The references to assarts and to (forest) pleas in the first and second charters of the Empress ought to be carefully compared, as they are of importance in many ways. They run thus respectively:—
| First Charter. | Second Charter. |
|---|---|
| Ut ipse et omnes homines sui per totam Angliam sint quieti de Wastis forestariis et assartis que facta sunt in feodo ipsius Gaufredi usque ad diem quo homo meus devenit, et ut a die illo in antea omnia illa essarta sint amodo excultibilia, et arrabilia sine forisfacto. | Quod ipse et omnes homines sui habeant et lucrentur omnia essarta sua libera et quieta de omnibus placitis facta usque ad diem qua servicio domini mei Comitis Andegavie ac meo adhæsit. |
A similar provision will be found in the charter to Aubrey de Vere. It is evident from these special provisions that the grantees attached a peculiar importance to this indemnity for their assarts; and it is equally noteworthy that the Empress is careful to restrict that indemnity to those assarts which had been made before a certain date ("facta usque ad diem quâ," etc.). This restriction should be compared with that which similarly limited the indemnity claimed by the barons of the Exchequer,[1096] and which has been somewhat overlooked.[1097]
Assarts are duly dealt with in the Leges Henrici Primi, and would form an important part of the "placita forestæ" in his reign. It is reasonable to presume that one of the first results of the removal of his iron hand would be a violent reaction against the tyranny of "the forest." Indeed, we know that Stephen was compelled to give way upon the point. A general outburst of "assarting" would at once follow. Thus the prospect of the return, with the Empress, of her father's forest-law would greatly alarm the offenders who were guilty of "assarts."[1098]
But, further, the earl's fief lay away from the forest proper. Why, then, was this concession of such importance in his eyes? We are helped towards an answer to this question by Mr. Fisher's learned and instructive work on The Forest of Essex. The facts there given, though needing some slight correction, show us that the Crown asserted in the reign of Henry III., that the portion of the county which had been afforested since the accession of Henry II. had (with the exception of the hundred of Tendring) been merely reafforested, having been already "forest" at the death of Henry I., though under Stephen it had ceased to be so. This claim, which was successfully asserted, affected more than half the county. Now, it is singular that throughout the struggle, on this subject, with the Crown, the true forest, that of Waltham (now Epping), was always conceded to be "within forest." Mr. Fisher's valuable maps show its limits clearly. It was, accordingly, tacitly admitted by the perambulation consequent on the Charter of the Forest to have been "forest" before 1154.
The theory suggested to me by these data is this. Stephen, we know, by his Charter of Liberties consented that all the forests created by Henry I. should be disafforested, and retained for himself only those which had been "forest" in the days of the first and the second William. Under this arrangement he retained, I hold, the small true forest (Waltham forest), but had to resign the grasp of the Crown on the additions made to it by Henry I., which amounted to considerably more than half the county. My view that this sweeping extension of "forest" was the work of Henry I. is confirmed by the fact that his "forest" policy is admittedly the most objectionable feature of his rule. Nor, I take it, was it inspired so much by the love of sport as by the great facilities it afforded for pecuniary exaction. In the Pipe-Roll of his thirty-first year we find (to adapt an old saying) "forest pleas as thick as fleas" in Essex, affording proof, moreover, that his "forest" had extended to the extreme north-east of the Lexden hundred. Here then again, I believe, as in so many other matters, Henry II. ignored his predecessor, and reverted to the status quo ante. Nor was the claim he revived finally set at rest, till Parliament disposed of it for ever in the days of Charles I.
An interesting charter bearing on this subject is preserved to us by Inspeximus.[1099] It records the restoration by Stephen to the Abbess of Barking of all her estates afforested by Henry I.[1100] Now, this charter, which is tested at Clarendon (perhaps the only record of Stephen being there), is witnessed by W[illiam] Martel, A[ubrey] de Ver, and E[ustace] fitz John. The name of this last witness[1101] dates the charter as previous to 1138 (when he threw over Stephen), and, virtually, to the king's departure for Normandy early in 1137. Consequently (and this is an important point) we here have Stephen granting, as a favour, to Barking Abbey what he had promised in his great charter to grant universally.[1102] This confirms the charge made by Henry of Huntingdon that he repudiated the concession he had made. His subsequent troubles, however, must have made it difficult for him to adhere to this policy, or check the process of assarting. His grant to the abbess was unknown to Mr. Fisher, who records an inquest of 1292, by which it was found that the woods of the abbess were "without the Regard;" and the Regarders were forbidden to exercise their authority within them.
[1096] "Ut de hiis essartis dicantur quieti, quæ fuerant ante diem quâ rex illustris Henricus primus rebus humanis exemptus est" (Dialogus, i. 11). The reason for the restriction is added.
[1097] See, for instance, The Forest of Essex (Fisher), p. 313.