38G 



COMMON PLEAS 



COMMONS AND ENCLOSURES 



class of common-law actions to the County Court 

 for trial. 



Of Borough Courts some (as, e.g., the Court of 

 Hustings in London) are obsolete ; others (as, e.g., 

 the Mayor's Court in London and the Court of 

 Passage in Liverpool ) are still of importance. The 

 City of London Court is framed on the model of 

 the modern County Courts. The Court of the 

 Cinque Ports is held before the mayor and jurats 

 of each port ; from them appeals are taken to the 

 Lord Warden's Court, and thence to the Queen's 

 Bench Division. Courts of Request for the recovery 

 of small debts existed in several boroughs ; they 

 are now obsolete, as also is the Court of Pie Poudre, 

 or dusty foot, held by the steward of a manor to 

 which a market belongs, for the immediate de- 

 cision of questions arising in the market. There 

 are still courts of some importance, established for 

 the benefit of privileged bodies of persons. See, as 

 to miners (under Stannaries), STANNARY COURTS ; 

 as to Oxford and Cambridge, see UNIVERSITIES. 



Common Pleas. See COMMON LAW. 



Common Prayer, BOOK OF. See PRAYER- 

 BOOK. 



Common-riding is the Scotch equivalent of 

 Beating the Bounds. See BOUNDS. 



Common Room, an apartment in a monas- 

 tery in which a fire was constantly kept burning 

 for the use of the monks, and which was presided 

 over by a monk called the master. It was the 

 prototype of the common rooms in the colleges of 

 the English universities, where the dons take their 

 wine after hall. 



Commons, the dinner provided in English 

 colleges and inns of court for their members. In 

 the inns of court it is provided only during term. 

 Separate tables are appointed for the benchers ( see 

 BENCH), for the barristers, and for the students 

 and other members of the inn. 



Commons, HOUSE OF. See PARLIAMENT. 



Commons and Enclosures. 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 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 nomen- 

 clature 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 com- 

 munity 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 

 Falkland (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 Viet. chap. 118, which has been often 

 amended, a Board of Commissioners is appointed 

 to inquire into the propriety of any proposed en- 

 closure 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, how- 

 ever, 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 nand 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 01 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 ex- 

 tract, the legislature in the 19th century has regu- 

 lated 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 recrea- 

 tion. Near London especially, many commons 

 have thus been secured to the public. See Miss 

 Octavia Hill, Our Common Land (1878); Elton, 



