[432] Common appendant, common appurtenant, common in gross, and common par cause de vicinage. This classification is not found in Bracton, and appears to date from the late Middle Ages, see Vinogradoff, _Villainage in England_, Essay II., chap, ii., and the following case: _Coke's Reports_, Part IV., p. 60. Hill, 4 Jac. I. in Communi Banco: "Robert Smith brought an action of Trespass against Stephen Gatewood, gent., quare clausum fregit ... cum quibusdam averiis.... Defendant pleaded a certain custom, 'quod inhabitantes infra eandem villam de Stixwood prædictam infra aliquod antiquum messuagium ibidem ratione commorantiæ et residentiæ suæ in eadem habuerunt et usi fuerunt et consueverunt habere com. Pastur ... pro omnibus et omnimodis bobus et equis et aliis grossis animalibus.' Unanimously resolved that the custom is against law. 1. That there are but four manners of common, common appendant, appurtenant, in gross, and by reason of vicinage, and this common _ratione commorantiæ_ is none of them. 2. What estate shall he have, who is inhabitant, in the common, when it appears he hath no estate or interest in the house (but a mere habitation and dwelling) in respect of which he ought to have his common? For none can have interest in a common in respect of a house in which he hath no interest."
Moreover, the Statute of Merton, which expressly allowed a lord to enclose commonable land on condition that he left sufficient for the free tenants, did not mean that a lord could arbitrarily cut down rights of common to what he was pleased to think sufficient. If it had, there would have been little enclosing of commons in the sixteenth century, for by that time there would have been little common left to enclose. The question "what is sufficient?" had to be answered by a jury, a jury representing expert knowledge as to local customs and the agrarian usages of the township. The jury could only answer it by taking account of the size of the tenements and of the land available for commoning. In fact, it found itself at once considering the custom of the manor, which stinted rights of pasture according to the economic needs and resources of different villages. Of the position of the customary tenants it is, for reasons which will be given below, less easy to speak. Regarded from the standpoint of the economic organisation of the manor, their rights of pasture should have got protection as much as those of the freeholders, for as holders of ancient tenements they required pasture to enable them to carry on their tillage; and since they were, in most parts of the country, by far the most numerous class, the aggregate of their commonable area was much larger than was that of the free tenants. According to the canon of interpretation supplied by Coke,[433] the Statute of Merton would appear, at any rate in the latter part of the sixteenth century, to have been construed as protecting them; and Fitzherbert,[434] though he introduces an additional complication by trying--trying, it seems, quite arbitrarily--to prove that rights of pasture over the waste and rights of pasture on land which was not technically part of the waste, ought to be treated differently, places all tenants on an equal footing in respect of their claim to be left "sufficient common."