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I235 provided " that the See also:great men of See also:England (which had enfeoffed knights and their freeholders of small tenements in their great manors)" might " make their profit of their lands, wastes, See also:woods and pastures," if they See also:left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another See also:statute, that of See also:Westminster the Second, supplemented the Statute of Merton by enabling the See also:lord of the See also:soil to inclose See also:common lands, not only against his own tenants, but against " neighbours " claiming pasture there. These two pieces of legislation undoubtedly See also:mark the growth of the See also:doctrine which converted the over-lord's territorial sway into See also:property of the See also:modern See also:kind, and a corresponding loosening of the hold of the rural townships on the wastes of their neighbourhood. To what extent the two acts were used, it is very difficult to say. We know, from later controversies, that they made no very great See also:change in the See also:system on which the See also:country was cultivated, a system to which, as we have seen, See also:commons were essential. In some counties, indeed, inclosures had, by the Tudor See also:period, made greater progress than in others. T. See also:Tusser, in his eulogium on inclosed farming, cites See also:Suffolk and See also:Essex as inclosed counties by way of contrast to See also:Norfolk, See also:Cambridgeshire and See also:Leicestershire, where the open or " See also:champion " (champain) system prevailed. The Statutes of Merton and Westminster may have had something to do with the progress of inclosed farming; but it is probable that their See also:chief operation See also:lay in furnishing the lord of the See also:manor with a See also:farm on the new system, See also:side by side with the common See also:fields, or with a See also:deer See also:park. The first event which really endangered the See also:village system was the coming of the See also:Black See also:Death. This See also:scourge is said to have The Black swept away See also:half the See also:population of the country. The Death. disappearance, by no means uncommon, of a whole See also:family gave the over-lord of the See also:vill the opportunity of appropriating, by way of See also:escheat, the holding of the See also:house-hold in the common fields. The See also:land-holding population of the townships and the persons interested in the commons were thus sensibly 'diminished.
During the See also:Wars of the See also:Roses the small See also:cultivator is thought to have again made headway. But his diminished See also:numbers, and the larger See also:interest which the lords had acquired in the lands of each vill, no doubt facilitated the determined attack on the common-See also: When inclosure on any considerable See also:scale again came into favour, it was effected on quite different principles; and before describing what was essentially a modern movement, it will be convenient to give a brief outline of the principles of See also:law applicable to commons at the See also:present day. Law.—The distinguishing feature in law of common land is, that it is land the soil of which belongs to one See also:person, and from which certain other persons take certain profits—for RR¢hts of example, the bite of the grass by the mouth of See also:cattle, common. or gorse, bushes or heather for See also:fuel or See also:litter. The right to take such a profit is a right of common; the right to feed cattle on common land is a right of common of pasture; while the right of cutting bushes, gorse or heather (more rarely of lopping trees) is known as a right of common of See also:estovers (estouviers) or botes (respectively from the See also:Norman-See also:French estouffer, and the Saxon botan, to furnish). Another right of common is that of turbary, or the right to cut See also:turf or See also:peat for fuel. There are also rights of taking See also:sand, See also:gravel or See also:loam for the repair and See also:maintenance of land. The persons who enjoy any of these rights are called commoners. From the See also:sketch of the common-field system of See also:agriculture which has been given,we shall readily infer that a large proportion of the commons of the country, and of the peculiarities of the law See also:relating to commons, are traceable to that system. Thus, common rights are mostly attached to, or enjoyed with, certain lands or houses. A right of common of pasture usually consists of the right to turn out as many cattle as the farm or other private land of the commoner can support in See also:winter; for, as we have seen, the enjoyment of the common, in the village system, belonged to the householders of the village, and was necessarily measured by their holdings in the common fields. The cattle thus commonable are said to be See also:levant and couchant, i.e. uprising and down-lying on the land. But it has now been decided that they need not in fact be so kept. At the present day a commoner may turn out any cattle belonging to him, wherever they are kept, provided they do not exceed in number the See also:head of cattle which can be supported by the stored summer produce of the land in respect of which the right is claimed, together with any winter herbage it produces. The animals which a commoner may usually turn out are those which were employed in the village system—horses, oxen, cows and sheep. These animals are termed commonable animals. A right may be claimed for other animals, such as donkeys, pigs and geese; but they are termed non-commonable, and the right can only be established on See also:proof of See also:special usage. A right of pasture attached to land in the way we have described is said to be appendant or appurtenant to such land. Common of pasture appendant to land can only be claimed for commonable cattle; and it is held to have been originally attached only to arable land, though in claiming the right no proof that the land was originally arable is necessary. This See also:species of common right is, in fact, the See also:direct survival of the use by the village householder of the common of the township; while common of pasture appurtenant
represents rights which See also:grew up between neighbouring townships, or, in later times, by direct See also: So, also, a right of digging sand, gravel, See also:clay or loam is usually appurtenant to land, and must be exercised with reference to the repair of the roads, or the improvement of the soil, of the particular property to which the right is attached. We have already alluded to the fact that, in Norman and later days, every vill or township was associated with some over-lord,—some one responsible to the See also:crown, either directly or through other See also:superior lords, for the holding of the land and the performance of certain duties of See also:defence and military support. To this lord the law has assigned the ownership of the soil of the common of the vill; and the common has for many centuries been styled the See also:waste of the manor. The trees and bushes on the common belong to the lord, subject to any rights of lopping or cutting which the commoners may possess. The ground, sand and subsoil are his, and even the grass, though the commoners have the right to take it by the mouths of their cattle. To the over-lord, also, was assigned a See also:seignory over all the other lands of the vill; and the vill came to be termed his manor. At the present day it is the manorial system which must be invoked in most cases as the See also:foundation of the curiously conflicting rights which co-exist on a common. (See MANOR.) Within the See also:bounds of a manor, speaking generally, there Manorial are three classes of persons possessing an interest commons. in the land, viz.: (a) Persons holding land freely of the manor, or See also:freehold tenants. (b) Persons holding land of the manor by copy of See also:court See also:roll, or See also:copyhold tenants. (c) Persons holding from the lord of the manor, by See also:lease or agreement, or from See also:year to year, land which was originally See also:demesne, or which was once freehold or copyhold and has come into the lord's hands by escheat or See also:forfeiture. Amongst the first two classes we usually find the See also:majority of the commoners on the wastes or commons of the manor.. To every freehold See also:tenant belongs a right of common of pasture on the commons, such right being " appendant " to the land which he holds freely of the manor. This right differs from most other rights of common in the characteristic that actual exercise of the right need not be proved. When once it is shown that certain land is held freely of the manor, it follows of See also:necessity that a right of common of pasture for commonable cattle attaches to the land, and therefore belongs to its owner, and may be exercised by its occupant. " Common appendant," said the Elizabethan See also:judges, "is of common right, and commences by operation of law and in favour of tillage." Now this is exactly what we saw to be the case with reference to the use of the common of the vill by the householder cultivating the arable fields. The use was a necessity, not depending upon the habits of this or that householder; it was a use for common-able cattle only, and was connected with the tillage of the arable lands. It seems almost necessarily to follow that the freeholdtenants of the manor are the representatives of the householders of the vill. However this may be, it is amongst the freehold tenants of the manor that we must first look for commoners on the waste of the manor. Owing, however, to the See also:light See also:character of the services rendered by the freeholders, the connexion of their lands with the manor is often difficult to prove. Copyhold See also:tenure, on the other hand, cannot be lost sight of; and in many manors copyholders are numerous, or were, till quite recently. Copyholders almost invariably possess a right of common on the waste of the manor; and when (as is usual) they exist side by side with freeholders, their rights are generally of the same character. They do not, however, exist as of common right, without proof of usage, but by the custom of the manor. Custom has been defined by a great See also:judge (Sir See also:George See also:Jessel, M.R., in Hammerton v. See also:Honey) as local law. Thus, while the freehold tenants enjoy their rights by the See also:general law of the land, the copyholders have a similar enjoyment by the local law of the manor. This, again, is what one might expect from the See also:ancient constitution of a village community. The copyholders, being originally See also:serfs, had no rights at law; but as they had a See also:share in the tillage of the land, and gradually became possessed of strips in the common fields, or of other plots on which they were settled by the lord, they were admitted by way of See also:indulgence to the use of the common; and the practice hardened into a custom. As might be expected, there is more variety in the details of the rights they exercise. They may claim common for cattle which are not commonable, if the custom extends to such cattle; and their claim is not necessarily connected with arable land. In the present day large numbers of copyhold tenements have been enfranchised, i.e. converted into freehold. The effect of this step is to sever all connexion between the land enfranchised and the manor of which it was previously held. Technically, therefore, the common rights previously enjoyed in respect of the land would be gone. When, however, there is no indication of any intention to extinguish such rights, the courts protect the copyholders in their continued enjoyment; and when an enfranchisement is effected under the statutes passed in modern years, the rights are expressly preserved. The commoners on a manorial common then will be, prima facie, the freeholders and copyholders of the manor, and the persons who own lands which were copyhold of the manor but have been enfranchised. The occupants of lands belonging to the lord of the manor, though they usually turn out their cattle on the common, do so by virtue of the lord's ownership of the soil of the common, and can, as a See also:rule, make no claim to any right of common as against the lord, even though the practice of turning out may have obtained in respect of particular lands for a See also:long See also:series of years. When, however, lands have been sold by the lord of the manor, although no right of common attached by law to such lands in the lord's hands, their owners may subsequently enjoy such a right, if it appears from the See also:language of the deeds of See also:conveyance, and all the surrounding circumstances, that there was an intention that the use of the common should be enjoyed by the purchaser. The rules on this point are very technical; it is sufficient here to indicate that lands bought from a lord of a manor are not necessarily destitute of common rights. So far we have considered common rights as they have arisen out of the manorial system, and out of the still older system of village communities. There may, however, be rights of common quite unconnected with the manorial Rights of system. Such rights may be proved either by producing common not com- a specific grant from the owner of the manor or by nected long usage. It is seldom that an actual grant is with produced, although it would seem likely that such manorial sysfem. grants were not uncommon at one time. But a claim founded on actual user is by no means unusual. Such a claim may be based (a) on immemorial usage, i.e. usage for which no commencement later than the See also:coronation of See also:Richard I. (1189) can be shown, (b) on a presumed modern grant which has been lost, or (c) (in some cases) on the See also:Prescription See also:Act 1832. There are special rules applicable to each kind of claim. A right of common not connected with the manorial system may be, and usually is, attached to land; it may be measured, like a manorial right, by levancy and couchancy, or it may be limited to a fixed number of animals. Rights of the latter character seem to have been not uncommon in the See also:middle ages. In one of his sermons against inclosure, Bishop Latimer tells us his See also:father " had walk (i.e. right of common) for See also:loo sheep." This may have been a right in See also:gross, but was more probably attached to the " farm of £3 or £4 by year at the uttermost " which his father held. A right of common appurtenant may be sold separately, and enjoyed by a purchaser independently of the See also:tenement to which it was originally appurtenant. It then becomes a right of common in gross. A right of common in gross is a right enjoyed irrespective of the ownership or occupancy of any lands. It may exist by See also:express grant, or by user implying a modern lost grant, or by immemorial usage. It must be limited to a certain number of cattle, unless the right is claimed by actual grant. Such rights seldom arise in connexion with commons in the See also:ordinary sense, but are a frequent incident of regulated or stinted pastures; the right is then generally known as a cattle-See also:gate or beast-gate. There may be rights over a common which exclude the owner of the soil from all enjoyment of some particular product of the common. Thus a person, or a class of persons, may be entitled to the whole of the See also:corn, grass, underwood, or sweepage, (i.e. everything which falls to the sweep of the See also:scythe) of a See also:tract of land, without possessing any ownership in the land itself, or in the trees or mines. Such a right is known as a right of See also:sole vesture. A more limited right of the same character is a right of sole pasturage—the exclusive right to take everything growing on the land in question by the mouths of cattle, but not in any other way. Either of these rights may exist throughout the whole year, or during See also:part only. A right of sole common pasturage and herbage was given to a certain class of commoners in Ash-down See also:Forest on the See also:partition of the forest at the end of the 18th See also:century.
We have seen that the common arable fields and common
meadows of a vill were thrown open to the stock of the community
between See also:harvest and See also:seed-time. There is still to be
Rights In found, here and there, a See also:group of arable common common
fields. fields, and occasionally a piece of grass land with many
of the characteristics of a common, which turns out to be a common field or meadow. The See also:Hackney Marshes and the other so-called commons of Hackney are really common fields or common meadows, and along the valley of the See also:Lea a See also:constant See also:succession of such meadows is met with. They are still owned in parcels marked by metes; the owners have the right to grow a See also:crop of See also:hay between See also:Lady day and See also:Lammas day; and from Lammas to See also: See also:Cannock See also:Chase, unhappily inclosed according to law,
though for the most part still lying waste, See also:Dartmoor, and
Ashdown Forest in See also:Sussex, are other instances; and the See also:list
might be greatly lengthened. Space will not permit of any
description of the forest system; it is enough, in this connexion, to say that the common rights in a forest were usually enjoyed by the owners and occupiers of land within its bounds (the class may differ in exact See also:definition, but is substantially See also:equivalent to this) without reference to manorial considerations. Epping Forest was saved by the proof of this right. It is often said that the right was given, or confirmed, to the inhabitants in See also:consideration of the See also:burden of supporting the deer for the See also:pleasure of the See also: But under these statutes the burden of proving that sufficient pasture was left was thrown upon the owner of the soil; such proof can very seldom be given. Moreover, the statutes have never enabled an inclosure to be made against commoners entitled to estovers or turbary. It seems clear that the statutes had become obsolete in the time of Edward VI., or they would not have been re-enacted. And we know that the zealous See also:advocates of inclosure in the 18th century considered them worthless for their purposes. Practically it may be taken that, See also:save where the owner of the soil of a common acquires all the lands in the township (generally coterminous with the parish) with which the common is connected, an inclosure cannot legally be effected by him. And even in the latter case it may be that rights of common are enjoyed in respect of lands outside the parish, and that such rights prevent an inclosure. Modern Inclosure.—When, therefore, the common-field system began to fall out of See also:gear, and the increase of population brought about a demand for an increased See also:production of corn, The it was See also:felt to be necessary to resort to See also:parliament modern for See also:power to effect inclosure. The legislation which Inclosure ensued was based on two principles. One was that Act. all persons interested in the open land to be dealt with should receive a proportionate equivalent in inclosed land; the other, that inclosure should not be prevented by the opposition, or the inability to act, of a small minority. Assuming that inclosure was desirable, no more equitable course could have been adopted, though in details particular acts may have been objectionable. The first act was passed in 1709; but the precedent was followed but slowly, and not till the middle of the 18th century did the See also:annual number of acts attain See also:double figures. The high-See also:water mark was reached in the period from 1765 to 1785, when on an See also:average See also:forty-seven acts were passed every year. From some cause, possibly the very considerable expense attending upon the obtaining of an act, the numbers then began slightly to fall off. In the year 1793 a See also:board of agriculture, apparently similar in character to the See also:chambers of commerce of our own day-, was established. Sir See also: Another See also:parliamentary committee then sat to consider how inclosure might be promoted; and the result was the Inclosure Act 1845, which, though much amended by subsequent legislation, still stands on the statute-See also:book. The chief feature of that act was the See also:appointment of a permanent See also:commission to make in each case all the inquiries previously made (no doubt capriciously and imperfectly) by committees of the two Houses. The commission, on being satisfied of the propriety of an inclosure was to draw up a provisional order prescribing the general conditions on which it was to be carried out, and this order was to be submitted to parliament by the See also:government of the day for See also:confirmation. It is believed that these inclosure orders afford the first example of the provisional order system of legislation, which has attained such large proportions. Again inclosure moved forward, and between 1845 and 1869 (when it received a sudden check) 600,000 acres passed through the hands of the inclosure commission. Taking the whole period of about a century and a half, when parliamentary inclosure was in favour, and making an estimate of acreage where the acts do not give it, the result may be thus summarized: Acres. From 1709 to 1797 2,744,926 „ 18oI to 1842 1,307,964 1845 to 1869 618,000 Add for Forests inclosed under Special Acts See also:Ioo,000 4,770,890 The total area of England being 37,000,000 acres, we shall probably not be far wrong in concluding that about one See also:acre in every seven was inclosed during the period in question. During the first period, the lands inclosed consisted mainly of common arable fields; during the second, many great tracts of See also:moor and fen were reduced to severalty ownership. In the third period, inclosure probably related chiefly to the ordinary manorial common; and it seems likely that, on the whole, England would have gained, had inclosure stopped in 1845. As a fact it stopped in 1869. Before the inclosure commission had been in existence twenty years the feeling of the nation towards commons began to change. The rapid growth open of towns, and especially of London, and the awakening space . e sense of the importance of protecting the public See also:health, . ,
brought about an appreciation of the value of commons as open spaces. Naturally, the See also:metropolis saw the See also:birth of this sentiment. An attempted inclosure in 1864 of the commons at See also:Epsom and See also:Wimbledon aroused strong opposition; and a select committee of the House of Commons was appointed to consider how the London commons could best be preserved. The See also:Metropolitan Board of See also:Works, then in the vigour of youth, though eager to become the open-space authority for London, could make no better See also:suggestion than that all persons interested in the commons should be bought out, that the board should defray the expense by selling parts for See also:building, and should make parks of what was left. Had this See also:advice been followed, London would probably have lost two-thirds of the open space which she now enjoys. Fortunately a small See also:knot of men, who afterwards formed the Commons Preservation Society, took a broader and wiser view. Chief amongst them were the See also:late See also: The lords of the manors in which the London commons lay felt that their opportunity of making a See also:rich harvest out of land, valuable for building, though otherwise worthless, was slipping away; and a See also:battle royal ensued. Inclosures were commenced, and the Statute of Merton prayed in aid. The public retorted by legal proceedings taken in the names of commoners. These proceedings—which culminated in the See also:mammoth suit as to Epping Forest, with the corporation of London as plaintiffs and fourteen lords of manors as defendants—were uniformly successful; and London commons were saved. By degrees the manorial lords, seeing that they could not See also:hope to do better, parted with their interest for a small sum to some local authority; and a large area of the common land, not only in the See also:county of London, but in the sub urbs, is now in the hands of the representatives of the ratepayers, and is definitely appropriated to the recreation of the public. Moreover, the Commons Preservation Society was able to See also:base, upon the See also:uniform success of the commoners in the law courts, a plea for the See also:amendment of the law. The Statute of Merton, we have seen, purports to enable the lord of the soil to inclose a common, if he leaves sufficient pasture for the commoners. This statute was constantly vouched in the litigation about London commons; but in no single instance was an inclosure justified by virtue of its provisions. It thus remained a See also:trap to lords of manors, and a source of controversy and expense. In the year 1893 Lord See also:Thring, at the instance of the Commons Preservation Society, carried through parliament the Commons Law Amendment Act, which provided that in future no inclosure under the Statute of Merton should be valid, unless made with the consent of the Board of Agriculture, which was to consider the expediency of the inclosure from a public point of view. The movement to preserve commons as open spaces soon spread to the rural districts. Under the Inclosure Act of 1845 See also:provision was made for the See also:allotment of a part of the land to be inclosed for field gardens for the labouring Rural commons. poor, and for recreation. But those who were interested in effecting an inclosure often convinced the inclosure commissioners that for some See also:reason such allotments would be useless. To such an extent did the See also:reservation of such allotments become discredited that, in 1869, the commission proposed to parliament the inclosure of 13,000 acres, with the reservation of only one acre for recreation, and none at all for field gardens. This proposal attracted the See also:attention of Henry See also:Fawcett, who, after much inquiry and consideration, came to the conclusion that inclosures were, speaking generally, doing more harm than See also:good to the agricultural labourer, and that, under such conditions as the commissioners were prescribing, they constituted a serious evil. With characteristic intrepidity he opposed the annual inclosure bill (which had come to be considered a See also:mere form) and moved for a committee on the whole subject. The ultimate result was the passing, seven years later, of the Commons Act 1876. This measure, introduced by a Conservative government, laid down the principle that an inclosure should not be allowed unless distinctly shown to be for the benefit, not merely of private persons, but of the neighbourhood generally and the public. It imposed many checks upon the process, and following the course already adopted in the case of metropolitan commons, offered an alternative method of making commons more useful to the nation, viz. their management and regulation as open spaces. The effect of this legislation and of the changed attitude of the House of Commons towards inclosure has been almost to stop that process, except in the case of common fields or extensive See also:mountain wastes. We have alluded to the regulation of commons as open spaces. The See also:primary object of this process is to bring a common under the See also:jurisdiction of some constituted authority, which Regulamay make by-See also:laws, enforceable in a See also:summary way See also:don. before the magistrates of the district, for its protection, and may appoint watchers or keepers to preserve order and prevent wanton See also:mischief. There are several means of attaining Amendment of Statute of Merton. this object. Commons within the metropolitan police district—the Greater London of the registrar-general—are in this respect in a position by themselves. Under the Metropolitan Commons Acts, schemes for their local management may be made by the Board of Agriculture (in which the inclosure commission is now merged) without the consent either of the owner of the soil or the commoners—who, however, are entitled to See also:compensation if they can show that they are injuriously affected. Outside the metropolitan police district a provisional order for regulation may be made under the Commons Act 1876, with the consent of the owner of the soil and of persons representing two-thirds in value of all the interests in the common. And under an act passed in 1899 the See also:council of any See also:urban or rural district may, with the approval of the Board of Agriculture and without recourse to parliament, make a See also:scheme for the management of any common within its district, provided no See also:notice of dissent is served on the board by the lord of the manor or by persons representing one-third in value of such interests in the common as are affected by the scheme. There is yet another way of protecting a common. A parish council may, by agreement, acquire an interest in it, and may make by-laws for its regulation under the Local Government Act 1894. The acts of 1894 and 1899 undoubtedly proceed on right lines. For, with the growth of efficient local government, commons naturally fall to be protected and improved by the authority of the district. It remains to say a word as to the extent of common land still remaining open in England and See also:Wales. In 1843 it was See also:Statistics, estimated that there were still 1o,000,000 acres of common land and common-field land. In 1874 another return made by the inclosure commission made a guess of 2,632,772. These two returns were made from the same materials, viz. the tithe See also:commutation awards. As less than 700,000 acres had been inclosed in the intervening period, it is obvious that the two estimates are mutually destructive. In See also:July 1875 another version was given in the Return of Landowners (generally known as the Modern Domesday Book), compiled from the valuation lists made for the purposes of rating. This return put the commons of the country (not including common fields) at 1,542,648 acres. It is impossible to view any of these returns as accurate. Those compiled from the tithe commutation awards are based largely on estimates, since there are many parishes where the See also:tithes had not been commuted. On the other hand, the valuation lists do not show waste and unoccupied land (which is not rated), and consequently the See also:information as to such lands in the Return of Landowners was based on any materials which might happen to be at the disposal of the clerk of the guardians. All we can say, therefore, is that the acreage of the remaining common land of the country is probably some-where between 1,500,000 and 2,000,000 acres. It is most capriciously distributed. In the Midlands there is very little to be found, while in a county of poor soil, like See also:Surrey, nearly every parish has its common, and there are large tracts of See also:heath and moor. In 1866, returns were made to parliament by the overseers of the poor of the commons within 15 and within 25 M. of Charing See also:Cross. The acreage within the larger area was put at 38,450 acres, and within the smaller at 13,301; but owing to the difference of See also:opinion which sometimes prevails upon the question, whether land is common or not, and the carelessness of some parish authorities as to the accuracy of their returns, even these figures cannot be taken as more than approximately correct. The metropolitan police district, within which the Metropolitan Commons Acts are in force, approaches in extent to a circle of 15 See also:miles' See also:radius. Within this district nearly 12,000 acres of common land have been put under local management, either by means of the Commons Acts or under special legislation. London is fortunate in having secured so much recreation ground on its See also:borders. But when the enormous population of the See also:capital and its rapid growth and expansion are considered, the conclusion is inevitable, that not one acre of common land within an easy railway See also:journey of the metropolis can be spared. Additional information and CommentsThere are no comments yet for this article.
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