COMMON, in law. This is one of the numerous instances in which a different mean ing is attached to the same term in the legal systems of England and Scotland. In England, a C., as defined by Blackstone, is "a profit which a man bath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood, or the like." In Scotland, again, where the law has adopted the divisions and followed the nomencla ture of the civil law and of the legal systems of continental Europe, all these profits, or rights to derive profit, are known as certitudes (q.v.), whereas a C., or commonty, as it is more frequently called, is a common right of property existing in several indi viduals, frequently the inhabitants of a whole village, in a piece of ground. In each individual, the right of course is limited, so as in reality to amount to little more than a servitude; but there is no over-lord, the land is not the land of another, but the land of the community as a body.
The division of C. lands, or those over which C. is claimed, among the parties possessed of such rights, or the permission to the owner to inclose the lands on making compensation to the owners of C. rights, has been the subject of regulation by a very great number of statutes. Many or these are private acts, but the 6 and 7 Will. IV. c. 115, laid down general rules for effecting the purpose in future, without the necessity of obtaining an act of parliament, where the consent of two thirds of the parties inter ested could be obtained, and the C. to be inclosed lay more than 10 m. from London, and a specified distance from any other large town. By a subsequent statute (8 and 9 Vict. c. 118, amended by several later acts), a board of commissioners (see ExcLostrEE COMMISSIONERS) is appointed to inquire into the propriety of any proposed inclosure or partition, and to report to parliament, which then may pass a public act authorizing the proceedings. This is the course generally adopted.
In Scotland, comnwnties or commons were made divisible by an action in the court of session, at the instance of any having interest, by the stat. 1695, c. 38.
On the subject of inclosing commons, Mr. J. S. Mill (Dissertations and Discussions, vol. ii. p. 213) expresses the following decided opinion: " We must needs think, also, that there is something out of joint, when so much is said of the value of refining and humanizing tastes to the laboring-people—when it is proposed to plant parks and lay out gardens for them, that they may enjoy more freely nature's gift alike to rich and poor, of sun, sky, and vegetation; and along with this a counter-progress is constantly going on of stopping up paths and inclosing commons. Is not this another case of giving with one hand and taking back more largely with the other? We look with the utmost jeal ousy upon any further inclosure of commons. In the greater part of this island, exclu sive of the mountain and moor districts, there certainly is not more land remaining in a state of natural wildness than is desirable. Those who would make England resemble many parts of the continent, where every foot of soil is hemmed in by fences and cov ered over with the traces of human labor, should remember that where this is done, it is done for the use and benefit, not of the rich, but of the poor; and that in the countries where there remain no commons, the rich have no parks. The common is the peasant's park. Every argument for plowing it up to raise more produce, applies ci fortiori to the park, which is generally far more fertile. The effect of either, when done in the manner proposed, is only to make the poor more numerous, not better off. But what ought to be said when, as so often happens, the common is taken from the poor, that the whole or great part of it may be added to the inclosed pleasure-domain of the rich? Is the mis erable compensation, and though miserable not always granted, of a small scrap of the land to each of the cottagers who had a goose on the common, any equivalent to the poor generally, to the lovers of nature, or to future generations, for this legalized spoliation?"