COMMONS This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheepbreeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess The Tudor a ^arge body of followers pledged to his inagrariaa terests by their connexion with the land. On revoluthe other hand, wool commanded a high price, tion ' 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 Common ^a^e certain profits—for example, the bite of the grass by the mouth of cattle, or gorse, bushes, or heather for fuel or litter. The 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 or botes (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
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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 firebote, 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 inches. 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 coexist on a common. (See Manor.)
