common land and common misconceptions

‘Common land’

The common misconception about commons is that commoners had common land ‘taken away from them’ by the general enclosure acts of the 19th century.

I’ve included many ‘commons’ in that opening sentence, deliberately.

Just to pick one example of the type of generalisations about the process of enclosure and what was the relative position of landowners, tenants and government, see:

The Kinder Scout Mass Trespass of 1932 is perhaps the most common reference point for debates about common land and access, and there is a reason for this.

Kinder Scout is a short-hand for a particular view of what common land is and represents: that common land is open to all the people for the benefit of the people, and in effect should therefore be ‘owned’ by the people. And ‘the people’ means the whole nation, rather than just the immediate residents living in and around a particular piece of common land.

The mass trespass of 1932 was the largest collective action inspired by that view of common land as public space. The idea however had been developing only since the mid 19th century, but was crystallised by the event and has continued to mean that ever since.

This is the ‘universal’ or ‘timeless’ myth

The idea that common land is commonly owned by the people, and can be used by all people is still pervasive. It gives the impression that common land has always been common, timeless and universal.

There is already a paradox or contradiction inherent in the myth:

1. on the one hand, the local common is for local people to graze animals, gather fuel, and other use-rights;
2. on the other hand, commons are ‘public’ and therefore for everyone to use for recreation.

Rights of way and public access run through these perceptions of who owns the land and who has the right to use it.

But common land was always owned by someone (usually the lord of the manor) in England and Wales

C. P. Rodgers, E. A. Staughton, A. J. L. Winchester and M. Pieraccini ‘s introduction to their excellent book Contested Common Land: Environmental Governance Past and Present (Routledge, Abingdon, 2011), p. 4, define it as:

privately owned land over which others possess use rights, giving them legally recognised access to particular resources.

The ownership of common land or ‘waste’ was usually vested in the lord of the manor, while the local community could have use rights. This general state of affairs existed from about the 13th century until the 1965 Commons Registration Act.

The picture portrayed in the Guardian article above, of a sudden out-turning of a landless peasantry between 1750 and 1850, is over-simplistic and does not appreciate the extent of commercialisation of rights – including by commoners themselves – by this period.

What are common rights?

Most rights were ‘appurtenant’, attached to a landholding as a subsidiary right. Common rights ‘in gross’, were rights independent of holding land.

Common law recognised 6 categories of common right, which were not exclusive:

• common of pasture

• common of turbury – right to take peat or turf for fuel

• common of estovers – right to take wood or other vegetation

• right of pannage – right to grove pigs in woodland

• right of piscary – right to take fish

• profits a prendre –  rights to take minerals or soil

• ferae naturae – right to take animals.

  (Rodgers et al, p. 5).

Yet even these rights of use were complicated by shifting uses, customary law and customary uses, and commercialisation. Common land seemed to be a symbol of shared resources, but in fact legally was a complex patchwork of ownership and rights, often jealously guarded. Customary law mediated between the two perceptions: common usage, and exclusive ownership.

The privatisation and commercialisation of common rights had been occuring since at least the 17th century. And the important impact of this process was to remove the connection between local resident and common. Again, this is another myth-buster: common land and its uses did not always ‘belong’ to the local residents who lived near it. You could hold common rights to a piece of land other than where you lived.

So stints or rights of pasture could be sold separately from the land to which they were attached. Rights to urban commons, moreover, were often leased, shared or sub-let, ‘further distancing the user from the legal commoner’ (Rodgers et al, p. 23).

This presents a parallel and alternative picture to the deeply local story outlined by Keith Snell in his richly evocative book, Parish and Belonging, in which he described how attachment to place is shaped legally by the settlement regulations of the poor laws, and a long-standing ‘local xenophobia’ engendered by the primacy of the parish boundary in legal and administrative impacts on everyday life.

On top of the legal definitions lay custom

Whatever was defined legally, customary uses and interpretations of the law of custom complicated matters even further. Practice was very different from theory. Whereas the law stated that common pasture rights applied to the whole common, in practice commoners subdivided the land by usage, in effect privatising sections with invisible boundaries. There was  therefore ‘a strong sense of customary property rights operating below the level of the law’ (Rodgers et al, p. 24). These customary rights were no less real in practice to the users, even though they were not defined in law.

Where does the ‘common land’ misconception come from, and why is it misleading?

There were precedents in the Diggers of the 17th century, and later minority radical groups, particularly the Spenceans. But, as much as historians like to focus on such groups because of their radicalism, we should remember that they were in the minority. Most people in England & Wales did not believe in land redistribution. Even the Chartists’ big experiment of the Land Plan was still predicated on property ownership.

England and Wales’ whole political, representative and legal system was predicated on property, a conservatism with a small c that depended on the institution of property to define class and elites.

In effect, the popular idea that the commons belonged to all, meaning all people and not just local commoners, derived from the debates over enclosure in the 19th century.

The commons preservation movement was a 19th century phenomenon, but essentially started with the societies for the preservation of footpaths, which formed in Manchester and York in the 1820s after the massive wave of parliamentary enclosure during the Napoleonic Wars. I don’t have room to go into this here, but will do so in a future post. In the meantime you can read: Wendy Darby, Landscape and Identity: Geographies of Nation and Class in England (Bloomsbury, 2000).

There’s also a related myth, which swirls around the preservationist debate and rhetoric around National Parks and Areas of Outstanding National Beauty, eliding them with the idea of common land, access and use, in that common land is unspoiled, whereas in reality it was always about production and extraction of natural material resources.

new thoughts 11/2: The right to roam movement, with its longer precedents in campaigns against the stopping up of footpaths in the 1820s, had a much stronger sense of what public space is and defence of legally defined rights of way used by all people.

But the simplistic misconception about the enclosure acts ‘taking away common land’ from local people has, I argue, arisen from a conflation of the right to roam movement (i.e. footpaths) with the debates and resistance against parliamentary enclosure (i.e. common land).

This confusion has arisen, as I explain below, out of the legacy of the later 19th century preservation movement, who deliberately employed rhetoric of common land to defend the use of land for recreation and amenity, rather than for pasturage and other productive rights.

And this rhetoric about common land ignores, or is not aware of, the already long-established patterns of encroachment, privatisation and commercialisation of stinting and other customary rights, that led to the situation in some areas where the holders of such rights had bought or leased them, and were not necessarily local residents. I will find more evidence for these patterns of ownership of common rights from my case studies in due course.

The main shift was in the idea of commons as a place of agricultural production and resources, to one of recreation and open access.

From the 1860s onwards, legislation was often directed towards regulation in support of preservation and recreation rather than enclosure (Rodgers et al, p. 38).

Basic chronology:

• General Inclosure Act of 1845, included provisions for enclosure commissioners to consider recreation grounds and allotments for the poor, though this was often not enacted in practice

• 1865 Commons Preservation Society was formed

• 1866 Metropolitan Commons Act;

• 1866 Berkhamsted Common dispute

• 1876 Commons Act and 1899 Commons Act were ‘primarily aimed at regulation and preservation of commons rather than wholesale enclosure’ (Rodgers et al, p.29)

• 1899 Commons Act – introduced mechanisms for district and parish councils to regulate and manage common land. c.200 commons involved

• 1925 Law of Property Act – gave public access to metropolitan commons and commons lying wholly or partly within urban district areas

George Shaw Lefevre reinvigorated the myths in his account of the Victorian preservation movement in his English Commons and Forests: The Story of the Battle During the Last Thirty Years for Public Rights Over the Commons and Forests of England and Wales (1894):

The popular battles over access to common land and to the ‘right to roam’ were galvanised by the idea of common land as belonging to ‘the people’ as a whole, for recreation, rather than the common as a piece of land to which a particular set of local people had customary rights.

I’ll continue this theme by looking more into the myth of ‘land being taken away from the common people’ in a future post…

Bibliography:

• Wendy Darby, Landscape and Identity: Geographies of Nation and Class in England (Bloomsbury, 2000)
• C. P. Rodgers, E. A. Staughton, A. J. L. Winchester and M. Pieraccini, Contested Common Land: Environmental Governance Past and Present (Routledge, Abingdon, 2011)
• Peter Linebaugh, Stop, Thief! The Commons, Enclosures and Resistance (PM Press, 2014)
• Nicola Whyte, Inhabiting the Landscape: Place, Custom and Memory, 1500-1800 (Windgather Press, 2009)
• Ben Cowell, ‘The Commons Preservation Society and the Campaign for Berkhamsted Common, 1866–70’, Rural History, 13: 2 (2002)
• Keith Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge, Cambridge University Press, 2006)