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?