346 



FARMERS' REGISTER— ON THE LAW OF ENCLOSURES. 



beasts, which they know to have barked fruit treeg, 

 shall keep the same within their own fenced 

 ground; and if any person shall take up any horse, 

 mare, kine, or other beast, known by the owner to 

 have barked fruit trees, and shall deliver the same 

 to such owner, he or she shall pay the taker-up 

 two dollai-s for every such beast, so taken up and 

 delivered; recoverable with costs, before any jus- 

 tice of the peace of the county, wherein such 

 beast was taken up, or the owner lives: Provided 

 always, That the taker-up shall, if required, make 

 oath before the same justice, that he took up such 

 horse, mare, or other beast, and that no means 

 were used by himself, or any other person, to his 

 knowledge, to set the same at large, otherwise he 

 ehall lose the said reward. 



[The sections of the law which follow the above, 

 relate to other matters, and are therefore omitted.] 



A COMMENTARY ON THE LAW OF ENCLO- 

 SURES OF VIRGINIA. 



For the Fanners' Register. 



The agricultural interest of Virginia is already 

 greatly indebted to the Fanners' Register and its 

 correspondents, for commencing and continuing 

 to discuss and expose the evils of the existing law 

 of enclosures — and though it may require a long 

 time to remove all the prejudices, and mistaken 

 opinions, (of which enough will always be found 

 ready to support every evil system of long stand- 

 mg,) still there can be no doubt of tlie ulti- 

 mate removal of this burden, which agriculture 

 has placed on its own shoulders. The decree has 

 gone forth for the future destruction of this law — 

 lor it cannot resist the attacks of truth, reason and 

 right, which have commenced, and which will not 

 cease until the object in view is attained. Never- 

 theless, truth and reason have yet to fight a hard 

 battle, and will find stubborn opponents. It will 

 therefore be necessary for those who are convinced 

 of the necessity for a change, to exert themselves, 

 and to expose the deformity and iniquity of our 

 existing policy as to enclosures, in every point of 

 view. To this end, I shall offer some connnents 

 upon those provisions of the law which have 

 either been passed over, or but slightly touclied 

 upon, by those who have preceded me in this dis- 

 cussion. 



The author of the piece signed Suum Cuique, 

 (Farm. Reg. Vol. I, p. 396) and several others, 

 have sufficiently exposed the great and main evil 

 of our law of enclosures — the priiiciple itself of 

 the law, which instead of forbidding and punishino- 

 wrongful invasions of the farmer's property, re^ 

 quires of him to guard and protect it, or otherwise 

 holds the agression as justifiable and blameless. 

 This principle, utterly adverse as it is to that of 

 our laws in general, and of justice and the rights 

 of property, is so important in its character and its 

 operation, that it could not be counterbalanced, or 

 justified, by any details or minor provisions of the 

 law, however efficient they might be to secure the 

 remnant of the farmer's right to the product of his 

 land and labor, which the general principle of the 

 law had not swept aAvay. It is therefore not 

 strange, that those who, in the pages of the Farm- 

 ers' Register, have attacked the principle of the 

 law, have scarcely noticed its particular features, 

 and the utter worthlessness of even those provi- 

 siona which were intended to operate as a nieane 



of restraining and punishing trespassers. This 

 more humble task I will undertake. The law on 

 the subject, which precedes these comments, will 

 facilitate my references, and permit my remarks 

 to be more concise. 



To enable a farmer to recover damages, or ob- 

 tain any legal reckess whatever for injury, or des- 

 truction to his growing or standing crops, it is re- 

 quired by the law, that the field should have been 

 enclosed at the time with a "strong and sound 

 fence" of some one of the several kinds described, 

 and of a specified height throughout: and that 

 the field was so enclosed must be proved by the 

 owner as a necessary preliminary step, before he 

 can prosecute his claim for compensation for tres- 

 pass. The trespasser (if I may dare to apply that 

 term to one whom the law in efl'ect always clears 

 of the imputation,) has nothing to prove — the 

 whole burden of proof lies on the sufferer. Eut 

 suppose, that undaunted by difficulties, and de- 

 termined to assert the few rights that the law 

 leaves to him, he pursues the remedy offered, and 

 calls for a survey of his fences, according to the 

 provisions of the second section. Now in the first 

 place, (and especially if the farmer is in Lower 

 Virginia, and uses the perishable pine timber 

 which is now the general resource for fencing,) no 

 fence around a large field can be found every 

 where "strong and sound," at twelve months old, 

 even if it is permitted to remain so for twelve days 

 after being built. It may be a fence abundantly 

 good to restrain the owner's stock, or any other 

 animals properly kept — but it is scarcely possible 

 to avoid, from the progress of continual decay 

 alone, some rads being found neither "strong or 

 sound" enough to keep out a mischievous animal, 

 who has been taught by hunger, and the habit of 

 trespassing on neighboring fields ft)r sustenance, 

 to search keenly for all such defective places. But 

 the regular progress of decay in fences, however 

 rapid it may be, does not cause half of this par- 

 ticular evil. Wherever night-walking negroes, or 

 other jiersons, choose to have a foot path through 

 a field, they will certainly throw down, and keep 

 down, some of the upper rails where they cross 

 the fences — and all the owner's efforts we all know 

 cannot prevent this being done. Any such defect in 

 fences would suffice to prevent the owner's having 

 any remedy or redress for the depredations of mis- 

 chievous animals. 



But suppose that the farmer has managed so 

 well, and been so lucky, that no defect has been 

 produced in his whole line of fence, either by de- 

 cay, by storms, nor by design or carelessness of 

 any neighbor, black or white — and that tres]}ass- 

 ing animals, notwithstanding, are found within 

 the field, and that he is able to prove the fact: and 

 that, on these (apparently) sure grounds, he 

 makes complaint, according to law, before a justice 

 of the peace, and obtains the order for the survey 

 of the condition of his fences. These steps can- 

 not be taken within a ^ew hours, nor completed in 

 secret: and even if the fences were perfectly good 

 when the surveyors commenced their examination, 

 the owner of the stock might secretly and safely 

 cause gaps to be made before the survey was fin- 

 ished, and thus procure a condemnation of the 

 fijnce. But without this, the mere fact that stock 

 had entered the field would be enough to show 

 that they had made the fence, by their entry, 

 otherwise than a "lawful enclosure" at that place: 



