by Michael Smith (Veshengro)
The Commons were not just willy-nilly for everyone's use, however. It “belonged” to the Commoners and there were also subdivisions of those, such as the Estovers.
In English law, estovers is wood that a tenant is allowed to take, for life or a period of years, from the land he holds for the repair of his house, the implements of husbandry, hedges and fences, and for firewood.
The Estovers, in more modern times, had the right to take, by hook and by crook, firewood from commons and also woodlands of estates, and only for their own use, theoretically, and not for sale as a commodity.
The Commons, as found in Britain, are very similar to the system if the iriai in Japan. "Commons," like iriai, is a word which, in pre-industrial times, was used to designate certain aspects of the environment.
People called commons those parts of the environment for which customary law exacted specific forms of community respect. They called commons that part of the environment which lay beyond their own thresholds and outside of their own possessions, to which, however, they had recognized claims of usage, not to produce commodities but to provide for the subsistence of their households.
The customary law which humanized the environment by establishing the commons was usually unwritten. It was unwritten law not only because people did not care to write it down, but because what it protected was a reality much too complex to fit into paragraphs. The law of the commons regulates the right of way, the right to fish and to hunt, to graze, and to collect wood or medicinal plants in the forest.
Many of the commons in Britain was, more or less, done away with by the Enclosure Act(s) or Inclosures Act(s) – depending on the spelling but meaning the same – where the people lost their rights to the use of the commons.
While there are still Commons in Britain they are no longer, in general, available to people as they once were and most of them are today “public open spaces” which are, like parks, private property of the local authorities “with public access granted” and thus are no longer the commons of old where the local people, especially the designated commoners, had the right to pasture, pannage, the right to take firewood “by hook and by crook”, etc. today the gathering of firewood, even for one who would be an estover, or the gathering, for own use, of wild edibles, is governed by bylaws and general illegal, as any such activity would require the permission of the landowner, under law, who today would be the local authority and rarely such permission would ever be granted.
While Keepers and Rangers often will not concern themselves with someone taking some herbs, wild edibles, mushrooms, etc., it still means that, theoretically, they could and the police also might. This also applies to hedgerows and other such areas.
In fact foraging is a very gray area, nowadays, unlike in the days of old, and care has to be exercised as not to clash with the law, unfortunately.
What we need is to bring the commons back into true common ownership of the commoners and thus make them, more or less, once again, and the “produce” of them, available to all. Especially, however, to those that are the commoners and who have had the right to them by virtue of having that status by living in a village or such. That, however, would more than likely require an entire change of system. Well, let's go and change it as it needs changing anyway.
© 2014
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