[430] Pollock and Maitland, _History of English Law_, vol. i. p.

606. For the questions concerning common rights see _ibid._, pp.

594-624, and Maitland, _Domesday Book and Beyond_, pp. 340-356; Vinogradoff, _Villainage in England_, Essay II. chap, ii., and _The Growth of the Manor_, Book II. chap. iv. I have followed Vinogradoff's rather than Maitland's view.

[431] For buying and selling of pasture see below, and for enclosure pp. 168-170. The following seems a clear case of more or less corporate action. Holkham MSS., Burnham, Bdle. 5, No.

94: "Copy of an indenture between [here follows a list of names]

of the same town and county, yeomen, as well on the behalf of themselves as of the rest of the comoners and freeholders of the said town of the one part, and Robert Bacon of [illegible] in the County of Norfolk, and Thomas c.o.ke of Grays Inn in the County of Middles.e.x of the other part, that whereas heretofore Sir Philip [illegible] being lord and owner of the marshes hereafter mentioned ... did by his indenture of bargain and sale bearing date ... 1588, grant bargain and sell unto [list of names as above] all those marsh grounds lying and being in Burnham, to have and to hold the said premises to the parties last before mentioned and their heires to the use of them and their heires for ever, to the intent and purpose notwithstanding that the said parties last before mentioned there, being inhabitants in certain ancient messuages in the said Towne, and all other inhabitants of the said Towne there and afterwards for the tyme being in any of the ancient messuages and cottages in the said towne, for so long time as they shall be there inhabitinge and noe longer, according to the quant.i.ty of their tenures within the said Towne might depasture and feede the land as by the said deeds referring thereunto being had may more fully appeare; [it recites that the land] may by wallinge and embankinge the same be improved to more than a [illegible]

value, and made fitt for arrable, meadowe, and pasture grounde, whereby tillage may be increased and his Majestie's subjects receive more employment thereby, and danger of drawing [drowning?] of their stock for their feedinge prevented [recites that Robert Bacon and Thomas c.o.ke have undertaken to drain the land in return for receiving three parts of it and that the persons above mentioned] being the major parte of the parties interested in the said salte Marshes, and being enabled by the lawes and Statutes of this realm to contract and bargaine with any person or persons for the draining thereof" [now convey 3 parts of the marshes to the above-mentioned Robert Bacon and Thomas c.o.ke], June 8, 1637. The motive of this agreement was to get the low-lying meadows on the sea-coast drained. Drainage schemes were much in the air about this time, and any one who has seen the country near Holkham and Burnham will know how badly protection from the sea was needed. Two points are worth noticing: (i.) the tenants have no objection to surrendering part of their common if they get a _quid pro quo_; (ii.) they act as a single body. They buy land and they sell land and they can leave it to their heirs. Certain persons in the township act on their behalf, much as directors might act for a body of shareholders. Is it possible to speak of such arrangements simply in terms of individual rights? Are we not driven to think of the township as almost a landholding corporation?

But, in the second place, such communal aspirations are a matter of feeling and custom, not of national law. It is hardly necessary to point out that these words do not put an aspect of the case which could be pleaded in court in a dispute as to common of pasture. At the touch of the law, as has often been pointed out, the communal element, of which Southampton makes so much, seems to crumble away. If, to the eye of the peasants, a manor was a more or less self-conscious community with considerable powers of controlling the administration of its pastures, it was, to the eye of the common lawyer, a collection of individuals bound together by their relation to the manorial authorities, but in other respects able to enforce rights of common only in so far as those rights could be shown to be enjoyed by one of the four[432] t.i.tles which the law recognised. It is quite true that in practice the use of common pastures extended to persons who could not plead one of those t.i.tles, and that the economic working of the village often cannot be brought inside the four corners of a legal formula. But when a right of pasture is challenged by the lord of the manor, the tenant must show that his right falls within them or lose his case. Of those four t.i.tles residence in a manor was not one. The occupier who is the unit of English Local Government to-day had, as such, no standing, because he was not, _qua_ occupier, a holder of one of the arable shares with which, primarily, rights of pasture went. Again, a great number of cottagers and day labourers, who were not holders of arable, but who in practice used the commons for pigs, geese, poultry, and cows, were likely to be legally in the same unprotected condition; so that it is obvious that, when enclosing took place, there might be a considerable number of persons, perhaps an actual majority of the villagers, who could not even raise the question whether they could obtain redress or not, and that much distress could be caused without any infringement of the law. Of those who could bring their enjoyment of rights of pasture under one of the categories which the law recognised, the freeholders were, of course, in the strongest position. They could plead rights of common appendant to their tenements; probably they could often plead common appurtenant, and common in gross, common by a special personal grant, as well, and they could enforce their rights both by self-help, in the way of throwing down recent enclosures, and by the ordinary remedies of the a.s.size of Novel Disseisin or an action of trespa.s.s.

[432] Common appendant, common appurtenant, common in gross, and common par cause de vicinage. This cla.s.sification is not found in Bracton, and appears to date from the late Middle Ages, see Vinogradoff, _Villainage in England_, Essay II., chap, ii., and the following case: _c.o.ke's Reports_, Part IV., p. 60. Hill, 4 Jac. I. in Communi Banco: "Robert Smith brought an action of Trespa.s.s against Stephen Gatewood, gent., quare clausum fregit ... c.u.m quibusdam averiis.... Defendant pleaded a certain custom, 'quod inhabitantes infra eandem villam de Stixwood praedictam infra aliquod antiquum messuagium ibidem ratione commorantiae et residentiae suae in eadem habuerunt et usi fuerunt et consueverunt habere com. Pastur ... pro omnibus et omnimodis bobus et equis et aliis grossis animalibus.' Unanimously resolved that the custom is against law. 1. That there are but four manners of common, common appendant, appurtenant, in gross, and by reason of vicinage, and this common _ratione commorantiae_ is none of them. 2. What estate shall he have, who is inhabitant, in the common, when it appears he hath no estate or interest in the house (but a mere habitation and dwelling) in respect of which he ought to have his common? For none can have interest in a common in respect of a house in which he hath no interest."

Moreover, the Statute of Merton, which expressly allowed a lord to enclose commonable land on condition that he left sufficient for the free tenants, did not mean that a lord could arbitrarily cut down rights of common to what he was pleased to think sufficient. If it had, there would have been little enclosing of commons in the sixteenth century, for by that time there would have been little common left to enclose.

The question "what is sufficient?" had to be answered by a jury, a jury representing expert knowledge as to local customs and the agrarian usages of the township. The jury could only answer it by taking account of the size of the tenements and of the land available for commoning. In fact, it found itself at once considering the custom of the manor, which stinted rights of pasture according to the economic needs and resources of different villages. Of the position of the customary tenants it is, for reasons which will be given below, less easy to speak. Regarded from the standpoint of the economic organisation of the manor, their rights of pasture should have got protection as much as those of the freeholders, for as holders of ancient tenements they required pasture to enable them to carry on their tillage; and since they were, in most parts of the country, by far the most numerous cla.s.s, the aggregate of their commonable area was much larger than was that of the free tenants.

According to the canon of interpretation supplied by c.o.ke,[433] the Statute of Merton would appear, at any rate in the latter part of the sixteenth century, to have been construed as protecting them; and Fitzherbert,[434] though he introduces an additional complication by trying--trying, it seems, quite arbitrarily--to prove that rights of pasture over the waste and rights of pasture on land which was not technically part of the waste, ought to be treated differently, places all tenants on an equal footing in respect of their claim to be left "sufficient common."

[433] c.o.ke, Complete Copyholder, Sect. 53: "When an Act of Parliament altereth the service, tenure, or interest of the land, or other thing in prejudice of the lord or of the Customs of the Manor, or in prejudice of the tenant, then the generall words of such an Act of Parliament extend not to the copyhold; but when an Act is generally made for the good of the commonwealth, and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or Custom, of the Manor, there usually copyhold lands are within the generall purview of such Acts."

[434] Fitzherbert, _Book of Surveying_: "And as for that manner of common, me seemeth the Lord may improve himself of their waste grounds, leaving their own tenants sufficient common, having no regard to the tenants of the other lordship. But as far as all errable lands, meadows, leises, and pastures, the lordes may improve themselves by course of the common law, for the statute speaketh nothing but of waste grounds."

The treatment by the law of common rights, in the case both of freeholders and of the customary tenants, seems to fit roughly into this scheme, though the actual facts are somewhat more complex than it would suggest. The cases show that the freeholders had a legal remedy if enclosure deprived them of rights of pasture, and that this remedy was used. A freeholder could say "these be the pastures ... which should be my common ... after the tenure of my freehold;"[435] if he proved the fact he got protection, and on manors where the freeholders were numerous and the lord wanted to make very large enclosures, he had to buy them out. It is true also that the freeholders[436] joined with the farmer on some manors in enclosing commonable land, to the detriment of the customary tenants, who apparently sometimes had to acquiesce in it.

They show again that a customary tenant could obtain protection for his rights of common pasture both, at any rate in the sixteenth century, from the Common Law Courts, and also, at an earlier date, from the Court of Chancery, provided that he could show that such rights were attached to his holding by the custom of the manor, a very important qualification, to which we must return.[437] On the other hand, it is certainly true that both freeholders and customary tenants suffered in our period from a curtailment of common rights, in spite of the qualified protection enjoyed by the latter and the complete protection enjoyed by the former. We cannot, in fact, be content with a mere summary of the legal position, for the law is not always strong enough or elastic enough to cope with shifting economic forces. Or, rather, its arm is short, and it can only grapple with those conflicts which are sufficiently violent to force their way to Westminster.

[435] _e.g._ _Coventry Leet Book_, vol. ii. p. 510.

[436] _Genealoger and Archaeologist_, vol. i., Manor of West c.o.ker (Somerset): "The demesnes remayneth in one entier ferm, and is dymysed to one Sir John Seymour, knight, who being confederate with the freeholders of the manor, maketh such inclosers for his owne lucre, and suffreth the freeholders to do the same, nevertheless surcharge the common with their cattle, that in process of tyme yt wilbe the destruccion of the custumarye tenants."

[437] For a discussion of the legal position of the copyholders see below, pp. 287-310.

Some light may be thrown on the kind of trouble of which our period was full by two accounts which have come down to us of disputes concerning rights of common pasture. At Coventry[438] there were in the fifteenth century prolonged quarrels between the City and the Prior and Convent of the Cathedral Church of St. Mary. In 1485 the Prior was accused by the city authorities of wrongfully overcharging the common with sheep and cattle, to the damage of the city. He replied by admitting the legal rights of the other commoners, but by claiming that whereas they could only pasture a limited number of beasts, "by the lawe of this lande the lord of the waste soyle may surcharge and pasture there what nombre hym lykes," and that therefore in overstocking the common he was only exercising his rights. To this the city answered by a rather hesitating appeal to custom, according to which the commoners never had been stinted to a fixed number of beasts, and by pointing out that, if the Prior was allowed to put as many beasts on the common as he pleased, he was virtually confiscating the property of the other commoners. This case brings out very clearly one weakness in the position even of the free tenants. It was that, while they were protected by law against attempts actually to deprive them of rights of common, the protection might be held to be contingent on the lord or his farmer proceeding so far as not to leave them sufficient, and was not available if the encroachments only went so far as to diminish their common pasture.

There was a minimum which they could not lose: but above this minimum their rights of pasture were elastic and compressible, and when, as in this case, the pasture was so large as to make any numerical limit to the number of beasts which they might graze unnecessary, the commoners might be deprived of some part of their customary pasture without any infringement of the law.[439]

[438] _Coventry Leet Book_, vol. ii. pp. 445-446 and _pa.s.sim_.

[439] If the common was so large that it had been unnecessary to "stint" it, why did the city object to the lord putting additional beasts on? I take the situation to be that the Prior--probably tempted by the profitableness of sheep-farming in the latter part of the fifteenth century--diminished the pasture which the city could use, by putting on many more beasts than ever before, which, in the absence of a recognised "stint,"

he was able to do without violating any custom, as he would have done if there had been a customary limit, as on many manors.

Another aspect of the problem is ill.u.s.trated by a story of a similar struggle at Wootton Ba.s.set,[440] a small borough in Wiltshire. Early in the seventeenth century the mayor and freemen of Wootton Ba.s.set pet.i.tion Parliament to "enact something for us, that we may enjoy our right again." What they want is a restoration of certain rights of common which a powerful neighbour has taken from them. Their story--they seem to rehea.r.s.e it with tears in their eyes--is a perfect Odyssey of misfortunes. According to them, the manor of Wootton Ba.s.set had pa.s.sed in 1555 into the hands of Sir Francis Englefield, who enclosed a park containing 2000 acres, in which the free tenants had hitherto had rights of pasture, and had them without stint, owing to its great size. This wicked man showed them, however, a sort of contemptuous compa.s.sion. He left them 100 acres, with which they had to be content, and the rights over which they carefully apportioned, "to the Mayor for the time being two cowes feeding, and to the constable one cowe feeding, and to every inhabitant of the said Borough, each and every of them, one cowe feeding and no more, as well the poore as the riche."

These rights of common were in practice vested in all the tenements in the town (not only, it would appear, the free tenements), and property was bought and sold subject to them.

The occasion of the pet.i.tion was that the grand nephew of the original grantee, having apparently got, by some means which the pet.i.tioners could not explain, the t.i.tle deed of the common into his hands, set out to ruin those whom his ancestor had only robbed. He began lawsuits against the free tenants, excluded them from the 100 acres of common which remained to them, and put his own cattle on it. The suits, according to our story, were purposely deferred, and dragged on so long that one of the free tenants was actually made bankrupt by legal charges and the rest were impoverished, the common being used meantime by the plaintiff, Sir Francis Englefield.

[440] _Topographer and Genealogist_, vol. iii. These are the people whom Heaven protected in the way described on p. 148 note. Observe what this little community endured. (i.) Sir Francis Englefield, senior, seizes 1900 out of 2000 acres of their common. (ii.) Sir Francis Englefield, junior, seizes "the charter of our town ... and the deed of the said common." (iii.) He tries to seize the remaining 100 acres, and ruins them by lawsuits "for the s.p.a.ce of seven or eight years at the least, and never suffers any one to come to triall in all that s.p.a.ce ... that the said Free tenants were not able to wage law any longer, for one John Rous ... was thereby enforced to sell all his land (to the value of 500) with following the suits in law, and many were thereby impoverished." (iv.) He turns them out of their shops in the market-place, and introduces instead "a stranger that liveth not in the town." (v.) He appoints his own nominee as mayor, in defiance of the custom which requires him to appoint one of two men submitted to him by the jury. (vi.) He prevents his victims from signing this pet.i.tion by threats of eviction. ("They are fearful that they shall be put forth of their bargaines, and then they shall not tell how to live, otherwise they would have set to their hands.")

These examples of struggles over rights of common pasture are instructive in several ways. In the first place, they suggest that the freeholders were regarded as having a better t.i.tle than the rest of the community, and that they led the movement to resist encroachments for that reason. It is the free tenants who pet.i.tion Parliament for redress, and the free tenants who are sued. If they lose their case it is not worth while, it seems, for the customary tenants to take any action. In the second place, they show that the cla.s.ses who have the best legal t.i.tle to right of pasture are not at all commensurate with the cla.s.ses who will lose if they are taken away. Whatever the legal rights of the other tenants may be they have as much practical benefit out of the common, and as great an interest in protecting it against encroachments, as the freeholders have. When the shearing away of part of it makes it necessary to limit the number of beasts to be kept there, the limitation is applied to free and customary tenements alike without distinction, and both cla.s.ses of tenements are bought and sold on the understanding that they carry with them a right of common pasture. In the third place, the case of Wootton Ba.s.set is one of many examples of the way in which poverty, ignorance of the law, and the practical difficulties of getting justice against a powerful landlord, prevent humble litigants from enforcing their legal rights. Finally, it reinforces what has been said above as to the economic importance of rights of pasture. The arrangements which are made at Wootton Ba.s.set when the first a.s.sault upon the commons takes place show clearly that grazing land is thought of as a quite indispensable adjunct to every man's holding, and its loss is so disastrous to the community that they are ready to be slowly bled to death by lawyer's fees, rather than be beggared at a blow by submitting tamely without a contest.

(c) _The Engrossing of Holdings and Displacement of Tenants._

We have dwelt at some length on the loss of rights of common, because the misleading modern a.s.sociations of the word seem sometimes to prevent a proper appreciation of the very important place which they occupied in the agricultural economy of our period. It must be confessed, however, that, in dealing with them first, we have reversed the order in which grievances due to enclosure were set out by the writers of the time.

Though there are many bitter complaints against the enclosure of commons, it was, notwithstanding this, less the loss of rights of pasture than the consolidation of small tenancies into great farms, which aroused public excitement, at any rate, in the southern and midland counties. In the Statutes the words enclosure and depopulation are again and again combined as though they were almost synonymous; and if a contemporary had been asked to explain the special evils most characteristic of enclosing, he would certainly have given the first place to the "engrossing of farms" and "depopulation," the throwing together of peasant holdings and the eviction of their tenants. We must now examine this side of the movement. Did the displacement of tenants through the concentration of properties take place on the large scale suggested by the pa.s.sionate outbursts of contemporary writers, or were their complaints as to empty villages and ruined churches mere rhetorical exaggeration? Again, what was the legal position of the cla.s.ses of people who suffered? Were they entirely without the protection of the law, or did they fail to obtain legal protection princ.i.p.ally in consequence of ignorance and intimidation?

It is easy to understand the strong motives for throwing together peasant holdings, if we keep our eyes on the picture of agricultural arrangements given in the maps. It will be seen that the different blocks of demesne land are often separated from each other by two or three strips belonging to the smaller tenantry, and that if such strips were removed they could be fitted together into a wide and unbroken expanse of territory. The manorial authorities have often, it is clear, been for a long time consolidating the demesne by exchange and purchase, so as to avoid the wastefulness of having land scattered in a hundred separate pieces, and the only obstacle to its complete unification consists of strips and patches which are held by tenants who are for one reason or another unwilling to sell, small spits and islands which stand out of the surrounding sea. Clearly there is an enormous temptation to make the tide flow over them as well, to complete the circuit by merging them in the demesne. Look, for example, at maps Nos. III., IV., and V.

Here it is evident that there has been a good deal of consolidation.

Both the tenants and the lord of the manor have been forming their strips into compact blocks. To unity of ownership has been added something like spatial unity. Still the process is by no means complete.

There are awkward little pieces of land which interrupt the smooth surface of the great estate, pieces which one will have to walk round, where, if the demesne is used as arable, the demesne plough must stop, where, if it is used as pasture, a fence must be erected to shut out the demesne sheep. Or walk down a typical field and mark how the land is held. Here are the strips which one would pa.s.s, if one travelled from end to end of two parallel furlongs at West Lexham[441] in Norfolk in the year 1575. They are copied in order from the map--

------------------------------------------------------------------------- FURLONG A.

FURLONG B.

ac. ro. po.

ac. ro. po.

1. Will Yelverton,

1. Rob. Clemente, Freeholder.

Freeholder.

2. Demesne 2 1 31

2. Demesne 0 2 4 3. Demesne 0 1 7-1/2

3. Demesne 1 0 3 4. Will Yelverton,

4. Demesne 1 0 39 Freeholder.

5. Demesne 0 2 7

5. Demesne 0 1 24 6. Demesne 1 3 0

6. Demesne 1 0 38 7. Demesne 0 1 11

7. Demesne 0 1 22 8. Demesne 0 2 10

8. Demesne 1 2 19 9. Demesne 0 2 28

9. Will Lee, Freeholder.

10. Glebe.

10. Will Gell, Copieholder.

11. Demesne 1 2 12

11. Demesne 1 1 39 12. Demesne 3 0 0

12. Demesne 2 3 39-1/2 13. Glebe.

13. Demesne 2 1 25

These furlongs, though the predominance of demesne land in them makes them not quite typical, ill.u.s.trate sufficiently the awkward way in which the great farmer's stretch of land is interrupted by the little property of a freeholder or copyholder. The strips of Will Yelverton, Robert Clement, Will Lee, and Will Gell must have been a constant eyesore to the manorial authorities. Buy them out or evict them, and then the two furlongs will consist of nothing but demesne land and glebe. They will be two fields of quite a modern pattern and quite ready for enclosure.

Leave these tenants where they are, and they are a permanent obstacle to unified management, all the more annoying because they are so petty.

They may even insist on the farmer observing the same course of cultivation as themselves, and on turning their beasts to common on his land after harvest! Is it not inevitable that, as soon as the lord is pushed by economic forces into making his estate yield the maximum money return irrespective of a numerous tenantry or of the ancient methods of tillage, he should try in any way he can to get rid of what to him are troublesome excrescences, that he should begin questioning t.i.tles, s.c.r.e.w.i.n.g up rents, turning copyhold to leasehold?

If our hypothesis is correct we ought to be able to find manors where the strips formerly held by tenants have been merged in the demesne, so as to form a continuous expanse, in the hands of the lord or his farmer, out of what was formerly a collection of fragments of separate holdings.

To see it verified, let us turn to another manor in the same county, that of Walsingham,[442] which was surveyed in the reign of Henry VIII.

Here is a statement of the land which is "in the hands of the lord" in the west field--

IN THE WEST FELDE

1. In ma.n.u.s domine [sic] 1/2 acre of land of the tenement Marre.

2. " " 1-1/2 roods of the tenement Furell.

3. " " 1/2 acre land of the tenement Stanx.

4. " " 1 acre, 1 rood land of the tenement Gryne.

5. " " 3 roods land of the tenement Scot.

6. " " 3-1/2 roods land of the tenement Townsend.

7. " " 1/2 acre land of the tenement Byelaugh.

8. " " 1/2 acre land of the tenement Wheteloffe.

9. " " 1/2 acre land of the tenement Scutt.

10. " " 1/2 acre land of the tenement Coyefor.

11. " " 1 acre with the gravel pit.

12. " " 3 roods land of the tenement Nedwyn.

13. " " 1 acre land late of J. c.o.c.kerell.

14. " " 3 roods land of the tenement Gilbert.

15. " " 1 acre and 1 rood of the tenement Spotell.

16. " " 3 roods land of the tenement Spotell.

17. " " 3 roods land of the tenement Husbond.

18. " " 1 acre of the tenement Rodengh.

19. " " 1/2 acre land of the tenement Pymans.

20. " " 3 roods of the tenement Scutt.

21. " " 1 acre of decay of the tenement Spotell.

[441] Holkham MSS., Map of West Lexham.

[442] R.O. _Aug. Off. Misc. Bks._, vol. cccxcix., f. 201 ff.