common rights land inclosure lord manor public commissioners subject lands
COMMONS. • It is a well-known result of the application of the historical method to laws and institutions, that it has reversed many of our leading conceptions of the natural or original forms of property. That the primitive form of property in land was not severalty but commonalty, that land was held not by individuals but by communities, and that individual ownership was slowly evolved out of common ownership, are propositions as nearly as possible the opposite of our a priori ideas on the subject. The existence of rights of common is one of the traces of the ancient system still remaining in our law, but its real significance was for a long time obscured by the feudal theories ou which the law of real property is based.
There seems to be good reason to believe that among the English, as among other Teutonic nations, the system of land-bolding by village communities prevailed. For an account of that system reference may be made to Sir H. Maine's lectures, or to the short essay by Professor Nasse, a translation of which has been published by the Cobden Club (On the Agricultural Community of the Middle Ages). It may be sufficient to state here the bare outlines of the system. The "mark,' or territory occupied by the community, was divided into the following parts : - (1) The township, where were the houses held by heads of families in severalty ; (2) The arable land, divided into several plots, but subject to regulations as to common cultivation - the most usual of which is the three-field system; the land was to be fallow every third year, and the whole community had rights of pasturage on the fallow portion, and on the stubble of the fields under crop at certain portions of the year between harvest and seed-time ; (3) The meadow-land, which in like manner was common for a period after the hay harvest, and was afterwards fenced off in separate allotments for the new crop ; (4) The common or waste land, not appropriated for cultivation, and over which the community had rights of pasturage, wood-cutting, &c. After the Conquest we find the mark superseded by the manor, and although it has long been the fashion to find the absolute beginning of the latter system in the Conquest, there seems to be good reason to believe that its leading elements - the ideas of lordship and tenure - had been developed among the Anglo-Saxons themselves (see Digby's Introduction to the history of the Law of Real Property). At all events, the manorial system became defined and fixed under the Norman lawyers, and remains still the legal basis of property in land. All land is regarded as being held of the king, and the king's tenants might have tenants of their own. The practice of sub-infeudation, as it was called, was stopped by the statute Qnia Emplores, 1290, which enacted that, when a lord alienated a portion of his land, the allelic°, instead of being tenant of the alienor, should take his place as tenant to the lord next above him. Since this statute, therefore, no new manors could be created. All lands were supposed to be traceable originally to a grant from the king. Out of the lands so granted to him, the lord would grant certain portions to free tenants on certain rents and services, and these are the freeholders of the manor. His own portion would be cultivated by villains, or serfs, attached to the soil, and these ultimately developed into the important class of copyholders. There remains the uncultivated and unappropriated land, over winch the freeholders had certain rights of common supposed to be incident to their original grant. Within the manor were certain courts (Court Leet, Court Baron, Customary Court), the most important of which is the Court Baron, or assembly of the freeholders, partly judicial and partly administrative. It is regarded by the common law as the inseparable concomitant of a manor, so that if there be no Court Baron there is no manor. The historical investigations to which we have referred point to the identity of the Court Baron with the assembly of the village community. The lord's waste in like manner represents the common waste of the community not appropriated in severalty, and used by all in common for pasturage, &c. The legal theory, however, supposes that the whole organization is created by grant; the lord is the owner of the soil, and the rights of tenants are merely such as he has granted to them out of consideration for rents and services reserved. Whatever has not been so granted belongs as a matter of course to the lord. The rights of common .come to be regarded as of the nature of servitudes - jam in alieno solo - exceptional privileges granted over land by its real owner to his tenants.
Rights of common enjoyed by the freeholders of the manor as incident to their tenure are said to be appendant, or attached to their holdings. Rights of common not coeval with the original grant, or enjoyed by strangers in respect of land not belonging to the -manor at all, are said to be appurtenant. Rights claimed irrespectively of land altogether are called rights of common in gross. Similar rights in copyholders depend on the custom of the manor.
The most important right of common is Common of Pasture, which if appendant can only be claimed for beasts useful for tillage - such as horses, oxen, and sheep, - and in respect of arable land only (for manure) ; if appurtenant, it may extend to swine, goats, and geese, &c., and is not confined to arable land; if in gross, it is subject to no restriction as to the species of beasts. The claim must be for some number limited and defined, and where no number is fixed, it is restricted to beasts levant and couchant - a phrase which, according to judicial interpretation, means such cattle as the winter eatage of the tenement, together with the hay, &c., obtained from it in summer, could support. Some lands are subject to this common of pasture during certain portions of the year only - e.g., in the case of lammas- lands from the 1st of August, for eight months after which they are held in severalty. This arrangement may be compared with what is said of the village community above. Such lands are said to be commonable.
Common of Piscary is a right of fishing in a particular stream.
Common of Estovers is the right of cutting wood on another's estate. - Common of Turbary is the right of cutting turfs, and must be claimed in respect of land on which a house has been built, as "turves are only wanted to burn in a house."
In some manors there is a right of digging and taking coals, minerals, &c. Subject to these rights, everything belongs to the lord of the manor, and a custom to exclude him from all manner of profit would be held void as being unreasonable.
In our earliest legislation on the subject of commons, the rights of the commoner appear to have a firmer footing than the theory which derives them from the grant of the lord would lead us to expect. The Statute of Merton-(1235) gives relief to the lords wilos, 'Jiorts to improve their wastes have been frustri:lieti by commoners bringing an assize of novel disseisin for their pasture, and the lord in such cases was to be held blameless if sufficient pasture, with ingress and egress, had been provided. It only applied, as we learn from the criticism of Bracton, to common appendant, and to cases where the right is expressly limited in number or kind. The Statute of Westminster the second (1285) extended it to rights appurtenant. Under these statutes inclosures can be made on the following conditions only :- It must be proved that sufficient pasturage has been left for the commoners.
If there is common of pasture in gross, inclosure cannot be made.
The statutes do not authorize inclosures which would infringe upon any other common rights, as turbary, piscary, &c.
They do not affect copyholders.
(See Six Essays on the Preservation of Commons).
It will be observed that, in relation to the rights described, the lord and the commoners are the only parties recognized by the law. The public in general have no rights. It has been alleged, indeed, that the immemorial use of open spaces near large towns by the inhabitants for exercise and recreation raises the presumption of a dedication - a question we need not discuss here. It is chiefly, however, in connection with the needs of the public, especially of the inhabitants of large towns, that the law of commons is still a subject of some practical importance. Until quite recently the in-closure of commons was regarded as a matter affecting the lord alone, or at most the lord and the commoners. Of late, the interest of the public at large in preserving the commons uninclosed has been strenuously asserted, and as we shall see has been recognized in legislation.
At common law, in spite of the predominance given to the rights of the lord, there was no means of converting the common or any portion of it into the severalty of the lard, unless to a comparatively small extent, under the Statutes of Merton and Westminster the second. The increase of population and the growing need for food-producing land made it the interest of the lord, and it may be considered of the public also, that much of the common ground should be brought under cultivation. Down to the year 1800 this was effected by private Inelosure Acts, of which there were as many as 1600 or 1700. The provisions which it had been customary to insert in these special Acts were in 1801, after the manner of which we have so many examples, consolidated in Sir John Sinclair's Inclosure Act, 41 Geo. III. c. 109. At this time the inclosure and cultivation of common lands were looked forward to as a means of in creasing the national wealth. It is not till 1836 that we find any recognition of the desirability, on public grounds, of preventing inclosures under certain circumstances, viz., in the 6 and 7 Will. IV. c. 115, for facilitating the inclosure of open and arable fields (which. applied to what have been called commonable lands and not to manorial wastes). The 55th section forbids inclosures within ten miles of London, or within corresponding distances of smaller towns. Subject to the provisions of these Acts about 2000 private In-closure Acts had been passed, when in 1845 came the General Inclosure Act, 8 and 9 Vict, c. 148. Its object is stated to be to facilitate the inelosure and improvement of commons and other lands, now subject to rights of property, which obstruct cultivation and the productive employment of labour, &c. Commissioners are to be appointed who shall judge of the expedience of all inclosure and superintend its execution. All common lands are brought within the scope of the Act, but manorial wastes are not to be inclosed without the previous sanction of Parliament, which was also made necessary for inclosures within fifteen miles of -,;erlon, or within two miles of any city of 10,000 inhabitants, or two and a half miles of any city of 20;000 inhabitants, and so on. (A later Act, 15 and 16 Vict. c. 79, made the consent of parliament necessary in all cases under this Act.) Village greens are not to be inclosed, and by § 30 the commissioners are authorized to require, as one of the conditions of the inclosure, the appropriation of an allotment for the exercise and recreation of the neighbourhood on the following scale : - In a parish of 10,000 inhabitants not more than 10 acres ; between 5000 and 10,000 inhabitants not more than 8 acres ; between 2000 and 5000 not more than 5 acres ; and under 2000 not more than 4. Allotments might also be made for the labouring poor. Under this Act inclosures proceeded apace, and the commissioners have been accused of unduly favouring inclosure, and neglecting the powers with which they were intrusted for the protection of the public. Alluding to this feeling the Home Secretary (Mr Cross), in proposing the Bill which afterwards became the Act of 1§76, stated that of 414,000 acres which had been inclosed inkier the Act less than 4000 had been dedicated to purposes of recreation and exercise, and he admitted that, whereas in-closures had formerly been treated as a private estate improvement to which the owner was entitled, agreat change of opinion had taken place as to the rights of the public. This feeling found expression in the Metropolitan Commons Act, 1866, which absolutely prohibits all further iuclosure of metropolitan commons, and facilitates schemes for the management and improvement of such commons for the benefit of the public, due compensation being made for beneficial interests affected thereby. This, it will be observed, is a complete change of attitude. Whereas the lord was formerly treated as the teal owner, and allowed to buy off partial interests, the public is now placed in that position, and the lord becomes an encumbrancer, to be bought off like any other.
The revival of public interest in commons led to resistance being offered in courts of law to the unauthorized inclosure of commons by lords of the manor. One of the most im portant of these cases is that of Warrick v. Queen's College, Oxford (6 Chancery Appeals, 716), in which the plaintiff, as a freeholder of the manor of Plumstead, obtained a decree against the defendants, who had inclosed a portio.t of the common of the manor. The judgment of the Lord Chancellor (Hatherley) on that occasion contains a statement of the view now taken by the courts of claims to eights of common. In the Commissioners of Sewers v. Glasse, the Corporation of London defeated attempted in-closures in Epping Forest.
In 1869, a committee of the House of Commons presended a report on metropolitan commons, and many of their recommendations have been embodied in the inclosure Act 1876, of which the following are the chief provisions. The preamble of the Commons Act 1876 states that, under the Inclosure Acts 1845 to 1868, the commissioners are empowered to authorize, by provisional orders subject to assent of Parliament, the inclosure of commons, provided the inclosure is made on such terms as may be necessary for the protection of public interests, and provided they are of opinion that such inclosure is expedient, having regard to the benefit of the neighbourhood; and that it is desirable that circumstances bearing on the expediency of the proposed inclosure should be more fully brought under the notice of the commissioners, and that inclosure of commons in severalty should not be made unless the commissioners are satisfied that it would be of benefit to the neighbourhood as well as to private interests, and that further effect ought to be given to. the provisions relating to allotments for purposes of exercise and recreation. The commissioners may entertain applications either for (1) the regulation or (2) the incloshre of a common. The regulation includes the adjustment of rights and the improvement of a common and the latter comprises (1) draining, manuring, and levelling the common, (2) planting trees, or otherwise beautifying it, (3) making bye-laws, (4) general management, and (5) appointment of conservators. In ease of " inclosure," as well as " regulation, " the commissioners may insert provisions for the benefit of the neighbourhood, e.g., the securing free access to particular points of view, preserving trees or historical objects, reserving playing-grounds, making roads, &c. In the case of suburban commons (i.e., situated within six miles of any town) the sanitary authority shall be represented. The commissioners are directed to require evidence as to the benefit of the neighbourhood, and, in tho ease of inclosure, information as to the advantages of in-closure as compared with regulation. Rules are provided for inspecting the common, holding meetings, &e. The provisional order shall contain all the statutory provisions for the benefit of the neighbourhood that are applicable to the case, and, where the common to be inclosed is waste land of a manor, a description of the allotments for recreation ground. Compensation must be provided for private interests affected by the order. Two-thirds of the persons whose interests are affected must assent to the order, and in the case of a manorial waste the lord must consent, or his representative in interest, before the commissioners can certify the expediency of the order. When the freemen of a town have interests in the common, the consent of two-thirds of them must be obtained. The Inelosure Ads are amended by certain sections relating to field-gardens and recreation-grounds. Encroachments on or inelosure of village-greens are to be deemed a public nuisance. Illegal inclosures on commons settled under this Act are within the jurisdiction of the county court. Persons intending to inclose a common otherwise than under this Act must give three months' notice of their intention by advertisement. The section of the Inclosure Act 1845 which fixes a limit to allotments for recreation-grounds is repealed. The Act does not apply to metropolitan commons. it.)