Common land

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Modern-day pannage, or common of mast, in the New Forest.

Common land (a common) is land owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel.[1] Originally in medieval England the common was an integral part of the manor, and was thus legally part of the estate in land owned by the lord of the manor, but over which certain classes of manorial tenants and others held certain rights. By extension, the term "commons" has come to be applied to other resources which a community has rights or access to. The older texts use the word "common" to denote any such right, but more modern usage is to refer to particular rights of common, and to reserve the name "common" for the land over which the rights are exercised. "Common land" does not mean state-owned or public land, but is owned by private individuals or corporations called partition units. A person who has a right in, or over, common land jointly with another or others is called a commoner.[2]

Today commons still exist in England, Wales, Scotland, and the USA, although their extent is much reduced from the millions of acres that existed until the 17th century.[3]

Contents

Historical origins

Conjectural map of a mediaeval English manor. The part allocated to "common pasture" is shown in the north-east section, shaded green.

Historically most rights of common were appurtenant[4] to tenancies of particular plots of land held within a manor, and the commoner would be the person who, for the time being, was the occupier of a particular plot of land (or in the case of turbary, even a particular heath). Some rights of common were said to be in gross, that is, they were unconnected with tenure of land. This was more usual in regions where commons are more extensive, such as in Northern England or the Fens, but also included many village greens across England and Wales. Most land with appurtenant commons rights is adjacent to the common or even surrounded by it, but in a few cases it may be some considerable distance away. Manorial courts defined the details of many of the rights of common allowed to manorial tenants, and such rights formed part of the copyhold tenancy whose terms were defined in the manorial court roll.

Example rights of common are:

On most commons, rights of pasture and pannage for each commoner are tightly defined by number and type of animal. For example the occupier of a particular cottage might be allowed to graze fifteen cattle, four horses, ponies or donkeys, and fifty geese, whilst the numbers allowed for their neighbours would probably be different. On some commons (such as the New Forest and adjoining commons), the rights are not limited by numbers, and instead a marking fee is paid each year for each animal turned out.[7]

Partition unit

Wakefield, MA, town common showing bandstand/gazebo at right and lake at left.

A partition unit is a corporation that owns common land. In this case, the land is not state-owned or in joint-ownership under a trust, but is owned by a definite partition unit, a legal partnership whose partners are the participating individual landowners. Common lands and waterways owned by a partition unit were created by an agreement where certain land was reserved for the common use of all adjacent landowners.

Varieties

Pasture commons

Pasture commons are those where the primary right is to pasture livestock. In the uplands, they are largely moorland, on the coast they may be salt marsh, sand dunes or cliffs, and on inland lowlands they may be downland, grassland, heathland or wood pasture, depending on the soil and history. These habitats are often of very high nature conservation value, because of their very long continuity of management extending in some cases over many hundreds of years. In the past, most pasture commons would have been grazed by mixtures of cattle, sheep and ponies (often also geese). The modern survival of grazing on pasture commons over the past century is uneven.[8]

Arable and haymeadow commons

Surviving commons are almost all pasture. In earlier times, arable farming and haymaking were also included in the commons system, with strips of land in the common arable fields and common haymeadows assigned annually by lot. When not in use for these purposes, such commons were also grazed. Examples include the common arable fields around the village of Laxton in Nottinghamshire, and a common meadow at North Meadow, Cricklade.

Law of the Commons

View of the Cambridge Common, ca. 1808-9, with Harvard College on the left and Christ Church on the right.

The legal position concerning common land is confused. Most commons are based on ancient rights, that is to say common law (coincidence of term only), which pre-date statute law laid down by parliament. The exact rights which apply to individual commons were in some cases documented but more often were based on long-held traditions. The UK government tried to regularise the definitions of common land with the Commons Registration Act 1965,[9] which established a register of common land. However numerous inconsistencies and irregularities remain.[10]

Prior to the Erection of Cottages Act 1588, an Englishman could build his house on common land, if he could raise the roof over his head and have a fire in the hearth between sunrise and sunset, and claim the dwelling as his home.

Registered commons often abut each other, so what may appear to be a single large common may in fact consist of several commons with no visible boundary between them — these may for example be in different parishes. The commoners will have reciprocal rights over each other's commons.

Law of fencing

The maintenance of fences around a common is the responsibility of the occupiers of the adjacent enclosed land, not (as it would be with enclosed land) the responsibility of the owners of the grazed livestock. This can lead to difficulties where not all adjacent occupiers maintain their fences properly.

Enclosures

The act of transferring resources from the commons to purely private ownership is known as enclosure, or (especially in formal use, and in place names) Inclosure. The Inclosure Acts were a series of private Acts of Parliament, mainly from about 1750 to 1850, which enclosed large areas of common, especially the arable and haymeadow land and the better pasture land.

Contrast with "Waste"

It is often thought that a common is somehow owned by everyone, or at least by the community in some sense.[citation needed] While that may have been true more than a thousand years ago, when waste [disambiguation needed] would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage; since at least late Anglo-Saxon times, the right to exercise a right of common has been restricted to a commoner.

Contrasted with "Forest"

Royal Forests are legally separate from ordinary commons, but most have a similar commoning system.

Boards of Conservators

Some commons are managed by Boards of Conservators for the wider public benefit. The Commons Act 2006[11] provides for the establishment of Commons Councils to manage common land. Those provisions of the Act are not yet in force, but the Department of the Environment, Food and Rural Affairs (DEFRA) plans to bring them into force in the spring of 2009. The Commons Councils established under the Act will have a similar role to that of existing Conservators.[12]

Practical problems

Overgrazing

The use of commons rights were (and are, where they still exist) carefully controlled, and so in practice commons do not usually suffer from uncontrolled exploration (known as the tragedy of the commons). For example, in response to overgrazing a common would be stinted,[13] that is, a limit would be put on the number of animals each commoner was allowed to graze. These regulations were responsive to demographic and economic pressure; thus, rather than let a common become degraded, access was restricted even further.

Neglect

Poohsticks Bridge in Ashdown Forest, an area of common land.

After the Second World War, most lowland commons became neglected because commoners, who could find better-paid work in other sectors of the economy, largely stopped exercising their rights. When open habitats are no longer grazed they start to develop scrub and then dense woodland, losing the grassy or heathland vegetation which may have occupied the land continuously for many centuries. In 2007 Ashdown Forest, the beautiful Sussex heathland recognised worldwide as the setting for the Winnie-the-Pooh stories, became the centre of a dispute between some local residents and the Forest's governing body, the Board of Conservators, which is responsible for administering the Forest's 2,400 hectares (5,900 acres) of common land. The Conservators wished to restore the Forest's landscape to one that predominantly consisted of heathland—its defining characteristic until the mid-twentieth century, but something that was in danger of being lost after the Second World War as a result of the advance of woodland into traditional heathland areas when

...returning soldiers gave up trying to scratch a living out of the forest. Whereas once hundreds of commoners used the wood and heath—their livestock obliging by chewing down young tree shoots—today there is only one commercial grazer.[14]

The Conservators were forced to intervene to stem the invasion of trees, scrub and bracken that threatened the ecologicially precious heathlands, cutting down saplings, removing scrub and mowing the bracken. Some residents complained that the results looked like a First World War battle field. This is not a problem restricted to this common, but according to Jonathan Brown writing in the Independent on 21 April 2007 "similar debates are raging between locals and the authorities at other heathland areas in the New Forest and Surrey".[14]

Roadways

Commons are often crossed by public roads, and this leads to another problem on modern pasture commons where grazing survives (or is to be reintroduced). Historically, the roads would have been cart-tracks, and there would have been no conflict between their horse-drawn (or ox-drawn) traffic and the pastured animals, and no great difficulty if pastured animals wandered off the common along the roads. However, these roads now have fast motorised traffic which does not mix safely with animals. To continue (or restore) grazing, such roads may need fencing or at least blocking at the edge of the common with cattle grids — however fencing a common is reminiscent of the process of enclosure, historically fatal to its survival, and permission for fencing on a common is a bureaucratic process which can be interrupted or prevented by objectors (see neglect of commons below).

Global development

Joachim Radkau[15] assumes the treatment of the commons in the scientific literature of the 18th and later centuries as politically motivated to hasten the Enclosure Movement. The omnipresent examples of "Klapprige Allmendekühe" (thin cows of the Commons) in the writings of early agricultural scientists were used[16] to modernize existing common land rule towards a more capitalized and ownership based agriculture.[15] In Germany, based on the English experience, Albrecht Thaer suggested a similar approach. The Allmende or Commons were used to establish experts rule in agriculture, which had before been based on an empiric and practical approach without much interference of trained staff.[17] Radkau assumes that the real Commons estate - meadows and grassland are not at all exhausted but very rich from an ecological standpoint.[15] Neither the old or new use of the Tragedy of the Commons, e.g. of Garrett Hardin who used the example to ask for management of global common goods (asking for an 'Ökodiktatur', ecodictatorship[15]) were in line with the state of real "Commons". The latter are useful examples of sustainable agriculture and not a failure at all.[15][18]

England and Wales

Central Burying Ground on the Boston Common.

Common land, an English development, was used extensively under the law of England and Wales and in many former British colonies, for example in Ireland and the USA. All land in England and Wales is owned by someone, and in most cases that person has all the rights of exclusive ownership, to use the land as they wish. However, for common land the owner's rights are restricted, and other people (usually local residents) have some rights over the land. These people are known as commoners—the landowner retains other rights to the land, such as rights to minerals and large timber, and to any common rights left unexercised by the commoners. For example, there are 500 practising commoners in the New Forest, England.[19] A famous example is the New Haven Green in New Haven, Connecticut. The North American colonies adopted the English laws in establishing their own commons.

Scotland

There are seven main types of common land in Scotland,[3] some of which have similarities to common land in England and Wales.

Commonties

The overwhelming majority of areas of common land in lowland Scotland and the Highland fringes were commonties. A commonty is an area of land where the rights of property or use are shared by two or more neighbouring (though not necessarily adjacent) landowners. They are not therefore truly 'common' land in the sense that anyone can use them, and this distinction meant that it was often very easy for commonties to be divided between landowners after a series of Acts permitting this were passed by the Parliament of Scotland in the 17th century, most notably the 1695 Act for the Division of Commonties. As a result the number of commonties declined very rapidly in the 18th and 19th centuries.

Common mosses

Common mosses were areas of bog where the right to dig peat for fuel were shared by neighbouring landowners. They are therefore similar to commonties and most commonties included a common moss. However the difficulties of dividing such wet areas meant that they were left out of many commonty divisions and many common mosses may still survive, un-noticed because of the decline of peat-cutting.

Run rig

Rig and furrow marks at Buchans Field, Wester Kittochside, an area of Scottish common land

Run rig is a system of agriculture involving the cultivation of adjacent, narrow strips of raised land (rigs). Traditionally adjacent rigs would be used by different farmers and the rigs were periodically re-allocated between them. The system was common throughout Scotland until the 18th century, but survived longer in the Western Highlands, where runrig was often associated with an adjacent area of common hill grazing which was also shared by the same farmers as the runrig.

Scattalds

Scattalds are unique to Shetland and are based on udal law, rather than the feudal law that predominated in the rest of Scotland. However, Scattalds are very similar to commonties and many were divided under the same 1695 Act that allowed for the division of commonties.

Crown Commons

Crown Commons were areas of land held directly by the crown and therefore the common rights that could be used were rights of use rather than rights of property. Unlike commonties, the rights to use crown commons (for example for grazing livestock) were available to anyone, not just the neighbouring landowners. There are no crown commons left in Scotland; those that survived into the 20th century were taken over by the Crown Estate.

Ground cover purple coloured plants, with hills in the background on Exmoor which is common land.
Dunkery Beacon, Exmoor with heather in bloom. Historically was part of the Holnicote Estate owned by the Acland family, now owned by the National Trust.

Greens and loans

Greens were small areas of common land near a settlement where livestock could be kept overnight, markets held and other communal activities carried out. Sometimes they were adjacent to drovers' roads near river crossing points or overnight accommodation. Most were genuinely common land with only the Crown holding any title to them. A loan was a common route through private property allowing access to an area of common land or other public place. As the traditional uses of greens and loans declined, they were often absorbed by the neighbouring landowners.

Burgh commons

Burgh commons were areas of common land where property rights or privileges of use were held by the burgh for their inhabitants. They could include any of the other six types of common land and were sometimes shared with landowners outside the burgh. By the early 19th century, most burgh commons had been appropriated by the wealthy landowners who dominated burgh councils, and very few have survived.

Foreign equivalents

Similar common property regimes are also to be found in southern Asia (e.g., India and Nepal) and Latin America (e.g., Mexico, see ejido), and a concept similar to the Commons is still in use in the alpine countries, especially in Switzerland, known by the German word Allmende. In Finland, water areas are usually commons, owned collectively by the landowners of the shores.

Freedom to roam

The freedom to roam in Scandinavia and elsewhere is a distinct concept of common land, since it grants rights which are not exploitable for profit, but purely for personal enjoyment. In Scandinavia this is termed Allemansrätten[20]

See also

Historical movements in defence of English commons

Key theorists of the commons

Notes

  1. ^ Natural England.
  2. ^ Anon. "Commoner". Farlex Inc. http://www.thefreedictionary.com/commoner. Retrieved 20 April 2012.
  3. ^ a b Callander 1987, p. ???
  4. ^ Legal dictionary
  5. ^ New Forest explorers guide.
  6. ^ UK government.
  7. ^ Forest rights.
  8. ^ The impacts of environmental change due to grazing
  9. ^ Commons Registration Act 1965, UK.
  10. ^ Defra, UK.
  11. ^ Commons Act 2006, UK.
  12. ^ How is Common Land managed?, Department for the Environment, Food and Rural Affairs, UK.
  13. ^ Alnmouth, UK.
  14. ^ a b Brown 2007.
  15. ^ a b c d e Radkau 2008, p. 90, ff in the German text
  16. ^ together with quotations of Aristotle and other DWEM against common goods of Athens Polis
  17. ^ Brakensiek 2005, p. 101-122.
  18. ^ Lenhard & Rodewald 2000, p. 50-57(8).
  19. ^ New Forest commoners
  20. ^ Allemansrätten, Sweden.

References

Further reading

External links