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Joseph Fisher >> Landholding In England
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THE HISTORY OF LANDHOLDING IN ENGLAND.
BY JOSEPH FISHER, F.R.H.S.
"Much food is in the tillage of the poor, but there is that is
destroyed for want of Judgment."--PROV. 13: 23.
"Of all arts, tillage or agriculture is doubtless the most useful
and necessary, as being the source whence the nation derives its
subsistence. The cultivation of the soil causes it to produce an
infinite increase. It forms the surest resource and the most solid
fund of riches and commerce for a nation that enjoys a happy
climate .... The cultivation of the soil deserves the attention of
the Government, not only on account of the invaluable advantages
that flow from it, but from its being an obligation imposed by
nature on mankind."--VATTEL.
INTRODUCTION.
This work is an expansion of a paper read at the meeting of the
Royal Historical Society in May, 1875, and will be published in the
volume of the Transactions of that body. But as it is an expensive
work, and only accessible to the Fellows of that Society, and as
the subject is one which is now engaging a good deal of public
consideration, I have thought it desirable to place it within the
reach of those who may not have access to the larger and more
expensive work.
I am aware that much might be added to the information it contains,
and I possess materials which would have more than doubled its
size, but I have endeavored to seize upon the salient points, and
to express my views as concisely as possible.
I have also preferred giving the exact words of important Acts of
Parliament to any description of their objects.
If this little essay adds any information upon a subject of much
public interest, and contributes to the just settlement of a very
important question, I shall consider my labor has not been in vain.
JOSEPH FISHER.
WATERFORD, November 3, 1875.
I do not propose to enter upon the system of landholding in
Scotland or Ireland, which appears to me to bear the stamp of the
Celtic origin of the people, and which was preserved in Ireland
long after it had disappeared in other European countries formerly
inhabited by the Celts. That ancient race may be regarded as the
original settlers of a large portion of the European continent, and
its land system possesses a remarkable affinity to that of the
Slavonic, the Hindoo, and even the New Zealand races. It was
originally Patriarchal, and then Tribal, and was communistic in its
character.
I do not pretend to great originality in my views. My efforts have
been to collect the scattered rays of light, and to bring them to
bear upon one interesting topic. The present is the child of the
past. The ideas of bygone races affect the practices of living
people. We form but parts of a whole; we are influenced by those
who preceded us, and we shall influence those who come after us.
Men cannot disassociate themselves either from the past or the
future.
In looking at this question there is, I think, a vast difference
which has not been sufficiently recognized. It is the broad
distinction between the system arising out of the original
occupation of land, and that proceeding out of the necessities of
conquest; perhaps I should add a third--the complex system
proceeding from an amalgamation, or from the existence of both
systems in the same nation. Some countries have been so repeatedly
swept over by the tide of conquest that but little of the
aboriginal ideas or systems have survived the flood. Others have
submitted to a change of governors and preserved their customary
laws; while in some there has been such a fusion of the two systems
that we cannot decide which of the ingredients was the older,
except by a process of analysis and a comparison of the several
products of the alembic with the recognized institutions of the
class of original or of invading peoples.
Efforts have been made, and not with very great success, to define
the principle which governed the more ancient races with regard to
the possession of land. While unoccupied or unappropriated, it was
common to every settler. It existed for the use of the whole human
race. The process by which that which was common to all became the
possession of the individual has not been clearly stated. The
earlier settlers were either individuals, families, tribes, or
nations. In some cases they were nomadic, and used the natural
products without taking possession of the land; in others they
occupied districts differently defined. The individual was the unit
of the family, the patriarch of the tribe. The commune was formed
to afford mutual protection. Each sept or tribe in the early
enjoyment of the products of the district it selected was governed
by its own customary laws. The cohesion of these tribes into states
was a slow process; the adoption of a general system of government
still slower. The disintegration of the tribal system, and
dissolution of the commune, was not evolved out of the original
elements of the system itself, but was the effect of conquest; and,
as far as I can discover, the appropriation to individuals of land
which was common to all, was mainly brought about by conquest, and
was guided by impulse rather than regulated by principle.
Mr. Locke thinks that an individual became sole owner of a part of
the common heritage by mixing his labor with the land, in fencing
it, making wells, or building; and he illustrates his position by
the appropriation of wild animals, which are common to all
sportsmen, but become the property of him who captures or kills
them. This acute thinker seems to me to have fallen into a mistake
by confounding land with labor. The improvements were the property
of the man who made them, but it by no means follows that the
expenditure of labor on land gave any greater right than to the
labor itself or its representative.
It may not be out of place here to allude to the use of the word
property with reference to land; property--from proprium, my own--
is something pertaining to man. I have a property in myself. I have
the right to be free. All that proceeds from myself, my thoughts,
my writings, my works, are property; but no man made land, and
therefore it is not property. This incorrect application of the
word is the more striking in England, where the largest title a man
can have is "tenancy in fee," and a tenant holds but does not own.
Sir William Blackstone places the possession of land upon a
different principle. He says that, as society became formed, its
instinct was to preserve the peace; and as a man who had taken
possession of land could not be disturbed without using force, each
man continued to enjoy the use of that which he had taken out of
the common stock; but, he adds, that right only lasted as long as
the man lived. Death put him out of possession, and he could not
give to another that which he ceased to possess himself.
Vattel (book i., chap, vii.) tells us that "the whole earth is
destined to feed its inhabitants; but this it would be incapable of
doing if it were uncultivated. Every nation is then obliged by the
law of nature to cultivate the land that has fallen to its share,
and it has no right to enlarge its boundaries or have recourse to
the assistance of other nations, but in proportion as the land in
its possession is incapable of furnishing it with necessaries." He
adds (chap. xx.), "When a nation in a body takes possession of a
country, everything that is not divided among its members remains
common to the whole nation, and is called public property."
An ancient Irish tract, which forms part of the Senchus Mor, and is
supposed to be a portion of the Brehon code, and traceable to the
time of St. Patrick, speaks of land in a poetically symbolic, but
actually realistic manner, and says, "Land is perpetual man." All
the ingredients of our physical frame come from the soil. The food
we require and enjoy, the clothing which enwraps us, the fire which
warms us, all save the vital spark that constitutes life, is of the
land, hence it is "perpetual man." Selden ("Titles of Honor," p.
27), when treating of the title "King of Kings," refers to the
eastern custom of homage, which consisted not in offering the
person, but the elements which composed the person, EARTH and
WATER--"the perpetual man" of the Brehons--to the conqueror. He
says:
"So that both titles, those of King of Kings and Great King, were
common to those emperors of the two first empires; as also (if we
believe the story of Judith) that ceremonies of receiving an
acknowledgment of regal supremacy (which, by the way, I note here,
because it was as homage received by kings in that time from such
princes or people as should acknowledge themselves under their
subjection) by acceptance upon their demand of EARTH and WATER.
This demand is often spoken of as used by the Persian, and a
special example of it is in Darius' letters to Induthyr, King of
the Scythians, when he first invites him to the field; but if he
would not, then bringing to your sovereign as gifts earth and
water, come to a parley. And one of Xerxes' ambassadors that came
to demand earth and water from the state of Lacedaemon, to satisfy
him, was thrust into a well and earth cast upon him."
The earlier races seem to me, either by reasoning or by instinct,
to have arrived at the conclusion that every man was, in right of
his being, entitled to food; that food was a product of the land,
and therefore every man was entitled to the possession of land,
otherwise his life depended upon the will of another. The Romans
acted on a different principle, which was "the spoil to the
victors." He who could not defend and retain his possessions became
the slave of the conqueror, all the rights of the vanquished passed
to the victor, who took and enjoyed as ample rights to land as
those naturally possessed by the aborigines.
The system of landholding varies in different countries, and we
cannot discover any idea of abstract right underlying the various
differing systems; they are the outcome of law, the will of the
sovereign power, which is liable to change with circumstances. The
word LAW appears to be used to express two distinct sentiments;
one, the will of the sovereign power, which being accompanied with
a penalty, bears on its face the idea that it may be broken by the
individual who pays the penalty: "Thou shalt not eat of the fruit
of the tree, for on the day thou eatest thereof thou shalt die,"
was a law. All laws, whether emanating from an absolute monarch or
from the representatives of the majority of a state, are mere
expressions of the will of the sovereign power, which may be
exacted by force. The second use of the word LAW is a record of our
experience--e.g., we see the tides ebb and flow, and conclude it is
done in obedience to the will of a sovereign power; but the word in
that sense does not imply any violation or any punishment. A
distinction must also be drawn between laws and codes; the former
existed before the latter. The lex non scripta prevailed before
letters were invented. Every command of the Decalogue was issued,
and punishment followed for its breach, before the existence of the
engraved tables. The Brehon code, the Justinian code, the Draconian
code, were compilations of existing laws; and the same may be said
of the common or customary law of England, of France, and of
Germany.
I am aware that recent analytical writers have sought to associate
LAW with FORCE, and to hold that law is a command, and must have
behind it sufficient force to compel submission. These writers find
at the outset of their examination, that customary law, the "Lex
non scripta," existed before force, and that the nomination to
sovereign power was the outcome of the more ancient customary law.
These laws appear based upon the idea of common good, and to have
been supported by the "posse comitatus" before standing armies or
state constabularies were formed. Vattel says (book i., chap. ii.),
"It is evident that men form a political society, and submit to
laws solely for their own advantage and safety. The sovereign
authority is then established only for the common good of all the
citizens. The sovereign thus clothed with the public authority,
with everything that constitutes the moral personality of the
nation, of course becomes bound by the moral obligations of that
nation and invested with its rights." It appears evident, that
customary law was the will of small communities, when they were
sovereign; that the cohesion of such communities was a confirmation
of such customs of each, that the election of a monarch or a
parliament was a recognition of these customs, and that the moral
and material FORCE or power of the sovereign was the outcome of
existing laws, and a confirmation thereof. The application of the
united force of the nation could be rightfully directed to the
requirements of ancient, though unwritten customary law, and it
could only be displaced by legislation, in which those concerned
took part.
The duty of the sovereign (which in the United Kingdom means the
Crown and the two branches of the legislature) with regard to land,
is thus described by Vattel:
"Of all arts, tillage or agriculture is doubtless the most useful
and necessary, as being the source whence the nation derives its
subsistence. The cultivation of the soil causes it to produce an
infinite increase. It forms the surest resource, and the most solid
fund of riches and commerce for a nation that enjoys a happy
climate. The sovereign ought to neglect no means of rendering the
land under his jurisdiction as well cultivated as possible....
Notwithstanding the introduction of private property among the
citizens, the nation has still the right to take the most effectual
measures to cause the aggregate soil of the country to produce the
greatest and most advantageous revenue possible. The cultivation of
the soil deserves the attention of the Government, not only on
account of the invaluable advantages that flow from it, but from
its being an obligation imposed by nature on mankind."
Sir Henry Maine thinks that there are traces in England of the
commune or MARK system in the village communities which are
believed to have existed, but these traces are very faint. The
subsequent changes were inherent in, and developed by, the various
conquests that swept over England; even that ancient class of
holdings called "Borough English," are a development of a war-like
system, under which each son, as he came to manhood, entered upon
the wars, and left the patrimonial lands to the youngest son. The
system of gavel-kind which prevailed in the kingdom of Kent,
survived the accession of William of Normandy, and was partially
effaced in the reign of Henry VII. It was not the aboriginal or
communistic system, but one of its many successors.
The various systems may have run one into the other, but I think
there are sufficiently distinct features to place them in the
following order:
1st. The Aboriginal.
2d. The Roman, Population about 1,500,000.
3d. The Scandinavian under the ANGLO-SAXON and Danish kings--A.D.
450 to A.D. 1066. The population in 1066 was 2,150,000.
4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the
latter year was 3,350,000.
5th. The Plantagenet, from 1154 to 1485; in the latter the
population was 4,000,000.
6th. The Tudor, 1485 to 1603, when the population was 5,000,000.
7th. The Stuarts, 1603 to 1714, the population having risen to
5,750,000.
8th. The Present, from 1714. Down to 1820 the soil supported the
population; now about one half lives upon food produced in other
countries. In 1874 the population was 23,648,607.
Each of these periods has its own characteristic, but as I must
compress my remarks, you must excuse my passing rapidly from one to
the other.
I. THE ABORIGINES.
The aboriginal period is wrapped in darkness, and I cannot with
certainty say whether the system that prevailed was Celtic and
Tribal. An old French customary, in a MS. treating upon the
antiquity of tenures, says: "The first English king divided the
land into four parts. He gave one part to the ARCH FLAMENS to pray
for him and his posterity. A second part he gave to the earls and
nobility, to do him knight's service. A third part he divided among
husbandmen, to hold of him in socage. The fourth he gave to
mechanical persons to hold in burgage." The terms used apply to a
much more recent period and more modern ideas.
Caesar tells us "that the island of Britain abounds in cattle, and
the greatest part of those within the country never sow their land,
but live on flesh and milk. The sea-coasts are inhabited by
colonies from Belgium, which, having established themselves in
Britain, began to cultivate the soil."
Diodorus Siculus says, "The Britons, when they have reaped their
corn, by cutting the ears from the stubble, lay them up for
preservation in subterranean caves or granaries. From thence, they
say, in very ancient times, they used to take a certain quantity of
ears out every day, and having dried and bruised the grains, made a
kind of food for their immediate use."
Jeffrey of Monmouth relates that one of the laws of Dunwalls
Molnutus, who is said to have reigned B.C. 500, enacted that the
ploughs of the husbandmen, as well as the temples of the gods,
should be sanctuaries to such criminals as fled to them for
protection.
Tacitus states that the Britons were not a free people, but were
under subjection to many different kings.
Dr. Henry, quoting Tacitus, says, "In the ancient German and
British nation the whole riches of the people consisted in their
flocks and herds; the laws of succession were few and simple: a
man's cattle, at death, were equally divided among his sons; or, if
he had no sons, his daughters; or if he had no children, among his
nearest relations. These nations seem to have had no idea of the
rights of primogeniture, or that the eldest son had any title to a
larger share of his father's effects than the youngest."
The population of England was scanty, and did not probably exceed a
million of inhabitants. They were split up into a vast number of
petty chieftainries or kingdoms; there was no cohesion, no means of
communication between them; there was no sovereign power which
could call out and combine the whole strength of the nation. No
single chieftain could oppose to the Romans a greater force than
that of one of its legions, and when a footing was obtained in the
island, the war became one of detail; it was a provincial rather
that a national contest. The brave, though untrained and ill-
disciplined warriors, fell before the Romans, just as the Red Man
of North America was vanquished by the English settlers.
II. THE ROMAN.
The Romans acted with regard to all conquered nations upon the
maxim, "To the victors the spoils." Britain was no exception. The
Romans were the first to discover or create an ESTATE OF USES in
land, as distinct from an estate of possession. The more ancient
nations, the Jews and the Greeks, never recognized THE ESTATE OF
USES, though there is some indication of it in the relation
established by Joseph in Egypt, when, during the years of famine,
he purchased for Pharaoh the lands of the people. The Romans having
seized upon lands in Italy belonging to conquered nations,
considered them public lands, and rented them to the soldiery, thus
retaining for the state the estate in the lands, but giving the
occupier an estate of uses. The rent of these public lands was
fixed at one tenth of the produce, and this was termed USUFRUCT--
the use of the fruits.
The British chiefs, who submitted to the Romans, were subjected to
a tribute or rent in corn; it varied, according to circumstances,
from one fifth to one twentieth of the produce. The grower was
bound to deliver it at the prescribed places. This was felt to be a
great hardship, as they were often obliged to carry the grain great
distances, or pay a bribe to be excused. This oppressive law was
altered by Julius Agricola.
The Romans patronized agriculture--Cato says, "When the Romans
designed to bestow the highest praise on a good man, they used to
say he understood agriculture well, and is an excellent husbandman,
for this was esteemed the greatest and most honorable character."
Their system produced a great alteration in Britain, and converted
it into the most plentiful province of the empire; it produced
sufficient corn for its own inhabitants, for the Roman legions, and
also afforded a great surplus, which was sent up the Rhine. The
Emperor Julian built new granaries in Germany, in which he stored
the corn brought from Britain. Agriculture had greatly improved in
England under the Romans.
The Romans do not appear to have established in England any
military tenures of land, such as those they created along the
Danube and the Rhine; nor do they appear to have taken possession
of the land; the tax they imposed upon it, though paid in kind, was
more of the nature of a tribute than a rent. Though some of the
best of the soldiers in the Roman legions were Britons, yet their
rule completely enervated the aboriginal inhabitants--they were
left without leaders, without cohesion. Their land was held by
permission of the conquerors. The wall erected at so much labor in
the north of England proved a less effectual barrier against the
incursions of the Picts and Scots than the living barrier of armed
men which, at a later period, successfully repelled their
invasions. The Roman rule affords another example that material
prosperity cannot secure the liberties of a people, that they must
be armed and prepared to repel by force any aggression upon their
liberty or their estates.
"Who will be free, themselves must strike the blow."
The prosperous "Britons," who were left by the Romans in possession
of the island, were but feeble representatives of those who, under
Caractacus and Boadicea, did not shrink from combat with the
legions of Caesar. Uninured to arms, and accustomed to obedience,
they looked for a fresh master, and sunk into servitude and
serfdom, from which they never emerged. Yet under the Romans they
had thriven and increased in material wealth; the island abounded
in numerous flocks and herds; and agriculture, which was encouraged
by the Romans, flourished. This wealth was by one of the
temptations to the invaders, who seized not only upon the movable
wealth of the natives, but also upon the land, and divided it among
themselves.
The warlike portion of the aboriginal inhabitants appear to have
joined the Cymri and retired westward. Their system of landholding
was non-feudal, inasmuch as each man's land was divided among all
his sons. One of the laws of Hoel Dha, King of Wales in the tenth
century, decreed "that the youngest son shall have an equal share
of the estate with the eldest son, and that when the brothers have
divided their father's estate among them, the youngest son shall
have the best house with all the office houses; the implements of
husbandry, his father's kettle, his axe for cutting wood, and his
knife; these three last things the father cannot give away by gift,
nor leave by his last will to any but his youngest son, and if they
are pledged they shall be redeemed." It may not be out of place
here to say that this custom continued to exist in Wales; and on
its conquest Edward I. ordained, "Whereas the custom is otherwise
in Wales than England concerning succession to an inheritance,
inasmuch as the inheritance is partible among the heirs-male, and
from time whereof the memory of man is not to the contrary hath
been partible, Our Lord the King will not have such custom
abrogated, but willeth that inheritance shall remain partible among
like heirs as it was wont to be, with this exception that bastards
shall from henceforth not inherit, and also have portions with the
lawful heirs; and if it shall happen that any inheritance should
hereafter, upon failure of heirs-male, descend to females, the
lawful heirs of their ancestors last served thereof. We will, of
our especial grace, that the same women shall have their portions
thereof, although this be contrary to the custom of Wales before
used."
The land system of Wales, so recognized and regulated by Edward I.,
remained unchanged until the reign of the first Tudor monarch. Its
existence raises the presumption that the aboriginal system of
landholding in England gave each son a share of his father's land,
and if so, it did not correspond with the Germanic system described
by Caesar, nor with the tribal system of the Celts in Ireland, nor
with the feudal system subsequently introduced.
The polity of the Romans, which endured in Gaul, Spain, and Italy,
and tinged the laws and usages of these countries after they had
been occupied by the Goths, totally disappeared in England; and
even Christianity, which partially prevailed under the Romans, was
submerged beneath the flood of invasion. Save the material evidence
of the footprints of "the masters of the world" in the Roman roads,
Roman wall, and some other structures, there is no trace of the
Romans in England. Their polity, laws, and language alike vanished,
and did not reappear for centuries, when their laws and language
were reimported.
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