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 middle ages.
In one of his sermons against inclosure, Bishop Latimer tells us
his father “had walk (i.e. right of common) for 100 sheep.” This
may have been a right in 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
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 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 ordinary sense, but are a frequent incident of regulated or stinted pastures; the right is then generally known as a cattle-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 corn, grass, underwood, or sweepage, (i.e. everything which falls to the sweep of the scythe) of a 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 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 part only. A right of sole common pasturage and herbage was given to a certain class of commoners in Ashdown Forest on the partition of the forest at the end of the 18th 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 harvest and seed-time. There is still to be found, here and there, a group of arable common fields, and occasionally a piece of grass land with many Rights in common fields. of the characteristics of a common, which turns out to be a common field or meadow. The Hackney Marshes and the other so-called commons of Hackney are really common fields or common meadows, and along the valley of the Lea a constant succession of such meadows is met with. They are still owned in parcels marked by metes; the owners have the right to grow a crop of hay between Lady day and Lammas day; and from Lammas to March the lands are subject to the depasturage of stock. In the case of some common fields and meadows the right of feed during the open time belongs exclusively to the owners; in others to a larger class, such as the owners and occupiers of all lands within the bounds of the parish. Anciently, as we have seen, the two classes would be identical. In some places newcomers not owning strips in the fields were admitted to the right of turn out; in others, not. Hence the distinction. Similar divergences of practice will be found to exist in Switzerland at the present day; nieder-gelassene, or newcomers, are in some communes admitted to all rights, while, in others, privileges are reserved to the bürger, or old inhabitant householders.
Some of the largest tracts of waste land to be found in England are the waste or commonable lands of royal forests or chases. The thickets and pastures of Epping Forest, now happily preserved for London under the guardianship Rights in royal forests. of the city corporation, and the noble woods and far-stretching heaths of the New Forest, will be called to mind. Cannock Chase, unhappily inclosed according to law, though for the most part still lying waste, Dartmoor, and Ashdown Forest in Sussex, are other instances; and the 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 definition, but is substantially 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 consideration of the burden of supporting the deer for the pleasure of the king or of the owner of the chase. It seems more probable that the forest law prevented the growth of the manorial system, and with it those rules which have tended to restrict the class of persons entitled to enjoy the waste lands of the district.
We have seen that in the case of each kind of common there is a division of interest. The soil belongs to one person; other persons are entitled to take certain products of the soil. This division of interest preserves the common as an open space. The commoners cannot inclose, Prevention of inclosure. because the land does not belong to them. The owner of the soil cannot inclose, because inclosure is inconsistent with the enjoyment of the commoners’ rights. At a very early date it was held that the right of a commoner proceeded out of every part of the common, so that the owner of the soil could not set aside part for the commoner and inclose the rest. The Statutes of Merton and Westminster the Second were passed to get over this difficulty. 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 advocates of inclosure in the 18th century considered them worthless for their purposes. Practically it may be taken that, 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 gear, and the increase of population brought about a demand for an increased production of corn, it was felt to be necessary to resort to parliament The modern Inclosure Act. for power to effect inclosure. The legislation which ensued was based on two principles. One was that 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 annual number of acts attain double figures. The high-water mark was reached in the period from 1765 to 1785, when on an average 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 board of agriculture, apparently similar in character to the chambers of commerce of our own day, was established. Sir John Sinclair was its president, and Arthur Young, the well-known agricultural reformer, was its secretary. Owing to the efforts of this body, and of a select committee appointed by the House of Commons on Sinclair’s motion, the first General Inclosure Act was passed in 1801. This act would at the present day be called an Inclosure Clauses Act. It contained a number of provisions applicable to inclosures, which could be incorporated by reference, in a private bill. By this means, it was hoped, the length and complexity, and consequently the expense, of inclosure bills would be greatly diminished. Under the stimulus thus applied inclosure proceeded apace. In the year 1801 no less than 119 acts were passed, and the total
