Nobody quite knew quite how common rights had arisen. It wasn’t until the 16th century that that question was even considered, although most authorities agreed that their first appearance had been so long ago that it was, ‘’from time whereof the memory of man runneth not to the contrary’, or, as we will find it called later, ‘time immemorial’.
By the 19th century two theories had been proposed which were discussed by Thomas Scrutton, Professor of Constitutional Law in 1886.[1] The oldest of the two theories originated in the 16th century with Sir Edward Coke, was later developed by Sir William Blackstone and was known as the ‘legal theory’.
In this way of thinking the Anglo-Saxon ‘manerium’, mentioned so frequently in the Domesday Book and later equated with the feudal manor, was dominated at its inception by, as Blackstone referred to him, ‘the lord of the soil’. This lord ruled over “a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, both they, their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it.”
With the arrival of the Normans and their introduction of the feudal system produced a number of changes. According to Blackstone, the status of the Anglo-Saxon neo-slaves turned them into tenants. These tenants, having swore an oath of homage to the lord, he in turn “conferred [on them] a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition”. This state was called ‘villeinage’ as the people lived chiefly in ‘vills’ or villages.
On this view of things rights of common appendant were specific grants made by the Norman lord of the manor to his tenants [2] and nothing resembling them had predated them. Integral to this view was that rights of common started within the manorial court but that so necessary were they for good husbandry that in time they became generalised customs which in time transformed into a common law right. Oddly, given his later view, which I refer to in the next post, he makes no comment on how the pre-conquest serfs were allowed to use the waste as presumably they must have had to do.
This view was the prevailed for many centuries and it was suited entirely to the thinking of the jurists who by presuming that the right had been specifically granted could build and develop case law based on this presumption. In keeping with the general mood of society it also precluded the idea entirely that an individual had any natural or non-legal right to use soil which, even if God had made freely available at the creation, had by this time come into the possession of a tiny fraction of the population.
The second ‘historical’ theory, was propounded by a German historian, Georg von Mauer, in the mid- 19th century. It it sounds a little too idealistic to modern ears all that we can say is that it found favour with many English historians and lawyers of that time and may be summarised as follows. Anciently the natural way of people living together was in small communities or ‘vills’, evidence for which could be found across Europe reaching as far afield as India. In these vills were a number of what were later called ‘freemen’.
Specifically the vills in which the Germanic tribes of Northern Europe lived became known in time as ‘marks’ where these small groups of ‘freemen’ occupied land which was divided up and shared in common, the origin, it was thought, of the open arable fields. Evidence for this was thin and based on a comment made by the Roman historian Tacitus in in 98 AD ; “Land proportioned to the number of inhabitants is occupied by the whole community in turn and afterwards divided among rank. A wide expanse of plains makes the division easy. They till fields every year and they still have more land than enough.” Fairly vague but the best we have.
Within these communal fields each freeman cultivated a part of them and it may be assumed that they were worked communally perhaps in the nature of a modern cooperative; in such a world each person helped his neighbour with the daily activities of farming life, but who was, at the end of the day, solely responsible for the land which he occupied. As Tacitus recorded there was ‘more land than enough’ in the mark and this excess land formed what in later generations would be called the waste and later still ‘the common’.
Scrutton, with a keen sense of the nature of humans, describes the theory further; “It finds the beginnings of economic history in the self-governing community of freemen, owning their land in common, and cultivating it by customary rules. It professes to trace the degeneration of this free community through the aggrandisement or ancestral superiority of one of its members, who ultimately becomes its lord, the Mark of Freemen becoming the Manor of Villeins.”
In other words under this theory these ancient inhabitants of the Mark/Manor initially used all the lands of the mark freely but as some men became dominant within the community this free usage ceased, becoming subject instead to the consent of the community’s ruler. On this view of things then at the inception of the mark no special grant was ever made. Those who would later be called commoners had used the waste, without really thinking about the legal implications until such time as the dominant members of the community had reduced them to servitude. Even then it was argued, the right to use the waste had become a custom and in time would become a common law right.
In time, to this country, came the Anglo-Saxons who drove the native Britons [Celts] to the Celtic fringes of Cornwall, Wales, Ireland and Scotland and imported their own version of the mark which transformed into what Domesday called the manerium and which we take to be the manor. When in time they were displaced by the Normans it was all change again as the Normans rid the manors of their Anglo-Saxon lords and repackaged these ancient rights, held by custom, into legal grants from the lord to his tenant as described by Blackstone.
Historians have debated these two theories with no certain answer forthcoming as to which described the true state of affairs. At this juncture there is simply insufficient evidence to be able to decide the issue. In one sense it hardly mattered. It suited much later generations, to believe that rights of common were originally grants made by the lord and it was that view of their history that prevailed.
[1] 1886: Commons and Common Rights, Thomas Edward Scrutton 1886. Apart from J M Neeson’s book ‘Commoners: Common Right, Enclosure and Social Change in England 1700-1820’ all the books mentioned in these posts can be found on the archive.org.
[2] TENANTS: The position of the medieval villein could have been arrived at from opposing directions. He could have started life as an Anglo-Saxon freeman who had lost status or as an Anglo-Saxon serf who had gained it.
Categories: In Depth
John Martin of Evershot 