COMMONS, the term for the lands held in commonalty, 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 enclosures 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 trien nial 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 inexhaust ible character. This waste land is the common of our own days, and this system of farming is known as the common-field or open field system.
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 paral lel 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. (See below : Rights of Common.) In the earliest post-conquest times the vill or township is found to be associated with an overlord. (See MANOR.) At whatever date the overlord first appeared, there can be hardly any doubt that the village lands, whether arable, meadow or waste, were sub stantially the property of the villagers and the use regulated among 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 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 after the middle of the 14th century. The disappearance, by no means uncommon, of a whole family gave the overlord 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 the determined attack on the com mon-field system which marked the reigns of Henry VIII. and Edward VI.
This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheep-breeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess a large body of followers pledged to his interests by their connection 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 overlords who were not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. Of this viewpoint 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 enclosures 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 "enclosers and rent raisers," "there have been many householders and inhabit ants, 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 enclosure.
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. A 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 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.
The characteristic of connection 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 fire-bote, is limited to the tak ing 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 gin. 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.
To the manorial lord the law assigned the ownership of the soil of the common of the vill ; and the common has for many cen turies 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 overlord, 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 COPYHOLD, MANOR.) Manorial Commons.—Within the bounds of a manor, speak ing generally, there were three classes of persons possessing an interest in the land, viz. :—(a) Persons holding land freely of the manor, or freehold tenants. (b) 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 were found the majority of the commoners on the wastes or commons of the manor. To every freehold tenant belonged 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 differed from most other rights of common in the characteristic that actual exercise of the right need not be proved. "Common appendant," said the Eliza bethan judges, "is of common right, and commences by operation of law and in favour of tillage." It seems almost necessarily to follow that the freehold tenants of the manor were the representa tives of the householders of the vill. Copyholders' rights were generally of the same character. They did not, however, exist as of common right, without proof of usage, but by the custom of the manor, but by the Real Property Act (1922) every copyhold is now enfranchised and converted into freehold,and all the manor ial incidents connected with that form of tenure disappear. Rights of common enjoyed by the tenants are specifically preserved.
Rights of Common Not Connected with Manorial System. —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 may, however, be rights of common quite unconnected with the manorial system. Such rights may be proved either by producing a specific grant from the owner of the manor or by long usage. It is seldom that an actual grant is pro duced, 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 and there are special rules applicable to each kind of claim.
A remarkable instance of such a common attached to the survival of an archaic community may be seen at Malmesbury in Wiltshire. Of this an account by Maitland is to be found in his Collected Essays, vol. ii., p. 328. Here a tract of 5oo acres, named King's Heath, alleged to have been originally granted by King Athelstan to the town for service in battle against the Danes, was, in 1821, set out by a private act among the members of the old corporation, who till 1885 also governed the town, according to which every person in the borough is entitled to possess one allotment and every capital burgess a plot of from 8 to 15 acres.
There are 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 com mon meadows, and along the valley of the Lea a constant suc cession 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.
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 far-stretching heaths of the New Forest, will be called to mind. Cannock Chase, unhappily enclosed 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. It is enough in this connection 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.
Enclosure.—We have seen that in the case of each kind of common there is a division of interest. The soil belongs to one person; other persons are entitled to take certain products of the soil. This division of interest preserves the common as an open space. The commoners cannot enclose, because the land does not belong to them. The owner of the soil cannot enclose, because en closure is inconsistent with the enjoyment of the commoners' rights. At a very early date it was held that the right of a com moner proceeded out of every part of the common, so that the owner of the soil could not set aside part for the commoner and enclose 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 enclosure to be made against commoners entitled to estovers or turbary. It seems clear that the statutes had become obsolete in the time of Edward VI., or they would not have been re-enacted. And we know that the zealous advocates of enclosure in the i8th century considered them worthless for their purposes.
When, therefore, the common-field system began to fall out of gear, and the increase of population brought about a demand for an increased production of corn, it was felt to be necessary to resort to parliament for power to effect enclosure. The legisla tion 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 enclosed land; the other, that enclosure should not be prevented by the opposition, or the inability to act, of a small minority. Assuming that enclosure 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 i8th 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 47 acts were passed every year. From some cause, pos sibly the very considerable expense attending upon the obtaining of an act, the numbers then began slightly to fall off. The first General Enclosure Act was passed in 1801. This act would at the present day be called an Enclosure Clauses Act. It contained a number of provisions applicable to enclosures, which could be incorporated by reference, in a private bill. Under the stimulus thus applied enclosure proceeded apace. In the year i8oz no fewer than i 19 acts were passed, and the total area enclosed probably exceeded 300,00o acres. Three enclosures in the Lincolnshire fens account for over 53,00o acres. As before, the movement after a time spent its force, the annual average of acts falling to about i 2 in the decade 183o-4o. Another parliamentary committee then sat to consider how enclosure might be promoted ; and the result was the Enclosure Act 1845, which, though much amended by sub sequent legislation, still stands on the statute-book. The chief feature of that act was the appointment of a permanent com mission to make in each case all the enquiries previously made (no doubt capriciously and imperfectly) by committees of the two Houses. The commission, on being satisfied of the propriety of an enclosure was to draw up a provisional order prescribing the general conditions on which it was to be carried out, and this order was to be submitted to parliament by the Government of the day for confirmation. It is believed that these enclosure orders afford the first example of the provisional order system of legisla tion, which has attained such large proportions.
Again enclosure moved forward, and between 1845 and 1869 (when it received a sudden check) 6c'o,000 acres passed through the hands of the enclosure commission. Taking the whole period of about a century and a half, when parliamentary enclosure was in favour, we shall probably not be far wrong in concluding that about one acre in every seven in England was enclosed during the period in question. It seems likely that, on the whole, England would have gained, had enclosure stopped in 1845.
Open Space Movement.—As a fact it stopped in 1869. Be fore the enclosure commission had been in existence 20 years the feeling of the nation towards commons began to change. The rapid growth of towns, and especially of London, and the awaken ing sense of the importance of protecting the public health, brought about an appreciation of the value of commons as open spaces. Naturally, the metropolis saw the birth of this sentiment. An attempted enclosure in 1864 of the commons at Epsom and Wimbledon aroused strong opposition ; and a select committee of the House of Commons was appointed to consider how the London commons could best be preserved. Fortunately a small knot of men, who afterwards formed the Commons Preservation Society, took the question up.• Chief amongst them were George Shaw-Lefevre, afterwards Lord Eversley, chairman of that society since its foundation, Henry Fawcett and Sir Charles Dilke. On the committee's report of the Commons Preservation Society the Metropolitan Commons Act 1866 was passed, which prohibited any further parliamentary enclosures within the metropolitan po lice area, and provided means by which a common could be put under local management. The lords of the manors in which the London commons lay felt that their opportunity of making a rich harvest out of land, valuable for building, though otherwise worth less, was slipping away; and a battle royal ensued. Enclosures were commenced, and the Statute of Merton prayed in aid. The public retorted by legal proceedings taken in the names of com moners. These proceedings—which culminated in the mammoth suit as to Epping forest, with the corporation of London as plain tiffs and 14 lords of manors as defendants—were uniformly suc cessful; and the London commons were saved. By degrees the manorial lords, seeing that they could not hope to do better, parted with their interest for a small sum to some local authority; and a large area of the common land, not only in the county of London, but in the suburbs, is now in the hands of the representa tives of the ratepayers, and is definitely appropriated to the rec reation of the public.
The movement to preserve commons as open spaces soon spread to the rural districts. Under the Enclosure Act of provision was made for the allotment of a part of the land to be enclosed for field gardens for the labouring poor, and for recrea tion. But those who were interested in effecting an enclosure often convinced the enclosure commissioners that for some reason such allotments would be useless. To such an extent did the reservation of such allotments become discredited that, in 1869, the commission proposed to parliament the enclosure of 13,000 acres, with the reservation of only one acre for recreation, and none at all for field gardens. This proposal attracted the attention of Henry Fawcett, who, with his characteristic intrepidity, op posed the annual enclosure bill (which had come to be considered a mere form) and moved for a committee on the whole subject. The ultimate result was the passing, seven years later, of the Com mons Act 1876. This measure, introduced by a Conservative Gov ernment, laid down the principle that an enclosure should not be allowed unless distinctly shown to be for the benefit, not merely of private persons, but of the neighbourhood generally and the pub lic. It imposed many checks upon the process, and following the course already adopted in the case of metropolitan commons, of fered an alternative method of making commons more useful to the nation, viz., their management and regulation as open spaces. The effect of this legislation and of the changed attitude of the House of Commons towards enclosure has been almost to stop that process, except in the case of common fields or extensive mountain wastes. It can be quite truly said that every struggle to protect commons from unlawful enclosure originated in the desire that the threatened area should be preserved as an open space in the pub lic interest for use and enjoyment. But the public interest as such, although the motive of the action of the Commons Preservation Society was not an interest which the court of law would at that time recognize, being considered too vague and indefinite, and the long struggle in parliament, of which the successive acts of parlia ment, already mentioned, mark the different stages, was really a struggle to obtain such recognition, far more than for the protec tion of the commoners themselves. But public opinion during the past 5o years has entirely veered round, and gradually insisted that commons, with due regard to all existing rights, should be pre served as open spaces and protected as such. Owing further to the influence of the Commons Preservation Society, aided by the growth of public opinion, in the year 1893 Lord Thring carried through parliament the Commons Law Amendment Act, which provided that in future no enclosure under the Statute of Merton should be valid, unless made with the consent of the Board of Agriculture, which was to consider the expediency of the enclosure from a public point of view.
Regulation.—We have alluded to the regulation of commons as open spaces. The primary object of this process is to bring a common under the jurisdiction of some constituted authority, which may make by-laws, enforceable in a summary way before the magistrates of the district. Outside the metropolitan police district a provisional order for regulation may be made under the Commons Act 1876, with the consent of the owner of the soil and of persons representing two-thirds in value of all the inter ests in the common. And under an act passed in 1899 the council of any urban or rural district may, with the approval of the Board of Agriculture and without recourse to parliament, make a scheme for the management of any common within its district, provided no notice of dissent is served on the board by the lord of the manor or by persons representing one-third in value of such inter ests in the common as are affected by the scheme. There is yet another way of protecting a common. A parish council may, by agreement, acquire an interest in it, and may make by-laws for its regulation under the Local Government Act 1894. The acts of 1894 and 1899 undoubtedly proceed on right lines. For, with the growth of efficient local government, commons naturally fall to be protected and improved by the authority of the district.
The acreage of the remaining common land in England at the beginning of the loth century was roughly estimated at some where between 1,500,00o and 2,000,000 acres. It is most capri ciously distributed. In the Midlands there is very little to be found, while in a county of poor soil, like Surrey, nearly every parish has its common, and there are large tracts of heath and moor. In the metropolitan police district nearly 12,000ac. of common land have been put under local management.
The evidence of the change of policy referred to above is shown by the manner in which during the last 20 years the public inter est in common lands has been protected in many acts of parlia ment relating to other subjects. Thus the Town Planning Acts pro hibit the taking of common land under a town-planning scheme, unless an equal area be given in exchange to the satisfaction of the Ministers of Agriculture and Public Health. Similar restric tions appear in other Housing Acts, including the act of 1925; and also in the Development and Roads Improvements Act 1909, in the case of new roads in urban areas. So too the Small Hold ings Acts of 1908-26 save all existing commons from appropri ation or compulsory purchase under those acts, unless local en quiries are first held under the Commons Act of 1876 and the consent of parliament to any such scheme is obtained. Various large areas of common land acquired under water schemes, espe cially in the Lake district, have been made, subject to public right of access. The Law of Property Act of 1925, ss. 102 and 103, for the first time gives to the public a statutory right of access for air and exercise on every common or piece of manorial waste and to any rural common to which the section may hereafter be applied and provides that no enclosure or appropriation of land on and after Jan. 1, 1926, shall hereafter be lawful without the consent of the Minister of Agriculture, who may not consent to any enclosure unless satisfied that the interests of the public, as dis tinguished from those of the owners of the soil, will be benefited. These clauses have been aptly described as the "coping-stones" of the edifice which it has taken the Commons Preservation Society 6o years to build.