Origins of Common Land

Former extent

Almost 3% of the land in England today is common land (399,040ha) but this area was once much larger. At the onset of the Parliamentary Inclosure Movement in the mid 18th century somewhere in the region of 10% of all land was manorial waste subject to rights of common. 265,000 hectares of land were enclosed under the provisions of the Inclosure Act 1845 and as much again has ceased to be regarded as common land since 1870 when legislation began to be enacted to prevent further inclosure of commons.

The Manorial system

The Norman Conquest of 1066 brought with it a manorial system of land management which governed the relationship between the lord of the manor and various tenants. Common land and rights of common are a remnant of this system although there is no doubt that land would have been used in common prior to 1066. The standard customs adopted by manorial courts were absorbed into common law over a period of more than 800 years.

Under the manorial system a manor was held by a lord on a grant of the monarch. The manor was likely to have a home farm which would be cultivated and from which the lord took all produce; this was the demesne land. Around this land would be a system of further fields cultivated in strips by tenants of the lord and workers in the manor. After harvesting, these strips would be collectively grazed by all the tenants on a common basis.

In addition there was usually poorer quality land which would not be cultivated but would be grazed by people in the manor. This was known as the waste of the manor. These people also used the waste land to gather other essential resources such as peat, firewood, materials for house repairs, animal litter, or fish. The waste of the manor was owned by the Lord of the Manor and to this day common land may generally be taken to belong to the current Lord of the Manor or their legal descendant.

The manorial system was not in place throughout England, and the balance of demesne land, open fields and wastes varied depending on the region and type of landscape. The system of open field arable cultivation was less extensive in upland areas but these areas had great tracts of manorial waste.

There were also town commons where town corporations held extensive rights over large areas of the surrounding land. The Town Moor in Newcastle is a surviving example of such a common; here stints continue to be let to farmers from surrounding areas. The village of Laxton in Nottinghamshire continues to operate a manorial farming system with three open fields divided into strips.

Manorial Courts

The system of sharing the use of land led, by necessity, to the development of rules or customs by which the commoners and landowner were expected to abide. In time the manor courts began to absorb this increasingly standardised manorial custom into common law.

Under the manor court system, a jury of local people made customary rules, appointed officers, and fined those who committed offences. These manorial courts began the process of absorbing standardised manorial custom into common law. The majority of manor courts had disappeared or withdrawn from common land management by the end of the 19th century, though a small number of manor courts continue to operate today. On some commons, the loss of manor courts resulted in a lack of an effective management structure; on others, the vacuum was filled by new commoners’ associations, management meetings, or boards of conservators (refer to Management of Commons for more information).

Much litigation associated with commons has dealt with attempts to establish areas of customary practice as legal rights. Some of these attempts have been successful, some not.