vill3-第10节
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d； but it is reduced to a minimum as it were； has not settled down to constant occupation； and assumes its definite shape under the influence of the idea of equal apportionment。 Of course； by the side of these communal meadows we frequently find others that were owned in severalty。 Land for pasture also occurs in private hands and in severalty； but such cases are much rarer。（3*） Sometimes the pasture gets separated and put under 'defence' for one part of the year； and merges into communal ownership afterwards。（4*） But in the vast majority of cases the pasture is used in common； and none of the tenants has a right to fence it in or to appropriate it for his own exclusive benefit。 It ought to be noted； that the right to send one's cattle to the pasture on the waste； the moors； or in the woods of a manor appears regularly and intimately connected with the right to depasture one's cattle on the open fields of the village。（5*） Both form only different modes of using communal soil。 As in the case of arable and meadow the undivided use cannot be maintained and gets replaced by a system of equalised shares or holdings； so in the case of pasture the faculty of sending out any number of beasts retires before the equalisation of shares according to certain modes of 'stinting' the common。 We find as an important manorial arrangement the custom to 'apportion' the rights of common to the tenements； that is to decide in the manorial Court； mostly according to verdicts of juries； how many head of cattle； and of what particular kind； may be sent to the divers pasture…grounds of the village by the several holdings。 From time to time these regulations are revised。 One of the Glastonbury Surveys contains； for instance； the following description from the 45th year of Henry III。 Each hide may send to the common eighteen oxen； sixteen cows； one bull； the offspring of the cows of two years； two hundred sheep with four rams； as well as their offspring of one year； four horses and their offspring of one year； twenty swine and their offspring of one year。（6*） According to a common rule the only cattle allowed to use the village pasture was that which was constantly kept in the village； levant e couchant en le maner。 In order to guard against the fraudulent practice of bringing over strange cattle and thus making money at the expense of the township； it was required sometimes that the commonable cattle should have wintered in the manor。（7*） These last rules seem at first sight difficult of explanation： one does not see in what way the bringing in of strange cattle could damage the peasantry of the village； as nobody could drive more than a certain number of beasts to the common； and as the overburdening of it depended entirely on the excess of this number； and not on the origin of the beasts。 And so one has to look to something else besides the apprehension that the common would get overburdened； in order to find a suitable explanation of the rule。 An explanation is readily supplied by the notion that the use of the common was closely connected with the holding。 Strange cattle had nothing to do with the holding； and were to be kept off from the land of the community。 it is as representatives of a community whose territory has been invaded that the individual commoners have cause to complain。 In fact； the common pasture； as well as the meadows； were thought of merely as a portion of the holding。 The arrangements did not admit of the same certainty or rather of the same kind of determination as the division of the arable； but the main idea which regulated the latter was by no means cut short in its operation； if one may say so： it was not bound up with the exact measurement of arable acres。 The holding was the necessary agricultural outfit of a peasant family； and of this outfit the means of feeding the cattle were quite as important a part as the means of raising crops。 It is only inaccurately that we have been speaking of a virgate of 30 acres； and of a ploughland of 180 or 160。 The true expression would be to speak of a virgate of 30 acres of arable and the corresponding rights to pasture and other common uses。 And the records； when they want to give something like a full description； do not omit to mention the 'pertinencia；' the necessary adjuncts of the arable。 The term is rather a vague one； quite in keeping with the rights which； though tangible enough； cannot be cut to so certain a pattern as in the case of arable。（8*） And for this reason the laxer right had to conform to the stricter one； and came to be considered as appendant to it。 We have considered till now the different aspects assumed by common of pasture； when it arises within the manor； and as a consequence of the arrangement of its holdings。 But this is not the only way in which common of pasture may arise。 It may originate in an express and special grant by the lord either to a tenant or to a stranger。（9*） it may also proceed from continuous use from time beyond legal memory。（10*） it must have been difficult in many cases to prevent strangers from establishing such a claim by reason of long occupation in some part of a widely stretching moor or wood pasture。（11*） It was not less difficult in such cases to draw exact boundaries between adjoining communities； and we find that large tracts of country are used as a common pasture…ground by two villages； and even by more。（12*） Neighbours deem it often advantageous to establish a certain reciprocity in this respect。（13*） By special agreement or by tacit allowance lords and tenants intercommon on each other's lands： this practice extends mostly to the waste only； but in some cases the arable and meadow are included after the removal of the crop and of the hay。 The procedure of the writ 'quo jure' was partly directed to regulate these rights and to prevent people from encroaching wantonly upon their neighbours。（14*） When land held in one fee or one manor was broken up for some reason into smaller units； the rights of pasture were commonly kept up according to the old arrangements。（15*） These different modes of treating the pasture present rather an incongruous medley； and may be classified in several ways and deduced from divers sources。 The chief distinctions of modern law are well known： 'Common Appendant is the right which every freehold tenant of the manor possesses； to depasture his commonable cattle； levant and couchant on his freehold tenement anciently arable； on the wastes of the manor； and originally on all （common） pasture in the manor。 Common appurtenant on the other hand is against common right； becoming appurtenant to land either by long user or by grant express or implied。 Thus it covers a right to common with animals that are not commonable； such as pigs； donkeys； goats； and geese； or a right to common claimed for land not anciently arable； such as pasture； or land reclaimed from the waste within the time of legal memory； or for land that is not freehold； but copyhold。'（16*） Common in gross is a personal right to common pasture in opposition to the praedial rights。 Mr Scrutton has shown from the Year Books that these terms and distinctions emerge gradually during the fourteenth century； and appear substantially settled only in Littleton's treatise。 Bracton and his followers； Fleta and Britton； do not know them。 These are important facts； but they hardly warrant the inferences which have been drawn from them。 The subject has been in dispute in connexion with discussions as to the free village community。 Joshua Williams； in his Rights of Common；（17*） had assumed common appendant to originate in ancient customary right bestowed by the village community and not by the lord's grant； Scrutton argues that such a right is not recognised by the documents。 He lays stress on the fact； that Bracton speaks only of two modes of acquiring common； namely； express grant by the lord； and long usage understood as constant sufferance on the part of the lord amounting to an express grant。 But this is only another way of saying that Bracton's exposition is based on feudal notions； that his land law is constructed on the principle 'nulle terre sans seigneur；' and that every tenement； as well as every right to common； is considered in theory as granted by the lord of the manor。 It may be admitted that Bracton does not recognise just that kind of title which later lawyers knew as appendancy； does not recognise that a man can claim common by showing merely that he is a freeholder of the manor。 Unless he relies on long continued user； he must rely upon grant or feoffment。 But the distinction between saying 'I claim common because I am a freeholder of the manor' and saying 'I claim common because I or my ancestors have been enfeoffed of a freehold tenement of the manor and the right of common passed by the feoffment；' though it may be of juristic interest and even of some practical importance as regulating the burden of proof and giving rise to canons for the interpretation of deeds； is still a superficial distinction which does not penetrate deeply into the substance of the law。 On the whole we find that the freeholder of Bracton's time and of earlier times does normally enjoy these rights which in after time were described as 'appendant' to his fr
