The Charter of the Forest: its importance for today

By Julie Timbrell, of The New Putney Debates and Occupy London:

Celebrations to mark the 800th anniversary next year of the Charter of the Forest get underway next month in preparation for some big events next year. While the Magna Carta of 1215 is now much more famous, the Charter of the Forest of 1217 at the time was certainly as important, maybe more so, because it gave commoners rights, privileges and protection against the abuses of the king, his sheriffs and the encroaching aristocracy. Crucially it allowed people to subsist and have access to the commonwealth, in the forests, chases and heaths.

charter-of-the-forest

Charter of the Forest 1225 reissue held by the British Library

It prevented the King and his agents from continuously enclosing the common land (aforrestation). More than that, it required the king (Henry III) to give up the parts of the royal forest lands (disafforestation) that had been seized by the previous kings Richard and John. From the time of William the Conqueror the Norman kings had enclosed more and more land, for hunting and for levying tax receipts and fines for war. Huge tracts of land were turned into Royal Forest, including most of Essex.

The Charter of the Forest also put an end to cruel and unusual punishments and arbitrary fines. Before the agreement, hunting for deer was punishable by death or castration, and the blinding of poachers. The Robin Hood legends are set in this period and tell of feasting on the venison in the Greenwood, and of evading the Sherriff of Nottingham in the Royal Forest. These are tales of brave resistance in a brutal time–a folk-lore history that attests to rebel heroes resisting the arbitrary authority of the king’s agents in the forest. One of the clauses of the Magna Carta, which gave rise to the Charter of the Forest, removed from office the Sheriff of Nottingham and his family.

The Charter of the Forest established the rule of law within the Royal Forests. Special Verderers Courts ( Eyres) were set up in the forests to enforce the laws of the Charter, and this enabled common people to seek justice, as recounted in the tale of Robin Hood and the Golden Arrow:

152a 1    When as the sherrif of Nottingham
Was come, with mickle grief,
He talkd no good of Robin Hood,
That strong and sturdy thief.
Fall al dal de

152a.2   So unto London-road he past,
His losses to unfold
To King Richard, who did regards
The tale that he had told

152a.3   ‘Why’ quoth the king,’what shall I do?
Art thou not sherriff for me?
The law is in force, go take thy cours
Of them that injure thee.`

Child Ballads

One of the major conflicts that raged throughout the 13th Century, and beyond, resulted from the continued enclosure of land. Successive kings , with early support from the Pope, either reneged on the Magna Carter & Charter of the Forest agreements, or simply ignored their provisions. Kings continued to seize land, in part to raise taxes to fund the Crusades. This fuelled ongoing conflict and the repeated Barons Wars. As a result both the charters were revised and re-issued several times throughout the 13th century, as peace treaties to settle civil war. Copies were distributed throughout the kingdom, to be read aloud in churches.

Finally both charters were incorporated into statute in 1297. Legal research indicates it was conflicts over access to the land , and the prevention of enclosures in particular, that drove demands for justice and for both the charters to be accepted by kings , barons, and the church.

In ‘The Magna Carta Manifesto , Liberties and Commons for All’ , radical historian Peter Linebaugh sets out how Magna Carta secured liberties, but he shows that it was the Charter of the Forest that secured economic rights to the ‘commons’, and how vital these were. The Charter guaranteed access to the land for common people to forage, graze their animals, farm and gather wood for fuel, building & industry. At a time when the royal forests were the most important source of food, fuel and wood for the production of craft items, it guaranteed rights to Herbage (gathering berries and herbs), pannage (pasture for pigs), estover (wood to build homes, make tools & for firewood), agistment (grazing), turbary (cutting of turf for fuel), and the collecting of honey.  The Charter also granted smallholders rights to farm: “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, ditch or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour”. (Clause 10)

Fundamentally it declared the rights of all to a living from the fruits of the land, arguably a more radical measure than the idea of a Basic Income today. The Charter of the Forest was developed during the feudal period and the ‘commons’ , then ( and often now ), were frequently ‘owned’ by a local lord or king. While Linebaugh does not say the Charter of the Forest was an early communist constitution, he says it did give people limited ownership of the means of production and laid down a system of governance for the common stewardship of shared resources, which has lasted for centuries. The practices laid down in the Charter of the Forest are still in force in many small farming communities, and ‘commoning’  lives on in places like the New Forest.

It was supported by a range of traditional customs and mechanisms to manage commoners ‘usefructs ‘ (the right to enjoy the use and advantages of another’s property short of the destruction or waste of its substance). For example  Swanimot councils were courts of commoners , where swineherders ensured that their domestic pigs would eat the acorns without disturbing the fawns or destroying the vert (vegetation) that supported the king’s deer. They almost certainly drew on pre-existing Anglo-Saxon practices for managing the local ‘commune’ that existed prior to the Norman Conquest and with it the imposition of harsh Forest Law, which the Charter of the Forest helped roll back.

The Charter enshrined into our constitution the principle of multiple rights for the different classes, of shared ownership, with different layers of property rights for different users of the Forest . This laid the basis for the stewardship of the land for future generations and a more robust and sustainable use of the land was the result. This understanding of property rights as being shared is the mirror image of the more famous and still existing clause in the Magna Carta that :’No Freeman shall be disseised of his Freehold ..but by lawful judgment of his Peers…or by the Law of the Land’. Freehold then was not considered either absolute or inviolable; a Freehold could be withdrawn if a land was left to waste. This is unlike the interpretation given to property rights in modern courts where they are frequently interpreted as absolute.

The introduction of these statutes into law brought about  an era of prosperity in the 13th & 14th Century; however conflict over land ownership, rights and usage has continued down the centuries as kings and landowners have continued to land-grab. Both the Charter of the Forest, and the commoning practices it protected, have been invoked by people when fighting subsequent enclosures.

In the 17th Century Charles 1 restored the boundaries of the royal forests in England to their ancient limits as part of a scheme to maximise income . This time the focus of the programme was disafforestation and the sale of forest lands for conversion to pasture and arable farming, or in the case of the Forest of Dean, development for the iron industry. The gentry and the emergent capitalist class were seeking land to farm and develop, and the king was keen to raise money for war and to pay the national debt. The resulting disafforestation frequently caused riots and disturbances including those known as the Western Rising.

As the Past Tense booklet , Down with the Fences, puts it:

“The early 17th century brought mass open warfare against enclosing landowners: most famously in the Midlands in 1607, where thousands of the landless poor fought the militia, destroying fences, & breaking open enclosures. Interestingly this was where the names of Levellers & Diggers were seemingly first adopted or used to describe these poor rebels.”  Around half of the people involved in this uprising were from Rockingham Forest.

In 1641 a ‘Grand Remonstrance’,  listing the peoples’ grievances was presented to King Charles I by parliament . It included a petition to end “The enlargements of forests, contrary to Carta de Foresta, and the composition thereupon”. This was one of the events precipitating the English Civil War.

During the Civil War the Real Levellers, or Diggers, took to occupying waste land, growing vegetables and living communally.  Forest law featured in the discussions undertaken during the Putney Debates between Levellers in the New Model Army and Cromwell and his generals towards the end of the civil war, in an attempt to reconcile the differences between the victorious capitalist class and the empowered commoners. Ultimately the more radical cause of the Levellers was lost, the Diggers were evicted by rich landowners, and the Levellers defeated by Cromwell, but the words of Gerard Winstanley, who declared the land “a common Treasury for all’, and the tactic of occupation lived on. In addition many of the local uprisings during this period ensured that forests and chases such as the Forest of Dean and Malvern Chase continued in common ownership.

The fight for commons continued in following centuries , and it is certain that London, for example, would not still have large open spaces but for the combination of direct action , community organisation and legal action taken by thousands of local people mobilising during the 17th, 18th and 19th centuries to stop the plans of rich families like the Spencers in Wandsworth from selling off chunks of land for housing and other developments.

Richmond Park, originally enclosed by Charles I by seizing common land from various parishes, had become by the 18th century a resort of the nobility and royalty, who had keys to get in. Commoners were excluded. The park was full of deer, rabbits and hares, and poaching was a local way of life. A war was fought to stop this by the King’s agents, with ladders over the walls being replaced by man-traps. The booklet by Past Tense takes up the story: “On May 16th 1751, a crowd of parishioners from one of the parishes expropriated by the enclosure…broke into the park, claiming they were ‘Beating the Bounds’ of the parish (the old ceremony for marking out the boundaries). This was tantamount to asserting their rights of access to the old commons.” By doing this they were using rights granted to them in the Charter of the Forest, which  stipulated  regular ‘perambulations’ or inspections, to prevent enclosure.

Epping Forest was saved in the late 1800s from the local lords of the manor seeking to enclose portions they governed for private profit. The insistence of local commoners on practicing their lopping rights were instrumental in this struggle . “Lopping” was the ancient practice of cutting or lopping the boughs and branches of trees by commoners for use as fuel during winter.

Thomas Willingale (1799 -1870) was a man who guarded this right, and every November 11 at midnight he went into the forest believing that if no-one started lopping at the appointed hour, the rights would be lost forever. Legend has it that the local landowner, William Whitaker Maitland, tried to end this custom by inviting all those with rights to lop to a supper at the King’s Head pub in Loughton High Road. He was hoping that by midnight, they would all be too drunk to go into the forest and exercise their rights. But the tale goes that Thomas Willingale realised treachery was afoot, and at midnight he lopped off a branch before triumphantly returning to the King’s Head.

This campaign was supported by the Commons Preservation Society, and eventually the City of London, who acted on behalf of the commoners in a legal battle. It won and in 1874 enclosure of forest land for private development, on the grounds that it prevented commoners freely grazing their cattle, was declared unlawful, and Epping Forest was saved. Since then common grazing rights have dwindled in practice and most common land in London is now more amenity land.  However there has been a revival of interest in ‘commoning’ and the practice has recently been revived with the City of London working with a commoner to re-establish a conservation herd in 2002 in Epping Forest.  This herd of English Longhorns has since grown, allowing grazing of other areas by small groups of cows.

Wimbledon Common, Wandworth Commons , and countless other open spaces have been preserved, or part-preserved only as a result of actions by the people, frequently using existing rights of common on these lands, which have enabled successful legal challenges.

Some clauses of the Charter remained in force until the 1970s, and special courts in the New Forest and the Forest of Dean still exist today. The Charter was finally repealed and replaced by the Wild Creatures and Forest Laws Act of 1971, however existing rights of common continue.

More recently Runnymede Eco Village occupied waste woodland in Cooper Hills for three year, above Runnymede where the Magna Carta of 1215 was agreed. They proclaimed themselves modern Diggers, living in common on the land and growing vegetables . In an echo of the past they were evicted by a rich landowner, this time by a property development company register offshore , to make way for a development of, predominately, exclusive housing . The Runnymede Diggers made the case in court that they were living in accordance with the principles of the Charter of the Forest, however the prosecution took the view that property rights trumped all other rights, and the judge, while sympathetic, agreed.

These kind of battles over land of course are not confined to London, or even to Britain but happen all over the world in different ways. More recently the focus on most battles for land in the cities has been to try and prevent council housing being lost to regeneration and private developers. But the loss of nature, of habitat, of trees and a love of Forest is still a driver for huge protests, as the Newbury, Oxleas Wood and other road protests have demonstrated.

When the Conservative/Liberal Democrat coalition government tried to privatise the Forestry Commission millions of people mobilised to stop this happening, aided by the National Trust which noted the importance of the Charter of the Forest and the opportunities for new types of commoning to enrich local connections to the land and to promote ecology.

The rights granted by the Charter of the Forest have been invoked by people over successive generations to keep land in common usage, to oppose the enclosures of land and to protect forests and parklands from being developed, and more recently to inspire new usage of land promoting community, sustainability and ecological diversity.  Fundamental principles were laid down in the Charter that have relevance even today.

Recently economists have started to examine these collective practices of managing land in order to adapt them to contemporary contexts, to modern ‘Commoning’ . Nobel prize winning economist Elinor Ostrom’s work on common pool (finite) resources has demonstrated that it is possible for these to be managed collectively by communities, without degradation, if certain principles are followed, including the need for democratic processes to set and enforce rules that manage the land sustainably.

These ideas challenge the famous “Tragedy of the Commons’ essay , which is based on a hypothetical thought-experiment and argues that any commons would degrade from over- use, as each individual would maximise their own usage, leading to depletion of the shared resource over time . This argument has been used to justify privatisation.  However Ostrum’s work, examining how actual commons—such as grazing land, forests and fishing pools–are managed, has demonstrated that many have been sustained over generations by collective governance in different communities across the world.

The Charter of the Forest is considered to be one of the earliest charters laying down a system of common governance, as well as one of the earliest ecological charters. The layered managing of property rights has proved a resilient practice of sharing and managing the land as it laid a framework for a diversity of users to make use of the land, and has sustained a varied ecology in order to do this. Places that have continued these communal practices, such as the New Forest and the Forest of Dean, now benefit from a richer ecology.

These land management practices are very different to the ones used by the Forestry Commission, which, until recently anyway, adopted the principle of maximising profit and used this to justify cutting down ancient trees to make way for a monoculture of pine plantations, to the detriment of local flora, fauna and people.

The ecological principles of holding different user needs in balance, which the Charter of the Forest embodies, has helped to inspire the growing movement for earth governance. This has resulted in the Universal Declaration of Rights of Mother Earth, in 2010, at the World People’s Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia.

The global revival of interest in the commons is in part a response to both the growing ecological crisis and the alienating nature of both capitalism and state bureaucracy . Commons are local, relational, and particular to the community. In the UK Duncan Mackay, is pioneering new types of commoning through the establishment of community orchids, where each child in the community has a tree named after them, to increase the stake that every family has in the woods.  The Transition Towns movement, and initiatives such as ‘Incredible Edible Todmorden’ and ‘Organic Lee’ are all recent manifestations of emerging community responses to climate change , the desire for locally produced food and a wish to grow organic community solutions .

In Detroit a community food-growing revolution has transformed the parts of city abandoned by industry and bankrupt city authorities. Worldwide, people are developing food forests, using the principles of commoning and of permaculture . La Via Campesina , the International Peasant Movement, embodies many of the principle of commoning in its call for food sovereignty, which is being heeded by policy makers from the UN and beyond.

As the first known statutory framing of commoning practice, giving rights to develop and make use of natural resources in co-operation with neighbours, the Charter of the Forest has continued to influence the governance of the land, of farming and of the provisions of common rights through the centuries. And it has inspired subsequent social movements, particularly land & food rights movements (eg The Diggers, the Levellers and the campaign for the right to roam), ecological movements and contemporary campaigns for Earth Rights.

There has been extensive historical investigation of the Magna Carta, but there is no modern comprehensive history of the Charter of the Forest. In last year`s official celebrations of Magna Carta, the Charter of the Forest tended to feature only as a footnote. However there is a growing understanding of the significance of the Charter, with much contemporary research now emphasising its significance.

The coming anniversary of the Charter of the Forest is an opportunity to get a clearer understanding of the Charter, of its development, and its contemporary relevance . The emphasis will be on examining the social history of the charter, the subsequent social movements, the importance of our folk history in our self-understanding and the role of mass movements in securing rights for common people.

Celebration of the Charter, as part of the 800th anniversary, takes place next month on the weekend of Nov 5/6, with a boat trip, the unveiling of a timeline to illustrate the history of the Charter, a meeting, and a boat party celebrating social struggles for land rights in folk music and song, and a walking Tour through London from Lambeth Palace to St Pauls Cathedral. Details at https://thenewputneydebates.com/

Notes

  1. For more about the Charter of the Forest text see here

http://info.sjc.ox.ac.uk/forests/Carta.htm

  1. The New Putney Debates grew out of a democratic festival initiated by the Occupy London collective in 2012. The first New Putney Debates was a series of events inspired by the Levellers’ and Diggers’ demands for social justice, civil rights and equal access to the land, celebrating the 365th year anniversary of the original Putney Debates, featuring notable and grassroot contributers, writers, theorists, artists, and activists.

The collective has since gone on to organise many events including a second New Putney Debates (2014) and  the alternative Festival of Democracy (June 2015) in association with the Runnymede Diggers eco village and Occupy Democracy in the woodland above the Magna Carta meadows of Runnymede, using the celebrations of these charters as a starting point revisit our social history in order to develop contemporary solutions to the present democratic and ecological crisis.

The New Putney Debates intends to continue with a two year long programme of events to celebrate more fully the anniversary of the Charter of the Forest in 2017, as well as other events which research and retell our social history, in order to further debate and involve citizens in creating a more democratic, socially and environmental just world.

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