land. Indeed, Mr:Hallett is not quite safe now; for Sir Richard Weston, in the reign of Charles the First, on presenting to the Forest Court a licence to enclose twelve acres of his own land, was subjected to an inquiry of whether or not he had made a deep ditch and a high hedge round it —a small ditch and a low hedge being alone lawful, lest the deer should be en- tirely excluded. Perhaps the Attorney-General of 1848 will not in every par- ticular be so strict as the Attorney-General Noy, since the Committee were ac- tually consoled by the Crown Solicitor (5,247) with the fact that Mr. Hallett did not cheaply obtain the privilege of enclosing his own land by the payment of 1004 " as he would have to pay very heavy costs." But as the public pay heavy

Crown costs vastly exceeding the 1001. received, and the Crown does not receive costs, it is to be hoped the Government will not allow any similar legal proceed-

ings to be repeated. When Cranbourn Chase was enclosed, eight shillings an acre

was paid for excluding the deer; and this sum affords a very equitable standard for any payment hereafter to be asked for a licence to exclude the deer of the pub- lic forests from the nnenclosed lands of private persons. When a rent was paid for the privilege of enclosing private freehold land, it was called an " assert rent"; and in some Parliaments of Edward the Third and Richard the Second, it was petitioned that assert rents should not be levied.

The distinctive character of a forest from other places kept for the purposes of chase and hunting, is its having its own peculiar Jaws and its own courts and officers.

The courts of a forest were the Justice Seat, the Sweinmote Court, and the Attachment Court.

The principal officer for the administration of the law was the Chief Justice in Eyre. There were two officers in England of this name, one of whom presided in the forests North, and the other in forests South of Trent. The court in which he sat was called the "Justice Seat of the Forest." He heard all trespasses within the forest; all claims of franchises, liberties, and privileges; tried presentments made in the inferior courts of the forests; and gave judgment on convictions made in the Sweinmote Court. It could not be held oftener than once in three years; and, being a court of record, had the power to fine and imprison. Manwood, writing in 1598, said, " that within these hundred years there had been very sel-

dom any Justice Seat kept for the forests"; so that its sitting in the reign of Charles the First was a novelty. By the 57th George III. c. 61, it was provided

that, on the termination of the existing interests, the offices of Chief Justice in Eyre should be wholly abolished, and that the duties of such offices should be per- formed by the Chief Commissioner for the time being of the Woods and Forests. The Chief Justice North of Trent at that time was the late Earl of Clarendon, who received 2,2501. a year. The Chief Justice South of Trent was the Right Honourable Thomas Grenville, who received 2,316/. a year; and who, at his death, a short time since, bequeathed his magnificent and splendid library to the British Museum, on account of his having long held "a sinecure of considerable value," the income of which had enabled him to make the collection. Would that every public abuse terminated so well !

The Sweinmote Court is still held in some of the forests. Its sittings properly occur three times in the year,—namely, fifteen days before Michaelmas, on the Feast

of St. Martin's, and fifteen days before the Feast of St. John the Baptist. It is presided over by the Verderers; and the jury is composed of freeholders, or sweins, within the forest It should inquire into oppressions of the officers of the forests, and receive and try presentments of the Court of Attachment. In the exercise of its original jurisdiction, it could convict, but could not give judgment—the power of giving judgment having been confined to the Court of the Justice Seat. In certain cases of trespass, and questions relating to rights of common, some late acts (59th George III. c. 86,10th George IV. c. 50) give the power to convict. The Verderers are the judges of the court. They are elected by the freeholders of the county in which a forest is situated, without regard to the value of their free- holds. In each forest they are either two or four in number, and are still elected for the New Forest, Forest of Dean, Whittlewood Forest, Whychwood Forest, and Waltham Forest.

This court is a remarkable illustration of an early legal provision to check the oppression of the officers of the Crown. The election of the judges by writ is referred to in the 34th Edward L c. 5; and in addition to this security for their independence they were aided by a jury. They are popularly elected, there is no qualification required, and they are chosen for life. The jury were appointed from freeholders within the forest, and was therefore composed of persons most interested in preventing acts of official miscondoct Since the necessity of the institution has passed away, its purpose in the defence of personal liberty is for- gotten, and its objects are supposed to have been, and chiefly to be, to look after rights of common! The meeting of the jury is now a mere formality, and officers of the forest and non-freeholders appear on it. By their oath of office, the Verderers were to do the best they could for the profit of the King, to preserve his rights and franchises, to disclose all rights and privileges and offences of vert and venison, to deal indifferently with the King's

liege people, and to do equal right and justice as well unto the poor as to the rich, and not to oppress any person by colour of their office for any reward, favour,

or malice. Their original jurisdiction did not specially entitle them to decide any matters relating to nghts of common; and any contrary opinion (377-405) is erroneous. In the Sweinmote Court they might have convicted, not punished, a defendant for any trespass de viridi et venatione. Mr. Commissioner Milne states (778) that the freeholders of Hampshire are very tenacious of the privilege of appointing Verderers. It is very questionable if many freeholders know anything about them. A few families living in or near the New Forest generally propose one of their number, who is elected without

opposition; and there is no sufficient reason to believe that the freeholders generally of the county trouble themselves about the matter. There, as elsewhere, the time has passed to make their appointment of any importance; and Mr. Cutts very roughly described a Verderer's Court (5,449) to be " a sort of tom- foolery concern." Mr. Milne was asked (400) if offences against the deer, rights of common, and devastation of timber, might not go unpunished, if the courts were not held. He replied, that for devastation of timber the Commissioners would prosecute parties, but that the other offences might go unpunished. But why? The Verderers cannot punish for offences relating to tbe deer; such offences being now tried under the statute law at the general assizes and quarter-sessions; and as respects rights of common and encroachments, if the simplest police re- gulations were established, and the statuteable powers of the Verderers given to the magistrates, the law that protects rights of common and prevents encroach- ments, would be as effectual in a forest as in every other part of the kingdom. The Verderers Courts now existing might be swept away with advantage to every party, and their loss would be no more felt than it is in the many places where by the act of the 16th Charles I. they were for ever abolished. Mr. Com- missioner Milne, however, is of opinion that it is "very adviseable" (401) they should be regularly held.

It may be a question whether or not certain cases of encroachments, when a title to land is alleged, might not be inquired into by the County Courts, where the witnesses are near at hand, and a case there stated for the decision of one of the Courts at Westminster. This course of proceeding has acted so well in the Courts of the Revising Barristers, that it might be extended. But encroachments under an alleged title to the land are not peculiar to a forest; they present no special difficulty when they happen there; and therefore any such regulation to ena- ble their being decided on should be the subject of a general law. The forest tres- passes have hitherto been chiefly occasioned by a very lax and ineffective system of administration.

The other court to be noticed is the Court of Attachments. The Verderers pre- side in this court. It ought to be held every forty days. It can only inquire in cases within its ariginal jurisdiction, and has no power to convict—the Sweinmote Court having the power to convict but not to sentence. The presentments are certified to the Sweinmote Court.

In Whittlewood Forest the Verderers are Colonel Hutchinson and Captain G. Fitzroy; in Waltham Forest, Mr. Conyers, Mr. Maitland, Mr. Lockwood, and Mr.Palmer: but their courts are very irregularly held, and everything there is ma state of amusing confusion. In the New Forest the Verderers are, Mr. Compton, M.P., Sir C. Hulse, Bart., Mr. J. Mills, and Mr. W. S. Stanley. For many years the Attachment Court and Sweinmote Court have each been held only once in the year; but at a sitting of the Attachment Court, 27th August 1848, it was announced that the Sweinmote Court would in future be held three times a year, and the Attachment Court every forty days.

The only important powers now exercised by the Verderers are those given by later statutes; they are exercised at the sittings of the Attachment Courts. If a case is important, it is put asideZand directed to be brought before the Magistrates at Petty-Sessions on the issue of a new summons; though the Verderers have no power to decline deciding a case when duly brought before the Court. Even the presentments of one Attachment Court are heard in a subsequent Attachment ' Court under the statutes giving powers to imposea penalty for the offence. When the Sweinmote Court is held, a presentment previously prepared for them is sub- mitted to the jurors to sign, and the Court rises without hearing any case. (September 14,1848.) So that the functions of the Verderers are purely magisterial, and the Sweinmote Court is practically superseded by the judicial powers given to the Verderers to act alone. These remarks apply to Hampshire; for in some counties the courts only sit at the interval of some years, or not at all.

At the Attachment Court, 27th August 1848,an order was given to the inferior officers of the forest to bring all eases of offences committed within the forest to the Magistrates at Lyndhurst, aud they were forbidden to take them before any bench of Magistrates elsewhere. This order Sir George Grey ought to direct to be immediately revoked ; and, except in the event of a general or systematic inquiry, such as is now pending on the extensive and astonishing practices of plundering timber, eases ought to be taken before the nearest magistrates. This ought to be the rule; for this new order necessarily creates an opinion injurious to the ad- ministration of the law at Lyndhurst; and the common saying now is, "The Ma- gistrates at Lyndhurst have got a law of their own." Yet the writer can testify that many of the Magistrates at Lyndhurst, esrecially Mr. Compton, M.P., devote much time, labour, and careful attention to the business of their office. Besides the Verderers, there were Regarders of a forest—not now appointed in all forests or in the same manner—also elected by the freeholders of the county in which the forest is situated: but it is a mistake (377) to suppose they have anything to do in relation to rights of common. The act of the 9th Hen. III. c. 7 provides that no forester shall take any sheep, pigs, or make any collection but on the oath of twelve Regarders. The twelve Regarders were also on oath to decide if the fees demanded by foresters were ancient fees or not. In these cases they acted collectively as a jury; and their popular election arose from their protecting the inhabitants of the forest from oppressive demands of this nature. They also exe- cuted certain duties separately and individually. They were to go through every bailiwick, to inquire of trespasses; and more particularly, they were every third year to mew and inquire of the expeditation of mastiffs. This view of dogs was to be done by the whole Regard and the foresters. Those dogs that were not lawed were to be brought before an Attachment or Sweinmote Court, on such occasions exiled a Court of Regard, and each mastiff was to set his foot on a piece of wood eight inches thick and a foot square, and then one with a mallet was to set a chisel two inches broad on the three claws of the forefoot, and with one blow to smite them clean off."

The modern duties of the Regarders arose under the act of the 9th Will. III. c. 36; and are merely to walk out with the Deputy Surveyor's officer to watch the measurement of timber. But on this officer of the New Forest being asked how many of the number of F.egarders who watch him knew how to measure timber, be replied, (3,837,) "Not more than two or three," among eleven. None of them receive more than 241 10s. in the course of a year. One of them (J. Brown) was butler to Sir G. Rose; and in May 1847 another butler of Sir G. Rose en- gaged in a contest for the office; when nearly 2,000 freeholders of the county, many of them from a distance of nearly forty miles, were polled by the Sheriff of Hampshire at Winchester. The expenses of the contest are said to have been about 5001.; and the parties deserve thanks for proving how cheaply a county election, even for Members of Parliament, can be carried on at the more con- venient polling-places appointed by the Reform Act; and how willingly voters Will poll, in the absence of that meanest and basest of all systems of corruption katwn by the spurious name of "hospitality." A few active country auctioneers, and a sufficient purse to bring cases of treating before an Election Committee, will enable any candidate fairly to secure the expression of the opinion of a majority of Parliamentary electors.

It is easy to infer that many abuses in the office of Regarder were proved before the Committee; and the Government has very properly suspended the issue of a Writ for an election to fill a vacancy that has lately occurred. The above officers are on what may be called the ancient legal foundation of the forest establishment There are two other departments in the forest, the one under the Warden or Ranger, connected with venison and chace of a forest; and the other under the control of the Board of Woods and Forest. Their duties are intimately connected with the modern system of forest administration, and will be