The word ‘common’ appears so frequently in the history of the countryside, that its true meaning can sometimes be obscured. Here the word is used in three contexts. The ‘commoners’ of a manor were those who were entitled to exercise a legal ‘right of common’ over certain lands in the manor known as ‘commonable lands’.
This series of posts is primarily concerned with rights of common and is, the longest series yet that I have undertaken. Rights of common appeared in a variety of settings. The Royal Forests had their own rights, and rules, and historically some towns held commonable land, but here I am concerned with those that arose within the thousands of manors that populated the countryside.
These rights have fascinated people over the centuries; the first history of them was written in the 17th century and others have followed, but these early accounts share the same limitation which is that were written by lawyers. That rights of common were a part of the law was not in doubt, countless cases appeared before the courts, but what the jurists sought to know was how they had arisen for that knowledge was in turn used to shape and develop the law. Their histories were composed from ancient law reports and as they reached back further in time the numbers of these that survived became fewer and fewer. This approach was of course seriously limited, imagine trying to write a history of current affairs based solely on cases coming to a magistrates court. Nevertheless it was all they [and we] had and with time they were able to codify the law surrounding these rights and much of what follows is derived from these sources.
Passing from the late 19th century into the early 20th century the interest of historians changed from the ancient origins of the rights to their recent loss. In 1911 a man and his wife, John Lawrence and Barbara Hammond published a seminal work called ‘The Village Labourer’[1]. The Hammonds were Liberals who were particularly concerned with the fate of the rural poor during the late 18th and early 19th centuries. To grossly simplify things their thesis was that a population of independent Yeoman farmers were reduced to a subservient, wage earning, proletariat [2] whose survival was dependent on a twin pronged fork. If the labourer was healthy he, and his family, survived on the prong of wages, paid by the landowners. If he wasn’t healthy or, if he could not find work, he survived on the prong of the poor relief,[3] which those same landowners helped pay for, and distribute.
The mechanism by which this reduction to servitude was achieved was parliamentary inclosure of common land, the only legal way of extinguishing rights of common. So what were these rights that were so important?
Rights of Common
In its simplest form [it will get more complicated later] a right of common was the legal right of person [B] to use the land of person [A] for some purpose. Without such a right if [B] had set foot on [A]’s land they would have been guilty of trespass and if [B] removed some item from [A]’s land they would have been guilty of theft. Some mechanism had to be found to ensure that [B] acted lawfully and the way found was the right of common. As we will see in legal theory person [A], who was almost always the lord of the manor, was deemed at some time in the past to have made a grant of the right to [B]’s predecessors as holders of some part of the land in the manor.
Rights of common were, nominally at least, ‘free’: the lord did not charge his tenant for the right which was considered to be ‘a gift of the lord[4]’. They were not therefore leases[5], which could be terminated after a period of years, or if the tenant was in breach of the terms of the lease; nor were they a form of freehold, even though they were heritable. They did not allow untrammelled use of the land, it always had to be reasonable and conform to the custom of the manor but nor could they be extinguished, except in carefully defined circumstances and certainly not at the will or whim of the lord.
The commonest right [you really cannot escape either word] was known as ‘common of pasture’ and was found in two forms, common of pasture appendant [COPA] and common of pasture appurtenant [COPR]. [COPA] allowed the holder of the right to graze his cattle, sheep or horses on parts of the lord’s land. Principal amongst these was the uncultivated waste, but COPA could at certain times of the year be extended over other lands in the parish which were known as commonable lands.
The great advantage of appurtenant rights however was that the range of rights could be extended to other uses of the waste. COPR was usually more restrictive generally allowing grazing over the waste although as we will see it was occasionally extended to some of the commonable land.
Legally these rights [and all other such] were ‘incorporeal hereditaments’ which is to say that whilst they had no tangible, physical existence they were still a form of property and as such could be protected at law should [A] try to deprive [B] of them. As property they also had a value to their owner and this value would become important when the lands over which they applied came to be inclosed. I will say more on this in the last post of the series.
As the grass that the tenant’s cattle ate came free to him, the tenant was said to have taken a profit from the lord’s land and for this reason a right of common was sometimes referred to as a ‘profit a’ prendre’.
By the beginning of the 20th century, when these rights were almost completely redundant, they had been in existence for nearly a thousand years and had become enveloped by body of law which defined and regulated them. In 1913, by which time parliamentary inclosures had extinguished these rights the jurist, Lord Halsbury[6], who will figure frequently in our discussion, gave the accepted definition as “a right which one or more persons may have to take or use some portion of that which another man’s soil naturally produces.”
As we will see rights of common are bound up with the way that the Anglo-Saxon invaders of the 5th century lived and organised themselves. Had they not introduced manors and their associated method of farming, known to later generations, as the open field system[7] then rights of common would have been unnecessary. Whether they invented the system I cannot say but for centuries the system was found extensively across northern Europe and it is believed they brought it to Britain.
[1] THE VILLAGE LABOURER: Barbara’s husband was John Lawrence but it seems he was always known as J. L Hammond. The full title is The Village Labourer, 1760 – 1832 A Study of the Government of England Before the Reform Bill.
[2] PROLETARIAT: A theme later developed by E P Thompson in his equally seminal “The Making of the English Working Class”.
[3] POOR RELIEF: As the Hammonds pointed out the adoption of the ‘Speenhamland’ system in 1795 led to lowering of wages paid by the farmers and landowners with the poor being supplemented from poor relief. This of course was raised from the wider body of rate payers, and was a neat transfer of costs by the farmers.
[4] A GIFT OF THE LORD: Although he did not charge his tenants directly for a right of common no doubt the lord was reimbursed indirectly through the feudal services he extracted from them.
[5] LEASES: Although confusingly they were sometimes called leazes.
[6] LORD HALSBURY: There is a wealth of literature that deals with rights of common but the bulk of this work comes from one or other of three great jurists. Sir Edward Coke the great Elizabethan barrister and judge. Sir William Blackstone whose, “Commentaries on the laws of England” were first published in 1765. They can be found in the libraries of virtually every National Trust house in the country and were required reading in the past as they are today. The origins of many obscure aspects of English history are answered therein. Finally there is Hardinge Stanley Giffard 1st Earl Halsbury who published 31 volumes on the laws of England. Much of what follows is taken from volume 4 concerning rights of common and was published in 1913, by which time inclosure had pretty well wiped out many of the rights he discussed.
[7] OPEN FIELD SYSTEM: Other rights of common applied elsewhere, the Royal Forests had their own rules for example whilst some towns had common lands.
Categories: In Depth
John Martin of Evershot 