vill3-第11节
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r times does normally enjoy these rights which in after time were described as 'appendant' to his freehold； and it is well worth while to ask whether behind the general assumptions of feudal theory there do not lie certain data which； on the one hand； prepare and explain later terminology； and are connected； on the other； with the historical antecedents of the feudal system。 A little reflection will show that the divisions of later law did not spring into being merely as results of legal reasoning and casuistry。 indeed； from a lawyer's point of view； nothing can be more imperfect than a classification which starts from three or four principles of division seemingly not connected with each other。 Common appendant belongs to a place anciently arable； common appurtenant may belong to land of any kind； the first is designed for certain beasts； the second for certain others； one is bound up with freehold； the other may go with copyhold； in one case the right proceeds from common law； in the other from 'specialty。' One may reasonably ask why a person sending a cow to the open fields or to the waste from a freehold tenement can claim common appendant； and his neighbour sending a cow to the same fields from a copyhold has only common appurtenant。 Or again； why does a plot of arable reclaimed from the waste confer common appurtenant； and ancient arable common appendant？ Or again； why are the goats or the swine of a tenement sent to pasture by virtue of common appurtenant； and the cows and horses by virtue of common appendant？ And； above all； what have the several restrictions and definitions to do with each other？ Such a series of contrasted attributes defies any attempt to simplify the rules of the case according to any clearly defined principle： it seems a strange growth in which original and later elements； important and secondary features； are capriciously brought together。 In order to explain these phenomena we have to look to earlier and not to later law。 What seems arbitrary and discordant in modern times； appears clear and consistent in the original structure of the manor。 The older divisions may not be so definitely drawn and so developed as the later； but they have the advantage of being based on fundamental differences of fact。 Even when the names and terms do not appear well settled； the subject…matter arranges itself according to some natural contrasts； and it is perhaps by too exclusive study of names and terms that Mr。 Scrutton has been prevented from duly appreciating the difference in substance。 He says of the end of the thirteenth century： 'In the reports about this time it seems generally to be。 assumed that if the commoner cannot show an especialte or special grant or title； he must show 〃fraunc tenement en la ville a ques commune est appendant。〃 Thus we have the question： 〃Coment clamez vous commune？ Com appendant； ou par especialte；' while Hengham； J。 says： '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。' The intercommoning between neighbours gives rise to a good many disputes； and is much too frequent to be considered； as it was by later law； a mere 'excuse for trespassing。'（22*） This common 'pur cause de vicinage' may be a relic of a time when adjoining villages formed a part of a higher unit of some kind； of the Mark； of a hundred； for example。 It may be explained also by the difficulty of setting definite boundaries in wide tracts of moor and forest。 However this may be； its constant occurrence forms another germ of a necessary contrast between the two classes which afterwards developed into common appendant and common appurtenant。 It could not be brought under the same rules as those which flowed from the internal arrangement of the manor。 A special difficulty attended it as to admeasurement： the customary treatment of other holdings could not in this case serve as a standard。 The very laxity of the principle naturally gave occasion to very different interpretations and deductions。 And so we are justified in saying； that the chief distinctions of later law are to be found in their substance in the thirteenth century； and that although a good deal of confusion occurs in details； the earlier documents give even better clues than the later to the reasons which led to the well…known classification。 Common appendant； if we may use the modern term for the sake of brevity； is indissolubly connected with the system of husbandry followed by the village community。 A very noticeable feature of it is； that； in one sense； it towers over the lord of the manor as well as over the tenants。 Of course； legally t
