Warren (free)
Encyclopedia
Free warren—often simply warren—refers to a type of franchise
or privilege
conveyed by a sovereign
in mediaeval England
to a subject
, promising to hold them harmless for killing game
of certain species within a stipulated area, usually a wood
or small forest
. The sovereign involved might be either the monarch
or a marcher lord
.
of the soil.
Although the rights of free warren are usually discussed in the context of forest law, the only law which applied within the warren was common law
. Thus, even though the warrant ultimately derived from the sovereign, the only statutes applied to poachers
in a warren were the common-law crimes of theft
and trespass
.
The privilege of free warren was a reciprocal relationship. The grantee of the warren was granted an exemption from the law (under which all game in the realm was property of the sovereign), but the grantee owed the sovereign the stewardship and protection of the game from all others who might wish to hunt it.
warren ← ME
warrene, warreine ← ONF warrenne ← Germanic present participle of *warian "to take care; to cause to care (for)" ← causative of *waran "to care" ← *war "care". Doublet of guarantor. Related to OHG
werien (i.e. *wärian) "to defend, protect", and also to English "a-ware, wary".
not holding a free warren to enclose their breeding establishments, these "closed warrens" or domestic warren
s began also to be designated simply as "warrens" (use recorded in 1378; OED). In 1649 the metaphoric use as "cluster of densely populated living spaces" is recorded.
. In addition, the office of warden is used for the overseer of a warren:
The warden of a Royal forest
was often the castellan
or constable
of the nearest royal castle; over time the less exalted title of warrener evolved for the custodian of the lowest of the hunting franchises, the warren.
. That is,
All of the terms warrant, warrantor, and warranty are used in Henry II of England
's Assize of the Forest (a.k.a. Assize of Woodstock) in 1184:
(defined as predators and other beasts not fit for the table) was not regulated. This definition was flexible, however, depending on whether the animal was thought to provide good sport, as wolves, foxes, badgers, or bears. In practice, vermin could only be killed on the commons or waste, since none but the grantee was permitted to have instruments of the hunt within the warren.
, cites these beasts of warren:
However, Manwood is mistaken in his assignments, since the roe deer
was transferred to "beast of warren" from "beast of the forest" in the fourteenth century. Roe deer are still found within woodlands named "Warren" in contemporary England. The 1911 Encyclopedia adds roe, woodcock, quail, and rail to Manwood's list. On the other hand grouse
are not birds of warren. Fox, wolf, cat, badger, and squirrel are sometimes also added.
Sometimes domestic swine are mistakenly thought to be beasts of warren, due the right of pannage
.
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
or privilege
Privilege
A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth...
conveyed by a sovereign
Sovereign
A sovereign is the supreme lawmaking authority within its jurisdiction.Sovereign may also refer to:*Monarch, the sovereign of a monarchy*Sovereign Bank, banking institution in the United States*Sovereign...
in mediaeval England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
to a subject
British subject
In British nationality law, the term British subject has at different times had different meanings. The current definition of the term British subject is contained in the British Nationality Act 1981.- Prior to 1949 :...
, promising to hold them harmless for killing game
Game
A game is structured playing, usually undertaken for enjoyment and sometimes used as an educational tool. Games are distinct from work, which is usually carried out for remuneration, and from art, which is more often an expression of aesthetic or ideological elements...
of certain species within a stipulated area, usually a wood
Woodland
Ecologically, a woodland is a low-density forest forming open habitats with plenty of sunlight and limited shade. Woodlands may support an understory of shrubs and herbaceous plants including grasses. Woodland may form a transition to shrubland under drier conditions or during early stages of...
or small forest
Forest
A forest, also referred to as a wood or the woods, is an area with a high density of trees. As with cities, depending where you are in the world, what is considered a forest may vary significantly in size and have various classification according to how and what of the forest is composed...
. The sovereign involved might be either the monarch
Monarch
A monarch is the person who heads a monarchy. This is a form of government in which a state or polity is ruled or controlled by an individual who typically inherits the throne by birth and occasionally rules for life or until abdication...
or a marcher lord
Marcher Lords
A Marcher Lord was a strong and trusted noble appointed by the King of England to guard the border between England and Wales.A Marcher Lord is the English equivalent of a margrave...
.
Law
The grant of free warren could be as a gift, or in exchange for consideration, and might be later alienated by the grantee. The stipulated area might be coextensive with the frank-tenement of the grantee, or it might be discontinuous or even at a considerable remove from the grantee's holdings. The right of free warren did not extend automatically to the freeholderFee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
of the soil.
Although the rights of free warren are usually discussed in the context of forest law, the only law which applied within the warren was common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. Thus, even though the warrant ultimately derived from the sovereign, the only statutes applied to poachers
Poaching
Poaching is the illegal taking of wild plants or animals contrary to local and international conservation and wildlife management laws. Violations of hunting laws and regulations are normally punishable by law and, collectively, such violations are known as poaching.It may be illegal and in...
in a warren were the common-law crimes of theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
and trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
.
The privilege of free warren was a reciprocal relationship. The grantee of the warren was granted an exemption from the law (under which all game in the realm was property of the sovereign), but the grantee owed the sovereign the stewardship and protection of the game from all others who might wish to hunt it.
Etymology
Modern EnglishEnglish language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
warren ← ME
Middle English
Middle English is the stage in the history of the English language during the High and Late Middle Ages, or roughly during the four centuries between the late 11th and the late 15th century....
warrene, warreine ← ONF warrenne ← Germanic present participle of *warian "to take care; to cause to care (for)" ← causative of *waran "to care" ← *war "care". Doublet of guarantor. Related to OHG
Old High German
The term Old High German refers to the earliest stage of the German language and it conventionally covers the period from around 500 to 1050. Coherent written texts do not appear until the second half of the 8th century, and some treat the period before 750 as 'prehistoric' and date the start of...
werien (i.e. *wärian) "to defend, protect", and also to English "a-ware, wary".
Free warren and domestic warren
The original use of free warren was as a legal term. However, as the franchise defined both a set of species and a geographic extent, the natural semantic extensions arose, namely for the individual animals as a group, or for the land they inhabited. As it became pragmatically necessary for freeholdersFee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
not holding a free warren to enclose their breeding establishments, these "closed warrens" or domestic warren
Warren (domestic)
A domestic warren is an artificial, enclosed establishment of animal husbandry dedicated to the raising of rabbits for meat and fur. It evolved from the Anglo-Norman concept of free warren, which had been, essentially, the equivalent of a hunting license for a given woodland.-Architecture of the...
s began also to be designated simply as "warrens" (use recorded in 1378; OED). In 1649 the metaphoric use as "cluster of densely populated living spaces" is recorded.
Warren and warden
The Mediaeval Latin form of the word warenna was used in legal documents such as Magna CartaMagna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
. In addition, the office of warden is used for the overseer of a warren:
(5) But the warden, as long as he hath the custody of the lands, shall keep up and maintain the houses, parks, warrens, ponds, mills, and other things belonging to them, our of their issues;
The warden of a Royal forest
Royal forest
A royal forest is an area of land with different meanings in England, Wales and Scotland; the term forest does not mean forest as it is understood today, as an area of densely wooded land...
was often the castellan
Castellan
A castellan was the governor or captain of a castle. The word stems from the Latin Castellanus, derived from castellum "castle". Also known as a constable.-Duties:...
or constable
Constable
A constable is a person holding a particular office, most commonly in law enforcement. The office of constable can vary significantly in different jurisdictions.-Etymology:...
of the nearest royal castle; over time the less exalted title of warrener evolved for the custodian of the lowest of the hunting franchises, the warren.
Warren and warrant
The adjective free in free warren does not refer to the lack of enclosure surrounding the precincts of the warren, but rather to the fact the "liberty" of hunting derives from a warrant of the sovereignWarrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
. That is,
The term "warrant" occurs very early in constitutional documents: it is found in the Assize of Clarendon and the Assize of the Forest, both in the reign of Henry II., but in neither case in its modern meaning. The original meaning seems to have been more akin to guarantee (q.v.), warranty or security; and to some extent the term implies something in the nature of a guarantee or representation by the person issuing the warrant that the person who acts on it can do so without incurring any legal penalty.
All of the terms warrant, warrantor, and warranty are used in Henry II of England
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
's Assize of the Forest (a.k.a. Assize of Woodstock) in 1184:
- Article 2. Item, he has commanded that no one shall have bows, arrows, dogs, or hounds in his forests, unless [such person] has the warrant of the king or of some other man who can [lawfully] be his warrantor.
- Article 9. Item, the king forbids all clergymen to commit any offences touching his venison or his forests. He strictly orders his foresters that, if they find such men committing offences, they shall not hesitate to lay hands on those men in order to hold them and put them under attachment; he himself will give full warranty.
Beasts of warren
The permission to take game was limited to certain types of animals. Generally, the killing of verminVermin
Vermin is a term applied to various animal species regarded by some as pests or nuisances and especially to those associated with the carrying of disease. Since the term is defined in relation to human activities, which species are included will vary from area to area and even person to person...
(defined as predators and other beasts not fit for the table) was not regulated. This definition was flexible, however, depending on whether the animal was thought to provide good sport, as wolves, foxes, badgers, or bears. In practice, vermin could only be killed on the commons or waste, since none but the grantee was permitted to have instruments of the hunt within the warren.
Manwood
The most cited authority on Forest Law, John ManwoodJohn Manwood
John Manwood was a barrister of Lincoln's Inn, gamekeeper of Waltham Forest, and Justice in Eyre of the New Forest under Elizabeth I of England...
, cites these beasts of warren:
"The beasts and fouls of Warren are these, The Hare, the Cony, the Pheasant, and the Partridge, and none other are accompted beasts or fouls of Warren."
However, Manwood is mistaken in his assignments, since the roe deer
Roe Deer
The European Roe Deer , also known as the Western Roe Deer, chevreuil or just Roe Deer, is a Eurasian species of deer. It is relatively small, reddish and grey-brown, and well-adapted to cold environments. Roe Deer are widespread in Western Europe, from the Mediterranean to Scandinavia, and from...
was transferred to "beast of warren" from "beast of the forest" in the fourteenth century. Roe deer are still found within woodlands named "Warren" in contemporary England. The 1911 Encyclopedia adds roe, woodcock, quail, and rail to Manwood's list. On the other hand grouse
Grouse
Grouse are a group of birds from the order Galliformes. They are sometimes considered a family Tetraonidae, though the American Ornithologists' Union and many others include grouse as a subfamily Tetraoninae in the family Phasianidae...
are not birds of warren. Fox, wolf, cat, badger, and squirrel are sometimes also added.
Sometimes domestic swine are mistakenly thought to be beasts of warren, due the right of pannage
Pannage
Pannage is the practice of turning out domestic pigs in a wood or forest, in order that they may feed on fallen acorns, beechmast, chestnuts or other nuts. Historically, it was a right or privilege granted to local people on common land or in royal forests...
.