Jeffrey Edward Green

The Magna Carta tradition that has been enshrined in Anglo-American law and celebrated in liberal political culture focuses almost exclusively on the events of 1215, when King John faced his disgruntled barons at Runnymede, acknowledged in a written charter limits to the royal prerogative, and in the immensely influential 39th chapter of the document set precedents for what have come to be considered fundamental liberal rights against the state: due process, trial by jury, habeas corpus, and the prohibition against torture. What is much less well known is that two years later, following tumultuous civil war and war with France, the new king, Henry III, only nine years old, in 1217 through his regent reissued the charter, amending it in key respects, and supplemented it with a second charter, the Charter of the Forest, which instantiated substantive rights of subsistence to free men by granting them various privileges within the royal forests. These included the right to have one’s livestock pasture and partake of the “common of herbage” for a specified time in the forest (agistment), the right to have one’s pigs access acorns and beech mast (pannage), and the right to wood for fuel, repairs, and other necessities (estovers). By 1297, Edward I declared both charters part of the common law of England. There was thus not one Great Charter, but two.[1] And if the first grounds our modern notion of human rights, the second stands for the right to access the commons to provide for one’s subsistence.