8S 



COMMON, TENANCY IN. 



COMMONS, HOUSE OF. 



66 



tit., Common ; and Blackstone's ' Commentaries,' vol. ii. p. 34, Mr. 

 Kerr's edit.) 



COMMON'. TENANCY IN, is one of the modes in which property 

 may be held by several persons together. It comes the nearest to 

 separate ownership, from which it differs in little else than that the 

 shares held in common are not actually divided or marked out. As to 

 alienation, transmission by descent, and other incidents of property, 

 the law of undivided and of divided shares is the same. From the 

 blending, however, of the shares, there necessarily arises some pecu- 

 liarity in the mode of their enjoyment. When the profits of the thing 

 held in common are partible (as corn growing in a field), they are 

 generally actually divided among the tenants, and then the property of 

 each most closely resembles separate property. It frequently happens, 

 however, that this cannot be done ; in which case the thing held in 

 common must either be used alternately by the tenants (as a horse), 

 or they must join in using it, as tenants in common of an advowson 

 are required by law to concur in presenting to the church. 



The shares of tenants in common may be either equal or unequal, 

 and the quantity of their interests may be either equal or unequal. 

 All may be tenants in fee, tenants for a term, &c., or one may be tenant 

 in fee, and another tenant for a term, &c. It is necessary, however, 

 that the possession of all be contemporaneous ; successive interests are 

 not a tenancy in common. 



A tenancy in common may be created in several ways. If a joint- 

 tenant, or coparcener, aliens his share to a stranger, the latter is a 

 tenant in common with the remaining joint tenant or coparcener. If 

 the sole owner of property aliens an undivided part of it, and retains 

 the rest, the grantor and grantee are tenants in common. As to the 

 words which, in a transfer of property to two or more persons, create 

 a tenancy in common, or a joint-tenancy, many nice distinctions exist 

 in the law. At common law, a conveyance of land to two simply, and 

 without other words, made them joint-tenants, and not tenants in 

 common; except in a few particular cases. (Litt., 283, 284.) This 

 rule of law was founded on the feudal policy, which favoured the mode 

 of holding property in joint-tenancy rather than in tenancy in common, 

 because the former afforded room for the re-union of the proi>erty by 

 survivorship (which is the characteristic incident of joint-tenancy) in a 

 single individual, who might more effectually perform the duties 

 belonging to the feudal tenure than several persons among whom the 

 same burden was divided ; and it is probable therefore that in the 

 times of feudalism the intentions of grantors were fulfilled by implying 

 joint-tenancy rather than tenancy in common. For a long time past 

 however the courts have endeavoured, whenever they could, to raise 

 by construction tenancies in common rather than joint tenancies. But 

 nry in common might always be created by express words, and 

 no technical expressions being necessary for the purpose, the courts 

 i -"en enabled to lay hold of any words in a deed or will which 

 appeared to them sufficiently expressive of a tenancy in common, in 

 order to establish one. The misfortune however is that they have 

 assumed greater latitude in this respect in the construction of wills and 

 uses and trusts, than in the construction of common-law conveyances ; 

 so that the same words, as for instance the words " equally to be 

 divided," often have different effects in different instruments. 



The Courts of Equity have decided that in certain cases a simple 

 conveyance to two or more makes them in equity tenants in common, 

 and not joint-tenants, unless there is an express declaration to the 

 contrary. This is the rule where a mortgage is made to two or more, 

 and when an estate purchased by two or more is conveyed to them in 

 unequal shares. ThU doctrine is sometimes in practice found very 

 inconvenient. 



A tenancy in common ceases as a matter of course, when the owner- 

 ship of the several shares exists in a single individual ; it can also be 

 destroyed by partition made by the tenants. Any one of the tenants 

 may compel the others, by suit in equity, to make partition of lands 

 or houses held in common, except when the subject is in its nature 

 i tible, as in the case of a living animal for instance. 



Notwithstanding its many inconveniences, tenancy in common often 

 occurs, being frequently created by wills and settlements in which 

 property is given by xiiitable words to classes of persons together, as to 

 children , or to a number of individuals by name. (See Blackst. ' Comni.' 

 vol. ', p. 186, Mr. Kerr's ed.) 



<"' iMMONS are wastes and pastures which have never been exclu- 

 sively appropriated by any individual, but used in common by the 

 ants of a parish or district. Where extensive common rights 

 exist, the mode of cultivating the inclosed land is greatly affected by 

 it. All the cattle being maintained on the commons for a great port 

 of the year, less land is laid down to grass, and only so much is kept in 

 meadow as will produce hay to feed the cattle in winter weather, and 

 whi'ii the commons will not sustain them. The consequence is, that 

 the arable land is not well cultivated, little manure is made in the 

 ind the rent is paid by the stock which runs on the coinm"u-, 

 hkh increases and grows without any expense to the owner. 

 But it is a wasteful disposition of the land. Common pastures are 

 never improved ; no one will drain or clear them of weeds, still less 

 "; them. The stock kept upon them is not by any means so 

 i 'jus as could be kept on the same surface divided and improved. 

 Hence most of the commons and common fields in Great Britain have 

 been divided and inclosed within the last fifty years. Wherever an 



inclosure has taken place the public has gained, even when the indi- 

 viduals immediately connected with the land may have suffered some 

 loss, by not receiving an equivalent for the profit they had from the 

 cattle which they contrived to keep on the commons. 



The soil of commons within a manor belongs to the lord ; if there is 

 no manor, it belongs to the king. The herbage belongs in general to 

 the tenants and other inhabitants of the manor or districts, according 

 to fixed rules. Where commons are very extensive there is sometimes 

 no restriction on the number of cattle which may be turned out on 

 them. This is called common mthout stint. 



The usual proportion given to the lord for his right in the soil on an 

 inclosure ia one-sixteenth. The remainder is divided among those who 

 have a right of common in proportion to the land they possess, and on 

 which their right depends. 



Common fields differ from commons, in that they are divided for the 

 purpose of cultivation ; but as soon as the crop is off the ground, the 

 cattle of all the proprietors, or of all the parishioners, as the custom 

 may be, have a right of pasture over the whole in common. This 

 system is incompatible with an improved husbandry, and common 

 fields have been very generally divided and inclosed by particular acts 

 of parliament. The General Inclosure Acts of late years have greatly 

 facilitated these inclosures, and the number of common fields is pro- 

 bably not now very great. 



COMMONS, HOUSE OF. The object of this article is to present a 

 distinct though compendious view of the history and actual state of 

 the House of Commons as a part of the Imperial Parliament of Great 

 Britain and Ireland. In considering the history of the English borough 

 system, it must be borne in mind that the municipal organisation of 

 the Anglo-Saxons, though not confined to the towns, was best re- 

 membered in them ; and when after the Norman invasion, the towns 

 became subject to a royal bailiff, who levied taxes almost at Ins 

 pleasure, of which only a small portion reached the royal exchequer, 

 the oppression was severely felt, and strong efforts were made to 

 relieve themselves from it. Very early the towns, by offering better 

 terms than were obtained from the bailiff, obtained the power of 

 electing their own mayor, or port-reeve. For this purpose charters 

 were granted, and self-governing municipalities were re-formed. It 

 was natural, when the chief object of the assembling of a parliament 

 was taxation, to apply to these municipalities. They represented con- 

 siderable bodies of people already united for a somewhat similar pur- 

 pose, and they already raised tolls and imposed several taxes. The 

 original basis of the representation, however, in the time of Edward I., 

 was very different from what we must suppose it would have been 

 made, had the crown and its advisers at that period contemplated in 

 this arrangement any such thing as the composition of a legislative 

 assembly. The very large proportion of the whole number of its 

 members that were sent from the towns, at a period when the popu- 

 lation and general importance of the towns, as compared with those of 

 the counties at large, were vastly less than they are now, was mani- 

 festly a circumstance repugnant to all the political notions and 

 tendencies of the government of that day. Under Edward I. the 

 town representatives bore so large a proportion to those of the shires 

 as 248 to 74 ; and under Edward III. as 282 to 74. The reason why, 

 on the first settling of the representative system into regularity and 

 permanency, each constituency was uniformly summoned to elect two 

 members, without regard to its known or presumed proportion of 

 wealth or populousness, seems to have been very simple and very 

 natural. So long as the parliamentary voice of the commons was 

 confined to matters of taxation merely, the only thing that appears to 

 have been seriously regarded in fixing the number of delegates was the 

 securing such a delegation from each constituency as at the smallest 

 inconvenience and expense to the latter should have full power to 

 treat of the pecuniary business in question ; and two, being the 

 smallest number compatible with the important conditions of mutual 

 consultation and joint testimony, was fixed upon as the number that 

 imposed the smallest burden on the constituents, and was also most 

 convenient for avoiding a too crowded assemblage of representatives. 

 And thus it seems to have been that the periodical and frequent shire 

 and borough courts presenting the most natural and convenient modea 

 and occasions of appointing the parliamentary deputies of the several 

 communities, two representatives, and two only, were summoned in- 

 differently from the shire as from the borough, and from the largest 

 shire or borough as from the smallest. 



When the power and authority of the commons in parliament had 

 become so firmly consolidated under the first three Edwards as to 

 exercise an effective control over all the great measures of government, 

 the composition of the representative body was an object of constant 

 attention and solicitude to the crown. As the number and names of 

 the counties entitled to send members admitted neither of doubt nor 

 of dispute, the right of the bormtyhs became the first object of attack 

 from that quarter. The parliament having in 1297 ('25 Edward I.) 

 procured the passing of the act called " Statutum de tallagio non con- 

 cedendo," which enacts that "no tallage or aid shall be taken or 

 levied by us or our heirs in our realm without the good will and assent 

 of the archbishops, bishops, earls, barons, knights, burgesses, and other 

 freemen of the land," it became important to influence the borough aa 

 the most numerous body. 



The great instruments of the crown in influencing the Wmpotltfal of 



