FROM WHENCE THE NAME MAGNA CARTA?
This is not a tale of Magna Carta yet that is where it must begin; right at the beginning, and with its name. That said, even though the name Magna Carta was not in fact present from the start. Instead, this now internationally recognised title had its genesis almost three years after the charter's sealing at Runnymede in a proclamation dated 22 February 1218 which ordered the charter to be “published and observed in the counties”.Footnote 1 Until then that document which we now know as “Magna Carta” was commonly called the “Charter of Liberties”.Footnote 2
The octocentenial anniversary of the name if not the sealing of Magna Carta, thus passed by only recently in February 2018, lacking in fanfare maybe but an historical truth all the same.
Hiding behind that often overlooked point in historyFootnote 3 is the story of the Charter of the Forest or “Carta de Foresta” of 6 November 1217 - and of a scribe. It was in order to avoid ambiguity that the scribe writing out the February 1218 proclamation first named Magna Carta “great” in an insertion which can clearly be seen above the line in the facsimile copy which remains.Footnote 4 The scribe's intention was evidently to differentiate the charter from its new, smaller forest companion that was aimed at tempering severe forest laws that had existed in England since Norman times, and to which the 1218 proclamation equally applied.
Thus it was not initially scale or reputationFootnote 5 but England's forests, abetted by the pen of a scribe surely oblivious of his future contribution to history which first attributed “Magna” to “Carta” 800 years ago.
This puts time and anniversaries into perspective but it begs some questions as to what the Charter of the Forest was and why it rests in relative obscurity in spite of its antiquity, its importance to the life of medieval man and its own recent 800 year anniversary in November 2017.
This article sets out to explore these questions, to discover the Forest Charter's history and significance and to consider whether time has lacked in generosity towards its memory.
HATED FOREST LAW
It is in the forests where we must begin to explore the history and message of the charter, considering first the meaning of “forest” itself, for to medieval man it meant something other than the definition we recognise today as: “a large area covered chiefly with trees and undergrowth”.Footnote 6
It may seem astonishing to the contemporary mind that in the 13th century it was not trees but Law which presided over the forest. The following would be both recognised and feared by our medieval ancestors: “an area, typically owned by the sovereign and partly wooded, kept for hunting and having its own laws”.Footnote 7
It was William the Conqueror who had first made legal entities of England's forests, turning land into royal hunting grounds for the keeping of deer and other animals and enforcing a system of law and punishment to ensure compliance.Footnote 8 One of the most recognised examples is Hampshire's New Forest which William created in 1079 from 150 square miles of what was mainly heathland.Footnote 9 Medieval forests might however encompass many other forms of landscape including meadows, farms, moors and wetlands. Whole towns or villages might be encompassed within them.Footnote 10 Indeed, it was not unknown for settlements to be uprooted in pursuit of the king's hunting ambitions. Domesday Book confirms that, “Four hides were then detached by royal will from the village of Winkfield, situated towards Windsor, in order to increase the Forest there”.Footnote 11
To protect the king's beasts of the chase which were called “venison” and the greenery which nourished them known as “vert”, forest law was imposed in a process called “afforestation” which brought land into its jurisdiction.
Forest Law threatened man's very right to subsistence and was, unsurprisingly, hated for it.Footnote 12 The basic necessities of life were compromised. This included hunting for food and obtaining firewood and building materials. Actions known as waste, assart and purpresture which indicated respectively the clearing of land, including lopping wood, creating new arable land and the fencing in of land, were all offences attracting penalties. For the killing of deer, an offender might be sentenced to death. For more minor offences penalties were usually financial and discretionary according to the king's will.Footnote 13
Indeed, if forest law existed initially to protect venison (which included the flesh of any game animal used for food) and to which only the monarch and his men had rights, so too was it eventually exploited by kings as a lucrative source of revenue. “Forest was an important source of cash as well as venison”.Footnote 14 Pipe rolls show the scale of this revenue. The Forest Eyre - or itinerant court - of 1175 amassed a revenue of £12,000.Footnote 15 This was the most profitable visitation of the 12th century, although it was the Eyre of 1212 which was credited as being the trigger for dissent culminating in the Charter of the Forest when that eventually came.Footnote 16
Since anyone living or owning lands within affected areas could be subjected to forest law irrespective of their social or professional standing, revenue might equally be extorted from nobles and barons for licences covering privileges such as taking venison. Payments were even made for exemptions from forest law. In 1190 for example the knights of Surrey paid 200 marks to Richard I to be partially free of forest jurisdiction.Footnote 17
Attempting to breach forest law unpunished would not have been straightforward because a sophisticated system of administration governed the forest's legal processes, officials and courts. Foresters patrolled the land daily. Verderers and Agisters were more senior officials in an established hierarchy ending in Head Forester. Matters were decided in courts of Eyre, Swanimote or Attachment.Footnote 18
Speaking of forest officials, Holdsworth says: “Of their oppressive character the chroniclers leave us in no doubt; and the growth of the areas subject to this law is proved by the charters of Henry I and Stephen”.Footnote 19
Holdsworth refers here to the gradual expansion of forest area, for forest law became as widespread as it was unpopular. Its extent peaked during the reign of Henry II when as much as a quarter of England's land was under its jurisdiction.Footnote 20 By 1215 the county of Essex was totally in forest and only Norfolk, Suffolk and Kent lacked any at all.Footnote 21 Small wonder as Pryor says of forest law, “It was bitterly resented by the many people, both great and lowly, affected by it”.Footnote 22
Two years prior to the Charter of the Forest, Magna Carta had attempted to address forest law injustices in four of its clauses. Clause 48 acknowledged forest “evil customs” which were “to be abolished completely and irrevocably”.Footnote 23 Clauses 44 and 53 further addressed the need to break down the hefty administration of forest law. Yet it was Clause 47 which struck to the core of dissent, for it demanded that forests created in King John's reign were to be “disafforested” as well as for rivers to be unfenced. The word “disafforest” seemingly belies its meaning. “To disafforest meant to remove from royal jurisdiction; it did not mean to clear-cut timber or destroy the trees.”Footnote 24
Although Clause 44Footnote 25 - which related to the administration of justice pertaining to men living outside the forest - was the only provision to be carried directly over into the Charter of the ForestFootnote 26 , the matter of disafforestation was certainly what free men wished most to see; to procure the release of their lands from the clutches of forest law.
CHARTER OF THE FOREST 1217
Magna Carta failed however to realise its forest objectives and England had to wait until the death of King John and for the reign of his infant son Henry III before she saw the abolition of the forest “evil customs” to which Magna Carta itself had referred.
The instigating circumstances were no less significant than the politics of war and peace, for after the death of King John in 1216 Prince Louis of France, under the incitement of rebel English barons, had laid claim to the English throne. Civil war had broken out in England in 1215, ending only in 1217 with Louis's defeat and the Treaty of Lambeth (also known as the Treaty of Kingston). England's rulers wished to restore peace; the time was fitting to reverse unpopular laws loathed by the multitudes. “The Charter is basically an election manifesto for the government of the young King Henry III” says Crook.Footnote 27
To this end Magna Carta was reissued in 1217 but without its forest provisions. These were enlarged and promulgated in a new forest charter. As Young says, the savage Eyre of 1212 had caused the forest to emerge as a political issue necessitating the matter to be given thorough attention for the first time.Footnote 28
The Charter of the Forest was sealed in St. Paul's Cathedral on 6 November 1217. Since King Henry III was a 10 year old minor led by the regent William Marshal and under the protection of Gualo the Papal legate, Clause 17 itself reads, “Because we have not yet a seal we have had the present charter sealed with the seals of our venerable father the lord Gualo cardinal priest of St Martin, legate of the apostolic see, and William Marshal earl of Pembroke, ruler of us and of our kingdom”.Footnote 29
The essential matter of disafforestation was addressed in Clause 1 and since it applied to lands afforested under Henry II who had greatly expanded forest territory, it went even further than Magna Carta's Clause 47 in 1215 which applied only to King John's afforested lands. In addition the Charter of the Forest “pardoned past offences, regulated the activities of forest officials, and gave privileges to those with their own woods within the bounds of the royal forests”.Footnote 30
The Charter forbad capital punishment and also respected animal welfare. Clause 10Footnote 31 reads: “No one shall henceforth lose life or limb because of our venison”. Clause 6Footnote 32 relaxed the practice of expediating the claws of dogs, a practice also known as hambling and which prevented dogs from chasing deer. No longer could the ball of the foot be cut off but only three claws of the forefoot.
Pigs benefited too from the Charter of the Forest. Clause 9Footnote 33 states, “Every free man shall agist his wood in the forest as he wishes and have his pannage”. Pannage permitted free men to allow pigs to feed on fallen acorns and beech mast. Clause 13Footnote 34 ,which gave free men rights to possess birds such as hawks, falcons and eagles also gave him rights to honey which in medieval times was found openly in the forest and was used as an essential sweetener and for beeswax.
Thenceforth too, in the forests, free men were able to drive swine, build mills, make fish pools and make arable land.
THE CHARTER'S SUCCESS
Historians have acknowledged the success of the Charter of the Forest in achieving its objectives.Footnote 35
When the eminent British jurist William Blackstone came to write of the Forest Charter 542 years after its inception he acknowledged it on a level equal to Magna Carta terming them: “THESE TWO SACRED CHARTERS”.Footnote 36
“There is no transaction in the ancient part of our English History more interesting and more important, than the rise and progress, the gradual mutation, and final establishment of the charters of liberties, emphatically stiled THE GREAT CHARTER and CHARTER OF THE FOREST”.Footnote 37
Some contemporary historians share Blackstone's enthusiasm, citing it as “among the first statutes in environmental law of any nation”.Footnote 38 Others suggest that it has been subsequently mirrored in human rights treaties: “Each of the medieval rights in the Charter of the Forest has its counterpart in treaties focusing on human rights”.Footnote 39 In restoring land rights to people which had been claimed from them by kings, the charter has also been described as a document of socio-economic importance.Footnote 40
Historians point too, to the wide extent of the Forest Charter's impact on the lives of many people.Footnote 41 “In terms of its impact, the Charter of the Forest was more magna than the Magna Carta”.Footnote 42 This sentiment has been echoed; for example Michael Portillo in an OpenLearn interview in The Things we Forgot to Remember with experts discussing the Charter of the Forest said: “For the next four centuries it was the Charter of the Forest, not Magna Carta, that had far-reaching impact”.Footnote 43
Portillo's interview also mentions the charter's longevity, for parts ceased to have legal effect only in 1971 when the Wild Creatures and Forest Laws Act abolished royal prerogative to wild creatures excepting royal fish and swans, and abrogated forest law: “The forest law is hereby abrogated, except in so far as it relates to the appointment and functions of verderers”.Footnote 44 Verderers and agisters exist to this day in the New Forest and in the Forest of Dean, evidently with more contemporary remits than their medieval counterparts.
The length of time of parts of the Charter of the Forest on the statute book thus spanned more than seven and a half centuries.
A CHARTER LOST IN MEMORY
In spite of the achievements and attributes of the Charter of the Forest it remains poorly known outside of expert circles, a fact acknowledged in the literature. “Whatever the public awareness of Magna Carta, awareness of its sister charter is still lower – even among some who might count themselves as specialists in British Public law”.Footnote 45
Other scholars have spoken of, “the amnesia clouding the Charter of the Forest”Footnote 46 or have remarked on the lack of any single study devoted to itFootnote 47 and of its neglect.Footnote 48 Indeed, its very coverage in the above mentioned OpenLearn series The Things we Forgot to Remember affirms this neglect. Here, it is referred to as, “an almost forgotten part of English history”Footnote 49 .
Original copies, officially known as engrossments,Footnote 50 fortunately survive although diminished in numbers; a fact recorded in 1759 when Blackstone expressed surprise that so few originals were then extant even though copies had been sent to all English counties containing forests according (in Blackstone's own words) to Matthew Paris.Footnote 51
In 1759 Blackstone knew of only one surviving original copy, in Durham. Since his days a copy belonging to Lincoln has been discovered with the earliest possible record dated 5 March 1800.Footnote 52 Lincoln therefore is uniquely home to original earliest version copies of both the Charter of the Forest and Magna Carta.Footnote 53
Historians have debated why memory of the Charter of the Forest has apparently been lost. Its contemporaneousness with Magna Carta is likely to be contributory: “The knowledge of Magna Carta has eclipsed memory of Carta de Foresta”Footnote 54 says Robinson, who also points to its confined application to England and not beyond.Footnote 55
Others debating the question point to the charter's fixing in time and a subsequent lack of relevance as seen by contemporary society. “It's a world that our modern minds can scarcely comprehend. That is why we have forgotten to remember the Charter of the Forest” says Portillo.Footnote 56 This sentiment is seconded by Van Bueren who says “the focus on wood, honey, etc seems trivial and even irrelevant to British contemporary life”.Footnote 57
Van Bueren believes too that Charter of the Forest's name may have played a part in obscuring its memory: “The medieval title, the Charter of the Forest, to twentieth and twenty-first century ears is misleading”. She proposes that names such as “Charter of the Commons” or “Charter for the Essentials of Life” might possibly have extended its longevity in constitutional memory.Footnote 58 In his seminal paper in 1915 A.B. White reinforces the sentiment that names can impact on memory. Speaking of Magna Carta he says: “the early possession of this simple but distinctive title perhaps helped to start the carta libertatum upon its unique career among the world's documents”.Footnote 59
An official government view on the significance of the Charter of the Forest's legacy was recorded in a written question in the House of Lords on 4 June 2015 on whether the British Government had plans to mark and celebrate the 800 year anniversary of the Charter of the Forest. The response acknowledged the Charter's longevity and its impact in the restoration of rights of access to the forest for free men but concluded that the Government had no plans to mark the Charter's anniversary because, “it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law”.Footnote 60
DEBATING THE FOREST CHARTER'S LEGACY
This view will undoubtedly be shared by other historians. However, like all debates it is not one-sided. Environmentalists whose work supports the essence of the Charter of the Forest's legacy speak out in recognition of the charter's contributions. The following is a statement from the Woodland Trust:
“The content of the 1217 Charter of the Forest applies to specific activities in specific parts of England, and has therefore been dismissed for centuries as a niche piece of legislation that formed little more than an appendix to Magna Carta. This attitude overlooks the huge and immediate impact it had on the lives of people across England, its considerable influence on modern law, and the insight it provides into our society's vital historical relationship with the environment.”Footnote 61
A debate is open on the extent to which we agree with those who regret the Charter of the Forest's loss in national memory. How much, too, do we empathize with Blackstone who spoke of not one but two “sacred charters”?
That is certainly a matter of personal opinion, yet whatever that opinion may be, there are surely outstanding features of the Charter of the Forest to recall in consideration: its success in realising its objectives, its impact on the rights of medieval man and its great length on the statute book.
The surviving original copies should not be overlooked when considering the charter's legacy. Blackstone commented on the Durham copy that although, “the body of charter has been unfortunately gnawn by rats” - “the seal whereof, being of green wax, is still perfect.”Footnote 62 The Lincoln copy likewise possesses an original seal, that of the legate. It is rare for seals to survive and as previously explained by Lock and Sims in this journal the only remaining seal from a 1215 Magna Carta was on a copy badly damaged in a fire at Ashburnham House in 1731.Footnote 63 The exceptional presence of 13th century seals on the two surviving Charter of the Forest parchments is therefore not to be ignored.”
As Linebaugh says, “Guala Bicchieri, the papal legate, fixed his seal on the vellum parchment. Hence, the Charter of the Forest is a document of European History”.Footnote 64
Finally, but certainly not least, poignantly, the Charter of the Forest was echoed on its 800 year anniversary when The Woodland Trust helped launch a nationwide Charter for Trees, Woods and PeopleFootnote 65 on 6 November 2017 born of a care and concern to protect our relationship with trees and woods. Although “trees” were not central to the meaning of “forest” in 1217 when free men aspired to achieve the “faux ami” of disaforrestation; both charters have at their core the rights of people to access resources provided by them. In the 13th century trees were a source of timber, fodder and firewood; today we look to them as an essential connection to our environment.
If we are to remember the Charter of the Forest then surely now is the apposite time; on the octocentenial anniversary of the naming of a world famous charter which owes its name to an unassuming scribe – and to its smaller forest companion.
