Bracton's doctrine.
I think that all this must follow necessarily as soon as the main fact is admitted, that common is normally the right to pasture of a shareholder of the manor. The objection may be raised, that such a priori reasoning is not sufficient in the case, because the documents do not countenance it by their classification. Would the objection be fair? Hardly, if one does not insist on finding in Bracton the identical terms used in Coke upon Littleton. It is true that Bracton speaks of common in general, and not of common appendant, appurtenant, and in gross, but the right of common which he treats as normal appears to be very peculiar on a closer examination of his rules. It is praedial and not personal; to begin with, it is always thought of as belonging to a tenement[551]. What is more, it cannot belong to a tenement reclaimed from the waste[552], and in this way the requirement of 'ancient arable' is established, that is, the pasture is considered as one of the rights conceded to the original shares of a manorial community. The use of the open field outside the time of reasonable defence[553] is primarily meant, and the common pasture appears from this point of view as one of the stages in the process of common farming. To make up the whole, the right to common is defined by a 'quantum pertinet[554],' which has a sense only in connexion with the admeasurement of claims effected by the internal organisation of the manor. Such is evidently the normal arrangement presupposed by Bracton's description, and his only fault is, that he does not distinguish with clearness between the consequences of the normal arrangement, and of grants or usurpations which supplement and modify it. It must be remembered that he only gives the substantive law about common rights in the course of a discussion of the pleadings in actions 'quo jure' and assizes of pasture. If we compare with Bracton's text the rules and decisions laid down in the legal practice of the thirteenth century, we shall find that the same facts are implied by them. They all suppose a contrast between 'intrinsec' and 'forinsec' claims to common, that is between the rights of those who are members of the manorial group, and the rights, if any, of those who are outside it, and again a contrast between the normal rights of commoners and any more extensive rights acquired by special grant or agreement. Only the freeholders are protected in the enjoyment of their commons; only the freeholders are protected in the enjoyment of their tenements; but their claims are based on arrangements in which the unfree land participates in everything with the free. It may be added that litigation mostly arises from the adjustment of 'forinsec' claims under the writ 'Quo jure.' The intercommoning between neighbours gives rise to a good many disputes, and is much too frequent to be considered, as it was by later law, a mere 'excuse for trespassing[555].' This common 'pur cause de vicinage' may be a relic of a time when adjoining villages formed a part of a higher unit of some kind, of the Mark, of a hundred, for example. It may be explained also by the difficulty of setting definite boundaries in wide tracts of moor and forest. However this may be, its constant occurrence forms another germ of a necessary contrast between the two classes which afterwards developed into common appendant and common appurtenant. It could not be brought under the same rules as those which flowed from the internal arrangement of the manor. A special difficulty attended it as to admeasurement: the customary treatment of other holdings could not in this case serve as a standard. The very laxity of the principle naturally gave occasion to very different interpretations and deductions. And so we are justified in saying, that the chief distinctions of later law are to be found in their substance in the thirteenth century, and that although a good deal of confusion occurs in details, the earlier documents give even better clues than the later to the reasons which led to the well-known classification.
Restrictions on the lord as to common pasture.
Common appendant, if we may use the modern term for the sake of brevity, is indissolubly connected with the system of husbandry followed by the village community. A very noticeable feature of it is, that, in one sense, it towers over the lord of the manor as well as over the tenants. Of course, legally the lord is considered as the owner of the waste[556], but even from the point of view of pure law his ownership is restricted by his own grants. In so much as he has conceded freehold tenements to certain persons, he is bound by his own deed not to withhold from these persons the necessary adjuncts of such tenements, and especially the rights of pasture bound up with them. The free tenants share with the lord, if he wants to turn his common pasture to some special and lucrative use; if, for instance, strangers are admitted to it for money, one part of the proceeds goes to the tenantry[557]. Again, the lord may not overburden the common, and sometimes freeholders try their hand at litigation against the lord on the ground that he sends his cattle to some place where they ought not to go[558]. The point cannot be overlooked, that the lord of the manor appears subjected to certain rules set up by custom and common decision in the meetings of his tenantry. The number and kind of beasts which may come to the common from his land is fixed, as well as the number that may come from the land of a cottager[559]. The freeholders alone can enforce the rule against him, but it is set up not by the freeholders, but by the entire community of the manor, and practically by the serfs more than by the freeholders, because they are so much more numerous.
Approvement.
As the common of pasture appears as an outcome of a system of husbandry set up by the village community, so every change in the use of the pasture ought in the natural course to proceed from a decision of this community. Such a change may be effected in one of two manners: the customary rotation of crops may be altered, or else a part of the waste may be reclaimed for tillage. In the first case, a portion of the open arable and meadow, which ought to have been commonable at a certain time, ceases to be so; in the second, the right to send cattle to the waste is stinted in so much as the arable is put under defence, or the land is used for the construction of dwellings. By the common law the free tenants alone could obtain a remedy for any transgression in this respect. I have mentioned already that suits frequently arose when the old-fashioned rotation of crops was modified in accordance with the progress of cultivation. As to the right of approving from the waste, the relative position of lord and tenants was for a long time debateable, and, as everybody knows, the lord was empowered to approve by the Statute of Merton of 20 Henry III, with the condition that he should leave sufficient pasture to his free tenants according to the requirements of their tenements. The same power was guaranteed by the Statute of Westminster II against the claims of neighbours. It has been asked whether, before the Statute of Merton, the lord had power to enclose against commoners, if he left sufficient common to satisfy their rights. Bracton's text in the passage where he treats of the Statute is distinctly in favour of the view that this legislative enactment did actually alter the common law, and that previously it was held that a lord could not approve without the consent of his free-tenants[560]. Turning to the practice of the thirteenth-century courts, we find that the lawyers were rather doubtful as to this point. In a case of 1221 the jurors declare, that although the defendant has approved about two acres of land from the waste where the plaintiff had common, this latter has still sufficient pasture left to him. And thereupon the plaintiff withdraws[561]. In 1226 a lord who has granted pasture everywhere, 'ubique,' and has inclosed part of it, succumbs in a suit against his tenant, and we are led to suppose that if the qualification 'ubique' had been absent, his right of approvement would have been maintained. It must be noticed, however, that the marginal note in Bracton's Note-book does not lay stress on the 'ubique,' and regards the decision as contrary to the law subsequently laid down by the Constitution of Merton[562]. In a case of 1292 one of the counsel for the defendant took it for granted that the Statute of Merton altered the previously existing common law[563]. The language of the Statutes themselves is certainly in favour of such a construction: in the Merton Constitution it is stated as a fact that the English magnates were prevented from making use of their manors[564], and the Westminster Statute is as positive as to neighbours; 'multi domini hucusque ... impediti extiterunt,' etc. It seems hardly possible to doubt that the enactments really represent a new departure, although the way towards it had been prepared by the collision of interests in open Court. The condition negatively indicated by the documents in regard to the time before these enactments cannot be dismissed by the consideration that the lord would derogate from his grant by approving. Although a single trial may bear directly on the relation between the lord and only one of the tenants or a few of them, every change in the occupation of the land touches all those who are members of the manorial community. The removal of difficulties as to approvement was, before the Statute of Merton, not a question of agreement between two persons, but a question as to the relative position of the lord and of the whole body of the tenantry. The lord might possibly settle with every tenant singly, but it seems much more probable that he brought the matter, when it arose, before the whole body with which the management of the village husbandry rested, that is, before the halimote, with its free and unfree tenants. In any case, the influence of the free tenants as recognised by the common law was decisive, and hardly to be reconciled with the usual feudal notions as to the place occupied by the lord in the community. It must be noted that even that order of things which came into being in consequence of the Statute contains an indirect testimony as to the power of the village community. The Act requires the pasture left to the free tenants to be sufficient, and it may be asked at once, what criterion was there of such a sufficiency, if the number of beasts was not mentioned in the instrument by which the common was held. Of course, in case of dispute, a jury had to give a verdict about it, but what had the jury to go by? It was not the actual number of heads of cattle on a tenement that could be made the starting-point of calculation. Evidently the size of the holding, and its relation to other holdings, had to be taken into account. But if so, then the legal admeasurement had to conform to the customary admeasurement defined by the community[565]. And so again the openly recognised law of the kingdom had to be set in action according to local customs, which in themselves had no legally binding force.
Rights of common in woods, etc.
Besides the land regularly used for pasture, the cattle of the village were sent grazing along the roads[566] and in the woods[567]. These last were mostly used for feeding swine. In other respects, also, the wood was subjected to a treatment analogous to that of the pasture land. The right of hunting was, of course, subjected to special regulations, which have to be discussed from the point of view of forest law. But, apart from that right, the wood was managed by the village community according to certain customary rules. Every tenant had a right to fell as many young trees as he wanted to keep his house and his hedges in order[568]. It sometimes happens, that the lord and the homage enter into agreement as to the bigger trees, and for every trunk taken by the lord the tenantry are entitled to take its equivalent[569]. Whenever the right had to be apportioned more or less strictly, the size of the holdings was always the main consideration[570].
It would be strange to my purpose to discuss the details of common of estovers, of turbary[571], or of fishery. The chief points which touch upon the problems of social origins are sufficiently apparent in the subject of pasture. The results of our investigation may, I think, be summed up under the following heads:—
1. Rights of common are either a consequence of the communal husbandry of the manor, or else they proceed from special agreement or long use.