168
COMMONS
Within the bounds of a manor, speaking generally, there such rights, the courts protect the copyholders in their conare three classes of persons possessing an interest tinued enjoyment; and when an enfranchisement is effected Manorial ^ ^ ]an(j> v^z .— the statutes passed in modern years, the rights are ommons. ^ Persons holding land freely of the manor, under expressly preserved. The commoners on a manorial common then will be, primd facie, the freeholders and copyor freehold tenants. (b) Persons holding land of the manor by copy of Court holders of the manor, and the persons who own lands which were copyhold of the manor but have been enfranchised. Roll, or copyhold tenants. The occupants of lands belonging to the lord of the (c) Persons holding from the lord of the manor, by lease or agreement, or from year to year, land which was manor, though they usually turn out their cattle on the originally demesne, or which was once freehold or copyhold common, do so by virtue of the lord’s ownership of the soil and has come into the lord’s hands by escheat or forfeiture. of the common, and can, as a rule, make no claim to any Amongst the first two classes we usually find the majority right of common as against the lord, even though the practice of the commoners on the wastes or commons of the manor. of turning out may have obtained in respect of particular To every freehold tenant belongs a right of common of lands for a long series of years. When, however, lands pasture on the commons, such right being “ appendant ” have been sold by the lord of the manor, although no right to the land which he holds freely of the manor. This of common attached by law to such lands in the lord’s right differs from most other rights of common in the hands, their owners may subsequently enjoy such a right, characteristic that actual exercise of the right need not if it appears from the language of the deeds of conveyance, be proved. When once it is shown that certain land is and all the surrounding circumstances, that there was an held freely of the manor, it follows of necessity that a intention that the use of the common should be enjoyed right of common of pasture for commonable cattle attaches by the purchaser. The rules on this point are very to the land, and therefore belongs to its owner, and may technical; it is sufficient here to indicate that lands be exercised by its occupant. “Common appendant,” bought from a lord of a manor are not necessarily said the Elizabethan judges, “is of common right, and destitute of common rights. So far we have considered common rights as they have commences by operation of law and in favour of tillage.” Now this is exactly what we saw to be the case with arisen out of the manorial system, and out of the still reference to the use of the common of the vill by the older system of village communities. There householder cultivating the arable fields. The use was may, however, be rights of common quite una necessity, not depending upon the habits of this or that connected with the manorial system. Such not conhouseholder; it was a use for commonable cattle only, and rights may be proved either by producing a nectedwith was connected with the tillage of the arable lands. It specific grant from the owner of the manor or by ma”or,a/ seems almost necessarily to follow that the freehold tenants long usage. It is seldom that an actual grant of the manor are the representatives of the householders is produced, although it would seem likely that such grants of the vill. However this may be, it is amongst the were not uncommon at one time. But a claim founded freehold tenants of the manor that we must first look for on actual user is by no means unusual. Such a claim may be based (a) on immemorial usage, i.e., usage for which commoners on the waste of the manor. Owing, however, to the light character of the services no commencement later than the coronation of Richard I. rendered by the freeholders, the connexion of their lands can be shown, (5) on a presumed modern grant which with the manor is often difficult to prove. Copyhold has been lost, or (c) (in some cases) on the Prescription Act. tenure, on the other hand, cannot be lost sight of; and in There are special rules applicable to each kind of claim. A right of common not connected with the manorial many manors copyholders are numerous, or were, till quite recently. Copyholders almost invariably possess a right system may be, and usually is, attached to land; it may of common on the waste of the manor; and when (as is be measured, like a manorial right, by levancy and couchusual) they exist side by side with freeholders, their rights ancy, or it may be limited to a fixed number of animals. are generally of the same character. They do not, however, Rights of the latter character seem to have been not unexist as of common right, without proof of usage, but by common in the Middle Ages. In one of his sermons against the custom of the manor. Custom has been defined by a inclosure, Bishop Latimer tells us his father “had walk (i.e., great judge (the late Sir George Jessel, M.R.) as local law. right of common) for 100 sheep.” This may have been a Thus, while the freehold tenants enjoy their rights by the right in gross, but was more probably attached to the “farm general law of the land, the copyholders have a similar of £3 or £4: by year at the uttermost ” which his father enjoyment by the local law of the manor. This, again, is held. In a recent case a right of common for 200 sheep what one might expect from the ancient constitution of over the waste of the manor of Banstead was established in a village community. The copyholders, being originally respect of the manor of South Tadworth. Such a right serfs, had no rights at law; but as they had a share in may be sold separately, and enjoyed by a purchaser inthe tillage of the land, and gradually became possessed of dependently of the tenement to which it was originally strips in the common fields, or of other plots on which appurtenant. It then becomes a right of common in gross. A right of common in gross is a right enjoyed irrethey were settled by the lord, they were admitted by way of indulgence to the use of the common; and the practice spective of the ownership or occupancy of any lands. It hardened into a custom. As might be expected, there is may exist by express grant, or by user implying a modern more variety in the details of the rights they exercise. lost grant, or by immemorial usage. It must be limited They may claim common for cattle which are not com- to a certain number of cattle, unless the right is claimed monable, if the custom extends to such cattle; and their by actual grant. Such rights seldom arise in connexion with commons in the ordinary sense, but are a frequent claim is not necessarily connected with arable land. In the present day large numbers of copyhold tenements incident of regulated or stinted pastures; the right is then have been enfranchised, i.e., converted into freehold. The generally known as a cattle-gate or beast-gate. There may be rights over a common which exclude the effect of this step is to sever all connexion between the land enfranchised and the manor of which it was previously owner of the soil from all enjoyment of some particular held. Technically, therefore, the common rights previously product of the common. Thus a person, or a class of enjoyed in respect of the land would be gone. When, how- persons, may be entitled to the whole of the corn, grass, ever, there is no indication of any intention to extinguish underwood, or sweepage (i.e., everything which falls to the
