Custom, Law and Common RightCustom, Law and Common Right
At the interface between law and agrarian practice we find custom. Custom itself is the interface, since it may be considered both as praxis and as law. Custom’s original lies in praxis; in a treatise on copyhold at the end of the seventeenth century we learn that “customs are to be construed according to vulgar apprehension, because Customs grow generally, and are bred up and brought up amongst the Laygents, therefore are called Vulgares Consuetudines’. For Sir Edward Coke (1641) there were “two pillars” for customs — common usage, and time out of mind. For Carter in Lex Custumaria (1696) the pillars had become four: antiquity, continuance, certainty and reason:
For a Custom taketh beginning and groweth to perfection in this manner. When a reasonable Act once done is found to be good, and beneficial to the People, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by often iteration and multiplication of the Act, it becomes a Custom; and being continued without interruption time out of mind, it obtaineth the force of a Law.
Custom is local, lex loci, and may except the locality from common law, as, for example, in “Borough-English” whereby the younger son might inherit. It is “alleged not in the person, but in the manor” (Fisher): “So Custom lies upon the Land” and “binds the Land” (Carter).11
The land upon which custom lay might be a manor, a parish, a stretch of river, oyster beds in an estuary, a park, mountain grazing, or a larger administrative unity like a forest. At one extreme custom was sharply defined, enforceable at law, and (as at enclosure) was a property: this is the business of the court roll, the manorial courts, the recitations of customs, the survey and of village by-laws. In the middle custom was less exact: it depended on the continual renewal of oral traditions, as in the annual or regular perambulation of the bounds of the parish:
Gervas Knight. . . aged sixty seven yeares and upwards Maketh Oath that ever since he can remember. . . he has known Farming Woods Walk within the Forest of Rockingham. . . and says that ever since he was big enough. . . viz. from about the yeare 1664 until about the yeare 1720 he yearly or every two yeares. . . went with the Vicar and Parishioners of Brigstock to perambulate publickly for the same Parish and thereby make clayme of the Lands thereto belonging and to set forth their bounds. . .22
The perambulation followed the ancient watercourses, the hedges of closes, and at each boundary point a cross or mark was made in the ground.33
Not only the lord’s court but also the church was trustee of the parish memory, and in the early eighteenth century one can still find examples where this trust was vigorously upheld. I have described in Whigs and Hunters the remarkable role as recorder of Will Waterson, the vicar of Winkfield in Windsor Forest.11 The vicar of Richmond led his parishioners in a perambulation which broke down the wall of Richmond Park.22 An equally active part was played by Mr Henry Goode, the rector of Weldon, a parish which intercommoned with several others in the forest of Rockingham and whose rights were disputed by the parish of Brigstock. In 1724 in one of those disputes over timber rights and lops and tops which can be found in all forest areas, there was a formidable encounter in the forest. In Whitsun week the servants of Lord Gowran of Brigstock felled some trees in Farming Woods Walk and the Gowrans sent their tenants with wagons to carry the timber away. “You are very merry”, said a Weldon man: “We will be merry with you.” Shortly afterwards more than two hundred Weldon men and women surged into the forest, armed with hatchets, woodbills, pick hafts and staves, “hallowing. . . in a violent riotous and threatning manner and crying out ‘Cutt the Waggons, Overthrow the Waggons’. . .”, scaring the horses, and carrying off some of the lops and tops. Behind this affray lay further grievances about grazing rights and the impounding by Lord Gowran’s orders of Weldon cattle. A deponent said that the rector of Weldon “did on a Sunday in his desk in Church there preach or read something to his Parishioners there that instigated or encouraged the said Riot, and that on the same day that Riot was committed the Bells in the Steeple there were rung backwards or jangled in order to raise or incite the people. . .”33 Mr Goode continued his campaign twenty years later, with a “Commoner’s Letter to his Brethren in Rockingham Forest”, in which their precedents and rights were rehearsed. The notion of church guardianship was emphasised by a postscript:
N.B. I desire every Parish, that has any Right of Common in the Forest of Rockingham, to lay up two of these Letters in the Parish Chest, which may be a means of instructing their Children, and their Childrens Children, how to preserve their Right in the Forrest for Ages to come.11
Perhaps Henry Goode and Will Waterson strayed a little beyond a perambulation of the bounds of duty. A recommended Exhortation to be preached in Rogation Week had a good deal to say about avoiding contention with neighbouring parishes and turning the other cheek. Nevertheless, explicit commination is visited upon offenders against parish or common rights: “Accursed be he, said Almighty God by Moses, who removeth his neighbour’s doles and marks”:
They do much provoke the wrath of God upon themselves, which use to grind up the doles and marks, which of ancient time were laid for the division of meers and balks in the fields, to bring the owners to their right. They do wickedly, which do turn up the ancient terries of the fields, that old men beforetimes with great pains did tread out; whereby the lords’ records (which be the tenants’ evidence) be perverted and translated sometimes to the disheriting of the right owner, to the oppression of the poor fatherless, or the poor widow.
And if these exhortations are directed mainly at the petty malefactor, moving boundary marks in the night or shaving with his plough a foot off the common balks and walks, yet the sentence of commination was visited also on the rich and the great: “So witnesseth Solomon. The Lord will destroy the house of the proud man: but he will stablish the borders of the widow.” And all farmers were exhorted “to leave behind some ears of corn for the poor gleaners”.22
If the memories of the old, perambulation and exhortation lay towards the centre of custom’s interface between law and praxis, custom passes at the other extreme into areas altogether indistinct — into unwritten beliefs, sociological norms, and usages asserted in practice but never enrolled in any by-law. This area is the most difficult to recover, precisely because it belongs only to practice and to oral tradition. It may by the area most significant for the livelihood of the poor and the marginal people in the village community. Custumals and by-laws should not be taken to be an exhaustive accounting of the actual practice of common right usages, especially where these bear upon the fringe benefits of common, waste, the herbage of lanesides, to the landless inhabitants or the cottager. For these documentary sources are often partisan briefs drawn up by the lord’s steward, or by the substantial landholders on the in-coming of a new lord; or they are the outcome of bargaining and compromise between several propertied parties in the manorial court, in which the cottager or the landless had no voice on the homage. As one learned legal antiquary noted,
The Entries which are found in the manorial Books or on Manorial Court Rolls, kept in the hands of the Lord’s Steward, and purporting to set out the bounds of manors are liable to great suspicion. . . They are always made by Parties having a positive interest in gaining the greatest extent of property possible.11
Other rights were of a nature that could never be brought to trial or proved. For example, a King’s Bench affidavit of 1721 concerns a woman gleaner who was beaten and driven from the field in Hope-under-Dynemore, Herefordshire. The farmer, in defence, said he “would not suffer her to lease there because she had cursed him”.22 This might indicate only a neighbourhood quarrel, but — the evidence is too scanty for confidence — it might hint at further unwritten custom. A curse, of course, registered something more than a curse would normally register today. Both slander and assault were constant objects of social control. But a curse was more than slander. The Herefordshire case might suggest that a curse was strong enough to unloose the farmer (at least in his own eyes) from the acknowledged bond laid upon the land by custom.
I am suggesting that custom took effect within a context of sociological norms and tolerances. It also took effect within a workaday routine of livelihood. It was possible to acknowledge the customary rights of the poor, but place obstacles in the way of their exercise. A petition of the poor inhabitants of Loughton, adjoining Waltham Forest in Essex, claimed the liberty of lopping their firewood from the trees. The lord and lady of the manor had not disputed the right but had limited its exercise to Mondays only, “and if this day prove fair ’tis a loss to them because ’tis the day they generally lett themselves to work with the farmers that employ them for the whole week”, whereas formerly they had gathered wood on any wet days when there was no work. Meanwhile (they complained) the lord and lady were felling timber, selling logs, overstocking the forest with cattle, ploughing up the greensward, and setting coney warrens whose rabbits were “eating up their green corn and poysoning their meadows”.11
Agrarian custom was never fact. It was ambience. It may best be understood with the aid of Bourdieu’s concept of “habitus” — a lived environment comprised of practices, inherited expectations, rules which both determined limits to usages and disclosed possibilities, norms and sanctions both of law and neighbourhood pressures.22 The profile of common right usages will vary from parish to parish according to innumerable variables: the economy of crop and stock, the extent of common and waste, demographic pressures, by-employments, vigilant or absentee landowners, the role of the church, strict or lax court-keeping, the contiguity of forest, fen or chase, the balance of greater and lesser landholders. Within this habitus all parties strove to maximise their own advantages. Each encroached upon the usages of the others. The rich employed their riches, and all the institutions and awe of local authority. The middling farmers, or yeoman sort, influenced local courts and sought to write stricter by-laws as hedges against both large and petty encroachments; they could also employ the discipline of the poor laws against those beneath them, and on occasion they defended their rights against the rich and powerful at law.11 The peasantry and the poor employed stealth, a knowledge of every bush and by-way, and the force of numbers. It is sentimental to suppose that, until the point of enclosure, the poor were always losers. It is deferential to suppose that the rich and great might not act as law-breakers and predators. A reading of the successive reports on royal forests of the Land Revenue Commissioners will quickly disabuse us on both points.
Forests, chases, great parks and some fisheries were notable arenas, in the eighteenth century, of conflicting claims (and appropriations) of common rights. After a revival in the first decades, the forest courts fell back into disuse, so that the direct invigilation by “the Crown” declined. But the hierarchy of grantees, managers, keepers, forest officers, under-keepers, remained in being, as avaricious as ever, and most of them engaged in the rip-offs which their rank or opportunities of office favoured. The great encroached on the walks, fenced in new hunting lodges, felled acres of timber, or obtained little sweeteners, like the earl of Westmorland who was granted four hundred acres of Whittlewood Forest at one farthing an acre in 1718.22 In the middle of the hierarchy forest officers and under-keepers, who had long supplemented their petty salaries with perquisites, made inroads into the venison, sold off the brushwood and furze, made private agreements with innkeepers and pastry-cooks, butchers and tanners.33 Early in the century Charles Withers, Surveyor-General for Woods and Forests, kept a diary of a tour of several forests. At Wychwood —
This Forest egregiously abused. The timber shrouded and browsed: none coming on in the Knipes or Coppices; cut by Keepers, without assignment, sold to the neighbourhood: especially Burford Town supplied thence. Landlord Nash at the Bull bought this year Ten Load; in short, ’tis scandalous!
Much the same was found in the New Forest. But, equally, Withers found that the working inhabitants of forest villages and purlieus were continually pressing and enlarging their claims. In the Forest of Dean the colliers were “cutting thriving Timber for their Pits, without assignment. They pretend a custom to demand it, but are now so lawless that they even take it without”.11 And in a Memorial to the Treasury Commissioners in 1729 Withers represented that —
It is very observable that the Country people everywhere think they have a sort of right to the Wood, & timber in the Forests, and whether the Notion may have been delivered down to them by tradition, from the times these Forests were declared to be such by the Crown, when there were great Struggles and contests about them, he is not able to determine. But it is certain they carefully conceal the Spoyls committed by each other, and are always jealous of everything that is done under the Authority of the Crown.22
Disputes over common right in such contexts were not exceptional. They were normal. Already in the thirteenth century common rights were exercised according to “time-hallowed custom”,33 but they were also being disputed in time-hallowed ways. Conflict over “botes” or “estover” (small wood for fencing, repair of buildings, fuel) or “turbary” (turves and peats for fuel) was never-ending; only occasionally did it arise to the high visibility of legal action, or (as with Weldon and Brigstock (p. 99)) to a punch-up between contiguous parishes, or to a confrontation between the powerful rich and the numerous “poor”, as in the disputed carrying-away of “lops and tops”.44 But there cannot be a forest or chase in the country which did not have some dramatic episode of conflict over common right in the eighteenth century. It was not only the deer which enraged farmers, by spilling out of the forests and eating their corn. There were also the coney warrens, which became a craze in the early eighteenth century with lords of the manor anxious to improve, not their pastures but their income. In one robust complaint from Charnwood in North Leicestershire, rabbit warrens were identified with Stuart tyranny:
When Popish Jemmy rul’d this Land
He rul’d it like a King.
And bloody Jeffreys went about
Hanging & Gibbeting.
The Warreners prick’d up their Ears
That was a Time of Grace,
Game Laws & Justices were made
And Rabbets bred apace.
They cover’d all our Common Ground
Or soon would do, no doubt
But now, whilst George the Second reigns
We’l pull the Vermin out. . .
The lines of this “Charnwood Opera” (performed in “The Holly Bush” in the forest) may date from 1753, and refer to episodes three or four years earlier. Lord Stamford, Lord Huntingdon, and three great gentry had planted copious warrens on the commons:
The Turf is short bitten by Rabbits, And now
No milk can be stroak’d from ye Old Womans Cow
Tom Threshers poor Children look sadly, And say
They must eat Waterporridge, three times in a Day
Derry down.
In 1749 a great number of inhabitants, men, women and boys of neighbouring villages, including a party of colliers from Cole Orton, converged upon the warrens, marching over the plain “with rustick Noise & laughter. . . the Mobile Clamour mix’d with Threats & Jokes”:
On yonder Hill, See, How They stand
— with Dogs — and Picks, and Spades in Hand.
By Mars! A formidable Band!
Were they enclin’d to fight
See! How they troop from ev’ry Town
To pull these Upstart Warrens down,
All praying for the Church & Crown
And for their Common Right.
In the ensuing encounter the warrens were thrown open. The “rioters” clashed with the Warrener and his party, and one of the rioters was killed. There followed troops of dragoons, wholesale arrests, trials. Right of common was proved for twenty-six neighbouring towns and villages, and Charnwood Forest remained unenclosed for a further half-century.11
This serves to remind us that high feeling around common rights, and episodes of disturbance, need not wait upon enclosure. Perhaps enclosure had been the most visible occasion of grievance in the sixteenth and seventeenth centuries.22 And perhaps in the first six decades of the eighteenth century disputes about deer and other game,33 about fishing rights, about timber, about the exploitation of quarries, sand-pits and peat, became more frequent and more angry. The notional economy of coincidental use-rights of greater and lesser substance was coming under greater strain. Demographic pressure, together with the growth of by-employments, had made the marginal benefits of turbary, estover etc. of more significance in the package that made up a subsistence-economy for “the poor”; while at the same time the growth of towns and, with this, the growing demand for fuel and building materials enhanced the marketable value of such assets as quarries, gravel- and sand-pits, peat bogs, for the larger landholders and lords of the manor. In a parallel movement, the law was conforming with an age of agricultural “improvement” and was finding claims to coincident use-rights to be untidy. So also did the modernising administrative mind. A survey of Salcey Forest in 1783 noted “the ruinous Effects of a Mixture of opposite Interests in the same Property”.11
If all the agricultural lands of England and Wales had been as open to rip-offs as the royal forests or as beset with disputes as Charnwood, then they might have served as illustrative proofs for the glum theses of Garret Hardin in “The Tragedy of the Commons”.22 It has been Professor Hardin’s argument that since resources held in common are not owned and protected by anyone, there is an inexorable economic logic which dooms them to over-exploitation. The argument, in fact, is derived from the English propagandists of parliamentary enclosure, and from a specific Malthusian variant.33 Despite its commonsense air, what it overlooks is that the commoners themselves were not without commonsense. Over time and over space the users of commons have developed a rich variety of institutions and community sanctions which have effected restraints and stints upon use.44 If there were signs of ecological crisis in some English forests in the eighteenth century, this was as much for political and legal reasons as for economic or demographic. As the old forest institutions lapsed, so they fell into a vacuum in which political influence, market forces, and popular assertion contested with each other without common rules:
The present state of the New Forest is little less than absolute anarchy [it was lamented in 1851]. The records are insufficient to ascertain who are entitled to rights; there is no certainty what law, forest or common law, is current; and, consequently, what officers have power, and under what authority to interfere.
At present the forest “has not, and cannot have, an owner. We seem reverting to Eastern and primeval manners”. The foresters (including many squatters) supposed, however, that they were the owners, improvising rules in informal ways. When a government inspector was sent down to examine the state of the forest in 1848-9, he was burned in effigy off Lyndhurst, the Deputy Warden supplying fuel from the forest for this meritorious purpose.11
These were dark places, however, possessed by “savage ignorance and barbarism”. Over the rest of agricultural England there was a much stricter governance of common rights, both at common law and in lex loci. Common of pasture was stinted by the regulation of the lord’s court or by village by-laws, regulations which had sometimes been in continuous evolution for centuries. The orderly village agricultural practices of medieval England disclosed by Warren Ault22 are far from Garret Hardin’s notions of common free-for-all. 33 But stinting could breed its own disputes. The court of Chancery decided, in a case in 1689, that the greater part of the landholders might regulate and stint a common (on grounds of “proper and natural equity”) even if “one or two humoursome tenants stand out and will not agree”.44 But “one or two humoursome tenants” was too uncertain a legal term. In 1706 a new case arose from Bishop’s Cleeve in Gloucestershire, where the landholders had agreed to stint five thousand acres of common, but the defendant (the rector of the parish) and nine others stood out. Evidently this was more than one or two humoursome fellows, for the court decided that “a right of common cannot be altered without the consent of all parties concerned therein”.55
One wonders if this might have been at the origin of the parliamentary process of enclosure, which is something of a mystery? For “the first private bill of enclosure ever passed” came up to parliament in February 1710. It concerned Ropley Commons and the old disparked park of Farnham, within the bishopric of Winchester. It was a decidedly unpopular and vigorously contested measure, and it contributed to the ill-will which led to raids on the bishop’s deer and eventually to “blacking”. It could scarcely have been pushed through in any other way.11
Once the private act of enclosure became possible, it was clear that enclosure might not take place unless by due parliamentary process if even one humoursome landholder dissented.22 Until the 1760s (and in some cases later) this could act as a serious disincentive to the landowners. A young gentleman was writing on behalf of his mother to some noble patron in 1742 about her predicament in the parish of Church Oakley, Hampshire —
My Mama has the largest farm there upon her hands, and she finds it a very difficult thing to get a Tennant for it, no Person caring to take it unless the Parish was inclosed, there being so great a disagreement amongst the Farmers at Oakly, that in mere spite to each other they will not manage the Common Fields so as to make the best advantage of them. . .
Enclosure would especially benefit his mother “as she has the greatest Common there; there are but three freeholders and the Parsonage, besides herself, they all consent to enclose, except one person who in crossness sticks out. . .”. His mother begged to ask if the thing could be done, one man not agreeing to it, without an Act of Parliament “which she would be sorry to have, not only as it will be a great Expense, but as she has not any friends in the House. . .”.11 Historians have noted that the great age of parliamentary enclosure, between 1760 and 1820, is testimony not only to the rage for improvement but also to the tenacity with which “humoursome” or “spiteful” fellows blocked the way to enclosure by agreement, holding out to the last for the old customary economy.
So that custom may also be seen as a place of class conflict, at the interface between agrarian practice and political power. The customary tenants of Sir William Lowther in the Cumberland manor of Askham complained in 1803 that “violations of our Antient Custom has always felt very painfull to us, and embittered many hours of our lives”. And Dr Searle comments:
Custom, then, was not something fixed and immutable, carrying the same body of meaning for both social classes. On the contrary, its definition was highly variable in relation to class position, and accordingly it became a vehicle for conflict not consensus.22
Unequal as were the terms of power in this conflict, yet power must submit to some constraints, not only because custom had juridical endorsement and could itself be a “property”, but also because power might bring itself into danger if abuse of customary rights outraged the populace. Charles I’s high-handed pursuit of revenue in the royal forests had weakened his throne. Even the most predatory of the Hanoverian Whigs had not forgotten the lesson. George II’s consort, Queen Caroline, had “wished to shut up St. James’ Park, and asked Sir Robert Walpole what it would cost her to do it. He replied, ‘Only a crown, Madam’”.11
King Charles also set in motion one of the most politically-sensitive contests around common rights, when he enclosed and threw a high wall around Richmond Park. Several parishes were shut out from rights of common, and (Clarendon wrote) “the murmur and noise of the people. . . was too near London not to be the common discourse”. The murmur continued in the eighteenth century, and was at its loudest during the rangership of Sir Robert Walpole (through his son), when gates were locked, ladders over the wall were removed, and passengers or carriages were admitted only by ticket. Since the tickets (made of base metal) were easy to counterfeit, they were replaced by paper tickets stamped at the stamp office (6d.) (and the counterfeiting of stamps was then a capital felony). Although the parishioners pulled down the park wall two or three times on their perambulations of parish bounds (see Plate IX), Walpole “pocketed the affront, and built up the wall again”.
Walpole’s successor as Ranger was Princess Amelia, who was loved no more than Walpole but was more easy to challenge than the great man. The grievances concerned chiefly rights of way through the park, and loss of access to gravel, underwood, furze, and also water rights. In this prosperous neighbourhood those concerned were not only farmers but also gentry, merchants, tradespeople and artisans. Champions of local rights included a stonemason, a brewer, and Timothy Bennett, a shoemaker, whose motto it was that he was “unwilling to leave the world worse than he found it”. John Lewis, the brewer, led an agitation in the 1750s which prefigures some of the stratagems of John Wilkes: there were public meetings, memorials in the press (London Evening Post), a widely-signed petition presented to the King, and finally a series of actions at law.11 From such episodes as this one may see the growing confidence of “civil society”.
Cases came up at Surrey Assizes (Kingston) every summer from 1753 to 1758. Right of highway between Richmond and Croydon (through the park) was lost (1754), but right of footway (over stiles or ladders) from Richmond to Wimbledon was won. John Lewis then (1755) forced his way through a park gate, and sued the gatekeeper (Martha Gray) who pushed him out, for obstructing three ancient footways, one between East Sheene and Kingston. Trial was postponed to the next summer Assizes. At that time supporters of common right had published and circulated a pamphlet22 on their side of the case, and Lord Mansfield — on the grounds that this could influence the jurors — used this as an excuse to put off the trial to a subsequent Assizes.
The trial finally came up at Surrey Lent Assizes, 1758, before Sir Michael Foster, then in his seventieth year. So many of the forty-eight special jurors who had been summoned to the panel were nervous about trying a cause against the Princess Amelia that it was necessary to put a talesman on the jury. Sir Michael promptly fined the absentees £20 a head. When the prosecution had got through some part of their evidence, the counsel for the Crown (Sir Richard Lloyd) said it was “needless for them to go on upon the right, as the Crown was not prepared to try that”, since the obstruction was charged in the parish of Wimbledon whereas it was in truth in Mortlake:
The judge turned to the jury, and said, he thought they were come there to try a right, which the subject claimed to a way through Richmond Park, and not to cavil about little low objections, which have no relation to that right. . . He thought it below the honour of the Crown, after this business had been depending three assizes, to send one of their select counsel, not to try the right, but to hinge upon so small a point as this.
The judge summed up in favour of the prosecution, and John Lewis won his case. Offered a gate or step-ladders, he chose the latter, as the freer mode of access. (With deer in the park, the gates would be kept closed, and might easily be locked.) When Lewis returned to the court with the complaint that the rungs on the ladders had been set too far apart for children and old men, Sir Michael Foster replied: “I have observed it myself, and I desire, Mr Lewis, that you would see it so constructed, that not only children and old men, but OLD WOMEN too, may get up.”11
The case was a small sensation. For a while it gave the keepers real trouble, since triumphant citizens were clambering the ladders and did not confine themselves to the paths but “ranged & went at their pleasure over the greensward”, declaring that “the park was a common & that they had a right to go anywhere. . . they liked”. This was to the prejudice of the deer and game and “will greatly interrupt the Royal Family in the use & enjoyment” of the park.22 Princess Amelia abandoned her Rangership in a paddy. These matters also became part of the discourse of London: the free-born old Englishwoman had triumphed over the royal lady. Such victories, of the humble citizen over the great or the royal, were decidedly infrequent. But even one or two went a long way to give popular legitimacy to the law and to endorse the rhetoric of constitutionalism upon which the security of landed property was founded.11 Even so, we should not forget that the Richmond victory was, in a sense, a victory of bourgeois commoners, who commanded money and resources which the rural commoners rarely did.
II
This chapter is not about enclosure nor about the decline of the peasantry. A novice in agricultural history caught loitering in those areas with intent would quickly be despatched. This is a tangential study of common right usages, and also of law and notions of property-right. But one cannot altogether avoid brushing against the other problems. And one must note that we still have little firm evidence as to the number of landholders who held by copyhold or other forms of customary tenure (such as beneficial leases from the church or from colleges) in the eighteenth century. A scholar with much expertise allows that the question of the proportion of landholders by customary tenures in the late seventeenth century is “almost entirely obscure”, but it might have been “as many as one-third”.22 And it remained substantial at the end of the eighteenth — although falling away more rapidly in the last decades. The vigorous operation of the lord’s court in the eighteenth century (as many county record offices can testify) is often coincident with some survival of copyhold tenures. There was certainly a substantial peasantry in England in the eighteenth and early nineteenth centuries,33 and optimistic agricultural historians have sometimes told their story in such a way as to confuse two different totals: the acres and the people.11 As I remarked in an earlier study, “the economic historian may find that the clues to expanding agrarian process lie in the ‘free’ [i.e. freehold or rackrent] sector, while the social historian may find that the psychological horizons and expectations of the majority of the farming community lie still within the customary sector”.22
Secondly, it is now becoming clear that in the long historiographical reaction against those fine historians, Barbara and J. L. Hammond and their classic The Village Labourer, there has been a tendency (and in some minds an ideological determination) to seriously undercount the amount of popular protest attending upon loss of common rights or the enclosure of commons (which, as we have already seen, were not the same thing). It is heartening to see that a substantial challenge to the triumphal picture of the social consequences of agricultural improvement is now being made.33 Even so, we are not going to discover that the eighteenth century was vibrant with major episodes of enclosure protest which have been somehow overlooked. There were more episodes than have been noted, but few of them were major. Resistance was more often sullen than vibrant. For every commoner “Rioutously threatening to kill or be killed, that he wd raise 500 people who wd assist in the cutting down & destroying the Mounds and fences. . .”11 a dozen will be found throwing a gate off its hinges, uprooting some quicksets, or pulling down a notice of enclosure from the church porch.
Yet there was more opposition to enclosure than used to be supposed.22 The problem of estimating its extent is, in part, one of the appropriate research techniques and the nature of the sources. Enclosure protests were rarely reported in central administrative archives or in London newspapers; they did not take the form of regional “uprisings”, highly visible and tumultuous. They will be found (especially before 1760) more often in the exchanges of letters between estate stewards and their absent masters, treated as domestic concerns (like poaching) which could be dealt with by the magistrates’ summary powers. Larger affrays might necessitate the aid of neighbours, the levying of loyal tenants and servants, or even the posse comitatus. In 1710, when Robert Walpole was Secretary-at-War, he received (in his private capacity) a letter from his steward, John Wrott, describing a major confrontation over common rights on Bedingfield Common. The High Sheriff of Northamptonshire, Lord Cardigan, and other gentry were there with mounted patrols. “The mob began to gather from all corners, some in disguise with masks, and in women’s cloakes, and others with axes, spades, pickaxes etc.” Even the men whom the Sheriff had summoned to serve in his posse sympathised with the mob and helped any prisoners to escape. The crowd was dispersed for the time being, but “they still persist to say the Right of Common is theirs, & next year they hope to see the Hedges demolish’t”.33
The estate correspondence of one of Walpole’s political allies, Lady Diana Fielding in North Wootton (Norfolk), in 1728-9 was much preoccupied with contests between labourers and tenants, on one side, and her steward and the parish constable, on the other, concerning the cutting of “whins and flags” on “the Priories”, where her ladyship had made new enclosures. Rival parties converged on the common with carts to carry away the whins, “the Mobb” rescued their whins from the steward’s carts, threw them about, locked the horses to the cart wheels, “barbrosly used” the steward “ & broke 3 of his Ribbs & allmost kill’d him”. The mob went on to “break & destroy all the Gates & fences” of the late enclosures. Labourers and tenants shared these actions, but it was easier to discipline the tenants with the threat of loss of their tenancies.11
One can turn up other affairs like this in collections of estate papers. Or they may turn up in the press. Three years before, at Stokesby (again in Norfolk), many poor people, men and women, “threw down a new Mill and divers Gates and Fences on the Marsh”. Eight or ten of them were carried to Norwich where they were examined: they said they were acting for the “Recovery of their Right”, since the Marsh was common until a certain gentleman had taken it away and fenced it in. “Such a beginning had Kett’s rebellion”, the reporter commented.22 These offenders were committed to Assizes. And not infrequently Assize records show proceedings against offenders who had thrown down fences or demolished enclosures. But such actions need never come to the notice of the law, since commoners claimed (and law cautiously acknowledged) a right to throw down encroachments33 and this “possessioning” was indeed one of the purposes of parish perambulations. There was a fine-drawn line between the assertion of “right” and “riot”,11 and the balance of evidence and also of power might be such as to settle the issue outside the courts. John Lewis, the Richmond brewer, whom we have already noted in his assertion of rights of access to Richmond Park, told a story about another pathway which he found blocked by a locked gate. He passed by with a friend and with some of his men from the brewery the day before “our annual parochial procession at Richmond” —
‘My lads’, says I; ‘take care to bring your hatchets with you tomorrow to cut down this gate, for we must go through it to our bounds’. ‘Don’t speak so loud,’ said my friend: ‘or you will be heard by the people at the Princess Dowager’s.’ ‘Oh,’ I replied, raising my voice: ‘I have no objection to be heard. I am John Lewis of Richmond, and mean to knock down this gate tomorrow for a passage according to custom.’
But on the next day “the processioners” found that the gate’s lock had been taken off.11
In a parish perambulation, some labourers might carry “an axe, a mattock, and an iron crow. . . for the purpose of demolishing any building or fence which had been raised without permission” on the common or waste.22 This was stubbornly maintained as a lawful assertion of right. But this is also exactly what some offenders are indicted for in Assize records: at Feckenham (Worcestershire) in 1789 for “pulling down, prostrating and destroying with bilhooks, spades, mattocks, axes, saws” etc. fourteen yards of quickset fences;33 at Culmstock (Devon) in 1807 for coming into a garden and orchard with hatchets, saws, pickaxes, spades and shovels, throwing down the fences, digging up the ground, erecting a tent to keep the owner (or the pretended owner) out of possession;44 at Porlock (Somerset) in 1774 for entering a garden, throwing down hedges and fences, spoiling and carrying off garden stuff.55 These could have been little affrays or “riots”66 or they could have been actions deliberately intended to bring on a case which would try their “right”.
Even when riots did occur these need not become visible to historians. Magistrates and gentry were expected to take care of episodes in their own neighbourhood without recourse to troops. When troops were sent to put down rioting “in the new inclosed fields of West Haddon” (Northamptonshire) in 1765, the magistrate was reminded that “until the utmost extent of legal authority shall have been tried, application should not be made for military assistance”.11 In the same year, when forty-odd Banbury rioters were pulling down the fences of a newly-enclosed estate at Warkworth, a company of gentlemen were informed of it at dinner; they instantly were willing to forego their port, mounted their horses, descended on the “levellers” and routed them.22 Knowledge of a more substantial enclosure riot at Maulden, (Bedfordshire) in 1796, in which two hundred poor people were involved, survives only because a letter about it was preserved in a War Office file of precedents.33
But problems and techniques of recovering the evidence is the lesser part of the story. In a study which demands that we review not only our methods but the whole problem, Jeanette Neeson has shown that historians may have been looking in the wrong places and for the wrong things. She presents cogent reasons for supposing that “parliamentary opposition and riot were the least effective, and probably least common, means of opposing enclosure”.44 And redirecting attention to the full length of the enclosure process, from its first promotion to its often-long-delayed implementation, she shows an astonishing volume and a variety of forms of protest — hitherto hidden from view in local records — lobbying, letters, petitions, the mobbing of surveyors, the destruction of records, and on to arson, riot, and fence-breaking, which might continue for years after enclosure was completed. Nor was this stubborn resistance without function. It can be shown to have delayed enclosures, on occasion for decades, and it may sometimes have modified their terms. “If landlords and farmers eventually won the battle for enclosure, rural artisans and agricultural labourers may have had some say in the terms of surrender.”11
If Dr Neeson’s findings for Northamptonshire should be supported by research into other counties, this will change our understanding of eighteenth-century enclosure, and the depth of hostility with which it was regarded by a large part of the rural community. Opposition was in general overcome in the end; open fields were almost without exception enclosed by 1850, and opposition rarely kept commons and wastes open for much longer, except in special circumstances which include large wastes upon which several villages inter-commoned, forest and fenland regions, and commons contiguous to market towns or larger urban centres. Urban protests over common rights were often more formidable and more visible than rural, and while they clearly are not characteristic of agrarian custom they may still afford one point of entry into general questions of common right.
The most obvious reason for urban success is simply that of greater numbers, and the anonymity which numbers supplied to rioters. By no means all the effective urban enclosure riots arose from incorporated boroughs. But the question of incorporation is of real significance, since it distinguishes between prescriptive rights and rights established by custom. Custom is laid upon the land, but prescription “is alledged in the Person”: “it is always made in the Name of a Person certain, and his Ancestors, or of those whose Estate he hath”, and is normally established by the recitation of the original Grant or Charter.22 Boroughs incorporated by Charter were legal personalities, whose freemen might therefore plead prescriptive rights more generous than those which law would recognise for custom. In the important decision in Gateward’s Case (below, p. 130) it was ruled that “inhabitants” cannot prescribe to have profit in another’s soil, with the reservation “unless they be incorporated”.11 If prescriptive rights to the use of common were granted by charter to a corporation, then the exercise of these rights (and the persons entitled to exercise them) became a matter not for the courts to decide but for the intramural regulation of the corporation.
In fact the often-cited charters from which townsmen derived their rights to the use of town lands are often as ambiguous and as open to various interpretations as rights in manorial villages. We can see this in the case of Coventry. The right was claimed as derived in the first place from a grant of Sir Roger de Montealto (1249) reserving to the “communiariis” “reasonable pasture” for as many beasts “with which they may conveniently plough and carry their arable lands, and which, by reason of those lands, as well of right as of custom, they ought and were wont to have common”. This was englished — I suspect by a popular sea-lawyer in the late seventeenth or early eighteenth century — as “saving to all Cottiers reasonable Pasture and Commons for soe many Beasts as they bin abel hereafter to keepe and which they ought and were wont to have as wel by Right as by Customs”.22 As both land and rights became more valuable, attempts to limit these rights or to enclose lands were met with riotous resistance in 1421, 1430, 1469, 1473, 1495, and 1509,33 while further enclosure was successfully resisted in a major riot in 1525.11 The definition of who possessed commoners’ rights may have hardened only in the seventeenth century. An entry in the Court Leet book in 1663 suggests that all who “inhabit and pay Scot and Lott” had common right (this being a narrower definition than earlier entries suggest).22 A more popular notion was that the land belonged to the “Mayor, Bailiffs and Commonalty of the City. . . and one Million and others were seized of the said Manor”.33 In 1674 this was clearly defined as freemen enrolled in companies. Throughout the eighteenth century freemen’s rights were jealously maintained, especially through the means of apprenticeship; and into the nineteenth century rights in the Lammas Lands were signalled annually (as they were in other towns) by the Lammas riding, when the corporation and freemen rode the boundaries of the fields, trampled any corn grown in them (unless propitiated by supplies of ale and food) and tore down gates and obstructions.44
Coventry now in the nineteenth century was hemmed in on all sides by Lammas Lands, which increased the density of the population, and meant that the potential value of the lands as building sites rose annually. Eventually the freemen, after much controversy and a long and crafty negotiation, sold out their rights in exchange for a considerable allocation of these lands. By this time the freeman right had fallen into the hands of a minority (although a large one). Joseph Gutteridge, a ribbon-weaver, felt that the mid-century contest concerned only the rights of a privileged group. But he still regretted the loss of lands which in his youth, in the 1820s, were a “veritable paradise. I would roam over them without let or hindrance. . .”.11
We have here a mixture of prescriptive right, myth, and assertion by tumultuous numbers. The intramural contest over the exercise of rights arose when the alienation of urban common was undertaken by the Corporation itself, in the name of freeman rights which were themselves becoming more exclusive and corrupt. When the Leicester Corporation enclosed the South Fields in 1753, and let them to three lessees (including two aldermen) riots continued for at least three years, in which the “post and rails and Quick sette. . . set down for the fencing of the said fields” were “Cut Down pulled up and Distroyed by great Numbers. . . in a most riotous and tumultuous manner”. The enclosure, first attempted in 1708, was not completed until 1803.22 In Nottingham where six hundred acres of Lammas Lands and another three hundred and fifty acres of pasture with common right remained open into Victorian times, a witness before the Select Committee on Commons Enclosure (1844) found that this had a most prejudicial effect upon the morals of the people:
It occasions very great disrespect to the laws of the country generally; as an instance. . . when the day upon which the lands become commonable arrives [usually August 12th]. . . the population issue out, destroy the fences, tear down the gates, and commit a great many other lawless acts, which they certainly have a right to do, in respect of the right of common to which they are entitled. . . the consequence is constant violence and abuse.
The witness explained that the freemen were “all voters, which is a great misfortune, and they are misled with respect to their rights, and the value of them, by parties who have recourse at the periods of election to courses of agitation”. They had exercised rights over the Lammas Lands for many years, and “being a very numerous body, and many of the body being of a very low class of society, they are enabled to resort to acts of violence which could not be resorted to by an incorporated body. . .”.11 Rights by prescription and rights by the assertion of usage had become altogether indistinct.
Nottingham and other commoners were offered by the printers “No Inclosure!” ballads, perhaps more likely to be read than sung: “You Freemen all of Nottingham come listen to my Song”:
Your Rights and your Liberties I would have you to revere,
And look unto Posterity I think them always dear;
To us to our Children by the Charter that prevails,
So now my Boys united be and have no Posts or Rails. . .
Let’s suffer no Encroachments upon our Lane to be,
But to repel such Tyranny let’s ever now agree;
But let ev’ry brave Freeman enjoy his Right of Land.22
The more that one looks, the more that one finds such disputes to be normal, in great towns and in small. They could be massive and very violent, as was the dispute in Sheffield in 1791. A private act had been passed to enclose six thousand acres of common and waste adjacent to the town, compensating the poor with two acres only. This precipitated spectacular riots, which may have influenced the citizens to turn in a Paineite or “Jacobin” direction. The enclosure commissioners were mobbed; the debtors’ gaol was broken open and the prisoners released; there were cries of “No King!” and “No Taxes!”.33 Or the affairs could be small and symbolic, as at Streatham Common in 1794 when six men in black drove up in a hackney coach and demolished the duke of Bedford’s paled inclosure.44 London and its environs would have no parks today if commoners had not asserted their rights, and as the nineteenth century drew on rights of recreation became more important than rights of pasture, and were defended vigilantly by the Commons Preservation Society.11 We owe to these premature “Greens” such urban lungs as we have.22 More than that, if it had not been for the stubborn defence by Newbury commoners of their rights to Greenham Common, where on earth could NATO have parked its nukes?33
III
Yet we should not press the distinction between prescriptive rights and rights established by custom too far. Although urban commoners might appeal to “chartered rights”, when they succeeded it was through the assertion of usage, sheer numbers, political muscle. And the law was open to manipulation. “Prescription” could be a legal fiction, a suppositious (but unrecorded) grant.44 Perhaps we should turn the problem around. In the towns commons were often defended with more success than in the countryside. Does this tell us anything about right, and about property and law?
The tone of some writing on agricultural history suggests that there is little we need to know about law. Even Professor Hoskins, in his sympathetic and informative study of common lands, allows himself to state that “contrary to widespread belief. . . all common land is private property. It belongs to someone, whether an individual or a corporation, and has done so from time immemorial”.11 That might find a legalistic justification — of course Hoskins was simplifying his account — but “belonging”, private property in land, is itself a concept which has had a historical evolution. The central concept of feudal custom was not that of property but of reciprocal obligations.22 An authority on land law suggests that common rights —
arose as customary rights associated with the communal system of agriculture practised in the primitive village communities. At a very early period such villages would be surrounded with tracts of waste land. . . On such land the villagers as a community would pasture their beasts and from it they would gather wood and turf and so forth. In the course of time, when the increase of population and the reduction in the quantity of uncultivated land started to produce crowding and conflict, their rights would tend to become more clearly defined but would still be communal rights, principally over waste lands regarded as the lands of the community itself. The tenurial system converted the villagers into tenants, and the theory of the law placed the freehold of most of the lands of the manor in the lord. Some of his tenants, it is true, will be freeholders, but the majority hold unfreely in villeinage, and the preeminence of the lord makes it natural to treat him as the ‘owner’ of the waste lands. Thus a theory of individual ownership supplants earlier more egalitarian notions.33 (My italics.)
That is not quite “belonging” from “time immemorial”. One is reminded of the saying addressed by Russian serfs to their lords: “We are yours, but the land is ours.”44
It was Tawney’s view that, in such matters as common of pasture, “communal aspirations are a matter of feeling and custom, not of national law”.11 These “communal aspirations” persist into the eighteenth century where they co-exist with the most scrupulous regulation of common rights and stints by village by-laws (and lex loci of manorial courts) and by rigorous definitions of common rights (appendant, appurtenant, of gross, and by vicinage) at national law. Law and usages may often seem to be at odds with each other. Authorities agree that in many parts of England and Wales, the cottagers and the landless exercised use-rights — of turbary, estover, and often of pasturage on waste (and sometimes Lammas lands or grazing over the harvested common fields). Thus Gonner: “Throughout the country it may be said that often the poor living near the commons, wholly without question of the occupation of ancient cottages, came by usage to enjoy the minor rights of common”, including grazing for pigs, geese and sometimes cows.22 Most authorities go on to state flatly that these minor rights of common had no basis in law and were illegally exercised or usurped. And in a self-fulfilling argument the statement is confirmed by the evidence that they usually received no compensation for such rights at enclosure. Thus Kerridge: “Occupiers of poor law and other newly erected cottages, and generally all squatters on the waste, were not entitled to rights of common, so no allotment was due to them.”33 And thus Chambers and Mingay:
The occupiers of common right cottages. . . who enjoyed common right by virtue of their tenancy of the cottage, received no compensation because they were not, of course, the owners of the rights. This was a perfectly proper distinction between owner and tenant, and involved no fraud or disregard for cottagers on the part of the commissioners.44
Yet this is to assume two things: first, the priority of “the theory of the law” over usages, and, second, the propriety of splitting off the rights from the user. But these are, precisely, the questions to be examined. If Coke’s definition be followed — “Customs are defined to be a law or right not written; which, being established by long use and the consent of our ancestors, hath been and is daily practised”11 — then in many parishes the exercise of minor rights of common might have been proved by antiquity, continuance, certainty and reason as well as those of the landholders and customary tenants. Custom (Coke explained) takes away the common law, yet the common law might correct on such grounds, and especially on the grounds of reason. Kerridge, in one of his intemperate attacks upon Tawney, writes:
The common law could only allow and confirm customary laws that were reasonable, certain, on good consideration, compulsory, without prejudice to the king, and to the profit of the claimant. Tawney assumed that ‘reasonable’ in this context was used in a loose or general sense, and that the lord’s interests were more likely to seem reasonable to the lawyers than were the customer’s; but ‘reasonable’ and ‘unreasonable’ are legal terms of art and mean ‘compatible’, ‘consonant’, ‘consistent’, ‘reconcilable’, or their opposites. A reasonable custom was one that could be reconciled with the other customary laws of that manor and with the common law. Thus to disallow unreasonable customs was, in almost every instance, to reject fraudulent ones.22
I cannot in any way accept Kerridge’s assurances as to the powers of the common law over custom, which confuse the essential and the trivial, omit the criteria of antiquity and continuous usage, and mistake the true relation between the two.33 The common law did not sit on high to “only allow and confirm” those customs which it approved; on the contrary, it might only disallow custom if it could fault it on these (and certain other legal) grounds, and only then when a case was referred to the common law courts. Nor, as it happens, can I find that Tawney wrote the opinions which Kerridge puts into his mouth.
“Reasonable” and “unreasonable” may be “legal terms of art” but on a very brief view of case law they were gates through which a large flock of other considerations might come baaing and grunting onto the fields of the common law. Perhaps no case was more often cited in its bearing upon the marginal use-rights of the villager that Gateward’s Case (1607). This was both a terminus of precedent judgements and the ground upon which many subsequent judgements stood. Defendant had pleaded common right “ratione commorantiae et residentiae suae” in the town of Stixwold in Lincolnshire. This was disallowed because the defendant was occupier of a house in which he had no interest —
No certain time or estate, but during his inhabitancy, and such manner of interest the law will not suffer, for custom ought to extent to that which hath certainty and continuance.
These are “legal terms of art”, although we slide along them from the use-right to the user to his house: “For none can have interest in a common in respect of a house in which he hath no interest.” But in disallowing all “inhabitants” or “residents” from the further ground of reasonableness was added that “no improvements can be made in any wastes, if such common should be allowed”.11 The court could not have known that in 350 years time, when the term “improvement” had acquired a new resonance, they had licensed a motorway to carry political economy across the commons.
Gateward’s Case was technically brought in restraint of a gentleman who was grazing Stixwold commons, although it seems that in fact Gateward had come forward as a champion of the customary use-rights of the poorer inhabitants also.22 The cases which came up to the common law courts for a hundred years or more rarely concerned the minor rights of common. They concerned the regulation and adjustment of more substantial landholding interests. Attention was paid to the definition of common appendant and appurtenant: appendant belonged to occupiers of arable land, and carried right to place commonable beasts (those who plough and manure the arable) on the lord’s waste. Levancy and couchancy stinted the right to the number of beasts that could be wintered on the arable holding. Common appurtenant was attached not to land but to a dominant tenement, and it extended to other stock, such as hogs, goats, geese, and rested upon immemorial usage and prescription. Decisions did not go only one way. On occasion the lord’s rights to waste the common, carry off soil, or warren the waste with “coney-boroughs” were restrained. There were even decisions where substantial landholders excluded the lord from parcels of his own waste, under the same levancy and couchancy rule which excluded cottagers. But at least one such judgement against a Suffolk lord of the manor, in 1654, proved ineffectual, not because it was bad law but because it was unenforceable. Sir Francis North, in a learned argument in King’s Bench in 1675, observed that it had been —
A case of small consequence that concerned the lord only for his costs, for he has enjoyed his feeding against that verdict ever since: I can say it upon my own knowledge, for I know the parties and I know the place. . . I may add that this was in popular times, when all things tended to the licentiousness of the common people.11
By the mid eighteenth century the law had clearly ruled that levancy and couchancy were incident to common appendant as well as common appurtenant. In 1740, in a case arising from Mark in Somerset concerning the overstocking of Somer Leaze, the court acknowledged that —
There are indeed some cases in the old books. . . which speak of common sans nombre, and which seem to imply that levancy and couchancy is only necessary in the case of common appurtenant, and not in the case of common appendant. But the notion of common sans nombre, in the latitude in which it was formerly understood, has been long since exploded, and it can have no rational meaning but in contradistinction to stinted common, where a man has a right only to put in such a particular number of cattle.22
At the beginning of the century the courts had found a generous interpretation of common appurtenant. A claim of common for cattle levant and couchant on a cottage was found good, even if it had no land, since “a cottage containeth a curtilage, & so there may be levancy. . . We will suppose that a cottage has at least a court to it”.11 The contest around this swayed back and forth. Did a butcher who kept sheep in his cellar have levancy and couchancy? The dispute was finally concluded in the high enclosure years, in 1792, when it was determined that the cottage must carry sufficient land for levancy and couchancy.22
When minor rights of common acquired a new value, either in the market (the sale of clay, peats, wood) or in compensation at enclosure, the courts gave them more serious attention. Now the decision in Gateward’s Case came into new effect. When it was claimed, in 1741, that the right of turbary was a custom laid “not only in the tenants but the occupants” of a Cambridgeshire village, the court found this “a very great absurdity, for an occupant, who is no more than a tenant at will, can never have a right to take away the soil of the lord”.33 In 1772 King’s Bench took a more liberal view of the right to cut rushes, in a case that arose from Theberton in Suffolk, accepting oral testimony that “everybody in the world may cut rushes on the common”.44 But this was reversed only two years later in a case arising from Ludham Waste in Norfolk. It was accepted that copyholders, occupiers of lands and occupiers of ancient houses might set up a custom to cut turfs or rushes, but “inhabitants cannot, because inhabitancy is too vague a description. . .”.55 In the same tradition the claim — arising from Whaddon, Buckinghamshire — for “all and every the poor, necessitous and indigend. . . householders” to gather and break with woodhooks rotten boughs in two coppices was disallowed because “there is no limitation. . . the description of poor householder is too vague and uncertain”.66
It is not suggested that these decisions were unreasonable, nor that they denied the “legal terms of art”. Most decisions arose — at least until the mid eighteenth century — not with the intention of cutting off the petty exercise of minor rights of common, but in disputes between larger operators, with the intention of restraining the exploitation of these rights by interlopers and entrepreneurs. Thus in Bennett v Reeve, in 1740, the complainant had taken a ninety-nine year lease of one yard parcel in Old Auster, which carried right of common appendant, and on the basis of this square yard had turned sixty-four sheep onto Somer Leaze. Other cases arose from the exploitation of suppositious rights to sell peats, timber, clay, or (in the case of Norfolk rushes) a blacksmith carrying off rushes by the wagon load. Gateward’s Case itself was aimed, not against the poor parishioner’s cow or geese, but against a gentleman interloper.
Yet within this rationality there was evolving — as Tawney rightly saw — the ulterior rationality of capitalist definitions of property rights. I will not court an action for trespass into the lands of medieval historians in an attempt to define what, in origin, was meant by “the lord’s waste” or “the soil of the lord”. But both agrarian and legal historians appear to agree that the notion of the origin of common rights in royal or feudal grants is a fiction. Dr Thirsk has suggested that rights of grazing over pasture and waste were perhaps “the oldest element” in the common field system, descended from “more extensive rights. . . enjoyed from time immemorial”, which Anglo-Saxon and Norman monarchs and lords did not graciously institute but, rather, regulated and curtailed.11 And we have seen that it was “the theory of the law” (above, p. 127) which placed the freehold of the manor in the lord. But this was not in terms of subsequent notions of exclusive “ownership” or property: it was, rather, “in fee simple” and in feudal terms of law. So long as wastes remained extensive and unstinted, landowners and commoners might co-exist without precise definitions of rights. As late as 1620 in a case concerning Holme-on-Spalding Moor a witness deposed that he knew not if a tenement built on the common sixty years before had common by right or “by sufferance or negligence of the freeholder”, since at the time it was built “the freeholder made little reckoning of common for so small goods as was then put upon the said common by the said tenants”.11 In a survey of Chilvers Coton (Warwickshire) in 1682 there is a very specific itemisation of freehold and copyhold in the open fields, but the homage becomes vague when it comes to common rights in the waste:
What beasts sheep or other cattle the Lord of this mannor as such or his ffarmour may keep in Coton or Nuneaton Outwood wee do not precisely know, but the present Lord. . . doth claim a right to keep all manner of cattle but so as not to oppress our Commons.
One notes the phrase “our Commons”. As we shall see, in village by-laws common rights in waste land are often expressed in loose or uncertain terms — sometimes all tenants, or copyholders, sometimes “all within this manor”, or “inhabitants”, or “cottiers”, or “parishioners” — except when they are referred to the courts. Legal definitions are generally more precise than actual usages, and they may become more so the higher they go up the ladder of law.
There were two occasions which dictated absolute precision: a trial at law and a process of enclosure. And both occasions favoured those with power and purses against the little users. In the late seventeenth century and certainly in the eighteenth the courts increasingly defined (or assumed without argument) that the lord’s waste or soil was his personal property, albeit restrained or curtailed by the inconvenient usages of custom. If the lord’s access to any part of “his” soil should be restricted “this will be a ready way to enable tenants to withstand all improvements”.22
Gateward’s Case, and successive decisions in this spirit of “improvement”, drew an expert knife through the carcass of custom, cutting off the use-right from the user. In one single operation this restrained unlicensed large interlopers, graziers and the like, in the interests of the landholders and customary tenants, and it altogether disqualified indistinct categories of small users, who held neither land nor ancient cottage tenures. While this may not have affected actual village usages much it could leave the landless commoner stripped of any rights if a case came to the courts, or at the point of enclosure. The right of use had been transferred from the user to the house or site of an ancient messuage. It became not a use but a property.
This did not happen instantly nor without ambiguities. The logic of capitalist rationality was delayed by deeply-rooted copyhold and customary tenures.11 Common appendant could not be detached and sold away from land, although at enclosure it was of course the land’s owner and not its user (if farmed by a tenant) who could cash the right. Common appurtenant could be sold with a cottage or with the site of an ancient messuage, carrying so many gates (or grazing rights for beasts) on the common. But this was not a novelty, and legal historians can press us back as far as the twelfth century when certain incorporeal rights (such as church advowsons) began to be treated as properties or “things”. Yet this was construed as a right in the “things”, not to “own” the thing itself — “a present right” to use or enjoy.
What was happening, from the time of Coke to that of Blackstone, was a hardening and concretion of the notion of property in land, and a re-ification of usages into properties which could be rented, sold or willed. For good reason Blackstone entitled volume two of his Commentaries, “Of the Rights of Things” — not because these rights were a novelty (they were an ancient chapter of the law) but because the market in these rights was never more active, or more prolific in tests at law than at this time. Moreover, one might notice that Blackstone referred, not to rights to things, but to the rights of things. The eighteenth century sees this strange period of mixed law in which usages and rights were attached to office or to place and then were regarded as if they were things which commanded human rights in their turn. The Rangership of a forest or park could be sold, with the powers, perquisites and rights attached to the office.11 An ancient messuage (or its site) commanded rights of common, and the thing could be transferred between owners. And in much the same way decisions of the House of Commons in disputed cases tended to re-ify the definition of those who might be electors in boroughs from indistinct categories such as “inhabitants” or the “Commonalty in general” to inhabitants paying scot and lot, and thence to persons inhabiting ancient houses or houses built on ancient foundations (Bridport, 1628 and 1762; Arundel, 1693 and 1715; Bramber, 1715). In Seaford in 1676 the Bailiffs, Jurors and Freemen “had not only voices. . . but also the Election was in the populacy” but in 1761 “the word populacy. . . extends only to Inhabitants Housekeepers paying scot and lot”, a decision in the same tradition as Gateward’s. In Hastings, 1715, electors were confined to “all with estate of inheritance or for life in Burgage Houses or Burgage Lands” within the borough.22 This led on to the absurdities of the Unreformed House of Commons, where the right of election could lie in dove-cots, pig-styes, a thorn tree or a quarry, and was exercised by the owners of these things by various fictions and stratagems. “The custom of attaching Rights to place, or in other words to inanimate matter, instead of to the person, independently of place, is too absurd to make any part of a rational argument” — thus spake Tom Paine.33
The re-ification — and cashing — of usages as properties came always to a climax at the point of enclosure. The owners of land and not the tenants (unless customary) received land in exchange for the extinguishment of rights. But the law, which disallowed the usages of the many, might allow as properties extinct assets and superordinate rights and offices of the few with “interest”. When the forest of Delamere was enclosed (1812) half of the eight thousand acres went to the King, together with £200 per annum in rental from the other half. John Arden, as Chief Forester, Bowbearer and Bailiff, with his under-keepers, were amply compensated for their loss of perquisites (including the “pasturage of coneys”), as was Thomas Cholmondeley “as Owner of the dissolved Monastery of Vale Royal, and of divers Messuages, Lands, Tenements and Heriditaments, heretofore parcel of the Possessions of the Abbot and Convent of Vale Royal”. All rights of common in the forest were extinguished, save for some “Moss Pits or Turbaries” too wet for pasture and impracticable to be drained: here peats might still be cut. Tenants at rack-rent received no land in lieu of lost rights, although the landowners (who did receive land for their tenants’ loss of right of common) were instructed to make them compensation.11 All of this was proper to law: it follows normal procedures. But it signals a wholesale transformation of agrarian practices, in which rights are assigned away from users and in which ancient feudal title is richly compensated in its translation into capitalist property-right.
When Kerridge writes that “to disallow unreasonable customs was, in almost every instance, to reject fraudulent ones” he astonishes one first of all by the claim to omniscience. (Even the great Sir Edward Coke said that “should I go about with a catalogue of several customs, I should with Sysiphus. . . undertake an endless piece of work”.) Of course, once the law had detached the right from the user, it could find reasonable grounds for disallowing usages of the greatest antiquity and certainty. The common law allowed “reasons” to be considered which had more to do with the political economy of “improvement” than with a strict attention to the terms of law. Many judges shared the mentalities of improving landowners (reasonable men) and they prided themselves on their intuition into the real intentions of their predecessors and of legislators. As Abbott, C.J. noted, in a case which disallowed (yet again) the claims of “inhabitants”,
The meaning of particular words in Acts of Parliament, as well as other instruments, is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used, and the object that is intended to be obtained.11
It was tough luck if language’s “popular uses” of right seemed unreasonable to a judicial mind. What Kerridge (and other authorities on enclosure)22 fail to examine is whether, by this re-ification of right and by this introduction of the reasons of “improvement”, the law itself may not have been the instrument of class expropriation.
By disqualifying imprecise categories of users — occupiers, inhabitants, residents, “all persons” etc. — Gateward’s and successive cases had left to the populace or to inhabitants only the exception of rights of way or easements, “as in a way or causey to church”.33 It was a large allowance. By raising to a reason at law the question of “improvement” it was possible to effect a marriage between “legal terms of art” and the imperatives of capitalist market economy. The decision in 1788 in the Court of Common Pleas against gleaning is familiar, yet it may be of interest to read it once again with an eye to the reasons of law.
Here was certainly a custom which had immemorial sanction and which continued with undiminished vigour into the nineteenth century. The practice was sanctioned by custom, but also regulated by village by-laws.44 Such regulation continues in the eighteenth century, as evidenced by some by-laws, although in other by-laws the practice is assumed, and passed over in silence. In Raunds (Northamptonshire) in 1740 there is a suggestion of tighter controls to exclude foreigners and paupers in receipt of relief: John Adams and family are presented for gleaning without a settlement (1s.), and the by-law is entered: “no certificate person shall either glean in the fields or cutt any furzes from the common”.11 A trial of the general question of right in 1766 in King’s Bench was confused. Gleaners, gaoled in Berkshire, had gleaned in an only partly cut field of barley. Lord Mansfield ruled that “stealing, under the colour of leasing or gleaning, is not to be justified”. But another learned judge remarked that “the right of leasing does appear in our books. . .”.22 The issue came up to Common Pleas in 1788 from an action for trespass against Mary Houghton, wife of John Houghton, for gleaning in closes at Timworth in Suffolk. The case does not appear to have been argued in terms of custom (perhaps because it would at once have fallen foul of the precedents established by Gateward’s Case) but on grounds of the universal recognition of the right at common law. The defendants were “parishioners and inhabitants of the said parish of Timworth, legally settled therein, and being poor and necessitous, and indigent persons. . .”. Lord Loughborough found the claim indefinite:
1st, I thought it inconsistent with the nature of property which imports exclusive enjoyment.
2dly, Destructive of the peace and good order of society, and amounting to a general vagrancy.
3dly, Incapable of enjoyment, since nothing which is not inexhaustible, like a perennial stream, can be capable of universal promiscuous enjoyment.
By removing the claim from custom to common law the defence had not removed the difficulty, since “if this custom were part of the common law of the realm, it would prevail in every part of the kingdom, and be of general and uniform practice”, whereas in some parts it was unknown and in others variously modified and enjoyed. As for the defendant’s efforts to enlist the law of Moses, “the political institutions of the Jews cannot be obligatory on us, since even under the Christian dispensation the relief of the poor is not a legal obligation, but a religious duty”. From this Lord Loughborough passed to a homily drawn directly from political economy:
The consequences which would arise from this custom being established as a right, would be injurious to the poor themselves. Their sustenance can only arise from the surplus of productive industry; whatever is a charge on industry, is a very improvident dimunition of the fund for that sustenance; for the profits of the farmer being lessened, he would be less able to contribute his share to the rates of the parish; and thus the poor, from the exercise of this supposed right in the autumn, would be liable to starve in the spring.
Mr Justice Gould gave a directly contrary opinion, with considerable learning and recitation of precedent. But Mr Justice Heath and Mr Justice Wilson came to the side of Lord Loughborough. Heath expressed himself with singular force: “To sanction this usage would introduce fraud and rapine, and entail a curse upon the country.” He entered even more largely upon the reasons of political economy:
The law of Moses is not obligatory on us. It is indeed agreeable to Christian charity and common humanity that the rich should provide for the impotent poor; but the mode of provision must be of positive institution. We have established a nobler fund. We have pledged all the landed property of the kingdom for the maintenance of the poor, who have in some instances exhausted the source. The inconvenience arising from this custom being considered as a right by the poor would be infinite. . . It would open the door to fraud, because the labourers would be tempted to scatter the corn in order to make a better gleaning for their wives, children and neighbours. . . It would raise the insolence of the poor. . .
Mr Justice Wilson concurred, but made a little more show of grounding his opinion in law:
No right can exist at common law, unless both the subject of it, and they who claim it, are certain. In this case both are uncertain. The subject is the scattered corn which the farmer chooses to leave on the ground, the quantity depends entirely on his pleasure. The soil is his, the seed is his, and in natural justice his also are the profits.11