The Duchy of Lancaster

The Duchy of Lancaster is a royal duchy in England, held in trust for the sovereign and used to provide income for the British monarch.

The Duchy comprises 18,700 ha (46,000 acres), including key urban developments, historic buildings, and farmland in many parts of England and Wales, as well as large holdings in Lancashire.

The Derbyshire lands which passed to Henry VII, Duke of Lancaster, in 1485 covered most of North – Western uplands of the Derbyshire. They formed part of any an inheritance which had been built up over 200 years. The original nucleus had been the de Ferrers’ honour of Duffield. This comprised the manors of Duffield, Belper, Holbrook, Alderwasley, Southwood, Heage, Idridgehay, Hulland, Biggin, Ireton, Bonsall, Brassington, Matlock, Hartington, Spondon, Scropton, Wirksworth, Ashbourne, Duffield Forest and hundreds of Wirksworth, Sutton and Appletree and Repton and Gresley. These passed to Edmund, the first Earl of Lancaster, as part of the newly created Earldom in 1266, after Robert to Ferrers’ defeat at the Battle of Chesterfield. Shortly afterwards, part of the land had returned to the Crown to provide queen Eleonora up with a dower; but only temporary, for in 1279 Wirksworth, Ashbourne and Wirksworth hundred were again in the Earl’s hand. A hundred years later a further addition was made by John of Gaunt, the second Duke of Lancaster, who obtained High Peak as part of an exchange for the earldom of Richmond. This completed the estate, as it was to be known in 1485 when it extended, within Derbyshire, from the Dove to the Derwent and from the Trent Valley to the Cheshire border.¹

In the first part of the 15th century the courts of equitable jurisdiction, the chancery and the council, were using this new system of procedures and remedies to administer (in its widest sense) the common law of England. This system was originated and developed in the Court of Chancery; the courts which later adopted it were called Courts of Equity. The purpose of the Courts of Equity was to complement the ancient courts of common law by providing a more efficient administration of the old traditional law in those cases where the old procedures were inadequate.

The success of equity procedures resulted in them being used by every new court which was set up or which evolved after 1400. In the latter part of the 15th century, the courts of Star Chamber, Requests, and the Duchy Chamber of Lancaster evolved as courts of equity. In the first half of the 16th century the regional council of the Marchers of Wales, the Council of the North, and the short lived Council of the West were modelled on the Kings Council at Westminster, and like it they all used equity procedures for the determining of civil suits the county’s Palatine of Durham, Lancaster, and Chester developed courts of equity in this period. In the latter half of the reign of Henry VIII when the government was under the influence of Thomas Cromwell, a number of revenue courts were erected to administer the finances of the kingdom.² These courts, the courts of wards and liveries, augmentations first fruits and tenths, and general surveyors, appear to have been modelled upon the court of Duchy Chamber; they all used equity procedures.

The only exception was the common law courts of great sessions of Wales. This court was established in 1543 as a part of the integration of Wales into the English system of government and judicial administration. Equitable remedies were already available in Wales. Later courts of the great sessions developed equity sites, but there is no evidence of these equity jurisdictions before the 1590s.

In the 17th century there was a tremendous change in the nature of equity. From merely supplying in personam remedies and procedures to supplement the administration of the common law, it began to develop in rem procedures and its own body of substantive law which was different from that of common law courts. This change was secured by the work of Lord Chancellor Nottingham during the reign of Charles II.

The equity side of the Exchequer had a general concurrent jurisdiction with the consulate and Palatine courts in the equity matters. However, in any conflict between the Exchequer and one of these courts, it was the Exchequer which decided where the suit would be heard. If it decided to take the case, the Exchequer issued a writ of prohibition to the inferior court.³

The Duchy of Lancaster depositions are the answers given in court at the palace of Westminster. When reconstructing micro histories of protest and unrest in early modern England, depositions such as these are the principal sources which scholars have exported. Andy Wood and Nicola Whyte ⁴ have felt sufficiently confident to treat depositions as ‘memory texts’. Orality and literacy intertwined in many plebeians’ knowledge of custom. The depositions placed before Westminster in the course of disputes over custom enabled us to reach beyond the evidence of the customary and to observe the interplay of speech and writing in local culture.⁵ Various social and cultural historians have strenuously acknowledged the dangers of uncritical reliance on depositional evidence, and then proceeded nonetheless to rely heavily on it without considering for the issues of authenticity. W. H. Bryson concedes that each set of depositions ‘gives an incident or vignette of life in England… Here is a fertile field from which can grow many things besides stubble and thorns’.⁶

The taking on of depositions was, in fact, only one stage in a much longer process of collecting evidence. At a certain stage in legal proceedings, central courts empowered commissions of local gentlemen to take depositions from witnesses for both sides. These commissioners proceeded to meet with all who wish to give evidence in the matter at a specified place and time. The witnesses, or deponents gave verbal accounts of their knowledge of the customs of the place, produced in answer to written integrities. The Duchy court had a particular interest in the Peak Country due to the large estates held by the Duchy of Lancaster within the region. Disputes over the boundaries those estates and rights over the manorial tolls and officers within them, generated much litigation. Between 1517 and 1754, some 3,779 depositions were given to commissions of these two courts in the course of legal case concerning the Wapentake of Wirksworth or the hundred of High Peak.⁷

Bryson helpfully sets the scene in which depositions were secured.⁸

The clerk’s main function was to convert into writing the words that had been spoken by the deponent, rendering them in the third rather than the first person, and, as we shall see, where necessary adding legal phrasing derived from the interrogatory itself. Evidence given in Duchy of because the suit in 1633 indicates that at the end of the process the recorded depositions was read back to the deponent.⁹ Furthermore, examinations conducted at Westminster in 1664 indicate that deponent might have the opportunity to review and amend what the clerk had written.¹⁰ In these particular documents, the paper depositions have been altered and subsequently signed, or marked, by the deponent, to acknowledge that the written words (eventually) recorded what they had said. Thus, while filtered through the court’s transcription, the written depositions bear a direct relationship with the words were written orally to the commissioners.

The extensive breeding of sheep and cattle led to a number of enclosures of pasture land. A large proportion of the beasts were fed on common pastures, but the advantages of separate pasture land were obvious. It was most probably better in quality, it saved the labour, and – very important consideration – it was some protection against the infectious diseases from which the animals suffered so severely. The enclosure of land for the purpose went on continually. It seems to have been assumed somewhat too hastily that the country was little affected by inclosing operations. There was so much moor and common and waste ground that a considerable amount of enclosure might be made without causing an outcry, for ample common was left for the other inhabitants. But the scattered and imperfect records which remain indicate an uninterrupted series of enclosures from the 13th century onwards.

From the end of the 15th century until the end of the 18th century enclosures were taking place continually in Derbyshire, and they seem to have been often at the expense of those who had rights of common in the land so enclosed The enclosures of an earlier period, to which reference has already been made, were probably so inconsiderable in extent as compared with the abundant waste land in the country that they roused little objection. A great number of them must have been the settlements of peasants who established themselves upon the corner of the waste, built a cottage, with or without permission, and bought into cultivation a small portion of the surrounding land, while they turned out beasts to pasture on the waste.

But in the 15th century enclosure took on a different aspect. Farmers found it to their interests to keep their sheep and cattle in enclosed ground, and for this purpose they enclosed land on which a number of persons had had common for their beasts, and by ceasing to cultivate arable land they threw agricultural labour out of employment. It is not likely that the latter process went on to any considerable extent in Derbyshire, though there is some evidence that it did occur in some districts, but the former operation of inclosing common land was a frequent grievance.

Records of the Duchy of Lancaster¹¹ contain a number of cases from the reign of Henry VII to the end of the Stuart period. In many cases these commons were the only pasture the cottages had. FitzHerbert spoke of ‘the poore housbande of the Peke or suche other that dwell in hylly and hyghe grounds, that have no pasture nor common fieldes but all onely the common hethe.’¹²

The Inclosure Commission in 1517 did not put an end to these inclosing operations. These suits in the Duchy court to inclosures continued during the reigns of Edward VI, Mary, and Elizabeth. There were inclosures at Belper,¹³ Duffield,¹⁴ Scropton,¹⁵ Alderwasley,¹⁶ Bowden,¹⁷ Spondon,¹⁸ Mellor,¹⁹ Parwich,²⁰ Buxton,²¹ Fairfield,²² Tunstead,²³ Bonsall,²⁴ Priestcliff,²⁵ and Wirksworth.²⁶ They all appear to refer to the inclosure of common land as separate pasture, while the evidence of the inclosure of arable land, or the conversion of pasture to arable is very small.²⁷

The documents in the case of Spondon are dated between circa. 1500 and 1650.

The Duchy of Lancaster were the lords of the manor and between these dates there were a lot of land disputes that finished around the time of the Civil War.

“Rights of common” were one of the few incidents of copyhold that worked often to the advantage of the tenant. Usually, the tenant was allowed rights of common for his stock in woods, waste, and meadow and on open arable between harvest and sowing time, the extent of the privilege being ordinarily determined by the amount of the land he held and the rent paid. This was a matter of special importance to the sheep farmer whose animals needed a wide range for pasturage. For this right the owner of a small flock had advantages that he could not possibly enjoy if dependant on his own lands for pasturage. But as land became more valuable and enclosures increased, the rights of common were continually encroached upon, which, together with the problem of overstocking the common, resulted in many “difficulties among copyholders.”

The equity court of the Duchy of Lancaster, known as the courts of Duchy Chamber, had jurisdiction over the lands that made up the Duchy, which are not restricted to the County of Lancaster, but includes areas over almost the whole country. In 1351 Edward III created the first Duke of Lancaster. When Henry IV, as successor to the first Duke of Lancaster, became king in 1399, his Lancaster inheritance did not merge with the other Crown estates, but remain separate, and included all his estate not just the lands within the county of Lancaster. The court of equity was based in London.

The records of the Duchy of Lancaster court of equity survive from 1474 to 1872 under the National archive reference DL.

The Duchy had lands in counties as for from Lancashire as Somerset, Yorkshire, Suffolk and London which are all included and so this is an important court to be searched. The only section that is searchable online is DL 4.²⁸

A volume of Orders and Decrees in the Duchy of Lancaster, looks very similar to that of the Court of Chancery, but the handwriting is, if anything, rather clearer and there are more of the useful informative entries rather than purely administrative entries. The volumes can be very large and cumbersome, but the information included within makes any weightlifting that is required well worth the effort.

A bill of complaint in the Duchy of Lancaster equity court will have the following opening words:

to the Right Honourable Sir Thomas Kirkby Knight and baronet Chancellor of the Duchy of Lancaster. ²⁹

The Interrogatories are the questions that will report to the various deponents (witnesses) and will start with a phrase such as:

interrogatories to be administered to witnesses to be produced, sworn and examined in the part and behalf of John Slaney, John Boyce, and Elizabeth his wife, Lydia Troward widow, Steven Beasley and Sarah his wife, Thomas Maynard and Hannah his wife in a Cause depending in the high court of Chancery whereas they are complainants against James Crump defendant.³⁰

The individual questions are then listed and numbered, with the first question nearly always asking how long the deponents has known each of the parties, and any other person who is crucial to the case. In some cases, the interrogatories for both the plaintiff and defendant have survived, in some cases, just one or the other.

The depositions usually start with the details of where they are taken, such as ‘depositions of witnesses taken at the house of Thomas Morthwaite in keep are known by the sign of the White Swan in Clitheroe in the County of Lancaster the 14th day of January 1751.’³¹ That the Deposition of each deponent then starts with his/her name, age and occupation. The answers to the questions are then given in order and are numbered often with the word Item written in bold at the start of the answer to each new question. Each deponent will only answer the question that are relevant to him/her.

Whether united or divided, it does not take much to imagine the effect of enclosure on a community: sometimes literally overnight, fences were erected, ditches dug or hedges set, to demarcate the land that was no longer accessible to manorial tenants and other inhabitants. Even so, although the adverse effects of change were (and are) frequently bemoaned, they were (and are) really attacked forcibly; indeed, John Walter has observed that early modern opponents of enclosure were constrained by ‘culture of obedience’ and that they sought riotous a last resort.³² Courses of action open to opponents of enclosure were wide-ranging: from passive acceptance, through foot dragging, or refusal to sign an agreement, to initiating lawsuits, and ultimately to determine physical resistance.³³

Modest legal costs might be incurred where an agreement was proposed, lawyers being employed in drawing up the documents. However, significant legal costs would only have been encountered with a neighbouring Lord, or the tenants themselves, see the Westminster courts. Details are rare, but a case concerning disputed enclosure in Huyton-with-Roby, near Liverpool, the Chancellor ordered that the defendants pay six shillings ‘being the half charge of this Commission’, before an examination of defence witnesses would take place.³⁴ whether a cost of 12 shillings for a hearing was exceptional is impossible to say, and Somerville is silent on the question of costs of actions. However, some data exists for the analogous Queens Court, set up on the model of the Duchy Chamber, which shows that legal fees were anything but excessive: in 1641 the fee for subpoena was two shillings, and that for commission was 4 shillings and sixpence.³⁵

When the case was won, the winner might be awarded costs, such as in a dispute over a parcel of marshland in Widnes when the farmer of Royal manor was ordered to pay £5 towards the tenants’ costs and charges.³⁶ Generally, though, it would seem that litigation was not a punitive expensive exercise – hence its popularity.³⁷ However, one reference in the cases studied mentions the sum of £20 spent on travel and court costs in attending the hearing at Westminster, so perhaps for the Lancastrian gentry the greatest cost, particularly where the case dragged on from term to term, may well have been that travel to and from London.³⁸ All in all, the landlord, finding himself involved in a long drawn – out suite, and say faced with heavy legal costs on top of his surveying and boundary making expenses, might have to pay out tens or even hundreds of pounds. Yet spread over potentially hundreds of acres, such an outlay cannot be regarded as significant.

Turning from the cost of the investment to the return on the investment, Manning asserted with regard to the Duchy that ’much of the waste enclosed and improved for cultivation was divided into tenancies created primarily to produce rents.’³⁹ In fact, such evidence as we have suggests that the Lancastrian landlord was motivated more by the desire for an immediate lump sum. When the fines, set at anything up to £12 acre, were a major consideration, if not the major consideration, as can be seen in an enclosure episode carried out in Audenshaw in circuit 1608 – 1611 on behalf of Lady Elizabeth Booth, an elderly widow with interest in the land would die with her.⁴⁰

Within the sphere of agrarian studies, it is possible to direct attention to types of settlement and two units of land as well as two field systems. To the first of these topics, such study has been given in England as Meitzen and Schlüter have bestowed upon Germany.⁴¹ Maitland’s remark and Vinograndoff’s examination of Essex and Derbyshire are the only approaches to the subject, and the latter is concerned with the size rather than start the structure of the village settlement.⁴²

The western boundary of the two – and the three field areas begins in western Dorsetshire passes north across Somerset including two – thirds of that county, crosses by the Forest of Dean into Hertfordshire, embraces most of this county and their neighbour Shropshire, passes north-east through Staffordshire and Derbyshire into Yorkshire, where it cuts off the western edge of the county as it continues to Durham.

The seventeenth century has usually been considered a period of repose between two centuries of great inclosing activity. There are, however, grounds for believing that the inclosing movement was continuous, and that the seventeenth century produced its full share of the change.

Some writers have viewed the creation of new hedges and ditches as the symbolic manifestation of the rise of individualism, improvement and direct confrontation of ‘man with nature’.⁴³ With this in mind, the continuing operation of open field (and ostensibly communal farming systems) into the late 18th century, in a region fully engaged in the commercial production of grain a wool, prompts questions regarding the material and cultural manifestations of capitalism: evidently the relationship between enclosure and ideological change was not straightforward.⁴⁴

But enclosures transformed more than the physical aspect of the country. The lords of the manor under the later Tudors retain much of their mediaeval power and importance, although their hold upon the land was somewhat relaxed. Most of the villeins had become copyholders, with the title of their property firmly protected by the Courts. Much of the old demesne had been sold to small farmers or parcelled out to tenants, so that the greater part of the land was owned all occupied by prosperous yeomanry who cultivated forms of from 20 to 150 acres in extent. These tilled the ground with the aid of farm – servants, who were members of the former’s household, and of married labourers, who owned or rented cottages with four or five acres of land attached.

Enclosure proceedings as conducted in England, conducted to the destruction of this rural society. The labourers gradually ceased to own or occupy land; the farmers increased in size; the possession of land became more exclusively the privilege of the rich; and an ever-increasing proportion of the people left the country for the towns.

Complaints called forth by this displacement of population were most numerous in the Midland counties. Here the process of enclosure was, in the year 1607, accompanied by armed disturbances, and the reasons for the prevailing distress were the subject of government commissions in the reigns of both James I and Charles I.

These frequent complaints from the Midland counties have been supposed to indicate that the enclosure movement was proceeding more rapidly there than elsewhere. not some all the explanation appears to be necessary in view of the fact that at the close of the seventeenth century these counties were the least and not the most highly enclosed counties of England. If the existing distress was greater in this part of the country than elsewhere, the cause could hardly be owing to a greater rate of enclosure. It seems probable, rather that the Midland counties were then the great corn producing counties of the kingdom, and that consequently the change to pasture – farming and the consideration of farms often occupying enclosure displaced a larger population in this part of the country than elsewhere. Moreover, at this date fewer manufacturers were carried on in the Midland it strips than in other parts of the country, and consequently the population turned adrift by agricultural changes had a greater difficulty in finding other employment.

For this reason, enclosure in the Midlands excited greater opposition from the inhabitants, and the government was obliged to make greater efforts there than elsewhere to check the popular discontent. These counties therefore preserve their narrow strips, provided by balks, in the great open fields long after hedges and ditches had grown up around the fields of most of the rest of England.⁴⁵

For those Midland and southern counties in which the two – and three field – systems once prevailed there is abundant evidence of its long continued existence,⁴⁶ and enclosure history of these counties did not in general differ greatly from that of Oxfordshire. In certain western counties, however, we are there were pretty clearly two or three fields at this an early time, similar long life was not granted. The marked irregularities in field arrangements had already appeared there in the sixteenth century, and that enclosure was frequently in progress. It remains to enquire how much open field remain to be enclosed by act of Parliament.

The East Midlands is an area of such widely diverse topography, geology and soil types that it is impossible to claim anything but a spurious unity for it as a region, however, a region is defined. Nevertheless, three broad topographical divisions can be detected within the area. There are first of all the friends and marchers of the so-called Peterborough, the island Axholme, Holland and the Lincolnshire coastline. Secondly there are the ancient royal forests to be found in every one of the counties except Lincolnshire. Finally, there are the hill and vale districts of the rest of the area.⁴⁷

The region in question comprised the forest area which extended over the northern parts of Warwickshire, Worcestershire, Staffordshire, and Derbyshire. It reached westward and southward to include the fertile valleys of the why and seven, passing thence into the low-lying stretches of Somerset. Throughout large parts of the eight counties within this region there was a tendency from the sixteenth century onward to increase the area under pasture. The relatively small extent of the arable left to be affected by parliamentary activity can be roughly gauged from Slater’s list of acts and areas.⁴⁸ In the valley of the Severn and in the plain of Somerset several townships procured awards, but the amount of arable enclosed by each award was seldom great. Elsewhere the acts were numerous. As Slater records them, there were 29 four Hertfordshire ⁴⁹ 7 for Shropshire, and 4 the north-western parts of Warwickshire, Worcestershire, Staffordshire, and Derbyshire, 11, 6,⁵⁰ 5, and 5 respectively. Since Hertfordshire furnishes as many awards as any part of this region, unless it be Somerset, and since it lies well to the west, it’s open field history may be relied upon to illustrate conditions and changes within the territory above defined.

The development of enclosure in the northern Midlands attacks a region, little affected hitherto, under very particular conditions. The soil of a large part of the district under the old common field systems could not be devoted to the use for which it was best developed – namely, grazing. Again, during that century a considerable quantity of land was reclaimed, thus adding to the area of cultivation much new and good corn land. Transport was developing and security of locomotion was greater. On the other hands towns were beginning to develop, and to some extent at any rate it would seem probable that enclosure took place owing to their development, and it may have been to supply their needs.⁵¹

Enclosure at any period, by replacing one pattern of land use with another and often warn that differs radically from the previous one, also has the effect of removing place names from the landscape, and sometimes on a large scale. the new closes that replaced the new closes that replaced fields, furlongs and selions had of course to be named, but only very rarely do the new names incorporate anything from the old names. This is why, in the absence of a pre-enclosure map, it is impossible to locate accurately more than a handful of the fields and furlong names that can be gathered in such abundance from mediaeval cartularies collections of deeds.

Pre-enclosure place names have, in the absence of a pre-enclosure map, almost entirely disappeared from the landscape. Subsequent changes in the land use and in agricultural practices may also have removed many of the immediately post-enclosure landscape changes. Enclosure can, however, bring in changes that have been more permanent, and which are more easily detected in today’s landscape, and these are the changes which have affected settlement patterns.⁵²

The following suggestions for future investigation are taken from Alan R. H. Baker and Robin A. Butlin Studies of Field Systems in the British Isles, Cambridge University Press 1973 pages 16 – 20.

The 16th century made sense be seen as a watershed in the documentary history of agriculture and field systems, in that rapid changes in the nature of society and in landownership gave rise to new types of survey and a new type of documentation of social and agrarian change. The transition from mediaeval to modern was gradual, and many of the mediaeval documents continues into the 16th and 17th centuries and beyond.

Probate inventories, listing the possessions of a person who had died and left a well, finishing details of household possessions implements, animals and crops, and other items, or extant for the period 1530 – 1830, but reach a maximum frequency in the 16th and 17th centuries.⁵³

This representative, but nevertheless potentially valuable sources of information, of the glebe terriers – surveys of the glebe land or church property, including buildings, land, tithes, and other pre-requisites of the church. The most detailed of these may afford evidence of types of open field and progress avoid closure on a ‘sample basis.’ Glebe terriers care from the end of the 16th century to the 18th century.

This is also a period when there are numerous Crown surveys of escheated or confiscated land, and of private surveys of estates or manors. Large numbers of these surveys have been used in the reconstruction of agrarian arrangements in the early modern period. The Crown surveys are housed in the National archive, and the local surveys in both public and local collections.

While the detailed structure and development of field systems can only be reconstructed from documents such as those described above, which relate to specific manners and townships, valuable background and supplementary material is afforded by other types of documentary and printed material, including the topographic descriptions of antiquarians, and the surveys produced after the restoration, symptomatic of a revived spirit of scientific enquiry into a wide variety of natural features, including agriculture and soils.

It has been suggested that the development of a strong tradition of topographical writing was one of the significant features of English literature from 1500 onwards and this is substantiated by consideration of the work of such people as Leyland, Camden, Fiennes, Defoe, and the authors of the county histories and natural histories of the 17th century. Although Leyland’s descriptions of farming and agricultural landscapes are not highly detailed, he distinguished between open and enclosed land, and give some idea of regional variations in cropping and husbandry practices. William Camden, born in the mid-16th century, England in the reign of Elizabeth, seeking material for a reconstruction of Roman Britain, which was published as ‘Britannia’ in 1586, from which ‘it is possible to extract… an outline geography of Elizabethan England, and did discerned especially the elements of permanency in the rural scene’⁵⁴ he also distinguishes in places between open field and enclosed land, and facilitates, often by reference to soil types, the determination of regional variations in agricultural practice. Later itineraries affording similar information are those of Celia Fiennes, described in her diary, and of Daniel Defoe, though the authenticity of the sources of his tour have been seriously called into question.⁵⁵

In addition to these itineraries, a number of works relating to individual counties for details of regional variations in agriculture and landscape. Most of these date from the middle or late 17th-century, and aims of scientific enquiry prevalent at this time. They are based on field investigation, printed and circulated questionnaires or ‘enquiries’ (a method promoted by the Royal Society), and employ geological, physiographic goal, and soil characteristics in the definition of regions and regional variations in agricultural practice.⁵⁶