Chapter II: The Reaction of the Agrarian Changes on the Peasantry (1)

(a) _The Removing of Landmarks_

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.

[416] The Shepe Book of Tittleshall Manor (Holkham MSS.,
Tittleshall Books, No. 19), shows flocks of 500 to 1000 sheep
being managed by a single shepherd, 1543?-1549.

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.

[417] _e.g._ Holkham MSS., Fulmordeston, Bdle. 6: "To the Right
Honourable Sir Edward Cooke, Knight, Attorney General unto the
King's Ma{tie}. Humblie sheweth unto your lordship yo{r} poore
and dayley orators ... yo{r} worshippes tenants of the Manor of
Fulmordeston cum Croxton in the Duchie of Lancaster, and the
moste parte of the tenants of the same manor that whereas your
said orators in the Hillary Terme last commenced suite in the
Duchie Courte against Thomas Odbert and Roger Salisbury, gent.,
who have enclosed their grounds contrary to the custom of the
manor, wherby your wor. loseth your shack due out of the
grounds, common lane or way for passengers is stopped up, and
your worshipps' poore orators lose their accustomed shack in
those grounds, and the said Roger Salisbury taketh also the
whole benefit of theire common from them, keepinge there his
sheepe in grazinge, and debarring them of their libertie there
which for comon right belongeth unto them." For the rest of this
document see Appendix I., and compare the following defence to a
charge of breaking open an enclosure: "The owners of the said
tenements, from time whereof there is no memory to the contrary,
have had a common of pasture for themselves and their tenants in
one close commonly called 'the new leasue,' in the lordship of
Weston in the manner following; that is to say, when the field
where the said 'leasue' doth lie, called Radnor field, lieth
fallow, then through the whole year; and when the said field is
sown with corn, then from the reaping and carrying away of the
corn until the same be sown again ... and the said Thomas Dodd
further said that he did break open the said close ... being
fenced in such time as he ought to have common in the same, to
the end that his cattle might take their pasture therein"
(_William Salt Collection_, New Series, vol. ix., Chancery
Proceedings, Bdle. 8, No. 9).

[418] For complaints of tenants against the exactions, of
farmers as early as 1413, see _Victoria County History_, Essex,
vol. ii. p. 318. For a stipulation in the farmer's covenant, see
the following: "Item a covenant conteyned in this lease that the
said Thomas shall permit and suffer the customary Tenants
peaceably to have and enjoy their estates, rights, grants,
interests, and premises, without any lette, interruption, or
contradiction of the said Thomas" (Roxburghe Club, _Pembroke
Surveys_, Knyghton); and _Northumberland County History_, vol.
v. p. 208, Buston: "The tenants of this town at the beginning of
summer have their oxen allway grazed in Shilbottel wood, or else
they were not able to maintain their tenements. It is therefore
requisite that his lordship or his heire should have respect
unto the want of pasture, that in any lease made by his lordship
or his heire to any person of the pasture, the said Shilbottel
wood, there might be a proviso in the said lease that the said
tenants should have their oxen ground there, as they have been
accustomed." Instances of the harrying of the peasants by the
large farmers are to be found, _ibid._, vol. i. p. 350
(Tughall), and p. 274 (Newham).

[419] All Souls' Archives, vol. i. p. 203, No. 356.

[420] _Topographer and Genealogist_, vol. i., Survey of Mudford
and Hinton. In this case the aggressor was not the farmer of the
demesne, but a freeholder owning a third of the manor. To escape
his depredations the tenants proposed "to enclose their common
fieldes and to assign to Master Lyte and his tenants his third
parte in every field by itself, and to extinguish his right of
common in the rest."

[421] _Victoria County History_, Suffolk, "Social and Economic
History."

(b) _The Struggle for the Commons_

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?

[422] For an amusing example see Conway, _The Alps from End to
End_, pp. 190-192.

[423] _The Commonweal of this Realm of England_, p. 57.

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]

[424] Ten acres of "turf" to forty acres of arable was the
estimate of his requirements made to me by an Oxfordshire small
holder.

[425] _Topographer and Genealogist_, vol. i.: "The tenants of
Landress have common in a certayne ground called King's Moore
for all kinde of cattle, and every one of them may keep in the
said moore as much of all kind of cattle in somer as their
severall or ingrounde will beare in the wynter, whyche is a
great relief to the poore tenants, for as they confesse they
keep all their cattle there in the somer, and reserve their
ingroundes untouched for the winter."

[426] _e.g._ _Southampton Court Leet Records_ (Hearnshaw), pp.
4-5, 1550: "Item we present that no burgers or comyners at one
time comyn above the number of two beasts upon payne of every
such defaulte 2s.; provided that iff any of them have two kyne
or wenlings, he shall have no horse, and yf he have but one cow
he may have one horse."

[427] _Topographer and Genealogist_, vol. i.--Rolleston
(Stafford): "The said manor is ... well inhabited with divers
honest men, whose trade of lyvinge is onlie by husbandry ... and
have no large pastures or severall closes ... but have been
alwaie accustomed to have their cattle and sometyme their
ploughe beasts pastured in the Queen's Majestie's Park of
Rolleston, for xxd., the stage ... without which aide and help
they were neither able to maintain hospitallitie nor tyllage;
and nowe of late yeares the fermor of the herbage hath advanced
the stage to 6s. 8d., and yet the Quene's Majesties rent nothing
increased."

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.

[428] Fitzherbert, _Book of Husbandry_.

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.

[429] _Northumberland County History_, vol. v., Birling:
"Allowed part of 25s. 4d. for focage of Orchard Medow and
Mylneside Bank, because they are now enclosed within the lord's
new Park, and this allowance shall be made yearly until the
tenants of Byrling have and peacefully enjoy another parcel of
pasture to the same value 11s. 8d." (Bailiff's Accounts, 1474).
R.O. _Misc. Books Land Rev._, vol. ccxx., f. 236: "Divers
parcels of land and pasture of the manor of Farfield, now common
of 140 acres, now occupied by the tenants there as commons and
given them in exchange in satisfaction of their old common
imparked in the new Park, £6, 13s. 8d."

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.

[430] Pollock and Maitland, _History of English Law_, vol. i. p.
606. For the questions concerning common rights see _ibid._, pp.
594-624, and Maitland, _Domesday Book and Beyond_, pp. 340-356;
Vinogradoff, _Villainage in England_, Essay II. chap, ii., and
_The Growth of the Manor_, Book II. chap. iv. I have followed
Vinogradoff's rather than Maitland's view.

[431] For buying and selling of pasture see below, and for
enclosure pp. 168-170. The following seems a clear case of more
or less corporate action. Holkham MSS., Burnham, Bdle. 5, No.
94: "Copy of an indenture between [here follows a list of names]
of the same town and county, yeomen, as well on the behalf of
themselves as of the rest of the comoners and freeholders of the
said town of the one part, and Robert Bacon of [illegible] in
the County of Norfolk, and Thomas Coke of Grays Inn in the
County of Middlesex of the other part, that whereas heretofore
Sir Philip [illegible] being lord and owner of the marshes
hereafter mentioned ... did by his indenture of bargain and sale
bearing date ... 1588, grant bargain and sell unto [list of
names as above] all those marsh grounds lying and being in
Burnham, to have and to hold the said premises to the parties
last before mentioned and their heires to the use of them and
their heires for ever, to the intent and purpose notwithstanding
that the said parties last before mentioned there, being
inhabitants in certain ancient messuages in the said Towne, and
all other inhabitants of the said Towne there and afterwards for
the tyme being in any of the ancient messuages and cottages in
the said towne, for so long time as they shall be there
inhabitinge and noe longer, according to the quantity of their
tenures within the said Towne might depasture and feede the land
as by the said deeds referring thereunto being had may more
fully appeare; [it recites that the land] may by wallinge and
embankinge the same be improved to more than a [illegible]
value, and made fitt for arrable, meadowe, and pasture grounde,
whereby tillage may be increased and his Majestie's subjects
receive more employment thereby, and danger of drawing
[drowning?] of their stock for their feedinge prevented [recites
that Robert Bacon and Thomas Coke have undertaken to drain the
land in return for receiving three parts of it and that the
persons above mentioned] being the major parte of the parties
interested in the said salte Marshes, and being enabled by the
lawes and Statutes of this realm to contract and bargaine with
any person or persons for the draining thereof" [now convey 3
parts of the marshes to the above-mentioned Robert Bacon and
Thomas Coke], June 8, 1637. The motive of this agreement was to
get the low-lying meadows on the sea-coast drained. Drainage
schemes were much in the air about this time, and any one who
has seen the country near Holkham and Burnham will know how
badly protection from the sea was needed. Two points are worth
noticing: (i.) the tenants have no objection to surrendering
part of their common if they get a _quid pro quo_; (ii.) they
act as a single body. They buy land and they sell land and they
can leave it to their heirs. Certain persons in the township act
on their behalf, much as directors might act for a body of
shareholders. Is it possible to speak of such arrangements
simply in terms of individual rights? Are we not driven to think
of the township as almost a landholding corporation?

But, in the second place, such communal aspirations are a matter of feeling and custom, not of national law. It is hardly necessary to point out that these words do not put an aspect of the case which could be pleaded in court in a dispute as to common of pasture. At the touch of the law, as has often been pointed out, the communal element, of which Southampton makes so much, seems to crumble away. If, to the eye of the peasants, a manor was a more or less self-conscious community with considerable powers of controlling the administration of its pastures, it was, to the eye of the common lawyer, a collection of individuals bound together by their relation to the manorial authorities, but in other respects able to enforce rights of common only in so far as those rights could be shown to be enjoyed by one of the four[432] 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.

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

Moreover, the Statute of Merton, which expressly allowed a lord to enclose commonable land on condition that he left sufficient for the free tenants, did not mean that a lord could arbitrarily cut down rights of common to what he was pleased to think sufficient. If it had, there would have been little enclosing of commons in the sixteenth century, for by that time there would have been little common left to enclose. The question "what is sufficient?" had to be answered by a jury, a jury representing expert knowledge as to local customs and the agrarian usages of the township. The jury could only answer it by taking account of the size of the tenements and of the land available for commoning. In fact, it found itself at once considering the custom of the manor, which stinted rights of pasture according to the economic needs and resources of different villages. Of the position of the customary tenants it is, for reasons which will be given below, less easy to speak. Regarded from the standpoint of the economic organisation of the manor, their rights of pasture should have got protection as much as those of the freeholders, for as holders of ancient tenements they required pasture to enable them to carry on their tillage; and since they were, in most parts of the country, by far the most numerous 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."

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

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

The treatment by the law of common rights, in the case both of freeholders and of the customary tenants, seems to fit roughly into this scheme, though the actual facts are somewhat more complex than it would suggest. The cases show that the freeholders had a legal remedy if enclosure deprived them of rights of pasture, and that this remedy was used. A freeholder could say "these be the pastures ... which should be my common ... after the tenure of my freehold;"[435] if he proved the fact he got protection, and on manors where the freeholders were numerous and the lord wanted to make very large enclosures, he had to buy them out. It is true also that the freeholders[436] joined with the farmer on some manors in enclosing commonable land, to the detriment of the customary tenants, who apparently sometimes had to acquiesce in it. They show again that a customary tenant could obtain protection for his rights of common pasture both, at any rate in the sixteenth century, from the Common Law Courts, and also, at an earlier date, from the Court of Chancery, provided that he could show that such rights were attached to his holding by the custom of the manor, a very important qualification, to which we must return.[437] On the other hand, it is certainly true that both freeholders and customary tenants suffered in our period from a curtailment of common rights, in spite of the qualified protection enjoyed by the latter and the complete protection enjoyed by the former. We cannot, in fact, be content with a mere summary of the legal position, for the law is not always strong enough or elastic enough to cope with shifting economic forces. Or, rather, its arm is short, and it can only grapple with those conflicts which are sufficiently violent to force their way to Westminster.

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

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

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

Some light may be thrown on the kind of trouble of which our period was full by two accounts which have come down to us of disputes concerning rights of common pasture. At Coventry[438] there were in the fifteenth century prolonged quarrels between the City and the Prior and Convent of the Cathedral Church of St. Mary. In 1485 the Prior was accused by the city authorities of wrongfully overcharging the common with sheep and cattle, to the damage of the city. He replied by admitting the legal rights of the other commoners, but by claiming that whereas they could only pasture a limited number of beasts, "by the lawe of this lande the lord of the waste soyle may surcharge and pasture there what nombre hym lykes," and that therefore in overstocking the common he was only exercising his rights. To this the city answered by a rather hesitating appeal to custom, according to which the commoners never had been stinted to a fixed number of beasts, and by pointing out that, if the Prior was allowed to put as many beasts on the common as he pleased, he was virtually confiscating the property of the other commoners. This case brings out very clearly one weakness in the position even of the free tenants. It was that, while they were protected by law against attempts actually to deprive them of rights of common, the protection might be held to be contingent on the lord or his farmer proceeding so far as not to leave them sufficient, and was not available if the encroachments only went so far as to diminish their common pasture. There was a minimum which they could not lose: but above this minimum their rights of pasture were elastic and compressible, and when, as in this case, the pasture was so large as to make any numerical limit to the number of beasts which they might graze unnecessary, the commoners might be deprived of some part of their customary pasture without any infringement of the law.[439]

[438] _Coventry Leet Book_, vol. ii. pp. 445-446 and _passim_.