The Commons and the Common Law: The Importance of Magna Carta and The Charter of the Forests for the Anglo-American Commons Tradition, Part I
The First Portion of a Multi-Part Essay
"I'm going," quoth Robin Hood, "to kill a fat buck, For me and my merry men all; Besides, eer I go, I'll have a fat doe, Or else it shall cost me a fall." "You'd best have a care," said the forester then, "For these are his majesty's deer; Before you shall shoot, the thing I'll dispute, For I am head-forester here." "These thirteen long summers," quoth Robin, "I'm sure, My arrows I here have let fly, Where freely I range; methinks it is strange, You should have more power than I."
— “Robin Hood and the Ranger” (Child Ballad No. 131), by Anonymous.1
Readers, on Saturday, June 24th, I attended an excellent and in many respects — despite the difficult subject matter — heartening morning of discussion at the Spire Center between Massachusetts Climate Chief Melissa Hoffer, University of Massachusetts-Amherst Professor of Earth Sciences Dr. David Boutt, and The Boston Globe’s climate correspondent David Abel. That wide-ranging, informative, and thoughtful discussion will be the subject of an upcoming piece.
In the meantime, I did encounter statements from an individual — a private citizen, subsequent to the main discussion — which require detailed refutation.
The remark came after the event and in response to my parenthetical note in a public statement that the Sackett v. EPA decision, which significantly narrowed the definition of “waters of the United States” was contrary to Magna Carta, inasmuch as Magna Carta is the key font of the commons tradition in the Common Law.2
This occasioned from my interlocutor a series of both bald assertions, and indeed, castigations, that I found troubling: that Magna Carta has nothing to do with our commons tradition in the Anglo-American legal system, and that it is “wrong” and, if I understand my interlocutor correctly, a “misuse of history” to trace our Commons tradition in the Common Law to Magna Carta.
This is simply incorrect, and indeed, it is so incorrect that it must be refuted at length. My aim is to begin doing so here.
In fact, because there is so much material with which to refute these unsupported and bald assertions — assertions that are contradicted by the plain language of the Charters, by the views of later commenters, and significantly, by numerous precedents at law — I will have occasion to return to this theme on more than one occasion in coming weeks.
Let us proceed, then, looking first at the documentary evidence, namely the language of the Charters; in a second installment, we will turn to interpretations by later authors, whether contemporary historians or the Commentaries of Blackstone; examine the arguments from legal precedents; and will consider the question of the relation of History, historical scholarship, and historical memory to the law and our common lives as members of a civil body politic.
For the sake of space and the patient reader’s forbearance, we will deal today with the Charters themselves, and look at later commentaries and the great corpus of relevant precedent in the second part of this essay.
(The Merrimack River, at Maudslay State Park, Newburyport, Massachusetts; the Merrimack, like over navigable waters of the United States, traces the roots of its public nature to Magna Carta; credit — Wikimedia Commons User Botteville).
I. The Plain Language of Magna Carta
I think a proper look at the question will begin with looking at the text of the Great Charter itself.
We should likewise note that we are not discussing whether or not Magna Carta is mythologized — it almost certainly is, though, as we shall see Prof. Helmholz demonstrate in the next part, the myth has a real basis — nor the related but far larger question of the extent to which Magna Carta was simply a document of its time, severed from us by the vastness of difference between the social conditions of 13th century England and our own; or whether it was a document for all time, that formed in very real ways the basis of our entire system of jurisprudence and claims of popular liberty.
The former position, it should be noted, was that of Sir Robert Filmer, the 17th century theorist of Absolute Monarchy against whom Locke and other Whig (in the British sense of critics of the Crown) writers of the 17th century wrote (cf. John Locke, Two Treatises of Government).
These are critical and compelling questions, but they are not the question that is before us: that question is — the relation of Magna Carta to the commons tradition and corpus of precedent in the common law legal system.
The most direct way to answer this question is to look at the language of Magna Carta itself.
Clause 47 of the 1215 Magna Carta, concerning the placing of afforested (meaning royally-enclosed land rather than woodland ecosystems per se) land back into the common sphere of the realm, directly concerns the common natural resources of England:
“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."3
Note that both the initial Norman conquerors of 11th century England, and their Plantagenet successors in the 12th and 13th centuries,4 brought significant lands under royal enclosure, and for exclusive royal use, to what had been common lands — these are the “forests” referred to above; the meaning here is not the same as a forested ecosystem, per se, though many lands that were afforested were, in fact, forest ecosystems, while others were moors and other wildlands. Their disafforestation was thus a return to their prior role as commons, as had been the usage in Saxon England (This is described in the next part of the essay by Sir William Blackstone).
Further proof of the proposition that our commons tradition descends from Magna Carta is provided by Clause 48:
“All the evil customs relating to forests and warrens, foresters and warreners, sheriffs and their officers, rivers and their keepers, are to be immediately investigated in each county by twelve sworn knights of the same county, who should be chosen by upright men of the same county, and within forty days of the investigation being made, they are to be completely abolished by them, never to be revived, as long as we, or our justiciar if we are not in England, know about it beforehand.”5
Some indication of what is meant by “the evil customs relating to forests and warrens, foresters and warreners, sheriffs and their officers, rivers and their keepers” is provided by Sir William Blackstone, in his Commentaries on the Laws of England, describing the game laws under both the Norman and Plantagenet dynasties:
“Another violent alteration of the English constitution consisted in the depopulation of whole countries, for the purposes of the king's royal diversion; and subjecting both them, and all the antient forests of the kingdom, to the unreasonable severities of forest laws imported from the continent, whereby the slaughter of a beast was made almost as penal as the death of a man.”6
A further clause in Magna Carta relating to the commons, understood as physical resources, must be examined, in this instance, relating to public water resources. Clause 33 prohibits the erection of weirs in the Rivers Thames and Medway:
“All fish-weirs are in future to be entirely removed from the Thames and the Medway, and throughout the whole of England, except on the sea-coast.”7
Weirs, which are a structure found all over the world used to direct, and ultimately to trap, fish, historically largely made of wood and stone. Because they impede the flow of the river, they are responsible for silting of rivers, and the consequent obstruction of navigation.
Medieval historian Nicholas Vincent, Professor at the University of East Anglia, described the significance of Clause 33:
“Most notoriously here, clause 33 of Magna Carta, still law in England until as recently as the 1960s, demanded the removal of all fish-weirs from the Thames, the Medway and all other rivers of England. Fish-weirs were large V-shaped structures, generally built of wooden stakes, into which fish might swim but from which they could not escape. Since weirs slowed the flow of water, they led to silting and in due course the closure of waterways vital to London’s trade. In this way the extensive use of fish-weirs represented the denial of a rather more general principle: that of free navigation, itself already of significance under Roman law, and in due course a major theme in the debates on British imperial power. The prohibitions of clause 33 were intended first and foremost to benefit the city of London, and also perhaps the Archbishop of Canterbury (who owned substantial property at Maidstone on the River Medway). Nonetheless, viewed as a public asset, the freedom of navigation guaranteed in clause 33 remains, even today, a hotly disputed principle. As a consequence, both in English and in Irish law, this remains one of Magna Carta’s most frequently cited clauses.”8
(Fishing weir on the Cowichan River, Vancouver Island, Canada, c. 1866; credit — Wikimedia Commons User Frederick Dally.)
So again, here we see the common tradition at common law occurring in Magna Carta not just with respect to afforested lands, and to forest laws and habits, but to publicly navigable waterways as well, including our own beloved Great Ponds throughout New England, as discussed previously in this publication here.
II. The Charter of the Forests
Charter of the Forests made actual, with respect to the commons of the realm, what Magna Carta had guaranteed more broadly. It was the fulfillment of the promises contained in Magna Carta.