King John signs Magna Carta Copyrighted image Credit: photos.com

Continuity:
And now Michael Portillo presents the final programme in the current series of The Things We Forgot to Remember. This week he asks why of two solemn charters that were sealed at the same time we remember one but not the other. We join him in the city of Lincoln…

Michael:
I’m standing in a large, open, and it must be said unsightly car park, and this seems a pretty unlikely place for me to come looking for a document which is perceived as the very basis of English justice. But I’m assured that this is where I’ll find it, in the Lincolnshire Archives just across the street – and that document is not undergoing restoration in preparation for its forthcoming departure to the United States of America.

Archive: Roy Castle Monologue
I’ll tell of the Magna Charter, as were signed at the Baron’s command, on Runnymede Island in middle of t’Thames, by King John in his spidery hand.

Michael:
Sealed at Runnymede on 15th June 1215, across the centuries Magna Carta has been hailed as the foundation of the common man’s right to justice and freedom. The Americans have a particular affection for it – in 1776, as they achieved independence, it formed the basis of their Bill of Rights. And now, in Lincoln, Magna Carta’s being prepared for only its second-ever visit to the United States…

Michael:
Hello.

Peter
Mr Portillo?

Michael:
Yes, we’ve come to see Magna Carta. Are you er…

Peter
That’s right.

Michael:
Are you Peter Allen?

Peter
Peter Allen yeah. Very good to see you.

Michael:
This does seem a most unlikely place to find it.

Peter
Yeah normally you would find it in Lincoln Castle.

Michael:
Ah right, so it’s here temporarily?

Peter
But it’s here temporarily.

Archive - Stanley Baldwin
Magna Carta is the law, and let the King look out. And it has always been the same and will be the same, whether the tyrant be barons, whether the tyrant be the Church, whether he be demagogues or whether he be dictators. Let them look out. APPLAUSE

Michael:
Prime Minister Stanley Baldwin in 1935, holding up Magna Carta as a warning to European Fascists. Magna Carta was drawn up by the barons. Their embattled King John had demanded taxes to pay off his unsuccessful military campaigns in France. Magna Carta’s resonance is almost universally recognised, even if the details of its enactment are sometimes a little hazy.

Archive - Hancock’s Half Hour – 12 Angry Men
Does Magna Carta mean nothing to you? Did she die in vain? [laughter] … a brave Hungarian peasant girl, she forced King John to sign the pledge at Runnymede and close the boozers at half past ten.

Peter
Ok?

Michael:
Very good. Where are we off to?

Peter
Fourth floor.

Michael:
Fourth floor.

Peter
There’s all the conservation labs up there.

Ann
What sort of environment does it like? A sort of not too dry, not too damp?

Peter
Yeah, not too dry, not too damp, very little light. Just a stable environment really.

Michael:
So Ann Lyon, you are a constitution historian, but you are this moment in the presence of Magna Carta itself for the first time. What do you feel?

Ann
Awestruck, and gazing fascinated at it, it’s about eighteen by eighteen inches, it’s a piece of vellum which is obviously old, it’s written in quite small hand in brown ink. The script is actually fairly clear but it’s full of Latin abbreviations, and this is not an original because the actual version of Magna Carta which King John and his barons sealed at Runnymede has not survived. This is one of the copies which were sent out to each of the English shires, so it doesn’t have all the seals on, and in those days people didn’t sign things, they sealed them. So it’s a marvellous thing to be literally inches away from. I’m thinking well should I really be breathing over this?

Michael:
Ann Lyon had travelled from the Department of Law at Swansea University to enter the presence of the Lincoln copy of Magna Carta – one of only four that remain of all those sent out to England’s shires. Professor Peter Linebaugh of the University of Toledo, Ohio, is the author of the Magna Carta Manifesto; he describes Magna Carta as an armistice.

Peter
It consists of 69 chapters that brought an end to a civil war temporarily, between barons and King. It was a comprehensive attempt to bring about a treaty as it were among contending forces.

Michael:
We think of Magna Carta as being the unvarying basis of our liberties from 1215 onwards, but in fact King John was trying to undo it within months wasn’t he?

Ann
John seems to have agreed to Magna Carta very much to secure himself a breathing space, and basically scarcely had the seals settled on Magna Carta than John sent a fast galloper to Rome to say please absolve me of my oath, because it was exacted from me under duress. And by the end of August of 1215 John had received his dispensation from Pope Innocent from Magna Carta, and very shortly afterwards he was in all out war with the rebel barons and of course Louis of France as well.

Archive Roy Castle Monologue
You’d best sign at once said Fitzwalter. If you don’t, I’ll tell thee for a start, the next coronation will happen quite soon, and you won’t be there to take part.

Michael:
Perhaps John shouldn’t have reneged on the deal, because just over a year later he was dead, leaving the throne to his 9 year old son, Henry III. With a French army already on English soil at the barons’ invitation, Henry’s regents had to act fast to consolidate the succession. One of the first things they did was to re-issue Magna Carta.

Ann
Re-issuing the charters was definitely part of a propaganda campaign, it was in fact an early exercise in spin, one might say, to say this is what we are going to abide by, this is what the new King’s father agreed to only eighteen months ago, we are going to follow this version of the good old laws.

Michael:
But a couple of clauses were missing from the new Magna Carta. They related to the royal forests. In 1217 a new document was issued, in which those clauses were expanded. This new Charter of the Forest is the document we forgot to remember. Yet for the next four centuries it was the Charter of the Forest, not Magna Carta, that had far-reaching impact.

Ann
One could argue that the Charter of the Forest is more relevant to the mass of the population than the Magna Carta, because the Magna Carta is really all about the King’s powers to raise revenues from his greater subjects, the actual feudal landowners. The Charter of the Forest – forest law applied to large areas of England which were designated royal forest, and were not necessarily forest in the sense we think of forest today. So in that the Forest Charter is specifically about forest law, which affected large numbers of ordinary people. It may well be that this was of rather greater practical importance.

Peter
The content of that Charter of the Forest preserves the ability of commoners to have access to the resources and riches of the natural ecology of the forest. What’s enabled me to see how important it was, was to imagine another hydrocarbon source, namely petroleum, and to see how important is petroleum to our lives now. As soon as we see that in terms of our, our clothing, in terms of our buildings, in terms of our fuel, in terms of the materiality of our lives in the twenty-first century, we can begin to get an inkling of how important the woodlands, how important that was to the daily lives of people. It was the essential materiality of life.

Michael:
It’s estimated that at the time about half of England was forest, and even though the Charter of the Forest applied only to royal forests, they were a significant proportion – a domain that had been spreading steadily since the Norman invasion. Dr Jack Langton is a fellow of St John’s College, Oxford.

Jack
The King claimed the right to make forests wheresoever he chose. William I made large numbers of forests, then all subsequent kings did. The land was reserved for the King’s hunting, and this meant that what was called the protection of venison – that’s things that were hunted – and vert – that is the plants that sheltered and fed the animals that were hunted. So both vert and venison were protected in forests, so that there were huge restrictions on the rights that landowners as we would think of them, land holders, had over their, the property that they held. And the Charter of the Forest in 1217 tried to rein in the forests that had been created, so Clause 3 says that all forests made since the accession of Henry II shall be disafforested.

Michael:
That didn’t mean that the trees should be chopped down – in fact royal forests weren’t even necessarily wooded – for example, they could be heathland. Disafforestation meant taking them out of the king’s ownership and out of forest law. The barons, who had enjoyed only limited rights in royal forests, could, after disafforestation, make use of them at their own whim.That looked on paper like another victory by the barons over the king, but it turned out to be a bit of an illusion. Somehow the royal forests didn’t disappear, even though kings who were short of money periodically made the concession of re-issuing both Magna Carta and the Charter of the Forest.However, whilst the barons may in fact have gained little, ordinary people found a guarantee of their liberty and livelihood in the Charter of the Forest.

Jack
I mean it wasn’t that the King was thinking I’ll give my ordinary people freedoms, of course it wasn’t, but because of the restrictions he placed on what landowners could do, this indirectly gave freedoms to other people who lived in the forest.

Michael:
What sort of rights did commoners have?

Jack
They had the rights to graze their cattle, which is called agistment, between Michaelmas and Martinmass each year, they had the right to put their pigs into the forest to eat acorns and beechmast, which was called panage. They were allowed to take wood for their own use out of the forest.

Michael:
So these were rights that were held by common people?

Jack
Yes.

Michael:
And those rights were ensured by the Charter of the Forest?

Jack
The main purpose of the Charter of the Forest was to force the King to disafforest areas that might well have been up to a quarter or even a third of all the forests that existed in 1217. But, under Clause 1, paragraph 4, the common rights of ordinary freemen and tenants in the forest are asserted. Of course a very important clause is Clause 10, which is that nobody can now lose life or limb for killing the King’s deer. Actually after the Charter of the Forest the punishments were greater for killing a sheep than for killing a deer, and it wasn’t till 1824 that the death penalty for killing a sheep was removed. It was removed in 1217 for killing a deer.

Peter
The Charter of the Forest provides for common rights, for common people. It’s a world where fuel, where tools, where medicines were available to common people from their co-operation in the great forests of that time.

Michael:
On a wonderful winter’s day I’m in Lincoln Cathedral with the sunshine streaming through the stained glass, throwing colours onto the columns of this building, which was begun in 1072 and completed over the next two centuries. I’m here to see Dr Nicholas Bennett, the Vice Chanceller and Librarian at Lincoln Cathedral, who’s going to show me an original of the Charter of the Forest.

Nicholas
The Charter of the Forest is in fact rarer even than the 1215 Magna Carta, and it’s quite strange that Lincoln has got a copy of, of both documents. Ah I think people were very reluctant to throw anything away in Lincoln Cathedral. But there are actually only two surviving examples of the Charter of the Forest, which must have been distributed widely as part of the post-civil war settlement in 1217 – this copy here and there’s one in Durham Cathedral – whereas there are four examples of the 1215 Magna Carta.

Michael:
You’re opening a cardboard folder and inside, tissue paper, and..

Nicholas
there we have…

Michael:
..and a wonderful, a wonderful fragment.

Nicholas
A skin of parchment a foot square approximately, closely written in mediaeval Latin, copied by the scribes in the Royal Chancery, and with two seals on tags at the bottom here – one survives and the other is missing. This Charter was issued on the 6th November 1217. It really put the royal forests under the law of the land for the first time. It’s an almost forgotten part of English history. Magna Carta is so called because of the existence of this separate charter. Um it’s the great charter whereas this was the small charter, the Charter of the Forest. Through the later Middle Ages, whenever there was a political crisis, particularly at the end of the thirteenth century when again Edward I was desperate for money to wage war in France and Scotland at the same time, and everyone protested at their levels of taxation he was demanding – they demanded the re-issue of the Charters, that meant Magna Carta and the Charter of the Forest, so that they could have their rights once again enshrined in law. So very much they were considered at that time a pair – the great Charter and the little Charter.

Michael:
As a one time legislator I’m lost in admiration because surely this today would occupy four hundred pages and six hundred clauses with I don’t know how many appendices and annexes, and here it all is in, what, twelve inches by twelve inches.

Nicholas
There’s no health and safety legislation in this one! (laughs)

Michael:
A compact document with extensive effects. It was seen as legitimising customary rights. Over centuries it was cited in campaigns to uphold those rights. They in turn can be regarded as the foundation of working class politics. Andy Wood is a Reader in Social History at the University of East Anglia.

Andy
I suppose the key point is the way in which national documentation such as the Forest Charter or the Magna Carta codify the limits of royal authority but fit into a larger body of local law, local custom, which is in some respects more important to people, and which is cited by ordinary people in the sixteenth, seventeenth, eighteenth, nineteenth centuries as part of their body of rights and freedoms. Working class politics is often seen as something which is generated in the course of the Industrial Revolution rather than something that emerges incrementally from within popular culture. And the whole question of customary rights rather turns that on its head. It suggests that working class politics is a kind of continuum, shading from local customary rights in the sixteenth, fifteenth, fourteenth century, all the way into organised national working class politics in the nineteenth century, but organised around this notion of rights and liberties and local laws and local traditions.

Michael:
Because of the Charter, forest people had rights and knew it.

Jack
It’s probably true that in forest areas people do behave more freely, with much less immediate social control. They are ultimately controlled by forest eyres which are supposed to meet every five years, which hardly meet at all.

Michael:
Those are courts?

Jack
Yes, courts of itinerant justices. And so they probably are less closely disciplined in terms of social behaviour than people outside forests. The Peasants’ Revolt in 1881 comes out of the forests of Essex and Kent of course – that’s where the, the actual revolutionaries, if you want to think of them as that, came from.

Michael:
Those revolutionaries were conscious of their rights not because of Magna Carta, but because of the Charter of the Forest. So why do we credit our fundamental rights and freedoms to Magna Carta? It’s all down to a single clause out of the 69. Ann Lyon

Ann
It’s clause 39 – ‘No free man shall be arrested or imprisoned or deseized or outlawed or exiled or in any way destroyed, except by the lawful judgement of his peers and by the law of the land.’ Now deseized means deprived of his lands – it’s a technical feudal term. Back in the thirteenth century of course it only applied to freemen, who were a small percentage of the population of the time. The great majority of the population were unfree serfs. So most of the Charter was quite simply irrelevant to them.

Michael:
And after the 13th century, Magna Carta became altogether irrelevant and disappeared from public view. In his play ‘King John’, William Shakespeare makes no mention of Magna Carta. But the Charter of the Forest remained very much alive. For four centuries Forest Law was in daily use. It wasn’t until the 17th century that the Great and the Little Charters exchanged fortunes. Magna Carta staged a comeback.

Ann
It comes back into view in the ‘Ship money’ case of 1640, when John Hamden refused to pay ship money, a tax levied in order to pay for sea defences and the embryonic Royal Navy.

Michael:
By Charles I.

Ann
By Charles I, yes. And it’s used in legal argument at that point and it’s referred to by one of the great Chief Justices of English history, Sir Edward Cook, also by John Pymm, one of the opponents of Charles I, and then it’s back in view, and it’s being used to justify a rebellion against the King as, if you like, the centrepiece of the argument of no taxation without representative. The King is subject to the law, the King can only make law through parliament, which back in 1215 I don’t think anybody would have recognised.

Michael:
And did it come back into view simply because it was useful for those arguments, or was there some other reason why it had come back to light?

Ann
My view would simply be that it’s useful for those arguments. It was known to lawyers, and they’re saying ah ha we can use this. It’s then that Magna Carta becomes, if not of practical importance then certainly of enormous ideological importance, and an idealogical importance it really has not lost ever since.

Michael:
So this copy of Magna Carta is going to travel now from Lincoln to the United States, where Magna Carta is strongly revered. What, what’s the background to that?

Ann
When they made their Declaration of Independence in 1776 they had to make a case for rebelling against their lawful King. They were able to refer back to Magna Carta and say this is the cornerstone of the liberty we are now demanding for ourselves.

Michael:
As Magna Carta acquires ideological prominence, the Charter of the Forest slips from view.

Peter
They diverge with the rise of capitalism. The Charter of the Forest is not consistent with commodity production or commodity trade. The Charter of the Forest and some of the provisions of Magna Carta are not consistent with universal doctrines of private property. So in the seventeenth century, at the time of the English revolution, when the laws of commodity trade and privatisation of land and of a land market have de-sacrilised, or disenchanted the land in the forests, the Charter of the Forest slowly fades. In North America we see this most clearly, because the Magna Carta came over across the seas but the Charter of the Forest did not.

Michael:
But its legacy was not lost. As the complicated mediaeval system of land tenure gave way to more modern notions of private property, as access to common land was threatened by so-called enclosure, the Charter of the Forest was invoked in support of customary rights. Andy Wood has studied what happened in one former royal forest in Derbyshire.

Andy
The Peak forest is effectively obliterated in the early stages of the English revolution, in 1641 when the Crown loses a lot of its forest rights. In the later seventeenth century those rights are sold off to local entrepreneurs and local gentry and noble families, particularly the Dukes of Devonshire, and they attempt to enclose parts of the forest, you know to divide it up and so expropriate those rights from the common people, and they experience a lot of opposition to that. The effect of the Forest Charter, even though this land is no longer afforested – that is in the legal sense a royal forest – is to enshrine within local custom and within local memory a notion that the land is for peoples rather than the gentries and the nobilities.

Michael:
But it wasn’t only in forests that people defended their customary rights. Dr David Eastwood has written about what happened on Otmoor in Oxfordshire.

David
In 1830 the landowners were successful in getting through the legislation that they required to enclose them more, and then in 1830 a series of nocturnal protests began, pulling down the fences, pulling down the hedges, re-diverting rivers that had been diverted, and these riots went on, on and off, for five years. The rioters would protest with blackened faces, they would protest often with men dressing as women, so identities were shielded through this process. And for about two years the enclosure work was effectively undermined by the protestors. Principally they based their defence on an appeal to custom, that they had a customary right to graze their animals on the moor, to use the moor to raise some crops of their own, and so forth. And in this process they would refer to Magna Carta. What I think is very interesting is that though Magna Carta had acquired this symbolic significance, and that was what was invoked, in a purely technical sense it was in the Charter of the Forests which was much more meaningful in terms of establishment rights over what became common land.

Jack
The people who were using it in perhaps a way that we wouldn’t expect in the late eighteenth and early nineteenth centuries, were landowners themselves, who were saying we have forest rights, and if we have to give up these forest rights we need compensation. Lord Rivers, the Earl of Aylesbury – the Earl of Aylesbury had Savernake Forest, Lord Rivers had Cranbourne Chase in the late eighteenth century, and both of them took legal advice from which they delightedly learnt that the Charter of the Forest was still in force, they still had the right to stop people putting fences up. Of course what they now wanted was to be paid for giving those rights up. Nonetheless they were still their rights as forest Lords.

Michael:
When did the Charter of the Forest cease to have legal effect in this country?

Jack
In 1971, when the Wild Creatures and Forest Laws Act was passed.

Michael:
So from 1217 to 1971, that’s quite a long period to be in force.

Jack
The copies of statutes in force, that are printed periodically, still had as the first two extant statutes in force, 1936 edition of Magna and the Charter of the Forest, still in 1936 these were the two foundations of our liberties. What’s very interesting about the Charter of the Forest I think in current circumstances is that it was passed to allow leisure pursuits in the countryside, and to use the land for other things than profit. Well maybe now we’re trying to think about the countryside in the same way again, so maybe now the Charter of the Forest, well perhaps people will start to think about it again in a way that they haven’t whilst the countryside’s been thought of as the private property of landowners whose job is to make profit from it.

Andy
Into the 1930s that land, which had once been part of the Royal Forest of Peak Forest, is still an area of conflict between ordinary people and the gentry in that the people of Manchester, led by a man called Benny Roughman, who’s a Communist activist and a trades unionist, Benny Roughman leads a mass trespass, as he put it, to reclaim the land of the common people in support of the right to roam on areas of moorland as a recreational activity. So in a funny sort of way the forest rights still operate.

Michael:
Today in Britain we hear the echo of the Charter of the Forest as we debate our rights to leisure. But in developing countries people might still recognise that it was fundamental to establish common rights that were essential for survival. Peter Linebaugh:

Peter
Neither the Charter of the Forest nor Magna Carta are manifestos of idealism, but they do put subsistence as, in our terms you would say as a human right. But it’s not a right to be given, it’s a right on the ground. And we have to find new means of commoning, and I think that the tradition of the Charter of the Forest, the proto-Socialist Charter that understands collective commoning, or co-ordinated restrictions upon individual privatisation, can help us to understand that.

Michael:
Magna Carta was a deal amongst the haves – between rich barons and an ambitious king. By chance one clause in it touched upon rights and freedoms that centuries later acquired a universal character that would surely have astonished its authors.Being close to that hallowed document I was moved. But perhaps not as much as when in Lincoln Cathedral I studied its forgotten twin, the Charter of the Forest. Because the Charter affected the lives of common people then, and for four centuries thereafter, arguably longer still.The Charter of the Forest emerged at a time of bare subsistence, when the customary rights of ordinary people to forage and to glean were all that stood between them and starvation. It’s a world that our modern minds can scarcely comprehend. That is why we’ve forgotten to remember the Charter of the Forest.

Archive - Roy Castle Monologue
And it’s through that there Magna Charter, as were signed by the barons of old, that in England today we can do what we like, so long as we do what we’re told.

This is a transcript from Things We Forgot To Remember; the programme was originally broadcast in December 2006