For over a thousand years a particular way of living prevailed in many areas of the country. It was introduced to this country, it is believed, by the Anglo-Saxon’s and it appears to have been a revolutionary way of living. The system they introduced must have been small in scope at its inception but being capable of expansion it was to turn into an early example of intensive farming that produced a healthy surplus in good times. The system was just that, a system. The manor and its lord, the manor court, the open fields, the tenants of the manor, the management of the fields and rights of common were all essential to its good working; should any component fail the system would not collapse but it would be severely weakened.
Rights of common allowed a tenant of the manor to use and take a profit from certain parts of the lord of the manor’s land without paying for the privilege. The most important land in this context was termed the waste [better know later as the common]. Since the lord of the manor and his tenant, held wildly different places in the social hierarchy, it would seem a strange arrangement from which the lord stood to gain little.
The disadvantages [1] are obvious. In the short term he lost the produce that was removed from his land, in the medium term he was not able to sell the waste and in the very, very, long term, when it came to inclosure, the existence of rights of common reduced the value of the waste. Furthermore until the advent of inclosure by parliamentary act in the 18th century there was little he could do to mitigate their effects. Why then were rights of common so ubiquitous? Why did lords of the manor grant them in the first place?
The simple answer was that he had no practical choice in the matter; rights of common had to be granted, as Sir William Blackstone elegantly put it, ‘for the necessity of the thing’.
The 18th and 19th centuries view of the open field system was that it was an anachronism, constantly criticised as inefficient, incapable of improvement and, worse still, corrupting the character of the poor. The truth was that with good weather and with God, or luck, on their side, the farmers in their open fields regularly produced surpluses of corn [2] but it was a system that was entirely dependent on the really important workers in the manor, the oxen and horses [3]. Without them the land could not be ploughed, manured, the crop hauled away from the fields to the safety of barns or the numerous hay ricks that peppered the grasslands. There was only one imperative for the villagers and that was to provide sufficient grazing, hay and straw to keep their animals alive over the winter months; if that couldn’t be achieved then, even if you yourself survived it would be back to subsistence farming for many of the following years.
Given this dependence on the livestock it is surprising to learn that before the 16th centuries little attention was paid by farmers to the grasslands of the manor [4] and that in earlier centuries the area of grasslands dedicated to the production of grass and hay was limited. John Martin’s home parish of Evershot for example had a mere twelve acres of meadow at the time of Domesday [1086], together with 1.5 leagues of pasture. It is true that we are not entirely sure how big a Domesday acre is compared to a statute acre but it would have to be massive in order to support the five plough teams found in the manor at that time. Today it is estimated that one acre of average quality land will support one cow for a year. In order to support the forty oxen or so that made up those Evershot plough teams the pasture and meadow in the village would have had to be more than three times the area found in Domesday.
The first person to point out this deficiency in grassland was Sir William Blackstone [5] who noted that “pasture could not be had but in the lord’s wastes, and on the unenclosed fallow grounds of themselves and the other tenants”. Carolina Lane, has gone so far as to say that, until the beginning of the 16th century, “livestock were essentially scavengers upon the bits and pieces of land that were allocated for their provision. Very little fodder was deliberately cultivated for winter feeding and most farmers made no conscious effort to expend energy for the production of food for livestock.[6]”
There were in fact three sources of grazing within the manor. By far the most important was the waste of the manor. Next there were the arable fields which at certain times of the year became available for grazing and finally there was the output of such grasslands in the manor as there were – the pastures and meadows.
For the survival of all inhabitants of the manor the lord, as well as himself, find some lawful means had to be found to allow the tenantry to use the waste and that means was the right of common. Thus when Blackstone wrote that rights of common had to be granted “ for the necessity of the thing” he was stating little more than the obvious.
Necessity though was not the only motive for the lord to grant them. Sir Edward Coke enigmatically added a second reason for its existence which was that it was a matter of public policy to advance ‘tillage’. [7] This point reappears in Blackstone when he too refers to rights being granted ‘for the encouragement of agriculture’ as well as the necessity of the thing. Unfortunately it is not clear why either of them thought that tillage specifically needed encouraging. It is certainly true that following the inclosures of the 15th and 16th centuries there was a shortage of tillable, arable, land following its conversion to sheep pasture but rights of common had been in existence long before the growth of sheep farming so the question remains why in those early times tillage had to be encouraged. The point remains unanswered.
When did rights of common first arise?
If we accept the ‘historical theory’ as to the origin of rights of common [see previous post] then such a right must have arisen early in the development of the open field system, certainly back to the Anglo-Saxons. This at least was the view of Sir Kenelm Edward Digby who wrote, “There can be little doubt that the practice of pasturing by [the] inhabitants has descended from very early times, and was in fact a recognised right in the community before the idea arose that the soil was the property of the lord. To the same origin doubtless must be referred most of the rights of a similar character enjoyed by freeholders and copyholders. These rights did not in fact originate in a grant, they were recognised at a time before the notion of the sole ownership of the lord came into existence.”
If we accept the legal theory of the right of common as expounded by Blackstone and later jurists they can only have arisen after the Norman conquest when to the Anglo-Saxon manor was added an additional component- the Court Baron. The argument against the historical theory was expressed by Scrutton: “The facts still remain that at the Conquest an almost complete change of ownership took place, and that there is no evidence that any particular respect was paid to vested interests or pre-existing rights. It may be that there was a state of things existing which should have given and did give the cultivators a moral claim to the consideration of their lord; but how from the point of view either of law or history their legal rights can be said to originate otherwise than in the express or tacit grant of the lord, it is hard to understand”.
Oddly Scrutton did not see that the two ideas were compatible if you allow history a little imagination. ‘The necessity of the thing’ was a feature of the open field system and not just who was running the system at a particular time. The necessity had been present from the very first time that man used oxen to plough his fields. No doubt the Normans had a moral claim to consider their tenants after the conquest as Scrutton said, but it must always have been secondary to the necessity of keeping the animals alive. If rights allowing access to the waste had existed pre-conquest then they simply had to exist, albeit modified in legal form perhaps, after the conquest. Without such a right their estates, and all in them would wither and die.
[1] DISADVANTAGES OF RIGHTS OF COMMON: The ability to inclose part of the waste was granted to the Lord of the Manor under the Statute of Merton providing he left sufficient land for the free tenants to use.
[2] CORN: Lest there be any doubt on this point. The reader has only to refer to any serious history of any of the feudal kings who were regularly supplied with massive quantities of grain during their interminable military campaigns in this country and France. Corn is here taken to be any combination of wheat, barley and oats.
[3] HORSES: Oxen had great strength but little stamina. They were however cheap and would eat almost anything. Horses were as strong, had greater stamina but were fussy eaters and not so good in hard ground. They were also expensive to feed and maintain and Walter of Henly noted that although they were faster, “the malice of ploughmen will not allow the plough of the horse to go beyond their pace”. In other words the ploughman would walk no faster behind a horse than they would behind oxen so there was little point in paying the extra cost. Retirement for both animals was not what they might wish after a lifetime of toil. Oxen were eaten but it was not the custom of the English to eat horses who were simply turned into leather.
[4] MANOR OR PARISH: I tend to use the term manor and parish interchangeably. Manors were in existence long before parishes and were the first unit of local government but with the passing of the centuries as manors declined parish assumed this role.
[5] BLACKSTONE’S, “Commentaries on the laws of England” 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. Many obscure points of history are answered therein.
[6] FEEDING LIVESTOCK: The Development of Pastures and Meadows in the 16th & 17th centuries. Carolina Lane Agricultural History Review vol 28.1, 1980
[7] TILLAGE: is the process of preparing the soil by ploughing, harrowing and so on before planting. In the context Coke used it though it was to encourage arable farming generally.
Categories: In Depth
John Martin of Evershot 