Encyclopaedia Britannica, 11th Edition, "Columbus" to "Condottiere" / Volume 6, Slice 7

by Various

From the sketch of the common-field system of agriculture which has been given, we shall readily infer that a large proportion of the commons of the country, and of the peculiarities of the law relating to commons, are traceable to that system. Thus, common rights are mostly attached to, or enjoyed with, certain lands or houses. A right of common of pasture usually consists of the right to turn out as many cattle as the farm or other private land of the commoner can support in winter; for, as we have seen, the enjoyment of the common, in the village system, belonged to the householders of the village, and was necessarily measured by their holdings in the common fields. The cattle thus commonable are said to be levant and couchant, i.e. uprising and down-lying on the land. But it has now been decided that they need not in fact be so kept. At the present day a commoner may turn out any cattle belonging to him, wherever they are kept, provided they do not exceed in number the head of cattle which can be supported by the stored summer produce of the land in respect of which the right is claimed, together with any winter herbage it produces. The animals which a commoner may usually turn out are those which were employed in the village system—horses, oxen, cows and sheep. These animals are termed commonable animals. A right may be claimed for other animals, such as donkeys, pigs and geese; but they are termed non-commonable, and the right can only be established on proof of special usage. A right of pasture attached to land in the way we have described is said to be appendant or appurtenant to such land. Common of pasture appendant to land can only be claimed for commonable cattle; and it is held to have been originally attached only to arable land, though in claiming the right no proof that the land was originally arable is necessary. This species of common right is, in fact, the direct survival of the use by the village householder of the common of the township; while common of pasture appurtenant represents rights which grew up between neighbouring townships, or, in later times, by direct grant from the owner of the soil of the common to some other landowner, or (in the case of copyholders) by local custom.

The characteristic of connexion with house or land also marks other rights of common. Thus a right of taking gorse or bushes, or of lopping wood for fuel, called fire-bote, is limited to the taking of such fuel as may be necessary for the hearths of a particular house, and no more may be taken than is thus required. The same condition applies to common of turbary, which in its more usual form authorizes the commoner to cut the heather, which grows thickly upon poor soils, with the roots and adhering earth, to a depth of about 9 in. Similarly, wood taken for the repairs of buildings (house-bote), or of hedges (hedge-bote or hey-bote), must be limited in quantity to the requirements of the house, farm buildings and hedges of the particular property to which the right is attached. And heather taken for litter cannot be taken in larger quantities than is necessary for manuring the lands in respect of which the right is enjoyed. It is illegal to take the wood or heather from the common, and to sell it to any one who has not himself a right to take it. So, also, a right of digging sand, gravel, clay or loam is usually appurtenant to land, and must be exercised with reference to the repair of the roads, or the improvement of the soil, of the particular property to which the right is attached.

We have already alluded to the fact that, in Norman and later days, every vill or township was associated with some over-lord,—some one responsible to the crown, either directly or through other superior lords, for the holding of the land and the performance of certain duties of defence and military support. To this lord the law has assigned the ownership of the soil of the common of the vill; and the common has for many centuries been styled the waste of the manor. The trees and bushes on the common belong to the lord, subject to any rights of lopping or cutting which the commoners may possess. The ground, sand and subsoil are his, and even the grass, though the commoners have the right to take it by the mouths of their cattle. To the over-lord, also, was assigned a seignory over all the other lands of the vill; and the vill came to be termed his manor. At the present day it is the manorial system which must be invoked in most cases as the foundation of the curiously conflicting rights which co-exist on a common. (See [Manor].)

Within the bounds of a manor, speaking generally, there are three classes of persons possessing an interest Manorial commons. in the land, viz.:—

(a) Persons holding land freely of the manor, or freehold tenants.

(b) Persons holding land of the manor by copy of court roll, or copyhold tenants.

(c) Persons holding from the lord of the manor, by lease or agreement, or from year to year, land which was originally demesne, or which was once freehold or copyhold and has come into the lord’s hands by escheat or forfeiture.

Amongst the first two classes we usually find the majority of the commoners on the wastes or commons of the manor. To every freehold tenant belongs a right of common of pasture on the commons, such right being “appendant” to the land which he holds freely of the manor. This right differs from most other rights of common in the characteristic that actual exercise of the right need not be proved. When once it is shown that certain land is held freely of the manor, it follows of necessity that a right of common of pasture for commonable cattle attaches to the land, and therefore belongs to its owner, and may be exercised by its occupant. “Common appendant,” said the Elizabethan judges, “is of common right, and commences by operation of law and in favour of tillage.”

Now this is exactly what we saw to be the case with reference to the use of the common of the vill by the householder cultivating the arable fields. The use was a necessity, not depending upon the habits of this or that householder; it was a use for commonable cattle only, and was connected with the tillage of the arable lands. It seems almost necessarily to follow that the freehold tenants of the manor are the representatives of the householders of the vill. However this may be, it is amongst the freehold tenants of the manor that we must first look for commoners on the waste of the manor.

Owing, however, to the light character of the services rendered by the freeholders, the connexion of their lands with the manor is often difficult to prove. Copyhold tenure, on the other hand, cannot be lost sight of; and in many manors copyholders are numerous, or were, till quite recently. Copyholders almost invariably possess a right of common on the waste of the manor; and when (as is usual) they exist side by side with freeholders, their rights are generally of the same character. They do not, however, exist as of common right, without proof of usage, but by the custom of the manor. Custom has been defined by a great judge (Sir George Jessel, M.R., in Hammerton v. Honey) as local law. Thus, while the freehold tenants enjoy their rights by the general law of the land, the copyholders have a similar enjoyment by the local law of the manor. This, again, is what one might expect from the ancient constitution of a village community. The copyholders, being originally serfs, had no rights at law; but as they had a share in the tillage of the land, and gradually became possessed of strips in the common fields, or of other plots on which they were settled by the lord, they were admitted by way of indulgence to the use of the common; and the practice hardened into a custom. As might be expected, there is more variety in the details of the rights they exercise. They may claim common for cattle which are not commonable, if the custom extends to such cattle; and their claim is not necessarily connected with arable land.