Commons may loosely be defined as areas where certain people hold beneficial rights to use land that they do not own. Misconceptions that common land belongs to everyone are widespread, and whilst legally incorrect, have persisted since at least Tudor times, showing the considerable link between communities and ‘their’ commons.
Although commons are ancient, and some of Britain’s oldest institutions and legislation relate to commons, there is no single definition which can be applied to all the commons of Britain or more widely. Such rights often became established through custom, where regular ongoing practice became codified and recognized in law, or by the express or implied grant of rights by the landholder. In certain cases land may be held jointly by groups of users, or held as individual parcels but nevertheless used communally. In certain cases land may be managed by individuals for part of the year (for hay or arable) and then grazed in common for the rest, or during periods of fallow.
Despite the diverse legal and historical origins of commons, they are all managed through a community of users, comprising those who hold rights together with the owner(s) of the soil. Such communities generally require joint working to integrate all interests, with formal or informal controls and collaborative understandings, often coupled with strong social traditions and local identity.
Commoning has probably existed in Scotland for over a millennium. However, there is no modern legislation relating to commons which formally identifies the extent of common land or clarifies the full range of rights. The right of turbary – the ability to cut peat as fuel – clearly exists in large parts of Scotland, whilst the scale of such rights, and the extent to which they are utilised, remain unknown. The main work undertaken on Scottish commons concerns grazing, using a pragmatic definition, where such commons were defined as pastures with multiple grazing rights and/or multiple graziers. The information was derived from IACS forms (Integrated Administration and Control Systems) submitted in association with claims for agricultural support under the EU Common Agricultural Policy, supplemented by a questionnaire survey. The work showed that common grazings in Scotland extend to 591,901ha. This is 7% of Scotland’s land area and 9% of the area in active agriculture.
In England and Wales, where (with certain exceptions) all common land and all rights had to registered in accordance with the Commons Registration Act of 1965, it is possible to get a clearer picture of rights. The Act effectively preserved such rights as were registered, although hitherto rights would have been likely to evolve through the years. Also, only those rights which were registered could be actively used subsequently, and it seems likely that in some cases there was vigorous and sometimes ambiguous (or exaggerated) registration, whilst in others rights were simply not registered, and hence effectively extinguished.
It may seem surprising that 26% of commons in Wales, and as many as 65% in England, have no common rights shown on the registers. Such areas are derived from wastes of manors, where rights probably existed formerly. Although there are 5,000 such commons, they total less than 7% of the area, and most are very small parcels of land, often in lowland and built-up areas, with major concentrations in the south-east and home counties.
Because rights have often been entered on the registers inconsistently, with cross-referencing of related rights and some multiple registrations, accurate analysis is difficult. However, over 12,000 rights entries appear on the Welsh registers, and 24,000 in England. Over half of the common land area of England has over 20 rights registered.
Whilst land was formerly used communally for a diverse range of domestic and agricultural purposes, it is only certain categories of common rights which have survived with any certainty today.
The right to graze domestic stock is by far the most extensive right registered, and its ongoing use contributes significantly to agricultural and rural economies. Rights to graze sheep are registered on 53% of the Welsh and 16% of the English commons. Cattle are registered on 35% of Welsh and 20% of English commons, whilst horses and ponies are registered on 27% of Welsh and 13% of English commons. In some cases rights to graze goats, geese and ducks are registered, whilst in others the type of livestock is not specified. These figures relate to the number of common land units, and due to discrepancies in the registers and large numbers of small commons with no rights in England, the apparent distinction between Wales and England may be exaggerated.
Deriving from a French word meaning necessary, a right of estover conferred the ability to take limbs of timber for minor works to buildings, for making farm implements and hurdles, and as deadwood for fuel, or to take bracken and heather for bedding. At one time the right of estovers would have been a mainstay of rural communities, but its importance has declined through recent centuries. Nearly 22% of Welsh commons and 10% of English Commons have the right recorded, although its practice is probably now localised.
This is a common right to cut peat or turfs for fuel. The practice is widespread, but probably declining, in Scotland. Turbary rights exist on 12% of the Welsh and 8% of the English commons, although exercising such rights is probably now much lower.
This is the right to graze pigs on acorns or beechmast in woodlands in autumn, and at one time could be a major factor in the value of woodlands. Certain woodlands in the Domesday Book were valued according to the number of pigs put out. Some 2% of the Welsh and English commons have pannage listed. The right is probably now exercised little except in certain relict hunting forests such as the New Forest (see below).
Common in the Soil
This is a general term used for rights to extract minerals such as snads, gravels, marl, walling stone and lime from common land. It is recorded in 5% of the Welsh and English commons. The right is very localized in its distribution – for example there is a cluster of such rights in Swansea. In many areas however, the rights may rarely be exercised. A particular form of common, known as freemining, persists in the Forest of Dean (below).
Perhaps surprisingly, the right to take fish is found on 262 commons in Wales and England. In Wales again there is a cluster in and around Swansea. It is not known to what extent these rights are exercised.
Other rights, not clearly conforming with the above categories, frequently occur in the registers, often with a heavily localized bias. Over 850 common land units in England have such additional rights listed. The right to take wild animals (ferae naturae) has been included on certain commons registers, although the approach taken, and the decisions of the Commons Commissioners, on this matter have been inconsistent. Strictly, such rights were traditionally confined to the ability to take edible items for personal use, rather than for recreational or sporting purposes. In Scotland, fowling, or the removal of cliff nesting birds, fledglings and eggs, seem to accord with the accepted concept of common rights. Certain coastal areas of Norfolk have wildfowling rights registered. They sit alongside other unusual entries on the register for the same area, including rights to take seaweed, reeds (for thatching), shellfish, sea lavender, and samphire. Few of these may have much historic foundation, but because they were not challenged became conclusive. However they may reflect a tradition to exploit such commons for anything viewed as valuable at the time.
Rights on the Exempted Commons
In the New Forest many of the rights above are recognized, although these cannot be registered under the 1965 Commons Registration Act. There is common of pasture for ponies, cattle and donkeys, a localized right for sheep (which is rarely exercised), and common of ‘mast’ (similar to pannage, above) which enables pigs to be put out in the autumn to forage on acorns, which are poisonous to other stock. Unlike most other commons in England, the commonable land is not formally mapped, and those holding rights are not registered but are instead identifiable by their occupation of certain qualifying land. In theory several thousand people occupy such land. There is no specified maximum to the number of animals that may be put out, and this practice resembles ancient systems, where animals were effectively limited by the size of commoners’ farms and winter feed. Today animal numbers are maintained partly by agricultural support and incentive schemes. The right to dig clay (‘common of marl’) also exists in the Forest but rarely exercised, and rights of estovers and turbary for fuel are also recognized.
The Forest of Dean is also excluded from registration, but unlike the New Forest (where common rights are specified in Acts of Parliament), the rights in the Dean have never been formally tested in law. The practice of grazing sheep (by graziers known locally as ‘badgers’) has apparently persisted in the Forest for centuries, suggesting that a customary right could be recognizable in law. Also in the Dean is freemining, a common right in the soil, whereby men who were born in the Hundred of St Briavels and who have worked in mines for a year and a day, have the right to exploit coal and iron ore. This local practice is unique in Britain.