ccclxii. 60, 1637; order of Council that the Attorney-General

should forthwith proceed by information in the Star Chamber against Viscount Saye and Sele for depopulation and conversion of houses and lands.

[690] J. Moore, _A Target for Tillage_: "My purpose is not here to plead for ... any other idle drones and wretched atheists.... All these I acknowledge to be the greatest wasters and spoylers of our country, worse by many degrees than any depopulators, oppressors, and decayors of villages.... All these I know abhorre the plough, and are enemies to the State; who yet (I confesse) in their high talke do justify tillage and will be ready no doubt to reforme the decay thereof with spade and pickaxe." (The copy of this pamphlet which I have seen is dated 1611. I have ventured to assume that this is a misprint, and that it should be placed with John Moore's other pamphlets on enclosure, 1653-1656.)

[691] Leonard, _Trans. Royal Hist. Soc._, vol. xix.

(c) _The Success and Failure of State Intervention_

It remains to ask how far the policy of trying to check the agrarian changes, which was pursued by Governments for nearly a century and a half, had any effect on economic practice. Statesmen were certainly biassed in favour of protecting the weaker landholding classes. But was their intervention simply the expression of a pious opinion? Was it so entirely futile as--to give a modern parallel--the Small Holdings Act of 1892? Or did it to any extent modify or retard the course of economic events? The view usually taken, that legislation was so ineffective as to be almost negligible, is in accordance with what we know of the character of local administration in the sixteenth century, and is supported by much contemporary evidence. The constant introduction of fresh proposals suggests that the previous laws were disappointing. The failure of existing Acts was the reason given in Somerset's proclamation for the appointment of the Commission of 1548. Hales, who is certainly the most reliable authority on the situation between 1540 and 1550, speaks of them as being notoriously a dead letter.[692] If one looks at the Statutes passed against depopulation in the sixteenth century, with a view to discovering how far they really met the situation, one will be inclined to say that they quite failed to go to the root of the matter. The special evil which they were intended to combat was depopulation caused by evictions. But evictions could be checked only by giving tenants security, which would have meant turning customary into legal titles, and fixing judicial rents for leaseholders and immovable fines for copyholders; in short, the sort of interference which the peasants and their champions demanded, but on which no Government depending on the support of the landed gentry would venture, except upon an extraordinary emergency. In the absence of such an attempt to grapple directly with the fundamental fact that the peasants' insecurity made them liable to suffer whenever there was a change in the methods of agriculture, legislation designed merely to prevent those changes was almost certain to be evaded. Even with the best intentions the Statutes could never have been easy to administer. There was the difficulty inherent in the whole Tudor and Stuart policy of authoritative interference with trade and industry, the difficulty of making State action keep pace with economic changes. The Government is often like a man pursuing a tram from one stopping-place to another, and just missing it at each. It insists that land which has hitherto been in tillage shall remain in tillage. But there are a few years of bumper harvests, and the farmers complain that they cannot pay their way.[693] The Government tries to get over the difficulty by allowing them to convert arable to pasture, when a providence unversed in statecraft sends a wet summer, and it scrambles hastily back to the position which it has just abandoned.[694] By excepting from the operation of the Statutes certain districts which are specially suitable for grazing, it encourages a rough local division of labour, one part of a county confining itself to pasture-farming and another to tillage. But then, in pursuit of its traditional and quite reasonable policy of securing that food is cheap, it insists that all farmers are to supply the markets with grain, with the result that those who have specialised in corn-growing are threatened with ruin by the fall in prices which ensues, and that it is even questionable whether they will not convert arable to pasture to evade the obligation imposed upon them.[695] Old enclosures were tolerated and new forbidden. But how distinguish between old and new? Land turned to pasture simply to restore it to a condition in which it would be fit for tillage escaped the condemnation passed on other kinds of "conversion," and one can imagine that nice arguments must have arisen as to a farmer's motives. Again, suppose a man converted to pasture land which should have remained under the plough, and then leased it to some one else, who retained it as pasture, was the lessee guilty of an offence? In a case which came before the Court of Exchequer in 1582, the defendant pleaded that he merely "used" the land as pasture, and had not converted it, while the Crown argued that use was equivalent to conversion, that he was in the position of a man profiting by the continuance of a nuisance, and that a fine of 10s. an acre for each year since the original conversion ought to be imposed.[696] Points like this give colour to Coke's complaint against the whole body of Acts against enclosure that "they were labyrinthes, with such intricate windings or turnings as little or no fruit proceeded from them."

[692] Hale's defence in appendix to Miss Lamond's introduction to _The Commonweal of this Realm of England_.

[693] D'Ewes _Journal_, p. 674 (1601). Mr. Johnson said: "In the time of dearth, when we made this Statute, it was not considered that the hand of God was upon us; and now corn is cheap. If too cheap, the husbandman is undone." See also Raleigh's speech in the same debate.

[694] _e.g._ in 1593 the clause in the Act of 1563 forbidding conversion of arable to pasture was repealed. In 1595 and 1596 bad harvests produced loud complaints of high prices, and in 1597 conversion to pasture was again prohibited.

[695] _Original Papers of the Norfolk and Norwich Archæological Society_, 1907, pp. 131 ff.

[696] Moore's _Reports_, p. 117, plea 262, Claypole's case: "Le conseil de Reigne argue que ... l'entent de Estatute fuit que le user sera accompt equivalent en tort al convcon." Judgment was apparently given for the Queen. The decision was quoted as an authority in the debate in Parliament on the Bills introduced in 1597. _Hist. MSS. Com._, MSS. of Marquis of Salisbury, Part VII., pp. 541-543: "And 26 Eliz. in the Exchequer, in Claypole's case, an information was exhibited upon the Statute of 4 Hen. VII. against a purchaser for converting of tillage into pasture, and adjudged good, though the purchaser were not the converter, but only a continuer of the first conversion. So as this new law tends but for an instruction and explanation of the old."

But, of course, the obscurity of the Statutes was the least part of the difficulty with which Governments who wished to protect the peasantry were confronted. Much more serious was the fact that the traditional policy could be carried out only by disregarding the financial interests of the wealthier classes, who could most easily influence Parliament and the Council, and who were locally omnipotent. In the first half of the sixteenth century the high position of many of those who were most deeply implicated in cutting land free from communal restrictions made them almost unassailable. The Royal Commission of 1517 returned among enclosers the names of the Duke of Norfolk, the Earl of Shrewsbury, the Duke of Buckingham, Lord Danbury, Sir William Bolen, Sir R. Sheffield, the Speaker of the House of Commons, Sir J. Witte, the Under-Treasurers of State, and Sir J. Cotton, who was himself one of the Commissioners.[697] The angry unanimity with which Somerset's colleague turned against his land policy was not wonderful, for they were nearly all directly interested in the maintenance of the _status quo_. Warwick, who led the _coup d'état_, had enclosed on a large scale. Sir William Herbert had made extensive enclosures on the lands which he had acquired from the Abbey of Wilton. The St. John family, the Darcy family, the Earl of Westmoreland, had all local troubles with their tenants; and there are some indications that Sir William Paget and the detested and detestable Lord Rich were in the same position.[698]

[697] Leadam, _Trans. Royal Hist. Soc._, New Series, vol. vi.

[698] For Warwick, Herbert, and the St. Johns, see pp. 326, 368, and 362. For Darcy and disturbances in Westmoreland, Gairdner, _L. and P. Henry VIII._, xii. II., xii. I., 319, xi. 1080. For Paget and Rich, Strype, _Ecclesiastical Memorials_.

It is not, however, material to trace the records of individual members of the Council, because their interest in checking the interference of the State with the free disposal of land is evident from the fact that many of them enormously increased their estates through the share which they obtained in the property confiscated from the religious houses and the gilds. A comparison of the lists of Privy Councillors for 1548 and 1552, published by Strype,[699] with Dr. Savine's[700] valuable analysis of the grantees of the monastic estates, show that out of thirty-one persons who got grants of land of £200 a year or more fourteen were members of the Privy Council in one or other of those years, exclusive of the Earl of Warwick and Sir William Herbert. This fact is by itself almost sufficient to explain the impossibility of enforcing the laws forbidding depopulation during the years which followed the death of Henry VIII., and the despair of legal protection which seems to have settled upon the classes affected by the movement. The view sometimes expressed that the religious houses had been easier landlords than the lay owners into whose hands their estates passed, though it can occasionally be corroborated from the complaints made by tenants to the Government, scarcely seems, as yet, to be satisfactorily proved. But the distribution among the wealthier classes of land producing a net income of not less than £110,000 gave them an enormous vested interest in preventing and evading legislation to check the most profitable use of the new possessions which were to endow the aristocracy of the future. The supposition of peculiar harshness in the owners to whom the land passed, though probably correct, is really not needed to explain the part which the transference of these vast quantities of land had in augmenting the distress of the rural classes. The worst side of all such great and sudden redistributions of property is that the individual is more or less at the mercy of the market, and can hardly help taking his pound of flesh. A buyer must sell at a profit, or he had much better not have bought. During the decade between 1540 and 1550 there was a furor of land speculation. To the Abbey lands, which came into the market after 1536, were added those of the gilds and chantries in 1547. It is quite clear that some of the grantees of estates did not acquire them with the intention of retaining them, but simply "bought for the rise." The lands of the Abbey of Whitby, for example, pass first to the Crown, and are then sold by it to the Duke of Northumberland, who in turn sells them to Sir John Yorke.[701] A small official in the Royal household buys the Cistercian nunnery at Brewood, and at once puts it up to sale "for suche a price that no man will gladly by hit at hys hand."[702] Trentham is surrendered to the Crown in 1536; in 1540 the Duke of Suffolk obtains a grant of the rents and reversions reserved upon the Crown leases there, and in the same year sells it to one Leveson, who has already acquired lands belonging to Horlton Abbey, and already sold them again to Biddulph.[703] One finds even the champion of the tenants, Somerset himself, getting a grant of land from the Crown on July 1st, leasing part of it for eighty years on July 2nd, and transferring it back to the Crown, subject to the lease, on July 9th.[704] When property changed hands three times in the course of ten days, it could hardly fail to be rack-rented, or the transaction would not pay. What happened to the tenants? Here and there, as at Whitby and Washerne,[705] a bitter outburst against their new masters shows that the result has been what we should expect. But for the rest, a cloud descends and we cannot say. It is only in such occasional glimpses that we catch the solid earth shifting beneath the feet of those who till it. It was such a glimpse which led the last great English peasant, in a time of even more widespread misery, to say that the wretchedness of the landless labourer was the work of the Reformation. Cobbett, and those who follow Cobbett in representing the economic evils of the sixteenth century as the fruit of the religious changes, err in linking as parent and child movements which were rather brother and sister, twin aspects of the individualism which seems inseparable from any swift increase in riches. Their vision of a time when mild ecclesiastics administered their estates as a popular trust lays a spell upon the imagination. In the religious houses of Lancashire and Yorkshire and Northumberland there may, here and there, even on the eve of the dissolution, have been a reality corresponding to it. But we need hardly go further than Sir Thomas More[706] to learn that for parts, at least, of England it is only a vision; and More does not speak without book. Holy men enclose land, convert arable to pasture, claim villeins, turn copyholds into tenancies at will. If prominent ecclesiastics had really wanted to champion the cause of the peasantry, they had an excellent opportunity when Wolsey sent out the first great Commission into enclosures in 1517. But, in fact, there is no reason to suppose that any protest was made at all comparable to that which came thirty-two years later from Latimer. How could there be? The estates of the larger houses were often scattered over several different counties, and before the dissolution they were quite frequently managed by laymen. In such cases the monks were simply rentiers,[707] who needed to know no more about their tenants than the fellows of an Oxford college know about theirs at the present day.

[699] Strype, _Ecclesiastical Memorials_.

[700] Fisher, _The Political History of England_, 1485-1547, Appendix II.

[701] Selden Society, _Select Cases in the Court of Requests_ (Leadam).

[702] Hibbert, _The Dissolution of the Monasteries_, pp. 209-210.

[703] _Ibid._, p. 210.

[704] _Hist. MSS. Com._, C.D. 3218, pp. 322-323 (MSS. of Earl of Leicester at Holkham Hall).

[705] For Whitby and Washerne, see pp. 285 and 194. In 1545 the tenants of the manor of Egglesdon, formerly the property of the monastery of Sion, proceed against Palmer, the grantee, in the Court of Star Chamber for evicting tenants and other oppressions (Leadam, _E. H. R._, vol. viii. pp. 684-696).

[706] More, _Utopia_, p. 31 (Pitt Press edition): "Noblemen and gentlemen, yea, and certain abbotts, holy men no doubt ... leave no ground for tillage, they enclose all to pasture." For a case of claiming a bondman, see Selden Society, _Select Cases in the Court of Star Chamber_, Carter _v._ The Abbot of Malmesbury. For conversion of copyholds to tenancies at will, Selden Society, _Select Cases in the Court of Requests_, Kent and other inhabitants of Abbot's Ripton _v._ St. John. The change was alleged to have been made in 1471.

[707] The opposite view is expressed by Gasquet, _Henry the Eighth and the English Monasteries_, chap. xxii. For a criticism of it see Savine, _Oxford Studies in Social and Legal History_, vol. i. pp. 263-267, and pp. 245-260 for facts as to lay administrators. Hibbert, _op. cit._, pp. 210-211, who writes of Staffordshire, supports Savine rather than Gasquet. The evidence of Aske cannot be quoted as though what was true of the northern houses were true of all. As a matter of fact, lay estates preserved the old conditions in the north long after the dissolution (see pp. 189-191). The hatred of the new landlords is proof that they were specially detestable, rather than that the monasteries had been above all ordinary economic considerations.

Nevertheless, though facts will not allow us to accept the view which ascribes the agrarian distress of our period to the Reformation, or even to the particular changes brought about by the secularisation of religious endowments, there was a real connection between them. The Reformation in England is as much a social as a religious revolution. As a social revolution it is the work of the commercial and middle classes. It "made of yeomen and artificers gentlemen, and of gentlemen knights, and so forth upward, and of the poorest sort stark beggars."[708] Their support is given, in the main, on strict business principles. It is purchased by ensuring that every one who counts shall have a solid material interest in supporting the new order. The great Elizabethan families, the Cecils, the Herberts, the Grenvilles, are well paid in advance for their services, and continue to be paid long after their services have ceased. The dissolution of the monasteries does for their plastic consciences what the foundation of the Bank of England did for the politics of the City Interest under William III. Having invested in the Reformation at a time when the Reformation is a gambling stock, they nurse the security with a solicitude which title-deeds have done more to inspire than the New Testament, and are zealous to lay up for themselves treasures in Heaven, as the best insurance for the treasures which they have already accumulated on earth. A man who looks from the window of his new mansion on the timber in his new park may well think it worth the sacrifice of many masses. Though the economic effect of endowing our landed gentry is not reducible to figures, it is not rash to say that men who have sprung into wealth by suddenly purchasing new estates will make those estates pay. And this means that ultimately the cost will be borne by their tenants. That the new proprietors will be extraordinarily sensitive to attacks on the rights of property goes without saying. The lectures[709] delivered to the peasants by the _nouveaux riches_ of 1549 on the wickedness of agrarian spoliation have an irony which is eternal.

[708] Quoted by Gasquet, _op. cit._, p. 464, from a document written about 1591.

[709] _e.g._ Paget's letter to Somerset, July 7, 1549 (Strype, _Ecclesiastical Memorials_). Neville, De furoribus Norfolcensium Ketto Duce, 1575. The words put into the mouths of the landed gentry by Crowley in _The Way to Wealth_ (E. E. T. S.) no doubt represent their attitude fairly: "Nowe if I should demand of the gredie cormoraunts what they thinke should be the cause of sedition, they would saie, 'The paisent knaves be too welthy, provender pricketh them. They knowe no obedience, they regard no lawes, they would have no gentlemen, they would have all men like themselves, they would have all things commune. They would not have us master of that which is our owne. They will appoint us what rent we shall take for our grounds.... They will caste down our parkes and lay our pastures open.... They wyll compel the Kyng to graunt theyr requests.... We wyll tech them to know theyr betters, and because they would have all in common we will leave them nothing.'"

Apart from the special interest which the purchasers of the estates of monastic and gild estates had in keeping a completely free hand over their disposal, the normal organisation of English local government made effective State interference very difficult. As has often been pointed out, its peculiar strength lay in the success with which it made the ordinary relationships between social classes the machinery for executing the mandates of the State, by entrusting administration, not to officials of the Central Government, but to persons who already possessed local authority, and who were confirmed in it, rather than given it, by the Crown. Such a system was favourable to the development of representative government and of political freedom, because it strengthened instead of repressing the local initiative on which the success of representative government ultimately depends. But the very absence of bureaucracy had the disadvantage that it made it almost impossible to enforce the regular administration of the law, whenever it conflicted with the local interests of classes who sat on the county bench. A not unimportant chapter in English history is contained in the complaint of the Norfolk rebels that the legislation of the last fifty years had been "hidden" from them by the Justices of the Peace. The account of the proceedings of the Commission of 1548, which had to drag information out of juries packed with the employees of enclosing landlords, and from witnesses who gave it under threat of eviction--above all, the pained amazement of a great landowner who found that the Commission declined to accept evidence from his servants as unbiassed--is a specimen so typical, that, if it were found in isolation, we could hardly fail to fit it back into its English context.[710] Hales, the one statesman whom the agrarian problem produced, put his finger on the root of the difficulty in the third Bill which he introduced into Parliament in 1548. The substance of its proposals, though sufficiently rigorous to modern notions, was not in itself more drastic than others which actually became law. Its novelty lay in the machinery by which it was to be enforced. Surveys of pastures were to be made annually by the curate and two men of every parish, and those breaking the law were to be presented for trial. In other words, the initiative in returning offences was to be taken by those chiefly interested in preventing them. According to Hales, it was the last provision for making the administration of the Statute a reality which Parliament found intolerable.[711]

[710] Appendix to Introduction to _The Commonweal of this Realm of England_ (Lamond), p. lix.

[711] _Ibid._, p. lxv.: "This was it that byt the mare by the thombe."

Must we, then, dismiss the efforts of the Tudor and Stuart statesmen to soften the harshness of the agrarian revolution as a mere piece of solemn futility? The simplicity of the solution makes it a tempting one; but it is too simple to be true. In the first place we must notice that our literary evidence is one-sided, because it is fullest for just those years during which an exceptional freedom from restraint was enjoyed by the great landlords. It is inevitable that Latimer and Hales should often be quoted. But one cannot argue from comments on the uselessness of legislation, uttered at a time when the Statutes against enclosing were virtually repealed, to show that the law was equally ineffective under Elizabeth and her two successors. And, in the second place, to hold that the frequent intervention of the Council had no result is really an unjustifiably high-handed proceeding. It runs counter to most of what we know of the administration of the period. A Statute might be a dead letter, but a letter from the Council was meant to be obeyed. By 1552 the Government has discovered the uselessness of relying for the enforcement of the law on the intervention of superior lords, and places its administration in the hands of special Commissioners directly responsible to the Central Government. Such a view runs counter to the opinion of the peasants and of the upper classes. The victims of agrarian oppression recognise that though they have little to hope from the local authorities, who are their landlords and employers, the Government's policy is on the whole favourable to them, and they deluge it with appeals for protection. The justices are naturally no friends to that policy. But in the sixteenth and seventeenth centuries they are by no means the independent autocracy which they became later, and are watched closely by the Privy Council. From Norfolk, Nottinghamshire, Lincolnshire, Derbyshire, Leicestershire, and the west of England, they send returns to the Government of their action,[712] and the Government is quite ready, as we have seen, to revise the action of its delegates when it thinks they have been biassed by personal interests. In Yorkshire the juries of several townships present offenders before the justices. The authorities of Southampton[713] take steps to put the Acts against enclosure into force. The authorities of Norfolk[714] request that they may enjoy the exemption which has been granted them. When in 1597, a year in which legislation against enclosures is in the air, the Earl of Huntingdon asks the burgesses of Leicester to return his nominee to Parliament, they refuse bluntly to do anything of the kind, on the ground that the candidate in question is "an encloser himself and therefore unlikely to redress that wrong in others."[715] The courts hear a large number of cases dealing with offences committed under the enclosing Statutes.[716] Individuals obtain special permission, either by royal license or by Act of Parliament, to use as pasture land which, like undrained marshes, is obviously unsuitable for ploughing. No one who is reported as having taken part in the Parliamentary discussions of proposed legislation in the closing years of Elizabeth suggests that it must necessarily be a dead letter. The chief fear that seems to have been felt was lest it should prove too effective. In introducing two Bills against enclosure and depopulation in 1597, Bacon apologised to the great landlords for taking action which was likely to prejudice their interests. When the question of continuing the Act against depopulation, which was in force in 1601, was under consideration in the House of Commons, both the members who argued for continuance and those who argued for repeal, assumed that the law was being administered in practice, one speaker urging that it had the result of keeping so much land in tillage as to destroy the farmer's profits by causing excessive supplies of grain to be placed on the market in any but the worst years; another that it pressed hardly on the small farmer, who could not easily find the capital needed to sow as much land as he was legally bound to plough.[717] The ablest and most fully reported speech[718] which has come down to us is that of an anonymous member, who, while approving of the principle of the Bill, attacked it as too loosely drafted to meet the situation. His criticisms are those of a man who understands his subject, and are on just those points of detail which, though important in a measure which is to work, would not be worth considering at all if anything like effective interference were out of the question. After commending the clauses which excepted from the provisions of the Bill land lying temporarily fallow, and which punished the purchasers as well as the original converter of arable which was turned into pasture, he goes on to point out that loopholes have been left in the measure which are likely to stultify its effect. The exemption of Crown lands from its operation will encourage enclosing landlords to exchange properties with the Crown, and then take on lease as tenants the land which they have handed over, since by doing so, they will escape the risk of prosecution. The persistent lobbying of the interests affected--"the ears of our great sheepmasters do hang at the doors of this house"--has resulted in the fine for enclosing being placed as low as 10s. per acre, which is ridiculously disproportionate to the profits to be made by enclosures. The clause excluding from the reconversion prescribed in the Bill lands mown for hay plays into the hands of the enclosers by facilitating the winter feeding of their sheep. The failure to limit the acreage which a man may keep in his own hands will discourage the creation of small holdings. At a later date there is the same belief, both among those who approve, and among those who dislike, enclosure, that enclosing can be checked, at any rate, by the Government. In the keen controversy over enclosures which raged under the commonwealth the opponents of further restriction urged that the mere threat of legislation had resulted in checking agricultural enterprise.[719] Harrington,[720] a specialist, not to say a faddist, on agrarian policy, bases his interpretation of the history of the preceding century on the supposed success of the Tudors in keeping the small cultivator on the soil. Even in the middle of the eighteenth century, when the golden age of the enclosing landlord was just about to dawn, some dim memory of the earlier State policy seems in parts of England to have survived. "Why," asked a foreign traveller,[721] "do your farmers not keep separate closes under turnips to feed sheep in the new approved manner?" "Partly," answer the peasants, "because there is a common rotation of crops which all must follow. But the principal reason of all is that on a common land no one has freedom to enclose his strips without a special permission and Act of Parliament."

[712] For Norfolk and the West of England, Leonard, _Trans. Royal Hist. Soc._, vol. xix. For Nottinghamshire, Lincolnshire and Derbyshire, _S. P. D._, Ch. I. vol. clxxxv. No. 86, and vol. ccvi. No. 71 (quoted in Appendix I.), and vol. clxxxv. No. 41. For Leicestershire, Privy Council Register, vi. 385, and Gonner, _Common Land and Enclosure_, p. 165. For Yorkshire, see pp. 374-375. Professor Gonner (_op. cit._, p. 167) estimates that about six hundred persons were fined, the sums obtained from thirteen counties amounting to about £46,800.

[713] Hearnshaw, _Southampton Court Leet Records_, 1550. Presentment of "the names of the Commoners which require redress of the Commons inclosed, as they saye, contrary to the King's Majesty's statutes, and that they may be laid abroad according to the said statutes."

[714] _Original Papers of the Norfolk and Norwich Archæological Society_, 1907, p. 185.

[715] Bateson, _Records of the Borough of Leicester_, 1509-1603, pp. 300-301.

[716] Gay, _Quarterly Journal of Economics_, vol. xvii.

[717] For the debates of 1597 and 1601 see _D'Ewes' Journal_, pp. 551 and 674 ff.: a special exemption from the operations of the Act was allowed to a landlord who had got letters patent authorising him to enclose 340 acres "too moist and soft and altogether unfit for tillage."

[718] _Hist. MSS. Com._, MSS. of Marquis of Salisbury, Part. VII., pp. 541-543.

[719] Pseudonismus, _A Vindication of the Considerations concerning Common Fields and Enclosures_, 1656: "The Statute of Tillage hath excited some and affrighted others that the land in each field is not and cannot be husbanded as it ought." The "Statute" alluded to is the Bill introduced in this year which did not become law.

[720] Harrington's Works (1700 edition), pp. 388-389.

[721] _Kalm's Account of his Visit to England on his Way to America in 1748_, translated by Joseph Lucas, p. 282. I am indebted for this reference to Dr. Gilbert Slater. The exact words are: "Nor had they any turnip land to feed sheep upon. Therefore they were deprived of the advantage of getting to sell any fat sheep or other cattle. The reason they gave for all this was that their arable was common field, and thus came to lie every other year fallow, when one commoner always had to accommodate his crops to the others; but the principal reason of all was said to be that," and so on as in text. I am not sure that I have interpreted the passage rightly in assuming that it alludes to the _illegality_ of enclosure without Act of Parliament. It may merely mean that, without an Act of Parliament, the necessary agreement could not be obtained among all those interested. I follow Dr. Slater's interpretation.

What weight is to be attached to this body of opinion that enclosure and conversion to pasture were in practice checked by the opposition of the Government, it is not easy to say. If it is hardly compatible with the view that interference was entirely ineffective, it nevertheless need not imply anything more than a temporary retardation of the movement on those special occasions and in those particular parts of the country that were the object of peculiar attention. The test of comparison with facts by which one would like to try it is difficult to apply. Our knowledge of the real extent of enclosure in the sixteenth century is too scanty to permit of our following with confidence the line of argument which has been ingeniously worked out by Miss Leonard,[722] and which, starting from the indisputable fact that in those Midland counties where enclosure had been felt most acutely in the sixteenth century, there was still much land unenclosed in the seventeenth and eighteenth, suggests that the explanation is to be found in its temporary cessation under the authoritative pressure of the Tudor and Stuart Governments. Nevertheless, without going beyond our evidence, we may venture to put forward two propositions. The first is that it is extremely improbable that the anti-enclosing policy which we have traced succeeded in altering permanently or on a large scale the course of economic development. That suggestion is surely incredible in view of the continuance of the complaints against enclosure, and of what we know of the slack and biassed routine of rural administration. To expect the justices to stop enclosing, unless actually compelled to do so, was almost as Utopian as it was to expect them to administer the early Factory Acts two centuries later. The second is that the intervention of the Government certainly mitigated the hardships of the movement to the rural classes. The protection which the Court of Star Chamber and the Court of Requests offered to the equitable interests of tenants, while it could not turn the general course of events, tempered its harshness to individuals. A landlord who was determined to depopulate could hardly in the long run be prevented from succeeding in his object. But he might have to wait till leases or life tenancies had expired, instead of being able to clear his estate at one sweep. He might be compelled, as the St. Johns[723] were in the reign of Henry VIII., as Sir John Yorke in 1553, or Lloyd under Elizabeth, to bind himself to respect the titles of the existing generation of tenants. In the same way the occasional campaigns undertaken for the reconversion of pasture to arable, while they could not turn the tide, almost certainly slackened its course. There is no way of escaping from the positive evidence which we possess that in parts of the country houses which had been pulled down were rebuilt, and that land which had been turned from arable to pasture was turned back again, at the command of the Government, from pasture to arable. We have already described the doings of the justices under James I. Look for a moment at the similar agitation which was started in 1630. The agrarian policy of the Council is seen at its worst under Charles I., because the whole of it is smeared with the trail of finance. Some of the offenders were allowed to compound upon payment of a fine, and one's first inclination is to believe that the Commissions of 1632, 1635, and 1636 were nothing but one of those odious financial engines, like the revival of forest claims and the exaction of fines for knighthood, by which Charles tried to dispense with Parliamentary taxation. That they were this among other things is certain. That they were nothing more than this must be denied, for we have clear evidence from enclosers themselves to the contrary. They do not only, like Lord Brudenell, write to the Council begging that their fines may be reduced from £1000 to £500, and explaining that "the enclosures made within man's memory amount not to the decay of one farm."[724] They are not only haled before the Star Chamber to be rebuked by Laud.[725] They beg to be allowed to pay a fine instead of being imprisoned. They reconvert pasture to arable. In Northamptonshire[726] a man turns thirty-five acres of arable into pasture. But he ploughs up ninety-five acres of ancient pasture to set off against it. From Nottinghamshire[727] comes a letter explaining that the petitioner has complied with the orders of the Commissioners of Depopulation to throw open all his enclosures, and apologising humbly for keeping hedges round three acres on the ground that they are necessary to mark the boundaries.

[722] _Trans. Royal Hist. Soc._, vol. xix.

[723] For the St. Johns, see pp. 362 and 380. For Sir John Yorke, pp. 285 and 381, and Selden Society, _Court of Requests_, Inhabitants of Whitby _v._ Yorke, 1553: "Be yt remembred that the cause brought before the Queen's Counsaill in her Majestie's Court of Requests.... Ys now ordered by the saide Councill by thagreement of the saide Syr John who hathe promised that the saide parties aforenamed, and every one of them, shall have and quietly eujoye theyr tenements and holdings during the yeres and termes in theyr leases and copies yet enduring, paying theyr Rentes and ffermes accustomed." For Lloyd and the tenants of Hewlington in Denbighshire, see pp. 302-303.

[724] _S. P. D._, Ch. I., cccxlii., No. 47.

[725] _Ibid._, cccxiv., No. 29, and Appendix I., No. VIII.

[726] _Ibid._, cccclxxv., No. 72.

[727] _Ibid._, cccciv., No. 142.

On the whole one is inclined to regard the Government's intervention in this matter as resembling in its effects the attempts which were made at the same time to fix prices and wages. It retarded, though it could not check altogether, economic changes. It imposed a brake which somewhat eased the shock of sudden movements. But when the hand of authority was removed, when Commissions were called in and justices ceased to be admonished by the Council, affairs swung back into their original position. A rough attempt to illustrate the occasional retardation of pasture-farming by these spasmodic attacks upon it is given in the diagram opposite.

The figures are taken from a list of Final Concords as to land lying mainly in Staffordshire, but occasionally in other counties as well. The period selected is one in which there were two agitations among the peasants, two important Acts against depopulation, and a Royal Commission. It will be seen that while some of the fluctuations in the percentages of arable and pasture bear no relation to any known activity on the part of the Government, the repeal in 1593 of the Acts for the maintenance of tillage comes as a climax to a well-defined increase in the percentage of pasture, the passage of the two Acts of 1599 is followed by a similar though less marked rise in the percentage of arable, and the riots of 1607, which resulted in the appointment of a Royal Commission, appear to be accompanied by another increase in the area under the plough. Of course the acreage represented is absurdly small, and it is possible that the apparent correlation is a mere coincidence. Still, one is inclined to think that the fluctuations on the chart fit in very well with what we know from other sources of the temporary effect and subsequent ineffectiveness of these transient eruptions of governmental activity. The creation of social habits by continuous pressure, such as is exercised by modern states through their paid inspectorates, is quite foreign to the ideas of the age. The Government, when it is most active, never gets beyond making an example of a few notorious offenders whose sins are sufficiently black to bring in good round sums to the Exchequer, and having vindicated the majesty of the law and pocketed their fines, it leaves the small fry to wonder, and hastily set their house in order against the coming of the Judges of Assize, and then gradually to slide back into the ancient ways when the storm has blown over. After all, the fact that A was punished for enclosing last year is in itself sufficient to make it extremely probable that this year B will escape.

Such "occasional conformity" was, however, too much the rule in all economic matters that were the object of authoritative regulation--and few were not--to be by itself any cause for abandoning it. The real reason for the cessation of interference in the land question which we notice after 1640 is to be found, not in the fact that intervention had invariably proved too ineffective to be worth continuing, but in the change of policy caused by the unchecked domination of Parliament in domestic affairs. The victory of the Parliamentary forces over the Crown meant the triumph of the landed gentry over the only power which was strong enough to enforce the administration of unpopular Statutes in the teeth of their opposition. It prepared the way for the reign of the great landlord who regards himself as charged with a peculiar responsibility for promoting the needs of agriculture, which he alone is presumed to understand--and in fact, to do him justice, does sometimes understand very thoroughly--a weary Titan who pushes forward enclosure from a sheer sense of public duty. On the one hand there is a change in the standpoint from which agrarian policy is regarded. The aim of maintaining a prosperous peasantry becomes subordinate to that of obtaining the maximum output from the soil. This change materially affects the attitude adopted towards enclosure. The Tudor Governments had endeavoured to protect the rights of commoners, because commons were an indispensable adjunct to small-scale subsistence farming. The new view is that commons are waste lands which had much better be improved, and which are most likely to be improved if they pass into the control of men who have capital to spend upon them. Even under the Stuarts this doctrine begins to gather weight, and naturally so, for it both flattered their ambitious conception of the monarchy as a cornucopia whence all economic improvements should flow, and was in line with their general policy of trying to secure cheap food by regulating the supplies of grain. In 1623 Commissioners are busy improving Tiptree Heath, which squatters have occupied without any legal title.[728] In 1637 the King is approached by an influential syndicate which asks for a concession permitting it to reclaim the heaths and barren commons belonging to the Crown, and which displays a glowing prospectus of the advantages which will accrue in the shape of increased supplies of food-stuffs.[729] In 1629 the Commission of Sewers had engaged Vermuyden on his celebrated task of draining the great Level, and, in spite of the fierce opposition of the fenmen, the work was in 1637 adjudged to be completed.[730] All this is quite in the vein of the eighteenth century. It is quite in that vein also for a strong line to be taken against the wastefulness of those who impede good farming, even though the farmer be a grazier, by sowing a few acres here and a few acres there, instead of cultivating a compact holding; in short, by the immemorial system of strip cultivation. The last but one of the Statutes against depopulation[731] was itself the first expressly to authorise that exchanging of holdings for the purposes of more business-like husbandry, which, as we have seen, had been going on informally from an early date. In 1606 we get what may be called the first Enclosure Act of the modern pattern, under which certain Herefordshire parishes are allowed to separate and enclose one-third of the land lying in common in each parish.[732] In 1627 a case arising out of a dispute about fold-courses comes before the courts, and sound agricultural doctrine is laid down with a confidence of which Arthur Young himself might have approved. "This Court," say the judges, "was now of opinion that the plowing and sowing of small quantities of land dispersedlye or disorderlye within ye shacks and winter feedinge of ye said ffouldcourses, and the refusal of a few wilfull persons to lett ye owners of ffouldcourses have their quillets of land (Llying intermixt in the places where ye sheep pasture is layd) upon indifferent exchange or other recompense for the same, are things very mischievous and will tend to ye overthrow of very many fould courses."[733] Their opinion is enforced with a judgment decreeing an exchange of lands.

[728] _S. P. D._, Ch. I., cl., No. 7.

[729] _S. P. D._, ccclxi., No. 15: "There are many thousand acres of heath and barren commons in England and Wales, not annually worth 6d. an acre, to which your Majesty has right of soil but no benefit thereby, which may be improved to a great value, cause plenty of provision, enrich many thousands, supply the poor."

[730] Cunningham, _Growth of English Industry and Commerce_, Modern Times, Part I., pp. 112-119.

[731] 39 Eliz., c. 2.

[732] 4 James I., c. 11.

[733] _Original Papers of the Norfolk and Norwich Archæological Society_, 1907, pp. 70-73.

When the whole question comes up again towards the close of the Commonwealth, the old attitude is maintained by the opponents of enclosure, who protest, with all the fervour of Latimer, against the greed of landlords and the pauperising of commoners. But its defenders have overhauled their arguments, and the lines on which the controversy will be fought out for the next century and a half are already obvious. In the eyes of the austere moralists of the Restoration commoners are lewd people, who would be much better employed if at work for wages. All beneath the "nobility and gentry" are "the poor," and the poor themselves (it is well known) are of two kinds, "the industrious poor," who make a living by working for their betters, and "the idle poor," who make a living by working for themselves. Christianity and patriotism require that the latter should enter some "productive employment," and this can best be secured by excluding them from the commons on which their distressingly irregular livelihood depends. Even so Europeans to-day teach habits of industry to the African savage, by taxing him until he can no longer live upon the lands which Europeans desire to exploit. Moreover, the commercial spirit of the later seventeenth century is impatient of antiquated restrictions, and is already groping blindly after some formula which may prove them to be superfluous. Enclosures will increase the output of wool and grain. Each man knows best what his land is best suited to produce, and the general interest will be best served by leaving him a free hand to produce it. "It is an undeniable maxim," writes a pamphleteer, "that every one by the light of nature and reason will do that which makes for his greatest advantage. Whensoever corn bear a considerable rate, viz., wheat four or five shillings, and barley two shillings and sixpence, men may make more profit by ploughing their pasture, and consequently will plough for their own advantage."[734] Hales had said something like this a hundred years before. He had said it to show the need of special measures to divert agricultural enterprise into beneficial channels. Now an identity between the interests of landowners and those of the public is assumed as part of a pre-established harmony, which human intervention may disturb, but which it is neither needed nor competent to secure. Authoritative statecraft fades out in the dawn of reason and the light of nature. With such a wind of doctrine in their sails men are steering for uncharted waters.

[734] Lee, _A Vindication of a Regulated Enclosure_, 1656.

While opinion on the subject of enclosing was beginning to change even before the Civil War, the final blow at the maintenance of the old policy was struck by the destruction of the Court of Requests and Court of Star Chamber. The abandonment by Governments of all attempts to protect the peasantry against oppression was an indirect consequence of the victory of the Common Law over the prerogative jurisdiction of the Crown. The interference in agrarian matters of the administrative courts of the Tudor monarchy had always been detested by the landed gentry for the very reasons which made it popular with the peasantry. They were the last resort of men who could not get what they considered justice elsewhere. One finds a defendant in whose favour the Common Law Courts have given three decisions being sued again before the Court of Requests.[735] They were the only authority which could prevent a landlord from asserting his claims to a common or to a copyhold by means which the poorer classes found it impossible to resist. Complaints from aggrieved landowners that they are undermining the right of the lord of the manor to exercise jurisdiction over his own copyholders, by trying cases which ought to be heard in manorial courts, that they are interfering with the course of Common Law, that they make it impossible for a lord to "rule his lands" by the countenance which they lend to discontent, are not infrequent[736] in the sixteenth century, and both Wolsey and Somerset were in turn attacked by the upper classes for the favour which they showed to such unconstitutional interference with the rights of property. Such protests are the best proof that the Court of Requests and the Court of Star Chamber had exercised functions which were in some respects beneficial. The strictest constitutionalist will have some sympathy to spare for the address in which Lord Coventry in 1635 charges the Judges of Assize to "beware of the corruptions of sheriffs and their deputies, partiality of jurors, the bearing and siding with men of power and countenance in their country," and to set on foot "strict inquiry after depopulation and enclosures, an oppression of a high nature and commonly done by the greatest persons that keep the juries under their awe, which was the cause there are no more presented and brought in question."[737] Such words paint the ideal of Government by prerogative, _parcere subjectis et debellare superbos_, which may have floated before the minds of a Bacon or a Strafford, and which had been partially realised under the Government of Elizabeth. When set side by side with the actual practice of the Council under Charles I. they are its final and self-recorded condemnation. For we look for them to be made good in action, and we look, save during a few years, in vain. If much may be forgiven those who boldly do wrong believing it to be right, there is no mercy for "the unlit lamp and the ungirt loin" of a body which, believing a certain system of government to be right, entangles its execution with sloth, and makes a sordid financial instrument out of the very prerogative which itself has declared to be the gift of God for the protection of the poor. The defence which the Council and its courts had offered to the peasantry against economic evils, though real, was too irregular to do more than slightly mitigate the verdict which history has passed upon their employment in the hands of Charles I. Whether the peasants regretted their disappearance we do not know. To those contemporaries whose opinion counted, the occasional onslaughts made by the Council and Star Chamber upon enclosing landlords were an aggravation, not an extenuation, of the indictment brought against them. Though the Grand Remonstrance, in which the Long Parliament sought to unite all classes with a recital of grievance accumulated upon grievance, taunted the Government with its failure to check the conversion of arable land to pasture,[738] the authors of that tremendous indictment had no substitute to suggest for the interference by the Council with "freeholds, estates, suits, and actions," which they denounced; and Laud, who, according to even a friendly critic, "did a little too much countenance the Commission for Depopulation,"[739] lived to be reminded in the day of his ruin of the sharp words with which he had barbed the fine imposed by that body upon an enclosing landlord.[740] The Court of Requests was never formally abolished, but from the closing decade of the sixteenth century it had been gradually stripped of its powers by prohibitions issued by the Common Law Judges, and forbidding plaintiffs to proceed with their cases before it, and after 1642 it quietly disappeared. With the destruction in 1641 of the Court of Star Chamber and the Councils of Wales and of the North, an end was put to the last administrative organs which could bridle the great landed proprietors. Clarendon, himself a relic of an age before the deluge, would seem to have added to his other offences by trying to revive the old policy in a world which would have none of it.[741] But the royalist squirearchy who in 1660 streamed back to their plundered manors, were, when their property was at stake, as sound constitutionalists as Hampden himself, and after 1688 that absorption of the "State" by "Society" which Gneist, a worshipper of the eighteenth century régime, dates with curious perversity from 1832, was, in his sense of the words, complete. Henceforward there was to be no obstacle to enclosure, to evictions, to rack-renting, other than the shadowy protection of the Common Law; and for men who were very poor or easily intimidated, or in enjoyment of rights for which no clear legal title could be shown, the Common Law, with its expense, its packed juries, its strict rules of procedure, had little help. Thus the good side of the Absolute Monarchy was swept away with the bad. Its epitaph was written by Locke:[742]--"The supreme power cannot take from any man any part of his property without his own consent." But it was forgotten as soon as it was written. For to the upper classes in the eighteenth century the possession of landed property by a poor man seemed in itself a surprising impertinence which it was the duty of Parliament to correct, and Parliament responded to the call of its relatives outside the House with the pious zeal of family affection.

[735] Holkham MSS., Sparham Bdle., No. 5, see back, p. 374.

[736] Selden Society, _Select Cases in the Court of Requests_, Customarye Tenants of Bradford _v._ Fraunceys: "The seyd defendant seythe that the said bill of complaint ... is mater ... determinable at the comen land and not in this honourable court, whereunto he prayeth to be remitted." Also Gairdner, _L. & P. Henry VIII._, i., 334, Earl of Derby to Cromwell; and Leadam, _E. H. R._, vol. viii. pp. 684-696. For attacks on Wolsey's land policy see Herbert, _History of King Henry VIII._, pp. 297-298 (ed. of 1672): "Also the said Cardinal hath examined divers and many matters in the Chancery, after judgment thereof given at the Common Law, in subversion of your laws, and made some persons restore again to the other party condemned that they had in execution by virtue of the judgment in the Common Law."

[737] Gardiner, _History of England_, 1603-1642, vol. viii., p. 78. Compare the Instructions for the President and Council of the North, 1603 (Prothero, _Statutes and Constitutional Documents_, 1558-1625, pp. 363-378), Article XXVIII.: "Further our pleasure is that the said Lord P. and Council shall from time to time make diligent and effectual inquisition of the wrongful taking in of commons and other grounds and the decay of tillage and of towns or houses of husbandry contrary to the laws,... and leaving all respect and affection apart they shall take such order for redress of enormities used in the same as the poor people be not oppressed and forced to go begging ... and ... if they find any notorious malefactor in this behalf of any great wealth, cause the extremity of the law to be executed against him publicly."

[738] Gardiner, _Constitutional Documents of the Puritan Revolution_, 1625-1660, pp. 212-213, "Conversion of arable into pasture, continuance of pasture, under the name of depopulation, have driven many millions out of the subject's purses, without any considerable profit to his Majesty."

[739] Clarendon's _History of the Rebellion_, I. 204, IV. 63. Clarendon's account of the Grand Remonstrance suggests that the principal grievance was not depopulation, but the fines exacted for it; see the words "with the vexations upon pretence of nuisances in building ... and of depopulation, that men might pay fines to continue the same misdemeanour."

[740] Appendix I., No. VIII.

[741] I make this statement on the authority of Dr. Slater, _Sociological Review_, vol. iv., No. 4, p. 349, but I have been unable to trace his evidence. The only reference I can find bearing on the subject is contained in Article XIII. of the heads of the accusation against Lord Clarendon: "That he hath in an arbitrary way examined and drawn into question divers of his Majesty's subjects concerning their lands, tenements, goods, chattells, and properties, determined thereof at the Council Table, and stopped proceedings at law by the order of the Council Table, and threatened some that pleaded the Statute of 17 Car. I." (The proceedings in the House of Commons touching the impeachment of Edward, late Earl of Clarendon, 1700.)

[742] Locke, _Two Treatises of Government_, Book II., chap. xi.