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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.

I should not be disposed to estimate the population of England and
Wales, at the retirement of the Romans, at more than 1,500,000. They
were like a flock of sheep without masters, and, deprived of the
watch-dogs which over-awed and protected them, fell an easy prey to the
invaders.





III. THE SCANDINAVIANS.


The Roman legions and the outlying semi-military settlements along the
Rhine and the Danube, forming a cordon reaching from the German Ocean to
the Black Sea, kept back the tide of barbarians, but the volume of
force accumulated behind the barrier, and at length it poured in an
overwhelming and destructive tide over the fair and fertile provinces
whose weak and effeminate people offered but a feeble resistance to the
robust armies of the north. The Romans, under the instruction of Caesar
and Tacitus, had a faint idea of the usages of the people inhabiting the
verge that lay around the Roman dominions, but they had no knowledge
of the influences that prevailed in "the womb of nations," as Central
Europe appeared to the Latins, who saw emerging therefrom hosts of
warriors, bearing with them their wives, their children, and their
portable effects, determined to win a settlement amid the fertile
regions owned and improved by the Romans.

These incursions were not colonization in the sense in which Rome
understood it; they were the migrations of a people, and were as
full, as complete, and as extensive as the Israelitish invasion of
Canaan--they were more destructive of property, but less fatal to life.
These migratory hosts left a desert behind them, and they either gained
a settlement or perished. The Roman colonies preserved their connection
with the parent stem, and invoked aid when in need; but the barbarian
hosts had no home, no reserves. Other races, moving with similar intent,
settled on the land they had vacated. These brought their own social
arrangements, and it is very difficult to connect the land system
established by the aborigines with the system which, after a lapse of
some hundreds of years, was found to prevail in another tribe or nation
which had occupied the region that had been vacated.

Neither Caesar nor Tacitus gives us any idea of the habits or usages
of the people who lived north of the Belgae. They had no notion of
Scandinavia nor of Sclavonia. The Walhalla of the north, with its
terrific deities, was unknown to them; and I am disposed to think that
we shall look in vain among the customs of the Teutons for the basis
from whence came the polity established in England by the invaders of
the fifth century. The ANGLO-SAXONs came from a region north of the
Elbe, which we call Schleswig--Holstein. They were kindred to the
Norwegians and the Danes, and of the family of the sea robbers; they
were not Teutons, for the Teutons were not and are not sailors. The
Belgae colonized part of the coast--i.e., the settlers maintained a
connection with the mainland; but the Angles, the Saxons, and the Jutes
did not colonize, they migrated; they left no trace of their occupancy
in the lands they vacated. Each separate invasion was the settlement of
a district; each leader aspired to sovereignty, and was supreme in
his own domains; each claimed descent from Woden, and, like Romulus or
Alexander, sought affinity with the gods. Each member of the Heptarchy
was independent of, and owed no allegiance to, the other members; and
marriage or conquest united them ultimately into one kingdom.

The primary institutions were moulded by time and circumstance, and the
state of things in the eleventh century was as different from that of
the fifth as those of our own time differ from the rule of Richard II.
Yet one was as much an outgrowth of its predecessor as the other.

Attempts have been made, with considerable ingenuity, to connect races
with each other by peculiar characteristics, but human society has the
same necessities, and we find great similarity in various divisions of
society. At all times, and in all nations, society resolved itself into
the upper, middle, and lower classes. Rome had its Nobles, Plebeians,
and Slaves; Germany its Edhilingi, Frilingi, and Lazzi; England its
Eaorls, Thanes, and Ceorls. It would be equally cogent to argue that,
because Rome had three classes and England had three classes, the latter
was derived from the former, as to conclude that, because Germany had
three classes, therefore English institutions were Teutonic. If the
invasion of the fifth century were Teutonic we should look for similar
nomenclature, but there is as great a dissimilarity between the English
and German names of the classes as between the former and those of Rome.

The Germanic MARK system has no counterpart in the land system
introduced into England by the ANGLO-SAXONs. If village communities
existed in England, it must have been before the invasion of the Romans.
The German system, as described by Caesar, was suited to nomads--to
races on the wing, who gave to no individual possession for more than
a year, that there might be no home ties. The mark system is of a later
date, and was evidently the arrangement of other races who permanently
settled themselves upon the lands vacated by the older nations. And I
may suggest whether, as these lands were originally inhabited by the
Celts, the conquerors did not adopt the system of the conquered.

Even in the nomenclature of FEUDALISM, introduced into England in the
fifth century, we are driven back to Scandinavia for an explanation.
The word FEUDAL as applied to land has a Norwegian origin, from which
country came Rollo, the progenitor of William the Norman. Pontoppidan
("History of Norway," p.290) says "The ODHALL, right of Norway, and
the UDALL, right of Finland, came from the words 'Odh,' which signifies
PROPRIETORS, and 'all,' which means TOTUM. A transposition of these
syllables makes ALL ODH, or ALLODIUM, which means absolute property.
FEE, which means stipend or pay, united with OTH, thus forming FEE-OTH
or FEODUM, denoting stipendiary property. Wacterus states that the word
ALLODE, ALLODIUM, which applies to land in Germany, is composed of AN
and LOT--i.e., land obtained by lot.

I therefore venture the opinion that the settlement of England in
the fifth and sixth centuries was not Teutonic or Germanic, but
SCANDINAVIAN.

The lands won by the swords of all were the common property of all; they
were the lands of the people, FOLC-LAND; they were distributed by lot
at the FOLC-GEMOT; they were ODH-ALL lands; they were not held of
any superior nor was there any service save that imposed by the common
danger. The chieftains were elected and obeyed, because they represented
the entire people. Hereditary right seems to have been unknown. The
essence of feudalism WAS A LIFE ESTATE, the land reverted either to the
sovereign or to the people upon the death of the occupant. At a later
period the monarch claimed the power of confiscating land, and of giving
it away by charter or deed; and hence arose the distinction between
FOLC-LAND and BOC-LAND (the land of the book or charter), a distinction
somewhat similar to the FREEHOLD and COPYHOLD tenures of the present
day. King Alfred the Great bequeathed "his BOC-LAND to his nearest
relative; and if any of them have children it is more agreeable to me
that it go to those born on the male side." He adds, "My grandfather
bequeathed his land on the spear side, not on the spindle side;
therefore if I have given what he acquired to any on the female side,
let my kinsman make compensation."

The several ranks were thus defined by Athelstane:

"1st. It was whilom in the laws of the English that the people went by
ranks, and these were the counsellors of the nation, of worship
worthy each according to his condition--'eorl,' 'ceorl,' 'thegur,' and
'theodia.'

"2d. If a ceorl thrived, so that he had fully five hides (600 acres) of
land, church and kitchen, bell-house and back gatescal, and special duty
in the king's hall, then he was thenceforth of thane-right worthy.

"3d. And if a thane thrived so that he served the king, and on his
summons rode among his household, if he then had a thane who him
followed, who to the king utward five hides, had, and in the king's hall
served his lord, and thence, with his errand, went to the king, he might
thenceforth, with his fore oath, his lord represent at various needs,
and his and his plant lawfully conduct wheresoever he ought.

"4th. And he who so prosperous a vicegerent had not, swore for himself
according to his right or it forfeited.

"5th. And if a 'thane' thrived so that he became an eorl, then was he
thenceforth of eorl-right worthy.

"6th. And if a merchant thrived so that he fared thrice over the
wide sea by his own means (or vessels), then was he thenceforth of
thane-right worthy."

The oath of fealty, as prescribed by the law of Edward and Guthrum, was
very similar to that used at a later period, and ran thus:

"Thus shall a man swear fealty: By the Lord, before whom this relic is
holy, I will be faithful and true, and love all that he loves, and shun
all that he shuns, according to God's law, and according to the world's
principles, and never by will nor by force, by word nor by work, do
aught of what is loathful to him, on condition that he me keep, as I am
willing to deserve, and all that fulfil, that our agreement was, when I
to him submitted and chose his will."

The Odh-all (noble) land was divided into two classes: the in-lands,
which were farmed by slaves under Bailiffs, and the out-lands, which
were let to ceorls either for one year or for a term. The rents were
usually paid in kind, and were a fixed proportion of the produce. Ina,
King of the West Saxons, fixed the rent of ten hides (1200 acres), in
the beginning of the eighth century, as follows: 10 casks honey, 12
casks strong ale, 30 casks small ale, 300 loaves bread, 2 oxen, 10
wedders, 10 geese, 20 hens, 10 chickens, 10 cheeses, 1 cask butter,
5 salmon, 20 lbs. forage, and 100 eels. In the reign of Edgar the
Peaceable (tenth century), land was sold for about four shillings of
the then currency per acre. The Abbot of Ely bought an estate about this
time, which was paid for at the rate of four sheep or one horse for each
acre.

The FREEMEN (LIBERI HOMINES) were a very numerous class, and all were
trained in the use of arms. Their FOLC-LAND was held under the penalty
of forfeiture if they did not take the field, whenever required for the
defence of the country. In addition, a tax, called Danegeld, was levied
at a rate varying from two shillings to seven shillings per hide of land
(120 acres); and in 1008, each owner of a large estate, 310 hides, was
called on to furnish a ship for the navy.

Selden ("Laws and Government of England," p. 34) thus describes the
FREEMEN among the Saxons, previous to the Conquest:

"The next and most considerable degree of all the people is that of the
FREEMEN, anciently called Frilingi, [Footnote: This is a Teutonic, not
an ANGLO-SAXON term; the ANGLO-SAXON word is Thane.] or Free-born, or
such as are born free from all yoke of arbitrary power, and from all law
of compulsion, other than what is made by their voluntary consent, for
all FREEMEN have votes in the making and executing of the general laws
of the kingdom. In the first, they differed from the Gauls, of whom
it is noted that the commons are never called to council, nor are much
better than servants. In the second, they differ from many free
people, and are a degree more excellent, being adjoined to the lords in
judicature, both by advice and power (consilium et authoritates adsunt),
and therefore those that were elected to that work were called Comites
ex plebe, and made one rank of FREEMEN for wisdom superior to the rest.
Another degree of these were beholden for their riches, and were called
Custodes Pagani, an honorable title belonging to military service, and
these were such as had obtained an estate of such value as that their
ordinary arms were a helmet, a coat of mail, and a gilt sword. The rest
of the FREEMEN were contented with the name of Ceorls, and had as sure
a title to their own liberties as the Custodes Pagani or the country
gentlemen had."

Land was liable to be seized upon for treason and forfeited; but even
after the monarchs had assumed the functions of the FOLC-GEMOT, they
were not allowed to give land away without the approval of the great
men; charters were consented to and witnessed in council. "There is
scarcely a charter extant," says Chief Baron Gilbert, "that is not proof
of this right." The grant of Baldred, King of Kent, of the manor of
Malling, in Sussex, was annulled because it was given without the
consent of the council. The subsequent gift thereof, by Egbert and
Athelwolf, was made with the concurrence and assent of the great men.
The kings' charters of escheated lands, to which they had succeeded by a
personal right, usually declared "that it might be known that what they
gave was their own."

Discussions have at various times taken place upon the question, "Was
the land-system of this period FEUDAL?" It engaged the attention of the
Irish Court of King's Bench, in the reign of Charles I., and was raised
in this way: James I. had issued "a commission of defective titles." Any
Irish owner, upon surrendering his land to the king, got a patent
which reconvened it on him. Wentworth (Lord Stafford) wished to SETTLE
Connaught, as Ulster had been SETTLED in the preceding reign, and, to
accomplish it, tried to break the titles granted under "the commission
of defective titles." Lord Dillon's case, which is still quoted as an
authority, was tried. The plea for the Crown alleged that the honor of
the monarch stood before his profit, and as the commissioners were only
authorized to issue patents to hold in capite, whereas they had given
title "to hold in capite, by knights' service out of Dublin Castle," the
grant was bad. In the course of the argument, the existence of feudal
tenures, before the landing of William of Normandy, was discussed,
and Sir Henry Spelman's views, as expressed in the Glossary, were
considered. The Court unanimously decided that feudalism existed in
England under the ANGLO-SAXONs, and it affirmed that Sir Henry Spelman
was wrong. This decision led Sir Henry Spelman to write his "Treatise on
Feuds," which was published after his death, in which he reasserted
the opinion that feudalism was introduced into England at the Norman
invasion. This decision must, however, be accepted with a limitation;
I think there was no separate order of NOBILITY under the ANGLO-SAXON
rule. The king had his councillors, but there appears to have been no
order between him and the FOLC-GEMOT. The Earls and the Thanes met with
the people, but did not form a separate body. The Thanes were country
gentleman, not senators. The outcome of the heptarchy was the Earls or
Ealdermen; this was the only order of nobility among the Saxons; they
corresponded to the position of lieutenants of counties, and were
appointed for life. In 1045 there were nine such officers; in 1065 there
were but six. Harold's earldom, at the former date, comprised Norfolk,
Suffolk, Essex, and Middlesex; and Godwin's took in the whole south
coast from Sandwich to the Land's End, and included Kent, Sussex,
Hampshire, Wilts, Devonshire, and Cornwall. Upon the death of Godwin,
Harold resigned his earldom, and took that of Godwin, the bounds being
slightly varied. Harold retained his earldom after he became king, but
on his death it was seized upon by the Conqueror, and divided among his
followers.

The Crown relied upon the LIBERI HOMINES or FREEMEN. The country was not
studded with castles filled with armed men. The HOUSE of the Thane was
an unfortified structure, and while the laws relating to land were, in
my view, essentially FEUDAL, the government was different from that
to which we apply the term FEUDALISM, which appears to imply baronial
castles, armed men, and an oppressed people.

I venture to suggest to some modern writers that further inquiry will
show them that FOLC-LAND was not confined to commonages, or unallotted
portions, but that at the beginning it comprised all the land of the
kingdom, and that the occupant did not enjoy it as owner-in-severalty;
he had a good title against his fellow subjects, but he held under the
FOLC-GEMOT, and was subject to conditions. The consolidation of the
sovereignty, the extension of laws of forfeiture, the assumption by
the kings of the rights of the popular assemblies, all tended to the
formation of a second set of titles, and BOC-LAND became an object of
ambition. The same individual appears to have held land by both titles,
and to have had greater powers over the latter than over the former.

Many of those who have written on the subject seem to me to have failed
to grasp either the OBJECT or the GENIUS of FEUDALISM. It was the device
of conquerors to maintain their possessions, and is not to be found
among nations, the original occupiers of the land, nor in the conquests
of states which maintained standing armies. The invading hosts elected
their chieftain, they and he had only a life use of the conquests. Upon
the death of one leader another was elected, so upon the death of the
allottee of a piece of land it reverted to the state. The GENIUS of
FEUDALISM was life ownership and non-partition. Hence the oath of fealty
was a personal obligation, and investiture was needful before the
new feudee took possession. The state, as represented by the king or
chieftain, while allowing the claim of the family, exercised its right
to select the individual. All the lands were considered BENEFICIA,
a word which now means a charge upon land, to compensate for duties
rendered to the state. Under this system, the feudatory was a commander,
his residence a barrack, his tenants soldiers; it was his duty to keep
down the aborigines, and to prevent invasion. He could neither sell,
give, nor bequeath his land. He received the surplus revenue as payment
for personal service, and thus enjoyed his BENEFICE. Judged in this way,
I think the feudal system existed before the Norman Conquest. Slavery
and serfdom undoubtedly prevailed. The country prospered under the
Scandinavians; and, from the great abundance of corn, William of
Poitiers calls England "the store-house of Ceres."





IV. THE NORMANS.


The invasion of William of Normandy led to results which have been
represented by some writers as having been the most momentous in English
history. I do not wish in any way to depreciate their views, but it
seems to me not to have been so disastrous to existing institutions, as
the Scandinavian invasion, which completely submerged all former usages.
No trace of Roman occupation survived the advent of the ANGLO-SAXONs;
the population was reduced to and remained in the position of serfs,
whereas the Norman invasion preserved the existing institutions of the
nation, and subsequent changes were an outgrowth thereof.

When Edward the Confessor, the last descendant of Cedric, was on
his deathbed, he declared Harold to be his successor, but William of
Normandy claimed the throne under a previous will of the same monarch.
He asked for the assistance of his own nobles and people in the
enterprise, but they refused at first, on the ground that their feudal
compact only required them to join in the defence of their country,
and did not coerce them into affording him aid in a completely new
enterprise; and it was only by promising to compensate them out of the
spoils that he could secure their co-operation. A list of the number
of ships supplied by each Norman chieftain appears in Lord Lyttleton's
"History of Henry III." vol. i., appendix.

I need hardly remind you that the settlers in Normandy were from Norway,
or that they had been expelled from their native land in consequence of
their efforts to subvert its institutions, and to make the descent of
land hereditary, instead of being divisible among all the sons of the
former owner. Nor need I relate how they won and held the fair provinces
of northern France--whether as a fief of the French Crown or not, is an
open question. But I should wish you to bear in mind their affinity to
the ANGLO-SAXONs, to the Danes, and to the Norwegians, the family of Sea
Robbers, whose ravages extended along the coasts of Europe as far
south as Gibraltar, and, as some allege, along the Mediterranean. Some
questions have been raised as to the means of transport of the Saxons,
the Jutes, and the Angles, but they were fully as extensive as those by
which Rollo invaded France or William invaded England.

William strengthened his claim to the throne by his military success,
and by a form of election, for which there were many previous
precedents. Those who called upon him to ascend it alleged "that they
had always been ruled by legal power, and desired to follow in that
respect the example of their ancestors, and they knew of no one more
worthy than himself to hold the reins of government."

His alleged title to the crown, sanctioned by success and confirmed
by election, enabled him, in conformity with existing institutions, to
seize upon the lands of Harold and his adherents, and to grant them as
rewards to his followers. Such confiscation and gifts were entirely in
accord with existing usages, and the great alteration which took place
in the principal fiefs was more a change of persons than of law. A large
body of the aboriginal people had been, and continued to be, serfs or
villeins; while the mass of the FREEMEN (LIBERI HOMINES) remained in
possession of their holdings.

It may not be out of place here to say a few words about this important
class, which is in reality the backbone of the British constitution;
it was the mainstay of the ANGLO-SAXON monarchy; it lost its influence
during the civil wars of the Plantagenets, but reasserted its power
under Cromwell. Dr. Robertson thus draws the line between them and the
vassals:

"In the same manner Liber <DW25> is commonly opposed to Vassus or
Vassalus, the former denoting an allodial proprietor, the latter one who
held of a superior. These FREEMEN were under an obligation to serve
the state, and this duty was considered so sacred that FREEMEN were
prohibited from entering into holy orders, unless they obtained the
consent of the sovereign."

De Lolme, chap. i., sec. 5, says:

"The Liber <DW25>, or FREEMAN, has existed in this country from the
earliest periods, as well as of authentic as of traditionary history,
entitled to that station in society as one of his constitutional rights,
as being descended from free parents in contradistinction to 'villains,'
which should be borne in remembrance, because the term 'FREEMAN' has
been, in modern times, perverted from its constitutional signification
without any statutable authority." The LIBERI HOMINES are so described
in the Doomsday Book. They were the only men of honor, faith, trust,
and reputation in the kingdom; and from among such of these as were not
barons, the knights did choose jurymen, served on juries themselves,
bare offices, and dispatched country business. Many of the LIBERI
HOMINES held of the king in capite, and several were freeholders of
other persons in military service. Their rights were recognized and
guarded by the 55th William I.; [Footnote: "LV.--De Chartilari seu
Feudorum jure et Ingenuorum immunitate. Volumus etiam ac firmiter
praecipimus et concedimus ut omnes LIBERI HOMINES totius Monarchiae
regni nostri praedicti habeant et teneant terras suas et possessiones
suas bene et in pace, liberi ab omni, exactione iniusta et ab omni
Tallagio: Ita quod nihil ab eis exigatur vel capiatur nisi servicium
suum liberum quod de iure nobis facere debent et facere tenentur
et prout statutum est eis et illis a nobis datum et concessum iure
haereditario imperpetuum per commune consilium totius regni nostri
praeicti."] it is entitled:

"CONCERNING CHEUTILAR OR FEUDAL RIGHTS, AND THE IMMUNITY OF FREEMEN.

"We will also, and strictly, enjoin and concede that all FREEMEN (LIBERI
HOMINES) of our whole kingdom aforesaid, have and hold their land and
possessions well and in peace, free from every unjust exaction and from
Tallage, so that nothing be exacted or taken from them except their free
service, which of right they ought to do to us and are bound to do, and
according as it was appointed (statutum) to them, and given to them by
us, and conceded by hereditary right for ever, by the common council
(FOLC-GEMOT} of our whole realm aforesaid."

These FREEMEN were not created by the Norman Conquest, they existed
prior thereto; and the laws, of which this is one, are declared to be
the laws of Edward the Confessor, which William re-enacted. Selden, in
"The Laws and Government of England," p. 34, speaks of this law as the
first Magna Charta. He says:

"Lastly, the one law of the kings, which may be called the first MAGNA
CHARTA in the Norman times (55 William I.), by which the king reserved
to himself, from the FREEMEN of this kingdom, nothing but their free
service, in the conclusion saith that their lands were thus granted to
them in inheritance of the king by the COMMON COUNCIL (FOLC-GEMOT) of
the whole kingdom; and so asserts, in one sentence, the liberty of the
FREEMEN, and of the representative body of the kingdom."

He further adds:

"The freedom of an ENGLISHMAN consisteth of three particulars: first, in
OWNERSHIP; second, in VOTING ANY LAW, whereby ownership is maintained;
and, thirdly, in having an influence upon the JUDICIARY POWER that must
apply the law. Now the English, under the Normans, enjoyed all this
freedom with each man's own particular, besides what they had in bodies
aggregate. This was the meaning of the Normans, and they published the
same to the world in a fundamental law, whereby is granted that all
FREEMEN shall have and hold their lands and possessions in hereditary
right for ever; and by this they being secured from forfeiture, they are
further saved from all wrong by the same law, which provideth that they
shall hold them well or quietly, and in peace, free from all unjust tax,
and from all Tallage, so as nothing shall be exacted nor taken but their
free service, which, by right, they are bound to perform."

This is expounded in the law of Henry I., cap. 4, to mean that no
tribute or tax shall be taken but what was due in the Confessor's time,
and Edward II. was sworn to observe the laws of the Confessor.

The nation was not immediately settled. Rebellions arose either from the
oppression of the invaders or the restlessness of the conquered; and,
as each outburst was put down by force, there were new lands to be
distributed among the adherents of the monarch; ultimately there were
about 700 chief tenants holding IN CAPITE, but the nation was divided
into 60,215 knights' fees, of which the Church held 28,115. The king
retained in his own hands 1422 manors, besides a great number of
forests, parks, chases, farms, and houses, in all parts of the kingdom;
and his followers received very large holdings.

Among the Saxon families who retained their land was one named
Shobington in Bucks. Hearing that the Norman lord was coming to whom
the estate had been gifted by the king, the head of the house armed his
servants and tenants, preparing to do battle for his rights; he cast up
works, which remain to this day in grassy mounds, marking the sward of
the park, and established himself behind them to await the despoiler's
onset. It was the period when hundreds of herds of wild cattle roamed
the forest lands of Britain, and, failing horses, the Shobingtons
collected a number of bulls, rode forth on them, and routed the Normans,
unused to such cavalry. William heard of the defeat, and conceived a
respect for the brave man who had caused it; he sent a herald with a
safe conduct to the chief, Shobington, desiring to speak with him. Not
many days after, came to court eight stalwart men riding upon bulls, the
father and seven sons. "If thou wilt leave me my lands, O king," said
the old man, "I will serve thee faithfully as I did the dead Harold."
Whereupon the Conqueror confirmed him in his ownership, and named the
family Bullstrode, instead of Shobington.

Sir Martin Wright, in his "Treatise on Tenures," published in 1730, p.
61, remarks:

"Though it is true that the possessions of the Normans were of a sudden
very great, and that they received most of them from the hands of
William I., yet it does not follow that the king took all the lands of
England out of the hands of their several owners, claiming them as
his spoils of war, or as a parcel of a conquered country; but, on the
contrary, it appears pretty plain from the history of those times that
the king either had or pretended title to the crown, and that his
title, real or pretended, was established by the death of Harold,
which amounted to an unquestionable judgment in his favor. He did not
therefore treat his opposers as enemies, but as traitors, agreeably to
the known laws of the kingdom which subjected traitors not only to the
loss of life but of all their possessions."

He adds (p. 63):

"As William I. did not claim to possess himself of the lands of
England as the spoils of conquest, so neither did he tyrannically and
arbitrarily subject them to feudal dependence; but, as the fedual law
was at that time the prevailing law of Europe, William I., who had
always governed by this policy, might probably recommend it to our
ancestors as the most obvious and ready way to put them upon a footing
with their neighbors, and to secure the nation against any future
attempts from them. We accordingly find among the laws of William I. a
law enacting feudal law itself, not EO NOMINE, but in effect, inasmuch
as it requires from all persons the same engagements to, and introduces
the same dependence upon, the king as supreme lord of all the lands of
England, as were supposed to be due to a supreme lord by the feudal law.
The law I mean is the LII. law of William I."

This view is adopted by Sir William Blackstone, who writes (vol. ii., p.
47):

"From the prodicious slaughter of the English nobility at the battle
of Hastings, and the fruitless insurrection of those who survived, such
numerous forfeitures had accrued that he (William) was able to reward
his Norman followers with very large and extensive possessions, which
gave a handle to monkish historians, and such as have implicitly
followed them to represent him as having by the right of the sword,
seized upon all the lands of England, and dealt them out again to his
own favorites--a supposition grounded upon a mistaken sense of the
word conquest, which in its feudal acceptation signifies no more
than acquisition, and this has led many hasty writers into a strange
historical mistake, and one which, upon the slightest examination, will
be found to be most untrue.

"We learn from a Saxon chronicle (A.D. 1085), that in the nineteenth
year of King William's reign, an invasion was apprehended from Denmark;
and the military constitution of the Saxons being then laid aside, and
no other introduced in its stead, the kingdom was wholly defenceless;
which occasioned the king to bring over a large army of Normans and
Britons who were quartered upon, and greatly oppressed, the people. This
apparent weakness, together with the grievances occasioned by a foreign
force, might co-operate with the king's remonstrance, and better incline
the nobility to listen to his proposals for putting them in a position
of defence. For, as soon as the danger was over, the king held a
great council to inquire into the state of the nation, the immediate
consequence of which was the compiling of the great survey called the
Doomsday Book, which was finished the next year; and in the end of that
very year (1086) the king was attended by all his nobility at Sarum,
where the principal landholders submitted their lands to the yoke of
military tenure, and became the king's vassals, and did homage and
fealty to his person."

Mr. Henry Hallam writes:

"One innovation made by William upon the feudal law is very deserving of
attention. By the leading principle of feuds, an oath of fealty was due
from the vassal to the lord of whom he immediately held the land, and
no other. The King of France long after this period had no feudal, and
scarcely any royal, authority over the tenants of his own vassals; but
William received at Salisbury, in 1085, the fealty of all landholders in
England, both those who held in chief and their tenants, thus breaking
in upon the feudal compact in its most essential attribute--the
exclusive dependence of a VASSAL upon his lord; and this may be reckoned
among the several causes which prevented the continental notions of
independence upon the Crown from ever taking root among the English
aristocracy."

A more recent writer, Mr. FREEMAN ("History of the Norman Conquest,"
published in 1871, vol. iv., p. 695), repeats the same idea, though
not exactly in the same words. After describing the assemblage which
encamped in the plains around Salisbury, he says:

"In this great meeting a decree was passed, which is one of the most
memorable pieces of legislation in the whole history of England. In
other lands where military tenure existed, it was beginning to be held
that he who plighted his faith to a lord, who was the man of the king,
was the man of that lord only, and did not become the man of the king
himself. It was beginning to be held that if such a man followed his
immediate lord to battle against the common sovereign, the lord might
draw on himself the guilt of treason, but the men that followed him
would be guiltless. William himself would have been amazed if any vassal
of his had refused to draw his sword in a war with France on the score
of duty toward an over-lord. But in England, at all events, William
was determined to be full king over the whole land, to be immediate
sovereign and immediate lord of every man. A statute was passed that
every FREEMAN in the realm should take the oath of fealty to King
William."

Mr. FREEMAN quotes Stubbs's "Select Charters," p. 80, as his authority.
Stubbs gives the text of that charter, with ten others. He says: "These
charters are from 'Textus Roffensis,' a manuscript written during the
reign of Henry I.; it contains the sum and substance of all the legal
enactments made by the Conqueror independent of his confirmation of the
earlier laws." It is as follows: "Statuimus etiam ut OMNIS LIBER <DW25>
feodere et sacramento affirmet, quod intra et extra Angliam Willelmo
regi fideles esse volunt, terras et honorem illius omni fidelitate cum
eo servare et eum contra inimicos defendere."

It will be perceived that Mr. Hallam reads LIBER <DW25> as "vassal." Mr.
FREEMAN reads them as "FREEMAN," while the older authority, Sir Martin
Wright, says: "I have translated the words LIBERI HOMINES, 'owners of
land,' because the sense agrees best with the tenor of the law."

The views of writers of so much eminence as Sir Martin Wright, Sir
William Blackstone, Mr. Henry Hallam, and Mr. FREEMAN, are entitled to
the greatest respect and consideration, and it is with much diffidence I
venture to differ from them. The three older writers appear to have had
before them the LII of William I., the latter the alleged charter
found in the "Textus Roffensis;" but as they are almost identical in
expression, I treat the latter as a copy of the former, and I do not
think it bears out the interpretation sought to be put upon it--that it
altered either the feudalism of England, or the relation of the vassal
to his lord; and it must be borne in mind that not only did William
derive his title to the crown from Edward the Confessor, but he
preserved the apparent continuity, and re-enacted the laws of
his predecessor. Wilkins' "Laws of the ANGLO-SAXONs and Normans,"
republished in 1840 by the Record Commissioners, gives the following
introduction:

"Here begin the laws of Edward, the glorious king of England.

"After the fourth year of the succession to the kingdom of William of
this land, that is England, he ordered all the English noble and wise
men and acquainted with the law, through the whole country, to be
summoned before his council of barons, in order to be acquainted with
their customs, Having therefore selected from all the counties twelve,
they were sworn solemnly to proceed as diligently as they might to write
their laws and customs, nothing omitting, nothing adding, and nothing
changing."

Then follow the laws, thirty-nine in number, thus showing the continuity
of system, and proving that William imposed upon his Norman followers
the laws of the ANGLO-SAXONs. They do not include the LII. William
I., to which I shall refer hereafter. I may, however, observe that the
demonstration at Salisbury was not of a legislative character; and that
it was held in conformity with ANGLO-SAXON usages. If, according to
Stubbs, the ordinance was a charter, it would proceed from the king
alone. The idea involved in the statements of Sir Martin Wright, Mr.
Hallam, and Mr. FREEMAN, that the VASSAL OF A LORD was then called on
to swear allegiance to the KING, and that it altered the feudal bond in
England, is not supported by the oath of vassalage. In swearing fealty,
the vassal knelt, placed his hands between those of his lord's, and
swore:

"I become your man from this day forward, of life and limb, and of
earthly worship, and unto you shall be true and faithful, and bear you
faith for the tenements at that I claim to hold of you, saving the faith
that I owe unto our Sovereign Lord the King."

This shows that it was unnecessary to call vassals to Salisbury to
swear allegiance. The assemblage was of the same nature and character as
previous meetings. It was composed of the LIBERI HOMINES, the FREEMEN,
described by the learned John Selden (ante, p. 10), and by Dr. Robertson
and De Lolme (ante, pp. 12, 13).

But there is evidence of a much stronger character, which of itself
refutes the views of these writers, and shows that the Norman system,
at least during the reign of William I., was a continuation of that
existing previous to his succession to the throne; and that the meeting
at Salisbury, so graphically portrayed, did not effect that radical
change in the position of English landholders which has been stated.
I refer to the works of EADMERUS; he was a monk of Canterbury who
was appointed Bishop of St. Andrews, and declined or resigned
the appointment because the King of Scotland refused to allow his
consecration by the Archbishop of Canterbury. His history includes the
reigns of William I., William II., and Henry I., from 1066 to 1122, and
he gives, at page 173, the laws of Edward the Confessor, which William
I. gave to England; they number seventy-one, including the LII. law
quoted by Sir Martin Wright. The introduction to these laws is in Latin
and Norman-French, and is as follows:

"These are the laws and customs which King William granted to the whole
people of England after he had conquered the land, and they are those
which KING EDWARD HIS PREDECESSOR observed before him."

     [Footnote: The laws of William are given in a work entitled
     "Eadmeri Monachi Cantuariensis Historia Novorum," etc. It
     includes the reigns of William I. and II., and Henry I.,
     from 1066 to 1122, and is edited by John Selden. Page 173
     has the following:

     "Hae sunt Leges et Consuetudines quas Willielmus Rex
     concessit universo Populo Angliae post subactam terram.
     Eaedum sunt quas Edwardus Rex cognatus ejus obscruauit ante
     eum.

     "Ces sont les leis et les Custums que le Rui people de
     Engleterre apres le Conquest de le Terre. Ice les meismes
     que le Rui Edward sun Cosin tuit devant lui.

     "LII.

     "De fide et obsequio erga Regnum.

     "Statuimus etiam ut omnes liiben homines foedere et
     sacramento affirment quod intra et extra universum regnum
     Anglias (quod olim vocabatur regnum Britanniae) Willielmo
     suo domino fideles esse volunt, terras et honores illins
     fidelitate ubique servare cum eo et contra inimicos et
     alienigonas defendere."]

This simple statement gets rid of the theory of Sir Martin Wright, of
Sir William Blackstone, of Mr. Hallam, and of Mr. FREEMAN, that William
introduced a new system, and that he did so either as a new feudal law
or as an amendment upon the existing feudalism. The LII. law, quoted by
Wright, is as follows:

"We have decreed that all FREE MEN should affirm on oath, that both
within and without the whole kingdom of England (which is called
Britain) they desire to be faithful to William their lord, and
everywhere preserve unto him his land and honors with fidelity, and
defend them against all enemies and strangers."

Eadmerus, who wrote in the reign of Henry I., gives the LII. William I.
as a confirmatory law. The charter given by Stubbs is a contraction
of the law given by Eadmerus. The former uses the words OMNES LIBERI
HOMINES; the latter, the words OMNIS LIBERI <DW25>. Those interested can
compare them, as I shall give the text of each side by side.

Since the paper was read, I have met with the following passage in
Stubbs's "Constitutional History of England," vol. i., p. 265:

"It has been maintained that a formal and definitive act, forming the
initial point of the feudalization of England, is to be found in a
clause of the laws, as they are called, of the Conqueror, which directs
that every FREEMAN shall affirm, by covenant and oath, that 'he will be
faithful to King William within England and without, will join him
in preserving his land with all fidelity, and defend him against his
enemies.' But this injunction is little more than the demand of the oath
of allegiance taken to the Anglo-Saxon kings, and is here required
not of every feudal dependant of the king, but of every FREEMAN or
freeholder whatsoever. In that famous Council of Salisbury, A. D, 1086,
which was summoned immediately after the making of the Doomsday survey,
we learn, from the 'Chronicle,' that there came to the king 'all his
witan and all the landholders of substance in England, whose vassals
soever they were, and they all submitted to him and became his men, and
swore oaths of allegiance that they would be faithful to him against all
others.' In the act has been seen the formal acceptance and date of the
introduction of feudalism, but it has a very different meaning. The oath
described is the oath of allegiance, combined with the act of homage,
and obtained from all landowners whoever their feudal lord might be.
It is a measure of precaution taken against the disintegrating power
of feudalism, providing a direct tie between the sovereign and all
freeholders which no inferior relations existing between them and the
mesne lords would justify them in breaking."

I have already quoted from another of Stubbs's works, "Select Charters,"
the charter which he appears to have discovered bearing upon this
transaction, and now copy the note, giving the authorities quoted
by Stubbs, with reference to the above passage. He appears to have
overlooked the complete narration of the alleged laws of William I.,
given by Eadmerus, to which I have referred. The note is as follows:

"Ll. William I., 2, below note; see Hovenden, ii., pref. p. 5, seq.,
where I have attempted to prove the spuriousness of the document called
the Charter of William I., printed in the ancient 'Laws' ed. Thorpe, p.
211. The way in which the regulation of the Conqueror here referred
to has been misunderstood and misused is curious. Lambarde, in the
'Archaionomia,' p. 170, printed the false charter in which this genuine
article is incorporated as an appendiz to the French version of the
Conqueror's laws, numbering the clauses 51 to 67; from Lambarde,
the whole thing was transferred by Wilkins into his collection of
ANGLO-SAXON laws. Blackstone's 'Commentary,' ii. 49, suggested that
perhaps the very law (which introduced feudal tenures) thus made at the
Council of Salisbury is that which is still extant and couched in these
remarkable words, i. e., the injunction in question referred to by
Wilkins, p. 228 Ellis, in the introduction to 'Doomsday,' i. 16,
quotes Blackstone, but adds a reference to Wilkins without verifying
Blackstone's quotation from his collection of laws, substituting for
that work the Concilia, in which the law does not occur. Many modern
writers have followed him in referring the enactment of the article
to the Council of Salisbury. It is well to give here the text of both
passages; that in the laws runs thus: 'Statuimus etiam ut omnis liber
<DW25> foedere et sacremento affirmet, quod intra et extra Angliam
Willelmo regi fideles esse volunt, terras et honorem illius omni
fidelitate eum eo servare et ante eum contra inimicos defendere' (Select
Charters, p. 80). the homage done at Salisbury is described by Florence
thus: 'Nec multo post mandavit ut Archiepiscopi episcopi, abbates,
comitas et barones et vicecomitas cum suis militibus die Kalendarum
Augustarem sibi occurent Saresberiae quo cum venissent milites eorem
sibi fidelitatem contra omnes homines jurare coegit.' The 'Chronicle'
is a little more full: 'Thaee him comon to his witan and ealle tha
Landsittende men the ahtes waeron ofer eall Engleland waeron thaes
mannes men the hi waeron and ealle hi bugon to him and waeron his men,
and him hold athas sworon thaet he woldon ongean ealle other men him
holde beon.'"

Mr. Stubbs had, in degree, adopted the view at which I had arrived, that
the law or charter of William I. was an injunction to enforce the oath
of allegiance, previously ordered by the laws of Edward the Confessor,
to be taken by all FREEMEN, and that it did not relate to vassals, or
alter the existing feudalism.

As the subject possesses considerable interest for the general reader
as well as the learned historian, I think it well to place the two
authorities side by side, that the text may be compared:

LII. William I., as given by Eadments. "De fide et obsequio erga Regnum.

"Statuimus etiam ut omnes LIBERI HOMINES foedere et sacramento affirment
quod intra et extra univereum regnum Anglise (quod olim vocabatur regnum
Britanniae) Wilhielmo suo domino fideles ease volunt, terras et honores
ilius fidelitate ubique servare cum eo et contra inimicos et alienigenas
defendere."

Charter from Textus Roffensis, given by Mr. Stubbs.

"Statuimus etiam ut omnis liber <DW25> feodere et sacramento affirmet,
quod intra et extra Angliam. Willelmo regi fideles ease volunt, terras
et honorem illius omni fidelitate cum eo servare et ante eum contra
inimicos defendere."

I think the documents I have quoted show that Sir Martin Wright, Sir
William Blackstone, and Messrs. Hallam and FREEMAN, labored under a
mistake in supposing that William had introduced or imposed a new feudal
law, or that the vassals of a lord swore allegiance to the king. The
introduction to the laws of William I. shows that it was not a new
enactment, or a Norman custom introduced into England, and the law
itself proves that it relates to FREEMEN, and not to vassals.

The misapprehension of these authors may have arisen in this way:
William I. had two distinct sets of subjects. The NORMANS, who had
taken the oath of allegiance on obtaining investiture, and whose
retinue included vassals; and the ANGLO-SAXONS, among whom vassalage was
unknown, who were FREEMAN (LIBERI HOMINES) as distinguished from serfs.
The former comprised those in possesion of Odhal (noble) land, whether
held from the crown or its tenants. It was quite unnecessary to convoke
the Normans and their vassals, while the assemblage of the Saxons--OMNES
LIBERI HOMINES--was not only to conformity with the laws of Edward
the Confessor, but was specially needful when a foreigner had possesed
himself of the throne.

I have perhaps dwelt to long upon this point, but the error to which I
have referred has been adopted as if it was an unquestioned fact, and
has passed into our school-books and become part of the education given
to the young, and therefore it required some examination.

I believe that a very large portion of the land in England did not
change hands at that period, nor was the position of either SERFS
or VILLEINS changed. The great alteration lay in the increase in the
quantity of BOC-LAND. Much of the FOLC-LAND was forfeited and seized
upon, and as the king claimed the right to give it away, it was called
TERRA REGIS. The charter granted by King William to Alan Fergent, Duke
of Bretagne, of the lands and towns, and the rest of the inheritance of
Edwin, Earl of Yorkshire, runs thus:

"Ego Guilielmus cognomine Bastardus, Rex Anglise do et concede tibi
nepoti meo Alano Brittanias Comiti et hseredibus tuis imperpetuum omnes
villas et terras qua nuper fuerent Comitis Edwini in Eborashina cum
feodis militise et aliis libertatibus et consuetudinibus ita libere et
honorifice sicut idem Edwinus eadem tenuit.

"Data obsidione coram civitate Eboraci."

This charter does not create a different title, but gives the lands as
held by the former possessor. The monarch assumed the function of the
fole-gemot, but the principle remained--the feudee only became tenant
for life. Each estate reverted to the Crown on the death of him who held
it; but, previous to acquiring possession, the new tenant had to cease
to be his own "man," and became the "man" of his superior. This act was
called "homage," and was followed by "investiture." In A.D. 1175, Prince
Henry refused to trust himself with his father till his homage had been
renewed and accepted, for it bound the superior to protect the inferior.
The process is thus described by De Lolme (chap, ii., sec. 1):

"On the death of the ancestor, lands holden by 'knight's service' and
by 'grand sergeantcy' were, upon inquisition finding the tenure and
the death of the ancestor, seized into the king's hands. If the heir
appeared by the inquisition to be within the age of twenty-one
years, the King retained the lands till the heir attained the age of
twenty-one, for his own profit, maintaining and educating the heir
according to his rank. If the heir appeared by the inquisition to have
attained twenty-one, he was entitled to demand livery of the lands by
the king's officers on paying a relief and doing fealty and homage. The
minor heir attaining twenty-one, and proving his age, was entitled to
livery of his lands, on doing fealty and homage, without paying any
relief."

The idea involved is, that the lands Were HELD, and NOT OWNED, and that
the proprietary right lay in the nation, as represented by the king.
If we adopt the poetic idea of the Brehon code, that "land is perpetual
man," then HOMAGE for land was not a degrading institution. But it is
repugnant to our ideas to think that any man can, on any ground, or for
any consideration, part with his manhood, and become by homage the "man"
of another.

The Norman chieftains claimed to be peers of the monarch, and to sit in
the councils of the nation, as barons-by-tenure and not by patent.
This was a decided innovation upon the usages of the Anglo-Saxons, and
ultimately converted the Parliament, the FOLC-GEMOT, into two branches.
Those who accompanied the king stood in the same position as the
companions of Romulus, they were the PATRICIANS; those subsequently
called to the councils of the sovereign by patent corresponded with
the Roman NOBILES. No such patents were issued by any of the Norman
monarchs. But the insolence of the Norman nobles led to the attempt made
by the successors of the Conqueror to revive the Saxon earldoms as a
counterpoise. The weakness of Stephen enabled the greater fudges to
fortify their castles, and they set up claims against the Crown, which
aggravated the discord that arose in subsequent reigns.

The "Saxon Chronicles," p. 238, thus describes the oppressions of the
nobles, and the state of England in the reign of Stephen:

"They grievously oppressed the poor people with building castles, and
when they were built, filled them with wicked men, or rather devils, who
seized both men and women who they imagined had any money, threw them
into prison, and put them to more cruel tortures than the martyrs ever
endured; they suffocated some in mud, and suspended others by the feet,
or the head, or the thumbs, kindling fires below them. They squeezed the
heads of some with knotted cords till they pierced their brains, while
they threw others into dungeons swarming with serpents, snakes, and
toads."

The nation was mapped out, and the owners' names inscribed in the
Doomsday Book. There were no unoccupied lands, and had the possessors
been loyal and prudent, the sovereign would have had no lands, save his
own private domains, to give away, nor would the industrious have been
able to become tenants-in-fee. The alterations which have taken place in
the possession of land since the composition of the Book of Doom, have
been owing to the disloyalty or extravagance of the descendants of those
then found in possession.

Notwithstanding the vast loss of life in the contests following upon the
invasion, the population of England increased from 2,150,000 in 1066,
when William landed, to 3,350,000 in 1152, when the great-grandson of
the Conqueror ascended the throne, and the first of the Plantagenets
ruled in England.





V. THE PLANTAGENETS.


Whatever doubts may exist as to the influence of the Norman Conquest
upon the mass of the people--the FREEMEN, the ceorls, and the
serfs--there can be no doubt that its effect upon the higher classes was
very great. It added to the existing FEUDALISM--the system of Baronage,
with its concomitants of castellated residences filled with armed men.
It led to frequent contests between neighboring lords, in which the
liberty and rights of the FREEMEN were imperilled. It also eventuated
in the formation of a distinct order-the peerage--and for a time the
constitutional influence of the assembled people, the FOLC-GEMOT, was
overborne.

The principal Norman chieftains were barons in their own country, and
they retained that position in England, but their holdings in both were
feudal, not hereditary. When the Crown, originally elective, became
hereditary, the barons sought to have their possessions governed by the
same rule, to remove them from the class of TERRAREGIS (FOLC-LAND), and
to convert them into chartered land. Being gifts from the monarch, he
had the right to direct the descent, and all charters which gave land
to a man and his heirs, made each of them only a tenant for life; the
possessor was bound to hand over the estate undivided to the heir, and
he could neither give, sell, nor bequeath it. The land was BENEFICIA,
just as appointments in the Church, and reverted, as they do, to the
patron to be re-granted. They were held upon military service, and the
major barons, adopting the Saxon title Earl, claimed to be PEERS of
the monarch, and were called to the councils of the state as
barons-by-tenure. In reply to a QUO WARRANTO, issued to the Earl of
Surrey, in the reign of Edward I., he asserted that his ancestors had
assisted William in gaining England, and were equally entitled to
a share of the spoils. "It was," said he, "by their swords that his
ancestors had obtained their lands, and that by his he would maintain
his rights." The same monarch required the Earls of Hereford and Norfolk
to go over with his army to Guienne, and they replied, "The tenure of
our lands does not require us to do so, unless the king went in person."
The king insisted; the earls were firm. "By God, sir Earl," said Edward
to Hereford, "you shall go or hang." "By God, sir King," replied the
earl, "I will neither go nor hang." The king submitted and forgave his
warmth.

The struggle between the nobles and the Crown commenced, and was
continued, under varying circumstances. Each of the barons had a large
retinue of armed men under his own command, and the Crown was liable to
be overborne by a union of ambitious nobles. At one time the monarch had
to face them at Runnymede and yield to their demands; at another he was
able to restrain them with a strong hand. The Church and the barons,
when acting in union, proved too strong for the sovereign, and he had to
secure the alliance of one of these parties to defeat the views of the
other. The barons abused their power over the FREEMEN, and sought to
establish the rule "that every man must have a lord," thus reducing
them to a state of vassalage. King John separated the barons into two
classes--major and minor; the former should have at least thirteen
knights' fees and a third part; the latter remained country gentlemen.
The 20th Henry III., cap. 2 and 4, was passed to secure the rights of
FREEMEN, who were disturbed by the great lords, and gave them an appeal
to the king's courts of assize.

Bracton, an eminent lawyer who wrote in the time of Henry III., says:

"The king hath superiors--viz., God and the law by which he is made
king; also his court--viz., his earls and barons. Earls are the king's
associates, and he that hath an associate hath a master; and therefore,
if the king be unbridled, or (which is all one) without law, they ought
to bridle him, unless they will be unbridled as the king, and then the
commons may cry, Lord Jesus, pity us," etc.

An eminent lawyer, time of Edward I., writes:

"Although the king ought to have no equal in the land, yet because the
king and his commissioners can be both judge and party, the king ought
by right to have companions, to hear and determine in Parliament all
writs and plaints of wrongs done by the king, the queen, or their
children."

These views found expression in the coronation oath. Edward II. was
forced to swear:

"Will you grant and keep, and by your oath confirm to the people of
England the laws and customs to them, granted by the ancient kings of
England, your righteous and godly predecessors; and especially to the
clergy and people, by the glorious King St. Edward, your predecessor?"

The king's answer--"I do them grant and promise."

"Do you grant to hold and keep the laws and rightful customs which the
commonalty of your realm shall have chosen, and to maintain and enforce
them to the honor of God after your power?"

The king's answer--"I this do grant and promise."

I shall not dwell upon the event most frequently quoted with reference
to the era of the Plantagenets--I mean King John's "Magna Charta." It
was more social than territorial, and tended to limit the power of the
Crown, and to increase that of the barons. The Plantagenets had not
begun to call Commons to the House of Lords. The issue of writs was
confined to those who were barons-by-tenure, the PATRICIANS of the
Norman period. The creation of NOBLES was the invention of a later age.
The baron feasted in his hall, while the slave grovelled in his cabin.
Bracton, the famous lawyer of the time of Henry III., says: "All the
goods a slave acquired belonged to his master, who could take them from
him whenever he pleased," therefore a man could not purchase his own
freedom. "In the same year, 1283," says the Annals of Dunstable, "we
sold our slave by birth, William Fyke, and all his family, and received
one mark from the buyer." The only hope for the slave was, to try and
get into one of the walled towns, when he became free. Until the Wars of
the Roses, these serfs were greatly harassed by their owners.

In the reign of Edward I., efforts were made to prevent the alienation
of land by those who received it from the Norman sovereigns. The statute
of mortmain was passed to restrain the giving of lands to the Church,
the statute DE DONIS to prevent alienation to laymen. The former
declares:

"That whereas religious men had entered into the fees of other men,
without license and will of the chief lord, and sometimes appropriating
and buying, and sometimes receiving them of gift of others, whereby the
services that are due of such fee, and which, in the beginning, were
provided for the defence of the realm, are wrongfully withdrawn, and the
chief lord do lose the escheats of the same (the primer seizin on
each life that dropped); it therefore enacts: That any such lands were
forfeited to the lord of the fee; and if he did not take it within
twelve months, it should be forfeited to the king, who shall enfeoff
other therein by certain services to be done for us for the defence of
the realm."

Another act, the 6th Edward I., cap. 3, provides:

"That alienation by the tenant in courtesy was void, and the heir was
entitled to succeed to his mother's property, notwithstanding the act of
his father."

The 13th Edward I., cap. 41, enacts:

"That if the abbot, priors, and keepers of hospitals, and other
religious houses, aliened their land they should be seized upon by the
king."

The 13th Edward I., cap. 1, DE DONIS conditionalitiis, provided:

"That tenements given to a man, and the heirs of his body, should, at
all events, go to the issue, if there were any; or, if there were none,
should revert to the donor."

But while the fiefs of the Crown were forbidden to alien their lands,
the FREEMEN, whose lands were Odhal (noble) and of Saxon descent, the
inheritance of which was guaranteed to them by 55 William I. (ANTE, p.
13), were empowered to sell their estates by the statute called QUIA
EMPTORES (6 Edward I.). It enacts:

"That from henceforth it shall be lawful to every FREEMEN to sell, at
his own pleasure, his lands and tenements, or part of them: so that the
feoffee shall hold the same lands and tenements of the chief lord of the
fee by such customs as his feoffee held before."

The scope of these laws was altered in the reign of Edward III. That
monarch, in view of his intended invasion of France, secured the
adhesion of the landowners, by giving them power to raise money upon and
alien their estates. The permission was as follows, 1 Edward III., cap.
12:

"Whereas divers people of the realm complain themselves to be grieved
because that lands and tenements which be holden of the king in chief,
and aliened without license, have been seized into the king's hand, and
holden as forfeit: (2.) The king shall not hold them as forfeit in such
case, but will and grant from henceforth of such lands and tenements
so aliened, there shall be reasonable fine taken in chancery by due
process."

1 Edward III., cap. 13:

"Whereas divers have complained that they be grieved by reason of
purchasing of lands and tenements, which have been holden of the king's
progenitors that now is, as of honors; and the same lands have been
taken into the king's hands, as though they had been holden in chief of
the king as of his crown: (2.) The king will that from henceforth no man
be grieved by any such purchase."

De Lolme, chap. iii., sec. 3, remarks on these laws that they took from
the king all power of preventing alienation or of purchase. They left
him the reversionary right on the failure of heirs.

These changes in the relative power of the sovereign and the nobles took
place to enable Edward to enter upon the conquest of France; but that
monarch, conferred a power upon the barons, which was used to the
detriment of his descendants, and led to the dethronement of the
Plantagenets.

The line of demarcation between the two sets of titles, those derived
through the ANGLO-SAXON laws and those derived through the grants of the
Norman sovereigns, was gradually being effaced. The people looked back
to the laws of Edward the Confessor, and forced them upon Edward II.
But after passing the laws which prevented nobles from selling, and
empowering FREEMEN to do so, Edward III. found it needful to assert his
claims to the entire land of England, and enacted in the twenty-fourth
year of his reign:

"That the king is the universal lord and original proprietor of all land
in his kingdom; that no man doth or can possess, any part of it but what
has mediately or immediately been derived as a gift from him to be held
on feodal service."

Those who obtained gifts of land, only held or had the use of them; the
ownership rested in the Crown. Feodal service, the maintenance of armed
men, and the bringing them into the field, was the rent paid.

The wealth which came into England after the conquest of France
influenced all classes, but none more than the family of the king. His
own example seems to have affected his descendants. The invasion of
France and the captivity of its king reappear in the invasion of England
by Henry IV., and the capture and dethronement of Richard II. The
prosperity of England during the reign of Edward had passed away in that
of his grandson. Very great distress pervaded the land, and it led to
efforts to get rid of villeinage. The 1st Richard II. recites:

"That grievous complaints had been made to the Lords and Commons, that
villeins and land tenants daily withdraw into cities and towns, and a
special commission was appointed to hear the case, and decide thereon."

The complaint was renewed, and appears in Act 9 Richard II., cap. 2:

"Whereas divers villeins and serfs, as well of the great Lords as of
other people, as well spiritual as temporal, do fly within the cities,
towns, and places entfranched, as the city of London, and other like,
and do feign divers suits against their Lords, to the intent to make
them free by the answer of the Lords, it is accorded and assented that
the Lords and others shall not be forebound of their villeins, because
of the answer of the Lords."

Serfdom or slavery may have existed previous to the ANGLO-SAXON
invasion, but I am disposed to think that the Saxon, the Jutes, and the
Angles reduced the inhabitants of the lands which they conquered, into
serfdom. The history of that period shows that men, women, and children
were constantly sold, and that there were established markets. One at
Bristol, which was frequented by Irish buyers, was put down, owing to
the remonstrance of the Bishop. After the Norman invasion the name of
Villein, a person attached to the villa, was given to the serfs. The
village was their residence. Occasional instances of enfranchisement
took place; the word signified being made free, and at that time every
FREEMAN was entitled to a vote. The word enfranchise has latterly come
to bear a different meaning, and to apply solely to the possession of a
vote, but it originally meant the elevation of a serf into the condition
of a FREEMAN. The act of enfranchisement was a public ceremony usually
performed at the church door. The last act of ownership performed by the
master was the piercing of the right ear with an awl. Many serfs fled
into the towns, where they were enfranchised and became FREEMEN.

The disaffection of the common people increased; they were borne down
with oppression. They struggled against their masters, and tried to
secure their personal liberty, and the freedom of their land. The
population rose in masses in the reign of Richard II., and demanded--

1st. The total abolition of slavery for themselves and their children
forever;

2d. The reduction of the rent of good land to 4d. per acre;

3d. The right of buying and selling, like other men, in markets and
fairs;

4th. The pardon of all offences.

The monarch acted upon insidious advice; he spoke them fair at first, to
gain time, but did not fulfil his promises. Ultimately the people gained
part of their demands. To limit or defeat them, an act was passed,
fixing the wages of laborers to 4d. per day, with meat and drink, or 6d.
per day, without meat and drink, and others in proportion; but with the
proviso, that if any one refused to serve or labor on these terms, every
justice was at liberty to send him to jail, there to remain until he
gave security to serve and labor as by law required. A subsequent act
prevents their being employed by the week, or paid for holidays.

Previous to this period, the major barons and great lords tilled their
land by serfs, and had very large flocks and herds of cattle. On the
death of the Bishop of Winchester, 1367, his executors delivered to
Bishop Wykeham, his successor in the see, the following: 127 draught
horses, 1556 head of cattle, 3876 wedders, 4777 ewes, and 3541 lambs.
Tillage was neglected; and in 1314 there was a severe dearth; wheat sold
at a price equal to L30 per quarter, the brewing of ale was discontinued
by proclamation, in order "to prevent those of middle rank from
perishing for want of food."

The dissensions among the descendants of Edward III. as to the right
to the Crown aided the nobles in their efforts to make their estates
hereditary, and the civil wars which afflicted the nation tended to
promote that object. Kings were crowned and discrowned at the will of
the nobles, who compelled the FREEMEN to part with their small estates.
The oligarchy dictated to the Crown, and oppressed and kept down
the FREEMEN. The nobles allied themselves with the serfs, who were
manumitted that they might serve as soldiers in the conflicting armies.

From the Conquest to the time of Richard II., only barons-by-tenure, the
descendants of the companions of the Conqueror, were invited by writ to
Parliament. That monarch made an innovation, and invited others who were
not barons-by-tenure. The first dukedom was created the 11th of Edward
III., and the first viscount the 18th Henry VI.

Edward IV. seized upon the lands granted by former kings, and gave them
to his own followers, and thus created a feeling of uneasiness in the
minds of the nobility, and paved the way for the events which were
accomplished by a succeeding dynasty. The decision in the Taltarum case
opened the question of succession; and Edward's efforts to put down
retainers was the precursor of the Tudor policy.

We have a picture of the state of society in the reign of Edward IV.
in the Paston Memoirs, written by Margaret Paston. Her husband, John
Paston, was heir to Sir John Fastolf. He was bound by the will to
establish in Caister Castle, Fastolf s own mansion, a college of
religious men to pray for his benefactor's soul. But in those days might
was right, and the Duke of Norfolk, fancying that he should like the
house for himself, quietly took possession of it. At that time, Edward
was just seated on the throne, and Edward had just been reported to
Paston to have said in reference to another suit, that

"He would be your good lord therein as he would to the poorest man in
England. He would hold with you in your right; and as for favor, he will
not be understood that he shall show favor more to one man to another,
not to one in England."

This was a true expression of the king's intentions. But either he
was changeable in his moods, or during these early years he was hardly
settled enough on the throne always to be able to carry out his wishes.
This time, however, in some way or another, the great duke was reduced
to submission, and Caister was restored to Paston.

In 1465 a new claimant appeared; and claimants, though as troublesome
in the fifteenth as the nineteenth century, proceeded in a different
fashion. This time it was the Duke of Suffolk, who asserted a right to
the manor of Drayton in his own name, and who had bought up the assumed
rights of another person to the manor of Hellesdon. John Paston was
away, and his wife had to bear the brunt. An attempt to levy rent
at Drayton was followed by a threat from the duke's men, that if her
servants "ventured to take any further distresses at Drayton, even if
it were but of the value of a pin, they would take the value of an ox in
Hellesdon."

Paston and the duke alike professed to be under the law. But each was
anxious to retain that possession which in those days seems really to
have been nine points of the law. The duke got hold of Drayton, while
Hellesdon was held for Paston. One day Paston's men made a raid upon
Drayton, and carried off seventy-seven head of cattle. Another day the
duke's bailiff came to Hellesdon with 300 men to see if the place
were assailable. Two servants of Paston, attempting to keep a court at
Drayton in their master's name, were carried off by force. At last the
duke mustered his retainers and marched against Hellesdon. The garrison,
too weak to resist, at once surrendered.

"The duke's men took possession, and set John Paston's own tenants to
work, very much against their wills, to destroy the mansion and break
down the walls of the lodge, while they themselves ransacked the church,
turned out the parson, and spoiled the images. They also pillaged very
completely every house in the village. As for John Paston's own place,
they stripped it completely bare; and whatever there was of lead,
brass, pewter, iron, doors or gates, or other things that they could not
conveniently carry off, they hacked and hewed them to pieces. The duke
rode through Hellesdon to Drayton the following day, while his men were
still busy completing the wreck of destruction by the demolition of the
lodge. The wreck of the building, with the rents they made in its walls,
is visible even now" (Introd. xxxv.).

The meaning of all this is evident. We have before us a state of society
in which the anarchical element is predominant. But it is not pure
anarchy. The nobles were determined to reduce the middle classes to
vassalage.

The reign of the Plantagenets witnessed the elevation of the nobility.
The descendants of the Norman barons menaced, and sometimes proved too
powerful for the Crown. In such reigns as those of Edward I., Edward
III., and Henry VI., the barons triumphed. The power wielded by the
first Edward fell from the feeble grasp of his son and successor. The
beneficent rule of Edward III. was followed by the anarchy of Richard
II. Success led to excess. The triumphant party thinned the ranks of its
opponents, and in turn experienced the same fate. The fierce struggle
of the Red and White Roses weakened each. Guy, Earl of Warwick, "the
king-maker," sank overpowered on the field of Tewkesbury, and with
him perished many of the most powerful of the nobles. The jealousy
of Richard III. swept away his own friends, and the bloody contest on
Bosworth field destroyed the flower of the nobility. The sun of the
Plantagenets went down, leaving the country weak and impoverished, from
a contest in which the barons sought to establish their own power, to
the detriment alike of the Crown and the FREEMEN. The latter might have
exclaimed:

"Till half a patriot, half a coward, grown, We fly from meaner tyrants
to the throne."

The long contest terminated in the defeat alike of the Crown and the
nobles, but the nation suffered severely from the struggle.

The rule of this family proved fatal to the interest of a most important
class, whose rights were jealously guarded by the Normans. The Liberi
Homines, the FREEMEN, who were Odhal occupiers, holding in capite from
the sovereign, nearly disappeared in the Wars of the Roses. Monarchs who
owed their crown to the favor of the nobles were too weak to uphold
the rights of those who held directly from the Crown, and who, in their
isolation, were almost powerless.

The term FREEMAN, originally one of the noblest in the land, disappeared
in relation to urban tenures, and was applied solely to the personal
rights of civic burghers; instead thereof arose the term FREEHOLDER from
FREE HOLD, which was originally a grant free from all rent, and only
burdened with military service. The term was subsequently applied to
land held for leases for lives as contradistinguished from leases for
years, the latter being deemed base tenures, and insufficient to qualify
a man to vote; the theory being that no man was free whose tenure could
be disturbed during his life. Though the Liberi Homines or FREEMEN were,
as a class, overborne in this struggle, and reduced to vassalage, yet
their descendants were able, under the leadership of Cromwell, to regain
some of the rights and influence of which they had been despoiled under
the Plantagenets.

Fortescue, Lord Chief-Justice to Henry VI., thus describes the condition
of the English people:

"They drunk no water, unless it be that some for devotion, and upon a
rule of penance, do abstain from other drink. They eat plentifully
of all kinds of flesh and fish. They wear woollen cloth in all their
apparel. They have abundance of bed covering in their houses, and
all other woollen stuff. They have great store of all implements of
household. They are plentifully furnished with all instruments of
husbandry, and all other things that are requisite to the accomplishment
of a great and wealthy life, according to their estates and degrees."

This flattering picture is not supported by the existing disaffection
and the repeated applications for redress from the serfs and the smaller
farmers, and the simple fact that the population had increased under
the Normans--a period of 88 years--from 2,150,000 to 3,350,000, while
under the Plantagenets--a period of 300 years--it only increased to
4,000,000, the addition to the population in that period being only
650,000. The average increase in the former period was nearly 14,000 per
annum, while in the latter it did not much exceed 2000 per annum. This
goes far to prove the evil from civil wars, and the oppression of the
oligarchy.





VI. THE TUDORS


The protracted struggle of the Plantagenets left the nation in a state
of exhaustion. The nobles had absorbed the lands of the FREEMEN, and
had thus broken the backbone of society. They had then entered upon a
contest with the Crown to increase their own power; and to effect their
selfish objects, setup puppets, and ranged under conflicting banners,
but the Nemesis followed. The Wars of the Roses destroyed their own
power, and weakened their influence, by sweeping away the heads of the
principal families. The ambition of the nobles failed of its object,
when "the last of the barons" lay gory in his blood on the field of
Tewkesbury. The wars were, however, productive of one national benefit,
in virtually ending the state of serfdom to which the aborigines were
reduced by the Scandinavian invasion. The exhaustion of the nation
prepared the way to changes of a most radical character, and the reigns
of the Tudors are characterized by greater innovations and more striking
alterations than even those which followed the accession of the Normans.

Henry of Richmond came out of the field of Bostworth a vistor, and
ascended the throne of a nation whose leading nobles had been swept
away. The sword had vied with the axe. Henry VII. was prudent and
cunning; and in the absence of any preponderating oligarchical
influence, planted the heel of the sovereign upon the necks of the
nobles. He succeeded where the Plantagenets had failed. His accession
became the advent of a series of measures which altered most materially
the system of landholding. The Wars of the Roses showed that the power
of the nobles was too great for the comfort of the monarch. The decision
in Taltarum's case, in the reign of Edward IV., affected the entire
system of entail. Land, partly freed from restrictions, passed into
other hands. But Henry went further. He destroyed their physical
influence by ridigly putting down retainer; and in one of his tours,
while partaking of the hospitality of the Earl of Oxford, he fined him
L15,000 for having greeted him with 5000 of his tenants in livery. The
rigid enforcement of the laws passed against retainers in former reigns,
but now made more penal, strengthened the king and reduced the power of
the nobles. Their estates were relieved of a most onerous charge, and
the lands freed from the burden of supporting the army of the state.

Henry VII. had thus a large fund to give away; the rent of the land
granted in knights' service virtually consisted of two separate
funds--one part went to the feudee, as officer or commmandant, the other
to the soldiery or vassals. The latter part belonged to the state. Had
Henry applied it to the reestablishment of the class of FREEMEN
(LIBERI HOMINES), as was recently done by the Emperor of Russia when he
abolished serfdom, he would have created a power on which the Crown and
the constitution could rely. This might have been done by converting the
holdings of the men-at-arms into allodial estates, held direct from
the Crown. Such an arrangement would have left the income of the feudee
unimpaired, as it would only have applied the fund that had been paid
to the men-at-arms to this purpose; and by creating out of that land
a number of small estates held direct from the Crown, the misery that
arose from the eviction and destruction of a most meritorious class,
would have been avoided. Vagrancy, with its great evils, would have been
prevented, and the passing of the Poor laws would have been unnecessary.
Unfortunately Henry and his counsellors did not appreciate the
consequence of the suppression of retainers and liveries. By the course
he adopted to secure the influence of the Crown, he compensated the
nobles, but destroyed the agricultural middle class.

This change had an important and, in some respects, a most injurious
effect upon the condition of the nation, and led to enactments of a very
extraordinary character, which I must submit in detail, inasmuch as I
prefer giving the ipsissima verba of the statute-book to any statement
of my own. To make the laws intelligible, I would remind you that the
successful efforts of the nobles had, during the three centuries of
Plantagenet rule, nearly obliterated the LIBERI HOMINES (whose rights
the Norman conqueror had sedulously guarded), and had reduced them to a
state of vassalage. They held the lands of their lord at his will, and
paid their rent by military service. When retainers were put down,
and rent or knights' service was no longer paid with armed men, their
occupation was gone. They were unfit for the mere routine of husbandry,
and unprovided with funds for working their farms. The policy of the
nobles was changed. It was no longer their object to maintain small
farmsteads, each supplying its quota of armed men to the retinue of the
lord; and it was their interest to obtain money rents. Then commenced a
struggle of the most fearful character. The nobles cleared their lands,
pulled down the houses, and displaced the people. Vagrancy, on a
most unparalleled scale, took place. Henry VII., to check this
cruel, unexpected, and harsh outcome of his own policy, resorted to
legislation, which proved nearly ineffectual. As early as the fourth
year of his reign these efforts commenced with an enactment (cap. 19)
for keeping up houses and encouraging husbandry; it is very quaint, and
is as follows:

"The King, our Sovereign Lord, having singular pleasure above all things
to avoid such enormities and mischiefs as be hurtful and prejudicial
to the commonwealth of this his land and his subjects of the same,
remembereth that, among other things, great inconvenience daily doth
increase by dissolution, and pulling down, and wilful waste of houses
and towns within this his realm, and laying to pasture lands, which
continually have been in tilth, WHEREBY IDLENESS, THE GROUND AND
BEGINNING OF ALL MISCHIEF, daily do increase; for where, in some towns
200 persons were occupied, and lived by those lawful labors, now there
be occupied two or three herdsmen, and the residue full of idleness.
The husbandry, which is one of the greatest commodities of the realm, is
greatly decayed. Churches destroyed, the service of God withdrawn, the
bodies there buried not prayed for, the patrons and curates wronged, the
defence of the land against outward enemies feebled and impaired, to the
great displeasure of God, the subversion of the policy and good rule of
this land, if remedy be not hastily therefor purveyed: Wherefore,
the King, our Sovereign Lord, by the assent and advice, etc., etc.,
ordereth, enacteth, and establisheth that no person, what estate,
degree, or condition he be, that hath any house or houses, that at
any time within the past three years hath been, or that now is, or
heretofore shall be, let to farm with twenty acres of land at least, or
more, laying in tillage or husbandry; that the owners of any such house
shall be bound to keep, sustain, and maintain houses and buildings, upon
the said grounds and land, convenient and necessary for maintaining and
upholding said tillage and husbandry; and if any such owner or owners of
house or house and land take, keep, and occupy any such house or house
and land in his or their own hands, that the owner of the said authority
be bound in likewise to maintain houses and buildings upon the said
ground and land, convenient and necessary for maintaining and upholding
the said tillage and husbandry. On their default, the king, or the other
lord of the fee, shall receive half of the profits, and apply the same
in repairing the houses; but shall not gain the freehold thereby."

This act was preceded by one with reference to the Isle of Wight, 4
Henry VII., cap. 16, passed the same session, which recites that it is
so near France that it is desirable to keep it in a state of defence. It
provides that no person shall have more than one farm, and enacts:

"For remedy, it is ordered and enacted that no manner of person, of what
estate, degree, or condition soever, shall take any farm more than one,
whereof the yearly rent shall not exceed ten marks; and if any several
leases afore this time have been made to any person or persons of divers
and sundry farmholds whereof the yearly value shall exceed that sum,
then the said person or persons shall choose one farm, hold at his
pleasure, and the remnant of the leases shall be void."

Mr. Froude remarks (History, p. 26), "An act, tyrannical in form, was
singularly justified by its consequences. The farm-houses were rebuilt,
the land reploughed, the island repeopled; and in 1546, when the French
army of 60,000 men attempted to effect a landing at St. Helens,
they were defeated and driven back by the militia, and a few levies
transported from Hampshire and the surrounding counties."

Lord Bacon, in his "History of the Reign of Henry VII., says:

"Enclosures, at that time, began to be more frequent, whereby arable
land (which could not be manured without people and families) was turned
into pasture, which was easily rid by a few herdsmen; and tenancies for
years, lives, and at will (whereupon much of the yeomanry lived) were
turned into demesnes. This bred a decay of people and (by consequence) a
decay of towns, churches, tithes, and the like. The king, likewise, knew
full well, and in nowise forgot, that there ensued withal upon this a
decay and diminution of subsidies and taxes; for the more gentlemen,
ever the lower books of subsidies. In remedying of this inconvenience,
the king's wisdom was admirable, and the parliaments at that time.
Enclosures they would not forbid, for that had been to forbid the
improvement of the patrimony of the kingdom; nor tillage they would not
compel, for that was to strive with nature and utility; but they took a
course to take away depopulating enclosures and depopulating pasturage,
and yet not by that name, or by any imperious express prohibition, but
by consequence. The ordinance was, that all houses of husbandry, that
were used with twenty acres of ground and upward, should be maintained
and kept up for ever, together with a competent proportion of land to be
used and occupied with them; and in nowise to be severed from them,
as by another statute made afterward in his successor's time, was more
fully declared: this, upon forfeiture to be taken, not by way of popular
action, but by seizure of the land itself, by the king and lords of the
fee, as to half the profits, till the houses and land were restored. By
this means the houses being kept up, did of necessity enforce a dweller;
and the proportion of the land for occupation being kept up, did of
necessity enforce that dweller not to be a beggar or cottager, but a
man of some substance, that might keep hinds and servants, and set the
plough a-going. This did wonderfully concern the might and mannerhood
of the kingdom, to have farms, as it were, of a standard sufficient
to maintain an able body out of penury, and did, in effect, amortise a
great part of the lands of the kingdom unto the hold and occupation
of the yeomanry or middle people, of a condition between gentlemen and
cottagers or peasants. Now, how much this did advance the military
power of the kingdom, is apparent by the true principles of war, and the
examples of other kingdoms. For it hath been held by the general opinion
of men of best judgment in the wars (howsoever some few have varied,
and that it may receive some distinction of case), that the principal
strength of an army consisteth in the infantry or foot. And to make good
infantry, it requireth men bred, not in a servile or indigent fashion,
but in some free and plentiful manner. Therefore, if a state run most to
noblemen and gentlemen, and that the husbandman and ploughman be but
as their workfolks and laborers, or else mere cottagers (which are but
housed beggars), you may have a good cavalry, but never good stable
bands of foot; like to coppice woods, that if you leave in them standing
too thick, they will run to bushes and briars, and have little clean
underwood. And this is to be seen in France and Italy, and some other
parts abroad, where in effect all is nobles or peasantry. I speak of
people out of towns, and no middle people; and therefore no good forces
of foot: insomuch as they are enforced to employ mercenary bands of
Switzers and the like for their battalions of foot, whereby also it
comes to pass, that those nations have much people and few soldiers.
Whereas the king saw that contrariwise it would follow, that England,
though much less in territory, yet should have infinitely more soldiers
of their native forces than those other nations have. Thus did the king
secretly sow Hydra's teeth; whereupon (according to the poet's fiction)
should rise up armed men for the service of this kingdom."

The enactment above quoted was followed by others in that reign of a
similar character, but it would appear they were not successful. The
evil grew apace. Houses were pulled down, farms went out of tillage.
The people, evicted from their farms, and having neither occupation nor
means of living, were idle, and suffering. Succeeding sovereigns strove
also to check this disorder? and statute after statute was passed. Among
them are the 7th Henry VIII., cap. 1. It recites:

"That great inconveniency did daily increase by dissolution, pulling
down, and destruction of houses, and laying to pasture, lands which
customarily had been manured and occupied with tillage and husbandry,
whereby idleness doth increase; for where, in some town-lands, hundreds
of persons and their ancestors, time out of mind, were daily occupied
with sowing of corn and graynes, breeding of cattle, and other increase
of husbandry, that now the said persons and their progeny are disunited
and decreased. It further recites the evil consequences resulting
from this state of things, and provides that all these buildings and
habitations shall be re-edificed and repaired within one year; and all
tillage lands turned into pasture shall be again restored into tillage;
and in default, half the value of the lands and houses forfeited to the
king, or lord of the fee, until they were re-edificed. On failure of the
next lord, the lord above him might seize."

This act did not produce that increased tilth which was anticipated.
Farmers' attention was turned to sheepbreeding; and in order to supply
the deficiency of cattle, an act was passed in the 21st Henry VIII., to
enforce the rearing of calves; and every farmer was, under a penalty of
6s. 8d. (about L3 of our currency), compelled to rear all his calves for
a period of three years; and in the 24th Henry VIII. the act was
further continued for two years. The culture of flax and hemp was also
encouraged by legislation. The 24th Henry VIII., cap. 14, requires every
person occupying land apt for tillage, to sow a quarter of an acre of
flax or hemp for every sixty acres of land, under a penalty of 3s. 4d.

The profit which arose from sheep-farming led to the depasturage of the
land; and in order to check it, an act, 25 Henry VIII., cap. 13, was
passed. It commences thus:

"Forasmuch as divers and sundry persons of the king's subjects of
this realm, to whom God of His goodness hath disposed great plenty and
abundance of movable substance, now of late, within few years, have
daily studied, practised, and invented ways and means how they might
gather and accumulate together into few hands, as well great multitude
of farms, as great plenty of cattle and in especial sheep, putting such
lands as they can get to pasture and not to tillage: whereby they have
not only pulled down churches and towns, and enhanced the old rates
of the rents of possessions of this realm, or else brought it to such
excessive fines that no poor man is able to meddle with it, but have
also raised and enhanced the prices of all manner of corn, cattle, wool,
pigs, geese, hens, chickens, eggs, and such commodities almost double
above the prices which hath been accustomed, by reason whereof a
marvellous multitude of the poor people of this realm be not able to
provide meat, drink, and clothes necessary for themselves, their wives,
and children, but be so discouraged with misery and poverty, that they
fall daily to theft, robbery, and other inconveniences, or pitifully die
for hunger and cold; and it is thought by the king's humble and loving
subjects, that one of the greatest occasions that moveth those greedy
and covetous people so to accumulate and keep in their hands such great
portions and parts of the lands of this realm from the occupying of the
poor husbandmen, and so use it in pasture and not in tillage, is the
great profit that cometh of sheep, which be now come into a few persons'
hands, in respect of the whole number of the king's subjects, so that
some have 24,000, some 20,000, some 10,000, some 6000, some 5000,
and some more or less, by which a good sheep for victual, which was
accustomed to be sold for 2s. 4d. or 3s. at most, is now sold for 6s.,
5s., or 4s. at the least; and a stone of clothing wool, that in some
shire of this realm was accustomed to be sold from 16d. to 20d, is now
sold for 4s. or 3s. 4d. at the least; and in some counties, where it has
been sold for 2s. 4d. to 2s. 8d., or 3s. at the most, it is now 5s. or
4s. 8d. at the least, and so arreysed in every part of the realm, which
things thus used to be principally to the high displeasure of Almighty
God, to the decay of the hospitality of this realm, to the diminishing
king's people, and the let of the cloth making, whereby many poor people
hath been accustomed to be set on work; and in conclusion, if remedy be
not found, it may turn to the utter destruction and dissolution of this
realm which God defend."

It was enacted that no person shall have or keep on lands not their own
inheritance more than 2000 sheep, under a penalty of 3s. 4d. per annum
for each sheep; lambs under a year old not to be counted; and that no
person shall occupy two farms.

Further measures appeared needful to prevent the evil; and the 27th
Henry VIII., cap. 22, states that the 4th Henry VII., cap. 19, for
keeping houses in repair, and for the tillage of the land, had been
enforced on lands holden of the king, but neglected by other lords. It,
therefore, enacted that the king shall have the moiety of the profits
of lands converted from tillage to pasture, since the passing of the
4th Henry VII., until a proper house is built, and the land returned
to tillage; and in default of the immediate lord taking the profits as
under that act, the king might take the same. This act extended to
the counties of Lincoln, Nottingham, Leicester, Warwick, Rutland,
Northampton, Bedford, Buckingham, Oxford, Berkshire, Isle of Wight,
Hertford, and Cambridge.

The simple fact was, that those who had formerly paid the rent of their
land by service as soldiers were without the capital or means of paying
rent in money; they were evicted and became vagrants. Henry VIII. took
a short course with these vagrants, and it is asserted upon apparently
good authority that in the course of his reign, thirty-six years, he
hanged no less than 72,000 persons for vagrancy, or at the rate of 2000
per annum. The executions in the reign of his daughter, Queen Elizabeth,
had fallen to from 300 to 400 per annum.

32 Henry VIII., cap. 1, gave powers of bequest with regard to land; as
it explains the change it effected, I quote it:

"That all persons holding land in socage not having any lands holden by
knight service of the king in chief, be empowered to devise and dispose
of all such socage lands, and in like case, persons holding socage
lands of the king in chief, and also of others, and not having the lands
holden by knight service, saving to the king, all his right, title, and
interest for primer seizin, reliefs, fines for alienations, etc. Persons
holding lands of the king by knight's service in chief were authorized
to devise two third parts thereof, saving to the king wardship, primer
seizin, of the third paid, and fines for alienation of the whole lands.
Persons holding lands by knight's service in chief, and also other lands
by knight's service, or otherwise may in like manner devise two third
part thereof, saving to the king wardship of the third, and fines for
alienation of the whole. Persons holding land of others than the king
by knight's service, and also holding socage lands, may devise two third
parts of the former and the whole of the latter, saving to the lord
his wardship of the third part. Persons holding lands of the king by
knight's service but not in chief, or so holding of the king and others,
and also holding socage lands, may in like manner devise two thirds of
the former and the whole of the latter, saving to the king the wardship
of the third part, and also to the lords; and the king or the other
lords were empowered to seize the one third part in case of any
deficiency."

The 34th and 35th Henry VIII., cap. 5, was passed to remove some doubts
which had arisen as to the former statute; it enacts:

"That the words estates of inheritance should only mean estates in
fee-simple only, and empowers persons seized of any lands, etc., in
fee-simple solely, or in co-partnery (not having any lands holden of
knight's service), to devise the whole, except corporations. Persons
seized in fee-simple of land holden of the king by knight's service
may give or devise two thirds thereof, and of his other lands, except
corporation, such two thirds to be ascertained by the divisor or by
commission out of the Court of Ward and Liveries. The king was empowered
to take his third land descended to the heir in the first place, the
devise in gift remaining good for the two thirds; and if the land
described were insufficient to answer such third, the deficiency should
be made up out of the two thirds."

"The next attack," remarks Sir William Blackstone, vol. ii., p. 117,
"which they suffered in order of time was by the statute 32 Henry VIII.,
c. 28, whereby certain leases made by tenants in tail, which do not tend
to prejudice the issue, were allowed to be good in law and to bind the
issue in tail. But they received a more violent blow the same session
of Parliament by the construction put upon the statute of fines by the
statute 32 Henry VIII., cap. 36, which declares a fine duly levied by
tenant in tail to be a complete bar to him and his heirs and all other
persons claiming under such entail. This was evidently agreeable to the
intention of Henry VII., whose policy was (before common recovery had
obtained their full strength and authority) to lay the road as open as
possible to the alienation of landed property, in order to weaken the
overgrown power of his nobles. But as they, from the opposite reasons,
were not easily brought to consent to such a provision, it was therefore
couched in his act under covert and obscure expressions; and the judges,
though willing to construe that statute as favorably as possible for
the defeating of entailed estates, yet hesitated at giving fines so
extensive a power by mere implication when the statute DE DONIS had
expressly declared that they should not be a bar to estates-tail. But
the statute of Henry VIII., when the doctrine of alienation was better
received, and the will of the prince more implicitly obeyed than before,
avowed and established that intention."

Fitzherbert, one of the judges of the Common Pleas in the reign of Henry
VIII., wrote a work on surveying and husbandry. It contains directions
for draining, clearing, and inclosing a farm, and for enriching the soil
and reducing it to tillage. Fallowing before wheat was practised, and
when a field was exhausted by grain it was allowed to rest. Hollingshed
estimated the usual return as 16 to 20 bushels of wheat per acre; prices
varied very greatly, and famine was of frequent recurrence. Leases began
to be granted, but they were not effectual to protect the tenant
from the entry of purchasers nor against the operation of fictitious
recoveries.

In the succeeding reigns the efforts to encourage tillage and prevent
the clearing of the farms were renewed, and among the enactments passed
were the following:

5 Edward VI., cap. 5, for the better maintenance of tillage and increase
of corn within the realm, enacts:

"That there should be, in the year 1553, as much land, or more, put
wholly in tillage as had been at any time since the 1st Henry VIII.,
under a penalty of 5s. per acre to the king; and in order to secure
this, it appoints commissioners, who were bound to ascertain by inquests
what land was in tillage and had been converted from tillage into
pasture. The commission issued precepts to the sheriffs, who summoned
jurors, and the inquests were to be returned, certified, to the Court of
Exchequer. Any prosecution for penalties should take place within three
years, and the act continues for ten years."

2 and 3 Philip and Mary, cap. 2, recites the former acts of 4 Henry
VII., cap. 19, etc,, which it enforces. It enacts:

"That as some doubts had arisen as to the interpretation of the words
twenty acres of land, the act should apply to houses with twenty acres
of land, according to the measurement of the ancient statute; and it
appoints commissioners to inquire as to all houses pulled down and all
land converted from pasture into tillage since the 4th Henry VII. The
commissioners were to take security by recognizance from offenders,
and to re-edify the houses and re-convert the land into tillage, and
to assess the tenants for life toward the repairs. The amount expended
under order of the commissioners was made recoverable against the
estate, and the occupiers were made liable to their orders; and they had
power to commit persons refusing to give security to carry out the act."

2 and 3 Philip and Mary, cap. 3, was passed to provide for the increase
of milch cattle, and it enacts:

"That one milch-cow shall be kept and calf reared for every sixty sheep
and ten oxen during the following seven years."

The 2d Elizabeth, cap. 2, confirms the previously quoted acts of 4 Henry
VII., cap. 19; 7 Henry VIII., cap. 1; 27 Henry VIII., cap. 22; 27 Henry
VIII., cap. 18; and it enacts:

"That all farm-houses belonging to suppressed monasteries should be
kept up, and that all lands which had been in tillage for four years
successively at any time since the 20th Henry VIII., should be kept in
tillage under a penalty of 10s. per acre, which was payable to the heir
in reversion, or in case he did not levy it, to the Crown."

31 Elizabeth, cap. 7, went further; and in order to provide allotments
for the cottagers, many of whom were dispossessed from their land, it
provided:

"For avoiding the great inconvenience which is found by experience to
grow by the erecting and building of great number of cottages, which
daily more and more increased in many parts of the realm, it was enacted
that no person should build a cottage for habitation or dwelling,
nor convert any building into a cottage, without assigning and laying
thereto four acres of land, being his own freehold and inheritance,
lying near the cottage, under a penalty of L10; and for upholding any
such cottages, there was a penalty imposed of 40s. a month, exception
being made as to any city, town, corporation, ancient borough, or market
town; and no person was permitted to allow more than one family to
reside in each cottage, under a penalty of 10s. per month."

The 39th Elizabeth, cap. 2, was passed to enforce the observance of
these conditions. It provides:

"That all lands which had been in tillage shall be restored thereto
within three years, except in cases where they were worn out by too much
tillage, in which case they might be grazed with sheep; but in order to
prevent the deterioriation of the land, it was enacted that the quantity
of beeves or muttons sold off the land should not exceed that which was
consumed in the mansion-house."

In these various enactments of the Tudor monarchs we may trace the
anxious desire of these sovereigns to repair the mistake of Henry VII.,
and to prevent the depopulation of England. A similar mistake has been
made in Ireland since 1846, under which the homes of the peasantry have
been prostrated, the land thrown out of tillage, and the people driven
from their native land. Mr. Froude has the following remarks upon this
legislation:

"Statesmen (temp. Elizabeth) did not care for the accumulation of
capital. They desired to see the physical well-being of all classes of
the commonwealth maintained in the highest degree which the producing
power of the country admitted. This was their object, and they were
supported in it by a powerful and efficient majority of the nation. At
one time Parliament interfered to protect employers against laborers,
but it was equally determined that employers should not be allowed to
abuse their opportunities; and this directly appears from the 4th and
5th Elizabeth, by which, on the most trifling appearance of a diminution
of the currency, it was declared that the laboring man could no longer
live on the wages assigned to him by the Act of Henry VIII.; and a
sliding scale was instituted, by which, for the future, wages should be
adjusted to the price of food. The same conclusion may be gathered
also indirectly fom the acts interfering imperiously with the rights of
property where a disposition showed itself to exercise them selfishly.

"The city merchants, as I have said, were becoming landowners, and some
of them attempted to apply their rules of trade to the management of
landed estates. While wages were rated so high, it answered better as a
speculation to convert arable land into pasture, but the law immediately
stepped in to prevent a proceeding which it regarded as petty treason
to the state. Self-protection is the first law of life, and the
country, relying for its defence on an able-bodied population, evenly
distributed, ready at any moment to be called into action, either
against foreign invasion or civil disturbance, it could not permit the
owners of land to pursue, for their own benefit, a course of action
which threatened to weaken its garrisons. It is not often that we are
able to test the wisdom of legislation by specific results so clearly
as in the present instance. The first attempts of the kind which I have
described were made in the Isle of Wight early in the reign of Henry
VII. Lying so directly exposed to attacks by France, the Isle of Wight
was a place which it was peculiarly important to keep in a state of
defence, and the 4th Henry VII., cap. 16, was passed to prevent the
depopulation of the Isle of Wight, occasioned by the system of large
farms."

The city merchants alluded to by Froude seem to have remembered that
from the times of Athelwolf, the possession of a certain quantity of
land, with gatehouse, church, and kitchen, converted the ceorl (churl)
into a thane.

It is difficult to estimate the effect which the Tudor policy had upon
the landholding of England. Under the feudal system, the land was held
in trust and burdened with the support of the soldiery. Henry VII., in
order to weaken the power of the nobles, put an end to their maintaining
independent soldiery. Thus landlords' incomes increased, though their
material power was curtailed. It would not have been difficult at this
time to have loaded these properties with annual payments equal to the
cost of the soldiers which they were bound to maintain, or to have
given each of them a farm under the Crown, and strict justice would have
prevented the landowners from putting into their pockets those revenues
which, according to the grants and patents of the Conqueror and his
successors, were specially devoted to the maintenance of the army.
Land was released from the conditions with which it was burdened when
granted. This was not done by direct legislation but by its being the
policy of the Crown to prevent "king-makers" arising from among the
nobility. The dread of Warwick influenced Henry. He inaugurated a policy
which transferred the support of the army from the lands, which should
solely have borne it, to the general revenue of the country. Thus he
relieved one class at the expense of the nation. Yet, when Henry was
about to wage war on the Continent, he called all his subjects to
accompany him, under pain of forfeiture of their lands; and he did not
omit levying the accustomed feudal charge for knighting his eldest son
and for marrying his eldest daughter. The acts to prevent the landholder
from oppressing the occupier, and those for the encouragement of
tillage, failed. The new idea of property in land, which then obtained,
proved too powerful to be altered by legislation.

Another change in the system of landholding took place in those reigns.
Lord Cromwell, who succeeded Cardinal Wolsey as minister to Henry VIII.,
had land in Kent, and he obtained the passing of an act (31 Henry VIII.,
cap. 2) which took his land and that of other owners therein named, out
of the custom of gavelkind (gave-all-kind), which had existed in Kent
from before the Norman Conquest, and enacted that they should descend
according to common law in like manner as lands held by knight's
service.

The suppression of the RELIGIOUS HOUSES gave the Crown the control of
a vast quantity of land. It had, with the consent of the Crown, been
devoted to religion by former owners. The descendants of the donors were
equitably entitled to the land, as it ceased to be applied to the trust
for which it was given, but the power of the Crown was too great, and
their claims were refused. Had these estates been applied to purposes
of religion or education they would have formed a valuable fund for the
improvement of the people; but the land itself, as well as the portion
of tithes belonging to the religious houses, was conferred upon
favorites, and some of the wealthiest nobles of the present day trace
their rise and importance to the rewards obtained by their ancestors out
of the spoils of these charities.

The importance of the measures of the Tudors upon the system of
land-holding can hardly be exaggerated. An impulse of self-defence led
them to lessen the physical force of the oligarchy by relieving the land
from the support of the army, and enabling them to convert to their own
use the income previously applied to the defence of the realm. This was
a bribe, but it brought its own punishment. The eviction of the working
farmers, the demolition of their dwellings, the depopulation of the
country, were evils of most serious magnitude; and the supplement of
the measures which produced such deplorable results was found in the
permanent establishment of a taxation for the SUPPORT of the POOR. Yet
the nation reeled under the depletion produced by previous mistaken
legislation, and all classes have been injured by the transfer of the
support of the army from the land held by the nobles to the income of
the people.

Side by side, with the measures passed, to prevent the Clearing of the
Land, arose the system of POOR LAWS. Previous to the Reformation the
poor were principally relieved at the religious houses. The destruction
of small farms, and the eviction of such masses of the people, which
commenced in the reign of Henry VII., overpowered the resources of
these establishments; their suppression in the reigns of Henry VIII.
and Elizabeth aggravated the evil. The indiscriminate and wholesale
execution of the poor vagrants by the former monarch only partially
removed the evil, and the statute-book is loaded with acts for the
relief of the destitute poor. The first efforts were collections in the
churches; but voluntary alms proving insufficient, the powers of the
churchwardens were extended, and they were directed and authorized
to assess the parishioners according to their means, and thus arose a
system which, though benevolent in its object, is a slur upon our social
arrangements. Land, the only source of food, is rightly charged with the
support of the destitute. The necessity for such aid arose originally
from their being evicted therefrom. The charge should fall exclusively
upon the rent receivers, and in no case should the tiller of the soil
have to pay this charge either directly or indirectly. It is continued
by the inadequacy of wages, and the improvidence engendered by a social
system which arose out of injustice, and produced its own penalty.

Legislation with regard to the poor commenced contemporaneous with the
laws against the eviction of the small farmers. I have already recited
some of the laws to preserve small holdings; I now pass to the
acts meant to compel landholders to provide for those whom they had
dispossessed. In 1530 the act 22 Henry VIII., cap. 12, was passed; it
recites:

"Whereas in all places through the realm of England, vagabonds and
beggars have of long time increased, and daily do increase, in great and
excessive numbers by THE OCCASION OF IDLENESS, THE MOTHER AND ROOT OF
ALL VICES, [Footnote: See 4 Henry VII., cap, 19, ante, p. 27, where the
same expression occurs, showing that it was throwing the land out of
tilth that occasioned pauperism.] whereby hath insurged and sprung,
and daily insurgeth and springeth, continual thefts, murders, and other
heinous offences and great enormities, to the high displeasure of
God, the inquietation and damage of the king and people, and to the
marvellous disturbance of the commonweal of the realm."

It enacts that justices may give license to impotent persons to beg
within certain limits, and, if found begging out of their limits, they
shall be set in the stocks. Beggars without license to be whipped or set
in the stocks. All persons able to labor, who shall beg or be vagrant,
shall be whipped and sent to the place of their birth. Parishes to be
fined for neglect of the constables.

37 Henry VIII., cap. 23, continued this act to the end of the ensuing
Parliament.

1 Edward VI., cap. 3, recites the increase of idle vagabonds, and enacts
that all persons loitering or wandering shall be marked with a V, and
adjudged a slave for two years, and afterward running away shall become
a felon. Impotent persons were to be removed to the place where they had
resided for three years, and allowed to beg. A weekly collection was
to be made in the churches every Sunday and holiday after reading the
gospel of the day, the amount to be applied to the relief of bedridden
poor.

5 and 6 Edward VI., cap. 2, directs the parson, vicar, curate, and
church-wardens, to appoint two collectors to distribute weekly to the
poor. The people were exhorted by the clergy to contribute; and, if they
refuse, then, upon the certificate of the parson, vicar, or curate, to
the bishop of the diocese, he shall send for them and induce him or them
to charitable ways.

2 and 3 Philip and Mary, cap. 5, re-enacts the former, and requires the
collectors to account quarterly; and where the poor are too numerous for
relief, they were licensed by a justice of the peace to beg.

5 Elizabeth, cap. 3, confirms and renews the former acts, and compels
collectors to serve under a penalty of L10. Persons refusing to
contribute their alms shall be exhorted, and, if they obstinately
refuse, shall be bound by the bishop to appear at the next general
quarter session, and they may be imprisoned if they refuse to be bound.

The 14th Elizabeth, cap. 5, requires the justices of the peace to
register all aged and impotent poor born or for three years resident in
the parish, and to settle them in convenient habitations, and ascertain
the weekly charge, and assess the amount on the inhabitants, and yearly
appoint collectors to receive and distribute the assessment, and also an
overseer of the poor. This act was to continue for seven years.

The 18th Elizabeth, cap. 3, provides for the employment of the poor.
Stores of wool, hemp, flax, iron, etc., to be provided in cities and
towns, and the poor set to work. It empowered persons possessed of land
in free socage to give or devise same for the maintenance of the poor.

The 39th Elizabeth, cap. 3, and the 43d Elizabeth, cap. 2, extended
these acts, and made the assessment compulsory.

I shall ask you to compare the date of these several laws for the
relief of the destitute poor with the dates of the enactments against
evictions. You will find they run side by side.

     [Footnote: The following tables of the acts passed against
     eviction, and enacting the support of the poor, show that
     they were contemporaneous:

            Against Evictions.
        4 Henry VII.,      Cap. 19.
        7 Henry VIII,      Cap.  1.
       21 Henry VIII,
       24 Henry VIII,      Cap. 14.
       25 Henry VIII,      Cap. 13.
       27 Henry VIII,      Cap. 22.
        5 Edward VI.,      Cap.  2.
  2 and 3 Philip and Mary, Cap.  2.
  2 and 3 Philip and Mary, Cap.  3.
        2 Elizabeth,       Cap.  2.
       31 Elizabeth,       Cap.  7.
       39 Elizabeth,       Cap.  2.


           Enacting Poor Laws.
       22 Henry VIII.,     Cap. 12.
       37 Henry VIII.,     Cap. 23.
        1 Edward VI.,      Cap.  3.
  5 and 6 Edward VI.,      Cap.  2.
  2 and 4 Philip and Mary, Cap.  5.
        5 Elizabeth,       Cap.  3.
       14 Elizabeth,       Cap.  5.
       18 Elizabeth,       Cap.  3.
       39 Elizabeth,       Cap.  3.
       43 Elizabeth,       Cap.  2.]

I have perhaps gone at too great length into detail; but I think I could
not give a proper picture of the alteration in the system of landholding
or its effects without tracing from the statute-book the black records
of these important changes. The suppression of monasteries tended
greatly to increase the sufferings of the poor, but I doubt if even
these institutions could have met the enormous pressure which arose from
the wholesale evictions of the people. The laws of Henry VII and Henry
VIII., enforcing the tillage of the land, preceded the suppression of
religious houses, and the act of the latter monarch allowing the poor to
beg was passed before any steps were taken to close the convents. That
measure was no doubt injurious to the poor, but the main evil arose from
other causes. The lands of these houses, when no longer applicable to
the purpose for which they were given, should have reverted to the heirs
of the donors, or have been applied to other religious or educational
purposes. The bestowal of them upon favorites, to the detriment alike of
the State, the Church, the Poor, and the Ignorant, was an abuse of great
magnitude, the effect of which is still felt. The reigns of the Tudors
are marked with three events affecting the land--viz.:

1st. Relieving it of the support of the army;

2d. Burdening of it with the support of the poor;

3d. Applying the monastic lands to private uses.

The abolition of retainers, while it relieved the land of the nobles
from the principal charge thereon, did not entirely abolish knight's
service. The monarch was entitled to the care of all minors, to aids
on the marriage or knighthood of the eldest son, to primerseizin or a
year's rent upon the death of each tenant of the Crown. These fees were
considerable, and were under the care of the Court of Ward and Liveries.

The artisan class had, however, grown in wealth, and they were greatly
strengthened by the removal from France of large numbers of workmen in
consequence of the revocation of the Edict of Nantes. These prosperous
tradespeople became landowners by purchase, and thus tended to replace
the LIBERI HOMINES, or FREEMEN, who had been destroyed under the wars
of the nobles, which effaced the landmarks of English society. The
liberated serfs attained the position of paid farm-laborers; had the
policy of Elizabeth, who enacted that each of their cottages should have
an allotment of four acres of land, been carried out, it would have been
most beneficial to the state.

The reign of this family embraced one hundred and eighteen years, during
which the increase of the population was about twenty-five per cent.
When Henry VII. ascended the throne in 1485 it was 4,000,000, and on the
death of Queen Elizabeth in 1603 it had reached 5,000,000, the average
increase being about 8000 per annum. The changes effected in the
condition of the farmers' class left the mass of the people in a far
worse state at the close than at the commencement of their rule.





VII. THE STUARTS.


The accession of the Stuarts to the throne of England took place under
peculiar circumstances. The nation had just passed through two very
serious struggles--one political, the other religious. The land which
had been in the possession of religious communities, instead of being
retained by the state for educational or religious purposes, had been
given to favorites. A new class of ownership had been created--the lay
impropriators of tithes. The suppression of retainers converted land
into a quasi property. The extension to land of the powers of bequest
gave the possessors greater facilities for disposing thereof. It
was relieved from the principal feudal burden, military service, but
remained essentially feudal as far as tenure was concerned. Men were no
longer furnished to the state as payment of the knight's fee; they were
cleared off the land, to make room for sheep and oxen, England being
in that respect about two hundred years in advance of Ireland, though
without the outlet of emigration. Vagrancy and its attendant evils led
to the Poor Law.

James I. and his ministers tried to grapple with the altered
circumstances, and strove to substitute and equitable Crown rent or
money payment for the existing and variable claims which were collected
by the Court of Ward and Livery. The knight's fee then consisted of
twelve plough-lands, a more modern name for "a hide of land." The class
burdened with knight's service, or payments in lieu thereof, comprised
160 temporal and 26 spiritual lords, 800 barons, 600 knights, and 3000
esquires. The knight's fee was subject to aids, which were paid to the
Crown upon the marriage of the king's son or daughter. Upon the death
of the possessor, the Crown received primer-seizen a year's rent. If the
successor was an infant, the Crown under the name of Wardship, took the
rents of the estates. If the ward was a female, a fine was levied if she
did not accept the husband chosen by the Crown. Fines on alienation
were also levied, and the estates, though sold, became escheated, and
reverted to the Crown upon the failure of issue. These various fines
kept alive the principle that the lands belonged to the Crown as
representative of the nation; but, as they varied in amount, James I.
proposed to compound with the tenants-in-fee, and to convert them into
fixed annual payments. The nobles refused, and the scheme was abandoned.

In the succeeding reign, the attempt to stretch royal power beyond its
due limits led to resistance by force, but it was no longer a mere war
of nobles; their power had been destroyed by Henry VII. The Stuarts had
to fight the people, with a paid army, and the Commons, having the
purse of the nation, opposed force to force. The contest eventuated in
a military protectorship. Many of the principal tenants-in-fee fled
the country to save their lives. Their lands were confiscated and given
away; thus the Crown rights were weakened, and Charles II. was forced to
recognize many of the titles given by Cromwell; he did not dare to
face the convulsion which must follow an expulsion of the novo <DW25> in
posession of the estates of more ancient families; but legislation went
further--it abolished all the remaining feudal charges. The Commons
appear to have assented to this change, from a desire to lessen the
private income of the Sovereign, and thus to make him more dependent
upon Parliament, This was done by the 12th Charles II., cap. 24. It
enacts:

"That the Court of Ward and Liveries, primer seizin, etc., and all fines
for alienation, tenures by knight's service, and tenures in capite, be
done away with and turned into fee and common socage, and discharged of
homage, escuage, aids, and reliefs. All future tenures created by the
king to be in free and common socage, reserving rents to the Crown
and also fines on alienation. It enables fathers to dispose of their
children's share during their minority, and gives the custody of the
personal estate to the guardians of such child, and imposes in lieu of
the revenues raised in the Court of Ward and Liveries, duties upon beer
and ale."

The land was relieved of its legitimate charge, and a tax on beer and
ale imposed instead! the landlords were relieved at the expense of
the people. The statute which accomplished this change is described by
Blackstone as

"A greater acquisition to the civil property of this kingdom than even
Magna Charta itself, since that only pruned the luxuriances that had
grown out of military tenures, and thereby preserved them in vigor; but
the statute of King Charles extirpated the whole, and demolished both
root and branches."

The efforts of James II. to rule contrary to the wish of the nation,
led to his expulsion from the throne, and showed that, in case of future
disputes as to the succession, the army, like the Praetorian Guards of
Rome, had the election of the monarch. The Red and White Roses of the
Plantagenets reappeared under the altered names of Whig and Tory; but
it was proved that the decision of a leading soldier like the Duke of
Marlborough would decide the army, and that it would govern the nation;
fortunately the decision was a wise one, and was ratified by Parliament:
thus FORCE governed LAW, and the decision of the ARMY influenced the
SENATE. William III. succeeded, AS AN ELECTED MONARCH, under the Bill
of Rights. This remarkable document contains no provision, securing the
tenants-in-fee in their estates; and I have not met with any treatise
dealing with the legal effects of the eviction of James II. All patents
were covenants between the king and his heirs, and the patentees and
their heirs. The expulsion of the sovereign virtually destroyed the
title; and an elected king, who did not succeed as heir, was not bound
by the patents of his predecessors, nor was William asked, by the Bill
of Rights, to recognize any of the existing titles. This anomalous state
of things was met in degree by the statute of prescriptions, but even
this did not entirely cure the defect in the titles to the principal
estates in the Kingdom. The English tenants in decapitating one landlord
and expelling another, appear to have destroyed their titles, and then
endeavored to renew them by prescriptive right; but I shall not pursue
this topic further, though it may have a very definite bearing upon the
question of landholding.

It may not be uninteresting to allude rather briefly to the state of
England at the close of the seventeenth century. Geoffrey King, who
wrote in 1696, gives the first reliable statistics about the state of
the country. He estimated the number of houses at 1,300,000, and the
average at four to each house, making the population 5,318,000. He says
there was but seven acres of land for each person, but that England was
six times better peopled than the known world, and twice better than
Europe. He calculated the total income at L43,500,000, of which the
yearly rent of land was L10,000,000. The income was equal to L7, 18s.
0d. per head, and the expense L7, 11s. 4d.; the yearly increase, 6s. 8d.
per head, or L1,800,000 per annum. He estimated the annual income of 160
temporal peers at L2800 per annum, 26 spiritual peers at L1300, of 800
baronets at L800, and of 600 knights at L650.

He estimated the area at 39,000,000 acres (recent surveys make it
37,319,221). He estimated the arable land at 11,000,000 acres, and
pasture and meadow at 10,000,000, a total of 21,000,000. The area under
all kinds of crops and permanent pasture was, in 1874, 26,686,098 acres;
therefore about five and a half million acres have been reclaimed and
added to the arable land. As the particulars of his estimate may prove
interesting, I append them in a note.


  [Footnote--Geoffrey King thus classifies the land of England and
  Wales:



                                           Acres.   Value/Acre  Rent

  Arable Land,                           11,000,000   L0 5 10  L3,200,000
  Pasture and Meadow,                    10,000,000    0 9  0   4,500,000
  Woods and Coppices,                     3,000,000    0 5  0     750,000
  Forests, Parks, and Covers,             3,000,000    0 3  6     550,000
  Moors, Mountains, and Barren Lands,    10,000,000    0 1  0     500,000
  Houses, Homesteads, Gardens, Orchards,) 1,000,000 (The Land,    450,000
  Churches, and Churchyards,            )      (The Buildings,  2,000,000
  Rivers, Lakes, Meres, and Ponds,          500,000    0 2  0      50,000
  Roadways and Waste Lands,                 500,000
                                         ----------   -------  ----------
                                         39,000,000   L0 6 0  L12,000,000

  He estimates the live stock thus:
                                         Value without
                                           the Skin
  Beeves, Stirks, and Calves,    4,500,000  L2  0 0   L9,000,000
  Sheep and Lambs,              11,000,000   0  8 0    4,400,000
  Swine and Pigs,                2,000,000   0 16 0    1,600,000
  Deer, Fawns, Goats and Kids,                           247,900

                                                      15,247,900

  Horses,                        1,200,000   2  0 0    3,000,000
  Value of Skins,                                      2,400,000
                                                     -----------
                                                     L20,647,900

  The annual produce he estimated as follows:

                                  Acres       Rent         Produce
  Grain,                       10,000,000  L3,000,000    L8,275,000
  Hemp, Flax, etc.,             1,000,000     200,000     2,000,000
  Butter, Cheese, and Milk, )                          (  2,500,000
  Wool,                     )                          (  2,000,000
  Horses bred,              )                          (    250,000
  Flesh Meat,               )- 29,000,000   6,800,000 -(  3,500,000
  Tallow and Hides,         )                          (    600,000
  Hay Consumed,             )                          (  2,300,000
  Timber,                   )                          (  1,000,000
                               ----------  -----------  -----------
  Total                        39,000,000  L10,000,000  L22,275,000]


He places the rent of the corn land at about one third of the produce,
and that of pasture land at rather more. The price of meat per lb. was:
beef 1 and 1/8d.; mutton, 2 and 1/4d.; pork, 3d.; venison, 6d.; hares,
7d.; rabbits, 6d. The weight of flesh-meat consumed was 398,000,000
lbs., it being 72 lbs. 6 oz. for each person, or 3 and 1/6 oz. daily.
I shall have occasion to contrast these figures with those lately
published when I come to deal with the present; but a great difference
has arisen from the alteration in price, which is owing to the increase
in the quantity of the precious metals.

The reign of the last sovereign of this unfortunate race was
distinguished by the first measures to inclose the commons and convert
them into private property, with which I shall deal hereafter.

The changes effected in the land laws of England during the reigns of
the Stuarts, a period of 111 years, were very important. The act of
Charles II. which abolished the Court of Ward and Liveries, appeared to
be an abandonment of the rights of the people, as asserted in the person
of the Crown; and this alteration also seemed to give color of right to
the claim which is set up of property in land, but the following law of
Edward III. never was repealed:

"That the king is the universal lord and original proprietor of all land
in his kingdom, and that no man doth or can possess any part of it but
what has mediately or immediately been derived as a gift from him to be
held on feodal service."

No lawyer will assert for any English subject a higher title than
tenancy-in-fee, which bears the impress of holding and denies the
assertion of ownership.

The power of the nobles, the tenants-in-fee, was strengthened by an act
passed in the reign of William and Mary, which altered the relation of
landlord and tenant. Previous thereto, the landlord had the power of
distraint, but he merely held the goods he seized to compel the tenant
to perform personal service. It would be impossible for a tenant to pay
his rent if his stock or implements were sold off the land. As the
Tudor policy of money payments extended, the greed for pelf led to
an alteration in the law, and the act of William and Mary allowed the
landlord to sell the goods he had distrained. The tenant remained
in possession of the land without the means of tilling it, which was
opposed to public policy. This power of distraint was, however, confined
to holdings in which there were leases by which the tenant covenanted to
allow the landlord to distrain his stock and goods in default of payment
of rent. The legislation of the Stuarts was invariably favorable to
the possessor of land and adverse to the rights of the people. The
government during the closing reigns was oligarchical, so much so, that
William III., annoyed at the restriction put upon his kingly power,
threatened to resign the crown and retire to Holland; but the
aristocracy were unwilling to relax their claims, and they secured by
legislation the rights they appeared to have lost by the deposition of
the sovereign.

The population had increased from 5,000,000 in 1603 to 5,750,000 in
1714, being an average increase of less than 7000 per annum.





VIII. THE HOUSE OF HANOVER.


The first sovereign of the House of Hanover ascended the throne not by
right of descent but by election; the legitimate heir was set aside, and
a distant branch of the family was chosen, and the succession fixed by
act of Parliament; but it is held by jurists that every Parliament
is sovereign and has the power of repealing any act of any former
Parliament. The beneficial rule of some of the latter monarchs of this
family has endeared them to the people, but the doctrine of reigning by
divine right, the favorite idea of the Stuarts, is nullified, when
the monarch ascends the throne by statute law and not by succession or
descent.

The age of chivalry passed away when the Puritans defeated the
Cavaliers. The establishment of standing armies and the creation of
a national debt, went to show that money, not knighthood or knight's
service, gave force to law. The possession of wealth and of rent gave
back to their possessors even larger powers than those wrested from
them by the first Tudor king. The maxim that "what was attached to the
freehold belonged to the freehold," gave the landlords even greater
powers than those held by the sword, and of which they were despoiled.
Though nominally forbidden to take part in the election of the
representatives of the Commons, yet they virtually had the power, the
creation of freehold, the substance and material of electoral right; and
consequently both Houses of Parliament were essentially landlord, and
the laws, for the century which succeeded the ascension of George I.,
are marked with the assertion of landlord right which is tenant wrong.

Among the exhibitions of this influence is an act passed in the reign
of George II., which extended the power of distraint for rent, and the
right to sell the goods seized--to all tenancies. Previous legislation
confined this privilege solely to cases in which there were leases,
wherein the tenant, by written contract, gave the landlord power to
seize in case of non-payment of rent, but there was no legal authority
to sell until it was given by an act passed in the reign of William III.
The act of George II. presumed that there was such a contract in all
cases of parole letting or tenancy-at-will, and extended the landlord's
powers to such tenancies. It is an anomaly to find that in the freest
country in the world such an arbitrary power is confided to individuals,
or that the landlord-creditor has the precedence over all other
creditors, and can, by his own act, and without either trial or
evidence, issue a warrant that has all the force of the solemn judgment
of a court of law; and it certainly appears unjust to seize a crop, the
seed for which is due to one man, and the manure to another, and apply
it to pay the rent. But landlordism, intrusted with legislative power,
took effectual means to preserve its own prerogative, and the form of
law was used by parliaments, in which landlord influence was paramount,
to pass enactments which were enforced by the whole power of the state,
and sustained individual or class rights.

The effect of this measure was most unfortunate; it encouraged the
letting of lands to tenants-at-will or tenants from year to year,
who could not, under existing laws, obtain the franchise or power to
vote--they were not FREEMEN, they were little better than serfs. They
were tillers of the soil, rent-payers who could be removed at the
will of another. They were not even freeholders, and had no political
power--no voice in the affairs of the nation. The landlords in
Parliament gave themselves, individually by law, all the powers which a
tenant gave them by contract, while they had no corresponding liability,
and, therefore, it was their interest to refrain from giving leases, and
to make their tenantry as dependent on them as if they were mere serfs.
This law was especially unfortunate, and had a positive and very great
effect upon the condition of the farming class and upon the nation, and
people came to think that landlords could do as they liked with their
land, and that the tenants must be creeping, humble, and servile.

An effort to remedy this evil was made in 1832, when the occupiers, if
rented or rated at the small amount named, became voters. This gave the
power to the holding, not to the man, and the landlord could by simple
eviction deprive the man of his vote; hence the tenants-at-will were
driven to the hustings like sheep--they could not, and dare not, refuse
to vote as the landlord ordered.

The lords of the manor, with a landlord Parliament, asserted their
claims to the commonages, and these lands belonging to the people,
were gradually inclosed, and became the possession of individuals. The
inclosing of commonages commenced in the reign of Queen Anne, and was
continued in the reigns of all the sovereigns of the House of Hanover.
The first inclosure act was passed in 1709; in the following thirty
years the average number of inclosure bills was about three each year;
in the following fifty years there were nearly forty each year; and in
the forty years of the nineteenth century it was nearly fifty per annum.

The inclosures in each reign were as follows:

                    Acts.    Acres.
     Queen Anne,      2      1,439
     George I.,      16     17,660
     George II.,    226    318,784
     George III.,  3446  3,500,000
     George IV.,    192    250,000
     William IV.,    72    120,000
                   ----  ---------
     Total,        3954  4,207,883

These lands belonged to the people, and might have been applied to
relieve the poor. Had they been allotted in small farms, they might have
been made the means of support of from 500,000 to 1,000,000 families,
and they would have afforded employment and sustenance to all the
poor, and thus rendered compulsory taxation under the poor-law system
unnecessary; but the landlords seized on them and made the tenantry pay
the poor-rate.

The British Poor Law is a slur upon its boasted civilization. The
unequal distribution of land and of wealth leads to great riches and
great poverty. Intense light produces deep shade. Nowhere else but in
wealthy England do God's creatures die of starvation, wanting food,
while others are rich beyond comparison. The soil which affords
sustenance for the people is rightly charged with the cost of feeding
those who lack the necessaries of life, but the same object would be
better achieved in a different way. Poor-rates are now a charge upon a
man's entire estate, and it would be much better for society if land
to an amount equivalent to the charge were taken from the estate and
assigned to the poor. If a man is charged with L100 a year poor-rate,
it would make no real difference to him, while it would make a vast
difference to the poor to take land to that value, put the poor to work
tilling it, allowing them to enjoy the produce. Any expense should be
paid direct by the landlord, which would leave the charge upon the land,
and exempt the improvements of the tenant, which represent his labor,
free.

The evil has intensified in magnitude, and a permanent army of paupers
numbering at the minimum 829,281 persons, but increasing at some
periods to upward of 1,000,000, has to be provided for; the cost, about
L8,000,000 a year, is paid, not by landlords but by tenants, in addition
to the various charities founded by benevolent persons. There are two
classes relieved under this system, and which ought to be differently
dealt with--the sick and the young. Hospitals for the former and schools
for the latter ought to take the place of the workhouse. It is difficult
to fancy a worse place for educating the young than the workhouse, and
it would tend to lessen the evil were the children of the poor trained
and educated in separate establishments from those for the reception
of paupers. Pauperism is the concomitant of large holdings of land and
insecurity of tenure. The necessity of such a provision arose, as I have
previously shown, from the wholesale eviction of large numbers of the
occupiers of land; and, as the means of supplying the need came from
the LAND, the expense should, like tithes, have fallen exclusively
upon land. The poor-rates are, however, also levied upon houses and
buildings, which represent labor. The owner of land is the people, as
represented by the Crown, and the charges thereon next in succession to
the claims of the state are the church and the poor.

The Continental wars at the close of the eighteenth and the commencement
of the nineteenth century had some effect upon the system of tillage;
they materially enhanced the price of agricultural produce--rents were
raised, and the national debt was contracted, which remains a burden on
the nation.

The most important change, however, arose from scientific and mechanical
discoveries--the application of heat to the production of motive power.
As long as water, which is a non-exhaustive source of motion, was used,
the people were scattered over the land; or if segregation took place,
it was in the neighborhood of running streams. The application of steam
to the propulsion of machinery, and the discovery of engines capable of
competing with the human hand, led to the substitution of machine-made
fabrics for clothing, in place of homespun articles of domestic
manufacture. This led to the employment of farm-laborers in procuring
coals, to the removal of many from the rural into the urban districts,
to the destruction of the principal employment of the family during the
winter evenings, and consequently effected a great revolution in the
social system. Many small freeholds were sold, the owners thinking they
could more rapidly acquire wealth by using the money representing their
occupancy, in trade. Thus the large estates became larger, and the
smaller ones were absorbed, while the appearance of greater wealth from
exchanging subterranean substances for money, or its representative,
gave rise to ostentatious display. The rural population gradually
diminished, while the civic population increased. The effect upon the
system of landholding was triplicate. First, there was a diminution in
the amount of labor applicable to the cultivation of land; second, there
was a decrease in the amount of manure applied to the production of
food; and lastly, there was an increase in the demand for land as a
source of investment, by those who, having made money in trade, sought
that social position which follows the possession of broad acres. Thus
the descendants of the feudal aristocracy were pushed aside by the
modern plutocracy.

This state of things had a double effect. Food is the result of two
essential ingredients--land and labor. The diminution in the amount of
labor applied to the soil, consequent upon the removal of the laborers
from the land, lessened the quantity of food; while the consumption of
that food in cities and towns, and the waste of the fertile ingredients
which should be restored to the soil, tended to exhaust the land, and
led to vast importations of foreign and the manufacture of mineral
manures. I shall not detain you by a discussion of this aspect of the
question, which is of very great moment, consequent upon the removal
of large numbers of people from rural to urban districts; but I may
be excused in saying that agricultural chemistry shows that the
soil--"perpetual man"--contains the ingredients needful to support human
life, and feeding those animals meant for man's use. These ingredients
are seized upon by the roots of plants and converted into aliment. If
they are consumed where grown, and the refuse restored to the soil, its
fertility is preserved; nay, more, the effect of tillage is to increase
its productive power. It is impossible to exhaust land, no matter how
heavy the crops that are grown, if the produce is, after consumption,
restored to the soil. I have shown you how, in the reign of Queen
Elizabeth, a man was not allowed to sell meat off his land unless he
brought to, and consumed on it, the same weight of other meat. This was
true agricultural and chemical economy. But when the people were removed
from country to town, when the produce grown in the former was consumed
in the latter, and the refuse which contained the elements of fertility
was not restored to the soil, but swept away by the river, a process
of exhaustion took place, which has been met in degree by the use of
imported and artificial manures. The sewage question is taken up mainly
with reference to the health of towns, but it deserves consideration in
another aspect--its influence upon the production of food in the nation.

An exhaustive process upon the fertility of the globe has been set on
foot. The accumulations of vegetable mould in the primeval forests
have been converted into grain, and sent to England, leaving permanent
barrenness in what should be prolific plains; and the deposits of the
Chincha and Ichaboe Islands have been imported in myriads of tons, to
replace in our own land the resources of which it is bereft by the civic
consumption of rural produce.

These conjoined operations were accelerated by the alteration in the
British corn laws in 1846, which placed the English farmer, who tried to
preserve his land in a state of fertility, in competition with foreign
grain--growers, who, having access to boundless fields of virgin soil,
grow grain year after year until, having exhausted the fertile element,
they leave it in a barren condition, and resort to other parts. A
competition under such circumstances resembles that of two men of equal
income, one of who appears wealthy by spending a portion of his capital,
the other parsimonious by living within his means. Of course, the latter
has to debar himself of many enjoyments. The British farmer has lessened
the produce of grain, and consequently of meat; and the nation has
become dependent upon foreigners for meat, cheese, and butter, as well
as for bread.

This is hardly the place to discuss a question of agriculture, but
scientific farmers know that there is a rotation of crops, [Footnote:
The agricultural returns of the United Kingdom show that 50 and 1/2 per
cent of the arable land was under pasture, 24 per cent under grain,
12 per cent under green crops and bare fallow, and 13 per cent under
clover. The rotation would, therefore, be somewhat in this fashion:
Nearly one fourth of the land in tillage is under a manured crop or
fallow, one fourth under wheat, one fourth under clover, and one fourth
under barley, oats, etc., the succession being, first year, the manured
crop; next year, wheat; third year, clover; fourth, barley or oats; and
so on.] and that as one is diminished the others lessen. The quantity
under tillage is a multiple of the area under grain. A diminution in
corn is followed by a decrease of the extent under turnips and under
clover; the former directly affects man, the latter the meat-affording
animals. A decrease in the breadth under tillage means an addition to
the pasture land, which in this climate only produces meat during the
warm portions of the year. I must, however, not dwell upon this topic,
but whatever leads to a diminution in the labor applied to the land
lessens the production of food, and DEAR MEAT may only be the supplement
to CHEAP CORN.

I shall probably be met with the hackneyed cry, The question is entirely
one of price. Each farmer and each landlord will ask himself, Does it
pay to grow grain? and in reply to any such inquiry, I would refer to
the annual returns. I find that in the five years, 1842 to 1846, wheat
ranged from 50s. 2d. to 57s. 9d.; the average for the entire period
being 54s. 10d. per quarter. In the five years from 1870 to 1874 it
ranged from 46s. 10d. to 58s. 8d., the average for the five years being
54s. 7d. per quarter. The reduction in price has only been 3d. per
quarter, or less than one half per cent.

I venture to think that there are higher considerations than mere profit
to individuals, and that, as the lands belong to the whole state as
represented by the Crown, and as they are held in trust TO PRODUCE FOOD
FOR THE PEOPLE, that trust should be enforced.

The average consumption of grain by each person is about a quarter
(eight bushels) per annum. In 1841 the population of the United Kingdom
was 27,036,450. The average import of foreign grain was about 3,000,000
quarters, therefore TWENTY-FOUR MILLIONS were fed on the domestic
produce. In 1871 the population was 31,513,412, and the average
importation of grain 20,000,000 quarters; therefore only ELEVEN AND A
HALF MILLIONS were supported by home produce. Here we are met with the
startling fact that our own soil is not now supplying grain to even
one half the number of people to whom it gave bread in 1841. This is a
serious aspect of the question, and one that should lead to examination,
whether the development of the system of landholding, the absorptions of
small farms and the creation of large ones, is really beneficial to the
state, or tends to increase the supply of food. The area under grain
in England in 1874 was 8,021,077. In 1696 it was 10,000,000 acres, the
diminution having been 2,000,000 acres. The average yield would probably
be FOUR QUARTERS PER ACRE, and therefore the decrease amounted to the
enormous quantity of EIGHT MILLION QUARTERS, worth L25,000,000, which
had to be imported from other countries, to fill up the void, and feed
8,000,000 of the population; and if a war took place, England may, like
Rome, be starved into peace.

An idea prevails that a diminution in the extent under grain implies an
increase in the production of meat. The best answer to that fallacy lies
in the great increase in the price of meat. If the supply had increased
the price would fall, but the converse has taken place. A comparison of
the figures given by Geoffrey King, in the reign of William III., with
those supplied by the Board of Trade in the reign of Queen Victoria,
illustrates this phase of the landholding question, and shows whether
the "enlightened policy" of the nineteenth century tends to encourage
the fulfilment of the trust which applies to land--THE PRODUCTION OF
FOOD.

The land of England and Wales in 1696 and 1874 was classified as
follows:

                                           1696.              1874.
                                           Acres.             Acres.
     Under grain,                       10,000,000          8,021,077
     Pastures and meadows,              10,000,000         12,071,791
     Flax, hemp, and madder,             1,000,000          ---------
     Green crops,                        ---------          2,895,138
     Bare fallow,                        ---------            639,519
     Clover                              ---------          2,983,733
     Orchards,                           1,000,000            148,526
     Woods, coppices, etc,               3,000,000          1,552,598
     Forests, parks, and commons,        3,000,000|
     Moors, mountains, and bare land,   10,000,000|-        9,006,839
     Waste, water, and road,             1,000,000|
                                        -----------       -----------
                                        39,000,000         37,319,231

The estimate of 1696 may be corrected by lessing the quantity of
waste land, and thus bringing the total to correspond with the extent
ascertained by actual survey, but it shows a decrease in the extent
under grain of nearly two million acres, and an increase in the area
applicable to cattle of nearly 8,000,000 acres; yet there is a decrease
in the number of cattle, though an increase in sheep. The returns are as
follows:

                     1696.         1800.        1874.
     Cattle       4,500,000     2,852.428    4,305,440
     Sheep       11,000,000    26,148,000   19,859,758
     Pigs         2,000,000   (not given)    2,058,791

The former shows that in 1696 there were TEN MILLION acres under grain,
the latter only EIGHT MILLION acres. Two million acres were added for
cattle feeding. The former shows that the pasture land was TEN MILLION
ACRES, and that green crops and clover were unknown. The latter that
there were TWELVE MILLION ACRES under pasture, and, in addition, that
there were nearly THREE MILLION ACRES of green crop and THREE MILLION
ACRES of clover. The addition to the cattle-feeding land was eight
million acres; yet the number of cattle in 1696 was 4,500,000, and in
1874, 4,305,400. Of sheep, in 1696, there were 11,000,000, and in 1874,
19,889,758. The population had increased fourfold, and it is no marvel
that meat is dear. It is the interest of agriculturists to KEEP DOWN THE
QUANTITY AND KEEP UP THE PRICE. The diminution in the area under corn
was not met by a corresponding increase in live stock--in other words,
the decrease of land under grain is not, PER SE, followed by an increase
of meat. If the area under grain were increased, it would be preceded by
an increase in the growth of turnips, and followed by a greater growth
of clover; and these cattle-feeding products would materially add to the
meat supply.

A most important change in the system of landholding was effected by the
spread of RAILWAYS. It was brought about by the influence of the trading
as opposed to the landlord class. In their inception they did not appear
likely to effect any great alteration in the land laws. The shareholders
had no compulsory power of purchase, hence enormous sums were paid for
the land required; but as the system extended, Parliament asserted the
ownership of the nation, over land in the possession of the individual.
Acting on the idea that no man was more than a tenant, the state took
the land from the occupier, as well as the tenant-in-fee, and gave it,
not at their own price, but an assessed value, to the partners in a
railway who traded for their mutual benefit, yet as they offered to
convey travellers and goods at a quicker rate than on the ordinary
roads, the state enabled them to acquire land by compulsion. A general
act, the Land Clauses Act, was passed in 1846, which gives privileges
with regard to the acquisition of land to the promoters of such works as
railways, docks, canals, etc. Numbers of acts are passed every session
which assert the right of the state over the land, and transfer it from
one man, or set of men, to another. It seems to me that the principle
is clear, and rests upon the assertion of the state's ownership of the
land; but it has often struck me to ask, Why is this application of
state rights limited to land required for these objects? why not apply
to the land at each side of the railway, the principle which governs
that under the railway itself? I consider the production of food the
primary trust upon the land, that rapid transit over it is a secondary
object; and as all experience shows that the division of land into small
estates leads to a more perfect system of tillage, I think it would be
of vast importance to the entire nation if all tenants who were, say,
five years in possession were made "promoters" under the Land Clauses
Act, and thus be enabled to purchase the fee of their holdings in the
same manner as a body of railway proprietors. It would be most useful
to the state to increase the number of tenants-in-fee--to re-create the
ancient FREEMEN, the LIBERI HOMINES--and I think it can be done without
requiring the aid either of a new principle or new machinery, by simply
placing the farmer-in-possession on the same footing as the railway
shareholder. I give at foot the draft of a bill I prepared in 1866 for
this object.

     [Footnote: A BILL TO ENCOURAGE THE OUTLAY OF MONEY UPON LAND
     FOB AGRICULTURAL PURPOSES.

     Whereas it is expedient to encourage the occupiers of land
     to expend money thereon, in building, drainage, and other
     similar improvements; and whereas the existing laws do not
     give the tenants or occupiers any sufficient security for
     such outlay: Be it enacted by the Queen's Most Excellent
     Majesty, by and with the advice and consent of the Lords
     Spiritual and Temporal, and Commons in Parliament assembled,
     and by the authority of the same:

     1. That all outlay upon land for the purpose of rendering it
     more productive, and all outlay upon buildings for the
     accommodation of those engaged in tilling or working the
     same, or for domestic animals of any sort, be, and the same
     is hereby deemed to be, an outlay of a public nature.

     2. That the clauses of "The Land Clauses Consolidation Act
     1845," "with respect to the purchase of lands by agreement,"
     and "with respect to the purchase and taking of lands
     otherwise than by agreement," and "with respect to the
     purchase money or compensation coming to parties having
     limited interests, or prevented from treating or not making
     title," shall be, and they are hereby incorporated with this
     act.

     3. That every tenant or occupier who has for the past five
     years been in possession of any land, tenements, or
     hereditaments, shall be considered "a promoter of the
     undertaking within the meaning of the said recited act, and
     shall be entitled to purchase the lands which he has so
     occupied, 'either by agreement' 'or otherwise than by
     agreement,' as provided in the said recited act."

    Then follow some details which it is unnecessary to recite here.]

The 55th William I. secured to freemen the inheritance of their lands,
and they were not able to sell them until the act QUIA EMPTORES
of Edward I. was passed. The tendency of persons to spend the
representative value of their lands and sell them was checked by the
Mosaic law, which did not allow any man to despoil his children of their
inheritance. The possessor could only mortgage them until the year of
jubilee--the fiftieth year. In Switzerland and Belgium, where the nobles
did not entirely get rid of the FREEMEN, the lands continued to be held
in small estates. In Switzerland there are seventy-four proprietors for
every hundred families, and in Belgium the average size of the estate is
three and a half hectares--about eight acres. These small ownerships are
not detrimental to the state. On the contrary, they tend to its security
and well-being. I have treated on this subject in my work, "The Food
Supplies of Western Europe." These small estates existed in England at
the Norman Conquest, and their perpetual continuance was the object of
the law of William I., to which I have referred. Their disappearance was
due to the greed of the nobles during the reign of the Plantagenets,
and they were not replaced by the Tudors, who neglected to restore the
men-at-arms to the position they occupied under the laws of Edward the
Confessor and William I.

The establishment of two estates in land; one the ownership, the
other the use, may be traced to the payment of rent, to the Roman
commonwealth, for the AGER PUBLICUS. Under the feudal system the rent
was of two classes--personal service or money; the latter was considered
base tenure. The legislation of the Tudors abolished the payment of rent
by personal service, and made all rent payable in money or in kind. The
land had been burdened with the sole support of the army. It was then
freed from this charge, and a tax was levied upon the community. Some
writers have sought to define RENT as the difference between fertile
lands and those that are so unproductive as barely to pay the cost of
tillage. This far-fetched idea is contradicted by the circumstance
that for centuries rent was paid by labor--the personal service of the
vassal--and it is now part of the annual produce of the soil inasmuch as
land will be unproductive without seed and labor, or being pastured by
tame animals, the representative of labor in taming and tending them.
Rent is usually the labor or the fruits of the labor of the occupant.
In some cases it is income derived from the labors of others. A broad
distinction exists between the rent of land, which is a portion of the
fruits or its equivalent in money, and that of improvements and houses,
which is an exchange of the labor of the occupant given as payment for
that employed in effecting improvements or erecting houses. The latter
described as messuages were valued in 1794 at SIX MILLIONS per annum; in
1814 they were nearly FIFETEEN MILLIONS; now they are valued at EIGHTY
MILLIONS.

   [Footnote--A Parliamentary return gives the following information
   as to the value of lands and messuages in 1814 and 1874:

                             1814-15.        1873-74.
   Lands,                  L34,330,463     L49,906,866
   Messuages,               14,895,130      80,726,502

     The increase in the value of land is hardly equal to the
     reduction in the value of gold, while the increase in
     messuages shows the enormous expenditure of labor.]

The increase represents a sum considerably more than double the national
debt of Great Britain, and under the system of leases the improvements
will pass from the industrial to the landlord class.

It seems to me to be a mistake in legislation to encourage a system by
which these two funds merge into one, and that hands the income arising
from the expenditure of the working classes over to the tenants-in-fee
without an equivalent. This proceeds from a straining of the maxim that
"what is attached to the freehold belongs to the freehold," and was made
law when both Houses of Parliament were essentially landlord. That maxim
is only partially true: corn is as much attached to the freehold as
a tree; yet one is cut without hindrance and the other is prevented.
Potatoes, turnips, and such tubers, are only obtained by disturbing
the freehold. This maxim was at one time so strained that it applied to
fixtures, but recent legislation and modern discussions have limited the
rights of the landlord class and been favorable to the occupier, and I
look forward to such alterations in our laws as will secure to the man
who expends his labor or earnings in improvements, an estate IN PERPETUO
therein, as I think no length of user of that which is a man's own--his
labor or earnings--should hand over his representative improvements to
any other person. I agree with those writers who maintain that it is
prejudicial to the state that the rent fund should be enjoyed by
a comparatively small number of persons, and think it would
be advantageous to distribute it, by increasing the number of
tenants-in-fee. Natural laws forbid middlemen, who do nothing to make
the land productive, and yet subsist upon the labor of the farmer, and
receive as rent part of the produce of his toil. The land belongs to the
state, and should only be subject to taxes, either by personal service,
such as serving in the militia or yeomanry, or by money payments to the
state.

Land does not represent CAPITAL, but the improvements upon it do. A man
does not purchase land. He buys the right of possession. In any transfer
of land there is no locking up of capital, because one man receives
exactly the amount the other expends. The individual may lock up
his funds, but the nation does not. Capital is not money. I quote a
definition from a previous work of mine, "The Case of Ireland," p. 176:

"Capital stock properly signifies the means of subsistence for man, and
for the animals subservient to his use while engaged in the process of
production. The jurisconsults of former times expressed the idea by the
words RES FUNGIBILES, by which they meant consumable commodities, or
those things which are consumed in their use for the supply of man's
animal wants, as contradistinguished from unconsumable commodities,
which latter writers, by an extension of the term, in a figurative
sense, have called FIXED capital."

All the money in the Bank of England will not make a single four-pound
loaf. Capital, as represented by consumable commodities, is the product
of labor applied to land, or the natural fruits of the land itself. The
land does not become either more or less productive by reason of the
transfer from one person to another; it is the withdrawal of labor that
affects its productiveness.

WAGES are a portion of the value of the products of a joint combination
of employer and employed. The former advances from time to time as wages
to the latter, the estimated portion of the increase arising from their
combined operations to which he may be entitled. This may be either in
food or in money. The food of the world for one year is the yield at
harvest; it is the CAPITAL STOCK upon which mankind exist while engaged
in the operations for producing food, clothing, and other requisites
for the use of mankind, until nature again replenishes this store. Money
cannot produce food; it is useful in measuring the distribution of that
which already exists.

The grants of the Crown were a fee or reward for service rendered; the
donee became tenant-in-fee; being a reward, it was restricted to a man
and his heirs-male or his heirs-general; in default of heirs-male or
heirs-general, the land reverted to the Crown, which was the donor.
A sale to third parties does not affect this phase of the question,
inasmuch as it is a principle of British law that no man can convey to
another a greater estate in land than that which he possesses himself;
and if the seller only held the land as tenant-in-fee for HIS OWN LIFE
and that of HIS heirs, he could not give a purchaser that which belonged
to the Crown, the REVERSION on default of heirs (see Statute DE DONIS,
13 Edward I., ANTE, p. 21). This right of the sovereign, or rather
of the people, has not been asserted to the full extent. Many noble
families have become extinct, yet the lands have not been claimed, as
they should have been, for the nation.

I should not complete my review of the subject without referring to what
are called the LAWS OF PRIMOGENITURE. I fail to discover any such law.
On the contrary, I find that the descent of most of the land of England
is under the law of contract--by deed or bequest--and that it is only in
case of intestacy that the courts intervene to give it to the next heir.
This arises more from the construction the judges put upon the wishes of
the deceased, than upon positive enactment. When a man who has the right
of bequeathing his estate among his descendants does not exercise that
power, it is considered that he wishes the estate to go undivided to the
next heir. In America the converse takes place: a man can leave all his
land to one; and, if he fails to do so, it is divided. The laws relating
to contracts or settlements allow land to be settled by deed upon
the children of a living person, but it is more frequently upon the
grandchildren. They acquire the power of sale, which is by the contract
denied to their parents. A man gives to his grandchild that which he
denies to his son. This cumbrous process works disadvantageously, and it
might very properly be altered by restricting the power of settlement
or bequest to living persons, and not allowing it to extend to those who
are unborn.

It is not a little curious to note how the ideas of mankind, after
having been diverted for centuries, return to their original channels.
The system of landholding in the most ancient races was COMMUNAL. That
word, and its derivative, COMMUNISM, has latterly had a bad odor.
Yet all the most important public works are communal. All joint-stock
companies, whether for banking, trading, or extensive works, are
communes. They hold property in common, and merge individual in general
rights. The possession of land by communes or companies is gradually
extending, and it is by no means improbable that the ideas which
governed very remote times may, like the communal joint-stock system, be
applied more extensively to landholding.

It may not be unwise to review the grounds that we have been going over,
and to glance at the salient points. The ABORIGINAL inhabitants of
this island enjoyed the same rights as those in other countries,
of possessing themselves of land unowned and unoccupied. The ROMANS
conquered, and claimed all the rights the natives possessed, and levied
a tribute for the use of the lands. Upon the retirement of the Romans,
after an occupancy of about six hundred years, the lands reverted to
the aborigines, but they, being unable to defend themselves, invited
the SAXONS, the JUTES, and the ANGLES, who reduced them to serfdom, and
seized upon the land; they acted as if it belonged to the body of the
conquerors, it was allotted to individuals by the FOLC-GEMOT or assembly
of the people, and a race of LIBERI HOMINES or FREEMEN arose, who paid
no rent, but performed service to the state; during their sway of
about six hundred years the institutions changed, and the monarch, as
representing the people, claimed the right of granting the possession of
land seized for treason by BOC or charter. The NORMAN invasion found a
large body of the Saxon landholders in armed opposition to William, and
when they were defeated, he seized upon their land and gave it to his
followers, and then arose the term TERRA REGIS, "the land of the king,"
instead of the term FOLC-LAND, "the land of the people;" but a large
portion of the realm remained in the hands of the LIBERI HOMINES or
FREEMEN. The Norman barons gave possession of part of their lands to
their followers, hence arose the vassals who paid rent to their lord by
personal service, while the FREEMEN held by service to the Crown. In
the wars of the PLANTAGENETS the FREEMEN seem to have disappeared, and
vassalage was substituted, the principal vassals being freeholders. The
descendants of the aborigines regained their freedom. The possession
of land was only given for life, and it was preceded by homage to the
Crown, or fealty to the lord, investiture following the ceremony. The
TUDOR sovereigns abolished livery and retainers, but did not secure the
rights of the men-at-arms or replace them in their position of FREEMEN.
The chief lords converted the payment of rent by service into payment
in money; this led to wholesale evictions, and necessitated the
establishment of the Poor Laws, The STUARTS surrendered the remaining
charges upon land: but on the death of one sovereign, and the expulsion
of another, the validity of patents from the Crown became doubtful. The
PRESENT system of landholding is the outcome of the Tudor ideas. But the
Crown has never abandoned the claim asserted in the statute of Edward
I., that all land belongs to the sovereign as representing the people,
and that individuals HOLD but do not OWN it; and upon this sound and
legal principle the state takes land from one and gives it to another,
compensating for the loss arising from being dispossessed.

I have now concluded my brief sketch of the facts which seemed to me
most important in tracing the history of LANDHOLDING IN ENGLAND, and
laid before you not only the most vital changes, but also the principles
which underlay them; and I shall have failed in conveying the ideas of
my own mind if I have not shown you that at least from the Scandinavian
or ANGLO-SAXON invasion, the ownership of land rested either in the
people, or the Crown as representing the people: that individual
proprietorship of land is not only unknown, but repugnant to the
principles of the British Constitution; that the largest estate a
subject can have is tenancy-in-fee, and that it is a holding and not an
owning of the soil; and I cannot conceal from you the conviction which
has impressed my mind, after much study and some personal examination
of the state of proprietary occupants on the Continent, that the best
interests of the nation, both socially, morally, and materially, will be
promoted by a very large increase in the number of tenants-in-fee; which
can be attained by the extension of principles of legistration now in
active operation. All that is necessary is to extend the provisions
of the Land Clauses Act, which apply to railways and such objects, to
tenants in possession; to make them "promoters" under that act; to treat
their outlay for the improvement of the soil and the greater PRODUCTION
OF FOOD as a public outlay; and thus to restore to England a class which
corresponds with the Peasent Proprietors of the Continent--the FREEMAN
or LIBERI HOMINES of ANGLO-SAXON times, whose rights were solemnly
guaranteed by the 55th William I., and whose existence would be the
glory of the country and the safeguard of its institution.






End of the Project Gutenberg EBook of Landholding In England, by Joseph Fisher

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