Statute and Local Custom: Village Byelaws and the Governance of Common Land in Medieval and Early-modern England
By Angus Winchester
Confernce Paper (2008)
Abstract: The role of seigniorial courts in managing common land and overseeing the exercise of common rights in England before c.1800 is well known. Central to the work of the courts were evolving bodies of local customary law governing grazing and other use rights. These were often formalised into sets of village byelaws, which informed the courts’ decisions. Such byelaws are usually interpreted as local customary law, developing at grassroots level to suit local conditions and thus providing a legal framework to common rights which was sensitive to local environmental, social and economic pressures.
However, the similarity between sets of village byelaws over large parts of England suggests that they were built on a foundation of wider custom and culture. The professionalisation of the role of estate steward and the dissemination of agricultural treatises and printed manuals on the right holding of seigniorial courts across the sixteenth and seventeenth centuries would have played a part in generating a ‘national’ culture of commons governance. Moreover, the management of common land had a statutory basis, not only in the framework of rights of landowners and tenants laid down by the Statue of Merton (1235) but also through a series of sixteenth-century statutes which impinged on the use of common land and were policed through the seigniorial courts.
Taking surviving statements of village byelaws from the period c.1450 to c.1750 as its starting point, this paper will question the extent to which they represent purely local responses to local conditions and assess the balance between local custom, a wider agrarian culture and statutory regulation in the governance of common land. In so doing, it will contribute to the wider debate over the relationship between local communities and the state, and between internal and external perceptions, in the governance of commons.