第114章

'prescription de terre est assez bon especialte"' (p. 50). This is really the essence of all the rules regarding common of pasture, and, what is more, the contrast follows directly from arrangements which did not come into use in the fourteenth century, but were in full work at the time of Bracton and long before it. What is called in later law common appendant, appears as the normal adjunct to the holding, that is, to a share in the system of village husbandry. If a bovate is granted to a person, so much of the rights of pasture as belongs to every bovate in the village is presumed to be granted with the arable. ' So much as belongs to every bovate in the village; 'this means, that the common depends in this case on a general arrangement of the pasture in the village. Such an arrangement exists in every place; it is regulated by custom and by the decisions of the manorial court or halimote, it extends equally over the free and over the unfree land, over the waste, the moor and wood, and over the fallow. It admits a certain number and certain kinds of beasts, and excludes others. Only because such a general arrangement is supposed to exist, is the right to com mon treated in so vague a manner; the documents present, in truth, only a reference to relations which are substantiated in the husbandry system of the manor. But the right of common may exceed these lines in many ways: it may be joined to a tenement which lies outside the manorial system, or a plot freshly reclaimed from the waste, or to a holding belonging to some other manor. It may admit a greater number and other kinds of beasts than those which were held commonable in the usual course of manorial husbandry.

In such cases the right to pasture had to proceed from some special agreement or grant, and, of course, had to be based on something different from the ordinary reference to the existing system of common husbandry. If there was no deed to go by, such a right could only be established by long use.

I think that all this must follow necessarily as soon as the main fact is admitted, that common is normally the right to pasture of a shareholder of the manor. The objection may be raised, that such a priori reasoning is not sufficient in the case, because the documents do not countenance it by their classification. Would the objection be fair? Hardly, if one does not insist on finding in Bracton the identical terms used in Coke upon Littleton. It is true that Bracton speaks of common in general, and not of common appendant, appurtenant, and in gross, but the right of common which he treats as normal appears to be very peculiar on a closer examination of his rules. It is praedial and not personal; to begin with, it is always thought of as belonging to a tenement.(18*) What is more, it cannot belong to a tenement reclaimed from the waste,(19*) and in this way the requirement of 'ancient arable' is established, that is, the pasture is considered as one of the rights conceded to the original shares of a manorial community. The use of the open field outside the time of reasonable defence (20*) is primarily meant, and the common pasture appears from this point of view as one of the stages in the process of common farming. To make up the whole, the right to common is defined by a 'quantum pertinet.'(21*) which has a sense only in connexion with the admeasurement of claims effected by the internal organisation of the manor. Such is evidently the normal arrangement presupposed by Bracton's description, and his only fault is, that he does not distinguish with clearness between the consequences of the normal arrangement, and of grants or usurpations which supplement and modify it. It must be remembered that he only gives the substantive law about common rights in the course of a discussion of the pleadings in actions 'quo jure' and assizes of pasture. If we compare with Bracton's text the rules and decisions laid down in the legal practice of the thirteenth century, we shall find that the same facts are implied by them. They all suppose a contrast between 'intrinsec' and 'forinsec' claims to common, that is between the rights of those who are members of the manorial group, and the rights, if any, of those who are outside it, and again a contrast between the normal rights of commoners and any more extensive rights acquired by special grant or agreement. Only the freeholders are protected in the enjoyment of their commons; only the freeholders are protected in the enjoyment of their tenements; but their claims are based on arrangements in which the unfree land participates in everything with the free. It may be added that litigation mostly arises from the adjustment of 'forinsec' claims under the writ 'Quo jure.'