Common lands

THE COMMON LANDS

The burgesses exercised common rights over much of the liberty. The common land was divided into two types, whole year land, on which the burgesses and other landholders had common all the year round, and half year land on which the burgesses only had common from Lammas to Candlemas. The main whole year commons comprised detached areas of pasture in wood, heath, and waste in the outlying parishes, especially Mile End. The half year commons consisted of grazing rights on the borough fields, the ancient open fields of the town which lay chiefly, although not exclusively, within the parishes of the intramural churches. (fn. 1)

THE WHOLE YEAR COMMONS.

The whole year commons may have originated in common rights in a large area of woodland covering the north and north-west quarters of the liberty, divided between the royal forest of Kingswood and the borough's wood or Cestrewald. (fn. 2) Kingswood had been in the hands of the burgesses before 1168 but was then reclaimed by Henry II, although the townsmen retained their common rights. (fn. 3) In the 17th century the burgesses still claimed an ancient right to feed cattle and take wood from 2,000 a. in Kingswood heath, but the area of common was by then probably much smaller because of extensive medieval inclosure and clearance in the south part and centre of Mile End parish. (fn. 4) In the 14th century the burgesses also claimed common rights in St. John's abbey's Soane wood, north-east of the town in Greenstead. By the early 16th century the burgesses' main year-round pasture was Mile End heath; they also had common rights in Parsons heath and Cross heath in Greenstead and Rovers Tye heath along the Ipswich road. (fn. 5) The rump of Kingswood, in the north part of Mile End, was acquired once more by the borough in 1535 and became known as the Severalls estate when it was leased and inclosed after 1576. (fn. 6) About 1590 the inclosures there caused c. 150 poor townsmen to claim that they had been much injured by the loss of their common land. (fn. 7)

Certain highways were apparently whole year commons, including in the early 14th century a road leading through St. John's abbey land in Greenstead to Wivenhoe. The road along the bank of the Colne between North bridge and North mill was common in 1366, and in the same year common rights were claimed in the road through the St. Botolph's priory land south of the town towards Old Heath. In 1447 the prior was said to hold in severalty another way through his land which ought to have belonged to the commonalty of Colchester. (fn. 8) Land inclosed in 1411 for a rabbit warren apparently obstructed the burgesses's common hunting rights at Clingo Hill in Greenstead. (fn. 9) The 80 a., and the 8 p. about the town wall, in the burgesses' common in 1086 may represent whole year common land within and around the walls, where much open space survived into the medieval period, rather than the borough fields. (fn. 10)

HALF YEAR COMMONS: LOCATION AND ORIGIN.

The disposition of the half year lands suggests that they probably originated as fallow and spring-field grazing rights on the open fields belonging to the borough, rather than as rights enjoyed as part of the farm of the royal demesne or a late extension of pasturage rights from Colchester's meadow land. (fn. 11) The furlongs of Borough field in St. Mary's-at-the-Walls parish do not appear to show in their layout the influence of the underlying Roman features such as roads, cemeteries, and suburban buildings, so Colchester's open fields were probably laid out in the late Anglo-Saxon period. The 1,304 a. held, mostly in parcels of 1-10 a., by 276 burgesses in 1086 were perhaps open field holdings made up of scattered strips with commensurate common rights lying within the area later covered by the borough fields. (fn. 12) Later inclosure may have severely reduced the area of commoning, for by 1599 there were only c. 626 a. of half year commons and c. 1634 there were said to be only 400-500 a. (fn. 13) In the mid 18th century the half year lands were estimated to contain 500 a., including most of the land in St. Mary's-at-the-Walls parish, although it was claimed that the commons had recently been extended. (fn. 14) Nonetheless, in the early 19th century half year lands were stated to comprise 1,020 a.: 564 a. in Head ward; 189 a. in North ward; 118 a. in East ward, and 147 a. in South ward, an area not far short of that held by the burgesses in 1086. (fn. 15)

There were three main concentrations of half year land: one south-west of the town known as Borough field, which may have originally lain entirely within St. Mary's-at-the-Walls parish; one to the south-east, which may have originally formed one great field within St. James's parish; and one to the north-east, which may once have formed a third field within Mile End and Greenstead parishes. The tithes of many lands were later transferred to other parishes, particularly with the foundation of St. Botolph's priory c. 1100 and St. Mary Magdalen's hospital in the early 12th century. (fn. 16) The continuation of furlongs across the boundary from St. Mary's-at-the-Walls into Lexden parish and the use of the names Borough field, Bury field, and Dole field in an area of Lexden adjoining St. Mary's-at-the-Walls suggest that the original open fields extended into Lexden. (fn. 17) The parishes of Stanway, Lexden, and St. Mary's-at-theWalls certainly remained intermixed throughout the Middle Ages. (fn. 18) The division of tithes between the intramural parishes had the effect of fossilizing evidence of earlier agrarian arrangements including individual open field strips. In Borough field, for example, the strips, and later irregular inclosures and sub-divisions, were accommodated within a series of large curving furlongs of clearly open field type, and 'common baulks' were also identifiable as late as the 19th century. (fn. 19)

HALF YEAR COMMONS: INCLOSURE TO c. 1600.

There is no evidence when inclosure of the borough fields began, but by the later Middle Ages consolidation had become a serious obstacle to the exercise of common rights. In 1311 the borough court recorded that all of Nicholas le Gros's newly inclosed arable lands north of the river had been half year lands from time immemorial, and in the same year John Person was charged with making several a croft near Colebaynes land. (fn. 20) The land which the bailiffs licensed Roger Moriss to inclose in 1348-9 presumably lay in the borough fields, and other inclosures which threatened to extinguish common rights were made in 1353 in Bury field within the walls, Partridge fen in Borough field, and Someres field at Dilbridge in Mile End. A croft, perhaps an assart, called la Brache or Bruche, was also made several in 1365-6. (fn. 21)

Between 1401 and 1447 common land was made several in Holmere near Butt Lane, at Bourne mill, in Bury field, at Shrub wood, in Synchedown next to North Street, and at the Hythe. (fn. 22) In 1466 a ship builder held common soil, probably meadow, beyond the crane at the Hythe as several. (fn. 23) Another phase of inclosure occurred in the later 16th century when unlawful inclosures proved a 'great impediment' to the burgesses' cattle. (fn. 24) The problem recurred a century later, between 1654 and 1655, when the free burgesses were said to be suffering great prejudice from encroachments, tillage, and inclosure. (fn. 25) Common rights were also obstructed by agricultural improvements from the 17th century onwards, including new buildings, farmyards, and root crops. (fn. 26)

Disputes between the burgesses and St. John's abbey over grazing rights suggest that the abbey had extinguished common rights on its land south and east of the town. In the early 14th century the abbot encouraged new tenants to inclose their land in Monkdown, (fn. 27) and in 1340 the abbot inclosed his land there so that the burgesses could not common, an action which they were still disputing in 1427. In that year the abbot was also accused of keeping his boundaries open at Stowersland, in Greenstead towards East bridge, in order to impound the burgesses' cattle when they strayed from neighbouring commons. (fn. 28) The abbot had also inclosed Oldgate field or Maryland outside East gate in 1364, but the burgesses continued to demand that the land be thrown open, and in 1489 broke the abbey's closes there. The abbot retaliated by impounding their cattle. (fn. 29) The burgesses also claimed that the abbot had bought land from them in order to make it several and so had obstructed common grazing rights on a total of 400 a. of arable, meadow, and pasture which used to be common 'at the usual times', presumably a reference to half year lands. (fn. 30)

If the abbot of St. John's had encroached on some of the borough's half year lands, the borough itself had consented to the inclosure of others. In 1516 the bailiffs and commonalty gave the wardens of St. Anne's guild permission to inclose all the chapel lands, which presumably lay near the chapel along the Harwich road. At the same time they extinguished rights of common on land adjoining the Crutched friars' orchard, south of the later Crouch Street. (fn. 31) A proposal c. 1536 to inclose all the land in the liberty except the whole year commons and to charge the owners a rent of 3d. an acre for meadow and 2d. an acre for arable and pasture came to nothing, perhaps because of the inclosure riot that same year. (fn. 32) That or a similar plan may have led to the order, made by the commissioners appointed to settle differences in the town in 1549, (fn. 33) that inclosures or sales of commons should be made only with the unanimous consent of the bailiffs, aldermen, and common councillors. (fn. 34)

In 1564 the borough assembly agreed to inclose and lease the half year land and to use the rents to support a hospital for the poor. (fn. 35) The 5s. rent agreed that year by the holder of Golden field, near the later Military Road, for his intercommoning, (fn. 36) may have been one such rent for a new inclosure, and the 2s. 6d. rent agreed for a parcel of half year ground in St. Leonard's at the Hythe in 1602 was to be paid to the town's poor. (fn. 37) The provision for a workhouse partly financed by rents of half year lands was repeated in 1613 and the lease in 1618 of land on the north side of Magdalen Street, between Magdalen green and Spittleman's wash, which allowed the tenant to inclose the land may have helped to finance the scheme. (fn. 38)

HALF YEAR COMMONS: MANAGEMENT TO c. 1790.

Where landowners and tenants farmed their half year land as arable they could not sow winter crops and had to grow oats and barley, crops which were well suited to the light sandy soils of the liberty. (fn. 39) Nearly three quarters of the crops possessed by Colchester taxpayers in 1296 and 1301 comprised oats, barley, and peas, and the court rolls also contain references to lands occupied by spring-sown crops. (fn. 40) The c. 500 a. of several 'rye ground' in St. Giles's parish in the late 16th century may reveal greater use of winter-sown crops outside the area of half year commonage. (fn. 41) Although the half year lands were commonable between Lammas and Candlemas the dates were probably more flexible in practice, for at Dilbridge farm in 1699 commoning was delayed until 'the corn is off'. Similarly, in the early 14th century rights were claimed 'from the carrying of hay to Candlemas' on half year land in Salt meadow and Eastmead, near the Hythe. (fn. 42) Nonetheless, when the burgesses' rights were challenged in the mid 18th century they retaliated by driving their cattle over the commons whether or not the harvest had been completed. (fn. 43)

There is no direct evidence for a stint until 1573 when it was set at three great cattle or 30 sheep for each burgess. (fn. 44) Nonetheless, from the early 14th century the commons were often overloaded with flocks of up to 400 sheep, besides cattle, horses, and pigs. Burgesses were occasionally amerced, but foreigners, having no right of common, were more frequently presented for burdening the commons to the prejudice of the commonalty. Those at fault included the prior of St. Botolph's, the almoner of St. John's, the rector of Mile End, and the tenants of the manors of Lexden and West Donyland. (fn. 45) In the late 15th century the commoners' cattle were tended by a common cowherd, who impounded unauthorized beasts and reported defects and trespasses to the bailiffs; in 1538 burgesses were forbidden to put cattle on the commons except in the cowherd's charge. (fn. 46)

The management of the half year lands was one of the matters in dispute between the corporation and the burgesses in the years before 1635. (fn. 47) The disposal of money received from the land seems to have been of as much importance to the burgesses as the rights themselves. In 1627 the assembly repeated the stint of 1573 and agreed that the bailiffs should appoint 2-4 burgesses from each ward to drive the commons as often as necessary, fining owners 3s. 4d. for each beast illegally grazed. Pigs were similarly to be driven and impounded. In 1629 new ordinances confirmed the stint laid down in 1573 and provided for the election of four treasurers, one from each ward, who were to appoint the drivers of the commons and to receive the fines collected. Land already inclosed was to remain so, and no more leases were to be granted without the consent of a majority of the commonalty at a public meeting. All fines and rents were to be distributed to poor burgesses and their families. (fn. 48)

The burgesses seem to have achieved a modification of the rules for the appointment of drivers in 1633, (fn. 49) but in 1634 they claimed a stint of 3 great cattle or 90 sheep and again objected to the ordinance for the driving of the half year lands. They also complained that some aldermen had tried to prevent them from commoning by laying their several lands open to the half year lands so that cattle could be impounded for trespass, and by sowing the land with roots or by building on it. The burgesses were equally concerned that the lease of Kingswood heath made in 1572 was about to be renewed, thus again depriving them of wood and timber besides their rights of common. (fn. 50) They almost succeeded in getting a clause into the new borough charter in 1635 forbidding the inclosure or other interruption of their commons, (fn. 51) and they did succeed in having the drivers' powers confined to foreigners' cattle while freemen's cattle were to be placed under the care of one herdsman from each ward. (fn. 52)

The disputed election of 1742 led to the lapse of Colchester's charter, and in 1749 the burgesses claimed that they were deprived of their half year commons, their cattle were impounded, and they had no redress. (fn. 53) Landowners seized the opportunity to press for the abolition of the commons, which they considered hindered improvement and encouraged poor stock-keeping. In 1753 Philip Yorke, Lord Hardwicke, lord of Mile End, Greenstead, and Dilbridge manors, briefed by the historian Philip Morant, claimed that he and his fellow landowners had been powerless against 'a thousand furious fellows backed by a bullying mayor' who were determined to extend their half year lands and prepared to put their cattle on them at the beginning of August whether or not the corn was cut. Among the landowners only the wealthy widow and brewer Elizabeth Selly had refused to be intimidated. The burgesses hired an attorney to sue for their pasture rights, but in 1753 the attorney-general advised them that all their privileges, franchises, and lands had reverted to the Crown on the lapse of the charter. The dispute led to agitation in the town during the parliamentary election of 1753, in which Lord Hardwicke supported the Tory candidates. (fn. 54) The half year commons were restored to the mayor and commonalty under the 1763 charter. (fn. 55)

HALF YEAR COMMONS: MANAGEMENT AND SALE c. 1790 TO c. 1900.

The dissolution of the half year lands began in the last decade of the 18th century. In 1794 the burgesses offered to surrender rights of common on land south of Magdalen Street for the barracks, and further rights were surrendered to the government in 1796. In 1806 rights of common were sold to the government on 34 a. acquired for the rapidly expanding military site. Those sales may have suggested a way of raising money at a time of serious financial problems for the borough. In 1797 a committee was appointed to examine whether compensation had been received for inclosures and to determine how far expansion at the Hythe had encroached upon common land. In 1801 the treasurers were requested to survey the half year lands, including lands which claimed to be exempt but were once common. A proposal that year to sell the half year commons to cover the corporation's debts was rejected by the burgesses, but two years later an amended proposal that a sufficient quantity be sold to redeem the corporation's land tax was approved. In 1806 another committee recommended the sale of the common rights to discharge the corporation's debts, including a £2,493 mortgage on the corporation estates. (fn. 56)

In 1807 Benjamin Strutt, the chamberlain, claimed that the treasurers and drivers were prevented from enforcing the burgesses' common rights by fear of prosecution or physical assault and 'by bribes and other treacherous dealings'. Of the money which they did collect, twice as much was spent on treats and feasts as on widows, orphans, and sick, weak, and poor burgesses, a form of embezzlement noted by Morant in 1748. (fn. 57) Strutt's condemnation resulted in a new constitution creating the 'conservators' of the commons, four men elected annually on 27 July, who were to survey and record the half year lands and might at the request of the four treasurers or any 12 burgesses enter inclosed or cultivated fields to preserve common rights. An annual assembly, held in late July in the moot hall, was to consider proposals for the purchase of common rights at £30 an acre for meadow and £20 for arable. Where cultivation obstructed regular commoning the conservators were empowered to negotiate a licence at a rate not less than one quarter of the annual rent charge. Those moneys, together with the fines taken for illegal grazing, were to be placed in government security or used to purchase estates. The annual interest or rent was to be paid by seven trustees to the chamberlain for distribution in equal shares to resident burgesses. (fn. 58)

Initially, purchases of common rights were negligible and in 1808 the standard charge was reduced to £20 an acre for meadow and £15 an acre for arable. Sales were allowed at lower prices in 1809 and 1811, and charges were further reduced to £7 an acre for arable and pasture in 1815. From 1809 onwards the balance in the conservators' accounts arising from sales of half year rights amounted to between £100 and £200 each year, with occasional larger sales such as the 27 a. which brought in £472 in 1812. Total sales between 1805 and 1820 were 554 a., followed by a further 200 a. by 1825, leaving only 266 a. of half year land. (fn. 59)

In 1825 seven common councillors claimed that money arising from the sales had not been distributed to the free burgesses as the constitution of 1807 required and they demanded their equal share of moneys paid to Strutt between 1818 and 1824. Strutt was ordered to resist the claims and the borough assembly committed itself to defending him against any legal actions. (fn. 60) In 1829, perhaps as a result of that dispute, it was proposed that the remaining common rights be sold and the proceeds placed in 3 per cent annuities, so as to improve the income distributed annually among the burgesses. A further proposal to sell off the Severalls and land bought with money from the sale of half year lands, was successfully opposed. (fn. 61) After 1825 sales were much reduced, although 39 a. were sold in St. Mary's-at-the-Walls parish as late as 1862, and common rights in Drury farm in that parish were still subject to legal disputes and transfers of ownership in the later 19th century. (fn. 62)

A group of litigious burgesses, led by Jeremiah Prestney and James Coveney, claimed that all income derived from ancient rights of fishing, hunting, and grazing properly belonged to the freemen rather than the corporation. In one legal action brought against the corporation, as conservators of the commons, they claimed the profits of the common land but the suit was dismissed with costs awarded against the plaintiffs in 1898. The costs were still in dispute in 1904, when they were ordered to be paid out of the money invested by the trustees of the half year lands. The great expense to the town of contesting the case led to the suggestion that the freemen should be abolished, but the final verdict, and the death of Prestney in 1899 and Coveney in 1909, brought the episode to a close. The freemen continued to receive small pensions from the fund in 1993. (fn. 63)