If the impression is that commoners were still to be found in large numbers by the beginning of the 19th century there was also an impression that there were a large number of people who used the wastes and commonable lands but who were not, in legal terms, commoners. It is difficult to know how many of them there were or how many actually claimed rights of common but the inclosure at Kingsclere exemplified the problem.
The Kingsclere Inclosure exemplifies the problem. Martin was involved only peripherally in this controversial inclosure [https://johnmartinofevershot.org/kingsclere1838/] which started in the early 1830’s and continued on and off over the next decade before finally being inclosed in 1845.
The issue at Kingsclere revolved around the fact that some time earlier, certainly over twenty years before the inclosure bill was introduced, nearly two hundred cottages had been built on the common and their occupants, without being commoners themselves, had grazed their cattle in the same way as the commoners. The erection of cottages highlights a perennial problem for large wastes and an act of 1589 set out to forbid the erection of all cottages unless four acres of land, adjacent to it, were also attached. The act did not target the erection of cottages on the waste specifically but the mistaken belief was that it was legal to build a cottage so long as it had been built, roofed and smoke had issued from its chimney all within the space of a day. Whilst this was not in fact true the obvious place where this might be done, away from prying eyes, was on the waste. The question arose as to whether the cottagers at Kingsclere possessed any rights? It was acknowledged that the cottages were over twenty years old and that nobody had objected to their erection but there was vocal opposition to the inclosure recognising that to dispossess them of their cottages and grazing would do them serious harm.
It is difficult to know what percentage of those who claimed rights of common were ‘legal’ commoners and not just those exercising the right without possessing it. Only two things though convinced an Inclosure Commissioner, or the Courts, that a man or woman genuinely possessed a right of common and neither were was easy to prove.
A right obtained by a supposed grant.
The production of the original grant detailing the land to which it was attached was absolute proof of the possession of a right. Since some at least of these grants did actually date back to time immemorial the odds of them surviving must have been vanishingly small.
Even if the court roll, or a copy, confirming the original grant was not available the manorial records were still of some help and we should not discount the influence of the lord of the manor on the commissioner. His interest was best served by ensuring as many legal commoners were recognised as possible whilst at the same time ensuring the claims of the ‘illegal commoners were discounted’. On the one hand the legal commoners were, as often as not, his customary tenants and any land granted to them, in lieu of their rights, would eventually revert to him or her should the tenancies fall in. On the other hand, as we will see in the next post, the amount of land granted depended in part on the number of rights of common so it was in the lords interest [and all the other landowners] to reduce the total number of claims.
We might imagine then that for certain individuals the lord might produce evidence of a right, even if he could not produce the actual grant. Many manors had by this time undertaken surveys of their lands precisely because they had lost track of who held what land and on what terms. The law, as we shall see, was not above making assumptions along the lines of, ‘ if this, then that’. ‘If’ a lord of the manor had recorded the rights of his tenants in a survey then it followed ‘that’ his predecessors had made an original grant.
This could have unexpected results. In 1807 Edward Watts surveyed the manor of Rampisham where he found Martha Bartlett [57] Thomas Rogers [35] and Elizabeth Bartlett [24] to be in possession of some five acres of land and the right to keep two bullocks on the common and three on the hill. But his entry also noted, in pencil, next to Martha’s name “Her life dont seem by the Lords book to have ever been afore upon this estate”.
In the event it does not seem to have done Martha much harm as she was awarded land on The Hill under the 1815 inclosure suggesting a pragmatic, if not strictly legal, attitude to accepting her claims.
Court rolls, even when they have survived do not usually spell out common rights explicitly. In 1818 John Jennings was admitted as tenant of John Daniell at Rampisham when John Flood surrendered his tenancy. The court record reads:
“Whereupon at this same court John Jennings of Evershot in the county aforesaid Attorney at Law under and by virtue of the said power of attorney and took of the Lord aforesaid by delivery of the Steward the said moiety of one cottage with appurtenances [etc.] which was now surrendered / all Timber trees Heyres [sic] and other trees excepted / to have and to hold the said cottage [etc.] to the said John Jennings for and during the lives of the said John Wallis, William Wallis and John Wallis the younger, at the life of the youngest liver [sic] of them at the will of the Lord according to the custom of said Manor”.
The next part of the court roll tells us that Jennings would pay 2s 8d in rent in two instalments and when he died “ for a Heriot when it shall happen 5s and by all other works, Burthens, Customs suits and services therefore due and of right accustomed.
There is little here that refers to rights of common excepting the highlighted words. It would seem that much was left loose and vague but this too may have been legally acceptable for it left open the ability to introduce evidence from other sources, such as other tenants of the manor having similar rights. To put it simply if tenants [A], [B] and [C] had a right it was likely that tenant [D] also had it.
Although I have no proof of this I wonder also if a grant might have been inferred from other sources. For example if the manor still contained open arable fields then the possession of land in them might be deemed sufficient to establish a COPA as it was always incidental to those lands.
Where the arable lands had been converted by previous, ‘old’, inclosures into pasture field names may have helped. The open fields were rarely named imaginatively, North, South, East and West fields being by far and away the commonest names and after inclosure were often retained in use. At Child Okeford there were no fewer than nine separate closes of grassland named Southfield, four named Northfield and two Middle field. COPA was not extinguished by conversion of arable to pasture so possession of one of these closes would have acted as evidence that the claimant held a lawful right; I suspect that in these instances much may have depended on the lord of the manor’s attitude to the claimant.
A right gained by ‘Prescription’.
What though if the claimant, or the manor court, had no record of a grant? How could their claim be legally acknowledged if not legally verified. Even the most cynical of judges had to accept that at the least some of this group of claimants had legitimate claims and that if these were not accepted that there was a risk of them being derived of their property rights: perhaps the worst crime conceivable to our ancestors. Cynicism aside the difficulties or proving a right were not lost on even our most ancient judges and these difficulties came with consequences, which later legislators recognised, was, at the least, ‘productive of inconvenience and injustice’.
The solution to the problem came in what was something of a legal ‘fudge’ which appears to have had its origin in the notion that ‘possession is nine tenths of the law’. Every manor, every parish, every county and every country had their own customs, patterns of behaviour that were found within the community. If the community was wide enough, when a custom became ‘national’, when its practices were known and consistent across all communities, it could become a part of the common law; this was the case with common of pasture appendant [COPA].
Another custom that was sufficiently widespread to gain a common law right was the doctrine of ‘prescription’. This said simply that if an individual had a long, continuous and unchallenged use of some thing or another, then that individual had acquired a legal right to use that thing.
An individual lacking the evidence of a specific grant, could go before a court and assert “that he and his ancestors, whose heir he is, have, from time immemorial, or, in the legal phrase, from time whereof the memory of man runneth not to the contrary, openly,[and] uninterruptedly” exercised the right he was claiming. In doing so he was claiming that right “by prescription, and the right which he claims is called a prescriptive right [1]” which was a legal entity.
To gain a prescription the individual had to sue the landowner, a daunting and expensive business at the best of times. This fact alone suggests a breakdown in relationships within the manor and the claimant could not rely on the argument that because fellow tenants [A], [B] and [C] had the right it was likely that he, tenant [D] also had it.
The doctrine made three very bold assumptions; firstly that a grant had been made, but had subsequently been lost; secondly that such grant had been made before time immemorial in which case, like COPA, it must only have covered animals levant et couchant. Finally as Williams noted “It is a maxim of law that all things are presumed to be rightly done” and perhaps this was the biggest stumbling block to overcome at Kingsclere for whilst the cottages might have been erected a sufficiently long time previously, and whilst the landowners might have tolerated their presence it was unlikely that any reasonable lord would have consented to their construction: nobody would have believed that things had, in the phrase used, been ‘rightly done’.
To gain a right by prescription it was not necessary to show that it was appendant or appurtenant to a particular piece of land, it was only necessary to prove continued length of use etc. It will be seen however that Williams’s definition contains two measures of time which were not, quantitatively, the same. Originally ‘time immemorial’ had conceived of as a movable date. Before the 11th century it appears that “The memory of man originally was, as long as the oldest person in the neighbourhood could remember” but at some time that changed. Various types of legal case concerning property had to be brought to court in the form of what were known as ‘Writs of Right’. The writ specified a time of limitation, a period in which the claimant had to prove that his ancestors had exercised the right since at least that time.
In the middle of the 12th century the claimant had to prove it extended back to the time of Henry I [ 1100 – 1135] and then as that generation died out the date was moved [leaving out Stephen] to the time of Henry II [1154 – 1178] and then to the first year of Richard I’s reign 1189. Such measures were still rather arbitrary however and as time passed, for most writs of right, with one exception, time immemorial ceased to be used as the time of limitation, the claimant having only to prove that he or his ancestors had exercised the right for sixty years.
The exception to this rule as you might have guessed was when it applied to prescriptive rights for here the courts stuck with the old formula relating it back to time immemorial which by this time was fixed as September 1189. As the centuries passed and faced with the impossibility of being able to prove this the courts, without any statutory sanction, applied their own rules which were that “A regular usage for twenty years, not explained or contradicted” was sufficient evidence that a prescriptive right existed. Of course if somehow or other it could be proved that exercise of the right had begun after time immemorial then it was lost; worse still in so far as rights of common were concerned the time period was not twenty years but sixty!
Another consequence of using ‘time immemorial’ was that it precluded copyholders and lifeholders from claiming by prescription as their tenancies were deemed to have been created after this time. But what if the lord attempted to deny one of them their rights? What then could be done ? Once again we see the courts taking a pragmatic approach because of ‘the necessity of the thing’, “In order, therefore, that the copyholders may have some legal remedy, an exception has been made in their favour ; and they are allowed to insist upon their rights by alleging a custom within the manor, that all the copyhold tenants have such a right. This departure from the ordinary rules of pleading, appears to have been made by reason of the necessity of the case”.
In the absence of any written records it might be thought that it was as difficult to prove sixty years of use as it was to prove it was from time immemorial; it must be assumed that they resorted to oral verification by resorting to the original criterion of relying on the memory of the oldest person in the neighbourhood. As late as the 1850’s older residents were wheeled into court to attest to the ancestry of some ancient custom [2] or other.
If the memory of the oldest resident was to be used how long a memory should he have? A year, ten years, twenty, sixty? One problem was that rights gained by prescription were not confined to rights of common and there appear to have been different times of limitation for different right. In practice, before the Prescription act of 1832 [see below] it appears that any period of between twenty and sixty years was accepted.
There is a paradox inherent in a prescriptive right. On the one hand if it could be shown, by the memory of man, to have been exercised for at least twenty years the right would stand BUT if it could be shown [4] in some way or another that it had been instituted thirty years before then it would fall; the right being lost because it had then been proved to have originated after ‘time immemorial’.
It seems then that the way in which prescriptive rights were granted in the courts was inconsistent and in 1832 the government decided to act. It passed “An Act for shortening the time of prescription in certain cases” known more simply as the Prescription Act. The preamble to the act tells us that “ the title to matters that have been long enjoyed is sometimes defeated by shewing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice.”
I think it fair to say that the act was not an unalloyed success. One thirty eight page review of the Act published in 2019 described it as ‘A statute without friends’ [6] and it was being criticised within a few years of its passage for inconsistencies. Nevertheless the fact remains that for those who had no original grant, certain specified rights could be obtained by prescription.
At the time of Inclosure.
Many people thought they had rights of common but when it came to making a claim under an inclosure act they had to convince the inclosure commissioner that this was the case. Common rights had been introduced originally ‘for the necessity of the thing’. At the inception of the open fields that necessity applied to all the inhabitants. They may have been separated into rigidly defined ranks, free tenants, villeins, serfs and so on but they all gained from the arrangements. By the 18th century that was no longer the case. Between these two extremes of time we can imagine that at some time a class of villager developed who, though still needing access to the waste, were not legally commoners. Seeing the necessity of this some manorial lords no doubt tolerated this use without formalising it. All over the country though there was a veritable hotchpotch of people claiming rights. Some were small freeholders who had broken away from the power and protection of the lord , some were cottagers, squatters and day labourers who supplemented their wages with what they could earn from their cow on the waste. Most of them had come to believe that custom alone would protect them. In this they were wrong. As Sir Edward Coke pointed out ‘general’ customs, such as COPA, were not customs they were a part of the common law but local customs, what went on in your village or parish or manor never acquired that status, never became law.
Whilst there may have been a gradual attrition of ‘legal’ commoners over the years the process of inclosure imposed a sudden and dramatic clarity on village affairs. Inclosure commissioners could accept evidence of a right of common in the form of a grant or the acknowledgement of the manorial lord of a right and they had to respect a court made prescriptive right but there was little or no ‘wiggle’ room to allow other ‘non-legal’ claimants to have their claims acknowledged.
Prescription however offered a way out for some but it is difficult to believe given the expense of the law and the complexity of proof that many took the opportunity of getting a determination. Gaining a prescriptive right was an individual affair, there was no room for the modern equivalent of a ‘class’ action.
We can never know how many lost their rights of common, real or imagined, when it came to inclosure. What differentiated the poor of Kingsclere from the poor of a thousand other parishes was that coming two year after the ‘Great’ Reform act of 1832 their case was taken up by a local member of parliament. This was a politically charged inclosure being opposed by men labelled Jacobins, Levellers, Cobbettites, Radicals and worst of all ‘Democrats’ who in turn derided the proposers as “The Duke, [The Duke of Wellington], the Lord, a parson, the attorney….with the little Marquis..” [7] Some accommodation for the poor was made at Kingsclere, albeit not to the satisfaction of those opposing the bill. One senses that the minimal concessions made were done for purely political reasons and not for any great concern for the welfare of the poor!
At the end of the day proving ownership of common rights was not the only or perhaps the most important factor in depriving the poor of their rights as I will discuss next.
[1] PRESCRIPTIVE RIGHT: Rights of Common and Prescriptive Rights, Joshua Williams 1877. All other quotes are also from his book.
[2] MEMORY: An example of this can be seen in a case brought in 1851 concerning the common a part of the common at Child Okeford. The final inclosure of the common land in the parish had taken place in 1845 together with the extinction of all rights of common. It appears though that nobody had told a man called Job Trowbridge. He was brought to court for cutting furze [gorse] on a remote part of what had been common land, known as Gobson Common. He claimed he had retained the right and in support of his claim another villager Jame Rose gave evidence: “I am a labourer. I live at Sturminster Common. I have known Gobson Common for fifty years. I have known Job Trowbridge’s father for fifty years. I have known him cut the furze on the common and he sold it for what he liked. I have known Job ever since he was born. I know nothing about the award. I have never known any rent paid for it…Any one living on the common had a right to cut the furze.” Trowbridge lost the case.
[4] SHOWN: It is not clear what evidence, other than an original grant, was accepted to show that the right had commenced after time immemorial. Even the Prescription Act was vague mentioning merely that “such claim may be defeated in any other way by which the same is now liable to be defeated”.
[6] A STATUTE WITHOUT FRIENDS: “Lord Tenterden’s 1832 Prescription Act: Why was it passed, and was it a failure?”Prof J Getzler Oxford University Research Archive 2019
[7] THE LITTLE MARQUIS: The newspapers were keen not to use real names to avoid the charge of libel. The plight of the cottagers at Kingsclere was in fact fought in the court of public opinion by Mr Walter, the Member of Parliament for Berkshire who “ In 1834 ….by his exertions, had caused the measure which was at that time proposed to be rejected. How did he effect that object? He sent down a surveyor to Kingsclere to inquire into all the circumstances connected with the proposed inclosure. He sent that individual down at his own expense. The surveyor made his report—it was unfavourable to the plan of those who supported the Inclosure Bill, and the bill was thrown out. In 1835 the friends of the inclosure again brought a bill before the House and it was abandoned”. Hansard 20 April 1842]
He used the newspapers effectively to highlight the injustice of the proposed act as well as speaking in parliament.
Unfortunately I have been able to find little about Mr Walter or what motivated him and in 1842 the parish was finally inclosed.
Categories: In Depth
John Martin of Evershot 