A usable past for commoners

We just love histories of history. Reviews in History recently carried a review by Brodie Waddell of Andy Wood's The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge UP, 2013). Waddell writes:

Much of the book revolves around common rights and agrarian custom. As Wood shows, a ‘usable past’ was absolutely central to the economic lives of the vast majority of the population who lived and worked on the land as tenants or smallholders. Their subsistence was often dependent upon precise – if occasionally selective – memories of customary rights to grazing, fuel and other resources. In 1570, for example, the tenants of Cockermouth were satisfied because ‘albeit their Fermeholds were small the Comons were great’ (p. 158). Yet, in most cases villagers only had access to such ‘Comons’ because they could prove that they had used them for ‘time out of mind’ and, according to Wood, their ability to deploy this ‘useable past’ changed substantially between the 14th and 19th centuries. The aftermath of the Black Death left the English peasantry in a strong position with landlords desperately needed tenants and labour. It was in this period, he argues, that the peasants won the indulgences that would soon, through the power of ‘social memory’, be transmuted into ‘customs’ and thus into rights or entitlements. In the early modern period, tenants defended these customs assiduously through increasingly sophisticated use of documentary evidence and the law courts. However, Wood also demonstrates how customs that favoured the tenantry were under attack. Lords sought to harness rents to inflation and seize exclusive control of common lands. In the wider culture, this manifested itself as a forceful discourse of ‘improvement’. Similarly, Wood suggests there was a hostility to custom amongst godly humanists. Thomas More, for example, who is often quoted as a defender of the commons against the lords’ man-eating sheep but who was typical of many humanists in criticizing those who justified a practice by citing its antiquity (p. 123). Worse still, in the 17th century, gentry attitudes were ‘hardening’ even further and there was an apparently ‘decisive shift’ against custom and against commoners in the central law courts (pp. 126, 160). The power of popular memory was being eroded. According to Wood’s chronology, it was in the late 18th century that the final break came. Enlightenment ideology and capitalist demands for labour discipline led to an ‘epochal shift’ towards a ‘new order’ in which custom had no authority (pp. 314, 350-2). However, even then the memory of the people was not extinguished. In the 19th century, as Wood acknowledges, common rights remained important for many working-class families and a strong sense of the past informed radical agrarian politics. The chronology presented in this book is thus careful and nuanced, even if the overarching narrative is one of struggle and loss.

EP Thompson on (forest) law in history

Kurt Newman at US Intellectual History Blog had an interesting post the other day on the place of legal history in the thought of Marxist historian EP Thompson. The post includes a long quote from Thompson's Whigs and Hunters (1975), arguing that law (here, specifically the early eighteenth century English law against commoners' traditional uses of the forests) functioned as more than just a mystifying tool of (upper-)class power. Some selections:

To be sure, I have tried to show, in the evolution of the Black Act, an expression of the ascendancy of a Whig oligarchy, which created new laws and bent old legal forms in order to legitimize its own property and status; this oligarchy employed the law, both instrumentally and ideologically, very much as a modern structural Marxist should expect it to do. But this is not the same thing as to say that the rulers had need of law, in order to oppress the ruled, while those who were ruled had need of none.

What was often at issue was not property, supported by law, against no-property; It was alternative definitions of property-rights: for the landowner, enclosure; for the cottager, common rights; for the forest officialdom, ‘preserved grounds’ for the deer; for the foresters, the right to take turfs. For as long as it remained possible, the ruled––if they could find a purse and a lawyer––would actually fight for their rights by means of law; occasionally the copyholders, resting upon the precedents of sixteenth-century law, could actually win a case.

When it ceased to be possible to continue the fight at law, men still felt a sense of legal wrong: the propertied had obtained their power by illegitimate means. Moreover, if we look closely into such an agrarian context, the distinction between law, on the one hand, conceived of as an element of ‘superstructure,’ and the actualities of productive forces and relations on the other hand, becomes more and more untenable.

For law was often a definition of actual agrarian practice, as it had been pursued ‘time out of mind.’ How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law…

...people are not as stupid as some structuralist philosophers suppose them to be. They will not be mystified by the first man who puts on a wig.