Papers

October 13, 2011

Forests, the Magna Carta, and the ‘New Commons': Some Thoughts for the Forest Panel

Executive summary

• The Coalition Government seriously underestimated the level of emotional and cultural attachment that people had to woodlands when it launched its consultation on the future of the public forest estate in early 2011.
• More attention to the history of the forests and their relationship with different communities of users might have given Government advance warning of the controversy that the consultation would stir.
• Claims over the forests have been contested for at least 800 years: Magna Carta (1215) contained clauses correcting abuses of forest law, and these were later amplified in a separate Charter of the Forest (1217).
• Much forest land was also common land, although the commons were greatly diminished in extent by the later 19th century, and those that remained were increasingly recast as ‘public’ spaces.
• Principles of commoning and common land management are now being reconsidered by historians and economists as potentially offering solutions to today’s environmental problems.
• A ‘new commons’ approach might therefore be one for the independent forest panel to consider in presenting options to government for the future of the public forest estate.

Introduction

The Coalition Government’s consultation Future of the public forest estate, launched on 27 January 2011, took many by surprise. Under the proposals, the government’s official forest agency, the Forestry Commission, would have relinquished direct ownership or management of much of the land currently in its care. Commercial forest estates were to have been let on long leases to private business interests, while smaller, mixed-use and ‘heritage’ forests were to be assigned to charities or community groups. The proposals were in keeping with the general thrust of the Coalition Government’s approach to reducing the size and reach of the state and building the ‘Big Society.’ Yet it seemed that, in focusing on the forests in particular, the government had underestimated the level of emotional and cultural attachment that people had to woodlands. The call to ‘save our forests’ became a unifying cry, bringing together people of all political persuasions in opposition to the government’s plans. After a few weeks of torrid political debate Caroline Spelman, the Secretary of State for Environment, Food and Rural Affairs, was forced to halt the consultation on 17 February, and announce instead that an independent panel would review the situation and report to Government with fresh ideas.

It is unusual for an environmental issue to dominate the news headlines in this way. At the same time, that the forests caused such discord (generating more letters to ministers and MPs than the changes mooted for the NHS and higher education, for example), reminds us that affinity for the landscape, especially in its ‘traditional’ forms, runs deep in British collective culture and psyche. Moreover, public contestation over competing claims to the ownership and use of forest lands is hardly new. The forests have been a matter for public debate since at least 1217, when the Charter of the Forest was separated out from the Great Charter of Liberties (Magna Carta) and given its own legal standing. In the seventeenth century, John Evelyn’s Sylva drew attention to the depletion of the forests and called for the Restored monarchy to expand them once more. In the late nineteenth century forests were again the subject of public controversy, as places like Epping Forest were threatened with enclosure and then rescued as public amenities.

This paper considers what difference a more historically informed understanding of the relationship between people and the forests might have made to the Coalition’s plans. It also explores how options for the future management of the forests could draw on ideas of the ‘new commons’ and the traditions of common land management that existed (and still exist) in many forest areas.

Freedom and the forests

As Oliver Rackham has long observed, we need to distinguish between the legal and physical meanings of the term ‘forest’. In its legal, technical and historical meaning, a forest was an area of land over which the Crown exercised rights of hunting and timber crop, and forest law applied. A legal forest was not necessarily therefore an area of woodland. Robert Pogue Harrison suggests that the word derives from the Latin foris, meaning ‘outside’ – hence it was a term that related to a legal boundary rather than a category of landscape. Rackham notes that heaths were still being referred to as ‘forests’ in the early modern period. Forestry of course has a separate meaning, referring to the modern commercial practices of timber cultivation

Physical forests were the open wooded, wood-pasture or heath areas where deer lived, but the legal forests extended to a much wider area than this. Most of Essex, for example, was legally forest by the thirteenth century, and Rackham estimates that only about a half of the medieval forests actually comprised wooded areas. Medieval kings from William the Conqueror onwards extended the legal bounds of the forest greatly, in the interests of the hunt, from the 25 forests recorded in Domesday Book to the 143 that existed in the early thirteenth century – until, that is, King John and his successors were curtailed through Magna Carta.

Crucially, forest areas and woodlands had long local traditions of customary and communal management, at the same time as being creations of the Crown and therefore landscapes that operated in the ‘national’ interest. As Richard Mabey writes, ‘More than any other kind of landscape they are communal places, with generations of shared natural and human history inscribed in their structures’. Common rights of grazing cattle and pigs (herbage and pannage), cultivation and fuel- and wood-gathering (firebote, snap wood, turbary, lops and tops) were shared among landowners, commoners and more customary dwellers. Such rights were intensely local, dependent on custom, tradition and ecology, and confirmed through practice as much as documentation.

In Sherwood forest as late as the mid-eighteenth century poor residents of Edwinstowe ‘could supply themselves plentifully with firewood, during the whole year’, while ferns were gathered and burned in order to sell for making soap. The propertied in forest areas meanwhile were granted rights to build mills and make fishponds, dig drainage ditches and even the right to harvest honey from the hives in their trees. A complex machinery of governance kept order in the forests, from the forest justiciar, to the wardens, foresters and verderers, who upheld the draconian forest laws in the courts. Rackham observes that the physical forests were often areas of wood-pasture common land, and that the forest courts might in some places also regulate the common right.

Through Magna Carta, the barons aimed to roll back the extension of the forest lands made in King John’s time, in order to reduce the subjugation of landowners to the forest law and to promote once again their freedom to hold property under common law. The parts of Magna Carta that are most often highlighted today are those that relate to individual freedoms under the law. clauses 39 and 40 in particular have been elevated as statements of lasting, universal significance:

No freeman shall be captured or imprisoned … except by the lawful judgment of his peers or by the law of the land’ … ‘To no one will we deny or delay right or justice.

Many of the other clauses of Magna Carta in fact related to property – what happens when estates were inherited by minors, for example, or when wives were widowed. It is striking how much the text tells us about the landscape of England in 1215 – the ‘houses, parks, preserves, fish-ponds, [and] mills’ cited in clause 5 that would have been familiar sights to the authors. We can also detect ideas of stewardship and responsibility towards the land that remain relevant today. Guardians of under-age heirs, for example, are exhorted in clause 4 not to ‘take from the land of the heir’ more than is reasonably due to them, and to do this ‘without destruction and waste’, so that the productive capability of the land and its assets were passed on in good hands when the heir came of age.

Forests feature particularly strongly in Magna Carta, which also called for an inquiry into ‘all evil customs’ associated with the forests with a view to ensuring the abolition of such customs after 40 days (clause 48). When a new version of the Charter was reissued under the reign of John’s heir Henry III in 1217, the clauses relating to the forests were expanded and set into their own charter, the Charter of the Forest. The Forest Charter concerned itself with the freedoms and liberties of all those living in forest areas. Its clauses therefore disclosed the customary relationship that existed between people and the forests, and by extension the wider landscape, a relationship that was largely to be destroyed in Britain through the process of enclosure from the 16th century to the 19th century. The Charter spoke similarly to the long tradition of associating the woodlands with freedoms – the ‘liberties of the greenwood’ that Simon Schama considers in his Landscape and Memory (1995) and which gave such power and resonance to the story of Robin Hood and his outlaws from the later medieval period onwards.

Common rights and public amenity

The idea of freedom has long been associated with Magna Carta itself, though the original point of the Charter of Liberties was less to enshrine a set of personal rights and freedoms than to undo perceived and actual constraints that had been imposed by successive monarchs. Peter Linebaugh, however, in The Magna Carta Manifesto (2008), seeks to excavate the idea of the commons from the mass of documentary, legal, cultural and constitutional interpretations of Magna Carta that have arisen in the 800 years since 1215. Just as Magna Carta was co-opted as inspiration for political texts such as the US constitution and the UN Declaration of Human Rights, so Linebaugh looks to the clauses of the Magna Carta and the Forest Charter as inspiration for asserting freedoms in our relationship with the environment. In so doing, he is reclaiming the Magna Carta as a radical text, looking to it as a vindication of principles of commoning that are relevant in a wide range of contexts, from the Zapatistas in Mexico to the anti-enclosure struggles of native Americans.

Linebaugh’s thinking has accorded with that of other commentators, such as the economist Raj Patel, whose 2009 book The Value of Nothing, revivifies the concept of the commons as a means of demonstrating how resources can be valued and sustained in ways that don’t rely solely on the destructive forces of the untrammelled free market. Like many others, Patel is critical of the thesis set out in Hardin’s influential 1968 essay ‘The Tragedy of the Commons’. Using common pastureland as his example, Hardin posited that the commons are doomed to fail as a consequence of the human instinct to maximise benefits to the individual (in this case by overstocking) while avoiding the costs (externalities) that are subsequently borne by the collective in terms of the diminution of natural resources. The tragedy here is that rational calculation dictates the pursuit of such selfish behaviour, even though in the long term it serves nobody’s interest.

Hardin’s analysis has been doubted because of his failure to consider the issue of the commons in its properly historical, rather than theoretical, context. In fact, many commons were sustained for long periods of time because they were heavily regulated (though the manor courts), and only failed when the system of regulation itself went into decline (or forcible enclosure brought things to a halt).

Nevertheless, one of the striking features of mid- to late-nineteenth century campaigns to protect the last vestiges of the commons in England was their reinvention as public amenities rather than as formal commons (where rights are not universal but are held by a defined community of people). The enclosure of parts of Epping Forest, for example, gave rise to protests in the 1860s and 70s, led by local commoners supported by the recently formed Commons Preservation Society. 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 has maintained it ever since largely as a recreational landscape. In this way Epping was transformed from a common, over which rights of access and resources were confined to a discrete group of local residents, to a public amenity, accessible to all. George Shaw Lefevre, the leading force behind the Commons Preservation Society, described the commons as being ‘natural parks, over which everyone may roam freely’, in the face of the fact that there was no universal right of access to commons at the time and would not be one in metropolitan areas until the 1925 Law of Property Act.

The National Trust was part of this process too. The novel idea (though inspired by developments in the USA) of a legal entity able to hold land on behalf of the wider public was first mooted by Robert Hunter, solicitor to the Commons Preservation Society, in a speech in 1884. The idea was put into practice in 1895 with the founding of the National Trust, and given statutory footing with the National Trust Act of 1907. Hunter made sure that the Act contained special provisions that guaranteed that any common land held by the Trust would remain open and unenclosed. Indeed, clause 29 of the Act specifically entreats the Trust to ‘prevent resist and abate all enclosures and encroachments upon and all attempts to enclose’ common land in its ownership, ‘by all lawful means’. Today, a quarter of the Trust’s landholdings is registered common land, 11% of the total commons in England. By contrast the Forestry Commission, established in 1919 as the official state forestry body, has focused mostly on commercial tree growing, usually in plantations of conifers and other quick-growing species.

A new commons?

Just as generations of agricultural improvers largely dismissed the commons as inefficient and wasteful harbingers of dissolute agricultural practices and loose personal morality, so it is possible at the other extreme to over-romanticise the cohesiveness and effectiveness of common land management in the past. As Patel observes, ‘Commoning did not take place in some proto-democratic Eden where everyone got a fair and equal say’. Even Patel, however, confuses common right with common ownership in suggesting that enclosure took common land ‘out of public hands’. Commons in England were always private property, over which a variety of rights (to food, fuel, building material and so on) were held by a defined group of people.

More recently policy makers have considered the traditions of common land management for ideas on how future management regimes might be constructed and conducted. Drawing on Elinor Oström’s Nobel Prize-winning work on common pool resources, Duncan Mackay has suggested that a ‘new commons’ might be created as a means of ensuring a properly sustainable relationship between people and their natural environments as well as meeting the challenges of climate change. Mackay has pioneered community orchard schemes, where orchards are owned and cared for by local people, common rights are identified and defined, and new trees are planted for each child born in the community, ‘to add to the connections between place and people through time and develop a true sense of personal meaning’.

Mackay’s ‘new commons’ thinking adapts Hunter’s description of the two driving ideas behind the open spaces movement, ‘one, that the people of this country should have some interest in the land of the country, the other, that the amenities of everyday life should be placed within reach of rich and poor alike’. At the heart of the proposal is the concept that pockets of open space on the fringes of urban settlements should be adopted as community commons, accessible to all and offering recreation, cultivation of food, and the creation of new natural habitats, not least through tree growing. Mackay sees the National Trust as a potential vehicle for achieving this vision, since it is able to hold land inalienably while the actual management of such a massive dispersed estate might be conducted through local people on ‘Big Society’ lines.

DEFRA’s consultation Future of the public forest estate did not mention commons or the deeply embedded structures of governance that exist in ancient forest areas, a major oversight given the importance of common rights to forests over the centuries. But the document did discuss community forests, and the possibility of parts of the public forest estate being sold to community groups or NGOs. Such groups, whether operating on a local or national scale, were deemed to bring ‘high levels of expertise, local knowledge and enthusiasm to the management of woods and forests’. The consultation document anticipated that such transfers were likely to apply to ‘relatively small areas of forest that have significant local value for recreation or the environment’. However, there was little detail about how such ownership arrangements would change the way forests would be managed in the longer term. Rather, community or civil society involvement in the management of the public forest estate was considered more or less a straightforward alternative to commercial leasing or ownership, with community groups left to manage areas of woodland ‘under their own objectives, subject to statutory obligations and any lease conditions which could be used to ensure continued delivery of public benefits’.

Following Mackay’s suggestion, a more active engagement with the traditions of customary and communal forms of management in the wooded commons might open up the possibility of creating ‘new commons’ formed of genuine communities of interest, with clear stakes in the long-term future of forest areas. Phillip Blond, an advocate of ‘Big Society’ thinking and Director of ResPublica, has picked up on this idea, writing in a 2011 document for the think tank that a more sustainable environment might be achieved ‘through involving local communities in the management of their green spaces and harnessing the enthusiasm of millions of people for looking after and enjoying their woodland.’ The Independent Forestry Panel established by the government in March this year would do well to look to the Charter of the Forest, as well as to the traditional forms of communal and customary forest management that have inspired recent ‘new commons’ thinking, as they develop their recommendations to government for the future of the public forest estate.

Conclusions

A 1985 pamphlet by Andrew Sullivan for the Centre for Policy Studies, Greening the Tories, observed that trees are ‘not simply large outcrops of vegetation’. Rather, they are ‘part of our social and political history … they represent moreover a sense of continuity and cultural unity that conservatives might do well not to ignore’. The pamphlet was quoted by Stephen Daniels in his 1988 essay on the ‘Political Iconography of Woodland in Later Georgian England’, a study of the symbolism that trees held for both conservative and radical writers on politics and landscape.

Hindsight is of course a wonderful thing. But a moment’s reflection on history would have highlighted how trees, woods and forests have been repeatedly deployed as metaphors in political debate and discourse. Their treatment has been used regularly as a proxy for wider issues, whether in relation to the Crown’s respect for localities and liberties, or the nation’s ability to defend itself, or the prevailing level of access to open countryside. Consideration of the competing claims to forest resources over the last 800 years might have given ministers some pause for thought as to the wisdom of their recent consultation, saving them a degree of political capital in the process.

Further reading

Daniels, S., ‘The Political Iconography of Woodland in Later Georgian England’ in D. Cosgrove and S. Daniels (eds.), The Iconography of Landscape (Cambridge: Cambridge University Press, 1988), pp. 43-82.
Hardin, D., ‘The Tragedy of the Commons’, Science 13 (1968), pp.1243-1248. http://www.sciencemag.org/content/162/3859/1243.full.
Mackay, D., ‘New Commons for Old: Inspiring New Cultural Traditions’ in Landscape Archaeology and Ecology, 8 (2010), pp. 109-118.
http://www.ukeconet.co.uk/images/stories/
end%20of%20tradition%20lae%20vol%208%20part%202%20.pdf.
Patel, R., The Value of Nothing: How to Reshape Market Society and Redefine Democracy (London: Portobello, 2009).
Pogue Harrison, R., Forests: the Shadow of Civilisation (London and Chicago: University of Chicago Press, 1993).
Rackham, O. Woodlands (London: HarperCollins, 2006).
ResPublica and Woodland Trust, Natural Policy Choices: Why Trees and Woods Matter (2011). http://www.respublica.org.uk/sites/default/files/ResPublica_Natural%20Policy%20choices.pdf.
Schama, S. Landscape and Memory (London: HarperCollins, 1995).

About the author

Ben Cowell is Acting Director, External Affairs for the National Trust. He is also a trustee of The Heritage Alliance and Our Democratic Heritage. He joined the National Trust in 2008, prior to which he worked for the Department for Culture, Media and Sport. He has a PhD in history and geography from the University of Nottingham, and has written widely on issues relating to landscape, conservation and cultural policy. His book The Heritage Obsession was published by Tempus in 2008. [email protected]

By Topic