by Mary Ellen Lepionka. Featured image: the Moses Jewett house on upper High Street.
In Massachusetts Bay Colony, Native Americans as well as colonists were required to fence their cornfields, and colonists were required to help them. Soon after, everyone was also responsible for fencing the commons to keep cattle in, away from the cornfields. Penalties were severe for killing cattle that strayed into crop lands. Other kinds of land did not require fences, making parcel boundaries perennial bones of contention. In allocations of land, parcels often were defined in terms of particular uses, such as mowing rights or grazing rights, rather than as properties per se. After the distribution of various rights, house lots, wood lots, thatch lots, etc., complex formulae existed for fairly distributing desirable and undesirable terrain—upland, lowland, bottomland, wetland, woodland, and watershed.1 That allocations were so often disputed and litigated points to their near-impossible complexity and may explain why statutes about fences dominate early Court records.
Fences were defined as public goods because they bounded common lands. Everyone holding rights as commoners or owners were equally obligated to pay for and maintain them. According to a 1637 law that affirmed many town by-laws already in existence:
In all corn fields which are enclosed in common, every party which is interested shall make good his part of the fence and shall not put in any cattle so long as any corn shall be upon any part of it, upon pain to answer all the damage which shall come thereby.2
In 1643, the General Court ordained that commoners experiencing “disorder in corn fields” or deadlocked in dispute must submit to the decisions of those who hold the majority of the land. Significantly, this was soon amended to the majority of the freemen or the majority of the selectmen rather than to those with the majority of land:
Whereas it is found by experience that there has been much trouble and difference in several towns, about the fencing, planting, sowing, feeding and ordering of common fields: It is therefore ordered by this court and the authority thereof that where the occupiers of the land, or the greatest part thereof, cannot agree about the fencing or improvement of such their said fields, that then the selectmen in the several towns shall order the same, or in case where no such are, then the major part of the freemen (with what convenient speed they may) shall determine any such difference as may arise upon any information given them by the said occupiers, excepting such occupier’s land shall be sufficiently fenced by itself, which any occupier of land may lawfully do.3
Commoners could fence the land they occupied but also remained responsible for their part of all the common fences. In 1647 the selectmen of each town were given powers to order the repair of common fences and to appoint fence viewers to inspect the work. In 1701 in Manchester-by-the-Sea (formerly Jeffrey’s Creek), for example, the town ordered commoners to fence in the burial ground, with the proviso that “whoever neglect to work on the same shall be fined 3 shillings”. Fence viewers were empowered to repair deficient fencing and recover double the costs from any commoners not in compliance.4
The fences referred to in Court orders initially were zig-zag split-rail barriers known as “worm fences”, commonly used to divide fields and woodlots. Their design made them wasteful of both timbers and labor, however, and they soon were replaced with walls built of the rocks so ubiquitous in New England landscapes. Stone walls initially were not intended to mark property lines or to confine animals, but to protect cornfields. The lines and heights of walls and the size of their stones can reveal their use. Walls to keep cattle out of plantations contain many small stones raked out of the corn rows over the years and used to pack the spaces among larger stones and add to the wall’s height. Pasture walls, on the other hand, began as low expanses of single, large, wide boulders on which cattle were reluctant to tread. Later walls made to serve as property lines typically were two or three tiers of similar medium-size boulders.5
Walls did not bound property at first because land was not open to private ownership. People could not buy and sell land, including Indian land, without permission of the colonial government plus approval of the local government. Towns often equally divided up large tracts of land on their outskirts and allocated them among the settlers entitled to receive such divisions—veterans of Indian wars and freemen—members of the church, holders of voting rights, or those elected as freemen by the General Court.6 However, these divisions did not constitute privatization. Rather, the newly divided lands continued to be used in common by English and Native Americans alike, often for decades, before gradually becoming private property. So, while the fencing of land was an issue in English-Native American relations, the private ownership of it was not, as least not at first.
Later, as settlers complained about their allotments being too inconveniently scattered, towns regranted the land to consolidate holdings.7 Then in the 1740s and 1750s landholders in Massachusetts pressured towns to relieve them altogether of “commonage” obligations on the use of “their” land. Within a decade, rights of commonage were extinguished.8 Thus, the privatization of land to individual owners was accomplished as much as a hundred years or more after the land was originally divided and allocated. Fences began to define private property and township limits, further exacerbating boundary disputes. Today, early deeds describing property as extending from a certain rock to a certain tree between a spring and a path are all but impossible to interpret or locate. By the time the private ownership of land became an issue in the Commonwealth, Native Americans were among the landowners.9
Originally, unfenced common and undivided lands were under the jurisdiction of the town’s governing authorities. Later, the parties with an interest in those lands formed a group of proprietors to control them independently of local government. In 1692 by legislative enactments, proprietor groups gained the power to establish grazing and other use laws, admit new members, and make grants of undivided lands. In 1694 proprietors were given the power to sue trespassers, and in 1726 they were empowered to levy taxes on themselves to finance their activities. Each township had one such group of proprietors in charge of unenclosed common and undivided lands.10 Records of towns in Essex County refer to actions taken by proprietors. For example, Jeffrey’s Creek archives note in 1700 that “the proprietors of the Common lands authorize their committee to sell Howes Island to him that will give the most for it”.11
New settlers typically were given grants from remaining unenclosed common and undivided lands, over which the one group of proprietors had control. Within the enclosed and divided lands, however, each field had its own group of proprietors made up of owners and users. Rights of commonage could not survive the resulting conflicts:
The early histories of the towns are full of accounts of conflicts between proprietors groups, newcomers or residents who wanted new or enlarged or consolidated land grants, people who had some land but lacked commonage rights, [and] people who had rights of commonage but were not using them.12
As time went on, some farmers specialized and others were unsuccessful or moved away, creating new markets for the buying and selling of land and rights of commonage. In 1697, for example, the right to graze one animal on Gloucester Common for one year sold for 30 shillings.13 This right could be bought and used, rented, or sold, independently of having an animal to graze. Price controls were attempted to establish a ceiling and try to keep things fair, but this was a gambler’s or speculator’s market. Commonage rights could gain or lose value unpredictably depending on future demand for divisions of land, an ongoing source of lawsuits among farmers.14 The marketing of commonage rights was not the practice in Europe. “Only in America” could an ordinary man get rich investing in commonage futures, predating Horatio Alger scenarios by 200 years.
So, what began as “disorder in the corn fields” evolved into countless lawsuits over land, fences, rights of way, boundaries, and commonage rights, and ended up as the privatization of land in the hands of the people who occupied it or their landlords. Eventually all of a town’s original land grant was transferred to individuals and became consolidated and enclosed as family farmsteads or enterprises or as municipal properties. Today, vestiges of the Common survive here as city parks or conservation lands, such as Dogtown; town commons, such as South Green in Ipswich; and public gardens, such as Boston Common. One wonders if present-day interest in cloud computing, open access software, bit coins, and workplace collectives could lead to a recreation of commonage as an economic concept. One wonders how that could work and what that would mean.
1. Massachusetts Historical Commission, Gloucester Reconnaissance Survey (1985): 5, originally from Babson Notes and Additions.
2. The 1630 law on shared obligation to mend fences is in the Colony Records, Volume I: 215.
3. The law about resolving cornfield disputes is in Charters and General Laws: 62.
4. The 1647 ordinance calling for fence inspectors is in Massachusetts, The Charters And General Laws of the Colony And Province of Massachusetts Bay (1814): 62. See also Lamson’s History of the Town of Manchester (1895): 10. The 1701 fence repair ordinance in Jeffrey’s Creek is quoted in D. Hamilton Hurd, History of Essex County 2 (1888): 1259.
5. The best discussion of colonial fences I have found is on the web site of Old Sturbridge Village (J. Edward Hood, How Fences Kept ‘Good Neighbors’, 1997). See also Robert Thorson’s Stone by Stone (2002). For information on how to identify colonial walls and their purposes comes from Chapter 2 (pages 41-61) of Tom Wessels’ wonderful book, Reading the Forested Landscape (1997).
6. Henry Franklin Andrews, List of Freemen in Massachusetts Bay Colony from 1630 to 1691, with the Freeman’s Oath (1906). In addition to taking the oath, freemen swore allegiance to the Crown. They were males over 21, members of a recognized church, owners of property valued at 40 pounds or 40 shillings a year, and upstanding members of the community. Definitions varied among townships, but in addition to the right to commonage, freeman status typically conferred the right to vote in town meetings, hold public office, and elect deputies to the General Assembly, along with the duty to pay taxes.
7. For example, Gloucester proprietors made contiguous land grants in 1688 and began regranting previous allotments for greater convenience based on grantees’ petitions. See Babson’s Notes and Additions, p. 3.
8. An authoritative source on this subject is Barry C. Field’s Evolution of Individual Property Rights in Massachusetts Agriculture—17th-19th Centuries, in the Northeastern Journal of Agriculture and Resource Economics (October 1985): 97-107.
9. E.g., early deeds recorded at the Southern Essex Registry of Deeds. See also wills describing property in The Probate Records of Essex County, 1635-1681, and court cases defining property in Records of the Court of Assistants of the Colony of the Massachusetts Bay, 1630-1692, and , 1911, 3 vols.), all available at archives.org.
10. Roy Agaki, The Town Proprietors of the New England Colonies (1963). See also Gloucester’s “Minutes of meetings of Proprietors of Common Lands” in the Massachusetts Archives: Microfilm A 632.
11. The sale of Howes Island by Jeffrey’s Creek proprietors is noted in the 1985 MHC Gloucester Reconnaissance Survey: 9.
12. Thomas Waters, Ipswich in the Massachusetts Bay Colony (1905): 68.
13. Babson, Notes and Additions: 223
14. E.g., see Barry Field’s article and Chapter 3 in David Konig’s, Law and Society in Puritan Massachusetts: Essex County, 1629-1692 (University of North Carolina Press, 2004).