Happy Birthday, Charter of the Forest!

This is the birthday of an important historical document. Eight hundred years ago on this day, 6 November 1217, the Charter of the Forest was first issued. Along with the closely related Magna Carta (1215), it formally and legally established a precedent in the English-speaking world. It was one of the foundations of the English Commons and gave new standing to the commoner as a citizen. And it was one of the precursors for the Rights of Englishmen, Lockean land rights, and the United States Bill of Rights.

The Charter of the Forest didn’t only mean a defense of the rights of commoners for, in doing so, it was a challenge to the rights of rulers. This was a sign of weakening justification and privileges of monarchy. And such a challenge would feed into emerging republicanism during the Renaissance and Reformation, coming into bloom during the early modern era. This populist tradition helped to incite the Peasants’ Revolt, the English Civil War, and the American Revolution. The rights of the Commons inspired the Levellers to fight for popular sovereignty, extended suffrage, equality before the law, and religious tolerance. And it took even more extreme form in the primitive communism of the Diggers.

Such a charter was one of the expressions of what would later develop into liberal and radical thought during the enlightenment age and the early modern revolutions. Democracy, as we know it, would form out of this. Through the American founders and revolutionary pamphleteers, these legacies and ideas would shape the new world that followed. The ideas would remain potent enough to divide the country during the American Civil War.

We should take seriously what it means that these core Anglo-American traditions have been eroded and their ancient origins largely forgotten. It’s a loss of freedom and a loss of identity.

Who owns the earth?
by Antonia Malchik, Adeon

The commons are just what they sound like: land, waterways, forests, air. The natural resources of our planet that make life possible. Societies throughout history have continually relied on varying systems of commons usage that strove to distribute essential resources equitably, like grazing and agricultural land, clean water for drinking and washing, foraged food, and wood for fuel and building. As far back as 555 CE the commons were written into Roman law, which stated outright that certain resources belonged to all, never owned by a few: ‘By the law of nature these things are common to mankind – the air, running water, the sea and consequently the shores of the sea.’

The power of this tradition is difficult to explain but even more difficult to overstate, and its practice echoes throughout Western history. The Magna Carta, agreed to in 1215 by England’s King John at the insistence of his barons, protected those nobles from losing their lands at the whim of whatever sovereign they were serving. It also laid down the right to a trial by one’s peers, among other individual rights, and is the document widely cited as the foundation of modern democracy.

What is less well-known is the Charter of the Forest, which was agreed to two years later by the regent for Henry III, King John having died in 1216. With the Charter, ‘management of common resources moves from the king’s arbitrary rule’, says Carolyn Harris, a Canadian scholar of the Magna Carta, ‘to the common good’. The Charter granted what are called subsistence rights, the right that ‘[e]very free man may henceforth without being prosecuted make in his wood or in land he has in the forest a mill, a preserve, a pond, a marl-pit, a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour’. Included was the permission to graze animals and gather the food and fuel that one needed to live.

These rights went over to America intact and informed that country’s founding fathers as they developed their own system of laws, with a greater emphasis on the rights of commoners to own enough land to live independently. (That this land belonged to the native people who already lived there didn’t factor much into their reasoning.) For Thomas Jefferson, according to law professor Eric T Freyfogle in his 2003 book The Land We Share, ‘[t]he right of property chiefly had to do with a man’s ability to acquire land for subsistence living, at little or no cost: It was a right of opportunity, a right to gain land, not a right to hoard it or to resist public demands that owners act responsibly.’

Benjamin Franklin, too, believed that any property not required for subsistence was ‘the property of the public, who by their laws, have created it, and who may therefore by other laws dispose of it, whenever the welfare of the public shall demand such disposition’. The point was for an individual or family to gain the means for an independent life, not to grow rich from land ownership or to take the resources of the commons out of the public realm. This idea extended to limiting trespassing laws. Hunting on another’s unenclosed land was perfectly legal, as was – in keeping with the Charter of the Forest – foraging.

The land itself, not just the resources it contained, was part of the commons. Consider the implications of this thinking for our times: if access to the means for self-sustenance were truly the right of all, if both public resources and public land could never be taken away or sold, then how much power could the wealthy, a government, or corporations have over everyday human lives?

The idea of the commons isn’t exclusive to English and American history. In Russia, since at least the 1400s and continuing in various forms until the Bolshevik revolution of 1917, land was managed under the mir system, or ‘joint responsibility’, which ensured that everyone had land and resources enough – including tools – to support themselves and their families. Strips of land were broken up and redistributed every so often to reflect changing family needs. Land belonged to the mir as a whole. It couldn’t be taken away or sold. In Ireland from before the 7th century (when they were first written down) to the 17th, Brehon laws served a similar purpose, with entire septs or clans owning and distributing land until invading English landlords carved up the landscape, stripped its residents of ancestral systems and tenancy rights, and established their estates with suppression and violence. The Scottish historian Andro Linklater examines variations on these collective ownership systems in detail in his 2013 book, Owning the Earth: the adat in Iban, crofting in Scotland, the Maori ways of use in New Zealand, peasant systems in India and China and in several Islamic states, and of course on the North American continent before European invasion and settlement.

But the commons are not relics of dusty history. The Kyrgyz Republic once had a successful system of grazing that benefited both herdsmen and the land. Shattered during Soviet times in favour of intensive production, the grazing commons is slowly being reinstated after passage of a Pasture Law in 2009, replacing a system of private leases with public use rights that revolve around ecological knowledge and are determined by local communities. In Fiji, villages have responded to pressures from overfishing and climate change by adopting an older system of temporary bans on fishing called tabu. An article in the science magazine Nautilus describes the formation of locally managed Marine Protected Areas that use ancient traditions of the commons, and modern scientific understanding, to adapt these communal fishing rights and bans to the changing needs of the ecosystem.

Preservation of the commons has not, then, been completely forgotten. But it has come close. The commons are, essentially, antithetical both to capitalism and to limitless private profit, and have therefore been denigrated and abandoned in many parts of the world for nearly two centuries.

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Every Freedom Comes At A Cost of Freedom

We like to think we are a free people in a free society. But our freedoms are social and political freedoms.

They are freedoms of the system we find ourselves in. We didn’t freely choose to be born into the system. We signed no social contract. There is no escape from the system itself. Our freedom is only how we play the game, not whether we play. We didn’t write the rules,  and yet we must obey them.

That is what society is. We do not exist in a state of nature. Natural rights and natural liberty is what someone has who lives alone on a desert island. They are free in a way few people could ever imagine. Most people in that situation, though, would gladly sacrifice the freedom of their isolation for the costs of being a member of society.

Society makes dependents of us all, for good or ill. This is increasingly true as civilization develops.

Even as late as the Great Depression, people still could support themselves through subsistence farming/gardening and living off the land. There was still a lot of land freely open to hunting, fishing, trapping, and gathering. Restrictions were few and the population was smaller.

That is no longer the case.

Those on the right like to complain about all the minorities and poor who are dependent on the system. But that is unfair. They were made dependent, as we’ve all been made dependent. This is to say, at this point, we are all interdependent. That is what society means.

No one is self-made in our society. Those born into privilege, whether class or race privilege, are the least self-made of us all, despite rhetoric to the contrary. Only those disconnected from and clueless about their own dependent state can talk bullshit about being self-made and rant about libertarian rhetoric.

Civilization brings many benefits. But it comes at great costs. Those who benefit the most are those at the top of society. And those who pay most of the costs are those on the bottom of society.

The predicament of modern civilization wasn’t lost on the American revolutionaries, most especially the founders. Living in the colonies, they found themselves on the edge of modern civilization. Founders like Thomas Jefferson could see in the Native Americans the past of his own people, the English, who were once a free tribal people. Many took inspiration from the Native Americans because it reminded them where they came from and reminded them that other alternatives existed.

Native Americans not only had more freedom than the colonists had, but also less inequality. Thomas Paine recognized that the two went hand in hand, and that they were based on the lack of privately owned land. To privatize the Commons was to destroy the ancient right to the Commons (as described in the English Charter of the Forest, although going back to Northern European common law) and so was to sacrifice one of the most basic freedoms.

There was a reason the colonists were obsessed with the rights of Englishmen. They were ancient rights, often having preceded the British Empire and even preceded the establishment of an English monarchy by the Norman Conquest. It was what all of English and Anglo-American society was built on.

The land enclosure movement shredded the social contract and upended the entire social order. It was the most brazen act of theft in English history. It was theft from the many to profit the few. In England, it meant theft from the working class (making them into landless peasants). Similarly, in the colonies, it meant theft from the Native Americans (accompanied with genocide, ethnic cleansing, and reservations that made them wards/prisoners of the state). In both cases, that theft has yet to be compensated. The descendents of the robbers still profit from that theft. The injustice goes on, generation after generation. The theft didn’t happen just once, but is an ongoing process. The theft wasn’t justified then and remains unjustified.

Paine accepted that the loss of the Commons was maybe inevitable. But he didn’t think the act of theft was inevitable. He demanded the public be compensated, and that compensation should be for every generation. It was morally wrong to impose theft of the Commons onto future generations by privatizing land without compensating those future generations for what was taken from them before they were born.

It wasn’t just about compensating wealth as if it were just an economic transaction. No, it was more about offsetting the loss of freedoms with the gain of other freedoms, and it was about how forcing sacrifice onto people who didn’t choose it morally demanded society accept the social responsibility this entails. When people are forced into a state of dependence by the ruling elite of a society, the ruling elite and their descendent beneficiaries lose all rights to complain about those people being in a state of dependence.

In losing the Commons, people lost their independence. They were made dependents against their will, forced into laboring for others or else forced into unemployed poverty. That is the price of civilization. The fair and just thing would be to ensure that the costs and benefits of that act are evenly shared by all.