The Customs of Old England

by F. J. Snell

"Warwick: 'Sir, first of all they avowed the taking, and said that we ought not to have any kind of common; and now they have admitted our right of common partially, viz. as to beasts which can be wintered ...'

"Gosefield: 'The assise of forest is notorious and well-known to all, viz., that no man can have therein more beasts to common than can be fed off the said land.'

"Warwick (he spoke then for the King): 'Richard, do you claim to have assise of forest?'

"Gosefield: 'Nay, sir. But King Henry granted and gave it to us to hold as a chace in the same manner as he held it while it was a royal forest; and we have three swain-motes yearly for searching and inquiring whether anyone puts more beasts therein than he ought to put; and, inasmuch as King Henry granted it to us to hold like as he held it, it seems to us that there is no need to take the Inquest.'

"Hertford [the judge]: 'Do you accept the averment or not?'

"Gosefield (being obliged to accept the averment) said: 'Sir, they were never seised of common for more beasts than could be wintered and fed and supported on the growth of the said land.'"

There is appended to this report a note which lays down the law in a different sense from that before stated. It is as follows:

"It is not sufficient for anyone who avows distress to say that he avows the taking, &c., for that he found the beasts in his chace of such a place, or in the common of such a place, where he had no right of common; for it may be that neither party had a right of common; and thus it is not sufficient but he must say that he found them in his several pasture, or must say some other thing that touches himself and gives him a right to impound what he found. For no man can avow a distress in a common pasture save the lord of the soil of the common pasture. For if any of the commoners were to make avowry for beasts taken in the common pasture it would then follow that if the Inquest were to pass against the plaintiff, he who avowed the taking in the common pasture would have the return of the beasts and the amends, and not the lord of the pasture, and that would be improper. But this does not hold good where the King is the lord of the common pasture, and several persons holding of him in socage have common, because in that case anyone having common may avow a good distress. The reason is because the King will not be a party in such case or distrein anyone."

In mediæval country life, then, commons might be either manorial or forestal. Bishop Stubbs in his "Constitutional History" affirms that "neither the hundreds of England nor the shires appear ever to have had common lands." As regards hundreds, on the enclosure of a common, allotments were made to several townships of Knaresborough, and Stubbs himself allows that "it seems a fair instance of common lands of a hundred." Similarly, there is in the hundred of Coleness in Suffolk a pasture common to all the inhabitants. But in each instance we have probably to distinguish between use and ownership; and the same distinction applies to counties, otherwise the case of the Devonshire Commons might seem to refute the dictum.

The Devonshire Commons are not to be confused with the Forest of Dartmoor. They constitute rather the purlieus, and, in general, afford better pasturage than the forest itself. Neither are they identical with the commons of the separate vills—the manorial or parochial commons. The whole of the inhabitants of the county may be regarded as possessing an interest in the Devonshire Commons, with the exception of the people of Barnstaple and Totnes, the reason being that those districts not having been afforested with the rest of the county, the residents acquired no new privileges when Devonshire was disafforested. The other inhabitants retained whatever rights they had previously enjoyed not only in respect of the Devonshire Commons, but of the Forest of Dartmoor, of which, at some early period—before the era of perambulations, in which they were not included—those commons had no doubt formed part. One effect of the wide extent of the right of common was that the rule of levant and couchant did not obtain here. Naturally, when all Devonshire men were entitled to the use of the land, it was impossible to fix a limit to the number of the beasts that might be turned out throughout the length and breadth of the county.