A Cheap Bill for Deviant Enclosures: Legal Change and the Eighteenth Century Enclosure Movement

Robert Tennyson, University of California, Ber

Abstract

This article considers the question of legal change in the context of the parliamentary enclosure movement of eighteenth century England. While the English court of Chancery had enabled late Tudor and early Stuart enclosures by inserting a controlled uncertainty into the enclosure process, it refused to enforce them where an individual with rights of common held out. The eighteenth century parliament overcame this difficulty by allowing bill suitors to obtain private enclosure legislation in the face of ever-greater numbers of dissenters. This dilution of the unanimous assent standard occurred through the efforts of suitors who were encouraged by parliamentary procedures to challenge it repeatedly. Utilizing the notion of the expected value of a legal claim from the economic analysis of law, the article models the arrangement of procedure and fees for bills originated in the House of Commons and the House of Lords to show that the former was more tolerant of novel challenges to existing rules and expectations. The article closes by briefly considering the implications of the model for the generation of novel claims in the litigation setting.