THE PRESERVATION OF COMMONS. THE PRESERVATION OF COMMONS.
THERE have been few subjects of legislation in which a more complete revolution has taken place in recent times than that of Commons. The revolution has been one of sentiment and practice, as well as of law. During the hundred years from the middle of the last to the middle of this century, the part now played by Railway Acts in regard to Private Bill legislation was played by Inclosure Acts. Nearly four thousand private Acts of Parliament for the inclosure of lands were passed between 1760 and 1845. In that year a General Inclosure Act was passed, embodying in a single measure all the provisions usually inserted in those multitudinous private Acts, much as the Lands Clauses Act embodied general provisions for compensation when land was taken for railways or canals, or as the Waterworks Clauses Act in 1847 embodied general provisions as to water-companies. The Inclosure Act of 1845 transferred from Parliament to a permanent body of Commissioners—now called the Land Commissioners—the powers of inquiry, report, and practically of legislation through Provisional Order, which had been hitherto expensively and badly done by Committees of Parliament itself. This Act was followed by no less than ten amending Acts up to 1868. But throughout the entire century of legislation, from 1760 to 1868, one pervading purpose prevailed. It was universally assumed that inclosure was a benefit, and the object of legislation was to facilitate inclosure, and, after 1845, to make it as easy and cheap as possible. But in 1876, when the last Inclosure Act was passed, a change came over the spirit of the legislative dream. The name of the Act even was changed from an Inclosure Act to a Commons Act. Instead of reciting, as the General Inclosure Act of 1874 recited, that "it is expedient to facilitate the inclosure and improvement of commons and other lands now subject to rights of property which obstruct cultivation and the productive employment of labour," it recites that "it is desirable that inclosure, as opposed to regulation of commons, should not be made, unless it can be proved that such inclosure will be of benefit to the neighbourhood as well as to private interests." Where the old Inclosure Acts spoke merely of private interests, the new Act speaks of the interests of the neighbourhood, that is, of the public. While, before 1876, the Legislature seemed only anxious to add to the acres of landowners, it then, for the first time, bethought itself that beside the landowner, the public, and not only the local public, but even the nation at large; had an interest in the land. It had by then discovered that while the interests of the lord of the manor, and the interests even in many cases of the commoners, at least for the moment, lay in speedily dividing the soil, the interests of the public and the people lay in keeping the soil undivided. In fact, while prior to 1876 a common was regarded as waste until it
was inclosed, a common is now regarded as wasted if it is inclosed. The idea of an open space has been substituted for the idea of a wheatfield, as the proper "mode of being" of a common. It is true that, in spite of the rigidity and essentially false and unhistorical narrowness of judge-made law that denied to the public any right, including even that of transit over a common, in most Inclosure Acts some provision was made for that portion of the public known as "the labouring poor" by fuel allotments and field-gardens, and some exception was made in favour of village-greens, and since 1845 in favour of recreation-grounds in the immediate neighbourhood of towns. But in this last case, the maximum exception for a town with a population of 10,000 and upwards was ten acres, and limited to land within the parish. Moreover, these were merely matters of special favour and exception. In 1876, the benefit of the neighbourhood and the proper provision of recreation-grounds near towns were made the primary objects of the Act. And the Act has been singularly success ful. The hand of the incloser has been stayed. The annual number of inclosures has dwindled and dwindled till in the present year the Land Commissioners present to Parliament only three Provisional Orders under the Inc'ware. Acts, 1845 to 1878. Of these, three,. the chief is. ones that does: not inclose, but, on the contrary, preservers are. an open space for ever for the benefit of the nation, the 6,000 acres of the once royal forest, Ashdown Forest, in. Sussex..
Meanwhile, the Act did not touch. certain cases atall. There are commons in which the number of commoners is limited, orbs-which the lord is all-powerful. In those cases an.Inclosure, Act is not required.; mutual. agreement can dispense with Parliamentary help. Or in certain cases the lord can, as of old, " approve " parts of commons ; or, in other words, improve them off the face of the earth; and place them in his own private and particular. fence. Or; again, illegally and:against common right, landowners can. encroach on what is strictly common-land, and on land not strictlycommon, such.. as the strips of. green. by the roadside. By all or some of such, methods, legal and illegal, our open spaces bit. by bit are being "daily devoured apace, and nothing said." The.Bill to amend. the Commons. and Inclosure Acts brought in.. by Mr. James, Mr. Story-Maskelyne„ and. Mr. Bryce,. proposes to find a remedy for all these devourings. the six-mile limit laid down by the Act: of 1876 for suburban commons, no inclosnre at all is to be allowed: The definition of.a suburban common in that Act is extended. to all commons within. a radius of ten. miles from a town. of 25,000 ire habitants, and fifteen. miles where the population. is 100,000 and. upwards. In such: eases, the Town. Council or Local Board has a right to be heard on the subject. of inclosure-or repletion. Further; no inclostue at all is to be allowed without, the authority of Parliament.. In other words, people who have always enjoyed land as. open land—and therefore practically, if not theoretically, as land, accessible to the world—are .not to be allowed.to change-the nature of theirenjoyment at their.own will and. pleasure, and to the injury of the public. And also. orders. may be made for the reeulation of commons without the consent, of the lord or other persons interested. Lastly, an encroachment on roadsides. is made an offence punishableby a fines not exceeding forty shillings, and. the cost of restitutionis' to be levied from the offender. One or two other-less important. provisions are inserted, making, slight but.. beneficial changes intim general law of commons. Altogetheri.th.e Bill is aa.excellent. one for the preservation of public rights. in open spaces,. and the prevention of private appropriation. The chief criticism that the Bill is open to is thatsit. is an amending Bill only. It proposes to add. another, and a somewhat, contradictory statute, to the dozen or moreof Acts already existing on the same subject,instead of consolidating. all the Acts into one. The truthis that the old Inclosure Acts have done their. work and had their day. As applied to." commonable," as distinct from." common" lands,. they were wholly beneficial. They effected the transition from the antiquated and barbarous practice of the open-field. system, with its little strips of land "lying dispersedly" and rigidly bound by a primitive course of cropsand custom. of cultivation,, to. the large fields and scientific agriculture of the present. age.. But that the division an& inclosure of commonable lands must now have been entirely completed throughout the country, theinclosure of wastastandson a. very, different footing. It does not really pay in corn-crops,. especially at the present. crisis in agriculture. It diminishes the area of pasture. Abave all, it diminishes-the number of our breathing-holes and playgrounds. The "prairie value" of. waste land. in England is daily becoming greater than its cultivated, or. cultivable value. Ia.fine, the regulation and presereation.of commons, as was recognised. by the Act of 1876, is become the need. of the age. Indosure of commons is both a crime and a blunder. If, therefore, the Inclosure Acts are not sweptaway, and a:consolidated Commons Act substituted, for them,.it is only because Parliament has not time to legislate scientifically, if, indeedeit will legislate at all.
Previous page
