Rights of Way and Water.—Rights of way, rights to drive stock or to draw water across neighbours' land, which are so inconvenient, and so easily avoided by vesting the right in an individual who will decide according to his own interest, are primary and essential common rights in all early societies.

The Year Books, for instance, show us claims for right of way over land for driving beasts and carrying corn, etc. 12 By the Irish laws every co-tenant is bound to permit others to draw water across his land; 13 and the owner of mill, which was then the most important mechanical home industry, could make use of the water from his neighbour's land for the mill on compensation. 14

The Welsh laws say: Every habitation ought to have a bye-road to the common waste of the trev, and to allow other land for it. Every habitation ought to have two footpathsone to its church, and one to its watering-place. 15

Ireland. The liabilities of land extended to the adjoining roads; the liabilities as regards roads, a fence for it alone, and to cut them and cleanse them and remove their weeds and mire in time of war and of a fair; and because it is expected that each should assist the other. 16

In Orkney, Shetland, and West Highlands." Anent the possessing of grass, outbrekis and balkis, the assize ordareis as the merkstaneis was set of befoir within the dykis sall haiff his bak to the hill." Note by A. W. Johnston, i.e. shall have his balk or access to the hill. April 1576.17

Easements.-But it is quite impossible to separate the rights of common of the community, whether of pasturage, estovers, digging in the soil, or water, as between members of the community, entirely from the obligation of the individual who has acquired a separate interest in land to allow rights to the others of the community or to individuals over those lands.

In other words, we pass from common rights to easements. An easement, called by the Romans servitude, by the Scandinavians itak, by the Germans Grunddienstbarkeiten, is defined by Mr Gale 18 as a privilege without profit which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the servient

owner is obliged to suffer or not to do something on his own land for the benefit of the dominant owner.

To illustrate by Scots law, by the action of souming and rouming to check servitude of pasturage, the servient subject is first soumed or the amount of the stock it can pasture determined, and then the proportion effeiring to each of the dominant tenements (roums) fixed according to their capacity for winter foddering. 19

I give as examples of such easements, the very essence of all successful and friendly farming, and of the accommodation of neighbours, the following, some being from very remote and largely pastoral parts:

Northumberland. -Adam and Alina convey to William Heyrun three pieces of pasture, with power to assart and cultivate without any common which they or their heirs may claim or have except after the hay and corn are carried, and saving a free entry and exit to them with all their beasts to the other pastures. Another conveyance saving free entry and exit to a watering-place and free chace to water all their beasts there. 20

In the Chartulary of the Abbey of Newminster, 21 in Northumberland (an overflow from Fountains about 1138), there are many such grants of easements, such as a right to get coal; a right of way for getting marl; pasturage for all kinds of stock; quarrying stone; osier beds; a pen for catching wild horses; salt pans on the banks of the Blythe.

The monks of Newminster were Cistercians, and as such great farmers. They leased in 1181 from Odnell de Umfra vill a tract of land on the borders of Scotland called Kidland, consisting of boggy hills of the Cheviot range with fertile valleys between, with the proviso (p. 74) "quod canes uno sui pede carebunt ut feræ meæ indomita pacem ibi habeant." In a border survey of 1542,22 it is said that Kidland could not then be cultivated because of the thieves of Teviotdale. There is a provision 23 that if the wild horses (equi silvestres) or cattle strayed, they should be driven back to their range.

24

Avenel v. Melrose, referred to Alexander II. (supra, p. 197), is an example of the difficulty caused by trying to do two things at once on one piece of land. Apart from the award

there was great difficulty.

A timely miracle might cause

the hawks' nests to fall down, or the White Lady of Avenel might warn off the hunters. But the monks could hardly keep pigeons or chickens with protected hawks, and the deer would effectively interfere with tillage. Murrain might spread to their own cattle.

Eastern Scotland. -David in 1147 grants to the Church of St Mary in Stirling, inter alia, land with fishing, and the privilege of a net in the river; land with the wood; a salt pan with land attached. In a Confirmation by David in 1150, of all the grants formerly made to Dunfermline, he grants the passage and boat of Inverkeithing, excepting free passage for persons on Court business. 25

The only variation of such easements comes with variance of occupation. In the Gragas, in the Norwegian and Danish Customs, rights of salvage of whales, of sealing and driftwood, are more prominent than rights of way and water.

Enclosures, as they become a cause of communal decay, have to be considered with reference to all these rights of user with which of necessity they came into conflict. While the constitutional historian is attributing revolutionary thought to some lack of Parliamentary procedure in days when Parliament did not exist, or to the supposed evil qualities or imaginary evil acts of a king, the common man, if as a consequence of acute indigestion he was brooding over the ills of his condition, was laying stress on some act of men in power, some enclosure of common waste, or act such as the making of the dam by Abbot Samson, which interfered with his right to get food from the land.

NOTES.- 1 Elton, Custom and Tenant Right, p. 18. 2 C.P., 1612. Elton, Custom and Tenant Right. 3 Y.B. 13, 14 Edw. III., xxxi. 4 Refer to the very valuable prefaces to the Year Books, Rolls Series, 13, 14 Edw. III., and 18 Edw. III. 5 Y.B. 16 Edw. III., vol. ii. p. 163. Boef's Rep., "grossa animalia Rec." 7 A prescription, for instance, for common, for four cows and a half, meaning of course half-time commonage for one cow, was held good in Hill and Allen's case, 1 Keble, 793. 8 A.L.W., Anom. XIII. ii. 101, 109, 142. 9 Y.B. 30, 31 Edw. I., p. 134. 10 Statute Book, anno 1583, 1637-43-62, 1703, quoted Wood's History of Man. 11 A.L. Irel., iv. 100; v. 483. 12 Y.B. 30, 31 Edw. I., p. 350. 13 A.L. Irel., iv. 213 et seq. pendix D, Milling and Fishing. 15 A.L.W., Anom. IX. xxv. 7, 8; and see A.L. Irel., iv. 157, 159. 18 A.L. Irel., iv. 145. 17 O.S.

14 Ap

Rec., Clouston, p. 139, Nos. 63, 64. 18 Easements, Part 1. ch. i. 19 Balfour's Oppressions, Maitland Club. 20 Northumberland Assize Rolls, pp. 408, 409. 21 Surtees Society, pp. 20, 152, 160, 183, 195, etc. 22 Printed in Hodgson's Northumberland, III. ii. 222–6. 23 P.80 of the Chartulary of the Abbey of Newminster. 24 See as to turbary, Chartulary of the Abbey of Newminster, pp. 22, 32, 33. Scottish Charters, Nos. clxxix., ccix.

25 Lawrie's

CHAPTER XXII

ENCLOSURES IN ENGLAND

MANY and various causes of change influence the different parts of the islands in different degree and at different times, so that it is necessary that each part should be treated separately. Though all such causes are largely a matter of degree, the change in England, the pre-eminently corn-growing country (at least in the southern parts), is largely bound up with the history of enclosures, which here differs considerably from the history of enclosures in the rest of the islands, apart from any question of land contour.

Many circumstances combine to hasten individual ownership of the soil. The great strength of the federal authority discouraged communal responsibility; the feudal tenures, which replaced the society of kinship, rested on individual ownership of the soil and hastened enclosures by encouraging individual occupation as against the community; the French origin of the kings and of most of the great lords, and the wealth and numbers of foreign ecclesiastics, tended in the same direction; the propinquity of France and Flanders and the large commerce with their peoples told against kinship, bringing a great number of strangers to the country to be settled on the land; commerce and arable cultivation, with the resulting increase of population, caused an increase in the value of land; by the proximity of Flanders as a market for wool, sheep farming on the waste became a very profitable industry for the great landowner, and a great inducement to him to oust the smaller man or to overstock the waste with his flocks; and the waste was further diminished by the extravagant gifts

to the monasteries by successive kings both of Scotland and England and by lords of baronies and manors. All this, with the large amount of arable farming, put enclosures upon a different footing in England from the rest of the islands, and brought about the change very much earlier.

Although all arable land was farmed in a common field, the extent of the farming by the monks, of which we have very full evidence in their chartularies and elsewhere, monks bound by their order to replace all claims of kinship, all obedience to the community, by allegiance to a foreign authority, combined with feudal tenure to identify arable cultivation with the relation of landlord and tenant rather than with co-ownership of kinsmen.

Enclosure of the Waste by the Lord.-In medieval times we do not so much mean by enclosure the wholesale enclosure of arable fields such as took place in the seventeenth or eighteenth century for the improvement of arable farming, as enclosures made of small parts of the waste or forest by the lord, or by persons to whom he had sold the privilege in his own personal interest.

In those parts of the islands where it was still a matter of common acknowledgment that the user of the land was in the first instance common to all, though there might be wide exceptions, such enclosures were not likely to be made contrary to the general wish, and do not appear to have been resented.

But in England, where the land was vested in a lord who could rent part or the whole of it to tenants for rents to be paid to him, or his personal assignees, the only interest remaining to the community were such rights as they could claim by immemorial custom and could sustain in the manorial court or in the law courts of the king. Under these influences enclosures very early became associated with the withdrawal from common cultivation of land over which the community had the common rights of which I have just written, lands which they were accustomed to use as common pasturage when the crops were harvested, and from common use of land over which they had been used to have right to take firewood, brushwood, peat and fern, to fish and to hunt, and to range their animals.