Renewable Resource Policy: The Legal-Institutional Foundations

By David A. Adams

Renewable Resource Policy is a comprehensive volume covering the history, laws, and important national policies that affect renewable resource management. The author traces the history of renewable natural resource policy and management in the United States, describes the major federal agencies and their functions, and examines the evolution of the primary resource policy areas.

The book provides valuable insight into the often neglected legal, administrative, and bureaucratic aspect of natural resource management. It is a definitive and essential source of information covering all facets of renewable resource policy that brings together a remarkable range of information in a coherent, integrated form.

• Language: English
• Publisher: Island Press
• Release date: Apr 10, 2013
• ISBN: 9781610913102

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CHAPTER I

Ancient Foundations

As precedent for natural resource actions we often cite recent court cases, legislation of the environmental decade of the 1970s, or the awareness of profligacy that arose in the mid- to late 1800s. But all these are merely the last stages in an evolution that dates to the dawn of history. The ethics that govern our use of natural resources are as much a part of our heritage as those that govern work, charity toward the unfortunate, and tolerance of those of different race or religious persuasion. These roots are not buried in the past; they form the foundation of modern legislation and frequently are referenced in contemporary legal decisions.

This chapter discusses three sources of our legal heritage: the Judeo-Christian background of most Americans, the Roman Code of Justinian, and the Magna Carta of King John. Each has contributed differently; combined, they provide the foundation of our modern legal system.

THE BIBLE

Those who have searched the Bible for a strong conservation or natural resource stewardship ethic have come away largely empty-handed; those seeking reasons for Western civilization’s consumptive attitude toward these resources (White 1967) have had somewhat more success. Authors of the Old Testament were more concerned with chronicling Jewish history and prescribing rules of conduct for the Jewish people, while those of the New Testament concentrated on salvation through Jesus Christ. Abundant natural resources were frequently considered gifts of the Almighty to deserving mankind, whereas scarcity, drought, and plague were attributed to mankind’s transgressions.

God’s intention that mankind was to be separate from and superior to other creatures and the ecosystems that support them is supported by the classic quotation from Genesis:

Then God said Let us make man—someone like ourselves, to be master of all life upon the earth and in the skies and in the seas.

And God blessed them and told them, Multiply and fill the earth and subdue it; you are masters of the fish and birds and all the animals. (Living Bible 1971, Gen. 1:26, 28)

Clearly, God was apart from and superior to the creatures he created. Mankind, created in his image, must be likewise and was directed to exercise dominion over the environment that surrounded him.

Much of the Old Testament emphasizes that natural resources were gifts of God placed on earth for the enjoyment of mankind:

I have given you the seedbearing plants throughout the earth, and all the fruit trees for your food. (Living Bible 1971, Gen. 1:29)

...[T]he Lord God has given us this land. Go and possess it as he told us to. Don’t be afraid! Don’t even doubt! (Deut. 1:21)

And he will love you and bless you and make you into a great nation. He will make you fertile and give fertility to your ground and your animals, so that you will have large crops of grain, grapes, and olives, and great flocks of cattle, sheep, and goats. (Deut. 7:13)

For the Lord your God is bringing you into a good land of brooks, pools, gushing springs, valleys, and hills; it is a land where...nothing is lacking; it is a land where iron is as common as stone, and copper is abundant in the hills. (Deut. 8:7-9)

And if you will carefully obey all of his commandments that I am going to give you today, and if you will love the Lord your God with all your hearts and souls, and will worship him, then he will continue to send both the early and late rains that will produce wonderful crops of grain, grapes for your wine, and olive oil. He will give you lush pastureland for your cattle to graze in, and you yourselves shall have plenty to eat and be fully content.

But beware that your hearts do not turn from God to worship other Gods. For if you do, the anger of the Lord will be hot against you, and he will shut the heavens—there will be no rain and no harvest, and you will quickly perish from the good land the Lord has given you. (Deut. 11:13-17)

Only one passage prescribes limits for man’s exploitive activities:

If a bird’s nest is lying on the ground, or if you spy one in a tree, and there are young ones or eggs in it with the mother in the nest, don’t take the mother with the young. Let her go, and take only the young. The Lord will bless you for it. (Deut. 22:6-7)

Thus the principle of removing the harvestable surplus while maintaining the breeding stock was a part of the Jewish tradition, but no other direct guidance is provided in the Bible. Those who argue that stewardship of natural resources is inherently part of the Judeo-Christian ethic (Berry 1979) do so from the standpoint that to be otherwise would violate other doctrines (e.g., that man must revere God, nature is from God and of God, and any desecration of nature would be an abomination). The argument is persuasive, but documentation is sketchy.

ROMAN LAW

Much of our law regarding wild animals, use of riverbanks and the edge of the sea (riparian and littoral law), admiralty, and the public trust can be traced directly to Roman law. Even today, courts may cite these ancient documents as precedent and basis for their findings.

Justinian’s Codification

The Roman legal system consisted of customs and traditions that were part of Latin culture, laws enacted by popular assemblies, rulings of the courts, and imperial proclamations. From time to time, as origins became hazy and intentions became vague, efforts were made to clarify and codify the body of Roman law (Buckland 1963, 1-12). The most famous of these were a series of codifications issued under the emperor Justinian, who ruled the eastern Roman empire from Byzantium during the early sixth century A.D. (Severy 1983).

The First Code appeared in A.D. 529 and consolidated and updated existing laws. Within a year, work began on a second compilation, and the Digest of Justinian (Pandectae) was issued in A.D. 533. This work collected earlier juristic writings and laws in a systematic arrangement and contained many transcription errors and deliberate changes from the older laws. Two other compilations, the Institutes of Justinian and the Quinquaginta Decisiones, were issued at about the same time. The Institutes was organized into four books covering the law of persons, things (property), obligations, and actions. Quinquaginta Decisiones contained Justinian’s imperial enactments. In A.D. 534, the Codex Repetitae Praelectiones was issued, containing legislation adopted since publication of the First Code and making that document obsolete. The final codification, the Novellae Constitutiones, issued in A.D. 546, contained enactments subsequent to the Codex (Buckland 1963, 39-47). Many inconsistencies exist between and within the documents, as might be expected from manual transcription from diverse sources (and perhaps intentional modification). Thus, one may find citations that both confirm and refute a position, just as one can with contemporary court decisions.

The Law of Things (Property)

Of the foregoing documents, the Digest and the Institutes contain provisions most relevant to natural resource issues. In particular, the law of things (res) provides the foundation for much of the natural resource and environmental law we practice today. The Romans recognized two basic classes of things, res in patrimonio, things that belonged to someone and were therefore private property, and res extra patrimonium, things that were outside private ownership but some kinds of which could be acquired by individuals under certain circumstances (J. Inst. 2.2.1). (Note: Unless otherwise indicated, citations to Justinian’s codification come from Scott’s [1973] translation.)

Res extra patrimonium included public property such as highways, rivers, harbors, and other transportation facilities (res publicae) and theaters, stadia, and universities owned by society in general (res institutiones). They also included common property resources (res communes)—the air, water, and seashore, which were owned by and open to everyone—and those that were owned by no one (res nullius)—either because they were incapable of private ownership, they had not yet been acquired by private interests, or they had been abandoned. This last category contained emergent but unclaimed land, wild animals, and churches, tombs, and cemeteries. The Institutes further distinguished between res extra patrimonium that were held by the central government as a private right (jus privatum) and could be treated as private property (e.g., highways and public buildings) and those that were held in public trust (jus publicum) and could not be conveyed (e.g., seashores and navigable waters) (J. Inst. 2.2.1).

Two methods were provided for private acquisition of res extra patrimonium. Wild animals, unclaimed islands, and other res nullius could be obtained by taking (occupatio) (J. Inst. 2.2.1[12]). Riparian owners could acquire accreted lands by incorporating them into existing ownerships (accessio) (J. Inst. 2.2.1[20]).

Animals

Animals were classified as wild (ferae naturae, literally of a wild nature) or domestic (domitae naturae, of a tame nature). The latter were res in patrimonio whether or not they were under the owner’s control. Should ducks, geese, or other domestic fowl escape and damage adjacent property, ownership was unchanged and their owner could be held responsible for the damage. Conversely, if escaped fowl were confined by the neighbor, he would have committed a theft (Dig. 41.1.5.6). Animals ferae naturae were owned by no one (res nullius) unless captured, killed, or otherwise prevented from returning to the wild (Buckland 1963, 182, 204-206). Bees and pigeons, animals ferae naturae, were res in patrimonio only so long as they returned to the hive or dovecote (animus revertendi); should they cease doing so they became res nullius and could be acquired by new owners through occupatio (Dig. 41.1.5.5). Prior owners of animals ferae naturae that were lost through escape were not liable for damages caused by the animals, however, for ownership—and thus liability—ceased when the animals escaped (Dig. 41.1.3.2).

Animals ferae naturae were granted the same status on private and public land, but a private landowner could deny access (Dig. 41.1.3.1). Ownership of a wild animal occurred only when it was physically possessed—mortal wounding or temporary restraint apparently did not suffice (Buckland 1963, 204-206). An anecdote from the Digest illustrates many of these provisions:

A wild boar was caught in a trap which you set...and after being caught, I released him, and carried him away....[Have I] taken away your wild boar? [And if I released him] and let him go into the woods, would he still remain your property? What action would be entitled against me?

The answer was...we should first take into consideration [whether the trap were set]...on public or private land; and if on private land, whether or not I did so upon my own or that of another, and if I set it upon that of another, whether I did so with the permission of the owner.

Moreover...was [the boar] caught in such a way that he could not release himself? (Dig. 41.1.55)

If the boar were securely held within a trap, lawfully set on public land, the trapper’s land, or land on which he had permission to trap, and the animal clearly was unable to escape without assistance, the trapper probably would acquire ownership though occupatio. In such a case, unauthorized release would be actionable. If, on the other hand, the trap were set on private land without the landowner’s permission, the acquisition itself would be unlawful; the trapper would never acquire ownership; and no action could ensue. If the boar could have freed himself without assistance, it would never have become the possession of the trapper.

Although many present-day hunting customs award the game to the hunter who has drawn first blood, our law is, as it was in the days of Justinian, that wild animals must be reduced to possession to become private property. In the early 1920s, Dapson and Daly were hunting deer in the same area in Massachusetts. Dapson wounded a deer, but before he could claim it, the deer ran by Daly, who killed it and carried it away. Dapson sued, alleging that he was entitled to the animal, but the state supreme court disagreed:

The controlling principle of the common law is that the huntsman acquires no title to a wild animal by pursuit alone, even though there is wounding, unless the animal is followed up and reduced to occupation, that is to actual possession. (Dapson v. Daly)

(Note: Appendix C contains a complete listing of cases referred to in the text.)

Land

Land could be res in patrimonio or res extra patrimonium. Land above the influence of flooding was generally in private ownership unless dedicated to a public purpose (e.g., highways, which were res publicae). Open navigable waters were clearly outside private ownership, were held in trust as res communes as a public right (jus publicum), and could not become private property (Buckland 1963, 182, 183). The boundary between land and water, the shore or beach, presented a complicated interweaving of private and public interests, as it does today. In this area, our courts lean heavily on precedent and custom inherited from the Romans.

The shore (littus) extended shoreward to the point reached by the highest wave of the sea or the highest winter floods. Such areas were res communes, generally open to all and incapable of private ownership. Structures could be built on the shore, however, provided they were found to be in the public interest and were duly permitted (Buckland 1963, 183):

Although whatever we construct on the public shore or in the sea will belong to us, still, a decree of the Praetor [magistrate] must be obtained to permit this to be done; and, indeed, if anyone should do something of this kind which inconveniences others, he can be prevented by force; for I have no doubt that he who puts up a building will have no right of civil action. (Dig. 41.1.50)

Prior to the Novellae Constitutiones, adjacent landowners could be fined for denying access to the shore, but beach access appears to have been a controversial subject during Justinian’s time, as it is now, and later Roman courts found that

[T]he law which abolishes the common ownership of maritime lands... those situated on the shores of the sea, and compels the owner of such lands to pay damages for forbidding persons to fish thereon, does not seem to us to be just....We hereby decree that everyone shall be the actual owner of his land on the seashore, and that no one shall be permitted to enjoy the advantages thereof without his permission. (Nov. Const. LVI)

Riparian lands (those bordering on rivers) and littoral lands (bordering on tidal shores) changed from privately owned res in patrimonio to publicly owned res communes and vice versa through gradual hydrogeologic processes. A littoral or riparian owner could gain land through accretion (the gradual and imperceptible accumulation of land through natural causes), from dereliction (the recession of the sea or river to expose new ground), or from alluvion (the washing in of sand or soil so as to form new ground). He could lose land through erosion (the gradual and imperceptible loss of land through natural causes [Black 1979, 486]). The precise process might be difficult to define; the essential ingredient was that of a shifting littus due to gradual and natural processes. As the littus moved landward or seaward, so did ownership of the land:

If, however, [the river changes its channel by degrees]...and carries the soil elsewhere, this is acquired under the right of alluvion by the person to whose land it is added.

Moreover, anything which a river adds to our land as alluvium is acquired by us under the Law of Nations...[provided it is] added little by little, so that we cannot perceive the amount which is added at each moment of time. (Dig. 41.1.7.1)

Islands and stream meanders presented special situations. Generally, when a channel broke through the neck of an oxbow, creating an island, ownership of the island remained with the former owner, but the newly created channel reverted to res communes. If an island appeared in the middle of a channel, ownership was apportioned among adjacent riparian owners, but if it were obviously closer to one bank, it became the property of the nearest riparian owner. Islands forming in the ocean were res nullius and became the property of the first claimant.

If a river overflows on one side, and begins to run in a new channel, and afterwards the new channel turns back to the old one, the field which is included between the two channels and forms an island will remain the property of him to whom it formerly belonged. (Dig. 41.1.7.4)

If, however, the stream, having abandoned its natural bed, begins to flow elsewhere, the former bed will belong to those who have land along the bank, in proportion to the extent of the land situated there, and the new bed will come under the same law as the river itself. (Dig. 41.1.7.5)

Where an island is formed in the sea (which rarely happens) it becomes the property of the first occupant for it is considered to belong to no one. Where an island is formed in a river (which takes place very frequently), and it occupies the middle of the stream, it becomes the common property of those who have land near the banks on both sides of the stream in proportion to the extent of the land of each person along the banks. If the island is nearer to one side than the other, it will belong to him alone who has land along that side of the stream. (Dig. 41.1.7.3)

When an island is formed in a stream, it becomes the common property of those who own property along the bank, not undivided, but separated by distinct boundaries; for each one of them will have a right to that portion of it which is opposite to his land on the bank of the stream, just as if a straight line were drawn through the island. (Dig. 41.1.29)

A riparian landowner might lose all his holding due to erosion and cease to exercise any property interest. Subsequently, stream meander or accretion resulting from other causes might restore upland within his prior boundaries. Ownership under such circumstances became extremely difficult to establish. If his upland boundary were itself a natural feature or its location were difficult to reestablish, he probably would be unable to establish any interest in the newly created riparian land. If, on the other hand, his upland boundary were a fixed and well-established landmark, it would also be the seaward boundary of the next landward owner. Under such circumstances, the landward owner could acquire riparian or littoral rights only as far seaward as this fixed boundary, and any additional accretion became the property of him whose holding had previously been eliminated by erosion.

Where the new bed occupies all the land, even though the river may have returned to its former channel, he to whom the land belonged cannot, strictly speaking, assert any right to the bed of the stream, because the land which formerly belonged to him has ceased to be his; having lost its original form; and since he has no adjoining land, he cannot, by reason of neighborhood, be entitled to any part of the abandoned bed. To rigidly observe this rule, however, would be a hardship. (Dig. 41.1.7.5)

Attius had a property adjoining a public road; beyond the road lay a river and the holding of Lucius Titius. The river gradually flowed over and ate away the land lying between the road and the river and made away with the road and then gradually receded and, by alluvion, returned to its former bed. The opinion was that the river having destroyed the land and the public road, the land so destroyed became the property of the man who held the land beyond the river [that is, Lucius Titius]; but later, when the river slowly receded, it took the restored land away from the man who had acquired it and added it to that of the owner beyond the road [that is, Attius], since his land was nearest to the river; but what had been public became no one’s property. And he said further that the road did not prevent the land again exposed, with the recession of the river, on the other side of the road from becoming the property of Attius, since the road itself was part of his land. (Dig. 41.1.38, translated by Mommsen, Krueger, and Watson 1985, 496, 497)

Alluvium restores a field to the state in which it was before the force of a stream entirely removed it. Therefore, if a field which is situated between a public highway and a river is covered with water by the overflow of the stream, whether it is inundated little by little, or not, and it is restored by the same force through the receding of the river, it will belong to its former owner. (Dig. 41.1.30.3)

It is established that alluvium does not exist with reference to land having boundaries. (Dig. 41.1.16)

These citations were among those used by a South Carolina court of appeals in deciding ownership of a tract of littoral land on the border between North Carolina and South Carolina. At one time, the state line was in Little River Inlet, west of Bird Island, which was owned by a North Carolinian. During the early 1900s, the inlet migrated toward South Carolina, extending Bird Island westward across the state line, where the South Carolina portion was granted to a resident of Horry County, South Carolina. Subsequently, the inlet again migrated eastward, eroding away all of Bird Island in South Carolina. By the 1980s, however, the inlet had returned to its approximate 1903 location, reestablishing about 20 acres of land in South Carolina. At this time, the U.S. Army Corps of Engineers proposed to acquire the property as part of an inlet jetty project. The owner of the North Carolina portion of the island claimed the new land in South Carolina under the general principles of accretion, alleging that any prior rights were extinguished by past erosion. Successors to the South Carolina grantee also claimed the land, arguing that they owned the part of Bird Island that extended across the state line, as shown in the original grant, and that the North Carolinian’s land was always bounded on the west by the state line. The appeals court found for the South Carolinian (Woodward v. Price).

Navigation

A number of Roman laws addressed the issue of transportation over public waterways (res publicae). Many of these originated as edicts or interdicts (an order of a magistrate giving rise to further proceedings if disregarded [Buckland 1963, 729]—similar to our court order), which became codified in the Digest. In sum, they protected the public right of navigation and described the navigational servitude attached to riparian property:

Nothing shall be thrown into a public river or deposited on its banks by means of which the landing of merchandise, traffic, or the movement of shipping may be interfered with. (Dig. 43.12.1)

The Praetor does not absolutely prohibit any work being done in a public river, or on the bank of same, but only whatever may interfere with the landing of goods, or navigation. Therefore, this interdict only applies to public rivers which are navigable, and not to any others. (Dig. 43.12.12)

The anchorage and the course of navigation are also considered to be interfered with where the use of the same is interrupted, or rendered more difficult, or diminished, or made less frequent, or entirely destroyed... if anything is done to inconvenience navigation, make it more difficult, or entirely prevent it; there will be cause for the interdict. (Dig. 43.12.15)

I forbid anything to be built in a public river or upon its banks, or anything to be placed in such a river or on its banks, by means of which the water may be caused to flow in a different direction. (Dig. 43.13.1)

One cannot help but be struck with the similarity of these laws and sections 9, 10, and 13 of the River and Harbor Act of 1899 (see chapter 12), which for more than seventy years constituted the federal authority for regulating land use in the coastal zone. (Note: Appendix B contains complete references for all federal statutes cited.)

While Justinian’s Corpus Juris Civilis provided much of the legal foundation for Europe and much of the Western world, it served Romans more as a chronicle of past events than as a model for the future. Rome and the western empire fell prior to publication of the First Code, and the eastern empire became Greek in speech soon after Justinian’s time (Severy 1983).

The Romans provided much of our legal background for management of natural resources—particularly in the areas of public trust and admiralty law. But most of our basis for criminal law and civil rights came from another source—our Anglo-Saxon heritage.

MAGNA CARTA

Events preceding creation of the Magna Carta and its companion document, the Carta de Foresta, illustrate relationships between natural resource management and civil rights in medieval England. Conditions in the Royal Forests precipitated, at least in part, issuance of both documents, whose greatest value to succeeding generations was in defining and protecting individual rights.

Prelude

For six centuries following the decline of the Roman Empire, barbarians periodically overran England. Feudal systems came and went; life was tenuous, peace and security fleeting (Swindler 1965, 9). Real property and wildlife were possessions of the ruler, and use was a privilege bestowed on but a few. The right to hunt was precious, and royalty treated transgressions as serious crimes. The Danish king Canute (A.D. 1018) declared:

I will and grant that each one shall be worthy of such venery [hunting places] as he by hunting can take either in the plains or in the woods within his fee or dominion, but each man shall abstain from my venerie in every place, where I will that my beasts shall have firm peace and quietness, upon pain to forfeit as much as a man may forfeit. (Manwood [1615] 1976, 30)

Thus did Canute confirm a landowner’s right to hunt on his own land, deny all men the right to hunt on the king’s land, and declare wildlife on such lands to be my beasts. No longer were wild animals res nullius, the property of no one until possessed. They were now the property of the landowner, who received land through grant from the sovereign. Hunting (particularly big game hunting and falconry) became the coveted, protected property of the few, and one must wonder just how far Canute may have gone in requiring a man to forfeit as much as a man may forfeit.

The Royal Forests

The concept of forests as preserves was neither new nor unique to feudal England. The word forest is derived from ferae, wild, and statio, to remain. Forests were therefore areas that were to remain wild and had little to do with the production of trees. Although the concept dates at least to Philip of Macedonia, who maintained forests for hunting and other recreation, it gained its greatest notoriety in England during the Middle Ages.

The defeat of Harold (a Saxon) by William the Conqueror (a Norman) at the Battle of Hastings in A.D. 1066 marked the beginning of the Anglo-Saxon state and societal structure. William decreed a national levy, declared all freeholds forfeit (although some few surviving lords were permitted to redeem their lands), and distributed the formerly Saxon land to Normans. Thus all landholders became tenants, holding their estates at the pleasure of the king, vowing to bear...faith against all men, and to supply men and provisions to the king. In return, the tenant received protection for himself and his landholdings (Swindler 1965, 10, 11).

Land brought wealth and power, but fewer than 10 percent of the English people were landed. These composed the nobility, extending from crown tenants (barons) through mesne (intermediate) lords to knights and minor nobles. Peasants, churls, villeins, and other nonlanded people composed the remainder of England’s 1.5 million people (during William’s reign). This group held no real property, had few rights, and lived under domination of the nobility.

Prior to the Norman Conquest, Saxon kings had hunting preserves scattered throughout England, but the concept of Royal Forests with their unique judicial system was a distinctly Norman invention (Young 1979, 2). The Royal Forests were a special class of land. Originally (under William) they consisted of unoccupied wastelands scattered irregularly throughout England (McKechnie 1958, 416), and covered about one-third of the country. They were a legal, rather than a biophysical, entity and could include moors (open, rolling, infertile land), bogs, heaths (level, uncultivated, poorly drained land), downs (treeless hills), plowed lands, fields, and even villages and owned lands:

[A] Forest is a Certain Territory of wooded grounds and fruitful pastures, privileged for wild beasts and fowls of the Forest, Chase, and Warren, to rest and abide in, in the safe protection of the king, for his princely delight and pleasure...and therefore a Forest doth chiefly consist of four things...of vert, venison, particular laws and privileges, and of certain meet [suitable] officers appointed for that purpose. (Manwood [1615] 1976, 18)

Royal Forests were the highest class of game preserve. They were the exclusive hunting territory of royalty and were designed to protect the royal game—red deer (hart and hind), fallow deer (buck and doe), roe deer (roe), boar, and wolf (Manwood [1615] 1976, 19). Other preserves were maintained by lesser nobles. Chases were unenclosed former Royal Forests granted to individuals, who maintained exclusive hunting rights. Parks were enclosed areas containing animals, and warrens were privately owned game lands (sometimes royal lands) on which royal game and lesser wildlife were protected (McKechnie 1958, 422, 423). Characteristic animals of the chase were the buck, doe, fox, martin, and roe; those of the warren were the hare, coney, pheasant, and partridge (Manwood [1615] 1976, 20). All such lands were protected by common-law remedies against trespass and theft, but only the Royal Forests were governed by the Forest laws (McKechnie 1958, 422, 423).

The vert, then, was the woody vegetation and food (i.e., the habitat) required to maintain game populations. The venison was the animals of the forest, chase, or warren; the particular laws and privileges were the Forest laws; and the meet officers appointed were the Forest officers.

The Forest Laws and Forest Officers

The Forest laws constituted a special legal system, distinct from and more restrictive than English common law. Transgressors were tried in special Forest courts, which all persons living within two leagues of the Forest were required to attend (Young 1979, 22). At their highest level (eyres), the courts were held infrequently. Sometimes as many as twenty-five years passed between eyres; juries were not utilized; and trials consisted of little more than presentation of the charges and assessment of penalties (Young 1979, 89). Although much has been made of the harsh penalties for crimes against the venison, the number of cases tried in each eyre was usually very small—either unlawful deer hunting was rare (which seems unlikely) or the foresters and verderers (and the entire forest judicial system) were inefficient (Young 1979, 99). Crimes against the vert were much more common, with unlawful clearing for agriculture (assarts), construction of houses and other structures (purprestures), and cutting of wood being the most common (Young 1979, 108, 109). Fines were assessed more on the ability to pay than on the nature of the offense, with larger amounts assessed barons, clergy, and Jews—but those of lower social rank tended to appear in court more often (Young 1979, 104, 108).

The Forests were managed by a hierarchy of paid and unpaid officers. Each Forest was in charge of a justiciar (chief forester), under whom worked professional wardens (supervisors) and foresters (gamekeepers). A separate system of magistrates consisted of verderers (who reported conditions in the Forests to the king), regarders (twelve knights who inspected conditions every three years), and agistors (who enforced grazing regulations). Forest officers frequently paid for the right to hold office (Young 1979, 14); each officer was dependent upon his superiors (and ultimately to the king) for job security (Young 1979, 51); many unpaid foresters lived upon the country; and graft and bribery were rampant (McKechnie 1958, 418).

A few examples illustrate the severity of the Forest laws:

• [T]he Killing of any wild beast within the forest was punishable by the King at his will and pleasure...: and therefore the King might have punished a man for killing a Hare, or a Fox, or a Martin, or any other beast of the Forest, before the granting of the great charter of the Forest, even with the loss of life, or the loss of an arm (Manwood [1615] 1976, 47, 48).

• Lands could be added to the Royal Forests by royal proclamation (McKechnie 1958, 424); few were given back.

• In some cases, barons could kill one or two royal game while passing through a Forest if they did so in sight of a forester or after blowing a horn (McKechnie 1958, 425).

• [B]y the Laws of the Forest, no man may cut down his woods, nor destroy any coverts, within the Forest, without the view of a Forester and license of the Lord chief justice in Eyre of the Forest (Manwood [1615] 1976, 60).

• In one instance, hedges were ordered burned and ditches leveled, so that animals [boar] could feed on crops (McKechnie 1958, 416).

• Freeholders within a Forest could not clear their lands, nor plough wastelands, nor root out trees, nor build a pond or mill, nor enclose a space with a hedge (for Forests were unenclosed), nor cut a tree or lop off limbs without permission (and payment) (McKechnie 1958, 425).

• When a hare was found dead, twenty men of four townships were assembled and determined that it died of disease, but the townships were fined because no culprit was identified. When a hart was found dead, the whole town was seized by the king (McKechnie 1958, 428). No one living near a Forest could keep bows and arrows, nor could one own large dogs (mastiffs or greyhounds) near a Forest unless the dogs were lawed—had their knees cut or toenails removed to impair their running ability (McKechnie 1958, 427).

• [N]o man may hawk or hunt in the Forest, even on his own land, except Earls, Barons, and Noblemen of the Realm, being therefore licensed or authorized by the King or his Justiciar in Eyre (Manwood [1615] 1976, 124).

• During fence month (thirty-one days beginning fifteen days before midsummer), all livestock in the Forest were required to be confined; swine, sheep, or goats found in the Forest were confiscated and became the king’s property; persons could not go wandering up and down in the Forest nor drive cattle through the Forest for fear of troubling or disquieting of the wild beasts in the time of their fawning (Manwood [1516] 1976, 92).

• [T]he Assize of Woodstock had provided for physical punishment (probably the death penalty) only for the third offense...[whereas] Richard’s Assize of 1198 set the penalty for killing deer as mutilation by removal of the offender’s eyes and testicles (Young 1979, 30).

The Forest laws were intended to protect both the vert and the venison, and special provisions governed excessive timbering and reforestation:

But if woods are so severely cut that a man, standing on the half-buried stump of an oak or other tree, can see five other trees cut down round about him, that is regarded as waste, which is short for wasted. Such an offence, even in a man’s own woods, is considered so serious, that he can in no way be quit of it by his session at the Exchequer, but must all the more suffer a money penalty proportionate to his means. (Dialogus de Scaccario, 61, cited in Young 1979, 35)

Fines collected at the infrequent Forest eyres were important sources of royal income, but the amounts collected from defendants were frequently far less than anticipated because some are dead, some are fugitives, and some have nothing (Young 1979, 39).

Enactment

During the 150 years between the Battle of Hastings and the creation of the Magna Carta, increasing conflict developed between the kings’ desire to protect their hunting rights and freeholders’ efforts to make their lands more profitable. Originally, the Royal Forests consisted largely of vacant wastelands, but as development pressures intensified and habitat for big game diminished in quality and quantity, successive monarchs found it necessary (or desirable) to designate more and more land as Royal Forests. In addition to nonarable lands, these permanent additions included fields, pastures, and even entire villages. In such areas, freeholds continued to exist in theory, but use was vastly restricted through imposition of the Forest laws.

Kings used another ploy to reserve lowlands along rivers. These areas supported waterfowl and other game of interest to nobility and were particularly valuable for falconry. They, and access across the rivers, were also important from the standpoint of defense. Such lands often were placed in defensum. Access was limited or prohibited, and nearby residents were required to build and maintain bridges. This practice also proliferated until much English bottomland was in defensum and became additional royal game lands (but not Royal Forests) (Swindler 1965, 296).

The Royal Forests were more than mere game preserves; they were also important sources of income. The king could grant a right of chase (which established a private forest), of warren (control over the hunting of animals other than beasts of the Forest), or of common (pasturage of domestic animals); the right to develop assarts (cleared and cultivated areas) (Young 1979, 46, 47); and other privileges. He could collect rent from the cutting and sale of wood, range for pigs (pannage), operation of cattle farms (vaccaries), and the production of iron, hides, grain, salt, and peat (Young 1979, 55-58). There were also fees for carts and wagons using roads though the Forests (cheminage), and for use of windfallen timber, hay, nuts, and firewood (Young 1979, 115)—and for almost everything else that could be produced in the Forest. During the reigns of Richard and John, sale of privileges within the Forests and of the Forests themselves became particularly profitable, and large areas of Royal Forest were disafforested (Young 1979, 20).

By the early thirteenth century, expansion of the Forests and curtailment of individual rights had become critical issues throughout England. Diversion of resources to support the Crusades and other foreign wars, coupled with a high rate of inflation, had depressed the economy; adultery and bastardy were considered only incidents of the age, and graft and bribery were commonplace. On August 25, 1214, Archbishop Stephen Langton told a gathering of nobles at St. Paul’s Church that a charter of Henry the first of England [successor to William the Conqueror] has just now been found by which you may, if you wish it, recall your lost rights and former condition. Armed rebellion followed and raged for almost a year. In early June 1215, King John sent word to the barons that he was ready to come to terms, and a meeting was arranged. On June 15, 1215, the king and the barons met on the south bank of the Thames River, in a meadow called Runnymede (Swindler 1965, 71-79).

Considerable confusion surrounds what happened that day and during the ten years prior to issuance of the Great Charter of 1225. Articles were agreed upon during the first day of the meeting, and an agreement was sealed by both parties four days later (June 19). Objections from the pope caused rejection of the agreement sixty-six days after its enactment, and it was reissued in 1216 with changes to overcome the papal objections. In 1217, two documents emerged: the Carta de Foresta contained revisions to the Forest law, and the more comprehensive Magna Carta de Libertatibus guaranteed civil rights of the subjects. It was not until 1225 that the definitive Great Charter was issued. Any or all of the foregoing documents have become known as the Magna Carta, despite differences in the various versions and omission of most amendments to the Forest law from both the Magna Carta de Libertatibus and the Great Charter of 1225.

Provisions of the Great Charter of 1225

The Great Charter’s most significant contribution to the body of law affecting natural resources was its declaration of the civil rights to which all freemen were entitled. At the time of its enactment, these rights pertained only to freemen—the less than 10 percent of the population that held land. In time, application broadened to apply to all English subjects, including those who settled in the New World. These are the precedents for determining the limits of government and the liberties of the individual (which we still debate today).

While most provisions pertaining to forests and other natural resources appear in the Carta de Foresta, a few provisions of the Great Charter do affect navigation and land use.

Liberties of the Subject (Article 1)

First, we have granted to God, and by this our present Charter we have confirmed, for us and our heirs forever, that the English Church shall be free, and shall have all her rights entire and her liberties inviolate; we have also granted to all freemen of our kingdom, for us and ours forever, all the liberties underwritten, to be had and held by them and their heirs, of us and our heirs, for ever. (Swindler 1965, 250)

For clerics, this article ensured the right to trial by clerical, rather than laic, court and preservation of church property following death of the clergyman in charge. For freemen, it preserved the liberties of the subject. This principle states that a subject is free to speak or act as he chooses, providing that he violates no law nor transgresses the rights of others; public authorities, including the Crown, however, may do only what is authorized by some rule of common law or statute.

Just Punishment (Article 14)

A freeman shall not be amerced for a small offence, except in proportion to the measure of the offence; and for a great offence he shall be fined in proportion to the magnitude of the offence, saving his countenance; and none of the above fines shall be imposed except by the oaths of honest and lawful men of the neighborhood. Earls and barons shall be amerced only by their peers, and only in proportion to their offence. (Swindler 1965, 291)

Prior to enactment of this provision, freemen could lose all their property to satisfy a small debt or crime. Subsequently, cruel and unusual punishments were forbidden, and trials were conducted and penalties assessed by local courts. Still, rights were class privileges, and only freemen were entitled to this protection. Only gradually did they come to apply to the vast unlanded majority of Englishmen.

Due Process (Article 29)

No freeman shall be taken or imprisoned or disseised of any freehold or liberties, or free customs, or outlawed or banished, or in any other way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land. To no one will we sell, to no one will we deny, or delay right or justice. (Swindler 1965, 316, 317)

This, the most famous provision of the Magna Carta, ensured for freemen the rights of due process and equal protection. The former grew to encompass the rights of notice, opportunity to be heard, and defense in an orderly proceeding and the ability to present evidence and rebut opposing witnesses in open court that we enjoy today (Black 1979, 449). The latter prohibited prejudicial treatment resulting from social or economic status or political leanings.

Riverbanks In Defensum (Articles 15 and 16)

No town nor freeman shall be distrained to make bridges at riverbanks, except those who were obliged to do so of old and by right. (Swindler 1965, 295)

No riverbanks shall be defended henceforth, except those which were in defense in the time of King Henry our grandfather, by the same places and in the same bounds as they were wont to be in his time. (Swindler 1965, 295, 296)

Correcting some of the injustice perpetrated in the name of national security and implementing provisions discovered by Archbishop Langton, these articles reduced the size of the kings’ hunting preserves outside the Royal Forests. They returned all lands placed in defensum during the approximately 100-year period since the reign of King Henry I and lifted the requirement that citizens build and maintain bridges in such areas.

Hazards to Navigation (Article 23)

All the fishweirs in the Thames and the Medway, and throughout all England, shall be removed forthwith, except those along the coast. (Swindler 1965, 307)

As the land became more densely settled and river commerce became more important, use conflicts occurred between fishermen and vessels. Weirs—fixed fishing devices consisting of walls (leads) and traps (hearts or pounds) of stones, brush, or netting—in navigable waters encroached upon channels and created hazards to navigation. This provision recognized the conflict and resolved it in favor of the paramount navigational servitude.

Provisions of the Magna Carta and Carta de Foresta Relating to the Forests

Provisions of the Magna Carta and Carta de Foresta addressed injustices contained within the special set of Forest laws and those committed by Forest officers. Few of them are reflected in modern law; they do, however, illustrate the depth of concern over administration of the Royal Forests and the seriousness with which medieval England treated violations of hunting laws.

Attendance at Forest Court (Magna Carta, Article 44)

Men who dwell outside the forest shall not henceforth come before our Justiciars of the forest [chief foresters), on general summons, unless they are impleaded or are sureties for any person or persons who are attached on account of the forest. (Swindler 1965, 327, 328)

Previously, persons living in and around the Royal Forests were required to attend periodic Forest courts whether they were parties to the proceedings or not. This requirement imposed a severe hardship upon the citizenry, forcing them from work and family obligations with no compensation. This article brought relief, limiting required attendance to those who were