[425] Topographer and Genealogist, vol. i.: “The tenants of Landress have common in a certayne ground called King’s Moore for all kinde of cattle, and every one of them may keep in the said moore as much of all kind of cattle in somer as their severall or ingrounde will beare in the wynter, whyche is a great relief to the poore tenants, for as they confesse they keep all their cattle there in the somer, and reserve their ingroundes untouched for the winter.”
[426] e.g. Southampton Court Leet Records (Hearnshaw), pp. 4–5, 1550: “Item we present that no burgers or comyners at one time comyn above the number of two beasts upon payne of every such defaulte 2s.; provided that iff any of them have two kyne or wenlings, he shall have no horse, and yf he have but one cow he may have one horse.”
[427] Topographer and Genealogist, vol. i.—Rolleston (Stafford): “The said manor is ... well inhabited with divers honest men, whose trade of lyvinge is onlie by husbandry ... and have no large pastures or severall closes ... but have been alwaie accustomed to have their cattle and sometyme their ploughe beasts pastured in the Queen's Majestie’s Park of Rolleston, for xxd., the stage ... without which aide and help they were neither able to maintain hospitallitie nor tyllage; and nowe of late yeares the fermor of the herbage hath advanced the stage to 6s. 8d., and yet the Quene’s Majesties rent nothing increased.”
[428] Fitzherbert, Book of Husbandry.
[429] Northumberland County History, vol. v., Birling: “Allowed part of 25s. 4d. for focage of Orchard Medow and Mylneside Bank, because they are now enclosed within the lord’s new Park, and this allowance shall be made yearly until the tenants of Byrling have and peacefully enjoy another parcel of pasture to the same value 11s. 8d." (Bailiff’s Accounts, 1474). R.O. Misc. Books Land Rev., vol. ccxx., f. 236: “Divers parcels of land and pasture of the manor of Farfield, now common of 140 acres, now occupied by the tenants there as commons and given them in exchange in satisfaction of their old common imparked in the new Park, £6, 13s. 8d.”
[430] Pollock and Maitland, History of English Law, vol. i. p. 606. For the questions concerning common rights see ibid., pp. 594–624, and Maitland, Domesday Book and Beyond, pp. 340–356; Vinogradoff, Villainage in England, Essay II. chap, ii., and The Growth of the Manor, Book II. chap. iv. I have followed Vinogradoff’s rather than Maitland’s view.
[431] For buying and selling of pasture see below, and for enclosure pp. 168–170. The following seems a clear case of more or less corporate action. Holkham MSS., Burnham, Bdle. 5, No. 94: “Copy of an indenture between [here follows a list of names] of the same town and county, yeomen, as well on the behalf of themselves as of the rest of the comoners and freeholders of the said town of the one part, and Robert Bacon of [illegible] in the County of Norfolk, and Thomas Coke of Grays Inn in the County of Middlesex of the other part, that whereas heretofore Sir Philip [illegible] being lord and owner of the marshes hereafter mentioned ... did by his indenture of bargain and sale bearing date ... 1588, grant bargain and sell unto [list of names as above] all those marsh grounds lying and being in Burnham, to have and to hold the said premises to the parties last before mentioned and their heires to the use of them and their heires for ever, to the intent and purpose notwithstanding that the said parties last before mentioned there, being inhabitants in certain ancient messuages in the said Towne, and all other inhabitants of the said Towne there and afterwards for the tyme being in any of the ancient messuages and cottages in the said towne, for so long time as they shall be there inhabitinge and noe longer, according to the quantity of their tenures within the said Towne might depasture and feede the land as by the said deeds referring thereunto being had may more fully appeare; [it recites that the land] may by wallinge and embankinge the same be improved to more than a [illegible] value, and made fitt for arrable, meadowe, and pasture grounde, whereby tillage may be increased and his Majestie’s subjects receive more employment thereby, and danger of drawing [drowning?] of their stock for their feedinge prevented [recites that Robert Bacon and Thomas Coke have undertaken to drain the land in return for receiving three parts of it and that the persons above mentioned] being the major parte of the parties interested in the said salte Marshes, and being enabled by the lawes and Statutes of this realm to contract and bargaine with any person or persons for the draining thereof" [now convey 3 parts of the marshes to the above-mentioned Robert Bacon and Thomas Coke], June 8, 1637. The motive of this agreement was to get the low-lying meadows on the sea-coast drained. Drainage schemes were much in the air about this time, and any one who has seen the country near Holkham and Burnham will know how badly protection from the sea was needed. Two points are worth noticing: (i.) the tenants have no objection to surrendering part of their common if they get a quid pro quo; (ii.) they act as a single body. They buy land and they sell land and they can leave it to their heirs. Certain persons in the township act on their behalf, much as directors might act for a body of shareholders. Is it possible to speak of such arrangements simply in terms of individual rights? Are we not driven to think of the township as almost a landholding corporation?
[432] Common appendant, common appurtenant, common in gross, and common par cause de vicinage. This classification is not found in Bracton, and appears to date from the late Middle Ages, see Vinogradoff, Villainage in England, Essay II., chap, ii., and the following case: Coke’s Reports, Part IV., p. 60. Hill, 4 Jac. I. in Communi Banco: “Robert Smith brought an action of Trespass against Stephen Gatewood, gent., quare clausum fregit ... cum quibusdam averiis.... Defendant pleaded a certain custom, 'quod inhabitantes infra eandem villam de Stixwood prædictam infra aliquod antiquum messuagium ibidem ratione commorantiæ et residentiæ suæ in eadem habuerunt et usi fuerunt et consueverunt habere com. Pastur ... pro omnibus et omnimodis bobus et equis et aliis grossis animalibus.' Unanimously resolved that the custom is against law. 1. That there are but four manners of common, common appendant, appurtenant, in gross, and by reason of vicinage, and this common ratione commorantiæ is none of them. 2. What estate shall he have, who is inhabitant, in the common, when it appears he hath no estate or interest in the house (but a mere habitation and dwelling) in respect of which he ought to have his common? For none can have interest in a common in respect of a house in which he hath no interest.”
[433] Coke, Complete Copyholder, Sect. 53: “When an Act of Parliament altereth the service, tenure, or interest of the land, or other thing in prejudice of the lord or of the Customs of the Manor, or in prejudice of the tenant, then the generall words of such an Act of Parliament extend not to the copyhold; but when an Act is generally made for the good of the commonwealth, and no prejudice may accrue by reason of the alteration of any interest, service, tenure, or Custom, of the Manor, there usually copyhold lands are within the generall purview of such Acts.”
[434] Fitzherbert, Book of Surveying: “And as for that manner of common, me seemeth the Lord may improve himself of their waste grounds, leaving their own tenants sufficient common, having no regard to the tenants of the other lordship. But as far as all errable lands, meadows, leises, and pastures, the lordes may improve themselves by course of the common law, for the statute speaketh nothing but of waste grounds.”