LITMIR.BIZ

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this right as a legal one acquired by custom, and not to be taken away? Mr. Lefevre suggested this in a letter to The Times. He says:

      "The right of the public to use and enjoy Commons (which they have for centuries exercised), it must be admitted, is not distinctly recognised by law, though there is a remarkable absence of adverse testimony on the subject. The law, however, most fully recognises the right of the village to its green, and allows the establishment of such right by evidence as to playing games, &c., but it has failed as yet to recognise the analogy between the great town and its Common, and the village and its green, however complete in fact that analogy may be. But some of these rights of Common, which are now so prized as a means of keeping Commons open, had, if legal theory is correct, their origin centuries ago in custom. For long they had no legal existence, but the courts of law at last learned to recognise custom as conferring rights. The custom has altered in kind; in lieu of cattle, sheep, and pigs turned out to pasture on the Commons, human beings have taken their place, and wear down the turf instead of eating it. I can see no reason why the law, or, if the courts are too slow to move, the Legislature, should not recognise this transfer and legalise this custom. Again, it is probable that Commons belonged originally much more to the inhabitants of a district than to the lord. Feudal theory and its subsequent development—English Real Property Law—have ridden rather roughly over the facts and the rights of the case. The first placed the lord of the manor in his position as lord, giving him certain privileges, and coupling with them many responsibilities. The second gradually removed these responsibilities, and converted into a property what was at first little more than an official trust. If these considerations are beyond the scope of the law courts, they are proper for Parliament. One step has been made. It has been proved that it is not necessary to purchase Commons for the public, but that ample means of protecting them from inclosure exist. It is also obvious that the rights which constitute these means are now in practice represented by a public user of Commons for recreation. The Legislature should, I venture to think, recognise this user as a legal right."

      If the Legislature would do this, Commons all over England might be kept open, which, I venture to think, would be a great gain. Hitherto the right to keep Commons open has been maintained, even in the neighbourhood of towns, by legal questions affecting rights of pasturage, of cutting turf, or carting gravel. This is all very well if it secures the object, but it is on the large ground of public policy, for the sake of the health and enjoyment of the people, that the conscience of the nation supports the attempt to keep them open; it cares little for the defence of obsolete and often nearly valueless customs, and it would be very well if the right acquired by use could be recognised by law, and the defence put at once on its real grounds.

      I have referred to the opinion expressed by lawyers and members of Parliament that the opportunity of applying for schemes for regulation provided by the Bill now before the House will not be used at all largely, owing to the necessity of the consent of those owning two-thirds value of the Common, and of the veto possessed by the lord of the manor. They tell me also (and it certainly appears to me that both statements are evident on reading the Bill) that unless Mr. Cross consents to insert a clause forbidding all inclosures except under this Act, the passing of it will be followed by a large number of high-handed inclosures under old Acts, or without legal right. For unless the right of some independent body like the public who use the space can be recognised as having a voice in opposing illegal inclosures, what chance have the rural Commons? The agricultural labourers, often tenants-at-will of a powerful landlord, can be ejected and their rights immediately cancelled; moreover, they do not know the law, they have few to advise them, to plead their cause, or to spend money on expensive lawsuits. Mr. Lefevre says in the same letter quoted above, "I would at least ask them to declare all inclosures not authorised by Parliament to be primâ facie illegal and to remove the necessity of litigation by persons actually themselves commoners, by authorising any public body, or public-spirited individual, to interfere in the case of any such inclosures, and put the lord to strict proof of his right."

      And do not let us be too ready to see the question dealt with as a matter of mere money compensation. It is much to be feared lest the short-sighted cupidity of one generation of rural commoners may lose a great possession for future times. This danger is imminent because we are all so accustomed to treat money value as if it were the only real value! Can we wonder if the eyes of poor men are often fixed rather on the immediate money value to themselves than on the effect of changes for their descendants? Should we stand by, we who ought to see farther, and let them part with what ought to be a possession to the many in the future? A few coals at Christmas, which rapidly come to be looked upon as a charity graciously accorded by the rich, or the recipients of which are arbitrarily selected by them, may in many cases be blindly accepted by cottagers in lieu of Common rights. Is the influence of such doles so healthy that we should wish to see them taking the place of a Common right over a little bit of English soil? The issue at a nominal charge of orders to cut turf or furze by a lord of the manor has been known gradually to extinguish the right to do so without his leave. Is the influence of the rich and powerful so slight that we should let it be thus silently strengthened? Is the knowledge just brought so prominently before us that one quarter of the land in England is owned by only seven hundred and ten persons so satisfactory that we will stand by and see quietly absorbed those few spots which are our common birthright in the soil? It is not likely that farms or estates will diminish in size; and the yeoman class is, I suppose, passing away rapidly. With the small holdings, is there to pass away from our people the sense that they have any share in the soil of their native England? I think the sense of owning some spaces of it in common may be healthier for them than even the possession of small bits by individuals, and certainly it now seems more feasible. Lowell tells us that what is free to all is the best of all possessions:

      'Tis heaven alone that is given away,

      'Tis only God may be had for the asking;

      There is no price set on the lavish summer,

      And June may be had by the poorest comer.

      Hugh Miller, too, points out how intimately the right to roam over the land is connected with the love of it, and hence with patriotism. He says, speaking of his first visit to Edinburgh: "I threw myself, as usual, for compensatory pleasures, on my evening walks, but found the inclosed state of the district, and the fence of a rigorously-administered trespass-law, serious drawbacks; and ceased to wonder that a thoroughly cultivated country is, in most instances, so much less beloved by its people than a wild and open one. Rights of proprietorship may exist equally in both; but there is an important sense in which the open country belongs to the proprietors and to the people too. All that the heart and intellect can derive from it may be alike free to peasant and aristocrat; whereas the cultivated and strictly fenced country belongs usually, in every sense, to only the proprietor; and as it is a much simpler and more obvious matter to love one's country as a scene of hills, and streams, and green fields, amid which nature has often been enjoyed, than as a definite locality, in which certain laws and constitutional privileges exist, it is rather to be regretted than wondered at that there should be often less true patriotism in a country of just institutions and equal laws, whose soil has been so exclusively appropriated as to leave only the dusty high-roads to its people, than in wild open countries, in which the popular mind and affections are left free to embrace the soil, but whose institutions are partial and defective." So writes at least one man of the people; and whether we estimate the relative value of just laws or familiar and beloved scenes quite as he does, or not, I think we must all feel there is deep truth in what he says.

      Let us then press Government, while there is still time, that no bit of the small portion of uninclosed ground, which is the common inheritance of us all as English men and women, shall be henceforth inclosed, except under this Bill; which simply means that each scheme shall be submitted to a Committee of the House, and considered on its merits.

      Surely this is a very reasonable request. Do not let us be satisfied with less. Do not let us deceive ourselves as to the result of this Bill if it pass unamended.

      FOOTNOTE:

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