Commons and Enclosures. This is one of the numerous instances in which a different meaning is attached to the same term in the legal systems of England and Scotland. In England the property in the common land belongs to the lord of the manor; although rights over the common land are possessed by certain persons who hold land in the manor, and are known as commoners. Thus Blackstone defines a common as 'a profit which a man hath in the land of another, as to feed his beasts, to catch fish, to dig turf, to cut wood and the like.' But in Scotland, where the law has adopted the divisions and followed the nomenclature of the civil law and of the legal systems of continental Europe, all these profits, or rights to derive profit, are known as Servitudes (q.v.), whereas a common, or commonty, as it is more frequently called, is a common right of property existing in several individuals, 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 nature and origin of rights of common have been the subjects of elaborate investigation, but are still obscure. They are probably derived from the old Germanic rights of common pasture on the Folkland (q.v.). In England at present almost the only land subject to common rights is waste land; but formerly rights of joint cultivation extended over a great part of the arable land. These are not yet quite extinct. So long as the lands subject to rights of common were extensive and fertile, their enclosure was a source of wealth both to lords of manors and to the nation as a whole. Accordingly enclosures began to be frequent in the 16th, and were continued on a great scale to the end of the 18th century. Formerly the enclosure of a common required a private act of parliament. The commoners, who were generally poor and unable properly to represent their case, often suffered by enclosure, obtaining inadequate compensation. By the Act 6 and 7 Will. IV. chap. 115, and subsequent acts, the necessity for a private act of parliament is abolished. By the Act 8 and 9 Vict. chap. 118, which has been often amended, a Board of Commissioners is appointed to inquire into the propriety of any proposed enclosure or partition, and to report to parliament, which may then pass a public act authorising their proceedings. This is the course generally adopted.
In Scotland, commonties or commons were made divisible by an action in the Court of Session, at the instance of any person having an interest by the Stat. 1695, chap. 38.
The lands still subject to rights of common are for the most part such as could not be cultivated with advantage. The increase of population, however, has made them valuable as places of exercise and recreation. This value has been clearly stated by Mr J. S. Mill (Dissertations and Discussions, vol. ii. p. 213): 'We must needs think, also, that there is something out of joint, when so much is said of the value of refining and humanising tastes to the labouring-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 enclosing commons. Is not this another case of giving with one hand and taking back more largely with the other? We look with the utmost jealousy upon any further enclosure of commons. In the greater part of this island, exclusive 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 covered over with the traces of human labour, 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 ploughing it up to raise more produce applies a 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 enclosed pleasure-domain of the rich? Is the miserable 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 legalised spoliation?'
Acting upon the principles expressed in this extract, the legislature in the 19th century has regulated enclosures with reference to the enjoyment of the general public, as well as to the rights of the lord of the manor and of the commoners. Restraints have been placed on the enclosure of commons in or near towns, and provision has been made for laying them out and maintaining them as places of recreation. Near London especially, many commons have thus been secured to the public. See Miss Octavia Hill, Our Common Land (1878); Elton,
The Law of Commons; Commons and Common Fields (1887); and works by Scrutton, Chambers, Cooke, Hall, Williams, Shaw Lefevre (1894), and Sir R. Hunter (1897). Lord Thring's act against unlawful enclosures was passed in 1893.
In the United States 'common' in one sense signifies the common or general fields set apart as pasture-land at the foundation of towns or villages; the idea of such common fields may probably have been suggested by those of semi-feudal England. Common fields also existed in the villages of French and Spanish settlers. The title to these lands was confirmed to the inhabitants by act of congress. Unappropriated lands in Virginia have similarly been confirmed as common lands by statute, and the constitution of Illinois sets apart certain lands as commons. Unless the statute expressly forbids, commons in this sense may be divided at the instance of individuals interested, if they think fit to take legal proceedings for that purpose. In the other sense, the term 'common' is applied to a public park which may belong to the municipality or to the nation—e.g. the Yellowstone Park—respecting which no individual or individuals can claim a division. Such parks are under the direct control of the authorities. As applied to a school, the epithet 'common' means public, supported by taxation, and open to all children of a certain age. It has no reference to the studies of the school.