The Enclosure Movement in Britain: Lex Loci v/s Force Majeure

“Inclosure came and trampled on the grave

Of labour's rights and left the poor a slave……

…And birds and trees and flowers without a name

All sighed when lawless law’s enclosure came” – The Mores, John Clare

Festooned with vivid imagery, Clare’s poem captures the plight of those who were pauperized by the elite scheme of agricultural progress, the enclosures. Simply put, enclosures were the creation of large estates by wealthy landlords involving the buying up of small farms in the neighbourhood and enclosing, amidst much hue and cry, the village commons. Much was done to piece a large estate together. The lex loci of the commoners were checkmated by the force majeure of the parliamentarians. For some, elaborate lease contracts were drawn up, for others land was compensated with land and for yet others only a paltry sum of money was enough. And if even after all this dissent persisted, it was stemmed by Acts of Parliament.

Enclosures happened in various ways including reclamation of wastes, division of intercommoned pasture, privatization of woods and elimination of common fields. When enclosing, the merchants and landlords came across three sets of legal right holders; the freeholders, copyholders and leaseholders. The difference between the first and the last two categories is that while the latter are merely rights on property the former is a right on land. A freeholder owns the land in perpetuity, while copyholders and leaseholders own certain rights on land for a fixed tenure, the land being owned by someone else.  Perhaps this is why, Habakkuk points to the disappearance of the small freeholder between 1660 and 1760. Freeholders had to be eliminated because their presence on the estate meant that some part of it did not belong to the landlord. But because they had proper legal rights on land i.e. they owned a piece of land on the estates, the only way to do away with them was to buy their land. This is why Habakkuk tells us that enclosures were a very costly affair as they involved buying up tracts of land by paying enormous sums. Yet, John Broad differs and argues that the cost of enclosures were nothing as compared to its windfall returns. Moreover, the small freeholder was more than eager to sell off his land during the time period in consideration. As stated earlier, the tax burdens were now to be shouldered by the landlords and the small freeholder could not bear it. So freeholds could be bought pretty easily. But there were those freeholders who became tough nuts to crack and would not give up their claims so easily. In addition, some of them were well aware that the buying parties were really in need of their land and could, therefore, be arm twisted into paying a little extra. Negotiations followed and the freeholder was soon dispossessed of his land either by cash or by kind (compensation by providing land to the freeholder elsewhere).  

Thus, when confounded with legal claims, the enclosing landlords took legal recourse; negotiations, agreements and acts of Parliament. But when it came to dealing with customary rights when enclosing the village commons, the situation became a lot more complex. EP Thompson in his book Customs in Common tells us that custom at one extreme was well defined and enforceable by law and at times was less exact depending on oral traditions while at the other end emanated from unwritten beliefs and practices but was never recognized by laws. The village commoners suffered the most primarily because their rights were based on the last type of custom. It was easier to do away with them simply because they had no “legal” claims on land. Custom was implicit and based on social sanctions. It often failed to prove its mettle in legal courts. Yet, to think that the peasants gave up their rights easily would be naïve.

On the commons, the peasants could graze their cows and Humphries tells us that the “annual income from the cow was often more than half the adult male labourer’s wage and an average priced cow could pay for itself in about a year.” Milk for the family, cow dung for manure and skimmed milk for feeding pigs were some of the many advantages of keeping a cow. Apart from grazing rights peasants also had estover (rights to cut wood) and turbary (rights to dig peat) rights. These took care of the peasant’s fuel requirements. Commons gave the peasants a right to glean or to collect the grains leftover in the fields post harvest. Almost all of these activities were performed by women and children. These kept the women employed and made them the contributors of a sufficient amount of income to the family.

Therefore, peasants were reluctant to let go. E.P. Thompson’s book is rife with examples of peasants rising in rebellion against the enclosures. Commoners were often seen claiming their rights to throw down encroachments, carrying an axe or a mattock for demolishing any building or fence which had been raised by enclosures. Apart from this lobbying, letters, petitions, mobbing of surveyors, destruction of records, arsoning, rioting, fence-breaking were all common methods of protest. Much of this though was overcome, it wasn’t completely fruitless. Thompson tells us that such forms of resistance delayed enclosures and significantly increased their costs. The riots were so influential that when King George II’s consort, Queen Caroline asked her steward what it could take to shut off St James’ Park, the steward replied “Only a Crown, madam.”

To deal with the stubborn dissenters the enclosing parties came up with several ways. One such interesting way is narrated by Broad in his essay on the Verneys. While enclosing Middle Claydon was a smooth affair and involved simple legal negotiations, East Claydon estates posed a lot of problem. When enclosing a common in West Buckinghamshire, the commoners rose in revolt. The steward of the Verneys was convinced this was done to ask for more compensation. These rioters were led by the parson in East Claydon, Parson Aris. When Aris was away from Claydon on church business, Sir Ralph Verney, the second Earl Verney, ordered his steward to brew twelve barrels of ale than six to cheer the proceedings. After much negotiations and ale most of the dissenters agreed to the enclosures by 1653. However, when the steward set out to buy seeds to be sown in the enclosed fields, he had to pay a premium of 25% for the purchase as almost every seedsman knew and regretted the Buckinghamshire enclosures.

While ale may have been an effective tool for negotiation, it paled in terms of its efficiency when compared to the rule of law. Courts were approached in places where custom was enforceable by law. When enclosures had just begun in the 16^th century, the judiciary termed it as destructible to the village economy. However, in the late seventeenth and early eighteenth centuries, the courts held the view that the “lord’s waste (common) or soil was his personal property albeit restrained and curtailed by the inconvenient usages of custom”. If his access to any part of his soil should be restricted this will be a ready way to enable tenants to “withstand all improvements”. Thus, the judiciary also thought of commons as a hindrance to agricultural improvement.

Yet, the fact stayed that “a right of common cannot be altered without the consent of all parties concerned therein”. Therefore, in many places it became increasingly difficult to enclose unless by way of a due parliamentary process. Thus, the age of parliamentary enclosures dawned in the latter half of the 18^th century. Many parsons were hushed and many riots were silenced by these numerous acts. Chapman tells us that about 7,253,955 acres of land was enclosed in England and 117,030 acres in Wales by way of parliamentary enclosures.

Thus, enclosures were effected through acts of parliament only when the peasants started to rise in revolt against the enclosing landlords. They were brought in when anyone holding a legal right dissented and would not be silenced by compensations in cash or kind. As for those deprived of any legal rights, customary rights were just not capable of defending them. And when the enclosures were complete a period of “Agricultural Revolution” (as hailed by historians like Allen and Overton) was ushered in. The rich became richer while the poor were subjected to 10 hours of wage labour for meager wages. Women and children were employed for lesser wages as compared to an adult male’s wage. In order to subsist, children were forced to work at an early age and contribute to the family’s income. Thus, for some it was the glorious age of improvements in agricultural production, better diets and windfall gains while for others it was a battle for subsistence and survival.