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ART. VI. COOKE ON INCLOSURES..
The Acts for facilitating the Inclosure of Commons in England and Wales, with a Treatise on the Law of Rights of Commons, in reference to these Acts, and of the Jurisdiction of the Inclosure Commissioners. By GEORGE WINGROVE COOKE, of the Middle Temple, Barrister-at-Law. Fourth Edition. London: Stevens, Sons, and Haynes. 1864.
THE HE law of commons, speaking in a strict sense, has undergone but little alteration. When the ancient wastes and common lands become inclosures, the statute law interferes extensively and introduces a new description of ownership, together with a confirmation of title after proof before the valuer of enjoyment of the commonable privileges for a certain number of years. To use the words of Mr. Cooke:"There is a provision in the new General Inclosure Act (Sect. 54.) that rights of common not sustainable in law may be allowed after sixty years' user. No decision has yet occurred upon the effect of this enactment." With the exception then of the 2 & 3 Will. IV., c. 71 (the Prescription Act), which confers a provisional right after thirty, and an absolute right after sixty, years, unless some consent to the enjoyment should appear by deed or writing, the pasturage and feedings on wastes and lammas or other such lands are governed, as of old, by the common law. For the Act of George III. (13 Geo. III., c. 81) regulates the user rather than disturbs the right. Mr. Cooke is much of this opinion. He remarks that Bracton "has a chapter on rights of common which would not be out of place in a modern treatise, and even Bracton is compelled to cite anterior writers, and expresses himself in terms frequently drawn from the
*That is by the valuer. † P. 25, 214.
Civilians."* Following this view, we are not surprised to find that the able writer of the "History of Party" should have enumerated the various rights of commons, appendancies, appurtenant rights, rights in gross, common pur cause de vicinage. Then, common of pasture, of piscary, of turbary, and of estovers. We think that Mr. Cooke's observation concerning the confusion of appendancies, &c., with the subject matter of the right, is commendable, and deserving of attention. But he shall speak for himself "It has been the custom of writers upon this department of our law to confuse their subject by a faulty division. Thus, Bacon, Cruise, and Woolrych, all treat of the several kinds of common,' first, as common appendant, appurtenant, in gross, and by vicinage, and then as common of pasture-turbary, piscary, and estovers. In truth, however, the first division applies only to rights of common, and the second only to the subject matter of that right.”‡
Yet, admitting, as we do, the value of the suggestion, it is doubtful whether criticism bears out the author's comment on these works. It is, at all events, a refinement; for, upon turning to the older writers, we find that the species of commons flow naturally from their original elements or principles, and that, if there be error, it has arisen rather from redundancy than confusion.
Passing by this episode, the various descriptions of the intercommonable privileges are related according to the views of the author, and with correct succinctness. The common pur cause, &c., is well illustrated, as separate from common appendant where the rights are not co-extensive. Speaking of this partial admixture of neighbours' cattle, the author says, "Such cases are, in fact, very frequent in some parts of the country, where the commoners of A. have common over wastes A. and B., but the commoners of B. are confined
* P. 5.
This common ought not to have the title of a right, for it is but an excuse for a trespass, and may be at once extinguished by inclosure.
P. 6. n.
to waste B. The right of the commoners of A. over the waste of B. is frequently, but erroneously, spoken of as a right of common by vicinage. In truth, the commoners of A. in the case put, have a right of common, either appendant or appurtenant, over the wastes of A. and B."* This point is not inaptly tendered, because common of vicinage is an appendant common. And the quotation above is not a conceit, but is in strict accordance with the opinion of Lawrence, J., in Hollinshed v. Walton,† only amplified.
With the observations contained in subsequent pages on the "common sans nombre," we are not so well prepared to agree. There is said to have been such a right attached to a Lincolnshire cottage by way of common appurtenant, and in gross by grant. The Lincolnshire case was attributed to the encouragement of habitation in a fen country. This has been accepted as the ordinary reason, but Mr. Cooke will have it, that “it was probably upon some part of the wolds of Lincolnshire, and not in the fens that the prescription was found." The writer remarks upon the absence of agricultural knowledge amongst the lawyers and judges of former days, and doubts whether the "power of turning out sheep to rot in a fen country would be an encouragement of habitation." The idea of the wolds, which are more to the north, is an ingenious, though venturesome conjecture. We are willing to prefer the history which has been handed down
Many commons are tenanted by cattle in Cambridgeshire, yet that is a fen country. The same may be said of Essex, and of other places where there have been marshes, and yet beasts in abundance.
It must have occurred to the learned author that the labours of sewerage were originated at a very early date. Before the days of Henry VI., indeed far earlier, the escape of the waters which deluged the neighbouring lands
There was the bane and antidote, the disease and the remedy. Drainage was to some extent made available in a natural channel long before the artificial power was applied. Lincolnshire has been a stronghold of sewerage for generations. The experienced Inclosure Commissioner could not have been ignorant, seeing that he has brought the drainage law before us, that whilst fever and ague were assailing the fen inhabitants, the encouragement for men to settle there was furthered by a liberal, perhaps not unlimited, permission by the lords of manors, or owners of land, to use the extensive wastes with sheep which could scarcely be numbered. Sans nombre; that is, difficult to tell the exact amount; indifferent as to the quantity; the tract of pasturage being so large. Then, the great Statute of Sewers, 23 Hen. VIII., "The Bill of Sewers" exhibits the zeal of the times for maintaining outlets for the inland streams and the prostration of annoyances calculated to retard the exit of those floods and waters. We are not confounding sewerage with drainage, but we can understand that statutory provisions like those of the Act of Henry, would, with their wide grasp and application, give assurance to people coming towards a place not densely populated, especially with the accompaniment of extensive feedings, or lands where those feedings would be deemed, at common law, incident to the grant. Common in gross sans nombre receives a better explanation at the hands of Mr. Cooke. He sums up by observing on the existence user being possible in law: "That a right of common of pasture in gross sans nombre is limited to a right to turn on so many cattle as the common will maintain beyond the levant and couchant cattle of the lord and the commoners."*
of such an
We incline to the opinion that there never was such a right as an unrestricted power to turn on in the plain sense of
P. 27. This is an expression more applicable to the commoner than the lord. The lord cannot common in his own land, but he can depasture as lord.
the word, and that the ordinary interpretation of so large a privilege was never realised. We conceive, that a man might have made a grant by deed to this effect: "You may turn on as many as you like, I shall not put any stint upon you.' But if subsequently appealed to, that he would reply, "I never meant to confer the power of sending such a number of beasts to the moor as you have put on. I only intended a reasonable user, consistent with the rights of others, and, probably, a slight overflow would not have been noticed." This happens in a minor degree not unfrequently upon wastes, or upon greens. An infinitely larger portion of animals is found depasturing than the owner can justify, and he has not even a deed to help him. But indifference and the difficulty of obtaining redress are such as to leave the transgressor in full enjoyment of his surcharge. So, upon a larger scale, many use the wide spreading tracts of downs and walks without question as to numbers, and many compester without any right at all. So that common sans nombre is a kind of mystical term which signifies, in itself, nothing, but, if interpreted, means, either such a flock or herd as cannot be easily counted, or rather an excess, concerning which the owner, or grantor, or lord, de minimis, as it were, non curat. When the mischief or the population increases so as to produce inconvenience, the matter is taken in hand, and, unless time has passed so that it becomes too late to arrest the false claim in toto, for even then the unlimited assertion can be resisted, the user is narrowed within reasonable bounds, and the thesis of the common sans nombre is not verified. Indeed, the fact of the usual grant of a common in gross for so many cattle has alone a tendency to negative the wild assumption of unmeasured user.
Farther on in the work, Mr. Cooke says, "It has been doubted whether a stinted right of pasture is in reality a right of common.”* This observation must be confined to common lands, cattle gates, and lands in severalty to which common
* P. 43.