were tenants of arable land, that the meadow and pasture lands were subservient to the arable, that by land was primarily meant arable land, that the exceptions depend simply on the nature of their subject-matter, and that the rights of the owners of arable land in a manor were the rights of the whole agricultural public in that manor, and, as such, of a sufficiently public nature to make reputation properly admissible in questions concerning them. A tenant in former times required a house to live in, arable land for his maintenance, pasture for his cattle, acorns for his pigs, and wood for fuel and repairs. Accordingly, in the argument in Hill v. Grange, (m) it is said, "Everything is placed in writs by "the rule of the register according to its dignity; for which reason "a messuage is placed before land, and land before meadow, and "meadow before pasture, et sic de similibus. And everything is "ranked and distinguished in dignity according to its necessary "use in life; for to have a house for a man to dwell in, and to "defend his body against the coldness and inclemency of the air, "is more necessary than to have land to plough for bread; and to "have land for bread is again more necessary than to have meadow "for hay for cattle; and to have meadow for hay, which will serve "the whole year, is more necessary than pasture, et sic de similibus." Here it is said that land is for bread. By "land" is meant "arable land," according to the well-understood meaning of the *word in ancient times. And the land was for bread. [*495] Every tenant took land because he desired to live upon the corn it grew. Meadow, pasture, or wood, without arable land, was of no use, and therefore not taken alone. The meadow and pasture were required to support the horses, cattle, and sheep, by means of which the land was tilled and manured, and the woods in those days were chiefly valuable as affording sustenance for the pigs. Porci inunnulati, or unrung pigs, are the objects of frequent animadversion in sundry old court rolls.(n) In Domesday Book the meadow land is frequently measured by ploughs. Thus in Kensington (Chenesit) there was land to ten ploughs, meadow for two ploughs, pasture for the cattle of the village, and pannage for two hundred hogs.(0) By "meadow for two ploughs" (m) Plowd. 164, 169. (n) See those of the manor of Wimbledon. (0) Bawdwen's Translation of Domesday, Middlesex, p. 25. was meant so much meadow as would support the oxen necessary for two ploughs.(p) So in the ancient Saxon grants,(q) and also in the Norman grants made prior to the statute of Quia Emptores,(r) ineadows and pastures are mentioned with other appurtenances as belonging to the land.(8) So in the Abbreviatio Placitorum it is recorded that in Michaelmas term, 2 John, Walter de Witifeld recovers his seisin of twenty acres of pasture and forty acres of wood belonging to his free tenement.(t) The land was measured amongst the Saxons by hides and yard lands (virgata), of which four usually went to a hide. Thus the Saxon Chronicle, in speaking of Domesday, says-"So very narrowly, indeed, did he commission them to trace it out, that there was not one single hide nor yard land, nay, moreover (it is shameful to tell, though he thought it no shame to do it), not even an ox, nor a cow, nor a swine was there left, that was not set down in his *writ."(u) A hide land was supposed to be as [*496] much arable land as would maintain a family. It was accordingly called familia by the Venerable Bede,(x) though in some rare cases the term "hide" appears to have been applied to pasture and wood.(y) But amongst the Normans, lands were measured by ploughlands (carucate) and oxgangs (bovatæ), terms exclusively applicable to arable land, a ploughland being as much as a plough could till, and an oxgang as much as an ox-team could till.(z) A writ for an oxgang of marsh was held ill, "because an (p) Sir H. Ellis's Introduction to Domesday, vol. 1, pp. 103, 149, n. (4). (q) Sharon Turner's Anglo-Saxons, vol. 2, pp. 555, 556. (r) Stat. 18 Edw. I, c. 1. (8) Mad. Form. Angl. No. 288, p. 278; No. 296, p. 181; No. 298, p. 182; No. 338, p. 257; No. 360, p. 274; No. 362, p. 275; No. 364, p. 276; No. 580, p. 328. (t) Abbreviatio Placitorum, p. 27. See also Hil. 4 John, p. 37. (u) Sax. Chro. Anno 1085, p. 289, Ingram's edit. The learned translator puts "yard of land," which he explains to be the fourth part of an acre; but the expression is, gypse lander, yard land, which comprised several acres, varying in different places. Gibson rightly translates the passage thus: ut ne unica esset hyda aut virgata terræ." Gibson's Sax. Chron. p. 186. (x) Co. Litt. 69 a; Sir H. Ellis's Introduction to Domesday, vol. 1, p. (y) Sir H. Ellis's Introduction to Domesday, vol. 1, p. 148. 145. (z) Id. vol. 1, p. 156. Lord Coke, however, says that an oxgang was as much as an ox could till. oxgang is always of a thing which lies in tillage."(a) Though, as Lord Coke observes,(6) "a ploughland may contain a messuage, wood, meadow, and pasture, because that by them the ploughman and the cattle belonging to the plough are maintained." Gain and tillage were synonymous term, gaigner signifying to till and gainure tillage. So beasts of the plough and *cattle, which [*497] tilled and manured the land, were exempt from distress if any other could be found.(e) And the ancient law with respect to tithe corresponded with this state of things. As a rule, every kind of produce was titheable. But no tithe was payable for grass used for the agistment or feeding of any cattle or sheep employed in the tillage or manurance of arable land within the parish; because the parson thereby got better tithes from the arable land. (d) The pasture land was thus treated by law as subservient to the arable, and excused from tithe on the ground that it tended to make the arable land more profitable. The statutes of Merton(e) and Westminster the second(f) treat tenants entitled to common appendant as a well-known class, the former speaking of them as feoffees, the latter as tenants or the lord's men. Both statutes relate only to common of pasture, that being a right, and the only right, always given by the law; and the latter statute expressly excepts common of pasture claimed by any one in any other manner than of common right he ought (a) Fitz. Abr. tit. Briefs, 241. The learned editor of Co. Litt. erroneously supposes that the writ was held ill on account of the uncertainty of the term oxgang; Co. Litt. 69 a, n. (z). And he further adds, "See infra, a like case as to the uncertainty of virgata." The case referred to appears to be that mentioned by Lord Coke in Co. Litt. 69 a-" A fine shall not be received de una virgata terræ, for the uncertainty; vide 39 Hen. VI, 8." But on reference to the Year Book it will be found that all that was decided was, that if a grant was anciently made of two virgates of land, on which two messuages have since been built, and part of which has since been converted into meadow, pasture, and wood, the deed of grant must be pleaded in its terms, and the land demanded by the names appropriate to its present state of messuage, land, meadow, pasture, and wood, the change being alleged. And in Sheppard's Touchstone, p. 12, borata and virgata are both men. tioned amongst the proper terms to pass land by fine. (b) Co. Litt. 69 a. (e) Com. Dig. tit. Distress (C); 2 Inst. 132. (d) 1 Eagle on Tithes 289, 290. (e) Stat. 20 Hen. III, c. 4. (ƒ) Stat. 13 Edw. I, c. 46. And see stat. 3 & 4 Edw. VI, c. 3, s. 2. to have, "alio modo quam de jure communi habere deberet." By these statutes the lord was enabled to improve his wastes, provided he left sufficient common for the tenants. The tenants exercising these rights of common were often called generally the lord's freemen. Thus, in the reign of King John, Amauricus Comes Hebraicarum grants to a tenant as to his freeman, for his service and homage, a yard land, with a messuage to the same land belonging, and with all its appurtenances, to hold of him and his heirs to the tenant and his heirs at a certain rent; "and I will," the deed proceeds, "that he shall have common in my town of M. like my other freemen (sicut alii liberi mei homines) in woods and waters and pastures and ways and paths."(g) So, in the second year of the reign of King John, the men of Prunhull, in Sussex, complain that the abbot of Battle *and [*498] the abbot of Robertsbridge had levied a fine in the King's Court of a certain marsh which belonged to their free tenement in Prunhull, of which their predecessors were seised as of right in the time of Henry the king's father.(h) So the men of Ormadan, to the number of forty, release to the abbess and convent of Dora their rights of common in certain lands.(i) So, in the reign of King Henry III, Richard de Stoches grants to the monks of Bruerne certain lands in frankalmoigne, and also grants them common of pasture with the other men of the same fee.(k) The men are mentioned generally, not as certain particular tenants, but the whole of the tenants of that fee or feud. The fact that when "land". is spoken of in legal instruments arable land is always understood, unless the contrary appears, shows the importance attached to arable land, and tends to prove that the tenants of the arable lands in a manor were not merely certain individual tenants, but were in ancient times all the tenants as a class. When every tenant held and lived upon arable land, nothing could be more natural than that by the word "land” arable land should be primarily understood. (g) Mad. Form. Angl. No. 303, p. 184. (k) Mad. Form. Angl. No. 341, pp. 258, 259. See also No. 361, pp. 274, 275. [*499] The exceptions to the rule, that common appendant is the common-law right of every free tenant of a manor, depend simply on this, that the special nature of certain subjects of tenure renders, common appendant inappropriate to their enjoyment. Common appendant was the right which every free tenant of arable land had, by the common law, to depasture upon the lord's wastes all cattle subservient to the tillage and manurance of such land, namely, horses, kine, and sheep, which are thence called commonable beasts; and the number of beasts to be put upon the common was as many as were levant and couchant upon the land,—that is, as many as the land was capable of maintaining on it by its *produce through the winter. Common appendant could not be claimed in respect of a house without any curtilage or yard; for it was truly said, "beasts cannot be rising and lying down on a house, unless it be on the top of the house."() But a curtilage was supposed to belong to a house or cottage unless the contrary appeared.(m) So common appendant could not be claimed in respect of ancient meadow or pasture; for the meadow and pasture itself helped to depasture the beasts which tilled and manured the arable land to which it belonged; and meadow and. pasture did not require beasts to till it. The tenant who had pasture land of his own would not require to put so many cattle on the lord's wastes; and by custom common appendant might be limited to a certain number of beasts.(n) But the fact that the tenant might feed his beasts elsewhere did not destroy his claim to common appendant ;(0) and even if arable land was converted into meadow or pasture, the right to common appendant still remained, for the land might be ploughed up again.(p) In some cases the meadow land was periodically allotted to the owners of the arable land in the manor, giving rise to an exceptional estate of inheritance peculiar to meadow land. The free (1) 2 Brownlow 101; Scholes v. Hargreaves, 5 T. Rep. 46; Benson v. Chester, 8 T. Rep. 396. (m) Comp. Dig. tit. Common (B). (n) 1 Rol. Abr. tit. Common (G); Com. Dig. tit. Common (B). (0) Year Book, 17 Edw. III, 34 b; 1 Rol. Abr. tit. Common (G), 8. (p) Tyrringham's Case, 4 Rep. 36 b, 37 b; Carr v. Lambert, Law Rep. 1 Exch. 168. |