1
Written evidence from Michael Edward Turner, Emeritus Professor of Economic History, University of Hull (MAR 33)
My responses to the questions asked and the background information
Executive Summary
Manorial rights and their impact on freeholders today relate to the Copyhold and Land Registration Acts from 1841, 1852, 1894, 1922 and subsequently. Any discussion of the manor should involve the current owners of former copyhold and other manorial lands; otherwise their rights might be buried (paragraph 1.1). To do otherwise is to deny history and the bargain that was struck in enfranchising those rights between lords and former copyholders, the forbears of today’s freeholders who might have their rights ignored (paragraphs 1.2, 1.3). In order properly to discuss manorial rights and whether or not they still exist or have been enfranchised, regard must be made to the availability of documentation as prescribed in the 1920s but sadly, largely neglected since (paragraphs 1.4, 1.5 refer). Mineral rights are explicitly mentioned in the opening paragraph of the Call for Evidence. Establishing mineral ownership rights is a prior condition to the exploitation of those rights and it must not be assumed that manorial lords are always the owners. Therefore the inquiry should consider if not extend to freeholders of former manorial property (paragraphs 1.6, 1.7). To that end the Land Registry might clarify the current status of freeholders with respect to their rights as it seems is enshrined in English Common Law. If my interpretation is incorrect then the precise rights of freeholders of former manorial property should be clarified. This should be done anyway (paragraph 2).
My Evidence
1. In the call for evidence there are supplied some Background paragraphs. I would like those to form the basis of my comment.
1.1 In the opening paragraph of these Background notes, re the Land Registry it is stated that manorial rights are those rights which were retained by lords of the manor when land became freehold. This is clarified with references to mines and some minerals...and other what we term manorial incidents. What is omitted are the rights associated with the property of today’s freeholders which derive from former copyhold property upon enfranchisement. I refer mainly to the enfranchisement process that began with the 1841 Copyhold Act (4 & 5 Victoria c. 35), was particularly clarified in the 1852 Copyhold Act (15 & 16 Victoria c. 51) and the 1894 Copyhold Act (57 & 58 Victoria c. 46) which were the defining procedures before the Law of Property Act of 1922 (12 & 13 Geo 5), as subsequently amended before maturity at the end of December 1925. Even then the procedures regarding minerals, for example, were retained from the 1894 Act.
Therefore I believe the current owners of former copyhold and other manorial lands must also be part of the current discussion, otherwise their rights might be ignored.
1.2 In the second paragraph of the Background notes a reference is made to the Law of Property Act of the 1920s which matured in 1926 after amendments. The process of enfranchisement of former copyhold and other manorial property continued after 1926. Former copyhold and other property which though made freeholds by the 1920s legislation nevertheless still carried manorial rights and incidents which had to be settled by payments from the enfranchised freeholders to their former lords. After some extensions and hiccups through the intervention of WW2 this process ended in October 1951 by which date a halt was finally called on the extinguishment of manorial incidents relating to former un-enfranchised copyhold property. Even though the shutter came down in October 1951 as long as opening negotiations had preceded October 1951 the process continued thereafter to completion. The latest known completion to me is an extinguishment of 1951 at Attleborough in Norfolk.
My fear is that this history will be ignored or lost from view because of the emphasis on manors and lords and not also at least equally on the current freeholders of former manorial controlled property.
1.3 In this same second paragraph of the Background note there is a reference to overriding interests and the 2002 Act. It is thereby implied that failure to register means the loss of overriding interest, but so much of the background noise relating to the October 2013 maturity of the 2002 Act has been about manors and manorial lords without a countervailing reassurance to those current freeholders of former copyhold and other manorial tenants whose first inclination that something is amiss is when the Church of England (The Independent 16 August 2013) or the Duchy of Cornwall (Daily Telegraph 23 January 2014) or the Marquess of Salisbury (Daily Telegraph 23 January 2014), to name but three bodies that did receive press attention, issue notices of registration of manorial rights. My concern is that registration of overriding interest might be applied assumed in a blanket form by lords and accepted without investigation. In reality, many thousands of freeholders had forebears involved in 19th and 20th Century copyhold enfranchisements and in probably the majority of cases the historic owners purchased the manorial incidents (such as minerals) by enfranchisement or extinguishment.
This enquiry concentrates on manors and lords but there has to be proper voice given to former manorial tenants to alleviate fears that indeed a lord may be (in some cases falsely) claiming some historical right that no longer exists.
1.4 Related to my last point, the evidential reference to the true ownership of mineral and other rights will be stated in the deeds of enfranchisement and extinguishment, many of which might be lost but all of which should have entries in one form or another in the manorial records – the court rolls and books. Provisions were written into the 1922 Act (Part VI section 144) but sadly I think they may have been honoured more in the breach than in the observance. The requirement of Part VI section 144 of 12 & 13 Geo 5 Law of Property Act 1922, under the guidance of the Master of the Rolls, particularly the reference in the last part of this statement about admissibility of evidence, was that
Any person interested in enfranchised land may on payment of the fee prescribed by the Lord Chancellor, inspect at any reasonable hour any Court Rolls of the manor of which the land was held; and Court Rolls shall (whether before or after the manorial incidents have been extinguished), for the purposes of section fourteen of the Evidence Act, 1851 (14 & 15 Victoria, c 99), be deemed to be documents of such a public nature as to be admissible in evidence on their mere production from the proper custody.
1.5 Following on from my last point and related also to the third paragraph of the Background notes, The Manorial Documents Register of The National Archives for many years has attempted to create a register of where such documents now reside, but it has to work on the assumption that manorial lords after the 1920s willingly gave up their records either permanently or on semi-permanent loan to those offices which grew as recognisable repositories of local records – mainly but not exclusively the county record offices which now blossom under various titles. My researches over the last 40 years indicate that many such documents relating to countless numbers of manors have been lost, destroyed or hidden. At the time of writing the progress of the work of the Manorial Documents Register is slow and can be reviewed at http://apps.nationalarchives.gov.uk/mdr/ .
One implication of abolishing manorial rights might be the loss of the evidential base provided by manorial court rolls and books and allied material unless provision already provided in the 1922 Act is reinforced.
1.6 I make the following comment on the whole of this Background story and the question of abolition or not of manorial rights. There is a fear of throwing the baby out with its bathwater. The prior issue is to establish whether such rights exist or not and in whose ownership they reside. Manorial rights involved importantly the manorial incidents and it should not be assumed that such incidents remained in the ownership or power of manorial lords. Therefore it is imperative to look deeply into what happened mainly to the individual copyhold enfranchisements before 1926 and the extinguishments and compensation agreements that followed. Moreover, it should not be assumed that at enfranchisement or extinguishment/compensation the lords retained ownership of mineral and other rights. In the Vale of York on former Archbishop of York property and the many manors within the Vale indeed it was the case that the Ecclesiastical Commissioners did retain such rights under either one or other of the 1852 Act, section 48 or the 1894 Act section 23, as appropriate to the date of enfranchisement. Many of the appropriate manorial court rolls and books pertaining to these lands can be viewed in The Borthwick Institute on York University campus and no doubt also in the Church of England Archives associated with Lambeth Palace. The Duchy of Lancaster as Lord of the Manor of Knaresborough Forest almost invariably retained mineral rights. I refer here to the compensation agreements found in the North Yorkshire County Record Office in Northallerton for the period after 1925 and which number over 2000 individual property deeds. But on most lands of lay lord that I have researched in the three ridings of Yorkshire, Lincolnshire, Nottinghamshire, Huntingdonshire, Suffolk with many others in counties as diverse as Essex, Dorset and Bedfordshire it was equally and in many cases more emphatically the case that the copyholders themselves bought out those incidents. This should somehow still be ‘attached’ or referenced in deeds of ownership. Or at the very least there should be a reference back. But one suspects this is not always the case.
Establishing mineral ownership rights is a prior condition to the exploitation of those rights and it must not be assumed that manorial lords are always the owners.
1.7 The next obvious question for me is the extent of this entanglement of former manorial lands and the current ownership of former manorial incidents.
1.7i In round numbers, in The National Archives, there are 25,000 deeds in collection MAF 9, associated with the 1841-1894 Copyhold Acts (terminating in December 1925), a further 1,100 in MAF 13 for 1926-1935, and finally 480 or so in MAF 27 for 1936-1951. These derive from the original Copyhold Commissions, and successor bodies, the Land Commission, the Board of Agriculture, and finally the Ministry of Agriculture. That is to say there are in these three collections over 26,000 individual property bundles involving lands, some of it extensive, and many buildings from what are described as hovels to capital mansions. Much of the land must subsequently have been built upon and many buildings replaced but nevertheless the definable margins of the original properties whether split up or amalgamated will have reference in those original enfranchisement deeds to the ownership of the former manorial incidents. These are what I like to call the public deeds because they are perfectly visible in the public record. They include institutional lords (Oxbridge colleges for example), the church lords (former Bishop lands and Dean and Chapter properties all of which eventually came under the management of the Ecclesiastical Commissioners and the Church Commission). But overwhelmingly the lords were lay owners (including in this nomenclature Dukes to Earls and onwards to Esquires and Gentlemen, to use the language of the deeds).
1.7ii There are then the partially visible enfranchisements because the former lords were under public scrutiny or accountability. These include many, many more church properties that were not included in the Copyhold Commission/MAF collections. I am referring here to over 12,000 extra former church properties. It also includes the former properties of HM Commissioners of Woods and Forests, the Crown Estates, the Duchy of Lancaster. These amount to many more thousand property bundles all of which should have reference back to manorial incidents and the enfranchisement or retention of those incidents.
1.7iii Finally there are what I sometimes refer to as the invisible history of enfranchisement. The assessment of this history is invisible to most eyes because although the enfranchisements associated with it had to abide by the rules provided for in the 1841, 1852, 1894, and 1922 acts, and subsequently, it did not have to be registered in any other way publicly. Instead it should have been registered in the manorial court rolls and books. But as I have indicated in paragraph 1.5 a register of the appropriate summary evidence let alone the individual properties involved is a long way off completion. This is my current research and over many years in mainly the various Yorkshire record offices, in Lincolnshire, Nottinghamshire, Huntingdon, Suffolk and in a minor way in other counties I have extracted details from 2,400 pre-1926 enfranchisements and 7,000 post 1925.
1.7iv I am only scratching the surface of what is available. From a combination of the highly visible, the relatively visible and what I have called the invisible history of enfranchisements/extinguishments I can point to 50,000 examples more or less known to me.
The true current ownership of the former manorial incidents associated with these properties is so entangled and complicated that I fear that a simple abolition of manorial rights might endanger the rights of the freehold owners by implying that the rights remained in the ownership of the manors.
1.8 This leads finally in this section to the costs of abolition should that be the route that is followed. The honest answer is that I have no idea but I have attempted a back of the envelope calculation of what 50,000 enfranchisements/compensations/extinguishments cost from 1841 to 1951. From tables I have constructed and applying a price deflator with base 100 in 2012, my calculation suggests that this process saw the exchange of money from former manorial tenants to lords of the manor of the order of £400 million (in real terms). I emphasise that this is not the same as abolishing manorial rights neither is it a scientifically verifiable estimate, but it might be an order of magnitude.
2.1 I have some comments on the guidance notes issued by the Land Registry in the build up to the October 2013 land registration deadline. I refer here particularly to Land Registry Practice Guide 65 issued in November 2008. The guide explicitly states that:
It is aimed at solicitors, licensed conveyancers and other legal advisers and you should interpret references to 'you' accordingly.
It is a shame that it was worded in that fashion without also providing a lay guide in parallel. After all, as I have suggested and certainly established in my research, as often as not the ownership of minerals and therefore at least initially their exploitation was in the hands of former copyholders who became freeholders and whose properties will have been sold, partitioned, inherited and in other ways changed hands as happens with an ongoing property market. While the 2002 Act did not require them to register their ownership nonetheless it would have been an important public service to inform every household in lay terms what the implications were whether by mail, newspapers or an informed television exposition. Instead we have householders receiving rather starkly letters from former lords informing those households that manorial rights have been registered. The scare that this has invoked has been enormous. And whether rightly or not this has been directly linked to the ‘Fracking’ debate.
2.2 Is it still the case that the principle of English Law still applies that Cuis est solum, eius est usque ad coelum et ad inferos, or The owner of land is entitled to the surface itself and to the sky above it and everything below it? In terms of the ‘Fracking Debate’ is it the case that
Add to that mix the fact that ownership boundaries are vertical but minerals like shale exist in strata horizontally, making the access rights and compensation rights to satisfy the many thousands of lords or more likely many thousands of freeholders so much more complicated. Therefore abolishing manorial rights only solves a proportion of the actual rights, and possibly the smaller proportion.
Much of paragraph 2.2 is based on http://www.deferolaw.com/profiles/blogs/lords-of-the-manor-mineral-rights-and-fracking-in-the-uk-an-article-by-paul-stafford .
September 2014
Disclaimer
I retired as Professor of Economic History at the University of Hull in July 2012 but I was awarded the honorific title of Emeritus Professor which allows me the lifetime use of library facilities and email. However, the views I express are my own and not to be associated with the University.
I was supported in my work associated with the subject of this enquiry by the Nuffield Foundation from 1 November 2008 to 30 April 2010 and am currently in receipt of a Leverhulme Trust Emeritus Professorship from 1 September 2012 to 30 November 2014. In both cases the views expressed below are my own and not to be associated with these charitable bodies.
Declaration of Interest
I have no interest in the outcome of this inquiry save those of a professional historian.
Bona Fides
My claim to be an expert in the area of the enquiry can be found in my publications, a PDF list of which can be found at:
http://www2.hull.ac.uk/fass/pdf/MT%20Publications%20PDF%20Version.pdf