12 SECOND REPORT OF THE 



The rights of this defcription claimed before the Commiffioners are particn- 

 Appdi.x, N2 to forty defcribed in the account of euch Pariili contained in the Appendix, No. 2 t 

 -NM8, mduiive. -j^ lg inc i u f 1V6j which umy j je f umilie d llp as follows : 



Right of Common of Pafture for all cattle in all open places within the 



Foreil at ail times of the year. 

 Common of Turbary. 



The right of cutting Heath, Fern and Furze. 



Right to cut, dig, take and cany away Turf, Gravel, Sand and Loam. 

 Maftagc and Pannage in the Woods. 

 Browze Wood and Rootage in the Woods and Foreft, and right of cutting 



the fame. 



On all thefe rights, as claimed and exercifed, it will be neceffary to make fome 



obfervations ; and it may be faid of fome of them, that their meaning has been 



grofsly perverted, and of all of them generally, that they have been exercifed for 



many years paft, in a much more exteniive manner and by a greater number 



and defcription of perfons than is warranted by the laws of the Foreft, or than is 



-confident with the rules laid down by the common law of the land, acknowledged 



in ancient and confirmed by modern determinations of the Courts of Lav/, for the 



regulation of rights of that defcription. 



The Foreft laws muft neverthelcfs be eonfidcred (as they have been by all 



writers on the laws of this country) as a part of the law of the land. In con- 



331aekfioe's Com. firmation of which, Sir William Blackftone fays, " That the Court of Eyre or 



vol. iii. 73. Juftice Scat is a Court of Record ;" and adds, " Therefore a Writ of Error lies 



" from hence to the Court of King's Bench, to rectify and redrefs any mal-admi- 



" niftration of juftice ; or the Chief Juftice in Eyre may adjourn any matter of 



Coke, 4th Inilitute, " law into the Court of King's Bench," and cites Lord Coke in fupport of his 



*95, 297. aflertion. 



It will be neceffary therefore to confider thefe rights with reference to the 

 Toreft law, and alfo to the common law ; nor can it upon any equitable prin- 

 ciple be ol)jc6ted, by thofe who owe the exercife of thefe rights over fo extenfive 

 a di ft rift, to the circumftance of fo large a traft of Land being an open Foreft, 

 'that they ought not to be governed by thofe laws, whereby alone it has been 

 preferred in itsprefent ftate, as, by the Conftitution of the Country, all the land 

 'therein is deemed to have been originally the land of the Crown; and if this 

 had been originally granted out by the Crown as other lands have been, and 

 either continued as Waftes or cultivated by the Owners, the Claimaints of ti 

 .rights- would not exercife them. 



It fee-iris inconfiftent, too, with every principle of a legal prescription, to prefcribe 

 for one right in a Foreft as at common law, without any of thoib rcftriftions ne- 

 ceffary to the maintenance of a Foreft; and in the fame claim to prcf::ribe for 

 another right, to be exercifed in the fame place and on the iV.mefpot of ground, 

 which not only can alone be prefcribcd for in a Foreft, but which cannot by any 

 poffibility.be exercifed in any other place than a Foreft. The Rigiits of Maltage, 

 Pannage, Browze Wood and Rootage, are of this laft defcription. 



Ivltanvood, 89. Mr. 'Juftice Manwood, in hisTreatife on the Foreft Laws, fays, " An inhabi- 



". taut of a Foreft may prefcribe to have common appurtenant as belonging to 



D, 86 93. " his houfe and lands; and inch prefcription is good at the common law, 



ant! likewife by the Foreft law; but no man can prefcribe to have Common in 



a Foreft for Goats, Geefe, Sheep and Hogs ; becaufe," he fays, " fucli a pre- 



Sheep 



prefeription for Common within a Foreft, the Courts of common law recognize, 

 the Foreft law, and govern their determinations confiiti&ntiy with them, and not 

 by the rules of the common law alone. 



It is however admitted univerfaliy by the common lav/, as well as by the 



Foreft laws, no man can common with a greater number of beaits than he can 



Maiswood, gG. fupport on his inclofed land during winter ; and that in a Foreft he can only 



Ib. Qf t . common with fo many beaits ss.'fhaH leave fufficient common for- the Deer, other- 



v.'.iie he is liable to a furehaT^, for which there.is a remedy by the co.'nmon law, 



, becaufe by 'fuel i i'nrciiargetlie wild'bcafts are driven to find pasture in other places. 



1 J>n>v' C V--'<5 3 " ^"^ ^' ' !e ^ urc ' u l i: 5 e u fecondtimc, he ihull ;;;:y damages to the party gricvrd, 



and 



