Page:Encyclopædia Britannica, Ninth Edition, v. 6.djvu/237

Rh was divided into the following parts: (1) The township, where were the houses held by heads of families in severalty ; (2) The arable land, divided into several plots, but subject to regulations as to common cultivation the most usual of which is the three-field system; the land was to be fallow every third year, and the whole commu nity had rights of pasturage on the fallow portion, and on the stubble of the fields under crop at certain portions of the year between harvest and seed-time ; (3) The meadow- land, which in like manner was common for a period after the hay harvest, and was afterwards fenced off in separate allotments for the new crop ; (4) The common or waste land, not appropriated for cultivation, and over which the community had rights of pasturage, wood-cutting, etc. After the Conquest we find the mark superseded by the manor, and although it has long been the fashion to find the absolute beginning of the latter system in the Conquest, there seems to be good reason to believe that its leading elements tb.3 ideas of lordship and tenure had been developed among the Anglo-Saxons themselves (see Digby s Introduction to the History of the Law of Real Property}. At all events, the manorial system became defined and fixed under tho Norman lawyers, and remains still the legal basis of property in land. All land is regarded as being held of the king, and the king s tenants might have tenants of their own. The practice of sub-iufeudation, as it was called, was stopped by the statute Quiet Emptores, 1290, which enacted that, when a lord alienated a portion of his land, the alienee, instead of being tenant of the alienor, should take his place as tenant to the lord next above him. Since this statute, therefore, no new manors could be created. All lands were supposed to be traceable originally to a grant from the king. Out of the lands so granted to him, the lord would grant certain portions to free tenants on certain rents and services, and these are the freeholders of the manor. His own portion would be cultivated by villains, or serfs, attached to the soil, and these ultimately developed into the important class of copyholders. There remains the uncultivated and unappropriated land, over which the free holders had certain rights of common supposed to be inci dent to their original grant. Within the manor were certain courts (Court Leet, Court Baron, Customary Court), the most important of which is the Court B:iron, or assembly of the freeholders, partly judicial and partly administrative. It is regarded by the common law as the inseparable con comitant of a manor, so that if there be no Court Baron there is no manor. The historical investigations to which we have referred point to the identity cf the Court Baron with the assembly of the village community. The lord s waste in like manner represents the common waste of the community not appropriated in severalty, and used by all in common for pasturage, &c. The legal theory, however, supposes that tb.3 whole organization is created by grant ; the lord is the owner of the soil, and the rights of tenants are merely such as he has granted to them out of considera tion for rents and services reserved. Whatever has not been so granted belongs as a matter of course to the lord. The rights of common come to be regarded as of the nature of servitudes jura in alieno solo exceptional privileges granted over land by its real owner to his tenants. Rights of common enjoyed by the freeholders of the manor as incident to their tenure are said to be appendant, or attached to their holdings. Rights of common not coeval with the original grant, or enjoyed by strangers in respect of land not belonging to the manor at all, are said to be appurtenant. Rights claimed irrespectively of land alto gether are called rights of common in gross. Similar rights in copyholders depend on the custom of the mauor. The most important right of common is Common of Pasture, which if appendant can only be claimed for beasts 209 useful for tillage such as horses, oxen, and sheep, and in respect of arable land only (for manure) ; if appurtenant, it may extend to swine, goats, and geese, &c., and is not con fined to arable land; if in gross, it is subject to no restriction as to the species of beasts. The claim must be for some number limited and denned, and where no number is fixed, it is restricted to beasts levant and couchant a phrase which, according to judicial interpretation, means such cattle as the winter eatage of the tenement, together with the hay, &c., obtained from it in summer, could support. Some lands are subject to this common of pasture during certain portions of the year only e.g., in the case of lammas- iands from the 1st of August, for eight months after which they are held in severalty. This arrangement may be com pared with what is said of the village community above. Such lands are said to be commonable. Common of Piscary is a right of fishing in a particular stream. Common of Estovers is the right of cutting wood on another s estate. Common of Turbary is the right of cutting turfs, and must be claimed in respect of land on which a house has been built, as &quot; tujves are only wanted to burn in a house. &quot; In some manors there is a right of digging and taking coals, minerals, &c. Subject to these rights, everything belongs to the lord of the manor, and a custom to exclude him from all manner of profit would be held void as being unreasonable. In our earliest legislation on the subject of commons, the rights of the commoner appear to have a firmer footing than the theory which derives them from the grant of the lord would lead us to expect. The Statute of ^crton (1235) gives relief to the lords whos^ efforts to improve their wastes have been frustrated by commoners bringing an assize of novel disseisin for their pasture, and the lord in such cases was to be held blameless if sufficient pasture, with ingress and egress, had been provided. It only applied, as we learn from the criticism of Bracton, to common appendant, and to cases where the right is expressly limited in number or kind. The Statute of Westminster the second (1285) extended it to rights appurtenant. Under these statutes inclosures can be made on the following conditions only : 1. It must be proved that sufficient pasturage has been left for the commoners. 2. If there is common of pasture in gross, inclosurc cannot bo made. 3. The statutes do not authorize inclosures which would infringe upon any other common rights, as turbary, piscary, &c. 4. They do not affect copyholders. (See Six Essays on the Preservation of Commons). It will be observed that, in relation to the rights described, the lord and the commoners are the only parties recognized by the law. Tlte public in general have no rights. It has been alleged, indeed, that the immemorial use of open spaces near large towns by the inhabitants for exercise and recrea tion raises the presumption of a dedication a question we need not discuss here. It is chiefly, however, in connection with the needs of the public, especially of the inhabitants of large towns, that the law of commons is still a subject of some practical importance. Until quite recently the in- closure of commons was regarded as a matter affecting the lord alone, or at most the lord and the commoners. Of late, the interest of the public at large in preserving the commons uninclosed has been strenuously asserted, and as we shall see has been recognized in legislation. At common law, in spite of the predominance given to the rights of the lord, there was no means of converting the common or any portion of it into the severalty of the lord, unless to a comparatively small extent, under the Statutes of Merton and Westminster the second. The iu- VI. 27