Customs in Common, page 15
Walpole’s successor as Ranger was Princess Amelia, who was loved no more than Walpole but was more easy to challenge than the great man. The grievances concerned chiefly rights of way through the park, and loss of access to gravel, underwood, furze, and also water rights. In this prosperous neighbourhood those concerned were not only farmers but also gentry, merchants, tradespeople and artisans. Champions of local rights included a stonemason, a brewer, and Timothy Bennett, a shoemaker, whose motto it was that he was “unwilling to leave the world worse than he found it”. John Lewis, the brewer, led an agitation in the 1750s which prefigures some of the stratagems of John Wilkes: there were public meetings, memorials in the press (London Evening Post), a widely-signed petition presented to the King, and finally a series of actions at law.1 From such episodes as this one may see the growing confidence of “civil society”.
Anon., A Tract on the National Interest, and Depravity of the Times (1757); E. E. Dodd, “Richmond Park” (typescript, 1963); C. L. Collenette, A History of Richmond Park (1937); my Whigs and Hunters, pp. 181-4; Michael Dodson, The Life of Sir Michael Foster (1811), pp. 84-8; Rev. Gilbert Wakefield, Memoirs (1792), who has a good description of John Lewis’s campaign, pp. 243-53; Walpole, op. cit., i, pp. 401-2, ii, pp. 220-1.
Cases came up at Surrey Assizes (Kingston) every summer from 1753 to 1758. Right of highway between Richmond and Croydon (through the park) was lost (1754), but right of footway (over stiles or ladders) from Richmond to Wimbledon was won. John Lewis then (1755) forced his way through a park gate, and sued the gatekeeper (Martha Gray) who pushed him out, for obstructing three ancient footways, one between East Sheene and Kingston. Trial was postponed to the next summer Assizes. At that time supporters of common right had published and circulated a pamphlet2 on their side of the case, and Lord Mansfield — on the grounds that this could influence the jurors — used this as an excuse to put off the trial to a subsequent Assizes.
A Tract on the National Interest. A copy of this, and also of German Cruelty: a Fair Warning to the People of Great-Britain (1756) is in PRO, TS 11.347.1083, together with the Crown’s brief against Joseph Shepheard, a Chancery Lane printer.
The trial finally came up at Surrey Lent Assizes, 1758, before Sir Michael Foster, then in his seventieth year. So many of the forty-eight special jurors who had been summoned to the panel were nervous about trying a cause against the Princess Amelia that it was necessary to put a talesman on the jury. Sir Michael promptly fined the absentees £20 a head. When the prosecution had got through some part of their evidence, the counsel for the Crown (Sir Richard Lloyd) said it was “needless for them to go on upon the right, as the Crown was not prepared to try that”, since the obstruction was charged in the parish of Wimbledon whereas it was in truth in Mortlake:
The judge turned to the jury, and said, he thought they were come there to try a right, which the subject claimed to a way through Richmond Park, and not to cavil about little low objections, which have no relation to that right. . . He thought it below the honour of the Crown, after this business had been depending three assizes, to send one of their select counsel, not to try the right, but to hinge upon so small a point as this.
The judge summed up in favour of the prosecution, and John Lewis won his case. Offered a gate or step-ladders, he chose the latter, as the freer mode of access. (With deer in the park, the gates would be kept closed, and might easily be locked.) When Lewis returned to the court with the complaint that the rungs on the ladders had been set too far apart for children and old men, Sir Michael Foster replied: “I have observed it myself, and I desire, Mr Lewis, that you would see it so constructed, that not only children and old men, but OLD WOMEN too, may get up.”1
Dodson, op. cit., pp. 86-7; Wakefield, op. cit., pp. 247-8; Rex v Benjamin Burgess (1760), 2 Burr. 908, ER 97, pp. 627-8.
The case was a small sensation. For a while it gave the keepers real trouble, since triumphant citizens were clambering the ladders and did not confine themselves to the paths but “ranged & went at their pleasure over the greensward”, declaring that “the park was a common & that they had a right to go anywhere. . . they liked”. This was to the prejudice of the deer and game and “will greatly interrupt the Royal Family in the use & enjoyment” of the park.2 Princess Amelia abandoned her Rangership in a paddy. These matters also became part of the discourse of London: the free-born old Englishwoman had triumphed over the royal lady. Such victories, of the humble citizen over the great or the royal, were decidedly infrequent. But even one or two went a long way to give popular legitimacy to the law and to endorse the rhetoric of constitutionalism upon which the security of landed property was founded.1 Even so, we should not forget that the Richmond victory was, in a sense, a victory of bourgeois commoners, who commanded money and resources which the rural commoners rarely did.
Various papers in PRO, TS 11.444.1415, especially “An Historical Account of the Inclosing Richmond New Park”, an MS drawn up to brief Crown counsel. Richmond citizens were uncommonly tenacious of their rights of way (or uncommonly obstructed by royalty and aristocracy). In 1806 the iron rails in front of the duke of Queensberry’s villa on the Thames were broken down in a “trespass committed by agreement in order to try the right”. The jury found a verdict in support of the right and against the duke: London Chronicle, 1-3 Apr. 1806.
See my comments on “The Rule of Law” in Whigs and Hunters, pp. 258-69.
II
This chapter is not about enclosure nor about the decline of the peasantry. A novice in agricultural history caught loitering in those areas with intent would quickly be despatched. This is a tangential study of common right usages, and also of law and notions of property-right. But one cannot altogether avoid brushing against the other problems. And one must note that we still have little firm evidence as to the number of landholders who held by copyhold or other forms of customary tenure (such as beneficial leases from the church or from colleges) in the eighteenth century. A scholar with much expertise allows that the question of the proportion of landholders by customary tenures in the late seventeenth century is “almost entirely obscure”, but it might have been “as many as one-third”.2 And it remained substantial at the end of the eighteenth — although falling away more rapidly in the last decades. The vigorous operation of the lord’s court in the eighteenth century (as many county record offices can testify) is often coincident with some survival of copyhold tenures. There was certainly a substantial peasantry in England in the eighteenth and early nineteenth centuries,3 and optimistic agricultural historians have sometimes told their story in such a way as to confuse two different totals: the acres and the people.1 As I remarked in an earlier study, “the economic historian may find that the clues to expanding agrarian process lie in the ‘free’ [i.e. freehold or rackrent] sector, while the social historian may find that the psychological horizons and expectations of the majority of the farming community lie still within the customary sector”.2
Christopher Clay, in Thirsk (ed.), Agrarian History, V, p. 199, and pp. 198-208, and the same author’s “Life-leasehold in the Western Counties of England 1650-1750”, Agric. Hist. Rev., xxix, 2 (1981).
I welcome Mick Reed’s “The Peasantry of Nineteenth-Century England: a Neglected Class”, History Workshop, 18 (1984), although I am rebuked as a culprit. But what I was arguing (“Land of Our Fathers”, TLS, 16 Feb. 1967) was that J. D. Chambers and G. E. Mingay were guilty of “statistical dilution”, by watering the totals of large employers with the peasantry, hence minimising capitalist agricultural process: “the assimilation of two extremes to provide an impressionistic average does not in fact illuminate either extremity”.
Christopher Clay, “‘The Greed of Whig Bishops’?: Church Landlords and their Lessees 1660-1760”, Past and Present, 87 (1980), exemplifies this kind of confusion: (a) it assumes that the claim that church beneficial leases had equal customary security with copyhold “had no legal validity”, although this was precisely the question which was at issue in the 1720s, and (b) by concentrating upon large lay tenants of church lands, the more numerous small customary tenants disappear from view, as they do so often in orthodox agricultural history.
“The Grid of Inheritance”, in J. Goody, J. Thirsk and E. P. Thompson (eds.), Family and Inheritance (Cambridge, 1976), pp. 328-9.
Secondly, it is now becoming clear that in the long historiographical reaction against those fine historians, Barbara and J. L. Hammond and their classic The Village Labourer, there has been a tendency (and in some minds an ideological determination) to seriously undercount the amount of popular protest attending upon loss of common rights or the enclosure of commons (which, as we have already seen, were not the same thing). It is heartening to see that a substantial challenge to the triumphal picture of the social consequences of agricultural improvement is now being made.3 Even so, we are not going to discover that the eighteenth century was vibrant with major episodes of enclosure protest which have been somehow overlooked. There were more episodes than have been noted, but few of them were major. Resistance was more often sullen than vibrant. For every commoner “Rioutously threatening to kill or be killed, that he wd raise 500 people who wd assist in the cutting down & destroying the Mounds and fences. . .”1 a dozen will be found throwing a gate off its hinges, uprooting some quicksets, or pulling down a notice of enclosure from the church porch.
In the area of common rights, especially J. M. Neeson, “Common Right and Enclosure in Eighteenth-Century Northamptonshire” (Univ. of Warwick Ph.D. thesis, 1978); C. E. Searle, “The Odd Corner of England: Cumbria, c. 1700-1914” (Univ. of Essex Ph.D. thesis, 1983). The cogent re-opening of arguments in K. D. M. Snell, Annals of the Labouring Poor (Cambridge, 1985), ch. 4, is also welcome. The most devastating critique of the assumptions and the methodology of the “optimists”, insofar as these bear upon the small landholder at enclosure, is in J. M. Neeson, “The Disappearance of the English Peasantry, Revisited”, in G. Grantham and Carol Leonard (eds.), Agrarian Organization in the century of Industrialization: Europe, Russia and North America in the Nineteenth Century (Research in Economic History, Supplement 5) (JAI Press, 1989).
Thomas Kemp of Leigh, labourer, charged with riot with twelve others unknown, in “obstructing hindring and preventing one John Andrews in marking out the Boundaries of certain. . . Inclosures”, Worcs. Lent Assize, 1777, PRO, Assi 4.21. Kemp was imprisoned for six months. The enclosures were of Malvern Link Common, where three years later (Lent Assize, 1780) 21 labourers and one labourer’s wife were charged with pulling down 1,100 yards of fence. See also Brian S. Smith, A History of Malvern (Leicester, 1964), p. 167.
Yet there was more opposition to enclosure than used to be supposed.2 The problem of estimating its extent is, in part, one of the appropriate research techniques and the nature of the sources. Enclosure protests were rarely reported in central administrative archives or in London newspapers; they did not take the form of regional “uprisings”, highly visible and tumultuous. They will be found (especially before 1760) more often in the exchanges of letters between estate stewards and their absent masters, treated as domestic concerns (like poaching) which could be dealt with by the magistrates’ summary powers. Larger affrays might necessitate the aid of neighbours, the levying of loyal tenants and servants, or even the posse comitatus. In 1710, when Robert Walpole was Secretary-at-War, he received (in his private capacity) a letter from his steward, John Wrott, describing a major confrontation over common rights on Bedingfield Common. The High Sheriff of Northamptonshire, Lord Cardigan, and other gentry were there with mounted patrols. “The mob began to gather from all corners, some in disguise with masks, and in women’s cloakes, and others with axes, spades, pickaxes etc.” Even the men whom the Sheriff had summoned to serve in his posse sympathised with the mob and helped any prisoners to escape. The crowd was dispersed for the time being, but “they still persist to say the Right of Common is theirs, & next year they hope to see the Hedges demolish’t”.3
For a recent record of known disturbances see Andrew Charlesworth (ed.), An Atlas of Rural Protest (1983).
Camb. Univ. Lib., C(H) MSS, correspondence, item 608, John Wrott to Walpole, dated Oundle, 31 May 1710; Sir J. H. Plumb, Sir Robert Walpole (1972), pp. 157-8. I am not clear why Wrott was at Bedingfield (now Benefield) Common, but the letter suggests (“I hope to receive your orders”) that Walpole was personally interested in the enclosure.
The estate correspondence of one of Walpole’s political allies, Lady Diana Fielding in North Wootton (Norfolk), in 1728-9 was much preoccupied with contests between labourers and tenants, on one side, and her steward and the parish constable, on the other, concerning the cutting of “whins and flags” on “the Priories”, where her ladyship had made new enclosures. Rival parties converged on the common with carts to carry away the whins, “the Mobb” rescued their whins from the steward’s carts, threw them about, locked the horses to the cart wheels, “barbrosly used” the steward “ & broke 3 of his Ribbs & allmost kill’d him”. The mob went on to “break & destroy all the Gates & fences” of the late enclosures. Labourers and tenants shared these actions, but it was easier to discipline the tenants with the threat of loss of their tenancies.1
One can turn up other affairs like this in collections of estate papers. Or they may turn up in the press. Three years before, at Stokesby (again in Norfolk), many poor people, men and women, “threw down a new Mill and divers Gates and Fences on the Marsh”. Eight or ten of them were carried to Norwich where they were examined: they said they were acting for the “Recovery of their Right”, since the Marsh was common until a certain gentleman had taken it away and fenced it in. “Such a beginning had Kett’s rebellion”, the reporter commented.2 These offenders were committed to Assizes. And not infrequently Assize records show proceedings against offenders who had thrown down fences or demolished enclosures. But such actions need never come to the notice of the law, since commoners claimed (and law cautiously acknowledged) a right to throw down encroachments3 and this “possessioning” was indeed one of the purposes of parish perambulations. There was a fine-drawn line between the assertion of “right” and “riot”,1 and the balance of evidence and also of power might be such as to settle the issue outside the courts. John Lewis, the Richmond brewer, whom we have already noted in his assertion of rights of access to Richmond Park, told a story about another pathway which he found blocked by a locked gate. He passed by with a friend and with some of his men from the brewery the day before “our annual parochial procession at Richmond” —
Norwich and Norfolk RO, HOW 725, 734 (a).
Mist’s Weekly Journal, 24 July 1725. See also R. W. Malcolmson, Life and Labour in England, 1700-1780 (1981), p. 127, and also pp. 23-35.
Since judges did not easily condone direct action, the law on this was cautious and mainly negative: the proper course for aggrieved commoners should be an action for novel disseisin: see Richard Burn, The Justice of the Peace and Parish Officer, 14th edn. (1780), ii, “Forcible Entry”. But the right of commoners to take direct action in support of right rested upon ancient law and precedents too strong to over-rule: see the full discussion in Arlett v Ellis (1827), 7 B & C 347, ER 108, pp. 752-64, when the Year Book of 15 Henry 7, Brooke’s Abridgement and Coke’s Institutes were among authorities cited: “If the Lord doth inclose any part, and leave not sufficient common. . . the commoners may break down the whole inclosure”. This was affirmed in several cases in the late seventeenth and eighteenth century (e.g. Mason v Caesar (Hilary 27/28 Car 2), 2 Mod 65, ER 86), although this did not prevent indictments for riot against commoners who pulled fences down. In the sixteenth and seventeenth centuries, enclosure riot could be treason, if more than forty were involved. In the eighteenth century the law supported (feebly) commoners’ right to remove nuisances, to pull up fences, and to distrain supernumerary cattle on a stinted common (on which point see Hall v Harding (1769), 4 Burr 2425, ER 98, pp. 271ff.). They might not, however, cut down trees nor kill rabbits and dig up coney burrows: this contentious issue much preoccupied the judges in several cases, and the decisive judgement was in Cooper v Marshall (1757), 1 Burr 259, ER 97, pp. 303-8, for which see Hay, op. cit., p. 234. Lord Mansfield pronounced that the real issue was not the legality or illegality of the coneys, but “whether the commoner can do himself justice”, and it was his decided view that the commoner might not. It was perhaps fortunate for commoners’ rights that Lord Mansfield never sat in judgement upon fences. See also Halsbury’s Laws of England, vi, pp. 250-4, esp. para. 655. Fences might also be removed in pursuance of an order from a manorial court. See Roger B. Manning, op. cit., pp. 40-2.
In 1698 there was an attempt to strengthen and enforce statutes of Edward I and Edward VI against the burning and destroying of enclosures, and a bill was read for the first time: but it met with fierce counter-petitions from Lincolnshire parishes adjoining Epworth Common, and it seems to have been dropped: Commons Journals, xii, pp. 38, 47, 96. The Black Act (1723) had ample provisions which might be used against rioters, irrespective of the justice of their cause: see my Whigs and Hunters, passim. Parliamentary enclosure was given a new set of teeth, under 9 Geo. III, c. 29, whereby pulling down fences of lands enclosed “in pursuance of any act of parliament” was made felony, with penalty of seven years transportation. I do not recall finding any offender so sentenced under this Act.
