The Origins of Common Land
The one and a half million acres
of common land in England and Wales are the most misunderstood, though not
unappreciated, part of our countryside.
This may in part be a matter of semantics, ask ten people in the street
"Who owns the commons?" and nine will probably reply, "The
Queen", "No-one" or "Everyone" and for the great
majority of commons they would be wrong.
All common land has an owner; the
ambiguous term ‘common’ refers to the rights held in common by certain people
to use the product of the soil of the common by grazing, cutting turf and so
on. Yet the commons may be considered to
belong to the people, for although the Commoners have an economic interest in
the land, the people have always used commons for their festivals, holiday
activities and for fresh air and recreation.
Pursue your enquiries with the ten people in the street and ask whether
they have a right in law to walk on commons.
Again virtual unanimity can be expected in the affirmative yet for some
four fifths of our commons this is not true.
The Law of Commons is very
complex and many well-intentioned folk, including politicians, have set off
with high hopes of rationalising the law only to discover that, on many
commons, that they are soon entangled in the legal thickets and beat a hasty
Lord of the Manor
Commons are the remnants of the
manorial system, which, from mediaeval times has been the basis of the country’s economy. The manor was the basic unit and was supposed
to be self-sufficient. Crops were grown
on the better soil and the poor land was the ‘waste’ used for grazing and for
gathering fuel. The lord of the manor owned the whole of the land but the
cottagers had rights recognised by the courts.
In turn this meant that the lord
of the manor could not enclose land without parliamentary authority, hence the
unfenced open spaces, which we still recognise as the hallmark of a
common. The obligation on the lord of
the manor to provide land for commoner’s rights derived from the Statute of
Merton, dated 1235 and reflected in the variety of courts leet which determined
the dates for grazing and rotation of crops.
Common land has been described as the lowest rung of the social ladder
leading to the occupation of the land.
Inevitably there were clashes of
interest and attempts at inclosure were not unknown. But the system persisted largely
unchangedPark Downs until the agricultural revolution in the latter part of the
By then the prospects of more
profitable agricultural methods had become too attractive to ignore. Inclosure Acts for individual commons were
quickly in vogue, usually promoted by the owners. Although the full parliamentary procedure was
involved, including the hearing of counter petitions, the system was loaded
heavily against the humble commoner.
In true English fashion however
the inclosure movement produced a number of articulate and vigorous middle
class champions of the poor. At first an
Inclosure Act might become law without the ordinary folk even knowing anything
about it, and it was only at the end of the 18th century that it became
obligatory to post notices of an intended Bill to Inclose on the church door.
There had been more than 4000
individual Inclosure Acts, and many riots, before a general Act was passed in
1845, providing that the lord of the manor and the former commoners would each
receive a freehold parcel of land in compensation for the loss of their
rights. A final residue was to be left
for communal use, including land for a poorhouse or field set-aside for fuel, a
gravel pit for road making and an area for the ‘exercise and recreation of the
inhabitants’. However, in the next 20
years which followed, over 615,000 acres were inclosed and only 4,000 acres
allotted for recreation or the benefit of the poor.
It is no wonder that the power of
the lords of the manor caused unrest amongst the people, a verse that sums it
up goes; -
They hang the man and flog the
Who steals the goose from off the
But let the greater criminal go
Who steals the common from the
It goes without saying that the
poet remained anonymous!
Social and economic changes were
to cool the ardour for increased inclosure during the Victorian era, the
attraction to turn over commons to arable land was lessened by the development
of corn growing in America’s mid-west which led to cheap imports. As technological advances moved to the
industrial scene the towns grew rapidly and there was a demand for open spaces
to which people could go for leisure.
It was at this time, 1865, that
the Commons Preservation Society was established attracting the interest of
many progressive public figures. The
Society, which is today called the Open Spaces Society, campaigned to rescue
commons from inclosure and speculators, especially in the south-east. The sagas of Berkhamstead, Wimbledon and
Banstead were some of those enacted in the courts and in direct action on the
A more positive approach to the
retention of commons was seen in the Metropolitan Commons Act of 1866 and the
Commons Act of 1876, both of which provided important frameworks for managing
In the 20th century there has
been a surge of public interest in preserving commons, with the emergence of
the National Trust as a major landowner (it owns more than 200 commons
including some of the most important open spaces in the country). The National Trust and local authorities own
and manage many of the most scenic commons.
In 1958 a Royal Commission
published its erudite and widely praised report on the state of common land and
its recommendations for sustaining what it called ‘this last reserve of
uncommitted land in England and Wales’.
There were three principal
A register of common land.
This objective was achieved in the Commons Registration Act, 1965.
A general right of public access to common land. The Countryside and Rights of Way Act,
2000 (CROW) achieved this
objective by permitting access to all areas of common land, where it had
previously been denied.
Effective schemes for the management of commons. The Commons Act 2006, once fully enacted,
will provide the
Secretary of State with the power to establish Commons Councils to manage
areas of common where he deems it to be
appropriate. In addition this Act will supersede the
Commons Registration Act, 1965 and provide for correction of
registration that arose under that Act.