Mushrooms and the law (1/4)
by Daniel Butler, forager & author
British foraging laws are opaque to put it mildly. This is because until recently very few people gathered more than a few handfuls of elderflowers for homemade wine or autumn berries for jam. As a result, while a great deal of attention was paid to penalising ‘poachers of game and fish’, for centuries legislators and landowners gave little thought to the harvesting of wild plants and fungi.
Nineteenth Century print of edible mushrooms - Image Wellcome Collection.
The basis of foraging law stems from the Carta Foresta (1217) which was enacted two years after the far better-known Magna Carta which is often regarded as the beginning of modern democracy. This is only part-true: it was basically just about the power relationships between the king and his barons. In contrast the Charter of the Forest guaranteed basic rights to freemen on Crown land and to this day it underpins rights such as the freedom to use footpaths, access common land and eight centuries of foraging case law.
It is important to understand that ‘Forests’ in the early Middle Ages didn’t necessarily mean woodland, but the sort of habitat which can still be seen in places such as the New Forest. They are a patchwork of semi-ancient woodland, coppices, heaths and pasture.
This mixture appealed to humans and wildlife alike, setting up conflicts of interest once the hunting-mad Normans arrived in the late 11th century. They designated huge areas of Britain as royal hunting grounds and this led to the imposition of increasingly savage restrictions on access to these Crown playgrounds. Following the upheavals of the Barons Wars in the early 13th century, the King was on the back foot and the Forest Charter went some way to restore the balance. It gave basic rights to the common people living in and around forests. These included the right to collect fallen timber for firewood, gathering wild produce and ‘pannage’ (driving pigs into the woods to fatten on beechmast and acorns).
Fourteenth Century peasants exercising pannage rights - Image from Historic-UK.com
Since then, centuries of common law have basically upheld these rights. Perhaps the most notable example would be footpaths across even the most restricted private estates. Certainly, there were frequent attempts by some landowners to close rights of way by claiming walkers were 'stealing' blackberries or mushrooms. Perhaps surprisingly, however, over the centuries magistrates and judges have generally come down on the side of the dispossessed.
For example, during the 19th century there were two prosecutions of mushroom hunters collecting woodland fungi on private land to sell in local markets. In both cases the magistrates deemed wild produce was ‘an act of God’. In other words, because wild plants and fungi are not planted or tended by the landowner, they cannot belong to them. These decisions were rooted in the Charter of the Forest and over the years similar rulings have resulted in a huge weight of minor case law on the side of the forager even if it is not enshrined in statute.
It leaves an interesting background legislative fog when it comes to the current discernible situation – which will be addressed in next week’s blog.
Read the next blog (Part 2 of 4)
Find out about Welsh foraging workshops with Daniel here
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