The Customs of Old England Part 15

The state of things exhibited in the previous chapter is essentially transitional. What we have there seen is the town emerging out of the country, or, to put it another way, the country merging, through the principle of attraction, into the focus of the town. This method of viewing the subject is necessarily partial and incomplete. The existence of a common in a.s.sociation with a town or village or group of villages is not a self-evident proposition, to be taken for granted. It is clearly part of a system which it now becomes our business to investigate.

To all appearances many of the arrangements found in the course of, and to the close of, the Middle Ages, and even (in a decaying and disappearing form) almost to our own generation, were descended from that well-nigh immemorial antiquity, in which our forefathers were colonists in what was to them a new world--a world of forest and of fen, of man-eating beasts, and alien foemen as fierce or fiercer than they.

These conditions determined the course of action of the men who lived under them. For safety, men of one blood dwelt together in a stockaded village or tun. They and their stock, however, had to subsist on their labour and the bounty of the earth; and therefore around the village a tract of cultivable land was appropriated to the use of the community.

Until some degree of security was attained it was futile to dream too much of individual rights; the inhabitants would have been only too glad of the co-operation of their neighbours, and whilst some worked others no doubt stood to arms. Within this area seem to have lain fenced fields for the shelter of calves and other young animals, but this was probably the only exception. Beyond the arable land lay a ring of meadow land; beyond that the stinted pasture; and beyond that again the forest or waste.

By the term "common" is generally understood common of pasture; it is not unusual to meet with the phrase "cow commons," as though cows were the princ.i.p.al, if not the sole, objects which rendered commons of service. This may well have been the case in later times. In early days however, there went along with it common tillage, examples of which are still to be found on the Continent. Traces of the open-field system exist also in various parts of England, notably between Hitchin and Cambridge, where there are huge turf balks dividing the fields. It is said that within the last century the country lying between Royston and Newmarket was entirely unenclosed, and till quite late in the century parishes like Lexton, in Northamptonshire, retained this characteristic.

Other examples occur at Swanage in Dorset and Stogursey in West Somerset.

BOROUGH ENGLISH

Before proceeding to describe the methods of cultivation employed, it is desirable to glance at a custom which, there is reason to suppose, is connected with that remote period when the English were not _de jure_ masters of the soil, but occupied the position of colonists, who either expropriated the original inhabitants or entered upon possession of land as _res nullius_, to which they had established no solid claim by prescription. We have already referred to that valuable repertoire of national customs, so judiciously edited as to merit the higher praise _in_valuable--the Year-Books. The reports of the pleas in the Common Bench for 1293 include the following:

"One A. brought a writ of entry against B., saying, 'Into which he had not entry except by such an one who had tortiously, &c, disseised his father Robert.' And he laid the descent thus: 'From Robert descended the right, &c, to Adam the present demandant, as his youngest son and heir, according to the custom of such a place, &c.'

"_a.s.seby_: 'Sir, we tell you that Adam has an elder brother named N., who is legitimate and is alive, and whom they have omitted. Judgment of the omission.'

"_Sutton_: 'Sir, even if he had made a quit-claim to him, yet that could not be a bar to us, because by the custom of the country the youngest shall have his inheritance, wherefore there is no need to make mention of him.'

"_a.s.seby_: 'Sir, he has brought a writ at common law; judgment if he ought not to be answered at common law, and if he (the demandant) can allege the custom.'

"_Sutton_: 'In many places in England a woman demands her dower by the writ "Unde nihil habet," which is a writ at common law, and yet, according to the custom of the country, she will recover for her dower a moiety of the tenements which belonged to her husband, where by common law she would have only the third part, and also in the case of tenements in some countries which are holden by knight-service the lord can avow the taking as good for cornage according to the law of the country; and yet the writ is at common law. And also in Gavelkind according to the custom [of Kent] the younger brother shall have as much as the elder; and yet one brother shall recover against the other brother by right "De rationabile parte," and by the "Nuper obiit," which are writs at common law. So in the present case.'

"_Metingham_ [the judge]: 'a.s.seby, answer.'"

Now what was this custom? It is that known as "Borough English," and the reader will have already inferred from the report of the action that, wherever it prevailed, the youngest son claimed to succeed to his father's estate. It is therefore the ant.i.thesis of the right of primogeniture, whereby real estate falls to the eldest son. An old record given to print by the late Mr. Robert Dymond, F.S.A., exhibits in great detail the customs of the Manor of Braunton, in Devonshire, and among them is that of Borough English, or, as it is termed in local parlance, "cradle-land." This testimony is of peculiar interest, since the doc.u.ment comprises a provision for the a.s.signment of the property in the not wholly improbable event of the family consisting entirely of daughters. The section touching upon Borough English is thus formulated:

"HEIRS OF THE YOUNGEST HOLDING

"_Item_, the Custome ys in every of the sayd manors that if eny manner of person or persons be seased of eny manner of land or tenements, rents or premises of the yonger holdyng liying withyn eny of the seid manors or liberties in fee symple or in fe tayle, in demeane or in usu, and have divers sonnys by dyvers venters, viz. by dyvers wyvys, or women by divers men, and dye, that then the yonger son of them shall inherite the seid lands and tenements with other the premyses in fe symple as in fe tayle that so descendith in the seid yonger holdyng in demeane or in use, except ther be any other estate made & proved to the contrary by wryting & if the[y] have no yssue b.u.t.t all doughters that then the seid inheritance [is] to be parted betwene theym except any lawful wryting or state made to the contrary after the custom."

Neither of these rules of succession was in any way confined to the West of England. Indeed, the late Mr. T. W. Sh.o.r.e, who appears to have been quite an authority on the subject, affirms that "in a general way it may be said that the further we go from Kent the less numerous become the instances in any county of England." This statement is confirmed by a yet greater authority. "Borough English," says Elton, "was most prevalent in the S.E. districts, in Kent, Suss.e.x, and Surrey, in a ring of manors encircling ancient London, and, to a less extent, in Ess.e.x and the East Anglian kingdom." Mr. E. A. Peac.o.c.k, however, points out that there are in Lincolnshire seven places where the custom is still abiding--viz., Hibaldstow, Keadby, Kirton-in-Lindsey, Long Bennington, Norton (Bishops), Th.o.r.esby and Wathall; and he further calls attention to the fact, which is certainly most important, that the custom may be traced over nearly all Europe with the exception of Spain and Italy, and up to the boundaries of China and Arracan. The German name is _jungsten-recht_; and the practice for which it stands existed, amongst other places, at Rettenburg in Westphalia. How then did it become known as Borough _English_? The reason is suggested by the two sorts of tenure--Burgh Engloyes and Burgh Francoyes--which are found in different parts of the town of Nottingham in the reign of Edward III. Borough English was the native custom which had succeeded in holding its ground against the effects of the Norman Conquest.

As has been said, Borough English was in vogue all around London--at Lambeth, Vauxhall, Croydon, Streatham, Leigham Court, Shene or Richmond, Isleworth, Sion, Ealing, Acton, and Earl's Court. In some of these places--Fulham, Wimbledon, Battersea, Wandsworth, Barnes and Richmond--the "yonger holding" descended not only to males but to females; and at Lambeth (and at Kirton-in-Lindsey, in Lincolnshire) there existed the identical arrangement which has been found at Braunton, in Devon. This equal division between daughters Mr. Sh.o.r.e regards as an "intermediate stage between Borough English and Gavelkind." The latter is distinctively the "custom of Kent," and signifies that the land was "partible," and inherited by the sons in equal shares, the youngest son retaining the homestead, and making compensation to his brethren for this addition to his share. Borough English and gavelkind, therefore, though not the same, are near akin; and it is an interesting question which of the two was prior to the other. It may be that gavelkind is the older, and that Borough English is a remnant or distortion of what appears, on the face of it, a more equitable condition of things. On the other hand, gavelkind may have been, so to speak, grafted on a more simple usage which the community, through change of circ.u.mstances, had outgrown, and had ceased to possess the same justification as at first.

Why should the youngest son take the inheritance? One explanation is that he was presumed to be least able to provide for himself. This, however, expresses only half the truth. The other half has, we think, been furnished by Mr. Peac.o.c.k:

"The most popular explanation in the last [eighteenth] century was the calumny known as _mercheta mulierum_, now known as a malignant fable popularized by novelists and playwrights. Another suggestion is that it is a custom that has survived from some prehistoric race; a third that it has grown up at different points...." Mr. Peac.o.c.k regards the last as the most likely. "It is only when the population becomes relatively dense that land, apart from what it produces, is of any value. A time, however, would soon be reached when land would have a value of its own.

The good soil would soon be taken up, and in the days of a primitive mode of culture third-rate land would be valueless. Then the house-father would be forced by circ.u.mstances to make provision, ere his death, for the sons sharing the ancestral domain between them.

"Here we have the origin of gavelkind--a form of devolution more widely spread than even ultimo-geniture or Borough English. Gavelkind, however, could be but a temporary provision. As the population grew, so it would be absolutely necessary that the young men of the household should make new settlements for themselves. This fact accounts in its measure for the vast shifting of the population that took place when the Roman Empire was in its protracted death-agony. The torrents of human beings which poured in on the decaying Empire were considered by the older historians as evidence of nomadic barbarism. We, with our present lights, say rather that they indicate a population too dense for their own homes to support.

"It would be a matter of course that the elder sons should go forth and carve out for themselves new homes in the West; but when the swarm departed, all the sons would not go forth from the shelter of the native roof-tree. One at least, commonly the youngest, would stay behind. On him would devolve the duty of looking after the old folk and his unmarried sisters. On him would devolve in due time the duties of the sacrifices connected with the sacred hearth; and when the father died to him would devolve the paternal dwelling, with its ploughland, its meadow, and its rights of wood and water. Here is, we believe, the key to the origin of Borough English."

THE OPEN FIELD

We now pa.s.s to the methods of cultivation observed in the open field--the conditions of early agriculture. There is reason to believe that at the time of the English settlement extensive tillage must have existed, at any rate to some degree; but this was soon superseded by intensive culture. Certain fields, that is to say, were allocated for the raising of particular crops, the limits being marked by large balks or banks. Beside these arable fields there was a tract of meadow land, from which the cattle would have been excluded during the time necessary for the growth and carrying of hay. After harvesting operations had been completed, and all through the winter, the cattle were allowed to range at will among the stubble of the arable fields, and over the meadow land, as also over the waste, which was more properly their domain.

As it was impossible to raise crops year after year from the same fields without gravely impoverishing the soil, this system was exchanged in some places for another--that of cropping one or two fields and allowing the other to lie fallow. This modification was not always judged requisite to prevent the exhaustion or deterioration of the land; and thus there arose a third--what is termed the "three-field" system, by which out of three arable fields two were under cultivation at the same time, one lying fallow. The third plan was that which ultimately met with most favour. In the early autumn the field that had lain fallow through the summer was ploughed and sown with wheat, rye, or other corn; and in the spring the stubble of the field that had yielded the last crop of wheat was ploughed up, and barley or oats sown in it. The third field, in which the previous crop had been barley, retained the stubble till the early days of June. It was then ploughed up and left in that condition until a fresh crop was sown in the autumn. Professor Cunningham, whose account we here follow, has furnished a convenient chart or diagram which we venture to reproduce as an aid to the comprehension of the subject:

I. II. III.

Wheat (or rye) Stubble of Stubble of +------------------+--------------+--------------+ _Jan_ sown wheat barley (or oats) Sow ------------------+-------------- _March_ barley Plough and --------------+ _June_ leave fallow ------------------+-------------- Reap _August_ Plough and --------------+ _October_ sow wheat Wheat Barley +------------------+--------------+--------------+ stubble stubble

This chart represents one year's labours. In the following year the first field would take the place of the second, the second that of the third, and the third that of the first. The process would be repeated in the third year, and in this way the rotation would continue to be maintained. There were districts in which the three-field ousted the two-field system; and others in which neither entirely displaced the other. Both eventually gave way to the more modern method of four-course husbandry. The three-field style of agriculture may date back to the remote reign of King Ine, when, it seems certain, open-field cultivation in some form was the rule. This being the case, it was necessary that the fields in which corn and gra.s.s were growing should be fenced off for the time being; and one of King Ine's laws has reference to the recognition or neglect of this neighbourly duty:

"If churls have a common meadow or other partible land[15] to fence, and some have fenced their part, and some have not, and (cattle stray in and) eat up their common corn or gra.s.s; let those go who own the gap and compensate to the others who have fenced their part the damage which there may be done, and let them demand such justice on the cattle, as it may be right. But if there be a beast which breaks hedges, and goes in everywhere, and he who owns it cannot restrain it, let him who finds it in his field take it and slay it, and let the owner take its skin and flesh, and forfeit the rest."

The picture this law presents is that of fields divided by temporary fences, in which, if the three-field system were in use, two would be under cultivation and the third fallow. One great field of thirty acres would have sixty distinct strips, with a narrow margin of turf serving in each case as the line of demarcation. To each servile holding in the Confessor's time the landlord a.s.signed a pair of oxen with which to work it; and these may have been combined into a powerful team of eight or twelve, similar to manorial teams, though plough-teams varying in numerical strength are recorded, and the efficiency of some of them may well be doubted.

If there were oxen, it is clear that provision must have been made for their support; and this consisted in the hay from the meadow, in the pasture of the common waste, and that of the fallow field and the other fields in the interval between harvest and seed-time. The question whether the tillers were bond or free probably made no difference to the way in which agricultural operations were conducted.

The collapse of this system may be attributed to the scarcity of labour brought about especially by the Black Death. When men could not be had in sufficient number, the necessary consequences was the expansion of pasture and the contraction of tillage; and this dual process was a.s.sisted by the stampede of labourers to the towns and the policy of enclosure to which landowners resorted as a remedy. Deprived of their quit-rents, and not having resources for the payment of wages on an adequate scale, supposing that labour was obtainable on reasonable terms, the landholders fell back upon the only expedients that remained to them. They had land, and they had stock; and, as an escape from absolute ruin, they let the land to tenants who took over the stock and, probably, as the need arose, replaced it with their own beasts. This revolution, already in full swing in the fourteenth century, paved the way for the present order of things, under which the tenant pays a fixed rent for the use of land and buildings, and finds the capital for farming.

THE WASTE

We have next to deal with the waste. The meaning of the term is clear--it signifies land which, from the poverty of the soil or other reasons, had never been brought under cultivation. The commons that still survive are mostly of that description, the more valuable land having been resumed during one of the successive periods of enclosure, or--piecemeal.

Originally, there is little doubt, such land belonged to the family or sept, by whom it was used as forest for game or as pasturage for cattle.

Unlike the arable field or the common meadow, it was not distributed into sets, but enjoyed in common by all who possessed the right of stocking it. In a genial article in the "Antiquary" describing how the world wagged in his parish of Blewbury, Berks, in the eighteenth century, the Rev. N. L. Whitchurch observes: "There were 'cow commons'

on the downs in those days, and a road from the village is still called the 'cow way.' In the early morning a man would collect the various cows of the village, which he drove to pasture for the day. The ancient bell which he rang at the foot of the 'cow road' is still preserved in the village."

In Saxon times the purchase of stock by an individual was a matter of general concern to the community in which he lived. By a law of King Edgar, if a man in the course of a journey bought cattle, he was required on his return to turn them out into the common pasture, "with the witness of the township." If he omitted to do so within five nights, the townsmen were to acquaint the hundred elder, and the cattle were forfeited, the lord receiving one-half and the hundred the other. If the townsmen failed in their duty, their herdsman was subjected to a flogging. For the purchase of cattle the witness of the township was not enough. Twelve standing witnesses were appointed for every hundred, and the buyer had to make it his business to seek out two or three of them so as to secure their presence at the transaction.

Whatever the primitive const.i.tution of society may have been, in historical times three parties possessed an interest in the waste.

Blackstone defines common as "a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood, and the like." In theory, the waste belonged to the King, who vested portions of it in individual lords or religious houses, and they thus became recognized owners of the soil. In case of outlawry or attainder, the waste reverted to the Crown, which, according to custom, held possession of it for a year and a day. Thirdly, the _use_ of the soil, for various specified purposes, resided in the inhabitants of certain townships or hundreds, was appendant to certain tenements, or was reserved as eas.e.m.e.nt on the sale of the land.

Some very interesting questions, arising out of this joint occupancy, were raised in the courts at the close of the thirteenth century--notably the right of search for the object of ascertaining whether there were on the common more animals than any of the parties was ent.i.tled to place there, and, if so, of impounding them. Was this right appurtenant to the manor, or was it also appendant to a frank tenement in a particular vill? In one case where the lord had depastured an excess of beasts, the court decided against him, and in favour of a commoner whom he accused of "tortiously" taking his cattle. But, notwithstanding this judgment, there is some uncertainty on the point, as appears from the report of an action tried in the Middles.e.x Iter of 1294.

"Robert Fitznel brought the Replegiare against Richard, the son of John, saying that he had tortiously taken his beasts in the wood of the Abbat of Horwede, formerly the forest of King Henry, by whom it was given as a chace to N., ancestor of Richard."

"_Warwick_: 'Sir, we offer to aver that Robert and all those who have held the land in N., which he holds have been seised for all time, &c, of the common in the wood where his taking was made as appurtenant to their frank tenement....'

"_Gosefield_ imparted, and returned and said: 'Sir, we will tell you the truth of this matter; and we tell you that the place where the taking was made was King Henry's forest; and Henry granted what was the forest to our ancestor by way of chace; and that in that chace, according to the custom of the chace, no person could put to common more beasts than could be fed or wintered on the produce of the land which he held in the same chace; and because Robert brought his beasts from his lands which he held elsewhere, which beasts could not be fed or wintered on the land which he held within the chace, contrary to the usage and custom of the said chace, he (Richard) took them, &c....'

"_Warwick_: 'Sir, first of all they avowed the taking, and said that we ought not to have any kind of common; and now they have admitted our right of common partially, viz. as to beasts which can be wintered ...'

"_Gosefield_: 'The a.s.sise of forest is notorious and well-known to all, viz., that no man can have therein more beasts to common than can be fed off the said land.'

"_Warwick_ (he spoke then for the King): 'Richard, do you claim to have a.s.sise of forest?'

"_Gosefield_: 'Nay, sir. But King Henry granted and gave it to us to hold as a chace in the same manner as he held it while it was a royal forest; and we have three swain-motes yearly for searching and inquiring whether anyone puts more beasts therein than he ought to put; and, inasmuch as King Henry granted it to us to hold like as he held it, it seems to us that there is no need to take the Inquest.'

"_Hertford_ [the judge]: 'Do you accept the averment or not?'