FOOTNOTES:
[322] Crowley, The Way to Wealth (E. E. T. S.).
[323] Registrum Malmesburiense, vol. ii. pp. 220–221: “Quod ... dictus abbas de Malmesburia non debet de cetero colere terram de Niwentone ... nisi antiquitus consueverat coli. Et quod dictus Walterus de Asselegge habebit mariscum suum de Cheggeberge quietum a communia hominum de Niwentone. Dicti vero abbas et conventus Malmesburia habebunt mariscum suum iacentem ex Orientali parte stratæ publicæ quæ vocatur Fos quietum et exceptum a communia hominum de Asselegge. Habebunt etiam ... campum Australem in Niwentone quietum et exceptum a communia hominum de Asselegge. Omnes vero aliæ terræ ad dictas villas pertinentes ... erunt in pastura communi.”
[324] Historia et Cartularium Monasterii Gloucestriæ, i. 147–149.
[325] Hoare, History of Wiltshire, Hundred of South Domerham.
[326] Hist. MSS. Com., Cd. 5567 (Report on the MSS. of Lord Middleton), pp. 61–62. This agreement was made in 1231.
[327] Coventry Leet Book (edited by Mary Dormer Harris).
[328] In their book, The Village Labourer from 1760 to 1832.
[329] Bacon, History of King Henry VII.
[330] See e.g. Starkey’s England in the Reign of King Henry VIII., p. 173 (E. E. T. S.): “Ye, and though our cloth, at the fyrst begynnyng, wold not be so gud peradventure, as hyt ys made in other partys, yet, in processe of tyme, I cannot see why, but that our men, by dylygence, myght attayne therto ryght wel; specially yf the Prince wold study thereto, in whose powar hyt lyeth chefely such thyngys to helpe.” Also The Commonweal of this Realm of England (Lamond), and Pauli, Drei Denkschriften, &c.
[331] Schanz, Englische Handelspolitik gegen Ende der Mittelalters, Band II., “Zoll und Handelstatistik,” pp. 1–156.
[332] Unwin, Industrial Organisation in the Sixteenth and Seventeenth Centuries.
[333] See e.g. the account of the East Anglian woollen industry in the Victoria County History, Suffolk (Unwin’s article on “Social and Economic History").
[334] G.R. Lewis, The Stanneries, pp. 214–215, and quotations from Lansdowne MSS. 76, fol. 34, given there.
[335] Hist. MSS. Com., Cd. 5567 (Report on the MSS. of Lord Middleton).
[336] W.R. Scott, Joint-Stock Companies to 1720, vol. ii.
[337] For a description of “The Exchange and What It is,” see T. Wilson, Discourse upon Usurie (1584): his remark, “The second kind of bill ... may be called sicke and dry exchange, and is practised where one doth borrowe money abroad ... not meaning to make any real payment abroad, but compoundeth with the exchange to have it returned again," illustrates what is said above. See also Camden Society, Dialogue or Confabulation of Two Travellers (1580): “The said Hans had provided £10,000 for the Prince of Condy upon five in the 100 at interest, and if I would have the like he would help me unto it. Then I ... pondered what benefit it would be to me to let it out again at ten in the hundred to some nobleman in England.” Down to about 1560 at any rate the English Government was constantly in the hands of foreign capitalists. See Gairdner, L. and P. Henry VIII., and Burgon’s Life of Gresham.
[338] e.g. Prussia before 1807.
[339] For examples see A. Abram, Social England in the Fifteenth Century, especially Part II., chap, ii., “The Rise of the Middle Class,” and Plummer’s Fortescue, p. 17. In the Cely Papers (Camden Society), p. 153, a correspondent of George Cely writes, “yowre sallys made withyn lesse than thys yere amountes above £2000 sterling.”
[340] See the Paston Letters, passim; and also the account given in Hist. MSS. Com., Cd. 5567 (Report on the MSS. of Lord Middleton), 142–145, of the marvellous doings of Sir Gylles Strangways in Dorsetshire as late as 1539; pp. 115–117 contain a similar case of private warfare from the year 1477.
[341] Northumberland County History, e.g. Amble (vol. v.), Acklington (ibid.), High Buston (ibid.), Birling (ibid.); vol. viii. p. 230, figures as to eight manors in Tynmouthshire. At Birling out of ten names which appear in the surveys of 1567, eight reappear in 1616; at Acklington, out of eighteen names, nine reappear; at High Buston, out of four names, four reappear in 1616 and two in 1702. But in parts of the county there were rapid changes at the end of the sixteenth and beginning of the seventeenth centuries; see below, pp. 257–258 and 260.
[342] Northumberland County History, vol. i. p. 350: “In the ancient tyme the fermor of the demaines had the charge of the tenants of the said lordship as bailiff, with the fee of £3, 0s. 5d. by year. Then was the town of Tughall planted with xi husbandmen well horsed and in good order, viii cottagers, iiii cotterells, one common smith for the relief and better aid of the said tenants and bailiff, being in number 23 householders, besides the demains, which are nowe by suche as nothing regard his lordship’s service nor the commonwealthe brought to 8 farmers only, to the great decay of his lordship's service and discommodity of the said commonwealth.”
[343] See e.g. the ballad of “Kinmont Willie," turning on an incident which occurred in 1596.
[344] Cal. S. P. D. James I., vol. cxxxii., July 27, 1622. Letter to the Bishop of Durham to confer with the judges of Assize for the Northern Counties touching tenant-right or customary estate of inheritance claimed in those parts, ordering them to abide strictly by the King’s Proclamation against tenant-right, or the holding of lands by border service, to countenance no claim founded thereupon, and to acquaint the tenants of his Majesty’s pleasure therein, giving them no hope to the contrary. Apparently the instructions were not carried out, as in 1642 the Long Parliament was discussing the subject of the border tenures (Rushworth Collections, Pt. III., vol. ii. p. 86).
[345] See below, pp. [257–258].
[346] The effect of the Tudor policy on the land system is excellently described by Harrington in Oceana, and also in [The Art of Law-giving]: “Henry VII. being conscious of the infirmity of his title, yet finding with what strength and vigour he was brought in by the Nobility, conceived jealousy of the like power in case of a decay or change of affections. Nondum orbis adoraverat Roman. The lords yet led country lives; their houses were open to retainers, men experienced in military affairs and capable of commanding; their hospitality was the delight of their tenants who by their tenure or dependence were obliged to follow their lords in arms. So that, this being the Militia of the nation, a few noblemen discontented could at any time levy a great army, the effect whereof both in the Barons Wars and those of York and Lancaster had been well known to divers kings. This state of things was that which enabled Henry VII. to make his advantage of troublesome times and the frequent unruliness of retainers; while, under pretence of curbing riots, he obtained the passing of such laws as did cut off these retainers, whereby the nobility wholly lost their officers. Then, whereas the dependence of the people on their lords was of a strict ty or nature, he found means to loosen this also by laws which he obtained upon a fair pretence, even that of Population. But the nobility, who by the former law had lost their officers, by this lost their soldiery. Yet remained to them their estates, till the same Prince introducing the Statutes for alienations, these also became loose; and the lords, less taken (for the reasons shown) with their country lives, where their trains were clipped, by degrees became more resident at court, where greater pomp and expense by the Statute of Alienations began to plume them of their Estates" (Harrington, Works, 1700 edition, pp. 388–389).
[347] Hist. MSS. Com., Cd. 5567 (Report on the MSS. of Lord Middleton), especially the entries relating to the development of the coal trade.
[348] Northumberland County History, vol. viii., p. 238, vol. ix. (under Cowpen). Robert Delavale apparently began life as an agent to the Earl of Northumberland, but he owned considerable property himself; in 1605 the whole of the lands of Cowpen were in his hands. He was an energetic encloser; see below, p. 260.
[349] See Marston’s Eastward Ho!
[350] See the following extract (Lodge, Illustrations of English History, iii., 41). William Hammond to the Earl of Shrewsbury on the subject of raising money on the latter's estates from Palavicini, a moneylender: “Though his froward fortune hath made him unable to stand you almost in any steadde, hee hathe dealt with Mr. Maynard to aide him in the provision of this £3000 against the second of next month. He finds him very backwarde to disburse any money upon bond or any other security but lands; neither will he deal with lands in any way of mortgage for years or any long time, but only 2 or 3 months.... Yf, therefore, it stands with your honour’s good liking to make a conveyance of Kingston to Sir Horatio ... after the rate of £7000 ... and withal to passe it in this absolute sort that iff the money then laid out by them for your Honour’s use bee not repaid on May day next, that they fully enjoy and possess the lands as their owne.... Hee saith besides that his surveyors have certified him £500 will bee the most the lands will ever yeald yerely rent, without racking and oppressions, which are no course for suche meane men as they be to take.”
[351] Roxburghe Club, Surveys of Manor of William, First Earl of Pembroke, Straton’s introduction.
[352] History of the Parish of Wiveliscombe, by Hancock. For Walter Raleigh and the revolt of 1549, see the dramatic account given by Holinshed. The incident is described in Froude’s Edward VI. For the Grenvilles and Buckland Abbey see Trans. Royal Hist. Soc., vol. vi. It ultimately came to Francis Drake.
[353] Straton’s introduction to Surveys of Pembroke Manors.
[354] e.g. Heywood’s A Woman Killed with Kindness, Act iii. sc. 1.
[355] Henry VI., Part II., Act iv. scene 2. I am indebted for the reference to Professor Unwin. Part II. was first printed in 1595.
[356] Hist. MSS. Com., MSS. of Marquis of Salisbury, Part III., pp. 49–50: “The attorney-general to Mr. Robert Cecil. Some information concerning those that intended the rebellion in Oxfordshire. Bartholemew Stere, carpenter ... was the first person of this insurrection. His outward pretence was to overthrow enclosures, and to help the poor commonalty, that were like to perish for want of corn, but intended to kill the gentlemen of that county and take the spoil, affirming that the commons long since in Spain did rise and kill the gentlemen in Spain and sithen have lived merrily there. After that he meant to have gone to London and joined with the prentices ... and it was but a month’s work to overrun England.”
[357] E. E. T. S., England in the Reign of Henry VIII., p. 85.
[358] See the discussion between Mr. Leadam and Professor Gay in Trans. Royal Hist. Society, vol. xiv., new series.
[359] Schanz, Englische Handelspolitik gegen Ende des Mittelalters, Band II., p. 18.
[360] Abram, Social England in the Fifteenth Century, p. 33.
[361] Ibid., pp. 40–41.
[362] Camden Society (1847), Italian Relation of England.
[363] Camden Society (third series, vol. i.), Cely Papers. In 1480 the elder Cely writes: “I have not bought this year a loke of woll, for the woll of Cottyswolde is bought by the Lombardys” and in the following year, “Ye avyse me for to buye woll in Cottyswolde, bot it is at grate prise, 3s. 4d. a tod, and gret ryding for woll in Cottyswolde as was any yere this vii yere.”
[364] Cunningham, Growth of English Industry and Commerce, Early and Middle Ages, pp. 447–448. The statute sanctioning export without licence when the price was below 6s. 8d. was 15 Hen. VI., c. 2, which was made perpetual by 23 Hen. VI., c. 5. 3 Ed. IV., c. 2, forbade the importation of foreign corn except when the price reached 6s. 8d.
[365] Ibid., Modern Times, Part I., p. 85.
[366] e.g. The Commonweal of this Realm of England, pp. 54–60.
[367] See the whole question discussed in Schanz, Englische Handelspolitik, Band II., pp. 481–540.
[368] Northumberland County History, vol. viii. p. 232. In 1595 a dispute as to corn rents arose between the Earl of Northumberland and the Tynemouthshire tenants, the Earl insisting on payment by the Newcastle measure, the tenants demanding to pay by the Winchester measure, on the ground that they are so poor that “they are not able with horse, furniture, and geare to serve as their ancestors have done, as it appeared upon the late muster.” Evidence given by an ancient yeoman before the Commission appointed to hear the case showed that the tenants had formerly paid in money, and that the change from money to corn had been introduced in the time of the last Prior for the sake of the tenants, not for the sake of the Priory.
[369] Steffen, Studien zur Geschichte der Englischen Lohnarbeiter, Band I., pp. 254–255 and 365–366.
[370] The Commonweal of this Realm of England (Lamond), especially p. 81: “Knight: What sorte is that which youe said had greater loss thereby then those men had profitte? Doctor: It is all noblemen, and gentlemen, and all other that live by a fixed rent, or stipend, or doe not maner the grounde, or do occupie no byinge or sellinge.... He that maie spend £300 a yeare by such revennewes and fees, may kepe no better porte then his father, or anie before him, that could spend but £200. And so ye maie perceave, it is a great abatement of a man's countenance to take awaie the third part of his livinge. And therefore gentlemen doe so much studie the Increase of theire landes, enhauncing of their rentes, and so take farmes and pastures into theire owne hands.”
[371] A Treatise of the Canker of England's Commonwealth (1601).
[372] The Commonweal of this Realm of England (Lamond), p. 100.
[373] This may seem inconsistent with the fact that in the statistics published by Mr. Leadam from the Inquisition of 1517 most enclosures in most counties are entered as made by lords of manors. I do not think, however, that this is necessarily so. When it is stated that a lord of a manor has enclosed and converted to pasture, it may very well be meant that his agent did so with his consent. I.e. the distinction would appear to be not between the lord and the lord’s farmer, but between the manorial authorities (lord and farmer) and the rest of the landholders. The phrase used in the Berkshire returns, “converti permisit,” indicates what I take to have been the most general, though not, of course, the invariable, course of events.
[374] e.g. at Acklington (Northumberland County History, vol. v.), of which Clarkson the surveyor writes: “Neither is there any demaine lands or demaine meadows, but all is occupied together in husbandry"; at Birling (ibid.): “There is no demaine land or meadow, with all their husbandlands and meadows appertaining to the same"; apparently also at High Buston. Compare Vinogradoff, Villainage in England, p. 316: “Villages without a manorial demesne ... are found ... where the power of the lord was more a political than an economical one" (Norfolk and Suffolk, Lincoln, Northumberland, Westmoreland, &c.). For a manor where the demesne is kept in the hand of the lord in 1568 for the reason given above, see Roxburghe Club, Surveys of Pembroke Manors, Manor of Washerne.
[375] Oxford Studies in Social and Legal History, pp. 153–154.
[376] Roxburghe Club, Surveys of Lands of William, First Earl of Pembroke.
[377] Historia et Cartularium Monasterii Gloucestriæ, vol. iii. App., pp. 291–295.
[378] Roxburghe Club, Surveys of Lands of William, First Earl of Pembroke.
[379] Ibid.
[380] R.O. Rentals and Surveys, Portf. 13, No. 34.
[381] R.O. Land Rev. Misc. Bks., vol. clxxxv., ff. 70–74.
[382] R.O. Misc. Bks. Treas. of Receipts, vol. clxiii., ff. 187.
[383] R.O. Rentals and Surveys, Roll 478, No. 3.
[384] Davenport, History of a Norfolk Manor.
[385] Scrope, History of Manor and Barony of Castle Combe, p. 208.
[386] Vinogradoff, The Growth of the Manor, note to chap. ii., Book III., p. 370, and his quotations from Maitland: “The villains of Bright Waltham ... constituted a community which held land, which was capable of receiving a grant of land, which could contract with the lord, which could make exchange with the lord.”
[387] Roxburghe Club, Surveys of Lands of William, First Earl of Pembroke.
[388] Roxburghe Club, Surveys of Lands of William, First Earl of Pembroke.
[389] R.O. Rentals and Surveys, Gen. Ser., Portf. 12, No. 52, p. 10 d.
[390] See the map of part of Salford, p. 163, and compare R.O. Rentals and Surveys, Gen. Ser., Portf. 27, No. 32 (Lavenham in Suffolk): “Of Township of Tuddenham Free land foldcourse, 6s. 9d." Ibid., Portf. 13, No 21 (Colly Weston in Northants): “The inhabitants for bushy ground paying two years 11s. Item, in every third year they pay nothing.” At Wymondham (R.O. Aug. Off. Misc. Bks., vol. ccclx., f. 91) one finds under the heading “Towne lands" 38 acres held by copy by the “feoffees of the Vill of Wymondham" (37 Eliz.) in Trust for the school.
[391] See references quoted below, pp. 244–253.
[392] e.g. Scrope, History of Manor and Barony of Castle Combe, p. 203. Extent of Manor, 1454: “Et notandum quod prædictae terræ dominicates cum pratis et pasturis supra specificatis dimittebantur ad firmam Ricardo Hallewey, Edwardo Yonge, Johanni Costyn, Willelmo Gaudeby, et Edwardo Noorth, ea intentione quod ipsi dimitterent ad firmam omnibus tenentibus domini aliquas portiones dictorum terrarum secundum magis et minus pro earum cultura, et reddunt pro firma inter se cxiiis. viiid.”
[393] R.O. Land Revenue Misc. Bks., vol. ccxxi., fol. 1. Survey of Manor of Brigstock (Northants) 4, James I. Here the demesne is held by twenty-two tenants, each having 8 acres, 3 roods, and 1 acre of meadow. Mickleholme meadow (also demesne land) is held by five tenants, each having 1 acre. One finds on some Northumberland manors a growth in the size of customary holdings combined with the preservation of almost exact equality between them, which surely must be taken as proving that the increase in the area held grew, not by sporadic encroachments on the part of individuals, but by definite allotment on some communal plan. Thus at Birling there were in 1248 ten “bondi,” each holding 30 acres or one husbandland; in 1498 nine holding 30 acres or one husbandland, and four holding one husbandland of 30 acres between them; in 1567 ten customary tenants, each holding 33 acres; in 1616 the average holding has risen from 33 to 42½ acres, but there is still substantial equality, the largest holding amounting to 44 acres, 3 roods, 3½ poles, and the smallest to 40 acres, 0 roods, 33 poles (I omit the facts as to the cottagers). In spite of two considerable additions to the land of the village, there is little change in the relative proportions of the tenancies. At Acklington there were in 1352 thirty-five bondage holdings of 16 acres each, of which nine were vacant (presumably on account of the plague). In 1368 these nine vacant holdings were let to the other tenants for herbage. In 1498 there were eighteen tenants, of whom seventeen held two husbandlands apiece (i.e. 32 acres) and one, one husbandland (i.e. 16 acres). Northumberland County History, vol. v.
[394] Humberstone, Topographer and Genealogist, vol. i. (surveys temp. Phil. and Mary of various manors belonging to the Earl of Devon).
[395] Davenport, History of a Norfolk Manor, p. 57. When first leased in 1373 the demesne was leased as a whole, but this plan was abandoned. Early in the fifteenth century it was leased in small plots, at first for six or seven years, and then for twelve, twenty, or forty years. Finally parts of the demesne were granted to be held at fee farm.
[396] Merton Documents, Nos. 3100 (lease of 1361 for seven years), 3002 (lease of 1420 for seven years); 2856 (lease of 1424 for one year); 1874 (lease of 1472 for twenty years).
[397] Historia et Cartularium Monasterii Gloucestriæ, vol. iii. App., pp. 291–295. The words are “Sed bene licebit præfatis ... substituere tenentes ad eorum bene placitum in omnibus illis terris dominicalibus supradictis modo in manibus tenentium ibidem existentibus, cum reversio prædicta inde acciderit."
[398] Thus in 1535, on nineteen out of twenty-two manors owned by Battle Abbey, the demesne was farmed by a single tenant, on one by two, on one by three, while on one it was retained in the hands of the monks (Oxford Studies in Social and Legal History, vol. i.; English Monasteries on the Eve of the Dissolution, by A. Savine). On twenty-five manors out of thirty-two held by the Earl of Pembroke in 1568, the same unified management obtained (Roxburghe Club, Surveys of Pembroke Manors). Savine’s remarks are to the point: “The lord of the manor seldom divided up the demesne into separate plots of land to be let to local tenants. Usually the demesne and its buildings, sometimes even together with the live and dead stock, passed into the hands of one farmer" (ibid.).
[399] As at Knyghton in Wilts in 1568 (Roxburghe Club, Pembroke Surveys), where the holdings and rents of the customary tenants appear in the farmer’s lease, e.g. “Walter Savage ad voluntatem tenet ut parcellam dicti manerii l close etc. ... et reddit 56s. ad manus dicti firmarii.”
[400] Here is an example from a lease of 1562. The farmer pays “yearly to the lord for the aforesaid farm—
| 10 quarters of corn, per bushel, 12d. | £4 |
| 20 quarters of barley, per bushel, 8d. | 106s. 8d. |
| 10 quarters of oats, per bushel, 3d. | 26s. 8d. |
| 20 capons, per caput, 4d. | 6s. 8d. |
| 20 pigeons, per caput, 4d. | 6s. 8d. |
| 12 great fish called trouts, per caput, 3d. | 3s.” |
(Survey of South Newton, ibid.).
[402] See Northumberland County History, vol. ix., account of Cowpen, and Victoria County History, Lancashire, article on Social and Economic History. For the same reasons mills and fisheries were naturally the first parts of a mediæval manor to be leased for terms of years.
[403] Owing to the advantages which the small holding has for dairy purposes (personal attention to cattle, &c.), it is still the custom in parts of the country, e.g. Devonshire, for the large farmers to sublet small dairy farms out of their holdings, and to supply the lessee with all the stock, including the cows and the cottage. See Levy, Large and Small Holdings, chap. ix.
[404] Several examples of this are to be found in the Pembroke Surveys. Contemporaries called it “the engrossing of farms.”
[405] Roxburghe Club, Surveys of Lands of William, First Earl of Pembroke. The farmer has four closes of meadow amounting to 9 acres, one meadow of 2½ acres, one meadow of 7 acres, one meadow of 8½ acres. In addition to that and the hilly pasture, there is in his possession “unus campus noviter inclusus, qui aliquando seminatur, aliquando iacet ad pasturam,” and which “olim sustentare potuit 900 oves et catalla non extenta.”
[406] Ibid., “De terra montanea unde pars includitur cum sepe iuxta Crowcheston continens per estimationem 100 acres, et custodire potest supra prædictam 900 oves.” Sometimes it is expressly stated that the farmer alone is to have a certain pasture, e.g. at Chalke (ibid): “Et etiam dictus firmarius habet ibidem unum montem vocatum a Doune et bene cognitum est quia circumcinctum est per sepem et bundas, et custodire potest 600 multones quia nullus habet communiam in eo nisi firmarius solus, et continet per estimacionem 200 acres.”
[407] R.O. Rentals and Surveys, Gen. Ser., Portf. 24, No. 4, f. 46 (temp. Hen. VIII.). “The fold course will carry 1800 sheep at £8 a hundred.”
[408] In All Souls' Muniment Room.
[409] MSS. of the Earl of Leicester at Holkham, Sparham Documents, Bdle. No. 5.
[410] Ibid., Fulmordestone Documents, No. 59. Description of manor at bottom of map (1614).
[411] In All Souls' Muniment Room.
[412] Maps in All Souls' Muniment Room: “The description of the parsonage of Harriesham in the countie of Kent, with the glebe lands thereunto belonging.” Note on back of map: “Memorandum that whereas there are and always have been 4 parcelles of land in Mr. Steed his fielde called Harriesham field belonging unto the parsonage of Harriesham, conteyninge by estimation three acres, whereof the one did lye along by the landes of Sir Edward Wootton, called the Cowe doune, the other ... abutteth on the said Cowe doune toward the east, the other boundes thereof not being certainly known by reason that they were plowed up by one Robert Brinkley, tenant of the whole field, and were laid out by Robert Brinkley as in the Platte doth appeare under the Redd colour; It is now covenanted by the said Mr. Steede and Mr. George Hovenden, incumbent there, by deed bearing date the 20th of July in the 17th year of the Queen’s Majestie’s reign, that nowe all that the said three acres shall from henceforth be possessed by the parson and his successors for ever in manner and form as it is nowe laid out in the platte in the yellow colour after the maner of a square" [here follow the boundaries].
[413] Leadam, Domesday of Enclosures. For a discussion as to whether they suggest that enclosing took place for arable or pasture, see Trans. Royal Hist. Soc., New Series, vol. xiv.
[414] Quarterly Journal of Economics, vol. xi.
[415] Oxford Studies in Social and Legal History, vol. i. pp. 171–173.
CHAPTER II
THE REACTION OF THE AGRARIAN CHANGES
ON THE PEASANTRY
(a) The Removing of Landmarks[ToC]
The history of the agrarian problem in the sixteenth and seventeenth centuries—indeed its history ever since—is largely the story of the small cultivator’s struggle to protect his interests against the changes caused by the growth of the great estate. In that struggle there is much that is detailed, tiresome, and obscure. The student hears very little about general principles, very much of technicalities about the nature of common appendant and common appurtenant, of stinted and unstinted pastures, of gressums and fines, of copyholds for years, for lives, or of inheritance, of land which is old enclosure that ought to stand, or new enclosure that ought to fall. But at the centre of this maze of dry and infinitely diverse details there is a real regrouping of social forces going on, and a rearrangement, at once rapid and profound, of economic and political ideas. We must no more picture the changes of our period as mere matters of the technique of agriculture, than we must think of the industrial revolution of two centuries later in terms of spinning-jennies and steam-power. On the contrary, these very details are the channel along which rural life is beginning to slip from one form of economic organisation to another, the seed-plot in which new conceptions of social expediency are being brought to maturity. In numberless English villages between 1500 and 1600 large issues are being decided which will profoundly modify the course of social development. Is the communal administration of meadow and wastes to survive (as it has survived in France and Belgium) or is it to disappear? Is England to be a country of large cultivators working with many hired labourers, or of small cultivators working with few? Is leasehold or copyhold to be the predominant form of land tenure? When the final transition to modern agriculture takes place, will England face the change with a population the bulk of which has been rooted in the soil since the Middle Ages, or will the middle classes in rural society have been already so far undermined that opinion turns spontaneously to the great landlord as the sole representative of agricultural progress? Of course the answer to these questions was not given by 1600 or even by 1700; we must not forget Arthur Young and the far more extensive enclosures of the eighteenth century. But in our period development certainly took a distinct bias away from one set of arrangements and in the direction of another. The best standpoint from which to examine its course is found by watching the reaction upon the tenants of the agricultural changes which we have tried to summarise in the preceding sections.
The economic effect of the policy pursued by the large farmer depended upon what proportion of the land he controlled, and in particular upon the part of the manor upon which enclosure was made. He might enclose only the land actually belonging to the demesne farm when he took it over; or he might enclose parts of the waste or meadow over which other tenants had rights of pasture; or he might enclose the holdings in the open arable fields belonging to other tenants, for this purpose evicting, or inducing the lord to evict, them. When only the demesne lands were enclosed the other interests were sometimes little disturbed, unless indeed the demesne had already been parcelled out among some of the smaller tenants, a contingency to be considered later. But, even when that was not the case, the conversion of the demesne to pasture and its enclosure had two consequences which were not unimportant. On the one hand, the wage-earning population of cottagers and younger sons, who had found employment as hired labourers when the demesne was used for tillage, were thrown out of work, and with the limited demand for labour offered by a sixteenth century village, were obliged, one would suppose, to join the armies of tramps who figure so largely in the pages of the writers of the period. As the bailiffs accounts of some manors show, the demesne farm had sometimes employed a quite considerable staff of workmen of different kinds, and though no clear instance of a reduction of the number of employees, consequent on the transition to pasture farming, has come to light, one can occasionally compare the demand for labour under the old régime and under the new in a way which does something to substantiate the lamentations of contemporaries.[416] It is this which gives point to their complaints as to the decay of “hospitality.” Hospitality in the sixteenth century does not merely mean a general attitude of open-handed friendliness. When the Government intervenes to enjoin hospitality, we are not to think that, even in that age of grandmotherly legislation, it is going out of its way to insist that every man shall provide his neighbour with a glass of beer and a bed for the night. Hospitality has a quite precise meaning and a quite definite social importance. It is, in the most literal sense, housekeeping, and the household does not merely imply what we mean by “the family,” a group of persons connected by blood but pursuing often quite separate occupations, and, except in the small number of cases where property owned by the head of the family supplies a financial basis for unity, possessing quite separate economic interests. It is, on the contrary, a miniature co-operative society, housed under one roof, dependent upon one industry, and including not only man and wife and children, but servants and labourers, ploughmen and threshers, cowherds and milkmaids, who live together, work together, and play together, just as one can see them doing in parts of Norway and Switzerland at the present day. When the economic foundations of this small organism are swept away by a change in the method of farming, the effect is not merely to ruin a family, it is to break up a business. It is analogous not to the unemployment of an individual householder, but to the bankruptcy of a firm.
On the other hand, even when they lost nothing else, the rest of the landholding population was deprived of some of the rights of grazing which they had exercised on the enclosed arable after harvest. If the demesne formed a large proportion of the whole area of the village, or if there was little other pasture, their loss, as the frequent complaints of interference with “shack”[417] prove, might be a very considerable one; for it meant that there might be no means of feeding some proportion of the village beasts. Moreover, the mere presence of a large capitalist who controlled a great part of the land, and converted it to pasture or retained it as arable according to the price of wool and wheat, prejudiced them in various indirect ways. The farmer of the demesne seems at an early date to have had a bad name for hard dealings. He was often a stranger, and therefore indifferent to the influence of local customs and personal relationships. Where the manoral officials had offered direct employment, he was a middleman with a high rent to pay, and, like most middlemen, a channel for pressure without responsibility. As the largest shareholder in the small agricultural community, he could disturb its arrangements by altering his course of cultivation, and, since he was the representative of the lord, he could not easily be checked. Sometimes, indeed, a clause was inserted in his lease expressly providing that he should not disturb the neighbouring peasants.[418] But there are many cases in which there is no mention of formal enclosing, and in which, nevertheless, it is complained that the farmer persistently molests and harries the customary tenants. It was the essence of the open field system of agriculture—at once its strength and its weakness—that its maintenance reposed upon a common custom and tradition, not upon documentary records capable of precise construction. Its boundaries were often rather a question of the degree of conviction with which ancient inhabitants could be induced to affirm them, than visible to the mere eye of sense, and their indefiniteness made the way of the transgressor extremely easy. Even the lord of the manor sometimes found the large farmer too much for his vigilance. “John Langford and his ancesters,” the College of All Souls petitioned in Chancery in 1637, “have for many yeares by vertue of several demises farmed and rented of your oratours their said messuage and lands, and used and occupied the same with their own lands, and during the time of such occupation have pulled up, destroyed and removed, the metes, mere londs, and boundaries of your oratours their said lands, and confounded the same so that the same cannot be set forth.... Mr. Langford’s lands and grounds lying next adjoining unto the said oratours their grounds, ... the said John Langford hath extended his said cottages, orchards, gardens, and curtilages thereunto belonging, to your oratours their said grounds, and hath made hedges, ditches, fences and mounds wherein and whereby he hath enclosed your oratours their said grounds unto his own cottages and land, ... and intendeth so ... to keep from your orators all the said land so encroached and enclosed.”[419] When a farmer would thus calmly expropriate the lord of the manor, it is not surprising to find constant small disputes between him and the other tenants, on the ground of his entering upon their holdings, or “surcharging the fieldes by waye of intercommon and destroying the corn of greane by drifte of cattle over the common of fieldes and suche other.”[420] Often, no doubt, the sporadic encroachments which provoked quarrels with the other tenants appeared to the great grazier a natural exercise of his obvious rights. Who should say where one man’s land began and another’s ended? But it can hardly be doubted that such irregularities were sometimes a deliberate attempt to worry the weaker members of the village community into throwing up their lands, by making profitable cultivation impossible. “If any man do sow any ground,” ran the direction given by a lord to the shepherd who looked after the demesne farm on a Suffolk manor, “and the stifts of the field are broken, and may not duly be taken and fed as heretofore they have been used, then the said Tillot to feed off the said corn and drive his sheep on that part of the ploughed land, and to forbid any particular man to sow his ground or any part thereof whereby the sheep-walks may be hindered.”[421] Such an order points to the difficulty of adjusting the different methods of cultivation pursued by the smaller tenants and on the demesne. Though the complaints of the former were often indefinite enough, it is probable that the very difficulty of defining what a large capitalist might or might not do was in itself a substantial grievance. The truth is that it was not easy for the great pasture farm, with its flocks of sheep, to subsist side by side with the smaller arable holdings of the other tenants, without a good deal of friction arising, even in those cases in which no deliberate attempt was made to evict the latter or to deprive them of their rights of common. The traditional organisation of agriculture was based on the assumption that much the same methods of utilising the land would be followed by all the tenants. When that assumption broke down with the growth of large-scale sheep-farming, there was naturally a collision of interests between the great men who made innovations and the small men who adhered to the customary rule.
(b) The Struggle for the Commons[ToC]
But sporadic encroachments are not the worst which the small man has to fear. He may wake to find the path along which he drives his beasts to pasture blocked by a hedge. When he goes to renew his lease or buy the reversion of his copy, he may be told that his holding is to be merged in a pasture farm. The great estate is not always built up by the mere consolidation of pieces of land which are already united in ownership, though spatially they may be separate. If it were there would be few statutes and few riots; for the law looks with a favourable eye on such attempts at improved cultivation, and the peasants have long been doing on a small scale what the capitalist farmer does on a large. The great estate is formed in another and less innocent way, by throwing together holdings whose possession is separate, though spatially they may be contiguous. It is the result of addition, not simply of organisation; of addition in which the cyphers are the holdings of numerous small tenants. In such a process the opposition between the interests of the peasantry and those of the manorial authorities is brought to a head. If one man is to run a hedge round a pasture, the pasture must first be stripped of the rights of common which enmesh it. If sheep are to be fed on the sites of ruined cottages, their occupants must first be evicted. It is over the absorption of commons and the eviction of tenants that agrarian warfare—the expression is not too modern or too strong—is waged in the sixteenth century. Let us look at both these movements more closely.
The obscurity to one age of the everyday economic arrangements of another is excellently illustrated by the difficulty of appreciating the part which common rights played in English husbandry before the nineteenth century. It is not so long since it became a memory. There are villages where the old men still remember—how could they forget it?—the year when the commons finally “went in.” Yet there is hardly a feature in the plain man’s view of the nature of a common which corresponds to the reality as it was used by our ancestors, and as it is used to-day by communities whose land system has followed a different course of development from our own. He thinks of a common as land which, like a municipal park, “belongs to the public,” land which any one may use and any one abuse. In the innocence of his heart he will even move his local authority to put in a claim for its possession, and is very much surprised when its solicitors tell him that he is fighting for the rights of two or three mouldy tenements. Again, he thinks of a common as a place of fresh air and recreation, not of business; as land for which, at the moment, no serious economic use can be found; unprofitable scraps, whose ineligibility has secured them a precarious immunity from park-loving squires and speculative builders. In connection with agriculture he thinks of it not at all—is not waste land the opposite of land which is under cultivation? In one respect he is right. Our existing commons are remnants—remnants which have survived the deluge of eighteenth century Private Acts, mainly because they consist of land too poor to pay counsel’s fees. In all other respects he is wrong. In the earlier period the word common implied common exclusiveness quite as much as common enjoyment. The value of a common to the commoners consisted precisely in the guarantee given them by custom that no one might use it except holders of tenements which time out of mind had a right thereto, and that no man might use it to a greater extent than the custom of the manor allowed. And the modern man is especially wrong in regarding commons as though they fell below the margin of economic employment. Commons and common rights, so far from being merely a luxury or a convenience, were really an integral and indispensable part of the system of agriculture, a linch pin, the removal of which brought the whole structure of village society tumbling down.
No one who reads the petitions and the legal proceedings of our period can doubt that this was what the small cultivator felt. No one who consults the surveyors can doubt that he was right. Yet, at first sight, the importance attached to commons is certainly surprising. Is not the outcry disproportionate to the grievance? To riot and rebel when you lose grazing rights—is not this, it may be asked, rather like shooting your landlord because he will not let you keep poultry? The answer is perhaps a twofold one. The peasants' economy in the sixteenth century was one in which, in many parts of England, the pastoral side of agriculture played a very important rôle, and for which, therefore, abundance of pasture land was very essential. As any one who has lived in a Swiss châlet knows, a family which has sufficient cattle and goats on a good mountain can, during half the year, be almost self-sufficing. It has milk, butter, cheese, eggs, and meat. The only thing it really misses is bread, and that it has the means of purchasing, even if it does not, like the sensible people of Lancashire and Yorkshire, and probably of most parts of England before the industrial revolution, bake its own supplies at home or in a common public oven. Our sixteenth century peasants do not keep goats, but they keep a great many horses and cows, on some manors an average of 6 or 8 per holding; they keep a great many sheep, sometimes 150 or 200 each; they meet depressions in the corn trade by falling back on other sides of agriculture, and sending to market miscellaneous produce which, in a time of rising prices, sells well. But to do this successfully they must have plenty of grazing land. A Swiss commune measures its wealth very largely by the quality of its pasture, and will take pains to buy a good one, even though it be a long distance from the village.[422] Can we doubt that the same was true of many parts of England, and that Hales' husbandmen who “could never be able to make up my lordes rent weare it not for a little brede of neate, shepe, swine, gese, and hens,”[423] was typical, not, it is true, of the more substantial men, but of many of the less well-to-do?
But there was another and more fundamental reason for the importance attached to rights of common, and for the disastrous re-action upon the tenantry involved in their curtailment. It was that the possession of pasture was not only a source of subsidiary income but also quite indispensable to the maintenance of the arable holding, which was everywhere the backbone of the tenants' livelihood. Ask a modern small holder, and he will tell you that what he wants is a certain proportion of grass-land to arable, in order that he may feed his horses without having to resort to the hire of extra land, to the purchase of foodstuffs, or to turning them out to pick up a living where they can by the side of the road.[424] In the normal village community this was secured by the apportionment of rights of pasture to each arable holding, the tenants grazing their cattle on the common in the summer, and only feeding them on their separate closes when the approach of winter made shelter a necessity.[425] It is, therefore, a mistake to think of the engrossing of commons by large farmers as affecting the peasant only in so far as he was a shepherd or a grazier. On the contrary, it struck a blow at an indispensable adjunct of his arable holding, an adjunct without which the ploughland itself was unprofitable; for to work the ploughland one must have the wherewithal to feed the plough beasts. It is this close interdependence of common rights with tillage which explains both the manner of their organisation and the distress caused by encroachments upon them. Rights of common of the most general type go with the tenement, not with the tenant, because what is considered is the maintenance of a fully equipped arable holding in the open fields, and for this end it is not necessary to allow common rights to the population of younger sons, servants, or others who do not hold one of these primary units of tillage. The commoners are often “stinted,” restricted[426] that is in the number of beasts which they may put upon the pasture, because rights of grazing have to be distributed among all the arable holdings, such holdings being unworkable without them. Rights of common are often apportioned among the tenants “according to the magnitude of their holdings,” for, of course, a large holding will need more plough beasts, and therefore more pasture, than a small one. Their boundaries are accurately recorded from this tree to that stone and such and such a hill, because otherwise an invasion of foreigners with their cattle from a neighbouring village may eat them up like locusts. To divide them up among the tenants may do no harm provided the division is an equitable one, for each man will still have his equipment of pasture, though in the form of a limited area instead of in the form of a limited quota of beasts. To appropriate common pastures without compensation may ruin a whole village; it is to seize a piece of free capital without which cows and horses cannot be fed, and thus it is virtually to confiscate the beasts, which are the peasant’s tools. When that is done he must either re-assert his rights, or throw up his arable holding, or hire pasture for a money rent; sometimes—a bitter thought—he must hire grass-land from the very man who has robbed him.[427]
One must not, of course, unduly simplify the picture. Different villages are very differently endowed with grazing land. On some there is a common waste, and a common pasture in addition of superior quality, so that the waste can be left to animals which will thrive on rough land. On others there is not even a common waste, and the tenants have to do the best they can on the stubble which lies open after harvest. Nor do they all manage the apportionment of grazing rights in the same way. As we have seen, there has been a movement towards the formation of separate closes; and even when all the pasture is administered in common, it may either be that each villager looks after his own animals, or that the township, intent on seeing that the common is not overstocked, appoints a common shepherd and a common cowherd, who drives them all afield together “under the opening eyelids of the morn.” Under all such diversities, however, which can often be paralleled from the practice of continental communes to-day, there is the fundamental fact of the necessity of rights of pasture to successful tillage. Fitzherbert’s remark that “an husband cannot well thrive by his corne without he have other cattle, nor by his cattle without corne,”[428] is reiterated in different forms by other surveyors. When they tell us that a common adjoining a town is a “great relief to the poor tenants,” and recommend that a special clause be inserted in a farmer’s lease binding him not to appropriate the pasture without which the tenants “were not able to maintain their tenements,” they are speaking of matters which they understand far better than we possibly can, and must be believed.
The monopolising of commons by manorial authorities who wished to form a large sheep-run can be traced through several stages, of which actual enclosure is only one, and the climax rather than the beginning. It usually begins with the overstocking of the common pasture by the owner of great flocks and herds, and the consequent edging out of the small man, though, of course, when the area is a large one, and when, as in Wiltshire, there are great downs which are suitable for sheep, it may be a long time before the latter feels the pinch severely. But the mere overriding by a capitalist of the customary allotment of pasture rights is usually only the first step. As long as matters are left in this transition stage there is endless friction and disturbance, because each party tries to oust the other, the great man swamping the pasture with his beasts, and the peasants defiantly insisting that the recognised stint shall be observed—a guerilla warfare in which the farmer's servants are matched against the township’s cowherd and the common pound. Enclosing follows as a way of regularising the new arrangements, by substituting a tangible and prickly boundary for an ideal limit. Sometimes enclosure is demanded by the peasants and resented by the well-to-do, who think that in the general squabble they will come off best. More often it is carried out with a high hand by the farmer and the lord, who, once they take seriously to cattle-breeding or sheep-farming, have naturally no desire to have a limit set to their investment in stock. Occasionally compensation[429] is given to the dispossessed commoners in the shape of an abatement in their rents, or of a fresh pasture in another quarter. In most of our documents, however, there is little trace of any deliberate re-adjustment of rights. We are simply told that “he holds the whole of the hilly pasture,” or that he has “a heath enclosed with a hedge,” or that grounds have been “enclosed contrary to the custom of the manor.” We can trace the effect in the small number of beasts which other tenants keep, but we are left to conjecture how this state of things was reached. Our impression is that in most cases the enclosing of commons was carried out in the simplest and most arbitrary way, by the lord or the farmer erecting a hedge round such part of the common pasture as he cared to appropriate, and leaving the tenants to make good their demand that it should be removed, if they could.
Could they make it good? The question of the degree to which different classes of tenants could obtain legal redress for disturbance will be discussed later. But we cannot leave this part of our subject without considering shortly the standpoints towards disputes arising out of the loss of rights of common, which were adopted by the peasantry and by legal opinion. One may point out, in the first place, that their standpoints were by no means the same. The contrast which we have already ventured to draw between the considerable elements of practical communism in the working arrangements of the village community and the strict and (so we believe) correct interpretation of the law of the King’s Courts, which treats its members simply as holders of individual rights which they on occasion exercise jointly, comes out very strikingly in the different attitudes adopted towards rights of pasture. If we must be careful not to see communism where there are really only individual rights, we must also be careful not to see only individual rights where there is in fact a considerable amount of communism. However much it may be necessary to emphasise the “rough and rude individualism”[430] latent in these arrangements, we must admit that for the peasants themselves, who make and depend upon them, they contain features which are not easily explained without the use of words which the lawyers are reluctant to allow us—words implying some degree of practical communism. We must remember that the custom of the manor is itself a kind of law, and that though the lawyers who sit in the King's Courts may cast their rules into a feudal mould, which attenuates rights of common to mere concessions made by the lord to individual tenants, yet the law of the village, the custom of the manor, to which the first appeal is made, does treat them as containing a distinctly communal element. In practice the whole body of customary tenants are found managing their commons on a co-operative plan. They regulate their use and re-adjust the regulations, sometimes at almost every meeting of the court. As a community, they hire additional pasture and administer town lands. As a community, they make arrangements for enclosure and even sell part of their common—the common in which only individuals have proprietary rights—to persons who undertake to invest capital in improving it.[431] When all regulations fail and the enemy attempts to evade their vigilance by a strategic appearance of benevolence, a town sometimes returns to the charge with words glowing with what can only be called the pride of common property, though the title to that property may be of a very shadowy kind. “Whereas of late days,” proclaimed the Court Leet of Southampton in 1579, “there hathe ben a peice of our common and heathe ditched and hedged and enclosed in and planted with willows under the name of a shadow for our cattle, which have hitherto many yeares past prospered verie well as the common was before;—wherefore (therefore) we desire that it may be pulled down again and levelled as before, for we doubt that in short time yt will be taken from our common to some particular man’s use, which were lamentable and pitiable and not sufferable. For as our ancestors of their great care and travail have provided that and like other many benefits for their successors, so we thinke it our dutie in conscience to keepe, uphold and maintaine the same as we found yt for our posteritie to come, without diminishing any part or parcel from yt, but rather to augment more to yt yf may be.” We need not ask in what sense the Southampton men had inherited the salt marsh from their ancestors, or whether a lawyer would not have made short work of their claim to leave it to posterity. It is enough to realise that they feel it to belong to their town in a quite effective and intimate manner, that they stint it, turn off intruders, guard it for their descendants, defend it, if need be, with bows and arrows and pikes, and the other agricultural implements of that forceful age. We know that people commit many crimes in the name of posterity. But they do not usually think of bequeathing to their grandchildren rights which have never had any existence for themselves. We shall hardly understand all that was meant for a village by the loss of its common pastures unless we allow for that feeling of practical proprietorship, unless we confess that a society of landholders becomes on occasions something very like a landholding society.
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] titles 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 titles, 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 titles 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 Assize of Novel Disseisin or an action of trespass.
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 class, the aggregate of their commonable area was much larger than was that of the free tenants. According to the canon of interpretation supplied by Coke,[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.”
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.
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]
Another aspect of the problem is illustrated by a story of a similar struggle at Wootton Basset,[440] a small borough in Wiltshire. Early in the seventeenth century the mayor and freemen of Wootton Basset petition 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 rehearse it with tears in their eyes—is a perfect Odyssey of misfortunes. According to them, the manor of Wootton Basset had passed 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 compassion. 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 petition was that the grand nephew of the original grantee, having apparently got, by some means which the petitioners could not explain, the title 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.
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 title than the rest of the community, and that they led the movement to resist encroachments for that reason. It is the free tenants who petition 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 classes who have the best legal title to right of pasture are not at all commensurate with the classes 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 classes 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 Basset 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 Basset when the first assault 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[ToC]
We have dwelt at some length on the loss of rights of common, because the misleading modern associations 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 passionate 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 classes of people who suffered? Were they entirely without the protection of the law, or did they fail to obtain legal protection principally 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 pass, 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—
These furlongs, though the predominance of demesne land in them makes them not quite typical, illustrate 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 titles, screwing 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—