Chapter VI: Front Matter (6)

A commissioner for oaths in England is a solicitor appointed by the lord chancellor to administer oaths to persons making affidavits for the purpose of any cause or matter. The Commissioner for Oaths Act 1889 (with an amending act 1891), amending and consolidating various other acts, regulates the appointment and powers of such commissioners. In most large towns the minimum qualification for appointment is six years' continuous practice, and the application must be supported by two barristers, two solicitors and at least six neighbours of the applicant. The charge made by commissioners for every oath, declaration, affirmation or attestation upon honour is one shilling and sixpence; for marking each exhibit (a document or other thing sworn to in an affidavit and shown to a deponent when being sworn), one shilling.

COMMITMENT, in English law, a precept or warrant _in writing_, made and issued by a court or judicial officer (including, in cases of treason, the privy council or a secretary of state), directing the conveyance of a person named or sufficiently described therein to a prison or other legal place of custody, and his detention therein for a time specified, or until the person to be detained has done a certain act specified in the warrant, e.g. paid a fine imposed upon him on conviction. Its character will be more easily grasped by reference to a form now in use under statutory authority:--

In the county of A, Petty Sessional Division of B.

To each and all of the constables of the county of A and the governor
of His Majesty's Prison at C.

E. F. hereinafter called the defendant has this day been convicted
before the court of summary jurisdiction sitting at D.

(Here the conviction and adjudication is stated.)

You the said constables are hereby commanded to convey the defendant
to the said prison, and there deliver him to the governor thereof
together with this warrant: and you the governor of the said prison to
receive the defendant into your custody and keep him to hard labour
for the space of three calendar months.

Dated Signature and seal of a justice of the peace.

A commitment as now understood differs from "committal," which is the decision of a court to send a person to prison, and not the document containing the directions to executive and ministerial officers of the law which are consequent on the decision. An interval must necessarily elapse between the decision to commit and the making out of the warrant of commitment, during which interval the detention in custody of the person committed is undoubtedly legal. A commitment differs also from a warrant of arrest (_mandat d'amener_), in that it is not made until after the person to be detained has actually appeared, or has been summoned, before the court which orders committal, to answer to some charge.

If not always, at any rate since 1679, a warrant of commitment has been necessary to justify officers of the law in conveying a prisoner to gaol and a gaoler in receiving and detaining him there. It is ordinarily essential to a valid commitment that it should contain a specific statement of the particular cause of the detention ordered. To this the chief, if not the only exception, is in the case of commitments by order of either House of Parliament (May, _Parl. Pr._, 11th ed., 63, 70, 90). Commitments by justices of the peace must be under their hands and seals. Commitments by a court of record if formally drawn up are under the seal of the court.

Every person in custody is entitled, under the Habeas Corpus Act 1679, to receive within six hours of demand from the officer in whose custody he is, a copy of any warrant of commitment under which he is detained, and may challenge its legality by application for a writ of habeas corpus.

So far as concerns the acts of justices and tribunals of limited jurisdiction, the stringency of the rules as to commitments is an important aid to the liberty of the subject.

In the case of superior courts no statutory forms of commitment exist, and the same formalities are not so strictly enforced. Committal of a person present in court for contempt of the court is enforced by his immediate arrest by the tipstaff as soon as committal is ordered, and he may be detained in prison on a memorandum of the clerk or registrar of the court while a formal order is being drawn up. And in the case of persons sentenced at assizes and quarter sessions the only written authority for enforcement is a calendar of the prisoners tried, on which the sentences are entered up, signed by the presiding judge.

Commitments are usually made by courts of criminal jurisdiction in respect of offences against the criminal law, but are also occasionally made as a punishment for disobedience to the orders made in a civil court, e.g. where a judgment debtor having means to pay refuses to satisfy the judgment debt, or in cases where the person committed has been guilty of a direct contempt of the court.

The expenses of executing a warrant of commitment, so far as not paid by the prisoner, are defrayed out of the parliamentary grants for the maintenance of prisons.

COMMITTEE (from _committe_, an Anglo-Fr. past participle of _commettre_, Lat. _committere_, to entrust; the modern Fr. equivalent _comite_ is derived from the Eng.), a person or body of persons to whom something is "committed" or entrusted. The term is used of a person or persons to whom the charge of the body ("committee of the person") or of the property and business affairs ("committee of the estate") of a lunatic is committed by the court (see INSANITY). In this sense the English usage is to pronounce the word _commi-ttee_. The more common meaning of "committee" (pronounced _committ-y_) is that of a body of persons elected or appointed to consider and deal with certain matters of business, specially or generally referred to it.

COMMODIANUS, a Christian Latin poet, who flourished about A.D. 250. The only ancient writers who mention him are Gennadius, presbyter of Massilia (end of 5th century), in his _De scriptoribus ecclesiasticis_, and Pope Gelasius in _De libris recipiendis et non recipiendis_, in which his works are classed as _Apocryphi_, probably on account of certain heterodox statements contained in them. Commodianus is supposed to have been an African. As he himself tells us, he was originally a heathen, but was converted to Christianity when advanced in years, and felt called upon to instruct the ignorant in the truth. He was the author of two extant Latin poems, _Instructiones_ and _Carmen apologeticum_ (first published in 1852 by J. B. Pitra in the _Spicilegium Solesmense_, from a MS. in the Middlehill collection, now at Cheltenham, supposed to have been brought from the monastery of Bobbio). The _Instructiones_ consist of 80 poems, each of which is an acrostic (with the exception of 60, where the initial letters are in alphabetical order). The initials of 80, read backwards, give Commodianus Mendicus Christi. The _Apologeticum_, undoubtedly by Commodianus, although the name of the author (as well as the title) is absent from the MS., is free from the acrostic restriction. The first part of the _Instructiones_ is addressed to the heathens and Jews, and ridicules the divinities of classical mythology; the second contains reflections on Antichrist, the end of the world, the Resurrection, and advice to Christians, penitents and the clergy. In the _Apologeticum_ all mankind are exhorted to repent, in view of the approaching end of the world. The appearance of Antichrist, identified with Nero and the Man from the East, is expected at an early date. Although they display fiery dogmatic zeal, the poems cannot be considered quite orthodox. To the classical scholar the metre alone is of interest. Although they are professedly written in hexameters, the rules of quantity are sacrificed to accent. The first four lines of the _Instructiones_ may be quoted by way of illustration:

"Praefatio nostra viam erranti demonstrat,
Respectumque bonum, cum venerit saeculi meta,
Aeternum fieri, quod discredunt inscia corda:
Ego similiter erravi tempore multo."

These _versus politici_ (as they are called) show that the change was already passing over Latin which resulted in the formation of the Romance languages. The use of cases and genders, the construction of verbs and prepositions, and the verbal forms exhibit striking irregularities. The author, however, shows an acquaintance with Latin poets--Horace, Virgil, Lucretius.

The best edition of the text is by B. Dombart (Vienna, 1887), and a
good account of the poems will be found in M. Manitius, _Geschichte
der christlich-lateinischen Poesie_ (1891), with bibliography, to
which may be added G. Boissier, "Commodien," in the _Melanges Renier_
(1887); H. Brewer, _Kommodian von Gaza_ (Paderborn, 1906); L. Vernier,
"La Versification latine populaire en Afrique," in _Revue de
philologie_, xv. (1891); and C. E. Freppel, _Commodien, Arnobe,
Lactance_ (1893). Teuffel-Schwabe, _Hist. of Roman Literature_ (Eng.
trans., 384), should also be consulted.

COMMODORE (a form of "commander"; in the 17th century the term "commandore" is used), a temporary rank in the British navy for an officer in command of a squadron. There are two kinds, one with and the other without a captain below him in his ship, the first holding the temporary rank, pay, &c., of a rear-admiral, the other that of captain. It is also given as a courtesy title to the senior officer of a squadron of more than three vessels. In the United States navy "commodore" was a courtesy title given to captains who had been in command of a squadron. In 1862 it was made a commissioned rank, but was abolished in 1899. The name is given to the president of a yacht club, as of the Royal Yacht Squadron, and to the senior captain of a fleet of merchant vessels.

COMMODUS, LUCIUS AELIUS AURELIUS (161-192), also called Marcus Antoninus, emperor of Rome, son of Marcus Aurelius and Faustina, was born at Lanuvium on the 31st of August 161. In spite of a careful education he soon showed a fondness for low society and amusement. At the age of fifteen he was associated by his father in the government. On the death of Aurelius, whom he had accompanied in the war against the Quadi and Marcomanni, he hastily concluded peace and hurried back to Rome (180). The first years of his reign were uneventful, but in 183 be was attacked by an assassin at the instigation of his sister Lucilla and many members of the senate, which felt deeply insulted by the contemptuous manner in which Commodus treated it. From this time he became tyrannical. Many distinguished Romans were put to death as implicated in the conspiracy, and others were executed for no reason at all. The treasury was exhausted by lavish expenditure on gladiatorial and wild beast combats and on the soldiery, and the property of the wealthy was confiscated. At the same time Commodus, proud of his bodily strength and dexterity, exhibited himself in the arena, slew wild animals and fought with gladiators, and commanded that he should be worshipped as the Roman Hercules. Plots against his life naturally began to spring up. That of his favourite Perennis, praefect of the praetorian guard, was discovered in time. The next danger was from the people, who were infuriated by the dearth of corn. The mob repelled the praetorian guard, but the execution of the hated minister Cleander quieted the tumult. The attempt also of the daring highwayman Maternus to seize the empire was betrayed; but at last Eclectus the emperor's chamberlain, Laetus the praefect of the praetorians, and his mistress Marcia, finding their names on the list of those doomed to death, united to destroy him. He was poisoned, and then strangled by a wrestler named Narcissus, on the 31st of December 192. During his reign unimportant wars were successfully carried on by his generals Clodius Albinus, Pescennius Niger and Ulpius Marcellus. The frontier of Dacia was successfully defended against the Scythians and Sarmatians, and a tract of territory reconquered in north Britain. In 1874 a statue of Commodus was dug up at Rome, in which he is represented as Hercules--a lion's skin on his head, a club in his right and the apples of the Hesperides in his left hand.

See Aelius Lampridius, Herodian, and fragments in Dio Cassius; H.
Schiller, _Geschichte der romischen Kaiserzeit_; J. Zurcher,
"Commodus" (1868, in Budinger's _Untersuchungen zur romischen
Kaisergeschichte_, a criticism of Herodian's account); Pauly-Wissowa,
_Realencyclopadie_, ii. 2464 ff. (von Rohden); Heer, "Der historische
Wert des Vita Commodi" (_Philologus_, Supplementband ix.).

COMMON LAW, like "civil law," a phrase with many shades of meaning, and probably best defined with reference to the various things to which it is opposed. It is contrasted with statute law, as law not promulgated by the sovereign body; with equity, as the law prevailing between man and man, unless when the court of chancery assumed jurisdiction; and with local or customary law, as the general law for the whole realm, tolerating variations in certain districts and under certain conditions. It is also sometimes contrasted with civil, or canon, or international law, which are foreign systems recognized in certain special courts only and within limits defined by the common law. As against all these contrasted kinds of law, it may be described broadly as the universal law of the realm, which applies wherever they have not been introduced, and which is supposed to have a principle for every possible case. Occasionally, it would appear to be used in a sense which would exclude the law developed by at all events the more modern decisions of the courts.

Blackstone divides the civil law of England into _lex scripta_ or statute law, and _lex non scripta_ or common law. The latter, he says, consists of (1) general customs, which are the common law strictly so called, (2) particular customs prevailing in certain districts, and (3) laws used in particular courts. The first is the law by which "proceedings and determinations in the king's ordinary courts of justice are guided and directed." That the eldest son alone is heir to his ancestor, that a deed is of no validity unless sealed and delivered, that wills shall be construed more favourably and deeds more strictly, are examples of common law doctrines, "not set down in any written statute or ordinance, but depending on immemorial usage for their support." The validity of these usages is to be determined by the judges--"the depositaries of the law, the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." Their judgments are preserved as records, and "it is an established rule to abide by former precedents where the same points come again in litigation." The extraordinary deference paid to precedents is the source of the most striking peculiarities of the English common law. There can be little doubt that it was the rigid adherence of the common law courts to established precedent which caused the rise of an independent tribunal administering justice on more equitable principles--the tribunal of the chancellor, the court of chancery. And the old common law courts--the king's bench, common pleas and exchequer--were always, as compared with the court of chancery, distinguished for a certain narrowness and technicality of reasoning. At the same time the common law was never a fixed or rigid system. In the application of old precedents to the changing circumstances of society, and in the development of new principles to meet new cases, the common law courts displayed an immense amount of subtlety and ingenuity, and a great deal of sound sense. The continuity of the system was not less remarkable than its elasticity. Two great defects of form long disfigured the English law. One was the separation of common law and equity. The Judicature Act of 1873 remedied this by merging the jurisdiction of all the courts in one supreme court, and causing equitable principles to prevail over those of the common law where they differ. The other is the overwhelming mass of precedents in which the law is embedded. This can only be removed by some well-conceived scheme of the nature of a code or digest; to some extent this difficulty has been overcome by such acts as the Bills of Exchange Act 1882, the Partnership Act 1890 and the Sale of Goods Act 1893.

The English common law may be described as a pre-eminently national system. Based on Saxon customs, moulded by Norman lawyers, and jealous of foreign systems, it is, as Bacon says, as mixed as the English language and as truly national. And like the language, it has been taken into other English-speaking countries, and is the foundation of the law in the United States.

COMMON LODGING-HOUSE, "a house, or part of a house, where persons of the poorer classes are received for gain, and in which they use one or more rooms in common with the rest of the inmates, who are not members of one family, whether for eating or sleeping" (_Langdon_ v. _Broadbent_, 1877, 37 L.T. 434; _Booth_ v. _Ferrett_, 1890, 25 Q.B.D. 87). There is no statutory definition of the class of houses in England intended to be included in the expression "common lodging-house," but the above definition is very generally accepted as embracing those houses which, under the Public Health and other Acts, must be registered and inspected. The provisions of the Public Health Act 1875 are that every urban and rural district council must keep registers showing the names and residences of the keepers of all common lodging-houses in their districts, the situation of every such house, and the number of lodgers authorized by them to be received therein. They may require the keeper to affix and keep undefaced and legible a notice with the words "registered common lodging-house" in some conspicuous place on the outside of the house, and may make by-laws fixing the number of lodgers, for the separation of the sexes, for promoting cleanliness and ventilation, for the giving of notices and the taking of precautions in case of any infectious disease, and generally for the well ordering of such houses. The keeper of a common lodging-house is required to limewash the walls and ceilings twice a year--in April and October--and to provide a proper water-supply. The whole of the house must be open at all times to the inspection of any officer of a council. The county of London (except the city) is under the Common Lodging Houses Acts 1851 and 1853, with the Sanitary Act 1866 and the Sanitary Law Amendment Act 1874. The administration of these acts was, from 1851 to 1894, in the hands of the chief commissioner of police, when it was transferred to the London County Council.

COMMON ORDER, BOOK OF, sometimes called _The Order of Geneva_ or _Knox's Liturgy_, a directory for public worship in the Reformed Church in Scotland. In 1557 the Scottish Protestant lords in council enjoined the use of the English Common Prayer, i.e. the Second Book of Edward VI. Meanwhile, at Frankfort, among British Protestant refugees, a controversy was going on between the upholders of the English liturgy and the French Reformed Order of Worship respectively. By way of compromise John Knox and other ministers drew up a new liturgy based upon earlier Continental Reformed Services, which was not deemed satisfactory, but which on his removal to Geneva he published in 1556 for the use of the English congregations in that city. The Geneva book made its way to Scotland, and was used here and there by Reformed congregations. Knox's return in 1559 strengthened its position, and in 1562 the General Assembly enjoined the uniform use of it as the "Book of Our Common Order" in "the administration of the Sacraments and solemnization of marriages and burials of the dead." In 1564 a new and enlarged edition was printed in Edinburgh, and the Assembly ordered that "every Minister, exhorter and reader" should have a copy and use the Order contained therein not only for marriage and the sacraments but also "in Prayer," thus ousting the hitherto permissible use of the Second Book of Edward VI. at ordinary service. "The rubrics as retained from the Book of Geneva made provision for an extempore prayer before the sermon, and allowed the minister some latitude in the other two prayers. The forms for the special services were more strictly imposed, but liberty was also given to vary some of the prayers in them. The rubrics of the Scottish portion of the book are somewhat stricter, and, indeed, one or two of the Geneva rubrics were made more absolute in the Scottish emendations; but no doubt the 'Book of Common Order' is best described as a discretionary liturgy."

It will be convenient here to give the contents of the edition printed by Andrew Hart at Edinburgh in 1611, and described (as was usually the case) as _The Psalmes of David in Meeter, with the Prose, whereunto is added Prayers commonly used in the Kirke, and private houses; with a perpetuall Kalendar and all the Changes of the Moone that shall happen for the space of Six Yeeres to come_. They are as follows:--

(i.) The Calendar; (ii.) The names of the Faires of Scotland; (iii.) The Confession of Faith used at Geneva and received by the Church of Scotland; (iv.-vii.) Concerning the election and duties of Ministers, Elders and Deacons, and Superintendent; (viii.) An order of Ecclesiastical Discipline; (ix.) The Order of Excommunication and of Public Repentance; (x.) The Visitation of the Sick; (xi.) The Manner of Burial; (xii.) The Order of Public Worship--Forms of Confession and Prayer after Sermon; (xiii.) Other Public Prayers; (xiv.) The Administration of the Lord's Supper; (xv.) The Form of Marriage; (xvi.) The Order of Baptism; (xvii.) A Treatise on Fasting with the order thereof; (xviii.) The Psalms of David; (xix.) Conclusions or Doxologies; (xx.) Hymns--metrical versions of the Decalogue, Magnificat, Apostles' Creed, &c.; (xxi.) Calvin's Catechism; (xxii. and xxiii.) Prayers for Private Houses and Miscellaneous Prayers, e.g. for a man before he begins his work.

The Psalms and Catechism together occupy more than half the book. The chapter on burial is significant. In place of the long office of the Catholic Church we have simply this statement:--"The corpse is reverently brought to the grave, accompanied with the Congregation, without any further ceremonies: which being buried, the Minister (if he be present and required) goeth to the Church, if it be not far off, and maketh some comfortable exhortation to the people, touching death and resurrection." This (with the exception of the bracketed words) was taken over from the Book of Geneva. The Westminster Directory which superseded the Book of Common Order also enjoins interment "without any ceremony," such being stigmatized as "no way beneficial to the dead and many ways hurtful to the living." Civil honours may, however, be rendered.

Revs. G. W. Sprott and Thomas Leishman, in the introduction to their edition of the Book of Common Order, and of the Westminster Directory published in 1868, collected a valuable series of notices as to the actual usage of the former book for the period (1564-1645) during which it was enjoined by ecclesiastical law. Where ministers were not available suitable persons (often old priests, sometimes schoolmasters) were selected as readers. Good contemporary accounts of Scottish worship are those of W. Cowper (1568-1619), bishop of Galloway, in his _Seven Days' Conference between a Catholic Christian and a Catholic Roman_ (_c._ 1615), and Alexander Henderson in _The Government and Order of the Church of Scotland_ (1641). There was doubtless a good deal of variety at different times and in different localities. Early in the 17th century under the twofold influence of the Dutch Church, with which the Scottish clergy were in close connexion, and of James I.'s endeavours to "justle out" a liturgy which gave the liberty of "conceiving" prayers, ministers began in prayer to read less and extemporize more.

Turning again to the legislative history, in 1567 the prayers were done into Gaelic; in 1579 parliament ordered all gentlemen and yeomen holding property of a certain value to possess copies. The assembly of 1601 declined to alter any of the existing prayers but expressed a willingness to admit new ones. Between 1606 and 1618 various attempts were made under English and Episcopal influence, by assemblies afterwards declared unlawful, to set aside the "Book of Common Order." The efforts of James I., Charles I. and Archbishop Laud proved fruitless; in 1637 the reading of Laud's draft of a new form of service based on the English prayer book led to riots in Edinburgh and to general discontent in the country. The General Assembly of Glasgow in 1638 abjured Laud's book and took its stand again by the Book of Common Order, an act repeated by the assembly of 1639, which also demurred against innovations proposed by the English separatists, who objected altogether to liturgical forms, and in particular to the Lord's Prayer, the _Gloria Patri_ and the minister kneeling for private devotion in the pulpit. An Aberdeen printer named Raban was publicly censured for having on his own authority shortened one of the prayers. The following years witnessed a counter attempt to introduce the Scottish liturgy into England, especially for those who in the southern kingdom were inclined to Presbyterianism. This effort culminated in the Westminster Assembly of divines which met in 1643, at which six commissioners from the Church of Scotland were present, and joined in the task of drawing up a Common Confession, Catechism and Directory for the three kingdoms. The commissioners reported to the General Assembly of 1644 that this Common Directory "is so begun ... that we could not think upon any particular Directory for our own Kirk." The General Assembly of 1645 after careful study approved the new order. An act of Assembly on the 3rd of February and an act of parliament on the 6th of February ordered its use in every church, and henceforth, though there was no act setting aside the "Book of Common Order," the Westminster Directory was of primary authority. The Directory was meant simply to make known "the general heads, the sense and scope of the Prayers and other parts of Public Worship," and if need be, "to give a help and furniture." The act of parliament recognizing the Directory was annulled at the Restoration and the book has never since been acknowledged by a civil authority in Scotland. But General Assemblies have frequently recommended its use, and worship in Presbyterian churches is largely conducted on the lines of the Westminster Assembly's Directory.

The modern _Book of Common Order_ or _Euchologion_ is a compilation drawn from various sources and issued by the Church Service Society, an organization which endeavours to promote liturgical usages within the Established Church of Scotland.

COMMONPLACE, a translation of the Gr. [Greek: koivos topos], i.e. a passage or argument appropriate to several cases; a "common-place book" is a collection of such passages or quotations arranged for reference under general heads either alphabetically or on some method of classification. To such a book the name _adversaria_ was given, which is an adaptation of the Latin _adversaria scripta_, notes written on one side, the side opposite (_adversus_), of a paper or book. From its original meaning the word came to be used as meaning something hackneyed, a platitude or truism, and so, as an adjective, equivalent to trivial or ordinary. It was first spelled as two words, then with a hyphen, and so still in the sense of a "common-place book."

COMMON PLEAS, COURT OF, formerly one of the three English common law courts at Westminster--the other two being the king's bench and exchequer. The court of common pleas was an offshoot of the Curia Regis or king's council. Previous to Magna Carta, the king's council, especially that portion of it which was charged with the management of judicial and revenue business, followed the king's person. This, as far as private litigation was concerned, caused great inconvenience to the unfortunate suitors whose plaints awaited the attention of the court, for they had, of necessity, also to follow the king from place to place, or lose the opportunity of having their causes tried. Accordingly, Magna Carta enacted that common pleas (_communia placita_) or causes between subject and subject, should be held in some fixed place and not follow the court. This place was fixed at Westminster. The court was presided over by a chief (_capitalis justiciarius de communi banco_) and four puisne judges. The jurisdiction of the common pleas was, by the Judicature Act 1873, vested in the king's bench division of the High Court of Justice.

COMMONS,[1]

Early history.

the term for the lands held in commonalty, a relic of the system on which the lands of England were for the most part cultivated during the middle ages. The country was divided into vills, or townships--often, though not necessarily, or always, coterminous with the parish. In each stood a cluster of houses, a village, in which dwelt the men of the township, and around the village lay the arable fields and other lands, which they worked as one common farm. Save for a few small inclosures near the village--for gardens, orchards or paddocks for young stock--the whole township was free from permanent fencing. The arable lands lay in large tracts divided into compartments or fields, usually three in number, to receive in constant rotation the triennial succession of wheat (or rye), spring crops (such as barley, oats, beans or peas), and fallow. Low-lying lands were used as meadows, and there were sometimes pastures fed according to fixed rules. The poorest land of the township was left waste--to supply feed for the cattle of the community, fuel, wood for repairs, and any other commodity of a renewable or practically inexhaustible character.[2] This waste land is the common of our own days.

It would seem likely that at one time there was no division, as between individual inhabitants or householders, of any of the lands of the township, but only of the products. But so far back as accurate information extends the arable land is found to be parcelled out, each householder owning strips in each field. These strips are always long and narrow, and lie in sets parallel with one another. The plough for cultivating the fields was maintained at the common expense of the village, and the draught oxen were furnished by the householders. From the time when the crop was carried till the next sowing, the field lay open to the cattle of the whole vill, which also had the free run of the fallow field throughout the year. But when two of the three fields were under crops, and the meadows laid up for hay, it is obvious that the cattle of the township required some other resort for pasturage. This was supplied by the waste or common. Upon it the householder turned out the oxen and horses which he contributed to the plough, and the cows and sheep, which were useful in manuring the common fields,--in the words of an old law case: "horses and oxen to plough the land, and cows and sheep to compester it." Thus the use of the common by each householder was naturally measured by the stock which he kept for the service of the common fields; and when, at a later period, questions arose as to the extent of the rights on the common, the necessary practice furnished the rule, that the commoner could turn out as many head of cattle as he could keep by means of the lands which were parcelled out to him,--the rule of levancy and couchancy, which has come down to the present day.

Status of township.

In the earliest post-conquest times the vill or township is found to be associated with an over-lord. There has been much controversy on the question, whether the vill originally owned its lands free from any control, and was subsequently reduced to a state of subjection and to a large extent deprived of its ownership, or whether its whole history has been one of gradual emancipation, the ownership of the waste, or common, now ascribed by the law to the lord being a remnant of his ownership of all the lands of the vill. (See MANOR.)

At whatever date the over-lord first appeared, and whatever may have been the personal relations of the villagers to him from time to time after his appearance, there can be hardly any doubt that the village lands, whether arable, meadow or waste, were substantially the property of the villagers for the purposes of use and enjoyment. They resorted freely to the common for such purposes as were incident to their system of agriculture, and regulated its use amongst themselves. The idea that the common was the "lord's waste," and that he had the power to do what he liked with it, subject to specific and limited qualifying rights in others, was, there is little doubt, the creation of the Norman lawyers.

Statutes of Merton and Westminster the Second.

One of the earliest assertions of the lord's proprietary interest in waste lands is contained in the Statute of Merton, a statute which, it is well to notice, was passed in one of the first assemblies of the barons of England, before the commons of the realm were summoned to parliament. This statute, which became law in the year 1235, provided "that the great men of England (which had enfeoffed knights and their freeholders of small tenements in their great manors)" might "make their profit of their lands, wastes, woods and pastures," if they left sufficient pasture for the service of the tenements they had granted. Some fifty years later, another statute, that of Westminster the Second, supplemented the Statute of Merton by enabling the lord of the soil to inclose common lands, not only against his own tenants, but against "neighbours" claiming pasture there. These two pieces of legislation undoubtedly mark the growth of the doctrine which converted the over-lord's territorial sway into property of the modern kind, and a corresponding loosening of the hold of the rural townships on the wastes of their neighbourhood. To what extent the two acts were used, it is very difficult to say. We know, from later controversies, that they made no very great change in the system on which the country was cultivated, a system to which, as we have seen, commons were essential. In some counties, indeed, inclosures had, by the Tudor period, made greater progress than in others. T. Tusser, in his eulogium on inclosed farming, cites Suffolk and Essex as inclosed counties by way of contrast to Norfolk, Cambridgeshire and Leicestershire, where the open or "champion" (champain) system prevailed. The Statutes of Merton and Westminster may have had something to do with the progress of inclosed farming; but it is probable that their chief operation lay in furnishing the lord of the manor with a farm on the new system, side by side with the common fields, or with a deer park.

The Black Death.

The first event which really endangered the village system was the coming of the Black Death. This scourge is said to have swept away half the population of the country. The disappearance, by no means uncommon, of a whole family gave the over-lord of the vill the opportunity of appropriating, by way of escheat, the holding of the household in the common fields. The land-holding population of the townships and the persons interested in the commons were thus sensibly diminished.

During the Wars of the Roses the small cultivator is thought to have again made headway. But his diminished numbers, and the larger interest which the lords had acquired in the lands of each vill, no doubt facilitated the determined attack on the common-field system which marked the reigns of Henry VIII. and Edward VI.

The Tudor agrarian revolution.

This attack, which had for its chief object the conversion of arable land into pasture for the sake of sheep-breeding, was the outcome of many causes. It was no longer of importance to a territorial magnate to possess a large body of followers pledged to his interests by their connexion with the land. On the other hand, wool commanded a high price, and the growth of towns and of foreign commerce supplied abundant markets. At the same time the confiscation of the monastic possessions introduced a race of new over-lords--not bound to their territories by any family traditions, and also tended to spread the view that the strong hand was its own justification. In order to keep large flocks and send many bales of wool to market, each landowner strove to increase his range of pasture, and with this view to convert the arable fields of his vill into grass land. There is abundant evidence both from the complaints of writers such as Latimer and Sir Thomas More, and from the Statutes and royal commissions of the day, that large inclosures were made at this time, and that the process was effected with much injustice and accompanied by great hardship. "Where," says Bishop Latimer in one of his courageous and vigorous denunciations of "inclosers and rent-raisers," "there have been many householders and inhabitants, there is now but a shepherd and his dog." In the full tide of this movement, and despite Latimer's appeals, the Statutes of Merton and Westminster the Second were confirmed and re-enacted. Both common fields and commons no doubt disappeared in many places; and the country saw the first notable instalment of inclosure. But from the evidence of later years it is clear that a very large area of the country was still cultivated on the common-field system for another couple of centuries. When inclosure on any considerable scale again came into favour, it was effected on quite different principles; and before describing what was essentially a modern movement, it will be convenient to give a brief outline of the principles of law applicable to commons at the present day.

Rights of common.

_Law._--The distinguishing feature in law of common land is, that it is land the soil of which belongs to one person, and from which certain other persons take certain profits--for example, the bite of the grass by the mouth of cattle, or gorse, bushes or heather for fuel or litter. The right to take such a profit is a right of common; the right to feed cattle on common land is a right of common of pasture; while the right of cutting bushes, gorse or heather (more rarely of lopping trees) is known as a right of common of _estovers_ (_estouviers_) or _botes_ (respectively from the Norman-French _estouffer_, and the Saxon _botan_, to furnish). Another right of common is that of _turbary_, or the right to cut turf or peat for fuel. There are also rights of taking sand, gravel or loam for the repair and maintenance of land. The persons who enjoy any of these rights are called commoners.

From the sketch of the common-field system of agriculture which has been given, we shall readily infer that a large proportion of the commons of the country, and of the peculiarities of the law relating to commons, are traceable to that system. Thus, common rights are mostly attached to, or enjoyed with, certain lands or houses. A right of common of pasture usually consists of the right to turn out as many cattle as the farm or other private land of the commoner can support in winter; for, as we have seen, the enjoyment of the common, in the village system, belonged to the householders of the village, and was necessarily measured by their holdings in the common fields. The cattle thus commonable are said to be _levant_ and _couchant_, i.e. uprising and down-lying on the land. But it has now been decided that they need not in fact be so kept. At the present day a commoner may turn out any cattle belonging to him, wherever they are kept, provided they do not exceed in number the head of cattle which can be supported by the stored summer produce of the land in respect of which the right is claimed, together with any winter herbage it produces. The animals which a commoner may usually turn out are those which were employed in the village system--horses, oxen, cows and sheep. These animals are termed commonable animals. A right may be claimed for other animals, such as donkeys, pigs and geese; but they are termed non-commonable, and the right can only be established on proof of special usage. A right of pasture attached to land in the way we have described is said to be _appendant_ or _appurtenant_ to such land. Common of pasture appendant to land can only be claimed for commonable cattle; and it is held to have been originally attached only to arable land, though in claiming the right no proof that the land was originally arable is necessary. This species of common right is, in fact, the direct survival of the use by the village householder of the common of the township; while common of pasture appurtenant represents rights which grew up between neighbouring townships, or, in later times, by direct grant from the owner of the soil of the common to some other landowner, or (in the case of copyholders) by local custom.

The characteristic of connexion with house or land also marks other rights of common. Thus a right of taking gorse or bushes, or of lopping wood for fuel, called _fire-bote_, is limited to the taking of such fuel as may be necessary for the hearths of a particular house, and no more may be taken than is thus required. The same condition applies to common of _turbary_, which in its more usual form authorizes the commoner to cut the heather, which grows thickly upon poor soils, with the roots and adhering earth, to a depth of about 9 in. Similarly, wood taken for the repairs of buildings (_house-bote_), or of hedges (_hedge-bote_ or _hey-bote_), must be limited in quantity to the requirements of the house, farm buildings and hedges of the particular property to which the right is attached. And heather taken for litter cannot be taken in larger quantities than is necessary for manuring the lands in respect of which the right is enjoyed. It is illegal to take the wood or heather from the common, and to sell it to any one who has not himself a right to take it. So, also, a right of digging sand, gravel, clay or loam is usually appurtenant to land, and must be exercised with reference to the repair of the roads, or the improvement of the soil, of the particular property to which the right is attached.

We have already alluded to the fact that, in Norman and later days, every vill or township was associated with some over-lord,--some one responsible to the crown, either directly or through other superior lords, for the holding of the land and the performance of certain duties of defence and military support. To this lord the law has assigned the ownership of the soil of the common of the vill; and the common has for many centuries been styled the waste of the manor. The trees and bushes on the common belong to the lord, subject to any rights of lopping or cutting which the commoners may possess. The ground, sand and subsoil are his, and even the grass, though the commoners have the right to take it by the mouths of their cattle. To the over-lord, also, was assigned a seignory over all the other lands of the vill; and the vill came to be termed his manor. At the present day it is the manorial system which must be invoked in most cases as the foundation of the curiously conflicting rights which co-exist on a common. (See MANOR.)

Manorial commons.

Within the bounds of a manor, speaking generally, there are three classes of persons possessing an interest in the land, viz.:--

(a) Persons holding land freely of the manor, or freehold tenants.

(b) Persons holding land of the manor by copy of court roll, or copyhold tenants.

(c) Persons holding from the lord of the manor, by lease or agreement, or from year to year, land which was originally demesne, or which was once freehold or copyhold and has come into the lord's hands by escheat or forfeiture.

Amongst the first two classes we usually find the majority of the commoners on the wastes or commons of the manor. To every freehold tenant belongs a right of common of pasture on the commons, such right being "appendant" to the land which he holds freely of the manor. This right differs from most other rights of common in the characteristic that actual exercise of the right need not be proved. When once it is shown that certain land is held freely of the manor, it follows of necessity that a right of common of pasture for commonable cattle attaches to the land, and therefore belongs to its owner, and may be exercised by its occupant. "Common appendant," said the Elizabethan judges, "is of common right, and commences by operation of law and in favour of tillage."

Now this is exactly what we saw to be the case with reference to the use of the common of the vill by the householder cultivating the arable fields. The use was a necessity, not depending upon the habits of this or that householder; it was a use for commonable cattle only, and was connected with the tillage of the arable lands. It seems almost necessarily to follow that the freehold tenants of the manor are the representatives of the householders of the vill. However this may be, it is amongst the freehold tenants of the manor that we must first look for commoners on the waste of the manor.

Owing, however, to the light character of the services rendered by the freeholders, the connexion of their lands with the manor is often difficult to prove. Copyhold tenure, on the other hand, cannot be lost sight of; and in many manors copyholders are numerous, or were, till quite recently. Copyholders almost invariably possess a right of common on the waste of the manor; and when (as is usual) they exist side by side with freeholders, their rights are generally of the same character. They do not, however, exist as of common right, without proof of usage, but by the custom of the manor. Custom has been defined by a great judge (Sir George Jessel, M.R., in _Hammerton_ v. _Honey_) as local law. Thus, while the freehold tenants enjoy their rights by the general law of the land, the copyholders have a similar enjoyment by the local law of the manor. This, again, is what one might expect from the ancient constitution of a village community. The copyholders, being originally serfs, had no rights at law; but as they had a share in the tillage of the land, and gradually became possessed of strips in the common fields, or of other plots on which they were settled by the lord, they were admitted by way of indulgence to the use of the common; and the practice hardened into a custom. As might be expected, there is more variety in the details of the rights they exercise. They may claim common for cattle which are not commonable, if the custom extends to such cattle; and their claim is not necessarily connected with arable land.

In the present day large numbers of copyhold tenements have been enfranchised, i.e. converted into freehold. The effect of this step is to sever all connexion between the land enfranchised and the manor of which it was previously held. Technically, therefore, the common rights previously enjoyed in respect of the land would be gone. When, however, there is no indication of any intention to extinguish such rights, the courts protect the copyholders in their continued enjoyment; and when an enfranchisement is effected under the statutes passed in modern years, the rights are expressly preserved. The commoners on a manorial common then will be, prima facie, the freeholders and copyholders of the manor, and the persons who own lands which were copyhold of the manor but have been enfranchised.

The occupants of lands belonging to the lord of the manor, though they usually turn out their cattle on the common, do so by virtue of the lord's ownership of the soil of the common, and can, as a rule, make no claim to any right of common as against the lord, even though the practice of turning out may have obtained in respect of particular lands for a long series of years. When, however, lands have been sold by the lord of the manor, although no right of common attached by law to such lands in the lord's hands, their owners may subsequently enjoy such a right, if it appears from the language of the deeds of conveyance, and all the surrounding circumstances, that there was an intention that the use of the common should be enjoyed by the purchaser. The rules on this point are very technical; it is sufficient here to indicate that lands bought from a lord of a manor are not necessarily destitute of common rights.

Rights of common not connected with manorial system.

So far we have considered common rights as they have arisen out of the manorial system, and out of the still older system of village communities. There may, however, be rights of common quite unconnected with the manorial system. Such rights may be proved either by producing a specific grant from the owner of the manor or by long usage. It is seldom that an actual grant is produced, although it would seem likely that such grants were not uncommon at one time. But a claim founded on actual user is by no means unusual. Such a claim may be based (a) on immemorial usage, i.e. usage for which no commencement later than the coronation of Richard I. (1189) can be shown, (b) on a presumed modern grant which has been lost, or (c) (in some cases) on the Prescription