or common, now ascribed by the law to the lord being a remnant
of his ownership of all the lands of the vill. (See Manor.)
At whatever date the over-lord first appeared, and whatever may have been the personal relations of the villagers to him from time to time after his appearance, there can be hardly any doubt that the village lands, whether arable, meadow or waste, were substantially the property of the villagers for the purposes of use and enjoyment. They resorted freely to the common for such purposes as were incident to their system of agriculture, and regulated its use amongst themselves. The idea that the common was the “lord’s waste,” and that he had the power to do what he liked with it, subject to specific and limited qualifying rights in others, was, there is little doubt, the creation of the Norman lawyers.
One of the earliest assertions of the lord’s proprietary interest in waste lands is contained in the Statute of Merton, a statute which, it is well to notice, was passed in one of the first assemblies of the barons of England, before the commons of the realm were summoned to parliament. Statutes of Merton and Westminster the Second.This statute, which became law in the year 1235, provided “that the great men of England (which had enfeoffed knights and their freeholders of small tenements in their great manors)” might “make their profit of their lands, wastes, woods and pastures,” if they left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another statute, that of Westminster the Second, supplemented the Statute of Merton by enabling the lord of the soil to inclose common lands, not only against his own tenants, but against “neighbours” claiming pasture there. These two pieces of legislation undoubtedly mark the growth of the doctrine which converted the over-lord’s territorial sway into property of the modern kind, and a corresponding loosening of the hold of the rural townships on the wastes of their neighbourhood. To what extent the two acts were used, it is very difficult to say. We know, from later controversies, that they made no very great change in the system on which the country was cultivated, a system to which, as we have seen, commons were essential. In some counties, indeed, inclosures had, by the Tudor period, made greater progress than in others. T. Tusser, in his eulogium on inclosed farming, cites Suffolk and Essex as inclosed counties by way of contrast to Norfolk, Cambridgeshire and Leicestershire, where the open or “champion” (champain) system prevailed. The Statutes of Merton and Westminster may have had something to do with the progress of inclosed farming; but it is probable that their chief operation lay in furnishing the lord of the manor with a farm on the new system, side by side with the common fields, or with a deer park.
The first event which really endangered the village system was the coming of the Black Death. This scourge is said to have swept away half the population of the country. The disappearance, by no means uncommon, of a whole The Black Death. family gave the over-lord of the vill the opportunity of appropriating, by way of escheat, the holding of the household in the common fields. The land-holding population of the townships and the persons interested in the commons were thus sensibly diminished.
During the Wars of the Roses the small cultivator is thought to have again made headway. But his diminished numbers, and the larger interest which the lords had acquired in the lands of each vill, no doubt facilitated the determined attack on the common-field system which marked the reigns of Henry VIII. and Edward VI.
This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheep-breeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess a large body of followers pledged to his interests by their The Tudor agrarian revolution. connexion with the land. On the other hand, wool commanded a high price, and the growth of towns and of foreign commerce supplied abundant markets. At the same time the confiscation of the monastic possessions introduced a race of new over-lords—not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. In order to keep large flocks and send many bales of wool to market, each landowner strove to increase his range of pasture, and with this view to convert the arable fields of his vill into grass land. There is abundant evidence both from the complaints of writers such as Latimer and Sir Thomas More, and from the Statutes and royal commissions of the day, that large inclosures were made at this time, and that the process was effected with much injustice and accompanied by great hardship. “Where,” says Bishop Latimer in one of his courageous and vigorous denunciations of “inclosers and rent-raisers,” “there have been many householders and inhabitants, there is now but a shepherd and his dog.” In the full tide of this movement, and despite Latimer’s appeals, the Statutes of Merton and Westminster the Second were confirmed and re-enacted. Both common fields and commons no doubt disappeared in many places; and the country saw the first notable instalment of inclosure. But from the evidence of later years it is clear that a very large area of the country was still cultivated on the common-field system for another couple of centuries. When inclosure on any considerable scale again came into favour, it was effected on quite different principles; and before describing what was essentially a modern movement, it will be convenient to give a brief outline of the principles of law applicable to commons at the present day.
Law.—The distinguishing feature in law of common land is, that it is land the soil of which belongs to one person, and from which certain other persons take certain profits—for example, the bite of the grass by the mouth of cattle, or gorse, bushes or heather for fuel or litter. The Rights of common. right to take such a profit is a right of common; the right to feed cattle on common land is a right of common of pasture; while the right of cutting bushes, gorse or heather (more rarely of lopping trees) is known as a right of common of estovers (estouviers) or botes (respectively from the Norman-French estouffer, and the Saxon botan, to furnish). Another right of common is that of turbary, or the right to cut turf or peat for fuel. There are also rights of taking sand, gravel or loam for the repair and maintenance of land. The persons who enjoy any of these rights are called commoners.
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
