The Charter of the Forest is among the first statutes in environmental law of any nation. Crafted to reform patently unjust governance of natural resources in thirteenth century England, the Charter of the forest became a framework through which to reconcile competing environmental claims, then and into the future.[1]
On 6th November 1217 the Charter of the Forrest was issued, sealed by the boy king Henry III, acting under the Regency of William Marshall. The charter was issued alongside a new version of Magna Carta, from which it had originally evolved. Clause 47 of the 1215 Magna Carta reads:
All forests that have been created in our reign shall at once be disafforested. River-banks that have been enclosed in our reign shall be treated similarly.
Compared to the attention showered on Magna Carta, especially most recently in its own 800th year, the Charter of the Forest has often been overlooked. However, the Charter of the Forest is an important milestone in the development of the rights of ordinary people and, now celebrating its own 800th anniversary, is gradually receiving its own share of the limelight.
To mark its 800th anniversary the Woodland Trust, along with more than fifty other organisations have joined together to create and launch a new Charter for Trees, Woods and People in order to reflect on our modern relationship with the natural world around us.[2] But was this really the intention of the charter in 1217? Was it really the beginning of environmental law?
In the Middle Ages ‘royal forest’ did not just mean areas of woodland. It could include meadows, fields, heathland, moors, farmland, even villages. Since the time of William the Conqueror, large areas of the country had been proclaimed as royal forest, giving the king a monopoly over hunting rights and the resources in these areas. By the reign of King John, about a third of the country was royal forest. This included the famous Sherwood Forest and the New Forest, which remains one of the areas of woodland in England today.
In the twelfth and thirteenth centuries the population of England was expanding and the traditional laws of the forest were become onerous for landlords and tenants alike. Before the charter was issued, permission from the Chief Forester was required before you could clear or cultivate any land within the forest. The right to pasture animals in the forest was strictly controlled and this right could be removed by the king at any time. Even the felling of trees was closely regulated. If a violation of the forest law was committed and no perpetrator could be found, the Chief Forester had the ability to impose a fine on the entire community. There were also harsh penalties for anyone found hunting deer, including mutilation or in some cases, death.
So what did the Charter actually do? Firstly, under the charter the king was required to ‘disaforest’ or give up areas of royal forest, particularly those that had afforested during the reigns of Richard and John. This was in effect putting into practice what John had conceded at Runnymede in June 1215. The charter also repealed the death penalty for anyone found guilty of capturing the king’s deer and removed mutilation as a lesser punishment. However, the deer in the royal forest were still recognised as the king’s property and you were liable to pay a fine or end up in prison if you were caught hunting them.
In contrast to Magna Carta, which dealt with the rights of the barons, this charter provided a certain amount of protection for “free men” who used areas of the royal forest to graze their animal and forage for food. It aimed to protect their rights to pasture for their pigs, collecting firewood, grazing livestock, and cutting turf for fuel. But of course the term “free men” still did not apply to everybody.
Today, there are only two surviving copies of the 1217 Charter of the Forest [3], but what, other than the charters themselves, is the legacy of this medieval document? For centuries after the issuing of the charter, ordinary people living within areas of royal forests were able to enjoy the freedoms set out in the 1217 document. For example, in Sherwood Forest as late as the mid-eighteenth century poor residents of Edwinstowe could supply themselves with firewood and gather ferns to sell for making soap. Those who owned property in forest were allowed to build mills, make fishponds, dig drainage ditches and even the right to harvest honey. But the charter has been transformed in public memory from a fundamental assertion of common rights to a generalised plan to handle nature and our natural resources, particularly in the 17th, 18th and 19th century when the relationship between ordinary people and common land underwent significant changes.
In the reign of Charles I, the boundaries of the royal forests were restored in England to their ancient limits as part of a scheme to maximise the king’s income. The aim of this was to sell these forest lands for conversion to farmland, or in the case of the Forest of Dean, development for the iron industry. 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, which were contrary to the 1217 charter. This was one of the key events precipitating the English Civil War. During the Civil War itself, the Levellers, or Diggers, took to occupying waste land, growing vegetables and living communally and the Charter of the Forest featured in the Putney Debates.
The fight to access and utilise common land continued in following centuries, with legal action taken by thousands of local people mobilising during the 18th and 19th centuries to stop the plans of rich families from selling off parcels of land for housing and other development. For example, the enclosure of parts of Epping Forest gave rise to protests in the 1860s and 70s, led by local commoners supported by the recently formed Commons Preservation Society.
Local people were particularly keen to protect their ‘lopping rights’ which was an ancient practice that allowed them to ‘lopp’ off the branches of trees to use as fuel in the winter months, similar to rights set out in 1217. The campaign was supported by the City of London who represented the local people in a legal battle. The end result was the Epping Forest Act of 1878, which transferred ownership of the forest and the rights over it to the City of London, which meant that local people could still freely graze their cattle and carry out lopping.
Since then, most of the 1217 charter’s principles have since been embedded into other legislation, including the Commons Act of 1876, which ruled that enclosure should be allowed only if there were public benefit, and through the establishment of the Forestry Commission in 1919. Some clauses of the charter remained in force until as late as 1970, when the charter’s remaining clauses were superseded by the Wild Creatures and Forest Laws Act of 1971.
Does the Charter of the Forest have any real links to environmental law? Not really. Rather, the Charter of the Forest’s legacy is that of localism. It could be argued that the charter eventually allowed for the transfer of power over resources from central government to local agencies and ordinary people for the benefit of local communities, but this was not the intention of the charter in 1217.
By Claire Kennan
Claire is a Citizens Project Officer and PhD researcher at Royal Holloway, University of London.
[1] Nicholas A. Robinson, The Charter of the Forest: Evolving Human Rights in Nature, in Magna Carta and the Rule of Law 311 (Daniel Barstow Magraw et al., eds. 2014), http://digitalcommons.pace.edu/lawfaculty/990/.
[3] One belonging to Durham Cathedral and the other to Lincoln Cathedral.
