Today in legal history: Statute of Merton passed, 1235, giving landowners power to enclose common land

“IT was provided in the Court of our Lord the King, holden at Merton on Wednesday the morrow after the Feast of St. Vincent, the 20th Year of the Reign of King HENRY… because many great men of England (which have infeoffed Knights and their Freeholders of small Tenements in their great Manors) have complained that they cannot make their Profit of the residue of their Manors, as of Wastes, Woods, and Pastures, whereas the same Feoffees have sufficient Pasture, as much as belongeth to their Tenements… it is provided and granted, That whenever such Feoffees do bring an Assise of Novel disseisin for their Common of Pasture, and it is knowledged before the Justicers that they have as much Pasture as sufficeth to their Tenements, and that they have free Egress and Regress from their Tenement unto the Pasture, then let them be contented therewith; and they on whom it was complained shall go quit of as much as they have made their Profit of their Lands, Wastes, Woods, and Pastures…” (Statute of Merton)

For uncounted centuries, common lands, forests and wastes provided people with myriad ways of making a living; from collecting wood for fuel, gathering fruit, herbs, and other foodstuffs, to hunting for animals for food, and grazing of livestock. In Saxon times, most land was open to use by all. After the Norman Conquest all land was redistributed to a new ruling class, who introduced many laws to force peasants into serfdom to work for the wealthy, restricted the poor’s access to land, and prevented them from hunting. Many serfs however managed to rent a small plot of land to feed themselves. Overwhelmingly villages consisted of a patchwork of open fields ploughed by different people, paying money or in kind to the landowner.

Over the years resistance opened up many ways for the poor to make a living. Although what we called common land was not ‘held in common’, was always owned by the Lord of the Manor, over the centuries customs and traditions grew up about what people were allowed to take, use and where from… What started at the discretion of the Lords came to be viewed as ‘common rights’.
But despite its name, common land was still rarely, if ever, land ‘held in common’: it was almost always land owned by the Lord of the Manor, on which over time other local people had come to exercise some rights. But these rights often had no legal weight, they were part of an unwritten social contract which had grown up over centuries, been fought over, both in courts and on physical battles between landowners and villagers…

The availability of common land was an important factor in supporting the local economy. All who possessed arable land enjoyed rights of common on the manor waste. But these common rights made it difficult for the acreage of plough land to be increased, since any individual commoner could bring an action against any man who did this. Early in the 13th century there was land hunger and the landlords found it profitable to lease land for a money rent, often to men already occupying customary holdings. These were small assarts carved from the waste and additional to the peasant’s main holding.

The 1235 Statute of Merton is sometimes called the first English Statute. One of its most far-reaching clauses gave authority for lords of the manor to enclose commons and ‘waste grounds’ in their lands, on condition that there was a permanent excess of land beyond the grazing needs of the commoners’ livestock, and other commoners’ entitlements, and that any of their tenants who complained were left with sufficient pastureland left to plough.

This enactment was of benefit to all lords of the manor and this included monasteries and other ecclesiastical bodies. By the terms, simple proof that sufficient pasture for tenants was available would be defence to actions of unlawful dispossession of common land. But this referred to pasture for his own tenants and failed to protect others with pasture rights. The anomaly was corrected in the Statute of Westminster in 1285.

The Statute of Merton was operative throughout the medieval period and hotly debated.

This change to English law had minor effects for 300 years, and the clauses relating to enclosure fell into disuse… But when revived in the sixteenth century, the Statute enabled the wholesale theft of access to the land from the poor.

The terms of the statute were agreed at a meeting at Merton, Surrey (deep sarf London these days), between Henry III and the barons of England in the 20th year of Henry’s reign (1235). As with meeting that produced the Magna Carta twenty years before, the Statute is an episode in the struggle between the barons and the king, with the barons fighting to limit the king’s rights and powers over them. This to and fro was to define much of England’s history in the 13th century.

Amongst its provisions, the statute allowed a Lord of the Manor to enclose common land (provided that sufficient pasture remained for his tenants), and set out when and how manorial lords could assert rights over waste land, woods, and pastures against their tenants. It quickly became a basis for English common law, developing and clarifying legal concepts of ownership.

In the early 1500s, pressure for profit from land rents began to see land being enclosed – fenced off, with smaller open fields being ploughed together into much larger farms. Already in the 1510s this was forcing people off the land and into destitution (as referred to in Thomas More’s Utopia, written in 1516). The first half of the sixteenth century saw an increasing struggle around enclosure, with some of the aristocracy and rising merchant classes forcing through dispossession and agricultural ‘improvement’, but resistance coming not only from the rural poor, but also from many on the ruling classes, who feared the effect on social cohesion. Well duh.

In January 1550, in Edward VI’s reign, long after the Statute had fallen out of use, it was revived by the regent, John Dudley, Duke of Northumberland, to enable lords to enclose their land at their own discretion. A Tillage Act made reference to the Statute of Merton. Any land that had been tilled for four or more years since 1509 could not be converted to pasture.

(This was in contrast to Northumberland’s predecessor as regent, Edward Seymour, Earl of Somerset, who had taken a strongly anti-enclosure stance.)

Gradually, as capitalism developed, slowly replacing a society of complex vertical social obligations & custom with one based entirely on profit, the impetus was on for landowners to replace traditional land use with intensive agriculture. This demanded the clearing of woodland & the exclusion of the poor from the commons.

Over the next 300 years, enclosure would increase hugely, creating a mass exodus from the best farming land, pushing hundreds of thousands first into marginal lands, wastes and woods, and then into the growing cities. The impetus for enclosure came entirely from the search for greater profits for the landlord classes. Between the 16th & the 19th centuries,the vast majority of the open land, commons or woods in Britain was enclosed for development, usually by rich landowners. Those deprived of their access to and use of common land not only lost traditional ways of making a living, or in many cases ways of topping up incomes as labourers or craftspeople; they were experiencing the change in class relations at first hand, losing everything bar the ability to sell their labour for a wage… “In an increasingly legalistic age, an unwritten agreement counted for little in the face of the new law …”

Propagandists for the process made much of how it improved agricultural efficiency – historians still argue about whether this was even true. But enclosure ultimately made fortunes for the landowning aristocracy; and as much of this money was also later funnelled into industry, it was a huge driver for Britain’s industrial revolution.

But none of this took place without resistance from those being excluded from the land… 100s of battles were fought to keep common lands open in the interest of those who felt they had traditional rights to use them; and if many fights were lost, many were won…

But in truth, the descendants and heirs of those who were granted the land by the kings who took it by force, and of hose who evicted millions to increase their profits, still own most of he land in this country. Until we decide their title to it means nothing…

For more on open space, enclosure, and resistance, in the London area…


An entry in the
2017 London Rebel History Calendar – check it out online.


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