The character of English rural society: Earls Colne, 1550–1750

By Henry French and Richard Hoyle

This is a major study of the transformation of early modern English rural society. It begins by assessing the three major debates about the character of English society: the ‘Brenner Debate’; the debate over English Individualism; and the long running debate over the disappearance of the small landowner. It then turns to the history of Earls Colne in Essex, which has never before been the subject of a full-length study despite it being one of the most discussed villages in England.

French and Hoyle’s rounded account describes the arrival of a new landlord family, the Harlakendens, the tensions created by this change, and the gradual atrophy of their power. This account of change is backed up by a new and original analysis of landholding in the village, which depicts the land market in unprecedented detail, and explores the changing significance of landownership for ordinary people.

It is a key work for all those interested in how English rural society changed between the sixteenth and eighteenth centuries.

• Language: English
• Publisher: Manchester University Press
• Release date: Jul 19, 2013
• ISBN: 9781847795199

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Preface

A good few years ago, when the authors of this study shared the teaching of a course at the University of Central Lancashire entitled ‘Studying Local History’ (HY2016, first semester, Wednesday 11.00–1.00, and normally taught in a basement room where one could watch the lower limbs of people walking by outside), we started the course with a lecture looking at the motivation which lay behind the writing of local studies. To frequent puzzlement, we explained how much amateur local history was written by people committed to a place because they lived there and for whom the past of the place could have a tangible reality. Some modern local studies had been written by people who were discovering the place of their childhood or by people led to a place by genealogy. Much older – Victorian and inter-war – local history had been written by authority figures – landowners, solicitors or clergy – and celebrated past or present landownership. The reasons why academics invested time, effort and career in a single place could be every bit as varied. Some wrote out of piety, especially at the beginning of their careers, their curiosity stimulated by the places they grew up, lived in or visited. One, to our certain knowledge, became interested in a village after he discovered its pub on Sunday outings into the country. Other historians were footloose, drawn to a particular place because the quality of its archives allowed questions to be posed (and answered) which could not be addressed in less well-documented places. We perhaps fall, one each, into the last two categories. For one of us, Earls Colne was a natural extension of research (conducted primarily for convenience) on his native county, addressed first in his doctoral thesis. For the other, Earls Colne posed questions which needed to be answered and the opportunity to answer them, but the intensive study of a Essex village on and off for over a decade has been, if anything, a lengthy digression from his beloved Pennines. Like any road less travelled by, Earls Colne offered the prospect of an enticing journey of discovery. As it turns out, although it was a longer and more winding road than we anticipated, it disclosed a historical destination richer and more varied than we expected.

Why Earls Colne? In the beginning there was Ralph Josselin, vicar of the village from 1641 to 1683. His diary, which spans his entire adult life, was published in 1908 in a selective transcript. In 1970 Alan Macfarlane published a study of Josselin based on the diary: subsequently (in 1976) he published an edition of the whole text.¹ Having done so, Macfarlane launched a project to gather all the discoverable sources for the village as the preliminary to writing an anthropologically informed account of Earls Colne and its inhabitants. The materials were gathered but the ambition was never fulfilled. Some preliminary observations on Earls Colne appeared in The origins of English Individualism (1978): but little more on the village came from Macfarlane’s pen. Of course, some of English Individualism was polemical and for that reason it has not worn well, but it was exciting! One of us remembers trying to secure a copy in the Easter vacation of 1979, managing to find it in Leeds City Library. That the medievalists amongst his teachers disliked the book enormously may have added spice, but a quarter of a century later it may be seen to have been one of the most influential books of its age.

There were statements in English Individualism about Earls Colne (and Kirkby Lonsdale in Westmorland, where Macfarlane’s work was much less well developed when he put it down) which appeared erroneous. By the early 1990s it seemed worth investigating these matters properly to try and achieve some resolution of still contentious issues. That this was possible was due to the publication of the raw materials on microfiche in 1980–83 with elaborate indices. In 1993 the University of Central Lancashire agreed to fund a project on the land market of Earls Colne and appointed Henry French to create a database of the copyhold land transactions in the court rolls. We had one advantage denied Macfarlane: cheap computing power, which allowed us to hold and analyse a mass of relatively simple data in an off-the-shelf database program. We gave outlines of our findings at a seminar in Cambridge in late 1995 and at the British Agricultural History Society Spring Conference in 1996. As it happens, things went into abeyance as we began work on Slaidburn and then new posts took us elsewhere. Our response to English Individualism appeared only in 2003 and, as we stated our disagreement with some of Macfarlane’s work there, we have chosen not to labour the point further here.² We want to record however that we would never have embarked on this project had Macfarlane and his team of researchers not gathered a terrific quantity of material on the village and made it available, first on fiche and most recently as an on-line resource. It is to their credit that our own trawls through the records have not turned up much that they missed. We hope that Macfarlane and his team will gain some satisfaction from our work, which completes some of their ambitions, albeit in a different form from any they envisaged.

In one sense this is a work of local history, but it is an exercise in what we might call problem-based local history in which we examine aspects of a single community’s development that have been the subject of debate amongst historians. Although some economic and social historians still look askance at the study of a single place, such intensive research remains the only way to address key questions and to test theoretical perspectives. To return to the themes of that introductory lecture, our study reflects both the personality of the place and the intellectual concerns of the authors. One of us is interested in land markets and the exercise of power in rural society. His partner has a longstanding interest in the seventeenth- and eighteenth-century ‘middle sorts’, their politics, officeholding and authority, and material culture. Our ability to pursue these themes is subject to the limitations of the records. Earls Colne is well documented in some respects. It has good court rolls that were generally well maintained. There is an estate archive for the period before 1640 (including a fine survey of 1598) but not thereafter. Macfarlane and his team were assiduous in gathering material from the national records in the Public Record Office and church court records in the Essex Record Office, and this produces some tasty litigation. However, any study is also shaped by what does not survive. The manorial courts did not exercise a debt jurisdiction, and this deprives us of the opportunity to study credit and debt relationships within the village. There is no seventeenth-century parish or poor law archive so we cannot do a great deal more than speculate about how the village ran itself or how it treated its poor. Being in Essex, it has few surviving probate inventories, which prevents us from examining agricultural change in the detail we might wish or locating our people in terms of their material culture. We lack the sort of early eighteenth-century conflict that gave Jane Pearson such a marvellous entry into the politics of the neighbouring village of Great Tey.³ We have thought of doing more. For a time, the publication of the 1854 rental on the Earls Colne website encouraged us to think of extending our analysis of landholding into the mid-nineteenth century. We are aware that there are areas that remain unexplored in this volume, such as the ownership of land by women. In the end we feel we have answered the core questions that we set ourselves and we can set down our pens confident that others will make up some of the deficiencies of this work.

Earls Colne thus becomes one of a small number of English villages that have been the subject of intensive study. In doing this, we have encountered three problems which are worthy of report. The first is the difficulty of distinguishing individuals. Whilst Earls Colne has a good number of surnames (unlike Slaidburn, where it sometimes seemed everyone was called Parker), separating individuals of the same name has been problematic, and in a few cases we remain unsure that our deductions are correct. The second follows from this. The use of databases means that the data is capable of almost infinite refinement as errors come to light or the data is reinterpreted. Figures drawn from the database are constantly shifting at the margins and this accounts for some of the discrepancies between the figures contained in this work and those we have published previously. Third, perhaps more than most historians of villages who use manorial records, we cannot be sure that the people named in the court rolls were actually resident in the village. In the second quarter of the eighteenth century, we can show that absenteeism and subtenancy were extremely common and must have given the village some of its character. We suspect that the situation was not so different a century before, but without superlative documents it is extremely difficult to penetrate behind the fiction that manorial tenants were resident. This leads us to perhaps our final assessment of the character of Earls Colne. Even in the sixteenth century, this was a complex, commercialised and mobile society on which the influence of London, Colchester and even Halstead was marked. The Earls Colne experience was probably, in some respects, an extreme one, and yet when we measure the turnover of land, we do not find it to be so different from that discovered in other, apparently slow-moving communities.

At the end of a long haul, we can acknowledge those friends and colleagues who made this work possible or took an interest along the way. At Central Lancashire, the original project was made possible by a number of colleagues including Alan Roff, Joe Pope and in particular Ian Levitt. Steve King and Andy Gritt were also about at the time and heard a great deal about the project. Our intellectual debts include those to Richard Smith at Oxford and now Cambridge, Keith Wrightson at Cambridge and now Yale, Mark Overton and Jane Whittle in Exeter and John Broad in London. A brief conversation with another old Earls Colne hand, Robert von Friedeburg, clarified a key question. At the very end of the project Jane Pearson and Tim Wales provided valuable references. It does no harm to repeat that Alan Macfarlane was the only begetter of this project, and we thank him for not only opening up Earls Colne but for the stimulation of his books, past, present and future. Finally, and most importantly, we thank Gill Hoyle for taking our ideas for the architecture of the database and making a reality of them, for reshaping the database as problems emerged, writing queries when our skills deserted us, and much more. More recently she has put up with both an author for whom Earls Colne seemed less a village in Essex than a distant galaxy, always receding and with a high red shift too, and bits of this book all over the house. Like so much more, it would not have been possible without her.

In the very last stages, we have incurred a debate to Dr Fiona Little, our copy editor, who brought polish and conistency to a manuscript assembled over many years and attempted to save us from our worst errors. And Richard Hoyle offers his thanks to the British Academy for the award of a Research Readership in 2004–6 which allowed the final revisions to the text be made and the whole book seen through the press with greater expedition than would otherwise have been possible.

Exeter and Fulwood

Notes

1 E. Hockliffe (ed.), The diary of Ralph Josselin, 1611–1683 (Camden third ser., 15, 1908); A. Macfarlane, The family life of Ralph Josselin, a seventeenth-century clergyman: an essay in historical anthropology (1970); Josselin, Diary. A new account of Josselin by John Walter has recently appeared in the Oxford Dictionary of National Biography (2004).

2 H. R. French and R. W. Hoyle, ‘English Individualism refuted – and reasserted: the land market of Earls Colne, Essex, 1550–1750’, Economic History Review 56 (2003), 595–622.

3 J. Pearson, ‘Threshing out the common in community: the Great Tey riot of 1727’, Rural History 9 (1998), 43–56.

1

The character of rural change

In the years covered by this book, the English population grew from 2.5 million to 5.1 million. Of those people, about one in twenty lived in towns in the middle of sixteenth century; by 1750 the proportion had increased to about one in nine.¹ Although London was undeniably a great eighteenth-century European city, and a dozen or more English towns were significant urban centres in the European perspective, England remained predominantly rural. The majority of its people lived in the countryside, whether in villages or small towns: they lived and breathed the annual cycle of the seasons. Even those who lived in large towns and the metropolis were within walking distance of green fields and, in the case of London, extensive heathland. Within towns themselves, areas of gardens and pasture closes still survived. Men and women might move to towns after working in the countryside: some might return there, even annually to help with hay making or harvest, perhaps at the end of their lives to retire. Even those who turned their backs on the countryside must have felt its influence, season by season: by the foodstuffs available, by their price.

Historians divide up History for their convenience, whether by period or subject. Whilst all early modernists acknowledge the significance of the town as a developing sector, most early modern economic and social history is ultimately rural history. Not only did most people (and certainly the political elite) live in the countryside, but the dependence of town on countryside for its food was total. Hence no apologies are needed for offering a new account of a single English village between 1550 and 1750, especially one grounded in the classic debates over land, agriculture and the character of rural society. It is not only that early modern society was rooted in the land. The significance of these debates also rests on a long historiographical tradition, which argues for the peculiarity of English landholding arrangements and asserts that because of them, England was the first industrial nation. The notion that English agricultural practices and institutions were superior to those of France can be traced back at least as far as Arthur Young in the late 1770s. These same ideas were adapted and developed by Marx, and the comparison between England and France – one advanced, one backward – remains at the heart of debates over the transformative role of ‘agrarian class structure’.

The usual formulation of the argument is quite simple. At some point, and an extended period rather than a single moment is meant, England ceased to have a peasantry. Instead of a countryside dominated by landholders whose farming was primarily for the provision of their own households, a class of farmers emerged whose farming was on a much larger scale than any peasant’s and who farmed primarily to produce commodities for markets, which were usually urban and often distant. They rented the land they needed from landlords, brought working capital and technical knowledge to the land and employed labour in the quantities and combinations they required. By the time of the French Revolution, the classic tripartite division of English rural society between the landlord, the farmer and the hired wage labourer was well established. In the conventional historiography, the fifteenth century marked a transition between peasant and farmer, subsistence producer and commercial producer, custom and contract, communal and individualistic farming, medieval and modern. In France this transition was delayed until after the Revolution. Pre-Revolutionary French rural society remained a peasant economy, in which subsistence farming still predominated, often carried out within institutional frameworks such as sharecropping that the English found backward and oppressive. The key distinction was farm size. Large farms implied hired labour rather than family workforces. Large farms supplied distant markets: small farms served first to fill the stomachs of their peasant proprietors and their households, and only then to sell surpluses in the neighbouring towns.

It is obvious that neither England nor France conformed uniformly to these characteristics. If there were still areas in late eighteenth-century England in which farmers had some of the traits of peasants, equally there were parts of sixteenth-century France which were as economically and commercially developed as anywhere in England two centuries later. Yet there is a degree of truth in both caricatures. In southern and Midland England, and in East Anglia, there were substantial farms in existence by the late fifteenth century, but this was hardly typical of the British Isles as a whole. In some areas of France farms remained predominantly small, land continued to be traded in small fragments of strips, enclosure of open fields had barely begun and agriculture remained peasant even in 1800. The backwardness of agriculture, low productivity and localisation of marketing in France made for occasional famines even in the second half of the eighteenth century. But this was not the totality of the French experience.²

This book aims to explore these general questions of land, landlordism and agrarian capitalism. Through a detailed examination of a single village in north Essex, Earls Colne, it asks how rural society operated and how land was used in the two formative centuries after 1550. Before turning to that study, though, we wish to review three influential but contrasting explanations of change over those centuries. One, Marxist in its inspiration, was re-formulated most recently by the American historian Robert Brenner. The second, very different interpretation, is Alan Macfarlane’s hypothesis about English Individualism which explicitly rejects the idea of ‘the Great Transformation’. The third view, espoused by English rural historians over the past century, charts the decline of the small owner-occupying farmer between the sixteenth and eighteenth centuries.³

I

Brenner’s thesis was an attempt to adduce a single unifying explanation of the differential patterns of change in Europe in the key period between 1300 and 1800.⁴ By the latter date, England had broken through into agrarian capitalism, marked notably by the tripartite division in the countryside between landlords, tenants and labourers. France remained backward with strongly entrenched peasant property rights which acted as a brake on progress, whilst in Eastern Europe serfdom remained common or had been abolished only in the previous half-century. Brenner was therefore concerned to explain why the transition from feudalism to capitalism happened earlier in England than elsewhere in Europe. Inevitably, he expressed dissatisfaction with the prevailing orthodoxies – which he characterised as being theses employing commercialisation theories and demographic theories respectively – suggesting that none of them were capable of offering satisfactory all-embracing explanations. Indeed, Brenner’s strictures were particularly aimed at demographic explanations of change for, as he observed, apparently similar demographic histories after the Black Death produced quite different outcomes in England, France and Eastern Europe. There therefore had to be another variable that determined the outcome of the processes of change. For Brenner this was ‘agrarian class structure’.

… crudely stated, it is the structure of class relations, of class power, which will determine the manner and degree to which particular demographic and commercial changes will affect long-term trends in the distribution of income and economic growth – and not vice versa.⁵

And

Simply stated, it will be my contention that the breakthrough from ‘traditional economy’ to relatively self-sustained economic development was predicated upon the emergence of a specific set of class or social-property relations in the countryside – that is, capitalist class relations. This outcome depended, in turn, upon the previous success of a two-sided process of class development and class conflict: on the one hand, the destruction of serfdom; on the other, the short circuiting of the emerging predominance of small peasant property.⁶

Brenner therefore wished the explanatory tool of class relations to supersede demographic explanations of economic change in the same way as demographic explanations came to discredit older commercial explanations. Whilst Brenner criticised Postan and Le Roy Ladurie for ‘construct[ing] new models largely by substituting a different objective variable, population, for the old discredited one, commerce’, he is open to the same criticism, for seeking an exclusive explanation of change rather than acknowledging that a particular outcome could be due to the impact of a number of variables – including population, access to markets and the possibilities for agrarian capitalism, the balance of class and tenurial relations in the countryside and the attitude of the state to agrarian change.⁷ Such a view allows us to move away from the clumsy device of comparisons based on the experience of entire states (or the whole of an undefined East-Elbian Europe). It allows us to see, for example, that the conjunction of forces might be different in Atlantic as compared with Mediterranean France. It also allows us some hope of explaining why inheritable customary tenancies became established in eastern England but not in western England. If we see the outcome as being determined by interacting forces rather than a single ‘underlying’ force,⁸ then it also raises the possibility that the character of agrarian class relations might be determined by the character of agrarian capitalism rather than vice versa. This holds out the prospect of a micro-topography of rural change, which was alien to Brenner’s state-based approach (although, ironically, the state played a relatively small part in his thinking).

Criticism of Brenner’s thesis can proceed at several different levels. At the high theoretical such criticism functions as a part of the theology of Marxist thought. On its own terms, it can be disputed as a general explanatory theory of historical change in Europe. At the level of individual states, it can be argued that Brenner misspecified the character of change in each state. A proper empirical understanding of agrarian change is undoubtedly necessary because any theory has little explanatory force if it is not in tune with the historical evidence. On the other hand, arguments disputing Brenner’s account by reference to the history of a particular place are also to some degree beside the point. Brenner’s work is a study in comparative history. Even so, it has to be asked whether it is possible to write an account of English agrarian change in which the class dimension of agrarian history is the exclusive motor. With some reluctance, we conclude that it is not.

Brenner’s account of developments within England is as follows. Pre-Black Death medieval society was trapped in a cul-de-sac of economic development due to the weight of seigniorial extraction of rent. Postan is cited with approval for his estimate that as much as ‘fifty per cent of the unfree peasant’s total product was extracted by the lord. This was entirely unproductive profit, for hardly any of it was ploughed back into production: most was squandered in military expenditure and conspicuous consumption’.⁹ Lords were uninterested and peasants unable to invest or introduce new techniques to increase productivity (although as Brenner shows, some at least were available). Lords tended to increase their income by increasing the rent burden placed on their unfree tenants. This burden produced a crisis of peasant productivity: peasants were unable to afford adequate numbers of animals (and thus manure), which resulted in declining arable yields. ‘The crisis of productivity led to demographic crisis, pushing the population over the edge of subsistence’.¹⁰

After the disaster of the Black Death (which Brenner sees as arising out of the crisis of feudal society rather than being an autonomous factor), there was a struggle between lords and tenants – and not simply in England – over control of people and land. This turned on two elements: the lords’ ability to maintain serfdom, and the peasantry’s ability to secure hereditary property rights in their land. In the second half of the fourteenth century lords attempted to buttress their position by controlling peasant mobility and wages, but these strategies failed in the face of peasant truculence and revolt and by 1400 serfdom was in decline. This was a general outcome in Western Europe although achieved by different routes. Thereafter peasant property rights evolved in divergent ways in different areas. The position of the English peasantry in the mid-fifteenth century was apparently strong, but ultimately in Brenner’s analysis they failed to establish secure property rights in their land. Lords were able to claw back their position in one of two ways. First they could transfer vacant peasant tenements to their demesne (demesne in the sense of land the lord could lease out, rather than land he chose to farm directly). Second, they could expel those tenants who remained by demanding entry fines at levels they could not meet. These practices produced their own reaction by peasants in the early sixteenth century. In Brenner’s perspective, the revolts of 1536 (in the North) and 1549 (in East Anglia) were substantially about the ‘security of peasant tenure, in particular the question of arbitrary fines’.

With the peasant’s failure to establish essentially freehold control over the land, the landlords were able to engross, consolidate and enclose, to create large farms and lease them to capitalist tenants who could afford to make capital investments. This [capital investment] was the indispensable precondition for significant agrarian advance …

Lords were therefore able to continue to nibble away at customary property rights so that by the end of the seventeenth century, English landlords ‘controlled an overwhelming proportion of the cultivable land – perhaps 70–75 per cent – and capitalist class relations were developing as no where else’.¹¹ The development of contractual tenurial arrangements allowed capitalist tenants to farm in partnership with their landlords: they were able to invest their capital without fear that landlords would confiscate their profits. Hence they had the confidence to engage in technical innovations of a kind necessary but unachievable in the early fourteenth-century world. With these investments and innovations, agrarian capitalists were able to achieve higher levels of productivity than the surviving smaller yeoman farmers could. In turn, the high levels of agrarian productivity achieved during the eighteenth century allowed England to support a high proportion of its population in non-agrarian occupations, to develop the domestic market for manufactured goods and to escape the cul-de-sac of early fourteenth-century developments.

By contrast, the French peasantry succeeded in establishing a freehold claim over their land. Moreover, they were supported in this by the French state, which competed with the French landowning classes for the profits of agriculture, the state drawing taxation revenue from them, the landowners rent. The success of the French peasantry was connected directly to the failure of French landlords who, Brenner believed, would have wished to expropriate the land of their peasant tenants (‘for this was the only way they could position themselves to raise rents from their land’) but who were prevented from doing so by peasant revolt.¹²

In the first version of his thesis, Brenner offered a clear-cut and exciting view of change and one, which if qualified in the subsequent ‘Brenner Debate’, remains central to his view of developments in England. Despite this, it must be questioned whether anything happened quite in the way he supposed.

First it is unlikely that recent historians would accept his account of the crisis of the fourteenth century. It can be argued that the English countryside had probably come close to the limit of the people who could be supported with the available technology, but perversely it also seems that where market demand provided a stimulus, advanced cropping methods were adopted. Throughout the country, lords on their demesnes (if not peasants as well) tailored their agriculture to take advantage of the innate strengths of the locality, whether in climate, landscape or access to markets. Medieval agriculture was not simply backward and homogenous: it was also specialised and market-orientated.¹³ So, in Dyer’s assessment, pre-Black Death peasants

produced for the market, yet practised self-sufficiency where possible; they made technical innovations, whilst continuing with many traditional practices; they were consumers, but on a modest scale; they developed a lively land market, but avoided extreme polarisation: they had to pay more to their lords, but were still able to keep a proportion of their surplus. The final paradox of the peasantry concerns the collective nature of their agriculture, while they retained a high degree of individual autonomy.¹⁴

In current thinking, the appearance of plague in Europe is not seen as a crisis arising from overpopulation or the excessive extraction of feudal surplus. (Indeed, lords may not even have been terribly successful in securing rent from their servile tenants. It has been compellingly argued that serfs were protected from the weight of free market rents by their customary status.)¹⁵ Rather, it was an autonomous event, an unexpected and unpredicted variable. There may be greater merit in seeing the crisis of 1315–22 as a Malthusian event in which an overpopulated countryside was culled by harvest failure. However, it must be remembered that the Great Famine was brought about by a combination of harvest failure and cattle disease, compounded by external war and civil disturbance. It too has something of the character of an autonomous crisis.¹⁶ Then there is the protracted population decline of the later fourteenth century and the fifteenth century, which, given his antipathy to demographic explanations, Brenner downplayed. However, it would now be held that landlords, rather than being the masters of the situation, were at the mercy of adverse demographic conditions, and that their estate policies were essentially reactive. Where villages were deserted in the fifteenth century and sheep farms created in their place, it would now be argued that lords were seeking an income from land that was already falling out of arable cultivation. Certainly a few landlords cleared villages whose populations were already shrinking, and which may have had difficulty functioning as arable, open field communities, but no one today accepts that the early Tudor rhetoric of deliberate village clearance applies generally to depopulation in the fifteenth century. On the other hand Brenner was right to suppose that depopulation and desertion of villages resulted in a transfer of land from the customary to leasehold sectors. It is most unlikely that any of this land was ever held by custom again because the process of depopulation was never reversed. Brenner’s particular reading of this, that it was a deliberate policy by lords to transfer land between sectors because of the innate advantage of contract over custom, cannot be sustained. In many places, the adoption of leasehold in place of copyhold seems to have been no more than a stopgap, an interim form of tenancy until renewed demographic stability allowed customary estates (with their implication of inheritance) to be re-established.¹⁷

Secondly, Brenner was prone to downplay the success of the English peasantry in establishing peasant property rights. The commonest customary tenure, copyhold, comes in two forms, which need to be carefully distinguished as they imply very different experiences. What was common to both was that the tenant held his or her land by a copy of the court roll; that he was admitted in the manorial court; that he paid a fine (which might be a substantial sum) on his entry into the tenement and an ancient customary rent which was fixed and so increasingly notional. A rising proportion of the lord’s rent came at the beginning of the tenant’s tenancy from his fine. In copyhold of inheritance, which is found in eastern England but also in Lancashire and Yorkshire, the tenants had the right to inherit and sell their tenements, paying a fixed rent to the lord and fines which fell short of the market value of the land.¹⁸ Lords were compelled to recognise the rights of the tenants to what was, de facto, a perpetual tenancy, and their freedom to exploit their estates was correspondingly restricted. In copyhold for lives (found in western England), the tenants held for the lives of named individuals (often three in succession), after which the tenancy ended. On the death of a life, lords were entitled to solicit bids to extend the tenancy. Sitting tenants could buy a new life or lives to extend their family’s interest in the tenement; but lords could also accept bids from strangers who could buy an interest ‘in reversion’ to give them possession after the death of the existing lives. Lords were (in effect) entitled to auction tenancies to the highest bidder, tenants having no right of inheritance although, de facto, a tenement might remain in the same family for several generations.¹⁹

In northern England a further form of customary tenancy emerged in the mid- and later sixteenth century in the face of landlord opposition. This was tenant right, which, in many places, was established by either judicial decision or agreement between the lord and tenants. This too served to limit the lords’ future profits and their ability to shape their estates.²⁰

Recent work has demonstrated that the disturbances of 1536–37 in the north-west and those of 1549 in eastern England were much more agrarian and far more concerned with the defence of ‘peasant’ property rights and their farming economy than was appreciated when Brenner wrote. The discovery of an elaborate petition drawn up in Norfolk in 1553 makes explicit the depth of conflict in at least some parts of the East Anglian countryside and the pressures faced by customary tenants.²¹ Whilst these disturbances were unsuccessful, in the short run they do seem to have shaped the minds of those who lived through them and prompted hostility to tenurial change in the following decades. This may well have been fatal to the landowning interest, allowing customary rights to become entrenched and correspondingly hard to eradicate.²² Moreover, we have not paid enough attention to the paradox that it was in the areas of revolt in 1549, in eastern England, that customary tenure was most entrenched. In the west, the zone of copyhold for lives, peasant property rights were far less well developed, but there was no agitation on the part of the peasantry to secure them. In this light, mid-Tudor rebellion was about retaining rights already established rather than attempting to secure them for the first time. After this date there seems to have been a general acceptance of the copyholder’s right of inheritance in eastern England, and we must conclude that in this region, English peasants were more successful in establishing customary rights than Brenner allowed. Earls Colne falls into this zone. After 1550 there was no challenge to copyhold (of inheritance) in the manor, not even an attempt to reclaim ‘demesne copyholds’. The rate of fines increased over time, but history of the village in the sixteenth and seventeenth centuries is the story of the atrophy of the lord’s rights.²³

A third criticism of Brenner is that he made too great a claim for the ability of lords to raise fines and so expel tenants. The reality seems to be that on copyhold of inheritance, fines were generally notional at one or two years’ rent until the 1570s, and there is no compelling evidence that extortionate copyhold fines were a problem for tenants in the early or mid-sixteenth century.²⁴ In this tenants who held by copyhold of inheritance may have had a degree of privilege, for there are signs that the fines demanded on copyholds for lives and the rents asked for subtenancies were rising by the 1540s.²⁵

Tenants could also call on more aid from the state than Brenner was willing to acknowledge.²⁶ There is a long, technical and as yet inconclusive discussion of the extent to which copyholders would receive support from the common law courts in the late fifteenth century.²⁷ Contemporaries could side-step this by making appeals to the equity courts and direct to the king, but they did not do so in large numbers. Wolsey took the initiative over enclosures, investigating their scale in 1516–18 and then, over the following decade, holding judicial hearings at which he attempted to compel landowners to restore depopulated pasture to tillage. Subsequent commissions into enclosures were held intermittently, particularly at moments of high prices and tension in the countryside. Tenants faced with enclosing landlords could also complain to the equity courts. Throughout the century and a half after 1500, the state offered avenues along which tenants could pursue oppressive landlords. It cannot be maintained that the state was uninterested in the condition of its peasantry.

The objection is often made that it matters less that the state was willing to hear grievances than whether tenants were able to secure a hearing before the courts. The evidence here is quite clear. Tenants wishing to protect their rights at law had no difficulty finding counsel, nor were the costs outside the capacity of even single tenants to afford. In 1585 an Essex landowner, William Clopton, complained to the Master of the Rolls that he had been ordered by Chancery to admit a tenant called Roberts to a copyhold. Roberts would only tender 10s. for his fine and had departed, telling Clopton that he would pay no more and that he had another £40 to spend at law against Clopton. Clopton thought that the suit had cost him (Clopton) £50 or £60 so far, as he struggled to secure a fine of £13 6s 8d.²⁸ It is a more telling objection that tenurial change in the countryside could happen without a whisper reaching the courts if a landlord was able to persuade his tenants to accept change. Hence there is no doubt that many tenants were cajoled into surrendering customary estates and accepting leases. From the lord’s point of view, this could be just a means of taking a new fine from a tenant, a way of anticipating future income. The possibility of increasing that future income may have been a secondary consideration. At least one lord claimed that he had persuaded his tenants to surrender their customary estates by offering them cheap leases and standing a loss on them until they had to be renewed twenty years later.²⁹ Other lords may have preyed on their tenants by suggesting that their copies were of doubtful standing: for both lord and tenant, the advantage of the lease was that it delineated each other’s interest. In addition, a lease might not extinguish the reality of tenant inheritance: tenants could expect, with a benign landlord, to have the first option on their tenement on any re-leasing.

The area under copyhold was also reduced by the operation of the land market. Firstly, the lord could sell the freehold of the copyhold (which was vested in the lord) to the copyholder: once the two rights had been brought together in single ownership, the customary right was extinguished and the copyholder became a freeholder. Secondly, custom could disappear when the lord bought the copyhold: again, the copyhold was extinguished. It made greater sense for a lord to buy up copyholds and convert them to leaseholds than it did for a copyholder to advance what might be a sizeable sum to be free of increasingly small rents and intermittent fines. How frequently this was done is unknown: but the result of the strength of peasant property rights in the sixteenth century was that substantial areas of copyhold of inheritance survived in the nineteenth century.³⁰ Despite its interest as a curiosity reflecting the freezing of landlord–tenant relations into a particular configuration, it is not clear why the survival of copyhold should have inhibited capitalist development, because copyholds could be bought, sold and let just like any form of freehold property. The development of large farms was not determined by tenure. Nor, where lords turned copyhold into leasehold by purchase and leasing, is there any reason to believe that they took the opportunity to reshape these tenements into larger holdings.

Some landlords were certainly farming on their own account in the sixteenth century and sought to incorporate tenant land in their demesnes. This is explicitly complained of in the Norfolk petition of 1553. However, a distinction needs to be drawn between lords who maintained farms for the provision of their households and those who were engaged in large-scale agriculture – especially sheep rearing – for the market. One suspects that many of those who embarked on the latter course were gentry who found they could not live