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“Grey, gnarled, low-browed, knock-kneed, bowed, bent, huge, strange, 
long-armed, deformed, hunchbacked, misshapen oakmen . . .” This is a 
personification of the massive trunks and small crowns of the ancient 
oaks of Staverton. These old trees are the result not of the wildwood (of 
the Ice Age 13 millennia before) but of wooded pasture. 

The wooded pasture is a human creation, the result of centuries of 
accumulated woodmanship, carefully planned so the same land could 
be used for trees and grazing animals. Coppice (trees like ash and elm 
that grow again from the stump) provided an indefinite succession of 
crops of poles (for making rakes, scythe-sticks, surplus used for stakes 
and firewood); sucker (trees like aspen and cherry that grow again from 
the root system) formed patches of genetically identical trees called 
clones; and pollard (trees that are cut six to 15 feet above the ground, 
leaving a permanent trunk called a bolling), sprouted like coppice stool 
but out of reach of the livestock.6 

In Anglo-Saxon times wooded commons were owned by one person, 
but used by others, the commoners. Usually the soil belonged to the 
lord while grazing belonged to the commoners, and the trees to either. 
Whole towns were timber-framed. The strut and beam of cottages, the 
curved wooden rafters, the oak benches of worship. Wheels, handles, 
bowls, tables, and stools were wood. Wood was the source of energy. 

The Norman Conquest in 1066 disrupted the customs of the forest 
which had prevailed for centuries. William and his Norman conquerors 
(“a French bastard with his armed banditti,” said Paine) brought 
innovations in eating utensils (the fork), a new language (law French), 
new people (the Normans, the Jews), and different animals (wild boar 
and deer, the royal game). The forest became a legal rather than a 
physical entity. The king reserved it exclusively for sport. 

The forest became the supreme status symbol of the king, from which 
he could give presents of timber and game. Henry III sent his old nurse, 
Helen of Winchester, underwood for her fire. From the Forest of Dean 
the king took minerals, underwood, timber, and red and fallow deer. A 
haunch of venison was a gift that money could not buy. Henry III for 
Christmas dinner in 1251 had 430 red deer, 200 fallow deer, 200 roe 
deer, 1300 hares, 450 rabbits, 2100 partridges, 290 pheasants, 395 
swans, 115 cranes, 400 tame pigs, 70 pork brawns, 7000 hens, 120 
peafowl, 80 salmon, and lampreys without number. 

In July 1203, at the height of the crisis in Normandy, King John 
instructed his chief forester, Hugh de Neville, to sell forest privileges “to 
make our profit by selling woods and demising assarts.” The king 
wanted to reward followers with endowments, lands “to raise men from 
the dust.” The mounted knight was a powerful unit of war, terrifying, 
expensive, and ubiquitous. Thus the growth of state power, the ability to 
make war, and complaints against the monarchy arose from the 
enclosing of land, or afforestation. 

J. R. Madicott writes that the principal grievances behind the Magna 
Carta were two: “the malpractices of the sheriff and the extent of the 
forest. . . . Most physical Forests were also commons and had 
common-rights dating from before they had been declared Forests.” In 
1215 there were 143 forests in England. Hence, the demand to 
disafforest in chapter 47 of the Magna Carta. After 1216 few forests were 
enclosed. 

How was the extent of afforestation known? How was the Magna Carta’s 
disafforestation to be accomplished? There were no cartographers, no 
global positioning system, apart from the tramp of human feet in 
solemn perambulations. They perambulated their constitution by 
walking the boundaries, observing each stone, each tree. How was this 
struggle lost to history? We can trace today’s myth of the Magna Carta to 
the English Revolution. 

Edward Coke’s “Fine Fetch” 

Four centuries after 1215, the 17th-century crisis of political legitimacy 
began. English reformers wished to show that they were not innovators 
but rather restorers of ancient and true ways that had been lost after 
1066. From the Tudor autocracy at the beginning of the century to the 
Whig oligarchy at the end, and passing through civil wars among the 
“four kingdoms” and the bourgeois revolution in between—the crisis 
was conducted in terms of the Magna Carta. 

Edward Coke was the hero of the Magna Carta’s chapter 39 and its 
myth-maker. Dismissed as Chief Justice of King’s Bench, imprisoned 
in the Tower, he helped draw up the Petition of Right of 1628. Charles I 
heard he was working on a book on the Magna Carta. As Coke lay dying 
his chambers were ransacked and his manuscripts confiscated. At the 
beginning of the English Revolution, Parliament ordered their recovery, 
and they were published posthumously in 1642. 

Coke’s interpretations focused on chapter 39, which is declaratory of the 
old law of England, ancient and fundamental. He linked it to Parliament 
and “due process of law.” He found that it prohibited torture. It upheld 
habeas corpus. It provided trial by jury. It established rule by law. 

Royalists and absolutists did not agree. Robert Filmer and Thomas 
Hobbes rejected customary law, arguing that law is the command of the 
sovereign, nothing more, nothing less. In 1667 Lord Chief Justice 
Keeling aroused the wrath of the Commons by responding to a member 
of a Somerset jury who referred to the Magna Carta, “Magna Farta, what 
ado with this have we?” President George W. Bush made a similar 
noise when he told the National Security Council in January 2003, “I do 
not need to explain why I say things. That’s the interesting thing about 
being President.” 

Part of the English Revolution was precisely to make sovereignty 
“explain things.” Coke did so by a new narrative. “Sir Edward Coke doth 
not care to hear of the Feudal Law as it was in use at this time, and hath 
a fine fetch to play off the Great Charter and interpret it by his Modern-law 
 . .” Anyone familiar with wave mechanics knows that the “fetch” of a 
wave derives its power from the distance it has traveled, not from the 
particular matter that it happens at any one time to be passing through. 
The derivation of habeas corpus, trial by jury, rule of law, and the 
prohibition of torture from chapter 39 is a fetch that has been dear to 
Western governments since the 17th century. It restrains the summit of 
power as well as its lesser heights, from dog-catcher to 
commander-in-chief, from the chatelain of the high keep to the foreman 
on the shop floor, from the pope to the local D.A., from the elementary 
school principal to the living-room bully. Yet the figurative language of 
this interpretation hides the actualities of the labor process, and it 
removes the human agency of those workers; the social and economic 
realities acknowledged in the Magna Carta are totally occluded. 

Coke’s 17th-century interpretation shaped the Magna Carta’s global 
reach. It took on an Atlantic dimension after Coke helped to draft the 
royal charter of the Virginia Company in 1606. Other royal charters 
establishing English colonies in America also alluded to the Magna 
Carta (Massachusetts in 1629, Maryland in 1632, Maine in 1639, 
Connecticut in 1662, Rhode Island in 1663). While those colonists used 
the Magna Carta against the authority of the crown (New York’s dispute 
of 1680, James Otis in 1764), they ignored its forest provisions 
altogether when it came to their own intrusions into the woodlands of 
the indigenous peoples. With Coke’s interpretation the Magna Carta 
became an instrument of both colonial independence and acquisitive 
empire. 

The Levellers Embody the Magna Carta 

Coke’s chapter 39 as it spread through the empire can be contrasted 
with its interpretation by commoners in the 17th century. As the early 
Stuarts sought to intensify their exploitation of forest resources during 
the transition to coal, they met objections, not from barons so much as 
from the common people, for the common people were often people 
with rights in the commons. 

In response the Levellers fought for “the right, freedome, safety, and 
well-being of every particular man, woman, and child in England.” They 
argued that Parliament may not act against the fundamental law of the 
land as expressed in the Magna Carta. It became “the Englishman’s 
legall birthright and inheritance.” “Free-Born John” Lilburne based his 
arguments on the Magna Carta; he said “the liberty of the whole English 
nation” is in clause 39. 

Even those who were not commoners in this strict meaning but who 
had been more or less fully expropriated to become proletarians in the 
towns and port listened to the radicalizing of the Magna Carta. In 
desperate times anything seemed possible. In Lincolnshire people 
opposing encroachments on rights of commons emphasized the law of 
the land as the basis of their claim.7 

In July 1649 Winstanley appealed to the House of Commons, “Desiring 
their answer: whether the Common People shall have the quiet 
enjoyment of the Commons and Waste Lands.” “The best lawes that 
England hath, [viz., the Magna Carta] were got by our Forefathers 
importunate petitioning unto the kings that still were their Task-masters; 
and yet these best laws are yoaks and manicles, tying one sort of 
people to be slaves to another; Clergy and Gentry have got their 
freedom, but the common people still are, and have been left servants 
to work for them.”8 

Could the Magna Carta help the common people? Let’s return to its 
origins. 

The Peace of September 11 and the Widow’s Estovers 

On leaving Runnymede, scarcely had the mud dried on his boots when 
King John resumed war upon the barons and began to plot with the 
pope against them. Innocent III vacated the Charter as null and void and 
prohibited the king from observing it. As far as the pope was concerned, 
the barons of England were as bad as the Moslem Saracens 
themselves. Louis, later to become king of France, invaded England at 
the barons’ invitation in May 1216. King John died in October. Between 
the death rattle of John and the minority of the new king, Henry III, only 
nine years old, the fate of the Magna Carta—indeed its 
whereabouts—was uncertain. 

William Blackstone tells us that it was not until September 11, 1217, that 
France and England made peace, at an island in the river Thames near 
Kingston. Barefoot and shirtless, Louis was required to renounce all 
claim to the English throne and to restore the charters of liberties 
granted by King John. Not only did the treaty put an end to two years of 
civil war, but as the Victorian constitutional historian, William Stubbs, 
concluded, the treaty was “in practical importance, scarcely inferior to 
the charter itself.” While the charter served a treaty-like function during 
the baronial wars, its reissue in time of peace established it as a basis 
of government. 

The survival of the original Magna Carta of King John thus depended on 
the peace of September 11, 1217. This is not all. In the following days 
the new king granted a new charter of liberties, based on the 1215 
charter and “also a charter of the forest,” drafted in 1217. Unlike the 
1215 version known to us, the final form of the Magna Carta was in fact 
comprised of two charters. 

The charters were reissued together in 1225.9 They were published by 
being read aloud four times a year: at the feast of St. Michael’s, 
Christmas, Easter, and at the feast of St. John’s. They were read in Latin 
certainly, in French translation probably, and in English possibly. 
William McKechnie states, “it marked the final form assumed by the 
Magna Carta.” 

By 1297 Edward I established the charters and directed that they 
become the common law of the land. Blackstone, who published a 
scholar’s edition of the charters in 1759 while working at Oxford 
University Press, writes, “There is no transaction in the antient part of 
our English history more interesting and important, than the rise and 
progress, the gradual mutation, and final establishment of the charters 
of liberties.” By the beginning of the 14th century, he concludes, “the final 
and complete establishment of the two charters, of liberties and of the 
forest, which from their first concession under King John A.D. 1215, had 
been often endangered, and undergone many mutations, for the space 
of near a century; but were now fixed upon an eternal basis.” In 
transition from treaty to law, there were notable changes. One of the 
mutations, occurring between 1215 and 1217, modified chapter seven, 
considerably expanding widows’ rights by adding the clause: 

 . . and she shall have meanwhile her reasonable estover of common.” 

What is “estover of common”? Coke explains, “When estovers are 
restrained to woods, it signifieth housebote, hedgebote, and 
ploughbote.” Botes do not imply a common wood; they could as well 
appertain to field or hedgerow. Firebote and hedgebote were quotas for 
fuel and fencing; housebote, cartbote, rights for building and equipment. 
Coke goes on to say estovers signify sustenance, aliment, or 
nourishment. Technically, then, “estovers” refers to customary 
gatherings from the woods; often they refer to subsistence generally. 
“True Freedom,” Winstanley would write, “lies where a man receives his 
nourishment and preservation.” The International Covenant on 
Economic, Social and Cultural Rights declares, “In no case may a 
people be deprived of its own means of subsistence.” 

What happened between 1215 and 1217 to cause this clause to be 
inserted in chapter seven? The answer is war. France invaded. A 
political crusade was declared against England in 1216–1217. The Fifth 
Crusade against the Saracens had begun (Ibn Al-Athir wrote, “The entire 
Muslim world, men and territories, seemed likely at this moment to be 
lost to the East [the Tartars] on the one hand and the West [the Franks] 
on the other”).10 

War produces widows; widows suffer economic hardship. The 
“mutation” of chapter 7 between 1215 and 1217 reflected this reality.11 
Similarly the 1217 Forest Charter also acknowledged the common 
rights of the poor. Inasmuch as it protected the commons it was also, 
and to that extent, a prophylaxis from terror. The Assize of Woodstock 
(1184) permitted the poor to have their estovers, but only under stringent 
rules. McKechnie comments: “If the rich suffered injury in their property, 
the poor suffered in a more pungent way: stern laws prevented them 
from supplying three of their primary needs; food, firewood, and building 
materials.” In Stratford, a warden took a quarter of wheat “for their having 
paling for their corn and for collecting dead wood for their fuel in the 
demesne wood of the lord king.” Sometimes a local tyrant established a 
veritable reign of terror. Blackstone wrote that the Forest Charter 
“provided for a reduction in the severity of forest penalties and for the 
maintenance of the rights of those who had private woods within the 
forest; they were to enjoy full rights of pasture and fuel.” Consider some 
of its provisions: 

Chapter One: And if he made his own wood forest it shall remain forest 
saving common of pasture and other things in that forest to those who 
were accustomed to have them previously. 

Chapter Nine: Every free man shall agist his wood in the forest as he 
wishes and have his pannage. 

Chapter 13: Every free man shall have the eyries of hawks, sparrow 
hawks, falcons, eagles and herons in his woods, and likewise honey 
found in his woods. 

Chapter 14: [Foresters-in-fee may exact chiminage on carts in his 
bailiwick, or upon horses, of merchants who come to buy wood, timber, 
bark, or charcoal “to take them elsewhere to sell where they wish.”] 
Those, on the other hand, who carry wood, bark, or charcoal on their 
backs for sale, although they get their living by it, shall not in future pay 
chiminage. 

Suppose, first, we treated these provisions as things of potential value 
despite feudal appearance. We can define chiminage as the 
transportation cost of taking energy sources to the consumer. Herbage 
is common of pasture. Pannage is the right to let the pigs in to get the 
acorns and beech-mast. Agistment permits livestock to roam in the 
forest. The Magna Carta is not a manifesto of the medieval commons, 
yet it refers to substantive customs of the wooded realm that supported 
a material culture.12 

The widow’s estovers of common is thus the phrase that leads us to a 
completely different world in which we must use a subsistence 
perspective to understand the forces of production and the relations of 
reproduction. 


-- 
Monica Narula
Sarai: The New Media Initiative
29 Rajpur Road
Delhi 110 054