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Capitulations signify that which is arranged under Termination. Commercial treaties are usually condistinct headings; the Turkish phrase is “ahid nameh,” cluded for a term of years, and either lapse at the end of whereas a treaty is "mouahedé ” —the latter does, and the this period, or are terminable then, or subsequently, if former does not, signify a reciprocal engagement. Thus, either State gives the required notice. When a portion of although the Turkish capitulations are not in themselves a country establishes its independence, for example the treaties, yet by subsequent confirmation they have acquired several American Republics, according to present usage the force of commercial treaties, of perpetual duration as foreign trade is placed on a uniform most favoured regards substance and principles, while details, such as nation footing, and fresh treaties are entered into to rates of customs duties, may, by mutual consent, be varied regulate the commercial relations of the new communities. from time to time.

In the case of former Turkish provinces, the capitulations The most favoured nation article already referred to remain in force in principle until they are replaced by new concedes to the State in the treaty with which it is con engagements. If one State is absorbed into another, for cluded whatever advantages in the matters comprised instance Texas into the United States, or when territory within its stipulations have been allowed to any foreign passes by conquest, for instance Alsace to Germany, the or third State. It does not in itself directly confer any commercial treaties of the new supreme Government take particular rights, but sums up the whole of the rights in effect. In administered territories, Bosnia and Cyprus the matters therein mentioned which have been or may for instance, and in protected territories, it depends on be granted to foreign countries. The value of the privi the policy of the administering power how far the preleges under this article accordingly varies with the con vious fiscal system shall remain in force. When the ditions as to these rights in each State which concedes this separate Italian States were united into the Kingdom of treatment.

Italy in 1861, the commercial engagements of Sardinia

superseded those of the other States, but fresh treaties The article is drafted in different form :

were concluded by the new kingdom to place international (1) That contracting States A. and B. agree to extend to each other whatever rights and privileges they concede to countries C.

relations on a regular footing. When the German Empire and D., or to C. and D. and any other country. The object in this

was established under the king of Prussia in 1871, instance is to ensure specifically to B. and A. whatever advantages the commercial engagements of any State which were at C. and D. may possess. A recent instance is Article XI. of the

variance with a Zollverein treaty were superseded by that treaty of May 10, 1871, between France and Germany, which binds them respectively to extend to each other whatever advantages they

treaty. grant to Austria, Belgium, Great Britain, the Netherlands, Russia, and Switzerland.

The present scope of commercial treaties is well expressed by (2) The present general formula : A. and B. agree to extend to Monsieur Calvo in his work on International Law. They provide each other whatever advantages they concede to any third country ;

for the importation, exportation, transit, transhipment, and bondand engage that no other or higher duties shall be levied on the ing of merchandise; customs tariffs ; navigation charges ; quarantine; importation into A. and B. respectively of goods the produce or the admission of vessels to roadsteads, ports, and docks; coasting manufacture of B. and A. than are levied on the like goods the trade; the admission of consuls and their rights; fisheries ; they produce or manufacture of any third country the most favoured determine the local position of the subjects of each State in the in this respect. There is a similar clause in regard to exportation.

other country in regard to residence, property, payment of taxes (3) The conditional or reciprocity formula, often used in the 18th or exemptions, and military service ; nationality ; and a most and in the early part of the 19th century, namely, that whenever favoured nation clause. They usually contain a termination, and A. and B. make special concessions in return for corresponding sometimes a colonial Article. Some of the matters enumerated by concessions, B. and A. respectively are either excluded from par Monsieur Calvo-consular privileges, fisheries, and nationality-are ticipation therein, or must make some additional equivalent con now dealt with by separate conventions. Contraband and neutral cession in order to participate in those advantages.

trade are not included as frequently as they were in the 18th It may further be observed that the word “like” relates to the century. goods themselves, to their material or quality, not to conditions of The preceding statement shows that commercial treaties afford manufacture, mode of conveyance, or anything beyond the fact

of to foreigners, personally, legal rights, and relief from technical their precise description ; small local facilities allowed to traffic disabilities: they afford security to trade and navigation, and between conterminous land districts are not at variance with this regulate other matters comprised in their provisions. In Europe article.

the general principles established by the series of treaties 1860-66

hold good, namely, the substitution of uniform rates of customs Colonies. The application of commercial treaties to duties for prohibitions or differential rates. The disadvantages colonies depends upon the wording of each treaty. The bargaining, whereas each State should act independently as its

urged are that these treaties involve Government interference and earlier colonial policy of European States was to subor interests require, that they are opposed to free trade, and restrict dinate colonial interests to those of the mother country, to the fiscal freedom of the legislature. It may be observed that reserve colonial trade for the mother country, and to abstain

these objections imply some confusion of ideas. All contracts from engagements contrary to these general rules. France,

may be designated bargains, and some of the details of commercial

treaties in Monsieur Calvo's enumeration enter directly into the Portugal, and Spain have adhered in principle to this functions of government; moreover, countries cannot remain policy. Germany and Holland have been more liberal. isolated. Tariff arrangements are, however, open to controversy. The self - government enjoyed by the larger British Without discussing the Methuen Treaty (notice was given by the colonies has led since 1886 to the insertion of an article

Portuguese Government in 1835 that it should be no longer

operative), it may be admitted that its policy would not now be in British commercial and other treaties whereby the

adopted. If, however, two countries agree by simultaneous action assent of each of these colonies, and likewise of India, is to adopt fixed rates of duty, this agreement is favourable to reserved before they apply to each of these possessions. com

commerce, and it is not apparent how it is contrary to free trade And further, the fact that certain other British colonies

principles. If the Legislature is restricted from imposing prohibi

tions or differential duties, this restriction is not injurious; and are now within the sphere of commercial intercourse

when maximum rates of duty are settled, this restriction cannot controlled by the United States, has since 1891 induced do harm if its duration is for a limited period ; security in business the British Government to enter into special agreements

transactions is provided by such tariff arrangements.

Our conclusions areon behalf of colonies for whose products the United States

(1) that under the varying jurisprudence of nations commercial is now the chief market. As regards the most favoured

treaties are adopted by common consent; nation article, it is to be remembered that the mother (2) that their provisions depend upon the general and fiscal country and colonies are not foreign countries with respect policy of each State ; to each other. The most favoured nation article, therefore,

(3) that tariff arrangements, if judiciously settled, benefit trade;

(4) that prohibitions, and discriminating or differential duties, does not preclude special arrangements between the mother

are injurious to trade ; and to international relations; country and colonies, nor between colonies.

(5) that the most favoured nation clause leads to equality of

treatment and simplification of tariffs, and has become a most common, now ascribed by the law to the lord being a valuable provision alike for persons, trade, and navigation ;

remnant of his ownership of all the lands of the vill. (See (6) that commercial treaties are now entered into by all States ; and that they are necessary under modern conditions of commercial Manor.) intercourse between nations.

(C. M. K.*)

At whatever date the over-lord first appeared, and

whatever may have been the personal relations of the Commons.-Early History.Commons are a relic villagers to him from time to time after his appearance, of the system on which the lands of England were for there can be hardly any doubt that the village lands, the most part cultivated during the Middle Ages. The whether arable, meadow, or waste, were substantially country was divided into vills, or townships — often, the property of the villagers for the purposes of use though not necessarily, or always, coterminous with and enjoyment. They resorted freely to the common the parish. In each stood a cluster of houses, a for such purposes as were incident to their system of village, in which dwelt the men of the township, and agriculture, and regulated its use amongst themselves. around the village lay the arable fields and other lands, The idea that the common was the “lord's waste," and which they worked as one common farm. Save for a few that he had the power to do what he liked with it, small inclosures near the village—for gardens, orchards, or subject to specific and limited qualifying rights in others, paddocks for young stock—the whole township was free was, there is little doubt, the creation of the Norman from permanent fencing. The arable lands lay in large lawyers. tracts, divided into compartments or fields, usually three One of the earliest assertions of the lord's proprietary in number, to receive in constant rotation the triennial interest in waste lands is contained in the Statute of succession of wheat (or rye), spring crops (such as barley, Merton, a statute which, it is well to notice, Statutes oats, beans, or peas), and fallow. Low-lying lands were was passed in one of the first assemblies of the of Merton used as meadows, and there were sometimes pastures fed ac Barons of England, before the Commons of the and Westcording to fixed rules. The poorest land of the township Realm were summoned to Parliament. This minster

the Second was left waste—to supply feed for the cattle of the com- statute, which became law in the year 1235, promunity, fuel, wood for repairs, and any other commodity of vided that the great men of England (which had enfeoffed a renewable or practically inexhaustible character. This knights and their freeholders of small tenements in their waste land is the common of our own days.

great manors) "might "make their profit of their lands, It would seem likely that at one time there was wastes, woods, and pastures,” if they left sufficient pasture no division, as between individual inhabitants or house for the service of the tenements they had granted. Some holders, of any of the lands of the township, but only of fifty years later, another statute, that of Westminster the the products. But so far back as accurate information Second, supplemented the Statute of Merton by enabling the extends the arable land is found to be parcelled out, each lord of the soil to inclose common lands, not only against his householder owning strips in each field. These strips own tenants, but against “neighbours” claiming pasture are always long and narrow, and lie in sets parallel with there. These two pieces of legislation undoubtedly mark one another. The plough for cultivating the fields was the growth of the doctrine which converted the over-lord's maintained at the common expense of the village, and territorial sway into property of the modern kind, and a the draught oxen were furnished by the householders. corresponding loosening of the hold of the rural townships From the time when the crop was carried till the next on the wastes of their neighbourhood. To what extent the sowing, the field lay open to the cattle of the whole vill, two Acts were used, it is very difficult to say. We know, which also had the free run of the fallow field throughout from later controversies, that they made no very great

But when two of the three fields were under change in the system on which the country was cultivated, crops, and the meadows laid up for hay, it is obvious that

a system to which, as we have seen, commons the cattle of the township required some other resort essential. In some counties, indeed, inclosures had, by for pasturage. This was supplied by the waste or the Tudor period, made greater progress than in others.

Upon it the householder turned out the oxen Tusser, in his eulogium on inclosed farming, cites Suffolk and horses which he contributed to the plough, and the and Essex as inclosed counties by way of contrast to cows and sheep, which were useful in manuring the Norfolk, Cambridgeshire, and Leicestershire, where the common fields,—in the words of an old law case : “horses open or "champion ” (champain) system prevailed. The and oxen to plough the land, and cows and sheep to Statutes of Merton and Westminster may have had compester it.”

Thus the use of the common by each something to do with the progress of inclosed farming; householder was naturally measured by the stock which but it is probable that their chief operation lay in he kept for the service of the common fields; and furnishing the lord of the manor with a farm on the new when, at a later period, questions arose as to the ex system, side by side with the common fields, or with a tent of the rights on the common, the necessary practice deer park. furnished the rule, that the commoner could turn out The first event which really endangered the village as many head of cattle as he could keep by means of system was the coming of the Black Death. the lands which were parcelled out to him, —the rule is said to have swept away half the population of levancy and couchancy, which has come down to the of the country. The disappearance, by no present day.

means uncommon, of a whole family gave the In the earliest post-Conquest times the vill or town- over-lord of the vill the opportunity of appropriating, by ship is found to be associated with an over-lord. There

way of escheat, the holding of the household in the common has been much controversy on the question, fields. The land-holding population of the townships and

whether the vill originally owned its lands free the persons interested in the commons were thus sensibly township.

from any control, and was subsequently reduced diminished. to a state of subjection and to a large extent deprived of During the Wars of the Roses the small cultivator is its ownership, or whether its whole history has been one thought to have again made headway. But his diminished of gradual emancipation, the ownership of the waste, or numbers, and the larger interest which the lords had

1. There is an entry on the Court Rolls of the Manor of Wimbledon acquired in the lands of each vill, no doubt facilitated of the division amongst the inhabitants of the vill of the crab-apples the determined attack on the common-field system which growing on the common.

marked the reigns of Henry VIII. and Edward VI.

the year.



This scourge

The Black Death.

Status of


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This attack, which had for its chief object the conver the land. But it has now been decided that they need not sion of arable land into pasture for the sake of sheep- in fact be so kept. At the present day a commoner may breeding, was the outcome of many causes.

It was no turn out any cattle belonging to him, wherever they are kept, longer of importance to a territorial magnate to possess provided they do not exceed in number the head of cattle The Tudor a large body of followers pledged to his in- which can be supported by the stored summer produce of agrarian terests by their connexion with the land. On the land in respect of which the right is claimed, together

the other hand, wool commanded a high price, with any winter herbage it produces. The animals which tion.

and the growth of towns and of foreign commerce a commoner may usually turn out are those which were supplied abundant markets. At the same time the confisca- employed in the village system-horses, oxen, cows, and tion of the monastic possessions introduced a race of new sheep. These animals are termed commonable animals. over-lords—not bound to their territories by any family A right may be claimed for other animals, such as donkeys, traditions, and also tended to spread the view that pigs, and geese; but they are termed non-commonable, the strong hand was its own justification. In order to and the right can only be established on proof of special keep large flocks and send many bales of wool to market, usage. A right of pasture attached to land in the way each landowner strove to increase his range of pasture,

we have described is said to be “appendant” or appurand with this view to convert the arable fields of his vill tenant” to such land. Common of pasture appendant to into grass land. There is abundant evidence both from land can only be claimed for commonable cattle; and the complaints of writers such as Latimer and Sir Thomas it is held to have been originally attached only to arable More, and from the Statutes and Royal Commissions of land, though in claiming the right no proof that the land the day, that large inclosures were made at this time, was originally arable is necessary. This species of common and that the process was effected with much injustice and right is, in fact, the direct survival of the use by the accompanied by great hardship. Where,” says Bishop village householder of the common of the township; while Latimer in one of his courageous and vigorous denuncia common of pasture appurtenant represents rights which tions of “inclosers and rent-raisers,” “ there have been grew up between neighbouring townships, or, in later many householders and inhabitants, there is now but a times, by direct grant from the owner of the soil of the shepherd and his dog.” In the full tide of this movement, common to some other landowner, or (in the case of and despite Latimer's appeals, the Statutes of Merton and copyholders) by local custom. Westminster the Second were confirmed and re-enacted. The characteristic of connexion with house or land also Both common fields and commons no doubt disappeared in marks other rights of common. Thus a right of taking many places; and the country saw the first notable instal- gorse or bushes, or of lopping wood for fuel, called firement of inclosure. But from the evidence of later years bote, is limited to the taking of such fuel as may be it is clear that a very large area of the country was still necessary for the hearths of a particular house, and no cultivated on the common-field system for another couple more may be taken than is thus required.

The same of centuries. When inclosure on any considerable scale condition applies to common of turbary, which in its more again came into favour, it was effected on quite different usual form authorizes the commoner to cut the heather, principles; and before describing what was essentially a which grows thickly upon poor soils, with the roots and modern movement, it will be convenient to give a brief adhering earth, to a depth of about 9 inches. Similarly, outline of the principles of law applicable to commons at wood taken for the repairs of buildings (house-bote), or the present day.

of hedges (hedge-bote or hey-bote), must be limited in Law.—The distinguishing feature in law of common quantity to the requirements of the house, farm buildings, land is, that it is land the soil of which belongs to one and hedges of the particular property to which the right

person, and from which certain other persons is attached. And heather taken for litter cannot be taken Rights of Common.

take certain profits-for example, the bite of the in larger quantities than is necessary for manuring

grass by the mouth of cattle, or gorse, bushes, the lands in respect of which the right is enjoyed. It is or heather for fuel or litter. The right to take such a illegal to take the wood or heather from the common, and profit is a right of common; the right to feed cattle on to sell it to any one who has not himself a right to take it. common land is a right of common of pasture; while So, also, a right of digging sand, gravel, clay, or loam the right of cutting bushes, gorse, or heather (more is usually appurtenant to land, and must be exercised with rarely of lopping trees) is known as a right of common reference to the repair of the roads, or the improvement of of estovers or botes (from the Norman-French estouffer, the soil, of the particular property to which the right is and the Saxon botan, to furnish). Another right of attached. common is that of turbary, or the right to cut turf We have already alluded to the fact that, in Norman or peat for fuel. There are also rights of taking sand, and later days, every vill or township was associated with gravel, or loam for the repair and maintenance of land. some over-lord, —some one responsible to the crown, either The persons who enjoy any of these rights are called directly or through other superior lords, for the holding of commoners.

the land and the performance of certain duties of defence From the sketch of the common-field system of and military support. To this lord the law has assigned agriculture which has been given, we shall readily infer the ownership of the soil of the common of the vill; and that a large proportion of the commons of the country, the common has for many centuries been styled the waste and of the peculiarities of the law relating to commons, are

of the manor.

The trees and bushes on the common traceable to that system. Thus, common rights are mostly belong to the lord, subject to any rights of lopping or attached to, or enjoyed with, certain lands or houses. X cutting which the commoners may possess. The ground, right of common of pasture usually consists of the right to sand, and subsoil are his, and even the grass, though the turn out as many cattle as the farm or other private commoners have the right to take it by the mouths of their land of the commoner can support in winter; for, as

cattle. To the over-lord, also, was assigned a seignory over we have seen, the enjoyment of the common, in the all the other lands of the vill; and the vill came to be village system, belonged to the householders of the village, termed his manor. At the present day it is the manorial and was necessarily measured by their holdings in the system which must be invoked in most common fields. The cattle thus commonable are said to foundation of the curiously conflicting rights which cobe levant and couchant, i.e., uprising and down-lying on exist on a common. (See MANOR.)

as the


Such not con

Within the bounds of a manor, speaking generally, there such rights, the courts protect the copyholders in their con

are three classes of persons possessing an interest tinued enjoyment; and when an enfranchisement is effected Manorial in the land, viz. :

under the statutes passed in modern years, the rights are Commons.

(a) Persons holding land freely of the manor, expressly preserved. The commoners on a manorial comor freehold tenants.

mon then will be, primâ facie, the freeholders and copy(6) Persons holding land of the manor by copy of Court holders of the manor, and the persons who own lands which Roll, or copyhold tenants.

were copyhold of the manor but have been enfranchised. (c) Persons holding from the lord of the manor, by The occupants of lands belonging to the lord of the lease or agreement, or from year to year, land which was manor, though they usually turn out their cattle on the originally

demesne, or which was once freehold or copyhold common, do so by virtue of the lord's ownership of the soil and has come into the lord's hands by escheat or forfeiture. of the common, and can, as a rule, make no claim to any

Amongst the first two classes we usually find the majority right of common as against the lord, even though the practice of the commoners on the wastes or commons of the manor. of turning out may have obtained in respect of particular To every freehold tenant belongs a right of common of lands for a long series of years. When, however, lands pasture on the commons, such right being "appendant " have been sold by the lord of the manor, although no right to the land which he holds freely of the manor. This of common attached by law to such lands in the lord's right differs from most other rights of common in the hands, their owners may subsequently enjoy such a right, characteristic that actual exercise of the right need not if it appears from the language of the deeds of conveyance, be proved. When once it is shown that certain land is and all the surrounding circumstances, that there was an held freely of the manor, it follows of necessity that a intention that the use of the common should be enjoyed right of common of pasture for commonable cattle attaches by the purchaser. The rules on this point are very to the land, and therefore belongs to its owner, and may technical; it is sufficient here to indicate that lands be exercised by its occupant. Common appendant," bought from a lord of a manor are not neces

cessarily said the Elizabethan judges, “is of common right, and destitute of common rights. commences by operation of law and in favour of tillage.” So far we have considered common rights as they have

Now this is exactly what we saw to be the case with arisen out of the manorial system, and out of the still reference to the use of the common of the vill by the older system of village communities. There

Rights of householder cultivating the arable fields. The use was may, however, be rights of common quite una necessity, not depending upon the habits of this or that connected with the manorial system. householder; it was a use for commonable cattle only, and rights may be proved either by producing a nected with was connected with the tillage of the arable lands. It specific grant from the owner of the manor or by


system. seems almost necessarily to follow that the freehold tenants long usage. It is seldom that an actual grant of the manor are the representatives of the householders is produced, although it would seem likely that such grants of the vill. However this may be, it is amongst the were not uncommon at one time. But a claim founded freehold tenants of the manor that we must first look for on actual user is by no means unusual. Such a claim may commoners on the waste of the manor.

be based (a) on immemorial usage, i.e., usage for which Owing, however, to the light character of the services no commencement later than the coronation of Richard I. rendered by the freeholders, the connexion of their lands can be shown, (6) on a presumed modern grant which with the manor is often difficult to prove. Copyhold has been lost, or (c) (in some cases) on the Prescription Act. tenure, on the other hand, cannot be lost sight of; and in There are special rules applicable to each kind of claim. many manors copyholders are numerous, or were, till quite A right of common not connected with the manorial recently. Copyholders almost invariably possess a right system may be, and usually is, attached to land; it may of common on the waste of the manor; and when (as is be measured, like a manorial right, by levancy and couchusual) they exist side by side with freeholders, their rights ancy, or it may be limited to a fixed number of animals. are generally of the same character. They do not, however, Rights of the latter character seem to have been not unexist as of common right, without proof of usage, but by common in the Middle Ages. In one of his sermons against the custom of the manor. Custom has been defined by a inclosure, Bishop Latimer tells us his father “had walk (i.e., great judge (the late Sir George Jessel, M.R.) as local law. right of common) for 100 sheep.” This may have been a Thus, while the freehold tenants enjoy their rights by the right in gross, but was more probably attached to the "farm general law of the land, the copyholders have a similar of £3 or £4 by year at the uttermost” which his father enjoyment by the local law of the manor. This, again, is held. In a recent case a right of common for 200 sheep what one might expect from the ancient constitution of over the waste of the manor of Banstead was established in a village community. The copyholders, being originally respect of the manor of South Tadworth. Such a right serfs, had no rights at law; but as they had a share in may be sold separately, and enjoyed by a purchaser inthe tillage of the land, and gradually became possessed of dependently of the tenement to which it was originally strips in the common fields, or of other plots on which appurtenant. It then becomes a right of common in gross. they were settled by the lord, they were admitted by way A right of common in gross is a right enjoyed irreof indulgence to the use of the common; and the practice spective of the ownership or occupancy of any lands. It hardened into a custom. As might be expected, there is may exist by express grant, or by user implying a modern more variety in the details of the rights they exercise. lost grant, or by immemorial usage. It must be limited They may claim common for cattle which are not com to a certain number of cattle, unless the right is claimed monable, if the custom extends to such cattle; and their by actual grant. Such rights seldom arise in connexion claim is not necessarily connected with arable land. with commons in the ordinary sense, but are a frequent

In the present day large numbers of copyhold tenements incident of regulated or stinted pastures; the right is then have been enfranchised, i.e., converted into freehold. The generally known as a cattle-gate or beast-gate. effect of this step is to sever all connexion between the There may be rights over a common which exclude the land enfranchised and the manor of which it was previously owner of the soil from all enjoyment of some particular held. Technically, therefore, the common rights previously product of the common. Thus a person, or a class of enjoyed in respect of the land would be gone. When, how- persons, may be entitled to the whole of the corn, grass, ever, there is no indication of any intention to extinguish underwood, or sweepage (i.e., everything which falls to the

common fields.

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sweep of the scythe) of a tract of land, without possessing | cannot inclose, because inclosure is inconsistent with the any ownership in the land itself, or in the trees or mines. enjoyment of the commoners' rights. At a very early Such a right is known as a right of sole vesture.

date it was held that the right of a commoner proceeded A more limited right of the same character is a right out of every part of the common, so that the owner of of sole pasturage—the exclusive right to take everything the soil could not set aside part for the commoner and growing on the land in question by the mouths of cattle, inclose the rest. The Statutes of Merton and Westminster but not in any other way. Either of these rights may the Second were passed to get over this difficulty. But exist throughout the whole year, or during part only. A under these statutes the burden of proving that sufficient right of sole common pasturage and herbage was given to pasture was left was thrown upon the owner of the soil ; a certain class of commoners in Ashdown Forest on the such proof can very seldom be given. Moreover, the partition of the forest at the end of the 18th century. statutes have never enabled an inclosure to be made

We have seen that the common arable fields and against commoners entitled to estovers or turbary. It common meadows of a vill were thrown open to the seems clear that the statutes had become obsolete in the

stock of the community between harvest and time of Edward VI., or they would not have been reRights in

seed-time. There is still to be found, here enacted. And we know that the zealous advocates of
and there, a group of arable common fields, inclosure in the 18th century considered them worthless

and occasionally a piece of grass land with many for their purposes. Practically it may be taken that, save
of the characteristics of a common, which turns out to where the owner of the soil of a common acquires all the
be a common field or meadow. The Hackney Marshes lands in the township (generally coterminous with the
and the other so-called commons of Hackney are really parish) with which the common is connected, an inclosure
common fields or common meadows, and along the valley cannot legally be effected by him. And even in the latter
of the Lea a constant succession of such meadows is case it may be that rights of common are enjoyed in
met with. They are still owned in parcels marked by respect of lands outside the parish, and that such rights
metes; the owners have the right to grow a crop of hay prevent an inclosure.
between Lady Day and Lammas Day; and from Lammas Modern Inclosure.—When, therefore, the common-field
to March the lands are subject to the depasturage of stock. system began to fall out of gear, and the increase of
In the case of some common fields and meadows the right population brought about a demand for an
of feed during the open time belongs exclusively to the increased production of corn, it was felt to be The modern
owners; in others to a larger class, such as the owners necessary to resort to Parliament for

power to and occupiers of all lands within the bounds of the parish. effect inclosure. The legislation which ensued Anciently, as we have seen, the two classes would be was based on two principles. One was, that all persons inidentical. In some places new-comers not owning strips terested in the open land to be dealt with should receive in the fields were admitted to the right of turn out; in a proportionate equivalent in inclosed land ; the other, that others, not. Hence the distinction. Similar divergences inclosure should not be prevented by the opposition, or of practice will be found to exist in Switzerland at the the inability to act, of a small minority. Assuming that present day; nieder-gelassene, or new-comers, are in some inclosure was desirable, no more equitable course could communes admitted to all rights, while, in others, privileges have been adopted, though in details particular Acts may are reserved to the bürger, or old inhabitant householders. have been objectionable. The first Act was passed in

Some of the largest tracts of waste land to be found 1709; but the precedent was followed but slowly, and in England are the waste or commonable lands of Royal not till the middle of the 18th century did the annual

Forests or Chases. The thickets and pastures number of Acts attain double figures. The high-water Rights in

of Epping Forest, now happily preserved for mark was reached in the peridd from 1765 to 1785, Royal Forests.

London under the guardianship of the City when on an average forty-seven Acts were passed every

Corporation, and the noble woods and far- year. From some cause, possibly the very considerstretching heaths of the New Forest, will be called to able expense attending upon the obtaining of an Act, the mind. Cannock Chase, unhappily inclosed according to numbers then began slightly to fall off. law, though for the most part still lying waste, Dartmoor, 1793 a Board of Agriculture, apparently similar in charand Ashdown Forest in Sussex, are other instances; and acter to the Chambers of Commerce of our own day, was the list might be greatly lengthened. Space will not established. Sir John Sinclair was its president, and permit of any description of the forest system; it is Arthur Young, the well-known agricultural reformer, was enough, in this connexion, to say that the common rights its secretary. Owing to the efforts of this body, and of a in a forest were usually enjoyed by the owners and occu Select Committee appointed by the House of Commons on piers of land within its bounds (the class may differ in Sinclair's motion, the first General Inclosure Act was passed exact definition, but is substantially equivalent to this) in 1801. This Act would at the present day be called an without reference to manorial considerations. Epping Inclosure Clauses Act. It contained a number of provisions Forest was saved by the proof of this right. It is often applicable to inclosures, which could be incorporated, by said that the right was given, or confirmed, to the inhabit- reference, in a private Bill. By this means, it was hoped, ants in consideration of the burden of supporting the deer the length and complexity, and consequently the expense, for the pleasure of the king or of the owner of the chase. of inclosure Bills would be greatly diminished. Under the It seems more probable that the forest law prevented the stimulus thus applied inclosure proceeded apace. In the growth of the manorial system, and with it those rules year 1801 no less than 119 Acts were passed, and the total which have tended to restrict the class of persons entitled area inclosed probably exceeded 300,000 acres. Three to enjoy the waste lands of the district.

inclosures in the Lincolnshire Fens account for over We have seen that in the case of each kind of common 53,000 acres. As before, the movement after a time there is a division of interest. The soil belongs to one spent its force, the annual average of Acts falling to about person; other persons

are entitled to take twelve in the decade 1830–40. Another Parliamentary Preven

certain products of the soil. This division of committee then sat to consider how inclosure might be protion of interest preserves

the common inclosure.

open moted ; and the result was the Inclosure Act, 1845, which, space. The commoners cannot inclose, because though much amended by subsequent legislation, still the land does not belong to them. The owner of the soil | stands on the statute-book. The chief feature of that


In the year




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