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This is the birthday of an important historical document.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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By What Right?

Quo warranto.

It’s part of obscure legal terminology. Literally, it translates as “by what warrant”. It is a legal formulation that questions authority in ruling over others, acting in an official manner, demanding compliance, claiming ownership, possessing economic benefits, making use of natural resources, declaring rights, etc. More than anything, it’s the last in the list that is most relevant to the modern mind. By what right?

Quo warranto has a specific legal meaning based on almost a millennia of Anglo-American history. But the idea itself is quite basic and intuitive, not to mention more broad and older (such as settling territorial disputes in the ancient world, “Do you not possess that which Chemosh, your god, has given into your possession? And shall we not possess that which our God has given into our possession?”; Judg. 11:24). This question of authority is at the heart of every challenge to anyone who has demanded or denied something to another. It’s an issue of what kinds and what basis of rights, who gets them and who enforces them.

Every teenager implicitly understands this, an age when arbitrary power becomes clear and burdensome. This sense of unfairness is far from limited to teenagers, though. It concerns every person who was ever taxed without representation, enslaved, indentured, debt bondaged, imprisoned, tortured, sentenced to death, had their land taken away, made homeless, put in a reservation or ghetto or camp (concentration camp, internment camp, or refugee camp)—anyone who felt disempowered and disenfranchised, who experienced power that was unjust and abusive, oppressive and overreaching.

Even the powerful sometimes find themselves demanding by what authority something is being done to them or to what they own. Such as governments forced to deal with revolts and revolutions, kings who have been deposed and sometimes beheaded, politicians confronted by mobs and protesters, and company owners having their businesses shut down by strikers. Authority ultimately is enforced by power and power comes in many forms, typically from above but sometimes from below. Of course, in a real or aspiring democracy, the issue of quo warranto takes on new meaning.

In the United States, quo warranto is most well known in its form as states rights. The history of this involves the secession and Civil War, Native American treaties and land theft, the American Revolution and early colonial relations with the British Parliament and Crown. As such, states rights are directly related to charter rights, as the colonies all had official charters and sometimes were operated as corporations. Charter organizations were once a far different kind of political and economic entity.

The later states of the United States were no longer treated as having charters for, in the early US, they were considered the ultimate source of authority as representatives of the people, not the federal government. It was (and still is) the role of states, instead, to give out charters—and, based on past British experience of the sometimes oppressive abuse of charters, the early states were extremely wary about giving out charters and extremely restrictive in the charters they did give. They wanted to be clear by whose authority charters were upheld or revoked.

This is a long way off from the origins of quo warranto. It first became a serious legal precedent in English law with King Edward I. His actions in challenging particular charters inadvertently helped to institutionalize those and other charters, specifically Magna Carta and the Charter of the Forest. Initially, his focus was on the charters of boroughs, in their self-governance which at the time meant rule by local aristocracy.

This related to feudalism, the commons, and the rights of commoners—as they developed over the centuries. Feudalism formed the basis of later corporatism that became so important during the colonial era. Also, the notion of rights transformed over time as well. The commoners had their rights in relation to the commons. Once the commons were enclosed and privatized, the commoners became landless serfs. This led to centuries of social upheaval, from the English Civil War to the American Revolution.

When the first colonies were established, they quickly began to grow. England had to come to terms with its developing role as an empire. What were the rights of Englishmen as related to the rights of imperial subjects, Englishmen and otherwise. Many colonists sought to maintain rights of Englishmen while some in power sought to take them away. There was the additional problem that an increasing number of British and colonial citizens were not ethnically English. They were also Welsh, Scottish, and Irish; French, German, and Dutch—not to mention enslaved Africans and native populations.

Empire building is messy and complicated. If you want to rule over people, you have to justify your rule to compel compliance. Empires before had faced this dilemma, such as the Roman Empire, which eventually led a Roman emperor to declare all free inhabitants (no matter ethnicity, religion, or place of birth) to be Roman citizens with the rights thereof.

As Roman republicanism was an inspiration for the American founders, I’m sure this historical detail didn’t pass unnoticed—certainly not by the likes of Thomas Jefferson, a learned man about ancient history. Thomas Paine noted the problem of a multicultural empire; and, using different words, essentially brought up quo warranto: If a large number of colonists weren’t English, then by what right do the English have to rule such a vastly diverse and distant population? Even John Dickinson, no fan of revolution, ultimately defended the right if not the principle of revolution based on the precedence of quo warranto in constraining governmental power.

The colonial aspect is inseparable from that of corporations. Early charters didn’t clearly distinguish between types of official organizations. All charters were creations by the government and supposedly served the purposes of the public good. Chartered organizations were public institutions, having no independent rights other than what a government gave them and those rights necessitated obeisance to law and order, a public duty to country and countrymen, and a set of social obligations with a proscribed reason for existence and only for a set period of time before requiring renewal or forfeit.

Technically, even to this day, corporations as chartered by governments remain public institutions, not private organizations. Corporate charters can be revoked at any time for numerous reasons. But a corporate charter isn’t required to operate a business. A corporate charter simply gives legal and economic protections to a business in exchange for serving or at least being in compliance with the public good. What has changed is that, in corporations gaining power over the government, they’ve declared their own private interests to be primary—so defining public interests according to private interests instead of the other way around as it had been defined for all of previous history.

In early America, the idea of corporate personhood would not only have been an alien and oppressive idea but likely even sacreligious. The American founders and the generations that followed knew the dangers of corporate charters to act as oppressive agents of government or to take power for themselves in co-opting the power of government, even gaining influence over government. They regularly warned against this and wrote laws to protect against it. The acute awareness of this danger continued into the early 20th century, only having been forgotten in recent times.

Finding ourselves in an era of corrupt and oppressive corporatism, of a rigged political system and what at this point appears to be a banana republic, of a distant government disconnected from our lives and our ability to influence, of a militarized police state in endless war, we the people are confronted with questions of legitimacy. These are same questions faced by generations before us, by centuries of protesters and revolutionaries. By what right are we being ruled, if it isn’t by the authority of we the people in governing ourselves? Quo warranto?

* * *

Quo warranto
Wikipedia

Quo warranto (Medieval Latin for “by what warrant?”) is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power (or “franchise”) they claim to hold. […]

In the United States today, quo warranto usually arises in a civil case as a plaintiff’s claim (and thus a “cause of action” instead of a writ) that some governmental or corporate official was not validly elected to that office or is wrongfully exercising powers beyond (or ultra vires) those authorized by statute or by the corporation’s charter.

REAL Democracy History Calendar July 4-10

King Edward I, first to utilize the “quo warranto” written order
Quo warranto is a Medieval Latin term meaning “by what warrant?” It’s a written order by a governing power (e.g. Kings in the past, legislatures early in U.S. history, and courts in the present) requiring the person to whom it is directed to show what authority they have for exercising a claimed right or power. It originated under King Edward I of England to recover previously lost lands, rights and franchises.

This power was transferred to states following the American Revolution. State legislatures utilized “quo warranto” powers to challenge previously chartered or franchised corporations that acted beyond their original privileges granted by the state. The result was frequent revocation of corporate charters and dissolution of the corporations — in the name of affirming sovereignty/self-governance.

All 50 states still retain elements of quo warranto. The authority concerning the creation and dissolution of corporations was meant to be a legislative power, not judicial.

Real Democracy History Calendar April 4-10

State ex rel. Monnett v. Capital City Dairy Co., 62 OS 350 (1900) – example of corporate charter revocation
It was common practice in the 19th and early 20th centuries for state legislatures and courts to revoke the charters or licenses of corporations that violated the terms or conditions of their charters. The legal procedure for this was called “quo warranto” in which the state demanded to know what right the corporation possessed to act beyond the terms of its state-granted charter.

Some states were more active than others in utilizing this democratic tool. Here’s an example of the language from an Ohio State Supreme Court “quo warranto” charter revocation decision:

“Quo warranto” may be invoked to stop corporation’s disregard of laws in conduct of authorized business, and to oust corporation if abuse be flagrant….The time has not yet arrived when the created is greater than the creator, and it still remains the duty of the courts to perform their office in the enforcement of the laws, no matter how ingenious the pretexts for their violation may be, nor the power of the violators in the commercial world. In the present case the acts of the defendant have been persistent, defiant and flagrant, and no other course is left to the court than to enter a judgment of ouster and to appoint trustees to wind up the business of the concern.”

A Better Guide than Reason: The Politics of John Dickinson
by M.E. Bradford

Yet still he felt obliged to deny the principle of revolution, even as he maintained the right. As he had done in the Farmer’s Letters. As he had done since his first appearance in public office, as a member of the Delaware assembly in 1760. For, like no other American political thinker, John Dickinson had absorbed into his very bones the precedent of 1688. In abbreviated form, that creed might be abstracted as follows: The English political identity (the Constitution in its largest sense, including certain established procedures, institutions, chartered rights and habits of thought) is a product of a given history, lived by a specific people in a particular place. Executive, judicial, and legislative arms of government are bound by that prescription and must deal with new circumstances in keeping with its letter and its spirit. The same configuration qua Constitution should be available to all Englishmen, according to their worth and place, their deserts. And any man, upon his achievement of a particular condition (freeholder, elector, magistrate, etc.) should find that his rights there are what anyone else similarly situated might expect. Finally all Englishmen are secure against arbitrary rule under this umbrella and have an equal right to insist upon its maintenance. To so insist, even to the point of removing an offending component by force, is loyalty to the sovereign power.[3] To submit to “dreadful novelty” or dangerous innovation,” even if its source is a prince or minister who came rightfully to his position, is treason.[4] For the authority belongs to the total system, not to persons who operate it at a given time. Or rather, to such persons as “stand to their post” and attempt with and through it nothing contrary to the purpose for which it has been developed. It was this historic and legal identity, formed over the course of centuries by so much trial and error and with such cost in turmoil, which was deemed to be worth whatever efforts its preservation might require—given the danger of being called a rebel—because it was the best known to man.[5] And therefore the most “natural” and conformable to reason. To correct any declension from such experienced perfection was thus clearly more than patriotic. Like the Glorious Revolution itself, it could be called an assertion of universal truth.

[3] Dickinson cites Lord Camden and the statute quo warranto 18th of Edward I. See The Political Writings of John Dickinson, 1764-1774 (New York: Da Capo Press, 19701, edited by Paul L. Ford (originally published 1895), p. 485. From Lord Coke to Chatham ran the argument that law bound King and Parliament. See the famous Dr. Bonham’s Case, 8 Coke 118a (1610). Also Herbert Butterfield, The Englishman and His History (Hamden, Conn.: Archon Books, 1970).

“Why Process Matters,” By Bruce Frohnen
by Peter Haworth

It is worth noting, here, that we Americans owe our liberty, in no small measure, to a rather obscure set of circumstances going back eight hundred years in England. This set of circumstances arose from the greed and desire for power of a king, which were somewhat ironically channeled in a direction favorable to liberty by the procedural tool he chose in his quest.

First signed in 1215, Magna Carta generally is credited with institutionalizing due process in the English tradition. By committing the king to prosecute subjects only according to “the law of the land,” Magna Carta bound him to abide by procedures already existing throughout his kingdom, solidifying a powerful bulwark against arbitrary arrest and punishment. But the binding nature of law on kings was far from assured by this one document. It was significantly bolstered later in the thirteenth century by a series of events that combined elements of custom, law, and contract and related to the humble English borough.

Medieval English boroughs were relatively important towns with their roots in military encampments. Over time, many of these communities gained charters from the crown giving them significant rights of self-government. Whether awarded to them for special services or monetary donations, or rooted in customary relations from time out of mind, these charters were precious to those who held them. In theory, kings could only revoke such charters for cause, or for failure to exercise their rights. King Edward I (1272-1307) sought to bring boroughs more closely into his power by reviewing all their charters at essentially the same time. To do this he used an old common law writ called “quo warranto.”

Quo Warranto (or “by what right”) was a proceeding by which a person or community claiming a right to do something (say, appoint their own tax collectors or keep goods found on the local beach from a wrecked, unclaimed vessel) was ordered to show by what right they exercised their claimed powers. Before Edward, kings occasionally had revoked borough charters, either under quo warranto or through unilateral action. Edward had a grander scheme, by which he made every borough answer the question of by what right they exercised their powers of local self-government. If the party answered the writ successfully they would keep their rights, but if not the charter would be confiscated or held void. […]

Edward sought, not the elimination of all borough charters (he had not the power to make that kind of scheme succeed over time) but to better define which boroughs had what rights and to establish that a borough could have its charter revoked for abuse or noncompliance with its provisions. […] Perhaps the most important, if unintentional, byproduct of Edward’s aggressive program of quo warranto was institutionalization of Magna Carta. His grand, universal scheme required formal procedures, establishing due process rights that guaranteed, in the formula of the time, “each man’s own liberty, warranted by a charter, upheld in the courts.” […] Under Edward’s general quo warranto investigation, due process went so far as to show that the king, as a person, was not above the law.

Colonial self-government, 1652-1689
by Charles McLean Andrews
p. 17

The king’s interest in his revenues, as well as the demands of commerce and trade, the nation’s jealousy of Holland, and the influence of men like Clarendon and Downing, must be taken into account if we would understand the navigation acts, the founding of new colonies, the establishment of new boards and committees, and the quo warranto proceedings to annul colonial charters between 1660 and 1688. The colonies were the king’s colonies, and his also was the burden of providing money for the expenses of the kingdom.

Since the attempt to cripple the Dutch by the navigation act of 1651 proved a failure, the act of 1660, in repeating the shipping clause of the earlier act, made it more rigorous. Thenceforth ships must not only be owned and manned by English- men (including colonists), but they must also be built by Englishmen, and two-thirds of the seamen must be English subjects. In later acts of 1662 and 1663, provision was made whereby real or pretended misunderstandings of this clause might be prevented ; and one of the most important functions of the later committees of trade and plantations was, by means of rules as to passes, denization and naturalization, and foreign-built ships, to prevent trade from getting into the hands of foreigners.

American History
by Macrius Willson
p. 310

About the close of King Philip’s War, the king’s design of subverting the liberties of New England were revived anew, by the opportunity which the controversy between Massachusetts, and Mason and Gorges, presented for the royal interference, when New Hampshire, contrary to her wishes, was made a distinct province and compelled to receive a royal governor. ‘Massachusetts had neglected the Acts of Navigation— the merchants of England complained against her—she responded by declaring these Acts an invasion of the rights and liberties of the colonists, “they not being represented in parliament,” and when finally the colony refused to send agents to England with full powers to settle disputes by making the required submissions, a writ of quo warranto was issued and English judges decided that Massachusetts had forfeited her charter. Rhode Island and Connecticut had also evaded the Acts of Navigation, yet their conduct was suffered to pass without reprehension. It was probably thought that the issue of the contest with the more obnoxious province of Massachusetts would involve the fate of all the other New England settlements.

Throughout this controversy, the general court of Massachusetts, and the people in their assemblies, repeatedly declared they would never show themselves unworthy of liberty by making a voluntary surrender of it ; asserting, “that it was better to die by other hands than their own.”—The resolute, unbending virtue, with which Massachusetts defended the system of liberty which her early Puritan settlers had established, and guarded with such jealous care, deserves our warmest commendation. The Navigation acts were an indirect mode of taxing the commerce of the colonies for the benefit of England; and the opposition to them was based, mainly, on the illegality and injustice of taxation without representation—a principle on which the colonies afterwards declared and maintained their independence.

pp. 320-1

In his relations with the American colonies, James pursued the policy which had been begun by his brother. The charter of Massachusetts having been declared to be forfeited, James at first appointed a temporary executive government, consisting of a president and council, whose powers were to extend over Maine, New Hampshire, Massachusetts and New Plymouth; and soon after he established a complete tyranny in New England, by combining the whole legislative and executive authority in the persons of a governor and council to be named by himself. Sir Edmund Andros received the office of governor-general.

It being the purpose of James to consolidate all the British colonies under one government, measures were immediately taken for subverting the charters of Rhode Island and Connecticut, both of which colonies were now charged with making laws repugnant to those of England. Writs of quo warranto were issued against them, but the eagerness of the king to accomplish his object with rapidity caused him to neglect to prosecute the writs to a judicial issue, and the charters were thereby saved from a legal extinction, but Andros arbitrarily dissolved the institutions of these colonies, and by the authority of the royal prerogative alone assumed to himself the exercise of supreme power.

The government of Andros, in obedience to the instructions of his royal master, was exceedingly arbitrary and oppressive, and he often took occasion to remark “that the colonists would find themselves greatly mistaken if they supposed that the privileges of Englishmen followed them to the ends of the earth; and that the only difference between their condition and that of slaves, was, that they were neither bought nor sold.”

In 1688 New York and New Jersey submitted to the jurisdiction of Andros. A writ of quo warranto was issued against the charter of Maryland also, and that of Pennsylvania would doubtless have shared the same fate had not the Revolution in England arrested the tyranny of the monarch. “When some vague intelligence of this event reached New England, the smothered rage of the people broke forth, and a sudden insurrection over threw the government of Andros—sent him prisoner to England—and restored the ancient forms of the charter governments.

The important events in England, of which the new settlement of the crown and the declaration of rights are the closing scenes, are usually designated as the English Revolution, or, the Glorious Revolution of I688. This Revolution gave to England a liberal theory of government, based on the avowed principle that the public good is the great end for which positive laws and governments are instituted. The doctrine of passive obedience to the crown, which the princes of the house of Stuart had ever labored to inculcate—which the crown lawyers and churchmen had so long supported, henceforth became so obnoxious to the altered feeling and sentiments of the people, that succeeding sovereigns scarcely ventured to hear of their hereditary right, and dreaded the cup of flattery that was drugged with poison. This was the great change which the Revolution effected—the crown became the creature of the law;—and it was henceforth conceded that the rights of the monarch emanated from the parliament and the people.

This Revolution forms an important era in American, as well as in English history—intimately connected as the rights and liberties of the colonies then were with the forms and principles of American of government that prevailed in the mother country. From this time, until we approach the period of the American Revolution, the relations between England and her colonies present great uniformity of character, and are marked by no great excesses of royal usurpation, or of popular jealousy and excitement. Hence that portion of our colonial history which dates subsequent to the English Revolution, embracing more than half of our colonial annals; has but a slight connection with the political history of England. The several important wars, however, in which England was engaged during this latter period, extended to America; and an explanation of their causes and results will show a connection between European and American history, that will serve to give more enlarged and accurate views of the later than an exclusive attention to our own annals would furnish.

Moreover, these wars, in connection with the growing importance of colonial commerce, exerted a powerful influence in acquainting the several colonies with each other; thereby developing their mutual interests.—softening the asperities and abating the conflicting jealousies which separated them—and, finally, gathering them in the bonds of one political union. The early portion of our colonial history presents a continuous conflict between liberal and arbitrary principles, and shows why we are a free people:—the latter portion, subsequent to the English Revolution, exhibits the causes which rendered us a united people.