COMMONS,[1] the term for the lands held in commonalty, a relic of the system on which the lands of England were for the most part cultivated during the middle ages. The country was divided into vills, or townships—often, Early history. though not necessarily, or always, coterminous with the parish. In each stood a cluster of houses, a village, in which dwelt the men of the township, and around the village lay the arable fields and other lands, which they worked as one common farm. Save for a few small inclosures near the village—for gardens, orchards or paddocks for young stock—the whole township was free from permanent fencing. The arable lands lay in large tracts divided into compartments or fields, usually three in number, to receive in constant rotation the triennial succession of wheat (or rye), spring crops (such as barley, oats, beans or peas), and fallow. Low-lying lands were used as meadows, and there were sometimes pastures fed according to fixed rules. The poorest land of the township was left waste—to supply feed for the cattle of the community, fuel, wood for repairs, and any other commodity of a renewable or practically inexhaustible character.[2] This waste land is the common of our own days.
It would seem likely that at one time there was no division, as between individual inhabitants or householders, of any of the lands of the township, but only of the products. But so far back as accurate information extends the arable land is found to be parcelled out, each householder owning strips in each field. These strips are always long and narrow, and lie in sets parallel with one another. The plough for cultivating the fields was maintained at the common expense of the village, and the draught oxen were furnished by the householders. From the time when the crop was carried till the next sowing, the field lay open to the cattle of the whole vill, which also had the free run of the fallow field throughout the year. But when two of the three fields were under crops, and the meadows laid up for hay, it is obvious that the cattle of the township required some other resort for pasturage. This was supplied by the waste or common. Upon it the householder turned out the oxen and horses which he contributed to the plough, and the cows and sheep, which were useful in manuring the common fields,—in the words of an old law case: “horses and oxen to plough the land, and cows and sheep to compester it.” Thus the use of the common by each householder was naturally measured by the stock which he kept for the service of the common fields; and when, at a later period, questions arose as to the extent of the rights on the common, the necessary practice furnished the rule, that the commoner could turn out as many head of cattle as he could keep by means of the lands which were parcelled out to him,—the rule of levancy and couchancy, which has come down to the present day.
In the earliest post-conquest times the vill or township is found to be associated with an over-lord. There has been much controversy on the question, whether the vill originally owned its lands free from any control, and was subsequently Status of township. reduced to a state of subjection and to a large extent deprived of its ownership, or whether its whole history has been one of gradual emancipation, the ownership of the waste, or common, now ascribed by the law to the lord being a remnant of his ownership of all the lands of the vill. (See [Manor].)
At whatever date the over-lord first appeared, and whatever may have been the personal relations of the villagers to him from time to time after his appearance, there can be hardly any doubt that the village lands, whether arable, meadow or waste, were substantially the property of the villagers for the purposes of use and enjoyment. They resorted freely to the common for such purposes as were incident to their system of agriculture, and regulated its use amongst themselves. The idea that the common was the “lord’s waste,” and that he had the power to do what he liked with it, subject to specific and limited qualifying rights in others, was, there is little doubt, the creation of the Norman lawyers.
One of the earliest assertions of the lord’s proprietary interest in waste lands is contained in the Statute of Merton, a statute which, it is well to notice, was passed in one of the first assemblies of the barons of England, before Statutes of Merton and Westminster the Second. the commons of the realm were summoned to parliament. This statute, which became law in the year 1235, provided “that the great men of England (which had enfeoffed knights and their freeholders of small tenements in their great manors)” might “make their profit of their lands, wastes, woods and pastures,” if they left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another statute, that of Westminster the Second, supplemented the Statute of Merton by enabling the lord of the soil to inclose common lands, not only against his own tenants, but against “neighbours” claiming pasture there. These two pieces of legislation undoubtedly mark the growth of the doctrine which converted the over-lord’s territorial sway into property of the modern kind, and a corresponding loosening of the hold of the rural townships on the wastes of their neighbourhood. To what extent the two acts were used, it is very difficult to say. We know, from later controversies, that they made no very great change in the system on which the country was cultivated, a system to which, as we have seen, commons were essential. In some counties, indeed, inclosures had, by the Tudor period, made greater progress than in others. T. Tusser, in his eulogium on inclosed farming, cites Suffolk and Essex as inclosed counties by way of contrast to Norfolk, Cambridgeshire and Leicestershire, where the open or “champion” (champain) system prevailed. The Statutes of Merton and Westminster may have had something to do with the progress of inclosed farming; but it is probable that their chief operation lay in furnishing the lord of the manor with a farm on the new system, side by side with the common fields, or with a deer park.
The first event which really endangered the village system was the coming of the Black Death. This scourge is said to have swept away half the population of the country. The disappearance, by no means uncommon, of a whole The Black Death. family gave the over-lord of the vill the opportunity of appropriating, by way of escheat, the holding of the household in the common fields. The land-holding population of the townships and the persons interested in the commons were thus sensibly diminished.
During the Wars of the Roses the small cultivator is thought to have again made headway. But his diminished numbers, and the larger interest which the lords had acquired in the lands of each vill, no doubt facilitated the determined attack on the common-field system which marked the reigns of Henry VIII. and Edward VI.
This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheep-breeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess a large The Tudor agrarian revolution. body of followers pledged to his interests by their connexion with the land. On the other hand, wool commanded a high price, and the growth of towns and of foreign commerce supplied abundant markets. At the same time the confiscation of the monastic possessions introduced a race of new over-lords—not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. In order to keep large flocks and send many bales of wool to market, each landowner strove to increase his range of pasture, and with this view to convert the arable fields of his vill into grass land. There is abundant evidence both from the complaints of writers such as Latimer and Sir Thomas More, and from the Statutes and royal commissions of the day, that large inclosures were made at this time, and that the process was effected with much injustice and accompanied by great hardship. “Where,” says Bishop Latimer in one of his courageous and vigorous denunciations of “inclosers and rent-raisers,” “there have been many householders and inhabitants, there is now but a shepherd and his dog.” In the full tide of this movement, and despite Latimer’s appeals, the Statutes of Merton and Westminster the Second were confirmed and re-enacted. Both common fields and commons no doubt disappeared in many places; and the country saw the first notable instalment of inclosure. But from the evidence of later years it is clear that a very large area of the country was still cultivated on the common-field system for another couple of centuries. When inclosure on any considerable scale again came into favour, it was effected on quite different principles; and before describing what was essentially a modern movement, it will be convenient to give a brief outline of the principles of law applicable to commons at the present day.
Law.—The distinguishing feature in law of common land is, that it is land the soil of which belongs to one person, and from which certain other persons take certain profits—for example, the bite of the grass by the mouth of cattle, Rights of common. or gorse, bushes or heather for fuel or litter. The right to take such a profit is a right of common; the right to feed cattle on common land is a right of common of pasture; while the right of cutting bushes, gorse or heather (more rarely of lopping trees) is known as a right of common of estovers (estouviers) or botes (respectively from the Norman-French estouffer, and the Saxon botan, to furnish). Another right of common is that of turbary, or the right to cut turf or peat for fuel. There are also rights of taking sand, gravel or loam for the repair and maintenance of land. The persons who enjoy any of these rights are called commoners.