Regulation of Common Land under the Commons Act 1876: Central and Local Perspectives

Abstract

"In a departure from decades of enclosure legislation in England and Wales, the Commons Act 1876 made provision for statutory regulation of common land: a reflection of the legislature's growing interest in preserving and improving--rather than extinguishing--the nation's surviving common lands.

"For those landowners and commoners who applied for and were granted local regulation acts and awards, this process established a new management framework, with the introduction of 'stinting' schedules (apportioning a certain number of common rights to each commoner), and boards of 'conservators' with powers to make byelaws. For some communities, regulation under the Commons Act 1876 promised to fill the legal vacuum afflicting common land management since the decay of their traditional management institution, the manor court; at the same time, the concept of a management body with byelaw-making powers suggested some form of continuity with the past, and could be expected to borrow from a tradition of manorial and village byelaws regulating the exercise of common rights.

"However, as surviving documentation shows, the purpose and scope of conservators' powers became a major point of debate between the central legislature and commoners, raising important questions over the efficacy of applying an external statutory solution to local management problems.

"Using cases from around the country, this paper explores the way in which interpretation of the Commons Act 1876 differed between the Home Office, which envisaged conservators' powers as primarily directed towards the common as a public space, and landowners and commoners who envisaged regulation as a means to more closely define and manage agricultural use of common land. In doing so, the paper points to a difficult meeting between two commons cultures, and between two legal traditions--one customary, and one statutory--as exhibited on commons regulated in the late nineteenth and early twentieth centuries."