“These liberties concerning the forests we have granted to everybody…”
Last Monday I attended an event on the Charter of the Forest, in the Temple Church, London, with presentations given by: Professor Sir John Baker QC, Professor Stephen Toope OC, and Professor Geraldine Van Bueren QC. This interesting and little-known charter of rights protected the rights of people living in the forest. Identified as a little sibling of the Magna Carta, it was sealed in St. Pauls Cathedral on 6 November 1217 and is soon to celebrate its 800th anniversary. You can see it here and read a translation of it here.
The Charter of the Forest was not a charter for woods and trees. Forests in 13th century England were lands owned by the king or gentry, and included trees, pastures, woods, wetlands, etc. They were places where people lived.
Some have identified the Charter of the Forest as evidence that there existed in England, at that time, some understanding of rights pertaining not just to the barons protected by the Magna Carta, but to the common folk as well. However, legal historians argue that this is an anachronistic, ‘leftist’ reading of the Charter, an interpretation that pushes a particular agenda and does not really recognise what it was like to live in England in the 1200s. While the Charter identified rights held outside of the aristocracy, they were rights held by landowners, not necessarily the ‘common folk’.
That being said… could the Charter have stood for more than it is sometimes assumed?
It is not appropriate to view the Charter through a contemporary ‘leftist’ lens; however, surely it is just as problematic to try and understand the Charter with prevailing assumptions of rights as abstract concepts, of rights as tied to property, and with the Western prioritising of civil and political rights. Looking at the kinds of rights afforded by the Charter, they seem miles away from rights as we understand them today; but if we look beyond superficial differences, we see a conception of rights not so far removed from 20th and 21st century understandings of rights, justice and fairness.
The rights identified by the Charter include but are not limited to: grazing rights; the right to move pigs through the forest and to put pigs to pasture; the right to produce honey; the right to build a mill and the right to make a pond. Highlighting the right to honey, Professor Geraldine Van Buren reminded us that honey at the time of the Charter was not some delicacy, it was a preservative and a necessary ingredient for many medicines. A right to honey in 13th century can be understood as a right to access to medicine today.
For the most part, the Charter served to limit the arbitrary levies and abuses of foresters (forest officials), that were at the time severely affecting the lives of people living in the forest. It formalised the courts of the forest (“swanimotes”) and tolls paid to foresters for passage through the forest (“cheminage”). These regulations reveal an aim towards fairness. The Charter held that foresters could exact cheminage on those going through the forest with a cart of goods for sale, but not on those going through the forest with goods on their back, even if they were for sale. What would be the point of this distinction, if not to avoid exacting a toll on people who could not afford it?
Ultimately, the Charter ended up benefitting not the common folk, or even the small landowners, but the gentry, in their struggles with the monarchy. While the remit of the Charter narrowed in practice to protect the rights of the gentry, it is important to remember that this is not the only way that it could have been interpreted, or the only way it could have developed. It is a reminder to read the history of our laws, not as a fixed, inevitable lines of progress, but as events affected by multiple forces, some lost to us forever, that could have developed in myriad ways, and whose influence can still be felt today.
As its 800th anniversary draws closer, we can see the influence of the Charter of the Forest in the growth of community charters across the country, this recent development building not perhaps on the way the Charter went, but on the way it could have gone.