Customs in Common, page 13
One looks forward eagerly to his forthcoming volume, Crowds, Politics, and Culture in Eighteenth-Century England, which promises to replace all previous studies. One also looks forward to Kathleen Wilson’s forthcoming, “The Sense of the People”: Urban Political Culture in England, 1715-1785.
Years of acute party strife, in a social context which allowed the common people greater cultural space, had created a dynamic and contentious political culture, centred around royal and national anniversaries, in which the populace itself was a vigorous participant.
It was only under this tutelage that the crowd learned to assert its own autonomy and, on occasion, select its own objectives. The crowd was now a phenomenon that “had to be cultivated, nurtured, and contained”, lest it should break out of its subaltern role.2
Rogers, Whigs and Cities, esp. pp. 351, 368-72.
I can accept and applaud Professor Rogers’s approach and its execution in his urban studies. It is preferable to a simple reduction to a dual patrician/plebs polarity, and — while it allows to the crowd less autonomy than I find (for example, in provincial food or turnpike or industrial or press-gang or anti-militia actions) — it replaces urban crowd actions within a more complex political and cultural context. But through all these complexities I still must posit the underlying polarity of power — the forces which pressed to enter upon and occupy any spaces which fell open when ruling groups came into conflict. Even where crowds were clearly managed and subaltern, they were never regarded by the rulers without anxiety. They might always exceed their permit, and the unlicensed crowd would fall back into the “essentialist” polarity, “transforming the official calendar into a carnival of sedition and riot”.1 Underlying all crowd actions one can sense the formation which has been my object of analysis, the patrician/plebs equilibrium.
Ibid., p. 372.
One component of this, the old pretences of paternalism and deference, were losing force even before the French Revolution, although they saw a temporary revival in the Church-and-King mobs of the early nineties, the military display and anti-Gallicanism of the wars. The Gordon Riots had seen the climax, and also the apotheosis, of plebeian licence; and inflicted a trauma upon the rulers which was registered in a growing disciplinary tone in the eighties. But by then the reciprocal relation between gentry and plebs, tipping now one way, now the other, had lasted for a century. Grossly unequal as this relationship was, the gentry nevertheless needed some kind of support from “the poor”, and the poor sensed that they were needed. For a hundred years they were not altogether the losers. They maintained their traditional culture; they secured a partial arrest of the work-discipline of early industrialism; they perhaps enlarged the scope of the poor laws; they enforced charities which may have prevented years of dearth from escalating into crises of subsistence; and they enjoyed liberties of pushing about the streets and jostling, gaping and huzzaing, pulling down the houses of obnoxious bakers or Dissenters, and a generally riotous and unpoliced disposition which astonished foreign visitors, and which almost misled them themselves into believing that they were “free”. The 1790s expelled that illusion, and in the wake of the experiences of those years the relationship of reciprocity snapped. As it snapped, so, in the same moment, the gentry lost their self-assured cultural hegemony. It suddenly appeared that the world was not, after all, bounded at every point by their rules and overwatched by their power. A man was a man, “for a’ that”. We move out of the eighteenth-century field-of-force and enter a period in which there is a structural reordering of class relations and of ideology. It is possible, for the first time, to analyse the historical process in terms of nineteenth-century notations of class.
Chapter Three
Custom, Law and Common Right
At the interface between law and agrarian practice we find custom. Custom itself is the interface, since it may be considered both as praxis and as law. Custom’s original lies in praxis; in a treatise on copyhold at the end of the seventeenth century we learn that “customs are to be construed according to vulgar apprehension, because Customs grow generally, and are bred up and brought up amongst the Laygents, therefore are called Vulgares Consuetudines’. For Sir Edward Coke (1641) there were “two pillars” for customs — common usage, and time out of mind. For Carter in Lex Custumaria (1696) the pillars had become four: antiquity, continuance, certainty and reason:
For a Custom taketh beginning and groweth to perfection in this manner. When a reasonable Act once done is found to be good, and beneficial to the People, and agreeable to their nature and disposition, then do they use it and practise it again and again, and so by often iteration and multiplication of the Act, it becomes a Custom; and being continued without interruption time out of mind, it obtaineth the force of a Law.
Custom is local, lex loci, and may except the locality from common law, as, for example, in “Borough-English” whereby the younger son might inherit. It is “alleged not in the person, but in the manor” (Fisher): “So Custom lies upon the Land” and “binds the Land” (Carter).1
Sir Edward Coke, The Complete Copy-holder (1641); S.C. [S. Carter], Lex Custumaria: or, A Treatise of Copy-hold Estates, 2nd edn. 1701), ch. 4, which usefully summarises law c. 1700. Law relating to custom was of course modified by eighteenth-century judgements, and is usefully summarised c. 1800 in R. B. Fisher, A Practical Treatise on Copyhold Tenure (1794; 2nd edn. 1803), ch. 6. An authoritative treatise on customary law in the nineteenth century is John Scriven, A Treatise on the Law of Copy-holds, (7th edn., 1896). For the later nineteenth century, J. H. Balfour Browne, The Law of Usages and Customs (1875), ch. 1.
The land upon which custom lay might be a manor, a parish, a stretch of river, oyster beds in an estuary, a park, mountain grazing, or a larger administrative unity like a forest. At one extreme custom was sharply defined, enforceable at law, and (as at enclosure) was a property: this is the business of the court roll, the manorial courts, the recitations of customs, the survey and of village by-laws. In the middle custom was less exact: it depended on the continual renewal of oral traditions, as in the annual or regular perambulation of the bounds of the parish:
Gervas Knight. . . aged sixty seven yeares and upwards Maketh Oath that ever since he can remember. . . he has known Farming Woods Walk within the Forest of Rockingham. . . and says that ever since he was big enough. . . viz. from about the yeare 1664 until about the yeare 1720 he yearly or every two yeares. . . went with the Vicar and Parishioners of Brigstock to perambulate publickly for the same Parish and thereby make clayme of the Lands thereto belonging and to set forth their bounds. . .2
Deposition of Jarvis Knight, PRO, KB 1.2 Part 2, Trinity 10 Geo. I.
The perambulation followed the ancient watercourses, the hedges of closes, and at each boundary point a cross or mark was made in the ground.3
Small boys were sometimes ducked in the ditch or given a clout to imprint the spot upon their memories. Such practices are found everywhere. In Shetland “at a perambulation of the scattald marches of Uist in the year 1818. . . Mr Mowat to make it to be the better remembrd that Tonga was the march, gave Fredman Stickle. . . a crack over the back with his horse-whip”: Brian Smith, “What is a Scattald?”, in Barbara Crawford (ed.), Essays in Shetland History (Lerwick, 1984), p. 104.
Not only the lord’s court but also the church was trustee of the parish memory, and in the early eighteenth century one can still find examples where this trust was vigorously upheld. I have described in Whigs and Hunters the remarkable role as recorder of Will Waterson, the vicar of Winkfield in Windsor Forest.1 The vicar of Richmond led his parishioners in a perambulation which broke down the wall of Richmond Park.2 An equally active part was played by Mr Henry Goode, the rector of Weldon, a parish which intercommoned with several others in the forest of Rockingham and whose rights were disputed by the parish of Brigstock. In 1724 in one of those disputes over timber rights and lops and tops which can be found in all forest areas, there was a formidable encounter in the forest. In Whitsun week the servants of Lord Gowran of Brigstock felled some trees in Farming Woods Walk and the Gowrans sent their tenants with wagons to carry the timber away. “You are very merry”, said a Weldon man: “We will be merry with you.” Shortly afterwards more than two hundred Weldon men and women surged into the forest, armed with hatchets, woodbills, pick hafts and staves, “hallowing. . . in a violent riotous and threatning manner and crying out ‘Cutt the Waggons, Overthrow the Waggons’. . .”, scaring the horses, and carrying off some of the lops and tops. Behind this affray lay further grievances about grazing rights and the impounding by Lord Gowran’s orders of Weldon cattle. A deponent said that the rector of Weldon “did on a Sunday in his desk in Church there preach or read something to his Parishioners there that instigated or encouraged the said Riot, and that on the same day that Riot was committed the Bells in the Steeple there were rung backwards or jangled in order to raise or incite the people. . .”3 Mr Goode continued his campaign twenty years later, with a “Commoner’s Letter to his Brethren in Rockingham Forest”, in which their precedents and rights were rehearsed. The notion of church guardianship was emphasised by a postscript:
E. P. Thompson, Whigs and Hunters (1975), esp. pp. 298-300.
Anon., Two Historical Accounts of the Making of the New Forest and of Richmond New Park (1751). In 1748 the rector of Bainton (Yorkshire) led his parishioners in breaking down enclosures made by the lord of the manor; the rector, William Territt, ended up at York Assizes: W. E. Tate, The English Village Community and the Enclosure Movements (1967), p. 152.
Depositions of Charles Gray and of Richard Collyer in PRO, KB 1.2 Part 2 (1724).
N.B. I desire every Parish, that has any Right of Common in the Forest of Rockingham, to lay up two of these Letters in the Parish Chest, which may be a means of instructing their Children, and their Childrens Children, how to preserve their Right in the Forrest for Ages to come.1
“A Commoner” [the Rev. Good of Weldon], A Letter to the Commoners in Rockingham Forest (Stamford, 1744), p. 18.
Perhaps Henry Goode and Will Waterson strayed a little beyond a perambulation of the bounds of duty. A recommended Exhortation to be preached in Rogation Week had a good deal to say about avoiding contention with neighbouring parishes and turning the other cheek. Nevertheless, explicit commination is visited upon offenders against parish or common rights: “Accursed be he, said Almighty God by Moses, who removeth his neighbour’s doles and marks”:
They do much provoke the wrath of God upon themselves, which use to grind up the doles and marks, which of ancient time were laid for the division of meers and balks in the fields, to bring the owners to their right. They do wickedly, which do turn up the ancient terries of the fields, that old men beforetimes with great pains did tread out; whereby the lords’ records (which be the tenants’ evidence) be perverted and translated sometimes to the disheriting of the right owner, to the oppression of the poor fatherless, or the poor widow.
And if these exhortations are directed mainly at the petty malefactor, moving boundary marks in the night or shaving with his plough a foot off the common balks and walks, yet the sentence of commination was visited also on the rich and the great: “So witnesseth Solomon. The Lord will destroy the house of the proud man: but he will stablish the borders of the widow.” And all farmers were exhorted “to leave behind some ears of corn for the poor gleaners”.2
“An Exhortation to be spoken to such Parishes where they use their Perambulation in Rogation Week”, Certain Sermons and Homilies appointed to be read in Churches in the Time of Queen Elizabeth (1851), pp. 529-30.
If the memories of the old, perambulation and exhortation lay towards the centre of custom’s interface between law and praxis, custom passes at the other extreme into areas altogether indistinct — into unwritten beliefs, sociological norms, and usages asserted in practice but never enrolled in any by-law. This area is the most difficult to recover, precisely because it belongs only to practice and to oral tradition. It may by the area most significant for the livelihood of the poor and the marginal people in the village community. Custumals and by-laws should not be taken to be an exhaustive accounting of the actual practice of common right usages, especially where these bear upon the fringe benefits of common, waste, the herbage of lanesides, to the landless inhabitants or the cottager. For these documentary sources are often partisan briefs drawn up by the lord’s steward, or by the substantial landholders on the in-coming of a new lord; or they are the outcome of bargaining and compromise between several propertied parties in the manorial court, in which the cottager or the landless had no voice on the homage. As one learned legal antiquary noted,
The Entries which are found in the manorial Books or on Manorial Court Rolls, kept in the hands of the Lord’s Steward, and purporting to set out the bounds of manors are liable to great suspicion. . . They are always made by Parties having a positive interest in gaining the greatest extent of property possible.1
Stacey Grimaldi, “Report upon the Rights of the Crown in the Forest of Whichwood”, 2 vols. (MS in my possession, 1838), i, no pagination, section on “timber and saplings within manors”.
Other rights were of a nature that could never be brought to trial or proved. For example, a King’s Bench affidavit of 1721 concerns a woman gleaner who was beaten and driven from the field in Hope-under-Dynemore, Herefordshire. The farmer, in defence, said he “would not suffer her to lease there because she had cursed him”.2 This might indicate only a neighbourhood quarrel, but — the evidence is too scanty for confidence — it might hint at further unwritten custom. A curse, of course, registered something more than a curse would normally register today. Both slander and assault were constant objects of social control. But a curse was more than slander. The Herefordshire case might suggest that a curse was strong enough to unloose the farmer (at least in his own eyes) from the acknowledged bond laid upon the land by custom.
PRO, KB 2.1 Part 2, Rex v John Stallard. Elizabeth Blusk miscarried as a result of being beaten by Stallard.
I am suggesting that custom took effect within a context of sociological norms and tolerances. It also took effect within a workaday routine of livelihood. It was possible to acknowledge the customary rights of the poor, but place obstacles in the way of their exercise. A petition of the poor inhabitants of Loughton, adjoining Waltham Forest in Essex, claimed the liberty of lopping their firewood from the trees. The lord and lady of the manor had not disputed the right but had limited its exercise to Mondays only, “and if this day prove fair ’tis a loss to them because ’tis the day they generally lett themselves to work with the farmers that employ them for the whole week”, whereas formerly they had gathered wood on any wet days when there was no work. Meanwhile (they complained) the lord and lady were felling timber, selling logs, overstocking the forest with cattle, ploughing up the greensward, and setting coney warrens whose rabbits were “eating up their green corn and poysoning their meadows”.1
PRO, C 104.113 Part 1, c. 1720? For the unusually tenacious and ritualised customs of wood in Loughton, see Lord Eversley, Commons, Forests and Footpaths (1910), pp. 86ff, 106-8; and below pp. 142-3.
Agrarian custom was never fact. It was ambience. It may best be understood with the aid of Bourdieu’s concept of “habitus” — a lived environment comprised of practices, inherited expectations, rules which both determined limits to usages and disclosed possibilities, norms and sanctions both of law and neighbourhood pressures.2 The profile of common right usages will vary from parish to parish according to innumerable variables: the economy of crop and stock, the extent of common and waste, demographic pressures, by-employments, vigilant or absentee landowners, the role of the church, strict or lax court-keeping, the contiguity of forest, fen or chase, the balance of greater and lesser landholders. Within this habitus all parties strove to maximise their own advantages. Each encroached upon the usages of the others. The rich employed their riches, and all the institutions and awe of local authority. The middling farmers, or yeoman sort, influenced local courts and sought to write stricter by-laws as hedges against both large and petty encroachments; they could also employ the discipline of the poor laws against those beneath them, and on occasion they defended their rights against the rich and powerful at law.1 The peasantry and the poor employed stealth, a knowledge of every bush and by-way, and the force of numbers. It is sentimental to suppose that, until the point of enclosure, the poor were always losers. It is deferential to suppose that the rich and great might not act as law-breakers and predators. A reading of the successive reports on royal forests of the Land Revenue Commissioners will quickly disabuse us on both points.
Pierre Bourdieu, Outline of a Theory of Practice (Cambridge, 1977), Chap. 4. This is my own gloss upon Bourdieu’s stricter concept.
This was especially the case where copyhold and customary tenures survived strongly: see C. E. Searle, “Custom, Class Conflict and Agrarian Capitalism: the Cumbrian Customary Economy in the Eighteenth Century”, Past and Present, 110 (1986), esp. pp. 121-132.
Forests, chases, great parks and some fisheries were notable arenas, in the eighteenth century, of conflicting claims (and appropriations) of common rights. After a revival in the first decades, the forest courts fell back into disuse, so that the direct invigilation by “the Crown” declined. But the hierarchy of grantees, managers, keepers, forest officers, under-keepers, remained in being, as avaricious as ever, and most of them engaged in the rip-offs which their rank or opportunities of office favoured. The great encroached on the walks, fenced in new hunting lodges, felled acres of timber, or obtained little sweeteners, like the earl of Westmorland who was granted four hundred acres of Whittlewood Forest at one farthing an acre in 1718.2 In the middle of the hierarchy forest officers and under-keepers, who had long supplemented their petty salaries with perquisites, made inroads into the venison, sold off the brushwood and furze, made private agreements with innkeepers and pastry-cooks, butchers and tanners.3 Early in the century Charles Withers, Surveyor-General for Woods and Forests, kept a diary of a tour of several forests. At Wychwood —
