The Greater and Better Charter
Practically every school student knows about the Magna Carta. In contrast, few are acquainted with the Charter of the Forests – the Carta de Foresta. (Only two copies of this second charter survive, one of them at Lincoln Cathedral and the other at Durham Cathedral.) While Magna Carta spoke mainly of the rights of the barons, the Forest Charter addressed the rights of ordinary people. What the Great Charter did was give English feudal lords the right to revolt against the throne in cases of infringement of their feudal privileges. The Magna Carta was a treaty in the class war, a deal amongst the haves – between rich barons and an ambitious king and it helped to make a ruling class. The King signed the document, but he had little intention of yielding to its demands. He had the support of the Pope who agreed that the document was improper as it had been extracted under duress. The Pope annulled Magna Carta; and the King turned on his enemies – England was plunged into a civil war known as the First Barons’ War.
The Charter of the Forest which was first issued on 6 November 1217, however, provided some real rights, privileges and protections for the common man against the abuses of the encroaching aristocracy. It was joined with Magna Carta in the Confirmation of Charters in 1297 signed by Edward 1, declaring both charters part of the common law of England. There was thus not one Great Charter, but two. And if the first is the basis of our modern notion of human rights, then the second stands for the right to access the commons to provide for one’s subsistence.
In 1215, nearly one third of the land in England consisted of forest; however, the word ‘forest’ in medieval times didn’t have today’s meaning of a ‘densely wooded area’. It referred essentially to a managed hunting ground, often rich in deer, which could be heath, moor or grassland, and even fields, villages or towns within the area. England’s forests had once given the common people somewhere to forage for food and firewood and space for their animals to feed. But by the era of King John, in the early 1200s, successive kings had claimed much of this land as their own, and exploited many areas to make money.
The Charter of the Forest restored the traditional rights of the people, where the land had once been held in common, and restrained landowners from inflicting harsh punishments on them. It granted free men access to the forest (though at this time only about 10 per cent of the population was free; the rest were locked into some sort of service to a local landowner, some of them little more than slaves). Free men could enjoy such rights as pannage (pasture for their pigs), estover (collecting firewood), agistment (grazing), or turbary (cutting of turf for fuel). The death penalty was removed for anyone stealing venison, though they were still subject to fines or imprisonment. Some clauses in the Laws of Forests remained in force until the 1970s, and the special courts still exist today in the New Forest and the Forest of Dean. In this respect, the Charter was the statute that remained longest in force in England (from 1217 to 1971), being finally superseded by the Wild Creatures and Forest Laws Act 1971.
Unlike the Magna Carta, which after the 13th century became altogether irrelevant and for all intents and purposes disappeared from public view (in his play ‘King John’, for instance, William Shakespeare makes no mention of Magna Carta), the Charter of the Forest remained very much alive. For four centuries Forest Law was in daily use. It wasn’t until the 17th century that the Magna Carta staged a comeback and that was due to the rise of capitalism. The Charter of the Forest was not consistent with commodity production or commercial trade, nor consistent with universal doctrines of private property. So in the seventeenth century, at the time of the English revolution, with the Enclosures (the privatisation) of land the Charter of the Forest slowly fades from importance.
The words of the Magna Carta, “No free man shall be arrested or imprisoned or deseized or outlawed or exiled or in any way destroyed, except by the lawful judgement of his peers and by the law of the land” are echoed in the 5th and 14th amendments to the U.S. Constitution. But it should be noted that deseized is a technical feudal term which means deprived of his lands. Back in the thirteenth century, of course, it only applied to freemen, who were a small percentage of the population of the time. The great majority of the population were un-free serfs. So most of the Charter was quite simply irrelevant to them.
Unoccupied lands were deemed to be royal lands, and other desirable tracts were depopulated, residents often evicted, villages destroyed, and churches burned down. Despite occasional retreats from land-grabbing, kings made ever-stronger claims to preferential and ultimately absolute power over these lands, as well as the wildlife within them. Over the decades, occupied lands were “afforested,” that is, brought within the definition of royal forests and thus made subject to the forest laws and the absolute, solitary jurisdiction of the king and his agents. Anyone dwelling or holding land within the forest bounds was subject to a complex set of regulations, implemented by royal officials answerable only to the king.
This Charter was almost unique in providing a degree of economic protection for those who used the forest to forage for food and to graze their animals. The royal forests were the most important potential source of fuel for cooking, heating and industries such as charcoal burning. The King was required to “disafforest” his Royal Forest, which meant a requirement to give up possession of forest land. This might or might not have trees, since “forest” in this context did not necessarily mean just tree-ed areas, but could include heath-lands, fields, moor or even farms and villages. The Charter specifically states that “Henceforth every freeman, in his wood or on his land that he has in the forest, may with impunity make a mill, fish-preserve, pond, marl-pit [limestone], ditch, or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour.” Instead of answering to the King alone, forest dwellers had to consult with their communities, ensuring that any development did not disadvantage their neighbours.
The Magna Carta began the process of transforming the forests into common land that served the needs of communities. According to the 1215 version of the Great Charter, “All evil customs relating to forests…are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably.” This clause was eliminated from future reissues of Magna Carta as the Charter of the Forest expanded and developed the provisions concerning use of forest land. The Charter of the Forest precisely defined the “evil customs” mentioned in the Great Charter, and presented an alternative vision for the management of common resources.
The barons, who had enjoyed only limited rights in royal forests, could, after disafforestation, make use of them at their own whim and that looked on paper like another victory by the barons over the king, but it turned out to be a slight illusion because the royal forests didn’t disappear and whilst the barons may, in fact, have gained a little, ordinary people found a guarantee of their liberty and livelihood in the Charter of the Forest. The Charter of the Forest is more relevant to the mass of the population than the Magna Carta, because the Magna Carta is really all about the King’s powers to raise revenues from his greater subjects, the actual feudal landowners. The Forest Charter is specifically about forest law which affected large numbers of ordinary people and this was of rather greater practical importance. The Charter of the Forest preserves the ability of commoners to have access to the resources and riches of the natural ecology of the forest that enable us to see the importance in modern terms of our clothing, our buildings, our fuel. In terms of the materiality of our lives in the twenty-first century, we can begin to get an inkling of how important the woodlands — how important that was to the daily lives of people. It was the essential necessities of life.
Peter Linebaugh in his book, The Magna Carta Manifesto, argues that the acceptance of the Magna Carta within Anglo-American legal culture has routinely ignored the principles of commons and subsistence rights, while the individual protections vis-à-vis the state have been canonised. The steady enclosure of common lands was paralleled by a shrinking conception of liberty. The US Supreme Court, for example, has long taken it for granted that “Rights of personal liberty and of property…are the great principles of Magna Charta” but Linebaugh objects because he believes any decent society needs to integrate both liberties: the negative rights against despotism and the positive rights to the conditions for economic self-sufficiency. Linebaugh writes:
The message of the two charters and the message of this book is plain: political and legal rights can exist only on an economic foundation.
Linebaugh defines the Commons both as the public resources available for private use and, a more central claim, in keeping with the medieval and early modern usage, of “common” as a verb, as the set of harmonious social relations produced by individuals jointly extracting the means of their subsistence from a collective pool. He reminds us that the commons is “the theory that vests all property in the community and organizes labour for the common benefit of all
Another social commentator, Noam Chomsky, addressed an audience at St. Andrews University, Scotland, on the topic of the Charter of the Forest, where he said:
The companion Charter of the Forest is perhaps even more pertinent today. It demanded protection of the commons from external power. The commons were the source of sustenance for the general population – their fuel, their food, their construction materials. The Forest was no wilderness. It was carefully nurtured, maintained in common, its riches available to all, and preserved for future generations….The Charter of the Forest imposed limits to privatization…By the 17th century, the Charter of the Forest had fallen victim to the commodity economy and capitalist practice and morality. With the commons no longer protected for cooperative nurturing and use, the rights of the common people were restricted to what could not be privatized, a category that continues to shrink to virtual invisibility…. we see that the destruction of the Charter of the Forest, and its obliteration from memory, relates rather closely to the continuing efforts to constrain the promise of the Charter of Liberties. The “New Spirit of the Age” cannot tolerate the pre-capitalist conception of the Forest as the shared endowment of the community at large, cared for communally for its own use and for future generations, protected from privatization, from transfer to the hands of private power for service to wealth, not needs….A few final words on the fate of the Charter of the Forest. Its goal was to protect the source of sustenance for the population, the commons, from external power – in the early days, royalty; over the years, enclosures and other forms of privatization by predatory corporations and the state authorities who cooperate with them…
The Derbyshire Peak forest is effectively obliterated in the early stages of the English revolution, in 1641 when the Crown loses many of its forest rights. In the later seventeenth century those rights are sold off to local entrepreneurs and local gentry and noble families. Particularly the Dukes of Devonshire enclosed parts of the forest, divided it up and expropriated those rights from the common people, and they experienced a lot of opposition to that. The effect of the Forest Charter, even though this land is no longer afforested – that is in the legal sense a royal forest – is to enshrine within local custom and within local memory a notion that the land is for peoples rather than the gentries and the nobilities. Into the 1930s that land is still an area of conflict between ordinary people and the gentry in that the people of Manchester, led by a man called Benny Roughman, who was a Communist Party activist and a trades unionist, led a mass ramblers trespass to reclaim the land of the common people in support of the right to roam on areas of moorland as a recreational activity.
Similarly on Otmoor in Oxfordshire in 1830 the landowners were successful in getting through the legislation that they required to enclose them more, and then in 1830 a series of nocturnal protests began, pulling down the fences, pulling down the hedges, re-diverting rivers that had been diverted, and these riots went on, on and off, for five years. The rioters would protest with blackened faces. They would protest often with men dressing as women, so identities were shielded through this process. And for about two years the enclosure work was effectively undermined by the protestors.
History is an ally of socialists if we care to apply its lessons. The Charter of the Forest provides for common rights, for common people. It’s a world where fuel, where tools, where medicines were available to common people from their co-operation in the great forests of that time. The Peasants’ Revolt in 1381 were conscious of their rights not because of Magna Carta, but because of the Charter of the Forest. When the market became the supreme, business became the pre-eminent institution of society, organising everything else around the interests of capital accumulation. It imposed its commodity-logic on everything, including our need to survive. We forgot our history.
Published on Dissident Voice website
http://dissidentvoice.org/2015/02/the-greater-and-better-charter/
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