Page:Our Common Land (and other short essays).djvu/21

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9
OUR COMMON LAND.

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