tum Wallia, 12 Edw. I, sometimes called the statute of Rhuddlan, subjected a great part of it, principally the northern portion, to English law.(m) Before this time large tracts of land had doubtless been given to Englishmen, who vanquished the natives and took their lands. But the rest of Wales was governed by its own laws and customs, of which copies and translations were published in the year 1841, under the direction of the commissioners of public records. In one of these it is thus provided :-"Three "things that are not to be done without the permission of the lord "and his court: building on a waste, ploughing on a waste, and "clearing wild land of wood on a waste; and there shall be an "action for theft against such as shall do so, because every wild and "waste belongs to the country and kindred in common, and no one "has a right to exclusive possession of much or little of land of "that kind."(n) Again it is said that "every habitation ought to "have a bye-road to the common waste of the 'trev' or vill."(0) So an oak, a birch, or a witch elm could not be cut without the permission of the country and lord;(p) but any person might take fuel from a decayed or hollow tree.(g) As land was inalienable, and descended equally amongst all the sons, the landowners in the same place were probably in most cases of kin to one another. Hume says in his History of England,() speaking of the time of the conquest by Edw. I.-"The rude and simple "manners of the natives, as well as the mountainous situation of "their country, had made them entirely neglect tillage and trust "to pasturage alone for their subsistence." This statement, however, appears too sweeping. The wars in which they were then engaged *were more probably the cause of their neglect [*506] of tillage. Many of their ancient laws relate to agriculture; their lands appear to have been cultivated by a system of co-tillage, the land when ploughed being divided into twelve

(m) See 1 Bl. Com. 93, 94; Hale's Hist. of Common Law, p. 248 et seq.; 2 Reeves's Hist. Eng. Law, ch. 9, p. 92.

(n) Cyvreithiau Cymru, Welsh Laws, bk. 13, ch. 2, No. 101, p. 655, fol. edit. by Record Commissioners.

(0) Welsh Laws, bk. 9, ch. 25, No. 8, p. 525, fol. edit. by Record Commissioners. (p) Id. bk. 13, ch. 2, No. 238.

(q) Id. bk. 10, ch. 7, No. 9; bk. 13, ch. 2, No. 102.

(r) Vol. 2, pp. 240, 241, 8vo edit. 1802.

parts-the first for the ploughman, another to the irons,(s) another to the driver, another to the plough, and the rest to the owners of the eight oxen that formed the team.(t) Co-tillage of waste is elsewhere said to be one of the immunities of an innate Cymro or Welshman,(u) and without co-tillage it is gravely said no country can support itself in peace and social union.(x) No trace appears, so far as the author has been able to discover, of any mere right of common of pasture, according to the notions of English law. At the time of the conquest, Llewellyn, the native prince, granted four "cantrevs," or four hundred trevs or vills, to the king, besides other lands; and in the document by which this grant was effected the king grants that all holding lands in the four cantrevs and other lands aforesaid which our lord the king holds in his own hands (except those to whom the king shall refuse to do this favor), shall hold them as freely and fully as before the war they were accustomed to hold, and shall enjoy the same liberties and customs which before they were accustomed to enjoy; so that they, who held of the prince, for the future shall hold those lands of the king and his heirs by the accustomed services.(y) This grant was substantially carried out by the Statute of Wales before mentioned. But the alteration made by the introduction of writs similar to those then used in England of necessity led to a system of law conformable to those writs. Amongst other writs specifically introduced by the statute was the writ of novel disseisin [*507] of common of pasture. This writ, as given by the statute, is in the following form :-"A. complains to us that B. and C. "unjustly and without judgment disseised him of common of "pasture, which belongs to his free tenement in such a vill, or "another if the case requires it, after the peace proclaimed in "Wales in the twelfth year of our reign."(2) This form of writ is similar to that given in Fitzherbert's Natura Brevium,(a) and

(8) Compare 1 Ellis's Introduction to Domesday, p. 266, where it appears that certain tenants were bound to furnish irons for the lord's ploughs.

(t) The Venedotian Code, bk. 3, ch. 24, par. 3, p. 153, fol. edit. by Record Com. missioners.

(u) Welsh Laws, bk. 13, ch. 2, No. 83, p. 651, fol. edit.

(x) Welsh Laws, bk. 13, ch. 2, No. 46, p. 638.

(y) Articulorum pacis cum rege Angliæ ratificatio per Llewelinum principem Walliæ, A. D. 1277, Rymer's Fodera, vol. 2, pp. 89-90.

(z) P. 866 of fol. edit. by Record Commissioners.

(a) Vol. 2, p. 179.

"lieth," as he says, "where a man hath common of pasture ap"pendant or appurtenant to his manor, or house or land, which "he hath for term of life, or in fee simple or in fee tail; if he be "disturbed of his common, so that he cannot take it as he ought "to do, he shall have an assize of novel disseisin thereof." A Welshman, therefore, who had been disturbed in his enjoyment of the common wastes, would have had no remedy but to sue out this writ.

The nature of the remedy ascertained to an English lawyer the nature of the right. The common now belonged to the tenement. The refined distinctions between appendant and appurtenant are not noticed in the writ, and were probably the work of a later age. But here was an incorporeal tenement only belonging to a corporeal one. The writ, as Fitzherbert remarks, does not say that the claimant is disseised of his freehold, as was done in the case of land, but only of his common of pasture belonging to his freehold.(b) Here was an end of any claim to the soil of the waste. All the tenants who had been accustomed to put their cattle on the waste had their rights defined more accurately than before, but narrowed also to fit the definition. This appears to have been the actual origin of common appendant in most parts of the principality of Wales, and if this be so, that right, in that country at least, has had its origin, not in a number of actual separate grants made by the lord to certain tenants, but in the adaptation of the ancient rights of the freeholders as a class to the remedies prescribed by English law.

[*508]

The County of Glamorgan, in which the lands in dispute in the case of Lord Dunraven v. Llewellyn were situate, does not appear to have been comprised in the grant made by Prince Llewellyn to King Edward I.(c) The lordship of this county appears to have been acquired by the crown from Anne, Countess of Warwick, whose daughter married Richard, Duke of Gloucester, afterwards Richard III, King of England. Anne, Countess of Warwick, was a descendant of one Robert Fitzhamon (a great lord and kins

(b) Fitz. Nat. Brev. vol. 2, p. 179.

(c) See an interesting article on the political geography of Wales, by Henry Salusbury Milman, Esq., in the Archæologia, vol. 38, p. 19.

man of William the Conqueror), who acquired the lordship of Glamorgan by conquest from the Welsh in the fourth year of the reign of King William Rufus, and who gave the castle and manor of Ogmore to William de Londres Knight, in reward for his services.(d) And by a statute of the reign of King Henry VIII,(e) it was provided that after the feast of All Saints then next coming justice should be ministered and executed to the king's subjects and inhabitants of the said County of Glamorgan according to the laws, customs, and statutes of the realm of England, and after no Welsh laws, in such form and fashion as justice was ministered and used to the king's subjects within the three shires of North Wales. This statute preserved the equal descent amongst all the sons then prevalent in Wales, (f) which, however, was abolished by a subsequent act of the same reign.(g) In the case of Lord Dunraven v. Llewellyn, the lord who claimed the land in dispute as part of the waste tendered, as we have seen, evidence of reputation—that so it was considered by the commoners. This evidence was rejected, and *the commoners were not con[*509] sidered as a body or class, because certain tenants only— namely, the tenants of arable lands-have by law a right to common appendant. If, however, the dispute had been between the rector of the parish and an occupier of arable land, with respect to a parochial modus payable in lieu of great tithe, evidence of reputation would have been clearly admissible.(h) And yet the question would have been one which did not concern every occupier of land in the parish, for the occupier of pasture land paid no great tithe. The tithe of agistment of pasture was a small tithe only.(i) This exception, however, arising as it did from the nature of the subject of occupancy, did not prevent the other occupiers from being treated as a class. So in the case of common appendant, the exceptions which arise from the nature of a certain holdings should not prevent the claimants, who all claim under one common title-namely, a right given by the law itself-from

(d) Stradling's Winning of Glamorgan from the Welsh, printed in Caradoc of Llancarvan's History of Wales, A. D. 1774, pp. xxiii, xxvi, xxix, xxxi.

(e) Stat. 27 Hen. VIII, c. 26, s. 14.

(f) Stat. 27 Hen. VIII, c. 26, s. 35.

(g) Stat. 34 & 35 Hen. VIII, c. 26, ss. 91, 128.

(h) White v. Lisle, 4 Mad. 214, 225.

(i) 1 Eagle on Tithes 44.

being considered as a class of persons, with respect to whose rights. evidence of reputation is admissible.

If the commoners who claimed common appendant for their commonable beasts had claimed by the custom of the manor a right to put on the waste beasts not commonable, such as geese and pigs, evidence of reputation would have been admissible on the ground that a custom was in dispute.(k) But such evidence is admissible in the case of a custom solely on the ground that a custom affects a class or body of persons in a particular place.() Can it be said that the commoners are less a class when the custom of the manor coincides with the common law, which is the general custom of the realm, than when it differs from it?

It may be said that common appendant at the present day is comparatively rare, that many such rights have now become extinguished, and that, supposing a single right to *remain

in a manor, ought evidence of reputation to be given in [*510]

support of it? The answer is, that this depends upon the manner in which the claimant frames his claim. He may choose to rely on his continuous enjoyment of the right of common in respect of his tenement, or he may claim the benefit of the provisions with liability to the limitations of the Prescription Act;(m) but he will not then be able to avail himself of the former exercise of similar rights in respect of other tenements holden of the same manor. If, however, he claim his common as appendant, there seems no reason why, in relying on a general right, he should not have the benefit of evidence of reputation as to similar rights once existing but now extinct. Reputation is admissible as to the boundaries. of a manor, and none the less though the manor as such has ceased to exist.(n) The cessor, therefore, of any general right ought not to prevent the admission of evidence of reputation as

(k) Damerell v. Protheroe, 10 Q. C. 20 (E. C. L. R. vol. 59); Prichard v. Lowell, 10 Q. B. 589, 603 (E. C. L. R. vol. 59), as explained in Lord Dunraven v. Llewellyn, ante, p. 492.

(1) Jones v. Robin, 10 Q. B. 581, 583, 620, 635 (E. C. L. R. vol. 59). ́·

(m) Stat. 2 & 3 Will. IV, c. 71, ante, p. 459.

(n) Steel v. Prickett, 2 Stark. 463 (E. C. L. R. vol. 3); Doe d. Molesworth v. Sleeman, 9 Q. B. 298 (E. C. L. R. vol. 58); and see Barnes v. Mawson, 1 Mau. &

Sel. 77.