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industrious application of labour and capital. But both laws ofconsuetude and of positive enactment have put bars in the wayof such a favourable constitution.
In Scotland , as in many other countries, the imperious callsof mutual defence, in times of turbulence and disorder, led tothat interweaving of landed property, which might make it, inthe strictest sense, a joint and common concern. Small contigu-ous proprietors would join their dwellings together in little villa-ges ; their cultivated land, around their dwellings, would be in-termixed in run-ridge, that they might incur equal risk; and, forlike reason, their cattle and flocks would pasture in common, uponthe more distant fields. The same contrivance, for the samepurposes, would be adopted by the greater proprietors, in allot-ting their lands among their tenantry. And when the selfishinodes of gratification held out in the products of commerce andmanufactures, liad produced the prodigality of expense whichled to that alienation of great estates, which the former morebenevolent modes of expense, (in maintaining retainers, in rudehospitality, Upon their produce), had not led to, * the parcelssuccessively alienated from these great estates, would naturallybe conveyed, under the same mode of holding in which theyfrere occupied by the possessing tenant; and, in this way, theholding of the property in land, in mixed arable and commonpasturage, would be more and more extended.
In Scotland , before a general statute was thought of, for di-vision of commons, the inconveniency of common pasturage wasfelt, and a process of sown mid roum was made competent to anyof those concerned, by which the proportion of the cattle sent byeach party to the pasturage, was limited to that number whichhis proportion of the arable land, to which the right of pastur-'&ge belonged, could enable him to fodder in winter.
The division of commons is the subject of the general statute of1695, which attbrds an easy and unexpensive mode of process,hy which it is competent to any of the proprietors, having inte-rest of property in a common, to compel the rest to a division.And in consequence of this facility given by the Legislature , asense of common interest has led to the almost universal division°f commons into severalty, through Scotland . Those that havemerely a right of servitude f upon a common, but no right ofproperty in the land, (which must be determined by the writtentitles relating to it), are not entitled to force a division; nor canthose pursuing competently for a division, force a commutationof these servitudes. The division, however, would not, for want®f such concurrence, be defeated: but if the servitude was one°f pasturage, some one of the proprietors would get the largest
* Wealth of Nations, Book iii. Chap. 4.t A proof of forty years uninterrupted possession establishes the ri^Uk