VARIOUS RIGHTS OF COMMON 37 



put up for hay. The third kind of common of pasture consisted 

 of rights over that part of the manor which was neither arable nor 

 meadow, — the outlying portions, which were left in their natural 

 condition, — the pastures, moors, wastes, woods, and heaths, which 

 had never been tilled. These rights were attached to the arable 

 holdings of manorial tenants, and to the occupation of particular 

 cottages on the manor, and, when the strictness of the ancient 

 system relaxed, might also be acquired by neighbours and strangers 

 who neither Uved nor held land within the manor. " In these 

 commons," says Fitzherbert,^ " the lord should not be stinted 

 because the whole common is his own." 



Rights of common of pasture over cultivated or commonable 

 land, under the second heading, were enjoyed by the partners in 

 the village farm, were exercised in virtue of their arable holdings, 

 were limited to the extent of the farm, and could only be extinguished 

 by the agreement of the co-partners. But if the lord of the manor, 

 as a partner in the farm, had allowed portions of his demesne to be 

 intermixed with the strips of his tenants, he could withdraw those 

 portions at will, even though their withdrawal diminished the com- 

 monable area of cultivated land. With this exception, land subject 

 to these rights of common could not be freed by any individual 

 tenant, unless the main body of his farming partners assented. 



Rights of common of pasture over the untilled land, under the 

 third heading, were at first confined to the occupiers of arable 

 holdings on the manor. In process of time, however, they were 

 less narrowly hmited. They could not be enjoyed by a landless 

 pubhc ; but they might be exercised by persons hving both within 

 and without the manor. In the case of persons Hving within the 

 manor, the enjoyment of common rights belonged to the occupation 

 of arable holdings or of particular cottages to which arable land had 

 been or was attached. In the case of persons hving outside the 

 manor, rights might be acquired by neighbours and strangers, 

 either by direct grant from the lord of the manor, or, through his 

 sufferance, by long usage. As a general rule, the number of Uve- 

 stock which each manorial tenant or freeholder could pasture on 

 the wastes was fixed, or capable of being fixed, in proportion to his 

 holding. Vaguer rights were acquired by neighbours and strangers, 

 and it was in these cases mainly that the lord's right of enclosure 

 was successfully resisted. At common law it seems that, against 

 ^ Surveying, chap. iv. 



