Freeman

ARTICLE

An Earlier Response to Environmental Tyranny

English History Provides an Example of the Restoration of Property Rights to the People

APRIL 01, 1998 by DANIEL WALKER

Filed Under : Property Rights

Daniel Walker is a Tallahassee, Florida, attorney specializing in estate and inheritance planning, and is founder of the new Law & Liberty Foundation, Inc.

There was a time when a government elite used its power to enforce draconian laws concerning wildlife and forests; when the common law was ignored; when special courts decided cases concerning the environment; and when the government owned great areas of land, zealously prosecuting and persecuting people who had the audacity to use natural resources to feed and shelter themselves. So-called crimes on government lands were met with harsh punishments, far out of proportion to the offenses. Of course, the government used its laws to raise revenue by imposing severe monetary fines on offenders; building a hedge or ditch without first having obtained government permission, for example, would result in a fine at the least.

People who flouted the laws were identified as outlaws. You probably recognize one of the more prominent names: Robin Hood. He scorned not the Environmental Protection Agency or Bureau of Land Management or the Endangered Species Act, but the horrid “forest laws” of England and their enforcers early in this millennium.[1]

From the times of William the Conqueror, Henry I, and Henry II, English kings expanded the range of royal forests, driving out many who lived within the forests and imposing an extraordinary array of regulations. By the reign of Henry II, only a century after the Norman conquest, approximately one-third of the entire English kingdom consisted of land deemed to be royal forests. Just as the term “wetland” today encompasses much land that is seldom wet, the royal “forests” often included land which was not forestland. According to British legal scholar William Sharpe McKechnie, “A forest was not necessarily covered with trees throughout the whole or even the greater part of its extent. Miles of moorland and heath and undulating downs might be included and even fertile valleys with ploughed fields and villages nestling among them.”[2]

Before the Norman conquest of 1066, kings did not exercise absolute power over forests. “Crown rights” over forests and natural resources, however, generally increased from 1066 onward, aided in part by the development of feudal law.

Unoccupied lands were deemed to be royal lands, and other desirable tracts were depopulated, residents often evicted, villages destroyed, and churches burned down; despite occasional retreats from land-grabbing, kings made ever-stronger claims to preferential and ultimately absolute power over these lands, as well as the wildlife within them. Over the decades, occupied lands were “afforested,” that is, brought within the definition of royal forests and thus made subject to the forest laws and the absolute, solitary jurisdiction of the king and his agents.

A Royal Monopoly on Hunting

The kings enjoyed a near-monopoly over hunting within the royal woodlands. With few exceptions, only the king could hunt animals such as the wild boar, fallow and red deer, and roe; some privileged few, such as bishops and others to whom the king sold or granted licenses, could hunt lesser game including hares and nuisance creatures like wolves. One unfortunate person, William Rufus, often hunted deer—that is, “until he was found dead under a tree with an arrow in his heart. The people were told that this was ‘God’s righteous wrath.’”[3] Thus, poaching could lead to a punishment of death or mutilation, such as pulling out an offender’s eye for taking a boar.

Unsurprisingly, with government control of natural resources came other controls on people’s activities. Forest dwellers could not own bows or arrows and their dogs had to be “lawed,” meaning that three claws were removed from their forefeet, to keep them from pursuing or harming game. Any infraction of these restrictions could lead to at least a fine.

Property rights for those living within the “forests” were practically nonexistent. Just as government permits the retaining of nominal ownership today even as it regulates away numerous rights of property ownership, “landowners” in royal “forests” technically retained their freehold, but were deprived of the practical use and value of much of their lands. It was contrary to the forest laws for freeholders to clear land for cultivation, root out trees, build mills, or make fishponds or unauthorized hedges or ditches. Anything that might affect the king’s interest in preserving the environment for game was within the scope of the forest laws. One could not lop off a tree branch, much less destroy a tree or keep birds of prey or cut firewood except under sharply limited circumstances. Again quoting McKechnie: “Men might live, and did live, within the boundaries [of royal forests], but they could enjoy no rights of personal freedom or of property inconsistent with the rules laid down by the Crown to protect its own interests. Within the imaginary line the king’s power was supreme, and he used it frankly for the preservation of beasts of the chase, not for the good government of the men who happened to dwell there.”[4]

As with any extensive body of regulation of persons and property—such as the Code of Federal Regulations today—there was an array of “law-enforcement” and special courts to secure adherence to the Forest Laws. Just as we have administrative “courts” today, in England a special three-tiered court system was concerned only with alleged violations of the Forest Laws. The common law did not apply.

Wardens were the king’s agents in the royal forests, and “foresters” below the wardens often enjoyed their privileged position by imposing scores of fines on forest dwellers for alleged violations of the Forest Law restrictions. In cases where an individual offender could not be ascertained, “collective punishment” could be imposed, as it was to the town of Maidford. The head of a red deer was discovered in a royal forest near the town, and the forester for that area was dead. Because no specific offender could be determined as guilty of hunting the hart, the king seized the entire town. According to McKechnie, “there was clearly a strong inducement in such cases, to find someone guilty.”[5]

The Barons Resist

Barons as well as peasants suffered under application of the forest laws. The severity and totality of the laws were among the reasons for the historic gathering at Runnymede in 1215 that produced Magna Carta and later the lesser known Charter of the Forest in 1217 soon after Magna Carta was reissued. While it cannot be denied that King John’s acquiescence to the barons’ demands was in large part a matter of “power politics” and timing—the barons being more concerned with their own fortunes and lives rather than those of the poor peasantry—the measures obtained in Magna Carta and the Charter of the Forest were historic for developing recognition and protection of property rights, punishment proportionate to the crime, and limitations on the powers of government.

Within Magna Carta of 1215 were numerous provisions to reform the forest laws; when the great charter was reissued two years later and the sections concerning forest laws were omitted, a separate Charter of the Forest was issued. Both documents provided rudimentary institutional limits on the power of the king. Thus is Magna Carta a milestone in the Western legal and political heritage.

The two charters brought about numerous changes concerning rights to property and use of natural resources. Freeholders could cut and use wood from their own lands. Forest dwellers could clear their land, plow, and farm. The right to erect mills and dig ponds and ditches was recognized, subject to the proviso that others’ lands not be harmed. Marle—lime in the ground—could be taken. Clause 13 of the Charter of the Forest recognized the right to gather honey (the most common form of sweetener) and to keep birds of prey such as hawks and eagles. One of the final clauses of the charter recognized the right of people to gather “wood, bark, and coal” from the forests not only for home use but also to make a living, without having to pay “cheminage”—essentially a transport tax—if a person did not use a cart or horse. For the poor peasants who lived with what they could carry on their backs, “[t]his was one of the real, practical liberties for the poor promised by generalities in Magna Carta and then detailed in the Forest Charter.”[6]

There were other benefits from these charters, for example, punishment proportionate to the crime. No longer would a person lose life or limb for killing a deer.

Remaining forest-law offenses no longer were capital crimes. Forest dwellers could protect themselves and hunt; possession and use of bow and arrow became recognized rights, and forest dwellers could keep smaller dogs such as spaniels without having them “lawed.” While Magna Carta and the Forest Charter did not usher in a libertarian legal utopia of robust property rights, 22 of Magna Carta’s 66 clauses did affect and strengthen property rights, as did the more specific clauses of the Charter of the Forest.

Then and Now

Some might say that the current era of statist environmental controls is new. It is an era in which the exercise of property rights and long-standing activities such as hunting are increasingly shackled by the national government as well as by a host of other state and local tyrants. Today, the federal government (through the Army Corps of Engineers, the Environmental Protection Agency, the Fish and Wildlife Service, and other agencies), state government departments of environmental protection and natural resources, and local planning and zoning boards are little more than updated versions of absolutist eleventh- and twelfth-century British royalty armed with late-twentieth-century rhetoric.

You can keep title to real property and pay taxes for legal possession of it, but use it and enjoy it only as an assortment of governmental entities deem permissible. We need a robust application of the federal and state constitutions’ takings clauses throughout America. Perhaps we should draw inspiration from the history of old England in order to reinvigorate our constitutional respect for the human right of property ownership.


Notes

  1. For more on this subject, see John Chodes, “The New Forest,” The Freeman, April 1994.
  2. William Sharpe McKechnie, Magna Carta: A Commentary on the Great Charter of King John (Glasgow: James Maclehose and Sons, 1905), p. 483.
  3. Luis Kutner, “Charter of the Forest: Forgotten Companion of the Magna Carta,” The Common Lawyer, January/February 1981, p. 4.
  4. McKechnie, p. 483.
  5. Ibid., pp. 498–99.
  6. Ray Stringham, Magna Carta: Fountainhead of Freedom (Rochester, N.Y.: Aqueduct Books, 1966), p. 71.

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April 1998

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