第115章

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. Aspecial 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 the lord is considered as the owner of the waste,(23*) but even from the point of view of pure law his ownership is restricted by his own grants. in so much as he has conceded freehold tenements to certain persons, he is bound by his own deed not to withhold from these persons the necessary adjuncts of such tenements, and especially the rights of pasture bound up with them. The free tenants share with the lord, if he wants to turn his common pasture to some special and lucrative use; if, for instance, strangers are admitted to it for money, one part of the proceeds goes to the tenantry.(24*) Again, the lord may not overburden the common, and sometimes freeholders try their hand at litigation against the lord on the ground that he sends his cattle to some place where they ought not to go.(25*) The point cannot be overlooked, that the lord of the manor appears subjected to certain rules set up by custom and common decision in the meetings of his tenantry. The number and kind of beasts which may come to the common from his land is fixed, as well as the number that may come from the land of a cottager.(26*) The freeholders alone can enforce the rule against him, but it is set up not by the freeholders, but by the entire community of the manor, and practically by the serfs more than by the freeholders, because they are so much more numerous.