Capitulations signify that which is arranged under distinct headings; the Turkish phrase is "ahid nameh,” whereas a treaty is "mouahedé "—the latter does, and the former does not, signify a reciprocal engagement. Thus, although the Turkish capitulations are not in themselves treaties, yet by subsequent confirmation they have acquired the force of commercial treaties, of perpetual duration as regards substance and principles, while details, such as rates of customs duties, may, by mutual consent, be varied from time to time.

The most favoured nation article already referred to concedes to the State in the treaty with which it is concluded whatever advantages in the matters comprised within its stipulations have been allowed to any foreign or third State. It does not in itself directly confer any particular rights, but sums up the whole of the rights in the matters therein mentioned which have been or may be granted to foreign countries. The value of the privileges under this article accordingly varies with the conditions as to these rights in each State which concedes this treatment.

The article is drafted in different form:

(1) That contracting States A. and B. agree to extend to each other whatever rights and privileges they concede to countries C. and D., or to C. and D. and any other country. The object in this instance is to ensure specifically to B. and A. whatever advantages C. and D. may possess. A recent instance is Article XI. of the treaty of May 10, 1871, between France and Germany, which binds them respectively to extend to each other whatever advantages they grant to Austria, Belgium, Great Britain, the Netherlands, Russia, and Switzerland.

(2) The present general formula: A. and B. agree to extend to each other whatever advantages they concede to any third country; and engage that no other or higher duties shall be levied on the importation into A. and B. respectively of goods the produce or manufacture of B. and A. than are levied on the like goods the produce or manufacture of any third country the most favoured in this respect. There is a similar clause in regard to exportation. (3) The conditional or reciprocity formula, often used in the 18th and in the early part of the 19th century, namely, that whenever A. and B. make special concessions in return for corresponding concessions, B. and A. respectively are either excluded from participation therein, or must make some additional equivalent concession in order to participate in those advantages.

It may further be observed that the word "like" relates to the goods themselves, to their material or quality, not to conditions of manufacture, mode of conveyance, or anything beyond the fact of their precise description; small local facilities allowed to traffic between conterminous land districts are not at variance with this article.

Colonies. The application of commercial treaties to colonies depends upon the wording of each treaty. The earlier colonial policy of European States was to subordinate colonial interests to those of the mother country, to reserve colonial trade for the mother country, and to abstain from engagements contrary to these general rules. France, Portugal, and Spain have adhered in principle to this policy. Germany and Holland have been more liberal. The self-government enjoyed by the larger British colonies has led since 1886 to the insertion of an article in British commercial and other treaties whereby the assent of each of these colonies, and likewise of India, is reserved before they apply to each of these possessions. And further, the fact that certain other British colonies are now within the sphere of commercial intercourse controlled by the United States, has since 1891 induced the British Government to enter into special agreements on behalf of colonies for whose products the United States is now the chief market. As regards the most favoured nation article, it is to be remembered that the mother country and colonies are not foreign countries with respect to each other. The most favoured nation article, therefore, does not preclude special arrangements between the mother country and colonies, nor between colonies.

Termination. Commercial treaties are usually concluded for a term of years, and either lapse at the end of this period, or are terminable then, or subsequently, if either State gives the required notice. When a portion of a country establishes its independence, for example the several American Republics, according to present usage foreign trade is placed on a uniform most favoured nation footing, and fresh treaties are entered into to regulate the commercial relations of the new communities. In the case of former Turkish provinces, the capitulations remain in force in principle until they are replaced by new engagements. If one State is absorbed into another, for instance Texas into the United States, or when territory passes by conquest, for instance Alsace to Germany, the commercial treaties of the new supreme Government take effect. In administered territories, Bosnia and Cyprus for instance, and in protected territories, it depends on the policy of the administering power how far the previous fiscal system shall remain in force. When the separate Italian States were united into the Kingdom of Italy in 1861, the commercial engagements of Sardinia superseded those of the other States, but fresh treaties were concluded by the new kingdom to place international relations on a regular footing. When the German Empire was established under the king of Prussia in 1871, the commercial engagements of any State which were at variance with a Zollverein treaty were superseded by that treaty.

The present scope of commercial treaties is well expressed by Monsieur Calvo in his work on International Law. They provide for the importation, exportation, transit, transhipment, and bonding of merchandise; customs tariffs; navigation charges; quarantine; the admission of vessels to roadsteads, ports, and docks; coasting trade; the admission of consuls and their rights; fisheries; they determine the local position of the subjects of each State in the other country in regard to residence, property, payment of taxes or exemptions, and military service; nationality; and a most favoured nation clause. They usually contain a termination, and sometimes a colonial Article. Some of the matters enumerated by Monsieur Calvo-consular privileges, fisheries, and nationality—are now dealt with by separate conventions. Contraband and neutral trade are not included as frequently as they were in the 18th century.

The preceding statement shows that commercial treaties afford to foreigners, personally, legal rights, and relief from technical disabilities: they afford security to trade and navigation, and regulate other matters comprised in their provisions. In Europe the general principles established by the series of treaties 1860-66 hold good, namely, the substitution of uniform rates of customs duties for prohibitions or differential rates. The disadvantages urged are that these treaties involve Government interference and bargaining, whereas each State should act independently as its interests require, that they are opposed to free trade, and restrict the fiscal freedom of the legislature. It may be observed that these objections imply some confusion of ideas. All contracts may be designated bargains, and some of the details of commercial treaties in Monsieur Calvo's enumeration enter directly into the functions of government; moreover, countries cannot remain isolated. Tariff arrangements are, however, open to controversy. Without discussing the Methuen Treaty (notice was given by the Portuguese Government in 1835 that it should be no longer operative), it may be admitted that its policy would not now be adopted. If, however, two countries agree by simultaneous action to adopt fixed rates of duty, this agreement is favourable to commerce, and it is not apparent how it is contrary to free trade principles. If the Legislature is restricted from imposing prohibitions or differential duties, this restriction is not injurious; and when maximum rates of duty are settled, this restriction cannot do harm if its duration is for a limited period; security in business transactions is provided by such tariff arrangements.

Our conclusions are

(1) that under the varying jurisprudence of nations commercial treaties are adopted by common consent;

(2) that their provisions depend upon the general and fiscal policy of each State;

(3) that tariff arrangements, if judiciously settled, benefit trade; (4) that prohibitions, and discriminating or differential duties, are injurious to trade; and to international relations;

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

treatment and simplification of tariffs, and has become a most valuable provision alike for persons, trade, and navigation; (6) that commercial treaties are now entered into by all States; and that they are necessary under modern conditions of commercial intercourse between nations. (C. M. K.*)

Commons.-Early History.-Commons are a relic of the system on which the lands of England were for the most part cultivated during the Middle Ages. The country was divided into vills, or townships-often, though not necessarily, or always, coterminous with the parish. In each stood a cluster of houses, a village, in which dwelt the men of the township, and around the village lay the arable fields and other lands, which they worked as one common farm. Save for a few small inclosures near the village-for gardens, orchards, or paddocks for young stock- -the whole township was free from permanent fencing. The arable lands lay in large tracts, divided into compartments or fields, usually three in number, to receive in constant rotation the triennial succession of wheat (or rye), spring crops (such as barley, oats, beans, or peas), and fallow. Low-lying lands were used as meadows, and there were sometimes pastures fed according to fixed rules. The poorest land of the township was left waste-to supply feed for the cattle of the community, fuel, wood for repairs, and any other commodity of a renewable or practically inexhaustible character.1 This waste land is the common of our own days.

It would seem likely that at one time there was no division, as between individual inhabitants or householders, of any of the lands of the township, but only of the products. But so far back as accurate information extends the arable land is found to be parcelled out, each householder owning strips in each field. These strips are always long and narrow, and lie in sets parallel with one another. The plough for cultivating the fields was maintained at the common expense of the village, and the draught oxen were furnished by the householders. From the time when the crop was carried till the next sowing, the field lay open to the cattle of the whole vill, which also had the free run of the fallow field throughout the year. But when two of the three fields were under crops, and the meadows laid up for hay, it is obvious that the cattle of the township required some other resort for pasturage. This was supplied by the waste or common. Upon it the householder turned out the oxen and horses which he contributed to the plough, and the cows and sheep, which were useful in manuring the common fields, in the words of an old law case: "horses and oxen to plough the land, and cows and sheep to compester it." Thus the use of the common by each householder was naturally measured by the stock which he kept for the service of the common fields; and when, at a later period, questions arose as to the extent of the rights on the common, the necessary practice furnished the rule, that the commoner could turn out as many head of cattle as he could keep by means of the lands which were parcelled out to him, the rule of levancy and couchancy, which has come down to the present day.

In the earliest post-Conquest times the vill or township is found to be associated with an over-lord. There has been much controversy on the question, Status of whether the vill originally owned its lands free township. from any control, and was subsequently reduced to a state of subjection and to a large extent deprived of its ownership, or whether its whole history has been one of gradual emancipation, the ownership of the waste, or 1 There is an entry on the Court Rolls of the Manor of Wimbledon of the division amongst the inhabitants of the vill of the crab-apples

growing on the common.

common, now ascribed by the law to the lord being a remnant of his ownership of all the lands of the vill. (See MANOR.)

At whatever date the over-lord first appeared, and whatever may have been the personal relations of the villagers to him from time to time after his appearance, there can be hardly any doubt that the village lands, whether arable, meadow, or waste, were substantially the property of the villagers for the purposes of use and enjoyment. They resorted freely to the common for such purposes as were incident to their system of agriculture, and regulated its use amongst themselves. The idea that the common was the "lord's waste," and that he had the power to do what he liked with it, subject to specific and limited qualifying rights in others, was, there is little doubt, the creation of the Norman lawyers.

the Second.

One of the earliest assertions of the lord's proprietary interest in waste lands is contained in the Statute of Merton, a statute which, it is well to notice, Statutes was passed in one of the first assemblies of the of Merton Barons of England, before the Commons of the and WestRealm were summoned to Parliament. This minster statute, which became law in the year 1235, provided "that the great men of England (which had enfeoffed knights and their freeholders of small tenements in their great manors)" might "make their profit of their lands, wastes, woods, and pastures," if they left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another statute, that of Westminster the Second, supplemented the Statute of Merton by enabling the lord of the soil to inclose common lands, not only against his own tenants, but against "neighbours" claiming pasture there. These two pieces of legislation undoubtedly mark the growth of the doctrine which converted the over-lord's territorial sway into property of the modern 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 change in the system on which the country was cultivated, a system to which, as we have seen, commons were essential. In some counties, indeed, inclosures had, by the Tudor period, made greater progress than in others. Tusser, in his eulogium on inclosed farming, cites Suffolk and Essex as inclosed counties by way of contrast to Norfolk, Cambridgeshire, and Leicestershire, where the open or "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 chief operation lay in furnishing the lord of the manor with a farm on the new system, side by side with the common fields, or with a deer park.

Death.

The first event which really endangered the village system was the coming of the Black Death. This scourge is said to have swept away half the population of the country. The disappearance, by no The Black means uncommon, of a whole family gave the over-lord of the vill the opportunity of appropriating, by way of escheat, the holding of the household in the common fields. The land-holding population of the townships and the persons interested in the commons were thus sensibly diminished.

During the Wars of the Roses the small cultivator is thought to have again made headway. But his diminished numbers, and the larger interest which the lords had acquired in the lands of each vill, no doubt facilitated marked the reigns of Henry VIII. and Edward VI. the determined attack on the common-field system which

agrarian

revolution.

This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheepbreeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess The Tudor a large body of followers pledged to his interests by their connexion with the land. On the other hand, wool commanded a high price, and the growth of towns and of foreign commerce supplied abundant markets. At the same time the confiscation of the monastic possessions introduced a race of new over-lords-not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. In order to keep large flocks and send many bales of wool to market, each landowner strove to increase his range of pasture, and with this view to convert the arable fields of his vill into grass land. There is abundant evidence both from the complaints of writers such as Latimer and Sir Thomas More, and from the Statutes and Royal Commissions of the day, that large inclosures were made at this time, and that the process was effected with much injustice and accompanied by great hardship. "Where," says Bishop Latimer in one of his courageous and vigorous denunciations of "inclosers and rent-raisers," "there have been many householders and inhabitants, there is now but a shepherd and his dog." In the full tide of this movement, and despite Latimer's appeals, the Statutes of Merton and Westminster the Second were confirmed and re-enacted. Both common fields and commons no doubt disappeared in many places; and the country saw the first notable instalment of inclosure. But from the evidence of later years it is clear that a very large area of the country was still cultivated on the common-field system for another couple of centuries. When inclosure on any considerable 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 law applicable to commons at the present day.

Law. The distinguishing feature in law of common land is, that it is land the soil of which belongs to one person, and from which certain other persons Rights of take certain profits-for example, the bite of the Common. grass by the mouth of cattle, or gorse, bushes,

or heather for fuel or 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 estovers or botes (from the Norman-French estouffer, and the Saxon botan, to furnish). Another right of common is that of turbary, or the right to cut turf or peat for fuel. There are also rights of taking sand, gravel, or loam for the repair and maintenance of land. The persons who enjoy any of these rights are called

commoners.

A

From the sketch of the common-field system of 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 relating to commons, are traceable to that system. Thus, common rights are mostly attached to, or enjoyed with, certain lands or houses. 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 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 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 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 proof of 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 species of common right is, in fact, the direct survival of the use by the village householder of the common of the township; while common of pasture appurtenant represents rights which grew up between neighbouring townships, or, in later times, by direct grant from the owner of the soil of the common to some other landowner, or (in the case of copyholders) by local custom.

The characteristic of connexion with house or land also

marks other rights of common. Thus a right of taking gorse or bushes, or of lopping wood for fuel, called firebote, is limited to the taking of such fuel as may be necessary for the hearths of a particular house, and no more may be taken than is thus required. The same condition applies to common of turbary, which in its more usual form authorizes the commoner to cut the heather, which grows thickly upon poor soils, with the roots and adhering earth, to a depth of about 9 inches. Similarly, wood taken for the repairs of buildings (house-bote), or of hedges (hedge-bote or hey-bote), must be limited in quantity to the requirements of the house, farm buildings, and hedges of the particular property to which the right is attached. And heather taken for litter cannot be taken in larger quantities than is necessary for manuring the lands in respect of which the right is enjoyed. It is illegal to take the wood or heather from the common, and to sell it to any one who has not himself a right to take it. So, also, a right of digging sand, gravel, 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 crown, either directly or through other superior lords, for the holding of the land and the performance of certain duties of 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 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 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 foundation of the curiously conflicting rights which coexist on a common. (See MANOR.)

or freehold tenants.

(6) Persons holding land of the manor by copy of Court Roll, or copyhold tenants.

(c) Persons holding from the lord of the manor, by lease or agreement, or from year to year, land which was originally demesne, or which was once freehold or copyhold and has come into the lord's hands by escheat or forfeiture. Amongst the first two classes we usually find the majority of the commoners on the wastes or commons of the manor. To every freehold 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 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 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 commonable cattle only, and was connected with the tillage of the arable lands. It seems almost necessarily to follow that the freehold tenants 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 light character of the services. rendered by the freeholders, the connexion of their lands with the manor is often difficult to prove. Copyhold 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 judge (the late Sir George Jessel, M.R.) as local law. Thus, while the freehold tenants enjoy their rights by the 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 ancient constitution of a village community. The copyholders, being originally serfs, had no rights at law; but as they had a 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 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

tinued 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 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 long 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 language of the deeds of 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.

manorial

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 Rights of may, however, be rights of common quite un- common connected with the manorial system. Such not conrights may be proved either by producing a nected with specific grant from the owner of the manor or by system. long usage. It is seldom that an actual grant is produced, although it would seem likely that such 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 coronation of Richard I. can be shown, (b) on a presumed modern grant which has been lost, or (c) (in some cases) on the Prescription Act. 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 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. In a recent case a right of common for 200 sheep over the waste of the manor of Banstead was established in respect of the manor of South Tadworth. Such a right 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

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.

common fields.

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 Rights in 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 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 new-comers 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 new-comers, 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 of the City Corporation, and the noble woods and farstretching 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.

Royal Forests.

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 The commoners cannot inclose, because the land does not belong to them. The owner of the soil

It

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. seems clear that the statutes had become obsolete in the time of Edward VI., or they would not have been reenacted. 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.

The modern

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 Inclosure necessary to resort to Parliament for power to Act. 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 area inclosed probably exceeded 300,000 acres. Three inclosures in the Lincolnshire Fens account for over 53,000 acres. As before, the movement after a time spent its force, the annual average of Acts falling to about twelve in the decade 1830-40. Another 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-book. The chief feature of that S. III. 22