Origins
There is much that remains unanswered about COPA. It was considered so old that nobody knew when it had first been granted, an indication one would have thought that it had existed long before the conquest. Legally it was said to have originated ‘beyond [before] the time of legal memory’, or as it is sometimes expressed ‘time immemorial’. However this date was set by the Statute of Westminster [1275] to be the 3rd September 1189, the date of the crowning of Richard I [1] and you would have thought that some form of records had survived between the Conquest and that time. But if the birth of COPA was in doubt then its death was not. After 1290, and the ‘Statute of Quia Emptores’, no new free tenants of the manor could be created and neither could new rights of COPA.
Sir Edward Coke was clear as to how the right had arisen; “The beginning of common appendant by the ancient law was in such manner; when a lord enfeoffed [2] another of arable land to hold of him in socage; as every such tenure at the beginning was, that the feoffee.. should have common in the lord’s wastes for his necessary cattle which plowed and manured his land, and that for two reasons : (1) because it was, as was then held, tacite implied in the feoffment (because the land could not be ploughed or cultivated without cattle and they could not be kept without pasture). (2) The second reason for the maintenance and advance of tillage, which is much respected in law; so that such common appendant is of common right…and commences by operation of law and in favour of tillage.”
A number of points are worth mentioning here. Socage was a form of free service that was a simple monetary payment so Coke was implying that COPA was only granted to free tenants of the manor and by implication that the unfree tenants of the manor were not able to hold the right. Moreover free tenants, enfeoffment and socage were a product of the Norman Conquest so he was also implying that they did not exist before that time.
Furthermore he appears to suggest that none of these enfeoffments specifically mentioned COPA when the arable land was first allotted. Instead he thought that COPA was tacitly implied within the enfeoffment. Coke gives two explanations for it being an ‘add on’ to the grant of land. Firstly as Blackstone thought, it was for ‘the necessity of the thing’ – the need to provide grazing over the winter but secondly to encourage tillage Coke expressly says that ‘the maintenance and advancement of tillage was respected and favoured in the law’, but does not provide any examples of how this was the case. This was picked up by Blackstone who also thought the right was designed to encourage tillage but does not say why tillage needed to be encouraged in the period under discussion. In later centuries of course conversion of the arable to create grasslands for sheep led to all sorts of problems but as COPA dated back before time immemorial this was not yet the problem it was to be in the 15th and 16th centuries.
Blackstone in his ‘Commentaries’ makes no mention as to which tenants were entitled to COPA; “Common appendant is a right, belonging to the owners or occupiers of arable land, to put commonable beasts upon the lord’s waste, and upon the land of other persons within the same manor”. He does not limit COPA to free tenants but also extends the right to other lands within the manor other than the waste. Under his view it would appear that unfree tenants could also hold COPA and that the difference between this and COPR was the way that it was claimed and that appurtenant rights could be claimed for other, products of the waste. Halsbury repeats Cokes view that it was granted only to the tenant holding by socage I.e free tenants again.
Common Law
All jurists agree that COPA was a common law right. Sir Edward Coke states that COPA is of “common right..and commences by operation of the law” and “the grounds of our common laws … were beyond the memory or register of any beginning”. Halsbury picks up on the point about the common law. COPA, he says, “is said to be “of common right” and a manorial privilege attached by the common law to a grant by the lord.. It has therefore been described as the common law right of every free tenant on the lord’s wastes.” Halsbury goes a little further than Coke and says “the law without express words” assumed that a grant of arable land “included a grant of sufficient pasture in the waste for the beasts” that were needed to plough the fields.
If COPA was part of the common law how did it become so? Well first of all it was based on custom, but this alone was not enough. Prof. Neil Duxbury illuminates the issues; “The common law, then, was understood to be customary (derived from general custom), but there was also this other category of law – local customs enforced by local and royal courts so as to be binding within a locality – which was customary law but not common law.
In other words universal or general customs, applicable in all parts of the kingdom and having the same rules became part of common law but local customs, although forming a body of local customary law, did not. Thus to talk of a ‘general custom’ was meaningless because as Sir Edward Coke pointed out; “A custom cannot be alleged generally within the kingdom for that is the common law.” [3]
In the context of COPA this raises an intriguing question. If grazing on the waste became a universal custom because, ‘of the necessity of the thing,’ why were other rights, equally important to the commoner one might think, such as the right to take timber for housing, not considered a universal right and so part of the common law?
We can now see why COPR was not a common law right – it was a purely local custom the terms of which varied from manor to manor. The holder of such a right could sue the grantor of the right for breach of contract but he could not do so under common law.
Terms and Conditions of Use
Being a common law right, the terms and conditions by which commoners held the right were universal and a body of common law had been built up governing them. They are mentioned here in no particular order.
A grant of COPA was made to an individual but once made the right was deemed to attach not to that individual, but to the land that he or she held. COPA was said to be incidental to the land which simply meant that it could never be severed from it. If a part of the original land was subsequently sold the new owner acquired a part of the right in proportion to the amount of land sold. Because the right was ‘partible’ or divisible then in theory as land was frequently sold this should have led to an increase in the number of commoners holding the right over time. In reality, as we have seen, the number of free tenants of the manor was always a small proportion of the tenantry and as there was a tendency for free tenancies to be re-acquired by the lord, COPA was always relatively rare and was certainly not found as frequently as COPR.
COPA was originally enjoyed in respect of the ownership of arable land for the simple reason that the tenant lived on the food he produced from land which could only be farmed by the use of oxen or horses. In later centuries however some ancient arable lands would be converted to grass, woodlands, gardens, orchards or even allowed to return to the waste. The rule was that so long as COPA continued to be exercised over the waste this alteration in use did not matter; so long as the ancient arable land, now converted to pasture, was capable of being returned to arable cultivation the right was retained. If the land had so far been altered [by a railway passing over it or a housing estate for example] then the right was lost. On the same principle if a cottage had been built on ancient arable land the occupant could claim right of COPA so long as he had a barton or yard to house his animals.
Quia Emptores had a mixed effect on COPA. After its enactment land could be sold to a new free tenant but they would not be a tenants of the manor. If the land they had acquired had been, or still was, part of the original arable land in the manor, then these new tenants would gain a portion of the COPA. However if the land they had bought had been created new, by encroachment on the waste, then no COPA attached.
Finally it was not in fact necessary for the owner of COPA to have any animals of his own; he could, for example, hire in cattle or allow a neighbour to exercise his right with the only proviso being that the neighbours animals were used to compost or work his land.
The Scope of Common of Pasture Appendant
COPA was limited in its scope in some respects and generous in others. It was limited because it only applied to free tenants of the manor and in the types and numbers of animals that could be grazed on the commonable lands. It was generous because it extended not only over the waste but also the commonable arable and grass lands. COPR, with the exception of Lammas lands was generally restricted to the waste.
Given that it was established before time immemorial it can have been no easy matter to prove that a right was an appendant right. Halsbury blithely says “When once it is proved that the land is held freely of the manor, and that it is in such a condition that it could be restored to arable land, if it is not such in its present condition, a right of common for commonable cattle necessarily attaches to the land, and may be exercised by the owner or occupier”. By the 19th century the chance of producing the original grant must have been very rare if not impossible. The subject of how a commoner could prove [s]he a commoner is the subject of another post.
The range of animals that could be grazed under COPA was “confined to such cattle as serve for the maintenance of the plough, as horses and oxen to plough the land, and sheep and kine [cattle] to compost it.” It would appear that the right was extended to sheep that were, of course, not necessary for the plough, the justification being that they would manure or ‘compester’ the waste.
One problem with having general or universal principles is how do you accommodate local circumstances? Since the size and quality of the waste varied the lawyers had to find a way of establishing a general principle whilst allowing people locally to apply it locally. One general principle under the common law was that the number of animals allowed on the waste was always limited. How the common law dealt with this is described here but the practical details as to how things were arranged at a manorial level is discussed in ‘A history of the commons: rights in practice’.
Overgrazing of the waste was a perennial problem and it was a common complaint by the inclosers that the animals kept on the waste were poor, underweight, specimens of no value to anyone, including themselves. Stinting, or limiting, their numbers was thus necessary but if the numbers to be depastured [grazed] on the waste was to be limited the inevitable question arose as to how many animals it should be. The universal principle that was adopted was that the number to be grazed should not exceed “that which the common could maintain by it’s produce throughout the winter”.
Although rights of common allowed man [B] to take a profit from the land of man [A] it was expected that this profit should be restricted to a bare minimum. As the grass did not grow through the winter the profit, the amount of grass available to be eaten, was effectively limited and fixed. The only way of preventing overgrazing was thus to reduce the numbers of animals allowed on the waste. The definition as given might be thought to be fudging the issue but it did at least allow the matter to be decided locally. This was decided at the manorial level and [spoiler alert] was decided by assessing the total number of animals that could be supported and dividing them by the number of rights of common there were.
Levant et Couchant
At this point we must introduce a French term that appears widely in court cases – “Levant et couchant”. This means, literally, ‘rising and lying’, and became the measure of what number of animals the common could support. Precisely why the term was used in this context is not known; its original use was in a completely different setting when it referred to the speed at which a servant could rise from sleep to serve his master: later it became used to define when a wandering cow officially became a ‘stray’. This was typically one night and was based on the time that it took a cow to lie down [after eating] and get up again [to eat].
In one of those curious and bizarre mysteries a phrase that literally referred to the behaviour of cattle became shorthand for both the limited number and species of animals that could be grazed on the waste. By the end of the 13th the right of a lord to grant COPA was effectively extinguished and it was replaced [probably] by a new right of common appurtenant [COPR].
[1] TIME IMMEMORIAL: The definition of this has changed over the years. For legal purposes in the 12th century, it was set at the date of accession of Henry I [5 August 1100]. In the 13th century it was moved to 1 December 1135 [the day of Henry I death] then in 1236 it was moved to the date of accession of Henry II [19 November 1154]. Finally the Statute of Westminster referred only to the reign of Richard 1. Initially the date chosen was the 6th July 1189, the date of his accession ,but Edward 1 preferred the date of crowning to be used which was 3rd September 1189. This it has remained ever since.
[2] ENFOEFFED: A fief or fee was a feudal estate in land. When someone [the feoffee] was enfeoffed they were granted land in exchange for some form of feudal service. Socage was free service involving a simple monetary payment like a rent. The Tenures Abolition Act of 1660 abolished such all feudal incidents and service. Even so the ‘Free Tenant of the manor’ still had to swear homage to the lord to retain his right of COPA. After the statute of Quia Emptores [1290] arable land in the manor could still be sold but legally new tenant was no longer a tenant of the manor even if he was in practice a tenant in the manor.
[3] COMMON LAW: Duxbury, Neil (2017) Custom as law in English law. Cambridge Law Journal. ISSN 0008-1973 available at http://eprints.lse.ac.uk/70258/ All emphases have been added by me.
[4] ONE AUTHOR: Elizabeth Lamond, Walter of Henley’s Husbandry 1890.
Categories: In Depth
John Martin of Evershot 