Excerpt from Commons and Common Fields: Or the History and Policy of the Laws Relating, to Commons and Enclosures in England; Being the Yorke Prize Essay of the University, of Cambridge for the Year 1886

The mixed question of law and history is dealt with in the first three chapters of the essay; it is one of great difficulty, and great importance. The recent work of Mr Seebohm, whatever be its merits and faults in other respects, has certainly compelled those who assert the existence of a Free Village Community in England to carefully restate their position, which had become through premature popularisation and the crude generalisation and parrot-like repetition of crammers and their victims inde fensible in some of its doctrines. Especially the attack on the legal theory of rights of common, (which is that they originate in law from the grant of a lord, ) commenced by Mr Joshua Williams and Mr Digby, appears to overlook the state of the historical evidence as to the condition of things at the time when the lord's grant must have been made or implied. The following pages advocate the view that the legal theory is historically accurate, if stated with proper limitations; that except in the Eastern and Danish counties, the existence of Free Village Communities in England for some centuries before the Conquest, is, as Kemble recognised, historically very doubtful; and that Common Appendant, which is usually put forward as the direct survival of the Free Community, can be clearly shown to have no such origin in the vast majority of the manors of England.

This discussion also involves an examination of the very difficult question of the relation of the Statute of Merton to earlier law; and an attempt to prove that the distinction between Commons Appendant and Appurtenant only originates In the 15th century. The subject matter of the first two chapters has already appeared in the Law Quarterly Review for October, 1887.

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