506 PRACTICE OF AGRICULTURE. Part III. 



increase of value, do not entitle their owner to any share of the soil they stand upon. 

 The trees themselves, or their intrinsic value, appears to be all that the lord has a right to 

 claim. 



3252. The claims of tithe owners, aggregately considered, are more complex and obscure. 

 In cases where the great and small tithes are united, and in which the tithe of wool and 

 lamb, and that of grain, roots, and herbage belong to the same owner, it may seem 

 to be reasonable that he should have the option of receiving land of equal value to the 

 existing value of the tithes, or of taking the chance of their value, in the state of culti- 

 vation. But seeing the evil tendency of corn tithes, and the impropriety of laying on so 

 harmful a burden, as they are now become, upon lands that have never borne it, there can 

 be little risk in saying that it would be at least politic in parliament to prevent it. Be- 

 sides, it stands part of the statute law, that lands which have never been under tillage, 

 shall not pay tithes during the first seven years of their cultivation ; during which time 

 the incumbent's income might, by leaving the tithe to take its course, be materially 

 abridged, and his circumstances thereby be rendered distressful. On the whole, there- 

 fore, it appears to be proper in this case, that the law to be enacted should instruct com- 

 missioners to set out lands equal to the existing value of the tithes at the time of appro- 

 priation, and where much corn land shall be appropriated, to set out a further quantity 

 equal to the estimated reversion of their extra value, (if any arise in the estimate,) seven 

 years after the appropriation shall have taken place. 



3253. Again, in cases in which the tithe of lamb and wool, and the tithe of com, ^c. be- 

 long to separate owners, the line of rectitude and strict justice to all parties appears to be 

 still more difiicult to draw. The former is clearly entitled to land, or a money payment 

 equal to his loss of tithe. But the right of the latter is less obvious. To cut him off 

 entirely from any share of the lands, and likewise from any share of tithes to arise from 

 them after they shall be appropriated, may seem unjust ; he may be a lay rector, and may 

 have lately purchased the tithes, or a clerical rector who has recently bought the advowson, 

 under the expectation of an enclosure. On the other hand it appears to be hard, that the 

 proprietors of the parish should first give up land for the tithe of wool and lamb which 

 will no longer exist, and then be liable to a corn tithe on the same lands, after they shall 

 have bestowed on them great expense in clearing and cultivation. Indeed, the injustice 

 of such a measure is evident. A middle way, therefore, requires to be sought. And it 

 will be difficult, perhaps, to find one which has more justice in it than that which is pro- 

 posed for the first case. Thus, after the value of the lamb and wool tithe, &c. has been 

 ascertained, and land set out as a satisfaction for it, estimate the value of the corn tithe, 

 &c. seven years after the time of appropriation ; and set out a further quantity for the 

 reversion of the extra value (if any) of the latter over the former, and in this manner free 

 the lands entirely from this obstacle to their improvement. 



3254. If any other abstract claim, on the lands to be appropriated, be fairly made out, 

 or any alien right (as that of a non-parishoner, or extra-manorial occupier, who has ac- 

 quired, by ancient grant, or by prescription, the privilege of depasturing them) be fully 

 proved, its value requires to be accurately estimated, and land to be assigned in lieu of 

 it. 



3255. The remainder of the unstinted commons of a given township or manor belong 

 to the owners of its commonright lands and houses. But in what proportion may be 

 diflficult to determine with mathematical precision. Nevertheless, by adhering strictly to 

 the general principle, on which alone an equitable appropriation can be conducted, 

 namely, that of determining each man's share by the benefit which he has a right to 

 receive at the time of appropriation, and which he might continue to receive, were it not 

 to take place, truth and justice may be sufficiently approached. 



3256. One of the first steps, toward an equitable distribution of unstinted commons, 

 is to ascertain the commonright houses, and to distinguish them from those which have no 

 right of commonage ; and which, therefore, can have no claim to any share of the lands 

 of the unstinted commons, further than in the right of the lands they stand upon. By 

 an ancient and pretty generally received, though somewhat vague, idea respecting the rights 

 of commonage, the occupier of every commonright house has the privilege of depasturing 

 as many cattle, sheep, or other live-stock, on the common in summer (provided that it 

 must be understood that it is large enough to permit every occupier to exercise this right), 

 as the grounds he occupies within the township or manor can properly maintain in 

 winter ; and no one can exceed that proportion ; for the surplus of the pasturage, if any, 

 belongs to the lord of the soil. (See Fitzherbert and Blackstone.) 



3^57. Under this regulation, the ajipropriated lands of a common feld township, which 

 are not occupied jointly with a commonright house, may be said to be deprived, during 

 the time they are so occupied, of their right of commonage ; and in some of the private 

 bills of enclosure, which have been suffered to pass through parliament, the lands which 

 happened to be in this state of occupancy, at the time of passing the bills, were deprived 

 of their interest in the common lands, for ever j notwithstanding, perhaps, they had a 



