Tennyson on Legal Precedents of the Parliamentary Enclosure Movement

Legal Precedents of the Parliamentary Enclosure Movement is a new paper by Robert D. Tennyson, University of California, Berkeley. Jurisprudence and Social Policy Program. Here's the abstract:

In the hundred years beginning with 1750, nearly 6.8 million acres of common and waste land in Britain were enclosed into several plots. This article explores the legal and normative changes in the process by which enclosure was obtained in the seventeenth and early eighteenth centuries to suggest a “supply-side” explanation for this enclosure movement. These changes were of two sorts. First, in the seventeenth century, Chancery began to enforce agreements to submit enclosure determinations to third-parties for award and to issue commissions to make awards of enclosures on agreement. This permitted manorial lords, impropriators of tithes and commoners to put off contentious questions of allotment that would otherwise have frustrated socially beneficial enclosure agreements. The second, and perhaps more important development, was the increased willingness of parliament to enact private legislation for the purpose of appointing commissioners to allot and enforce enclosure of common and waste lands. In parliament, a norm imported from Chancery requiring the consent of all parties with a proprietary interest in the land to be enclosed was steadily eroded, so that by 1750, a bill for enclosure could be passed with the assent of those owners possessing 80 percent of the total affected property. This development made it substantially easier to sideline holdouts and assemble coalitions in favor of enclosure, increasing resort to parliament in the subsequent decades.