Historically most rights of common were appurtenant to particular plots of land, and the commoner would be the person who, for the time being, was the occupier of a particular plot of land (or in the case of turbary, even a particular heath). Some rights of common were said to be in gross, that is, they were unconnected with ownership or tenure of land. This was more usual in regions where commons are more extensive, such as in Northern England or the Fens, but also included many village greens across England and Wales. Most land with appurtenant commons rights is adjacent to the common or even surrounded by it, but in a few cases it may be some considerable distance away.
Example rights of common are:
On most commons, rights of pasture and pannage for each commoner are tightly defined by number and type of animal. For example the occupier of a particular cottage might be allowed to graze fifteen cattle, four horses, ponies or donkeys, and fifty geese–the numbers allowed for their neighbours would probably be different. On some commons (such as the New Forest and adjoining commons), the rights are not limited by number, and instead a marking fee is paid each year for each animal turned out.
Pasture commons are those where the primary right is to pasture livestock. In the uplands, they are largely moorland, on the coast they may be salt marsh, sand dunes or cliffs, and on inland lowlands they may be downland, grassland, heathland or wood pasture, depending on the soil and history.
These habitats are often of very high nature conservation value, because of their very long continuity of management–in some cases for many hundreds of years.
In the past, most pasture commons would have been grazed by mixtures of cattle, sheep and ponies (often also geese). The modern survival of grazing on pasture commons over the past century is uneven.
Surviving commons are almost all pasture. In earlier times, arable farming and haymaking were also included in the commons system, with strips of land in the common arable fields and common haymeadows assigned annually by lot. When not in use for these purposes, such commons were also grazed. Examples include the common arable fields around the village of Laxton in Nottinghamshire, and a common meadow at North Meadow, Cricklade.
The legal position concerning common land is confused. Most commons are based on ancient rights which pre-date the established law and even the monarchy. The exact rights which apply to individual commons may be documented but more often are based on long-held traditions. The UK government tried to regularise the definitions of common land with the Commons Registration Act 1965, which established a register of common land. However numerous inconsistencies and irregularities remain.
Prior to the Erection of Cottages Act 1588, an Englishman could build his house on common land, if he could raise the roof over his head and have a fire in the hearth between sunrise and sunset, and claim the dwelling as his home.
Registered commons often abut each other, so what may appear to be a single large common may in fact consist of several commons with no visible boundary between them – these may for example be in different parishes. The commoners will have reciprocal rights over each other's commons.
The maintenance of fences around a common is the responsibility of the occupiers of the adjacent enclosed land, not (as it would be with enclosed land) the responsibility of the owners of the grazed livestock. This can lead to difficulties where not all adjacent occupiers maintain their fences properly.
The act of transferring resources from the commons to purely private ownership is known as enclosure, or (especially in formal use, and in place names) Inclosure. The Inclosure Acts were a series of private Acts of Parliament, mainly from about 1750 to 1850, which enclosed large areas of common, especially the arable and haymeadow land and the better pasture land.
It is often thought that a common is somehow owned by everyone, or at least by the community in some sense. While that may have been true more than a thousand years ago, when waste would be used for grazing by the local community and over which there would not be, nor would there need to be, any particular limit or control of usage; since at least late Anglo-Saxon times, the right to exercise a right of common has been restricted to a commoner.
The use of commons rights were carefully controlled, and so in practice commons did not usually suffer from the tragedy of the commons. For example, in response to overgrazing a common would be stinted, that is, a limit would be put on the number of animals each commoner was allowed to graze. These regulations were responsive to demographic and economic pressure – rather than let a common be degraded, access was usually restricted even further.
Commons are often crossed by public roads, and this leads to another problem on modern pasture commons where grazing survives (or is to be reintroduced). Historically, the roads would have been cart-tracks, and there would have been no conflict between their horse-drawn (or ox-drawn) traffic and the pastured animals, and no great difficulty if pastured animals wandered off the common along the roads. However, these roads now have fast motorised traffic which does not mix safely with animals. To continue (or restore) grazing, such roads may need fencing or at least blocking at the edge of the common with cattle grids – however permission for fencing on a common is a bureaucratic process which can be interrupted or prevented by objectors (see neglect of commons below).
Some commons are managed by Boards of Conservators for the wider public benefit. The Commons Act 2006 provides for the establishment of Commons Councils to manage common land. Those provisions of the Act are not yet in force, but the Department of the Environment, Food and Rural Affairs (DEFRA) plans to bring them into force in the spring of 2009. The Commons Councils established under the Act will have a similar role to that of existing Conservators.
Royal Forests are legally separate from ordinary commons, but most have a similar commoning system.
After the Second World War, most lowland commons became neglected because commoners, who could find better-paid work in other sectors of the economy, largely stopped exercising their rights. When open habitats are no longer grazed they start to develop scrub and then dense woodland, losing the grassy or heathland vegetation which may have occupied the land continuously for many centuries.
In 2007 Ashdown Forest (better known as the location for the fictional Hundred Acre Wood inhabited by Winnie-the-Pooh and his friends) was the centre of a dispute between some local residents and the forest's governing body, the Board of Conservators (who are working on behalf of the owners, East Sussex County Council). The Board wish to return the area to as it was before the Second World War, a blend of heath and woodland, lost because of
the advance of woodland into traditional heath areas after the Second World War, when returning soldiers gave up trying to scratch a living out of the forest. Whereas once hundreds of commoners used the wood and heath–their livestock obliging by chewing down young tree shoots–today there is only one commercial grazer.
The residents complain that the results look like a First World War battle field. This is not a problem restricted to this common, but according to Jonathan Brown writing in the Independent on 21 April 2007 "similar debates are raging between locals and the authorities at other heathland areas in the New Forest and Surrey".
Joachim Radkau assumes the treatment of the commons in the scientific literature of the 18th and later centuries as politically motivated to hasten the Enclosure Movement. The omnipresent examples of "Klapprige Allmendekhe" (thin cows of the Commons) in the writings of early agricultural scientists were used to modernize existing common land rule towards a more capitalized and ownership based agriculture. In Germany, based on the English experience, Albrecht Thaer suggested a similar approach. The Allmende or Commons were used to establish experts rule in agriculture, which had before been based on an empiric and practical approach without much interference of trained staff. Radkau assumes that the real Commons estate - meadows and grassland are not at all exhausted but very rich from an ecological standpoint. Neither the old or new use of the Tragedy of the Commons, e.g. of Garrett Hardin who used the example to ask for management of global common goods (asking for an 'kodiktatur', ecodictatorship) were in line with the state of real "Commons". The latter are useful examples of sustainable agriculture and not a failure at all.
Common land, an English development, was used extensively in England and Wales and in many former British colonies, for example in Ireland and the USA. All land in England and Wales is owned by someone, and in most cases that person has all the rights of exclusive ownership, to use the land as they wish. However, for common land the owner's rights are restricted, and other people (usually local residents) have some rights over the land. These people are known as commoners–the landowner retains other rights to the land, such as rights to minerals and large timber, and to any common rights left unexercised by the commoners. For example, there are 500 practising commoners in the New Forest, England.
Today commons still exist in England, Wales, Scotland and the USA, although their extent is much reduced from the millions of acres that existed until the 17th century. The Allemansrtten(Freedom to roam) is still in use in in Scandinavia and a concept similar to the Commons ('Allmende', the German expression) is still in use in the alpine countries, especially in Switzerland. Similar common property regimes are to be found as well in southern Asia (e.g., India and Nepal) and Latin America (e.g., Mexico, see ejido).
The overwhelming majority of areas of common land in lowland Scotland and the Highland fringes were commonties. A commonty is an area of land where the rights of property or use are shared by two or more neighbouring (though not necessarily adjacent) landowners. They are not therefore truly 'common' land in the sense that anyone can use them, and this distinction meant that it was often very easy for commonties to be divided between landowners after a series of Acts permitting this were passed by the Parliament of Scotland in the 17th century, most notably the 1695 Act for the Division of Commonties. As a result the number of commonties declined very rapidly in the 18th and 19th centuries.
Common mosses were areas of bog where the right to dig peat for fuel were shared by neighbouring landowners. They are therefore similar to commonties and most commonties included a common moss. However the difficulties of dividing such wet areas meant that they were left out of many commonty divisions and many common mosses may still survive, un-noticed because of the decline of peat-cutting.
Run rig is a system of agriculture involving the cultivation of adjacent, narrow strips of raised land (rigs). Traditionally adjacent rigs would be used by different farmers and the rigs were periodically re-allocated between them. The system was common throughout Scotland until the 18th century, but survived longer in the Western Highlands, where runrig was often associated with an adjacent area of common hill grazing which was also shared by the same farmers as the runrig.
Scattalds are unique to Shetland and are based on udal law, rather than the feudal law that predominated in the rest of Scotland. However, Scattalds are very similar to commonties and many were divided under the same 1695 Act that allowed for the division of commonties.
Crown Commons were areas of land held directly by the crown and therefore the common rights that could be used were rights of use rather than rights of property. Unlike commonties, the rights to use crown commons (for example for grazing livestock) were available to anyone, not just the neighbouring landowners. There are no crown commons left in Scotland; those that survived into the 20th century were taken over by the Crown Estate.
Greens were small areas of common land near a settlement where livestock could be kept overnight, markets held and other communal activities carried out. Sometimes they were adjacent to drovers' roads near river crossing points or overnight accommodation. Most were genuinely common land with only the Crown holding any title to them. A loan was a common route through private property allowing access to an area of common land or other public place. As the traditional uses of greens and loans declined, they were often absorbed by the neighbouring landowners.
Burgh commons were areas of common land where property rights or privileges of use were held by the burgh for their inhabitants. They could include any of the other six types of common land and were sometimes shared with landowners outside the burgh. By the early 19th century, most burgh commons had been appropriated by the wealthy landowners who dominated burgh councils, and very few have survived.
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