Reading The Charter of the Forest (signed in 1217) and "The Charter of the Forest: Evolving Human Rights in Nature" (law paper, 2014)

Threadable-adjacent reading discussion on land ownership

Last week’s Threadable reading* consisted of two documents:

• The original Charter of the Forest, a companion document to the Magna Carta, signed in 1217 by the regent for King Henry III and reaffirmed by Henry III in 1225; and

• Two excerpts from Pace University law professor Nicholas A. Robinson’s book chapter “The Charter of the Forest: Evolving Human Rights in Nature” (Part I: Introduction: The Forest Charter in a Nutshell, starting on page 317; and Part IV: Substantive Provisions of the Forest Charter, starting on page 339)

*(https://threadablenative.page.link/Rxp8yegeZ1vXy4u19 if you want to try Threadable and need the link! Only works on iOS/Apple devices for now. For anyone new to On the Commons, an overview of this 12-week project is here.)

Both of these documents are freely available online through the links above. The original Forest Charter is straightforward in its provisions but challenging to read due to the arcane and obsolete language; the second selection (Part IV) from Robinson’s legal paper lists its provisions in (mostly) plain modern English.

I spent some hours last week looking up and defining words like swanimote and freemen (the rights detailed in the Charter are for “freemen”—that is, not serfs, who were considered property; one medievalist estimated that only about 1 in 5 English men at this point in time would have been freemen, and I won’t go into the status of women because I’ll just get sidetracked by rage).

An entire list of these definitions would be a lot of clutter-text, so I’ll just define a few important ones. Feel free to ask for any others in the comments if you want or need and I’ll answer there.

• forest: “The Norman definition of Forest extended beyond wooded areas and was used to describe any rural area that contained useful natural resources such as wood or peat, or where animals that provided game for sport and meat for aristocratic tables resided. These areas were often enclosed and became the exclusive property of the Angevin royal family. This state of affairs existed as a result of a perversion of the Norman forest laws that had been imported by William the Conqueror and applied to his new Kingdom of England in 1066.” (This is from an article by medievalist Timothy R. Jones on the lasting importance of the Forest Charter: https://www.medievalists.net/2020/02/charter-forest/)

• afforested/disafforested: “Afforestation” was the practice of expanding Royal Forests; “disafforestation” was forcing the monarch to give up lands they’d previously claimed as Royal property. Almost a third of England had been claimed as Royal Forest by this time, and disafforestation was one of the main purposes of forcing Henry III to sign the Charter of the Forest.

• swanimote: “A court formerly held before foresters, verderers, and other forest officers to try offenses against vert and venison and to hear grievances against forest officers.” (Oxford English Dictionary; also: vert is greenery, and venison, according to one source, applied to any game animals of the forest, not just deer—rabbits, for example)

• lawing of dogs: “The cutting of several claws of the forefeet of dogs in the forest, to prevent their running at deer.” (Black’s Law Dictionary)

• demesne: “Possession (of real estate) as one’s own. Chiefly the phrase ‘to hold in demesne’ (tenure in dominico), i.e. in one’s own hands as possessor by free tenure.” (Oxford English Dictionary, definition of demesne as related to the law)

(I love the richness of words, so didn’t mind doing this and don’t mind doing more if you can’t find something. Part of me still just wants to be an etymologist.)

This note I left on Threadable gets at one of the reasons I think the Charter of the Forest is so important for people to get to know:

The Forest Charter is a crucial document because it’s an early example of how fluid private property rights can be, and how much people disagreed over claiming and enforcing of those rights even 800 years ago. William the Conqueror simply declared vasts sections of common land to be Royal Forest, starting in 1066, and subsequent kings expanded those claims. Literal bloody battles were fought to push back on royal assertions over land.

Getting Henry III to sign the Charter of the Forest (in 1225—his regent had initially done so in 1217; Henry was 9 years old at that time) and agree to disafforestation wasn’t the last of these battles. In the parts of Nicholas A. Robinson’s paper that isn’t in the reading, he goes into detail about these power struggles over the centuries. Extensive afforestation was one of the major complaints against King Charles I that led him being beheaded, for example.

Getting a good grasp of what rights of sustenance and land English people nearly a thousand years ago insisted they had feels necessary to getting our heads around the idea that, whatever the dominant culture currently thinks of as private property rights over land, they have always been subject to change. Not only that, but defining the parameters of those rights spills out into many other areas of our lives.

Robinson’s paper focuses on this legacy. He writes about how the Forest Charter informs modern environmental laws, but more importantly—to me—he focuses on the ways in which the practice of defending the Charter of the Forest and the subsistence rights it details was the means by which the more abstract human rights listed in the Magna Carta were also defended and defined. For most of the past 800 years, he says, the Forest Charter was the more well-known and important of the two documents. It was the crucible in which human rights were shaped.

Some questions and thoughts I left in the Threadable version of the readings:

• What is the relationship between physical rights and more abstract rights? How do these interactions relate to land access or lack thereof? (It seems to me that it’s hard to have rights of freedom if you aren’t also guaranteed rights of survival.)

• Related to that, where does law come from? Reading these documents, it felt to me that laws are first born out of interactions with the physical land we live on and with—and all the other people who do the same.

• How might a study of the Forest Charter change how we view property law? Should property law have embedded in it a right of survival for everyone else? What about Rights of Nature?

• Could different societies be served now by modern equivalents of the Charter of the Forest, maybe centered around management of commons?

Take your time with these. The struggles over land ownership, property rights, and rights of subsistence have been going on for an unimaginably long time, and none of them are going to come to a resolution next week. Or next year. Or next millennium, probably. But better understanding their roots might help us envision a different way forward.

Next week’s selection will be from Simon Winchester’s new book Land: How the Hunger for Ownership Shaped the Modern World (Chapters 1 and 2 of Part II). After that, we’ll be delving into the 1823 U.S. Supreme Court case Johnson v. McIntosh, its progenitor the 15th-century Doctrine of Discovery, and the ongoing consequences of both.

A little private property trespass to start your week with.