Ancient Perceptions

Documented Roman law provides a tangible historical basis for the existence of a fluid concept of access (Salway 1981). Pre-existing legal systems

persisted under the Roman occupation giving everyone a right to the air, running water, the sea and the seashore (Bonyhady 1987: 3-4). Highways, rivers, riverbanks and harbours were possessions of the state but open to use by the public. Territory was determined by natural factors such as rivers, valleys and woods. In the waning years of Roman Britain, ownership of land became increasingly concentrated in absentee landlords. Whilst this

concentration implied a greater potential for conflict, in practice administration of these properties was ad-hoc. With the final collapse of the Roman Empire, a series of heritable kingdoms and the Christian church, in the form of the monasteries, filled the economic and administrative vacuum (Davies 1909). Up to this point in history, it can be argued that foraging, at least for plants, remained unfettered owing to the fact that much of the land accessed for this purpose had not yet been reduced to ownership and the population remained sufficiently low relative to resources.

However, with the coming of the Saxons, a complex, hierarchical delineation of legal rights slowly emerged, as evidenced in the laws of King Aethelberht c. 600 (Higham 1995). The emergent landed aristocracy began to view their property ownership as an absolute and natural right24. By the 600s, the nobility had enclosed a sizeable amount of former Roman lands in a system of hedging and defensive battlements (Salway 1981). Nevertheless, England remained covered by relatively large areas of virgin forest and, with

24 _{In this context, the meaning of “natural right” would be that later enumerated by John Locke in “Of} Property”, Chapter V, Sec. 27. This can be accessed at http://www.constitution.org/jl/2ndtr05.txt.

74 around one million inhabitants, population pressure was only just beginning to exert an influence over cultivated lands. Where land was of marginal value, the landowner took little interest in it. Rather, only parcels with direct value to the holder were factored in law. According to Higham (1995), the hide was “the fundamental measure of that upward flow of goods which characterised relations between the unfree classes and their masters in early England.” From the laws of King Ine and the Rectitudes Singularum Personarum25, it is clear that the nobility expected an enormous amount of produce from these lands, but with a few exceptions, this produce was farmed produce – not foraged produce (Attenborough 1922; Hagen 1995; Lemanski 2005). Nevertheless, wild foods including pignuts, wild herbs, nettles, seaweeds, fungi, hawthorn buds, dandelion, rocket, wood sorrel and a wide variety of fruits and nuts have all been recorded in Anglo-Saxon cooking (Hagen 1995). Hagen (1995: 35) states that whilst some of the plants mentioned in the

Anglo-Saxon leechdoms “were gathered from the wild, the likelihood is that a number of them were cultivated.”

The early English law codes focused on the interests of the king and the more powerful in society, and consequently, the legal environment

surrounding foraging is hard to assess directly. According to Higham (1995), the ‘unfree’ underclass was defined in law basically by its exclusion from access to law, though the law may still have been indirectly applicable to the rustici paupere. Therefore, with the exception of gathering wood, the early English law codes do not explicitly cover foraging by people (Attenborough

75 1922). Rather, the focus is on the foraging by animals and livestock26.

Stenton remarks that the early charters delineated the quality of land for the plough-beasts: sheep were granted pasturage on the marshes and pigs were given woodland reserves as swine-pasturage (Stenton 1985: 282).

A perusal of the charters and place names indicates that marginal woodlands were often owned in common. This is indicated by the place- names that referred to various tribes or “folks” (Stenton 1985: 283). They were used “in accordance with their ancient customs” (Stenton 1985: 283). Beyond this distinction, the forests were essentially places outside the reach of the law making foraging by implication permissible depending upon the custom and enforcement of the local inhabitants. According to Stenton (1985: 684), local courts enforced custom and the thegns and peasants of the shire were thus central to the operation of the local law. The system worked well, and to a large extent survived the Norman Conquest.

The Norman invasion for the most part retained existing approaches to property but consolidated the rights and privileges of ownership in an

hierarchical feudal nobility. The resultant feudal system of land management evolved from the absolute power of the feudal overlords under William to the enumerated rights and privileges for the lords in the Magna Carta (Poole 1955). William the Conqueror reorganised the local system of justice but retained all pre-existing laws relating to property rights as stated in the

Doomsday book. The Coronation Charter or Charter of Liberties of William’s

26 _{Concluded after a full review of the Laws of Ine in F.L. Attenborough (1922) The Laws of the}

Earliest English Kings (Accessed through Google Books on 11 October 2008). Sections 43 and 44 discuss the fines to be paid for felling trees in a wood by fire and axe. Destroying by fire was a much more expensive activity, as fire is “a thief” (meaning it can spread) but an axe is merely “an informer”. Also, trees that could shelter 30 swine were also highly valued. No mention is made of any other plant life. See also Rectitudines Singularum Personarum, as translated by S.J. Lemanski (2005), last accessed 24 September 2011, 12:00 pm.

76 fourth son, Henry I, delineated numerous specific property rights for

individuals and declared the King’s ownership of all of the forests. This consolidation of rights and privileges is, according to Dietz (1965), a sign of the growing strength of the feudal nobility that culminated in the Magna Carta in 1215.

As can be seen from the stories of Hereward in Bruneswald and Robin Hood in Sherwood Forest, tracts of lawless forestland still existed. Many communities, much more isolated than those of today, depended upon access to the land to gather food, both for personal consumption but also to sell to earn extra income. Under traditional manorial common of estover (the right to take necessaries from the common), it was not strictly legal to sell foraged food for a profit, yet so long as supply pressures were low, there was likely to be little enforcement against selling the extra berries, wood, bracken or mushrooms that were gathered. Thus, according to Ashley (1973), much of the post-Roman system of laws and customs remained, and in fact were re- exerted via the Charter of the Forest 121727. This complemented the Magna Carta and confirmed that free men retained access to the forestlands to pasture pigs, collect firewood and, by implication, forage for food (See Lemanski 2005).

Customary and unwritten permissive rights – as well as very different conceptions of ownership – meant many foragers did have the benefit of unfettered access to the land. Moreover, in spite of William’s legislation for the protection of his deer and his expansion of the royal forests, the operation of the common law persisted and the taking of plants was not considered a

27 _{Henry III allowed people to take natural produce, including honey and beeswax, from the forest.} This remained law until 1971.

77 crime28. It was not until the Robbing of Orchard’s Act in 1601 that it actually became a crime to steal plants that had been grown for food29. According to Stenton (1985: 684),

The forest courts brought the peasant within their jurisdiction under a new surveillance in the interests of the King’s sport, but left him in all other matters to the familiar justice of shire and hundred

[emphasis added].

In other words, decisions as to the nature and application of the laws affecting peasants’ access was generally left to the local level.

The population continued to grow and the landscape therefore became increasingly nucleated and characterized by open field systems (Jones and Page 2003). In this way, much land was lost to increasing cultivation (Stenton 1985: 684). There is some direct evidence that the peasants suffered: William expanded royal forests and curtailed the traditions of open access to the New Forest (Stenton 1985: 683-84). By the 12th and 13th Centuries, the English landscape was punctuated with a large number of royal forests that were protected by forest law. Hunting was managed and protected through the Forest Courts30, whose rulings were enforced by the Chief Foresters and the wardens. Most offences related to animals but anything that adversely affected the quality of the hunt might also lead to sanction (Turner 1901). Moreover, as population pressures increased, the licensing of assarts – forestland that could be ploughed up with the King’s permission – also increased, thus eliminating accessible foraging land.

28 _{Bl Comm, Vol. 11 at 18; Stukely v. Butler [1615], Hob. 168 at 170, 80 E. 316 at 317; See, also,}

Bonyhady, 200; Halsbury’s Laws of England, 2nd _{Ed., Vol. 9, 508; R. v. Foley [1889] 17 Cox C.C. 142.}

29

43 E. 1, c.7, s.1

78 Consequently, with the increasing enclosure of forest lands as hunting grounds, the granting of assarts and the reorganisation of agricultural lands into fiefdoms, it is difficult to conclude that the typical foraging peasant abroad in post-Norman England was quite as free to exploit the resources of the open countryside as he or she had previously. Moreover, regardless of the actual state of access, by the time Henry de Bracton wrote On the Laws and Customs of England (1256), the English doctrine that all land must have an owner had emerged, meaning that, in theory at least, access could be legally restricted (Hall 1830: 161-162).