the Exchequer, the Barons directed issues to ascertain the validity of such moduses, and the same were now tried before a special jury.

The evidence on the part of the parish consisted of the testimony of many old persons, with receipts given by different vicars, all of which concurred in showing that the moduses had never varied, and had been in existence from time immemorial, except that, during the incumbency of the Rev. Mr. Nicholson, (who preceded the present vicar, the Rev. Mr. Prevost) there were a few instances of 3s. having been paid for each cow, and this sum had also been paid by two or three small occupiers to Mr. Prevost. The vicar relied on these variations, coupled with the circumstances of the augmentation made to the vicarage, by the Abbess and Convent of Shaftesbury, in the year 1360, and of two terriers remaining in the Bishop's registry. In the former is a grant to the vicar of "Lactagium seu Lacticinium." In the latter is mentioned a "Cow White ;" and these words, it was contended meant the tithes of milk.

Mr. Sergeant Lens, on the part of the defendant, insisted, that vicarial tithes were justified by the common law of the land; and that, although moduses were taken by the late Rev. Mr. Nicholson, it formed no rule for the present vicar, Mr. Prevost. It appeared that in the present case various modes of payment had been made in the parish, both for cows and for gardens; and he contended, that unless payments

were unvaried and invariable, the modus could not be established, Mr. Prevost, he said, had certainly, on his first coming to the vicarage, acquiesced in receiving the modus; but he was not on this account shut out from his claim for vicarial tithes : no documents of a date antecedent to the year 1781 had now been produced, and an usage, like the present, of 40 or 50 years, was not sufficient to set aside the general rule and law of the land.

Mr. Sergeant Pell, for the plaintiff, contended, that the modus, in this state, was fully established by the evidence of the various witnesses who had now. proved its having been paid for a great many years; and he insisted it was a circumstance which greatly strengthened his case, that none of the books of antecedent vicars, proving the vicarial tithes to have been paid, had now been produced. The learned Sergeant then animadverted severely on the two miserable witnesses (as he called them) who had proved their having paid for the last few years, to the present vicar, the sum of 3s. per cow: one of those witnesses, when repeatedly asked why he had paid 3s. knowing that the other parishioners of Tisbury only had paid 3d, declined giving an answer; and when asked by a gentleman of the jury if he would have paid! more than 3s. if demanded, said he begged to be excused answering. The learned Sergeant concluded with impressing on the minds of the jury the great importance of the decision which they were called upon to make in this case; and which decision

would,

would, if given in favour of the defendant, most seriously affect the value of estates, not only in the parish of Tisbury, but in every parish throughout the kingdom where a modus in lieu of tithe was paid.

Verdicts were found in favour of the parishioners, and in support of all the moduses except that for heifers, which was not insisted on, as being considered to be included in the modus for

cows,

Wilts Assizes, July.-Lord Rivers v. Thomas King and two others.This suit was instituted to ascertain the boundaries of the Chase of Cranborne; and involved, on one side, the most extensive royalty that was ever claimed by any subject, or perhaps by any sovereign prince; and on the other, the independent enjoyment of their property by all the owners of the soil throughout the range of that wide domain.

The pleadings were shortly explained by Mr. Baily, who stated, that it was an action brought against the defendants for entering Cranborne-chase in a certain part, within that county, called Trow-down, and with their dogs, against the will of Lord Rivers, chasing and hunting his deer; which trespass the defendants had justified, on the ground that Trow-down was the freehold estate of the defendant King, that the deer were wrongfully eating his grass there, and that he and the other defendants, his servants, with his dogs, drove them off his land; to which plea the noble plaintiff had replied, that Trow down was part of his Chase of

Cranborne, and that his deer were lawfully feeding there.

Mr. Sergeant Lens, in an eloquent address, explained to the jury that the question upon these pleadings involved the right of Lord Rivers to exercise the privilege of his Chase, not only upon the land in which the defendants in this case were supposed to have trespassed, but over a very enlarged tract of country in the three counties of Dorset, Wilts, and Southampton, in all of which, during the lapse of many centuries, far beyond the reach of memory or tradition, the noble lord, and all those from whom he claimed, had exercised those privileges. He said, that the rights of the forest and chase, now to be exerted over this vast district, however obnoxious they might be to the feelings of those whom they affected-however injurious to the interests of individualswere grounded in the ancient constitution of England, and were protected by that law which held every right as sacred, and would never permit the irritated feelings of men to justify the invasion of any right. He said, it was without dispute that Lord Rivers was entitled to the ancient royalty of the Chase of Cranborne, and that within that Chase, however straitened or extended, his deer were entitled to run without molestation; that the only question to be now determined was that of boundary; that all objections to the oppressive nature of his right, and all clamour respecting its origin, or the detriment which others sustained from its exercise, would be misapplied to the case. The jury had nothing to determine

but a dry question of boundary; and he would undertake to define the boundary now claimed by his noble client, wide as it would appear, with as much certainty and precision as that of any parish in the county. He should be able to define such boundary, not merely by evidence of the exercise of all the privileges incidental to the Chase in various parts of that extended district in times of high antiquity, and in modern times down to the moment of his addressing the jury, but by ancient decisions of courts of competent jurisdiction, in proceedings by which the exercise of such privileges was resisted and such boundary disputed. The rights were always deemed oppressive by those whom they affected, and many attempts had been made to confine their applications to narrower limits, but such attempts had led to those judicial confirmations of the extended claim of the Chase; and unless those proceedings were of no avail-unless the public records of them which remained as the land-marks of property could be reversed he rested upon them with confident assurance that he should succeed in behalf of his client. The manor of Cranborne was indeed in the county of Dorset, but not within the narrow limits which the defendants would assign to the Chase, claimed as appurtenant to that manor. admitted that in some ancient documents, the Chase was described as situate in the county of Dorset, but that was because the manor to which it appertains was in that county; still the Chase so

He

appurtenant might be, and its narrowest bounds were, in fact, admitted to be much more extensive. The boundary which he claimed had been defined by a map made under the direction of the King's Exchequer in the reign of James the First; a Court of the Chase had always subsisted, and had always exercised its jurisdiction over persons residing without the limits which the defendants would endeavour to prescribe to the owner of the Chase; and chiminage, which was a toll payable by persons entering the Chase at a certain period of the year, had always been received at the extreme point of the extended boundary. The rights of Lord Rivers might seem doubtful, from the moderation with which they had been exercised; in the outward parts of his franchise they had, during a long period, hardly been felt, and might almost be forgotten; indeed, they remained to the noble Lord, not as a source of profit-not as a means of practical injury to any one-but as a mere honour, and that of great expense to him-as a feather of high estimation-which, however lightly it might be regarded, would, if established as a right, be entitled to protection; and he had no doubt, if so established, would be considered by the jury as weightier in the scale of justice than all the eloquence and all the clamour with which it might be questioned.

The proof of the plaintiff's title, by ancient documents, consisted of grants in the 15th year of James 1st to Lord Salisbury, in tail, and subsequent conveyances

through

through several families down to the family of Lord Rivers. They produced also several very ancient proceedings in the reigns of our earliest kings, in which agreements were made between the proprietors of the Chase and various persons, granting them privileges in Wiltshire and in Dorset, within the Chase. In the Sth Edward 1st, 1280, a writ of quo warranto had issued into Dorsetshire, respecting the Chase, against Gilbert de Clare, Earl of Gloucester, in which it was alleged by the King's Attorney-General, that, by a perambulation made while King John was Earl of Gloucester, the Chase had been marked out by certain known bounds, (viz. the bounds this day claimed), and those bounds were then adjudged to Gilbert de Clare. In the 15th James 1st, a decree of the King's Court of Exchequer assigned to the Earl of Salisbury the bounds now contended for in Dorsetshire, Wilt shire, and Hampshire. In the 8th Charles 1st, a similar decree passed in the Exchequer. The rolls of the Chase Court were produced, by which persons were fined for offences in Wiltshire; the accounts of the stewards of the Chase proved that such fines were paid, and that chiminage had anciently been levied. It was proved that these courts were held at Cranborne and at Wimborne St. Giles, in Dorsetshire, far without the narrower limits of the Chase, and at Rushmore, in Wiltshire; and that recoveries of the Chase had at various times been suffered in Hampshire and in Wiltshire.

On the following morning Mr.

Sergeant Best entered upon the defendant's case. He desired the jury to consider what it was for which the plaintiff contended,— namely, a right to feed his beasts of the chase over 500,000 acres of land in three counties, which included an extent of country more than 100 miles in circumference. He claimed that in that wide range no man should plough the land to the detriment of the deer; and no man should raise a fence to the exclusion of the deer; that the growth of wood should be protected only for the benefit of the deer; that if any man turned his sheep into his own woods, they should be impounded by the owner of the deer; that the growth of timber should for ever be prevented by the browsing of the deer; that the rights of the chase should in all things be preferred to the interests of man; that all cultivation should be subservient to those rights, and that the benefit of the deer of Lord Rivers should be paramount to all the rights of property, and make the industry of the husbandman of no avail. He contended, that this claim was in its nature so oppressive, that it could hardly be consistent with any law that the King of England, putting all his forests together, could not exercise such privileges over an extent of soil nearly so great, that it was six times as large as the New Forest; that it was not credible, nay, he contended that it was not possible, that such a right could ever have been given by the worst of our kings to any subject whatsoever, and that, if given, it was contrary to the great Charter of

:

the

the Forest, and could not subsist. He pointed out, that this odious claim, so destructive to agriculture and the best rights of the community, was made not for the profit of any one; it was admitted to be an expensive honour; it was a mere feather, of no value to its owner. He was confident that that feather would now be plucked from the wing of Lord Rivers; and he doubted not that the noble Lord would soon renounce the last portion of that which was now claimed for him, and abandon altogether a right which could never be of benefit to him or to his family, and must be always in its exercise most hateful and most oppressive to those who were subject to it. The judicial decisions on which the claim of the plaintiff rested were not the verdicts of juries: but the decisions of Courts in the worst times of our history, which had dared to proceed in defiance of the verdicts of juries no proprietor of the Chase had in former times ventured to submit his claim to the decision of a Wiltshire jury. He had no respect for such judg. ments, obtained in earlier times, to establish such odious rights: they were void from the beginning, as being contrary to the great Charter of the Forest, and the ancient rights of Englishmen. They were among the grievances which had prepared the way for the glorious revolution of King William. He doubted not that this day the verdict of a jury of Wiltshire would set them all aside. The decision in favour of Lord Salisbury, upon which the plaintiff's claim mainly depended, was fraudulently obtained; the verdict

of a jury had just then overturned the rights; Lord Salisbury was then tenant in fee of the Chase; he was High Treasurer of England, and the minion of the reigning sovereign; the judges were dependent upon his will; he surrendered his estate in fee, and took back his estate in tail; the Barons of the Exchequer, then pretending to maintain the rights of the Crown, gave to him that infamous decree without the verdict of a jury, which, he trusted, the verdict of a jury would this day overturn.

The evidence for the defendants proved, that the decree in question was so obtained, and contrary to a previous verdict of a jury. It proved, that in many very ancient documents, the Chase was uniformly described as locally situate in Dorsetshire; that in Wiltshire it had very often been resisted with success, and had never been confirmed by a jury.

At a very late hour, Mr. Sergeant Lens replied to the defendants' case, and maintained, that, to be rightly determined by the jury, it should be considered merely as a question of boundary, and that the feelings excited by Mr. Sergeant Best were only calculated to mislead the judg ment.

The learned Judge recapitulated all the evidence, and under his direction, at nearly 2 o'clock on Friday morning, a verdict was found for the defendants.

Mr. Sergeant Lens was ably assisted by Mr. Gifford and Mr. Baily, for the plaintiff; and Mr. Sergeant Best, by Mr. Casberd and Mr. Gunning, for the defendants.

Court