Book II. DIVIDING COMMONABLE LANDS. 563 



which afford no increase of value, do not entitle their owner to any share of the soil they 

 stand upon. All that the lord has a right to claim appears to be limited to the trees 

 themselves or their intrinsic value. 



3495. 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 

 lambs, 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 burthen, 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. 

 Besides, 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 farther 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. 



3496. Again, in cases in which the tithe of lambs and ivool, and the tithe of corn, §c. belong 

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

 more difficult to be drawn. 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 have been 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 

 lambs 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. In- 

 deed, 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 proposed 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 

 thus free the lands entirely from this obstacle to their improvement. 



3497. If any other abstract claim on the lands to be appropriated be fairly made out, 

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

 acquired, 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 its 

 stead. 



3498. The remainder of the unstinted commons of a given township or manor belong 

 to the owners of its common-right lands and houses ; but in what proportion, it may be 

 difficult 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. 



3499. One of the first steps toward an equitable distribution of unstinted commons 

 is to ascertain the common-right 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 common-right house has the privilege of 

 depasturing as many cattle, sheep, or other live stock, on the common in summer 

 (provided, it must be understood, that it is large enough to permit every occupiei 

 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 Filzherberl and Black- 

 stone. ) 



3500. Under this regulation, the appropriated lands of a common-field township, which 

 are not occupied jointly with a common-right 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 



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