278 



A DISCOURSE 



III. house, should be indulged : and the prohibitions are good against assarts 

 made in forests, kc. without license : the penalties are indeed great, 

 but how seldom inflicted ? and what is now more easy than compound- 

 ing for such a license ? 



In some parts of Germany, where a single tree is observed to be extra- 

 ordinary fertile, a constant and plentiful mast-bearer, there are laws to 

 prohibit their felling it without special leave : and it was well enacted 

 amongst us, that even the owners of woods within chases should not cut 

 down the timber without view of officers ; this act being in affirmance of 

 the common law, and not to be violated without prescription : see the 

 case cited by my lord Coke in his Comment on Littleton. Tenure Bur- 

 gage, lib. ii. sect. 170. Or if not within chases, yet where a common 

 person had liberty of chase, &ic. ; and this would be of much benefit, 

 had the regarders performed their duty, as it is at large described in the 

 writ of the twelve articles, and that the surcharge of the forests had 

 been honestly inspected with the due perambulations, and ancient metes. 

 Thus should the justices of Eyre dispose of no wood without express 

 commission, and in convenient places 



Care is likewise by our laws to be taken that no unnecessary embezzle- 

 ment be made by pretences of repair of paling, lodges, browse for deer, 

 &c. wind-falls, root-falls, dead and sear trees, all which are subject to the 

 inspection of the wardens, justices, itinerants, &c. and even trespasses 

 done de viridi on boughs of trees, thickets, and the like, which (as has 

 been shewed) are very great impediments to their growth and prosperity, 



^ A justice in Eyre cannot grant license to sell any timber, unless it be sedente curia, or 

 after a writ of Ad quod damnum ; and it hath been resolved by all the judges, that though 

 justices in Eyre, and the king's officers within his forests, have charge of venison, and of 

 vert, or green hue, for the maintenance of the king's game, and all manner of trees for 

 covert, browse, and pannage ; yet when timber of the forest is sold, it must be cut and 

 taken by power under the great seal, or the exchequer seal, by view of the foresters, 

 that it may not be had in places inconvenient for the game: and the justices in Eyre, or 

 any of the king's officers in the forest, cannot sell or dispose of any wood within the 

 forest without commission ; so that the exchequer and officers of the forest have divisum 

 imperium, the one for the profit of the king, the other for his pleasure. Also no officers of 

 the forest can claim wind-falls, or dotard trees, for their perquisites, because they were 

 once parcel of the king's inheritance, but they ought to be sold by commission for the king's 

 best henejit. Read : on the Stat. vol. iii. p. 304, 305. 



