(i) 1 Sharon Turner's Anglo-Saxons, 324, 325; 2 ib. 542, 543; Palgrave's Rise and Progress of the English Commonwealth,vol. l,pp. 26, 27, 28, 38, 77.

(k) See Palgrave, vol. l,pp. 71 et seq. (l) P. 237, 1st edit.

A change of a somewhat similar nature appears to have taken place in the principality of Wales. The land in dispute in the case of Lord Dunraven v. Llewellyn was situate in the county of Glamorgan in Wales. Wales, as is well known, was conquered by King Edward the First, who, by the Statutum Walliae, 12 Edw. L, sometimes called the statute of Rhuddlan, subjected it in great measure 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" (o). 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 (q). 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 (r), 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 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 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 he 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 favour), 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. Amougst other writs specifically introduced by the statute was the writ of novel disseisin 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 pas-"ture, which belongs to his free tenement in such a vill, "or another if the case requires it, after the peace pro-"claimed in Wales in the twelfth year of our reign" (z). This form of writ is similar to that given in Fitzherbcrt's Natura Brevium (a), and "lieth," as he says, "where a man "hath common of pasture appendant 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 bis "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.


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

(n) Cyvreithiau Cymro, Welsh Law.-, bk. L3, ch. 2, No. 101, p. 655, Fol edit, by Record Commissioners.

(o) Welsh Laws, bk. 9, ch. 25, No. 8, p. 525, fol. edit, by Record Commissioners.

(p) Ibid. bk. 13, ch. 2, No. 238.

(q) lbid. bk. 10, ch. 7, No. 9; bk. 13, ch. 2, No. L02.

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

(s) 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) TheVenedotian Code,bk.3, ch. 24, par. 3, p. 153, fol. edit, by Rocord Commissioners.

(u) Welsh Laws, bk. 13, Ch. 2,

No. 83, p. 651, fol. edit.

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

(y) Articulorum pacis cum rege Angli;e ratificatio per Llewelinum principem Walliae, a.d. 1277, Rymer's Foedera, vol. 2, pp. 88 - 90.

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 Fitz-herbert 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 he 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 ccrtain tenants, but in the adaptation of the ancient rights of the freeholders as a class to the remedies prescribed by English law.