STATUTE LAW REVISION: SIXTEENTH ... - Law Commission

PART VI
INCLOSURE ACTS
39 Inclosure under the Inclosure Act 1845
6.1 The enactments proposed for repeal under this heading are mostly the remains
of the obsolete machinery for inclosure of commons, i.e. for extinction of rights of
common and termination of certain other old rights, in the public general
Inclosure Act of 1845 and the amending Acts of 1846 to 1868. Public tolerance
of this process began to wane in the 1860s, Parliament started on a different
course, and the last application for inclosure under this heading was in 1914. 1
6.2 There is no definition of inclosure under these Acts. However the main purpose
was agricultural improvement, by the extinction of inconvenient rights of common
and similar rights, as may be understood from the first words of the preamble of
the Act of 1845:
“Whereas it is expedient to facilitate the inclosure and improvement of
commons and other lands now subject to rights of property which obstruct
cultivation and the productive employment of labour...”
Of course it was not recognised here that inclosure often inflicted hardship on the poor, while
enriching some of the better-off.
6.3 There is no statutory definition of rights of common either but section 11 of the
1845 Act defines “land subject to be inclosed” under the Act. This includes all
lands subject to any rights of common whatsoever. Rights of common were of
various kinds, including the gathering of brushwood or peats for the hearth, turfs
for the roof or the fire, perhaps some fishing, and very often the right to pasture
livestock on the land. Unfortunately the word “common” may mean the right or it
may mean the land of another person on which the right is exercised. 2 Common
land, so called, was often the waste land of a manor, i.e. the land which had not
been brought into cultivation. The usual characteristic of a common right was
that the commoner, i.e. the owner of the right, was not the owner of the soil. 3
That usually belonged to the lord of the manor. However section 11 also
comprehends various other interests in land including, at the opposite extreme,
all gated and stinted pastures. These have been said to be different, at least in
some cases, in that the herbage of these pastures, not in the waste, was owned
by certain persons having limited freeholds or copyholds. 4 A stint is a limit, so
1 Report of the Royal Commission on Common Land 1955-1958 (Cmnd 462) App III para
463. The inclosures, surging into full force in the 1790s, transformed rural life in the
affected counties until the “movement” began to abate in the 1860s. Mainly provided for in
legislation by numerous private Acts until 1845, it culminated in the general Act of 1845 as
amended. Under the provisions of that Act some 650,000 acres were inclosed of which
about half was manorial waste: G D Gadsden, The Law of Commons (1988) 5.
2 ECK Gonner, Common Land and Inclosure (1912) 7. Professor Gonner reported this old
definition: common is a right which one or more persons have to take or use some portion
of that which another’s soil produces.
3
Common rights to take or dig sand, gravel, stones or clay were said by Professor Gonner
to be exceptional: op. cit. 16.
4 Op. cit. 13.
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