Book II. DIVIDING COMMONABLE LANDS. 505 



3245. In Scotland & Qexvaxsl bill of enclosure was passed by the parliament In 1695, and in consequence of 

 it (he whole country has for nearly a century past been in distinct possessions. In Ireland, as we have 

 already remarked, no enclosure act became necessary, and the country is consideied as suffering from the 

 long continued minute diversion of landed property. 



SS-k). As a contrast to the.gcfwral eagerness /or ejwlosing. It may be useftil to present the moderate, and 

 in our opinion, judicious observations of Loch, to whom it appears very doubtful how far the indiscriminate 

 enclosure of commons, arising out of the high nominal prices of grain, has been in every instance of ad- 

 vantiige to the nation. Many of them, he says, certainly, could never pay the expense of obtaining the act, 

 of the commissioners' fees, of the construction of the fences, and of bringing the land into cultivation. 

 1 n this respect there has been a dead loss of capital to the country. It is conceived that it is not carrying this 

 feeling too far, to regret the destruction of some of those beautiful and picturesque forests and chases which 

 once surrounded London, and to hope that this may go no further. It may even be permitted, perhaps, to in- 

 clude within this regret as a national loss, the destruction of Windsor forest, the most appropriate accom- 

 l)animent of the noblest royal residence in Europe. The preservation of some of these chases is as essential 

 to the poorer classes of the metropolis as to the rich. To the former they afford health, exercise, and amuse- 

 ment; in the latter they produce and cherish that love of the country, and of rural sports, so important in 

 a constitutional point of view. They nourish that feeling for and knowledge of the beauties of nature, 

 (freed from the love of gain as connected with the productions of the soil,) which enlarge our understand- 

 ings, and exalt every better sentiment of the heart, encouraging the practice of the social virtues, and 

 t;hecking those more selfish habits, which the general distribution of great wealth is too apt to engender. 

 There cannot be a doubt that not only for these reasons would the abstaining from some of these enclo- 

 sures have been beneficial, but, in an economical point of view, it would have been most advantageous to 

 tlie nation. In how many ways could not the capital, thus lost, have been beneficially applied, both for 

 the individual and the country ! How much a richer man would the land-owner have been, if he had 

 saved much of this expense, and permitted a more liberal importation of foreign corn ! How much better 

 would it have been for the country ! In this, as in every other instance, it might be demonstrated, that 

 that which would have been best for one, would have been so for all, and that the same system mast 

 always benefit equally the English landlord, tenant, merchant, manufacturer, and artisan. 



Sect. II. Oftfie general Principles of ajypi'opriating and dividing Commonable Lands. 



3^47. There are few lands in Britain unajyj)ropriated, excepting in England, and these 

 may be classed as forest lands, and other extensive vi^astes, on which several manors, or 

 adjacent townships, have a right of common pasturage ; commonable lands of distinct 

 townships or manors, whose appropriated lands are wholly enclosed, and in a state of 

 mixed cultivation ; commonable lands of townships, whose arable fields, &c. are 

 partially enclosed; and commonable lands of townships, whose arable fields remain 

 wholly open. 



3248. The principles on which the ajijrropiiation of those lands requires to be conducted, 

 are thus laid down by Marshal. By an established principle of the general law, or con- 

 stitution of the country, immemorial custom establishes right. Hence the original rights 

 and regulations respecting the lands under view, are not now the proper subjects of 

 investigation ; nor are the changes that may have taken place during a succession of 

 centuries, from the origin of forests and townships, to the latest time which is no longer 

 within memory, objects of enquiry ; but solely, the acquired rights which exist in a given 

 case at the time of appropriation, and which would continue to exist were it not to take 

 place. The possessor of a cottage which has enjoyed, time immemorial and without 

 interruption, the liberty of pasturage, though such cottage were originally an encroach- 

 ment of a freebooter, or an outlaw, has indisputably as legal a claim to a proportionate 

 share of the commonable lands, as the possessor of the demesne lands of the manor has, 

 merely as such, although they may have descended from father to son, from the time of 

 their severalty ; for it is evidently on the estimated values of the respective rights which 

 exist, and which can be rightfully exercised in time to come, and on these alone, that a just 

 and equitable distribution can be efTected. 



3249. But before the distribution of commonable lands among the owners of common 

 pasturage can take place, the more abstract rights which belong to commons require to 

 be estimated, and the just claims of their possessors to be satisfied. These are principally 

 manorial rights, and the rights of tithes. 



3250. Manorial claims are to be regulated by the particular advantages which the lord 

 of a given manor enjoys, and which he will continue to enjoy while the commons remain 

 open and unappropriated; whether they arise from mines, quarries, water, timber, alien 

 tenants, fuel, estover, pannage, or game. His claim as guardian of the soil that is pro- 

 ductive of pasturage only, is in most cases merely honorary; and it remains with par- 

 liament to fix the proportional share of the lands to be appropriated, which he shall be 

 entitled to as an equivalent for such honorary claim. 



3251. But in the case of thriving timber standing on the property, the claim of the lord 

 of the manor in right of the soil is more substantial ; for out of this he has in effect a real 

 yearly income, equal to the annually increasing value of the timber ; a species of advan- 

 tage which, if the commons remain open and unappropriated, he will in course continue to 

 enjoy so long as the timber continues to increase in value. His claim, therefore, in this 

 respect, depends on the quantity of timber, and its state of growth taken jointly. Young 

 thriving timber not only affords an annual increase of value at present, but will continue 

 its benefits for many years to come, if it be suffered to remain undisturbed on the soil ; 

 and its owner, doubtless, has a prospective claim on the soil which supports it during the 

 estimated period of its future increase; whereas dotards and stinted trees which afford no 



