Many, many posts ago I defined a right of common 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” and as we have also seen this usually involved commoners holding rights over the waste land owned by the lord of the manor. Importantly such rights did not of course exclude the owner of the soil from enjoying that soil alongside the commoners.
There were occasions though when rights had been established over some produce of the waste, or other commonable lands, from which the owner of the soil was totally excluded. These rights, known as rights of sole vesture, were not considered as rights of common by the courts precisely because the owner of the soil was excluded from ‘enjoying’ that particular produce of the waste. Nevertheless many features of sole vesture resemble rights of common and the law appears to have made little differentiation between them.
There are two areas where this is seen. The first that when claiming a right of sole vesture the claimant only had to prove that it had been made by an original grant from the lord or that they had enjoyed continued long use of the right without the lord demurring. As we will see in a later post these two methods were exactly the same as when a claimant sought to establish a right of common appurtenant. Moreover a right of sole vesture covered a wide range of produce which resembles those that could be taken under common of appurtenant. So for example the right of sole vesture extended to the use of the grass, underwood, corn and “all that comes in the sweep of the scythe” known as ‘sweepage’ and which we call hay.
Another similarity with rights of common is seen with a subclass of sub vesture known simply as the right of sole or several pasture. This was limited to the right to take “everything growing on the land by the mouths of the cattle” but nothing else. This resembles COPA of course which was restricted to a right of grazing by animals levant et couchant and nothing else. It is a rather confusing name because as Halsbury puts it, it was “a right of pasture for the commoners sole as against the lord, but in common between themselves”. As can be seen from this quote even though these rights were not rights of common per se Halsbury couldn’t avoid using the word commoner when describing the law. These rights of sole vesture incidentally were “frequently vested in a corporation for the benefit of burgesses, inhabitant householders etc of a town” a reminder that in the past most towns were embedded in the countryside and had a close connection with it whereas today many towns have just a thin rim of country surrounding them and no connection at all with it.
There were differences between the two types of right however. For example a right of sole vesture might be enjoyed for a whole year – or only part of it. The law here was complicated. Suppose the right of sole vesture covered the right to take peat. If during the period of his exclusion the lord attempted to enter the land and take peat the owner of sole vesture could summons him for trespass which must have been galling to the lord. On the other hand the lord was able to enter the land and remove other produce of the land, such as timber, chalk or gravel which were not covered by sole vesture without the risk of being summonsed.
Nor was the number or species of animals allowed to graze on the land limited as it was with common rights although it does appear that the law required that the number be restricted to that which their predecessors had grazed. In fact you did not even have to own any animals as the owner of sole vesture or pasture was free to let the right out in exchange for rent.
It might be wondered why the lord ever gave up his right to use the waste but they clearly did and this sometimes had curious results. Halsbury quotes one case where a lord had unrestricted access to certain common pastures until Lammas Day [1st August] when he had to clear all of his animals off the land except for three horses which he was allowed to graze “being thus reduced to the position of a commoner on his own land”. Unfortunately for him he attempted to keep more than three on the land and the owners of sole vesture took him to court!
Foldage and Foldcourse
If my sheep [if I had any] graze on your land without your permission it is a trespass but what if you made me graze them there? What if I had no choice but to do so? Worse still what if you demanded of me that I have to provide land for your sheep to graze on?
Foldage [1] was the right of the lord of the manor, or other person to whom the lord had granted the right, to have the sheep of the tenants enclosed on a fold on the lords land at night for the purpose of manuring it. Today electric fences would be used to constrain the animals but in the past the lord would use hazel or willow hurdles and the area in which the sheep were enclosed was fairly compact and could be moved around easily. The aim was for the droppings to be worked into the soil by the concentrated action of the flocks feet. As a right this appears to have been unchallenged even though it may seem a little unfair, and curiously the lord was not able to include his own sheep in the fold “because the nature of foldage is only to have the sheep, but not my own, folded in my lands in the night time”.
Halsbury noted that as a right “it is one which can hardly be said to exist at the present day” but that anciently it had spawned a connected ‘right of Foldcourse’ that was still in existence. Foldage was I believe quite widely found but the foldcourse appears to have been limited to East Anglia and was the practice of establishing a sheep fold on the fallow field and permanent pastures which could only be grazed by the owners of the foldcourse. These in turn were determined by the lord of the manor. The consequence of this was that the amount of grazing on the fallow and commonable grasslands was severely restricted and as one 16th century commentator noted “sheep farming was the business of big men”, exploitative lords and “covetous sheep farmers” [2]
[1] FOLDAGE: In Norfolk the term had a double meaning. In some parts it meant precisely what I have said but in other parts it referred to the fee paid by the tenant to the lord to exempt him from this burden.
[2] COVETOUS SHEEP FARMERS: See Sand into Gold: the Evolution of the Foldcourse System in west Suffolk 1200- 1600. Mark Bailey BAHR vol 38
Categories: In Depth
John Martin of Evershot 