Common appendant need not be prescribed for.
(s) Ante, p. 467. (t) Ante, p. 464 (u) Co. Litt. 122 a; Year Book, 21 Hen. VI., 10 a; Fitz.. Nat.
Brev. 179, n. (J).
(x) Co. Litt. 121 b.
(y) Co. Litt. 122 a, n. (2); Jen-kin v. Vivian, Popham, 201.
Common appendant shall be apportioned.
(z) Bac. Abr. tit. Customs (H). (a) Co. I.itt. 122a. (b) 1 Rep. 36 b.
(c) Ante, p. 473. (d) 4 Rep. 38 a.
These considerations would probably be of themselves sufficient to show that the proposition laid down in books of authority, that common appendant is the common law right of every tenant of freehold lands, is as accurate as any general proposition can be, and is not to be explained away into a number of distinct and peculiar grants, made only to certain tenants individually. The court in Lord Dunraven v. Lleicelhjn assumes as a fact that such grants were actually made in the case before it, according to the explanation given by Lord Coke. And in many cases it may be taken as historically true that such grants were made. But rights of common were far more important in ancient times than they are at present (e\ and in many places in England they appear to have existed long before the feudal rules of tenure were introduced by the Normans. Lot meads, in particular, were of Saxon or German rather than of Norman origin. And there is reason to believe that the rights of common over common field lands, about which the Court of Exchequer, in the twenty-seventh year of the reign of Queen Elizabeth, confessed themselves "at first altogether ignorant" (f'), were at least of Saxon, if not in many cases purtcnant is "against" common right.
(e) See Mr. Beale's suggestive Essay on Commons Preservation, Essays, p. 109; Abbreviatio Pla-citorum, Mich. 4 John, p. 36;
Trin. 4 John. p. 40; Easter, 7 & 8 John, p. 51.
(f) Sir Miles Corbet's Case, 7 Eep. 5 b.
of ancient British origin (g). Agriculturists were not then very enterprising. An "assart," or reclamation of waste, was of rare occurrence (h). The British cultivators were often left by the Saxon conquerors, and the Saxons by the Normans; and each retained their ancient customs, which by degrees grew up into rights (i). The Norman lawyers applied as best they could the feudal rules of tenure to the state of things they found actually existing. The notions about property were then unripe (k). So long as a man could feed his horse or his cow on the waste, put his hogs into the woods to grub for acorns, and cut timber for fuel or repairs, it was not of the slightest consequence to him whether the property in the wastes and woods was in himself or in somebody else. In Domesday, as we have seen, woods are usually measured only by the number of pigs they can feed. Many forests, moors and marshes, being quite unprofitable and often inaccessible, do not appear to have been taken into account. When it became necessary that they should have some legal owner, the lord of the manor was the only person in whoni the ownership could be considered to vest. But the right of a tenant of arable land to put his cattle on the waste probably existed in many cases quite irrespective of any actual grant. The tenant and his rights were there already, and the feudal law adapted itself to the existing circumstances, giving to the lord the property in the waste, and to the tenant the right of taking the herbage by the mouths of his cattle.
The following passage from Maine's Ancient Law (7), illustrates the sort of change that probably took place. Speaking of the rule of primogeniture he says:- "The ideas"and social forms which contributed to the formation of "the system were unquestionably barbarian and archaic; "but as soon as' courts and lawyers were called in to inter-"pret and define it, the principles of interpretation which "they applied to it were those of the latest Roman juris-"prudence, and were therefore excessively refined and "matured. In a patriarchally governed society, the eldest "son may succeed to the government of the agnatic group, "and to the absolute disposal of its property. But he is "not therefore a true proprietor. He has correlative duties "not involved in the conception of proprietorship, but quite "undefined and quite incapable of definition. The later "Roman jurisprudence, however, like our own law, looked "upon uncontrolled power over property as equivalent "to ownership, and did not, and in fact could not, take "notice of liabilities of such a kind that the very concep-"tion of them belonged to a period anterior to regular law. "The contact of the refined and the barbarous notion had "inevitably for its effect the conversion of the eldest son "into legal proprietor of the inheritance. The clerical and "secular lawyers so defined his position from the first; but "it was only by insensible degrees that the younger brother, "from participating on equal terms in all the dangers and "enjoyments of his kinsman, sank into the priest, the soldier "of fortune, or the hanger-on of the mansion. The legal "revolution was identical with that which occurred on a "smaller scale and in quite recent times through the greater "part of the Highlands of Scotland. When called in to "determine the legal powers of the chieftain over the "domains which gave sustenance to the clan, Scottish juris-"prudence had long since passed the point at which it could "take notice of the vague limitations on completeness of "dominion imposed by the claims of the clansmen, and it "was inevitable therefore that it should convert the patri-"mony of many into the estate of one."
Maine on Primogeniture.
(g) See Archaeologia, vol. 34 p. Ill, vol. 37, p. 383. See also post, as to the Welsh custom of co-tillage. The Saxon term " yard land" is, according to the author's experience, generally applied to lands in common fields.
(h) Basalts, or assarts, are mentioned but rarely in Domesday. Sir H. Ellis's Introduction to Domesday, vol. 1, p. 102