Custom, Improvement and the Landscape in Early Modern Britain

Richard W. Hoyle

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781409400523
• eBook ISBN:
  9781351946636
• Topic: History
• Subtopic: Early Modern History
• Index: History

A great deal has been written about the acceleration of English agriculture in the early modern period. In the late middle ages it was hard to see that English agriculture was so very different from that of the continent, but by 1750 levels of agricultural productivity in Britain were well ahead of those general in northern Europe. The country had become much more urban and the proportion of the population engaged in agriculture had fallen. Customary modes of behaviour, whilst often bitterly defended, had largely been swept away. Contemporaries were quite clear that a process of improvement had taken place which had seen agriculture reshaped and made much more productive. Exactly what that process was has remained surprisingly obscure. This volume addresses the fundamental notion of improvement in the development of the British landscape from the sixteenth to the nineteenth century. Contributors present a variety of cases of how improvement, custom and resistance impacted on the local landscape, which includes manorial estates, enclosures, fens, forests and urban commons. Disputes between tenants and landlords, and between neighbouring landlords, over improvement meant that new economic and social identities were forged in the battle between innovation and tradition. The volume also includes an analysis of the role of women as agricultural improvers and a case study of what can happen when radical improvement failed. The volume will be essential reading for scholars of landscape studies, rural and agrarian history, but will also provide a useful context for anybody studying the historical legacy of mankind's exploitation of the environment and its social, economic, legal and political consequences.

Chapter 1
Cromwell v. Taverner: Landlords, Copyholders and the Struggle to Control Memory in Mid-Sixteenth Century Norfolk

R. W. Hoyle*

James Taverner of Wighton in Norfolk is not unknown to historians: indeed, his notoriety has lasted from his day to ours. His offence at the beginning of Elizabeth’s reign was to forge a manorial custumal of the manor of North Elmham, for which he was sued and punished in Star Chamber. The legal points which his prosecution provoked were of sufficient interest to contemporaries for Taverner’s case to be recorded in the law reports, and a brief reference to it appeared as late as 1641 in a collection of leading Star Chamber cases.¹ A further aspect of his case was raised in the House of Lords as a question of privilege by Taverner’s protagonist, Henry Lord Cromwell, and it became a leading case in the definition of the privileges of a peer. Amongst more recent historians, Eric Kerridge mentioned Taverner’s case, citing the account in Sir James Dyer’s reports, but felt no need to establish either the details of the case or Taverner’s motivation.² In fact there is no single case, but a whole succession of cases in Chancery and Star Chamber (as well as those alluded to in Common Pleas) between Taverner and successive lords of the manor of North Elmham which ran from the mid-1560s to the first years of the seventeenth century.

The story is an odd one, and for that reason alone is worth the telling. It is in part an account of self-help by a body of tenants; in part a study of the victimization of a tenant by a particularly ruthless manorial lord. It casts light on the continuing tensions and bitterness between landlords and tenants in Norfolk society in the generation after Kett’s revolt. It also shows how custom was contested, and memory annexed by landowners.

I

In the pedigree they recorded at the 1613 visitation of Norfolk, the Taverner family claimed to have been resident in North Elmham since the reign of Henry II.³ Our Taverner was one of the younger sons by a second marriage of John Taverner of North Elmham (d. 1545). James was a late son, born c. 1540. His father entailed land on him in 1546, which he was to enter at age 28; he was admitted to this land in 1558. There was an even younger brother, Thomas. The four (much) older sons by their father’s first marriage made careers outside Norfolk. The eldest brother, Richard, is included in the Oxford Dictionary of National Biography (ODNB), which calls him a translator (of Erasmus amongst others) and evangelical reformer, but he was also clerk of the signet and by the end of his life owned a landed estate near Oxford. Another brother was Roger Taverner, surveyor of the Court of Augmentations and later surveyor of woods in the Exchequer, a post which passed to his son John.

Taverner is normally given the title of gentleman and on one occasion is described as being of the Inner Temple. (I have, however, not been able to find him in the Inner Temple’s own records.) The lands his father entailed on him in North Elmham extended to 130 acres and, in the following decade, he bought a further 49 acres.⁴ In 1567 he married Grace, the daughter and heiress of John Russell of Wighton, the widow of a younger son of the Norfolk gentry, Edmund Bedingfield.⁵ It seems likely that he lived on his wife’s estates, but within North Elmham he owned a sizeable acreage of land, both freehold and copyhold. In about 1567 the estate officers of the lord of the manor, Henry Lord Cromwell, updated a survey of 1454, from which it has been calculated that Taverner was then the largest tenant in the manor, with a holding of 298½ measured acres and some additional land as well. Another list of lands held by him gives about 230 acres, whilst a survey of his lands in North Elmham – made in 1599 in a dispute over the rating of the fifteenth and tenth – itemizes 320 acres.⁶ Grace Taverner died in 1601 and was buried at Wighton, but whilst the visitation says that James Taverner died in 1604, neither will, nor grant of administration nor inquisition post mortem has been discovered.

In these respects Taverner comes over as a transitional figure in much the same way as Robert Kett. His family had been in North Elmham for generations as peasant tenants of the Bishop of Norwich, and had acquired a considerable acreage of copyhold. This was not randomly distributed, for the family were plainly moving towards establishing a consolidated, enclosed holding.⁷ There are signs that Taverner had some legal education: he could call on half-brothers who had used their education to advance in government posts. He married into the lower ranks of the Norfolk gentry. If he was not unambiguously a gentleman, Taverner was no peasant either. Like Kett, his wealth was not so large as to prevent him acting as a communal leader in opposition to the lord. But, as a landowner, Taverner was as ruthless an expropriator of his neighbours as any man. Again, this is no different from Kett, the encloser who would sit in judgement on other enclosing gentry.⁸ It was dog-eat-dog in mid-sixteenth century Norfolk. There were no clear demarcations between oppressor and oppressed.

Whilst Taverner was probably too young to have seen Mousehold, he must have grown up in a countryside in which the memory of Kett and the summer of 1549 was still raw. North Elmham contributed men and money to the Mousehold camp and we may guess that in common with many other Norwich villages, some of its tenants and young men died in the pitched battles between the Earl of Warwick and Kett’s irregular forces in and around Norwich, or were summarily hanged in the repression which followed.⁹ How far the lessons of that summer weighed on Taverner and his fellow tenants is impossible to know. What we see in his behaviour, however, is an attempt to carry forwards one of the ambitions of 1549 – to curb seigneurial exploitation – by legal means.

His opponent would have none of this, perhaps knowing all too well what the stakes were. Henry Lord Cromwell (d. 1592) was the grandson of Henry VIII’s minister Thomas Cromwell, Earl of Essex (executed 1540). North Elmham was one of the manors of the Bishopric of Norwich which were ceded to Henry VIII by Bishop Rugge in exchange for monastic manors in 1536. It was then granted to Cromwell.¹⁰ Whilst Cromwell had amassed a considerable estate by the time of his attainder and execution, it was mostly forfeited, and Henry Cromwell was one of those poorly endowed Elizabethan peers who had difficulty maintaining the dignity of his title. In so far as anything is known of him – there are no personal or estate papers and he played no role in Norfolk local government that can readily be discovered – he comes over, by turns, as litigious and violent. His son Edward liquidated the family’s English estates and, having participated in Essex’s revolt, moved to Ireland to restore his fortunes, where he died in 1607. Taverner’s lands in North Elmham were plainly a juicy morsel for Cromwell to add to his own limited estates in the manor.¹¹ In an interesting flanking manoeuvre, Cromwell’s title to North Elmham was challenged by Roger Taverner on behalf of the Crown. He tried to show that an indenture of 30 March 1539 settling the estates on Cromwell and his wife, with the remainder to Cromwell’s son Gregory and his heirs, had not been properly executed and that the manors should therefore have been forfeited to the Crown on Cromwell’s attainder in 1540. This suit finally failed, but it plainly contributed to the bitterness between Cromwell and Taverner.¹²

II

What Taverner did can be quickly outlined from his answer to the Chancery bill of Sir John Paulet – Lord St John, later Marquis of Winchester – who held the manor in the right of his wife, the widow of Gregory Lord Cromwell.¹³ Taverner, in September 1559, together with a number of other tenants

doubting lest the customs of the manor might go out of remembrance to the disinherison and great hindrance of the defendants and the rest of the tenants and by occasion of the death of some of the old tenants who had knowledge and best understanding of the customs and also the ignorance and negligence which might ensue by reason of the change and alterations of the stewards of the manor

took the initiative and drew up a custumal of the manor, which they sealed with their own seals. Taverner then held that he had presented this to St John’s officers with the request that it should be reviewed by the jury of the manorial court: in short, that he wanted it approved by them, even if this involved having the document ‘reformed’.¹⁴ The reading placed on this by Paulet shows all too plainly how it was not a neutral act of recording, but a highly political act. As in other East Anglian manors in the later sixteenth century, there was no agreement over the custom of the manor. To St John, Taverner was intending:

by ungodly practices and incontinent slights [to devise] how to alter the old ancient customs of the manor and to bring in and wrongfully set up and create new devices and customs in the stead of the true and ancient customs.

Paulet, or rather his lawyers, offered a rival narrative replete with incriminating detail when they petitioned Chancery in 1567. Taverner had first approached two other tenants of the manor, William Batche and Simon Shittell the elder, who both agreed to support his initiative. Taverner, Batche and Shittell then called the tenants together for a meeting at Batche’s house where Taverner addressed them, showing how he had looked in Domesday Book and other ancient records and had discovered customs and privileges which had been hidden from the tenants. If the tenants would back him, then he would ‘find the means to bring them in use again and revive the old and ancient customs’. He would record them in a parchment book which all the tenants would sign and to which they would affix their seals.¹⁵ He had also discovered a seal of great antiquity belonging to the manor which they would also set to the book. The finished book would then be locked away until the time was right to produce it and use it to challenge the surmised customs. Taverner had gone on to produce his parchment ‘wherein … is contained divers sundry, unreasonable, unlawful and new-fangled customs and by laws’. To it he attached a great brass seal bearing the words ‘sigillium ville de northelman’. Taverner, Batche and Shittell were joined in signing the book by the majority of the tenants of the manor and, as agreed, it was lodged in a chest. More recently some of the tenants had begun to claim some of the bogus customs claimed in the book to the disinherison of the lord. St John had therefore commenced suit in Star Chamber claiming that the document was a forgery, but Taverner had escaped with a pardon at the last parliament. But as Taverner retained the custumal in his own hands, St John’s request to Chancery was that Taverner should surrender it to be cancelled. Taverner was indeed instructed to bring the document into Chancery although, when he did so, it had already been defaced and cut. Later it seems that it was either retrieved from the court by persons unknown or somehow lost, and Taverner was questioned about its whereabouts in 1572.¹⁶

This narrative contained a good number of smears and half-truths designed to attract the attention of the court, some of which Taverner attempted to answer when examined in 1572.¹⁷ He denied that he had tried to conceal the parchment. On the contrary, he had tried to get the lord’s officers to accept it as a true statement of manorial customs. And rather than he, Taverner, trying to create new customs, he was consciously engaged in an act of rescue. It was Paulet and his servants who were establishing new customs for the felling of timber and the rate of copyhold fines.

Thus began a sequence of litigation between St John and his stepson Henry Lord Cromwell, and Taverner, that was to last for the remainder of the century. The facts of the creation of the custumal were raked over several times; and as a result, we can establish in some detail the format it took and what it contained.

III

First, the custumal was written on parchment.¹⁸ It had tags and was sealed: it may therefore have been a single sheet of parchment similar in format to the 1553 petition now in the National Archives.¹⁹ Taverner signed it with a seal about the size of a groat or teston. Taverner had also had a hollow seal made with the words ‘North Elmham’ running around its circumference which fitted around his own seal. The allegation in the initial pleadings – that this was a seal of great antiquity bearing the words ‘sigillum ville de northelman’ – was denied by Taverner: on the contrary, he had it made by a seal-maker at Ivy Bridge out of either pewter or tin (he was not certain which).

Taverner had the document engrossed in Latin (‘because he supposed that such kind of writings are in Latin rather than English’). The title of the document claimed it was:

the customary of divers customs, prescriptions and uses of the manor of North Elmham … which time out of memory of man living have been used and executed … also approved, allowed and suffered by the lord of the said manor … which … free and customary tenants now at this present gathered together with their common assent and consent, the customs, prescriptions and uses … have caused to be renewed, inferred and entered ….²⁰

It therefore made the contestable claim that the rights detailed had been used beyond the memory of man. And whilst the custumal claimed to have been made by the assent of the tenants, making it their property, what was more questionable was whether it had been made with the approval of the lord: it was certain the custumal was not made with the assent of the lord. As Taverner freely acknowledged, it was a freelance effort and his problem was to get the lord to accept the tenan...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures and Tables
• Notes on Contributors
• Introduction: Custom, Improvement and Anti-Improvement
• 1 Cromwell v. Taverner: Landlords, Copyholders and the Struggle to Control Memory in Mid-Sixteenth Century Norfolk
• 2 The Articulation, Transmission and Preservation of Custom in the Forest Community of Duffield (Derbyshire)
• 3 Contested Pasts: Custom, Conflict and Landscape Change in West Norfolk, c.1550–1650
• 4 The Idea of Improvement, c.1520–1700
• 5 The Common Fields of Urban England: Communal Agriculture and the ‘Politics of Entitlement’, 1500–1750
• 6 Approvement and Improvement in the Lowland Wastes of Early Modern Lancashire
• 7 ‘A Country Life’: Sir Hamon Le Strange of Hunstanton in Norfolk, 1583–1654
• 8 Between the Corporation and Captain Flood: The Fens and Drainage After 1663
• 9 ‘All towards the improvements of the estate’: Mrs Elizabeth Prowse at Wicken (Northamptonshire), 1764–1810
• 10 Improvement on the Grant Estates in Strathspey in the Later Eighteenth Century: Theory, Practice, and Failure?
• Index