[429] _Northumberland County History_, vol. v., Birling: "Allowed part of 25s. 4d. for focage of Orchard Medow and Mylneside Bank, because they are now enclosed within the lord's new Park, and this allowance shall be made yearly until the tenants of Byrling have and peacefully enjoy another parcel of pasture to the same value 11s. 8d." (Bailiff's Accounts, 1474). R.O. _Misc. Books Land Rev._, vol. ccxx., f. 236: "Divers parcels of land and pasture of the manor of Farfield, now common of 140 acres, now occupied by the tenants there as commons and given them in exchange in satisfaction of their old common imparked in the new Park, £6, 13s. 8d."
Could they make it good? The question of the degree to which different classes of tenants could obtain legal redress for disturbance will be discussed later. But we cannot leave this part of our subject without considering shortly the standpoints towards disputes arising out of the loss of rights of common, which were adopted by the peasantry and by legal opinion. One may point out, in the first place, that their standpoints were by no means the same. The contrast which we have already ventured to draw between the considerable elements of practical communism in the working arrangements of the village community and the strict and (so we believe) correct interpretation of the law of the King's Courts, which treats its members simply as holders of individual rights which they on occasion exercise jointly, comes out very strikingly in the different attitudes adopted towards rights of pasture. If we must be careful not to see communism where there are really only individual rights, we must also be careful not to see only individual rights where there is in fact a considerable amount of communism. However much it may be necessary to emphasise the "rough and rude individualism"[430] latent in these arrangements, we must admit that for the peasants themselves, who make and depend upon them, they contain features which are not easily explained without the use of words which the lawyers are reluctant to allow us--words implying some degree of practical communism. We must remember that the custom of the manor is itself a kind of law, and that though the lawyers who sit in the King's Courts may cast their rules into a feudal mould, which attenuates rights of common to mere concessions made by the lord to individual tenants, yet the law of the village, the custom of the manor, to which the first appeal is made, does treat them as containing a distinctly communal element. In practice the whole body of customary tenants are found managing their commons on a co-operative plan. They regulate their use and re-adjust the regulations, sometimes at almost every meeting of the court. As a community, they hire additional pasture and administer town lands. As a community, they make arrangements for enclosure and even sell part of their common--the common in which only individuals have proprietary rights--to persons who undertake to invest capital in improving it.[431] When all regulations fail and the enemy attempts to evade their vigilance by a strategic appearance of benevolence, a town sometimes returns to the charge with words glowing with what can only be called the pride of common property, though the title to that property may be of a very shadowy kind. "Whereas of late days," proclaimed the Court Leet of Southampton in 1579, "there hathe ben a peice of our common and heathe ditched and hedged and enclosed in and planted with willows under the name of a shadow for our cattle, which have hitherto many yeares past prospered verie well as the common was before;--wherefore (therefore) we desire that it may be pulled down again and levelled as before, for we doubt that in short time yt will be taken from our common to some particular man's use, which were lamentable and pitiable and not sufferable. For as our ancestors of their great care and travail have provided that and like other many benefits for their successors, so we thinke it our dutie in conscience to keepe, uphold and maintaine the same as we found yt for our posteritie to come, without diminishing any part or parcel from yt, but rather to augment more to yt yf may be." We need not ask in what sense the Southampton men had inherited the salt marsh from their ancestors, or whether a lawyer would not have made short work of their claim to leave it to posterity. It is enough to realise that they feel it to belong to their town in a quite effective and intimate manner, that they stint it, turn off intruders, guard it for their descendants, defend it, if need be, with bows and arrows and pikes, and the other agricultural implements of that forceful age. We know that people commit many crimes in the name of posterity.