Landholding in England/Chapter 1
LANDHOLDING IN ENGLAND
CHAPTER I.—IN SAXON TIMES
"There is much that is primitive and simple to be met with, but (apart from the personal habits of the age) nothing of barbarism in the land institutions of Saxon England, unless, indeed, an excessive love for it [land], and an almost exaggerated deference for its possession may be so classed."—"The Land Laws of England," C. Wren Hoskyns.
I PROPOSE to give a brief account of the several steps by which England has arrived at her present position of a country without peasant proprietors. The commonly accepted views contain many errors as to when and why changes took place, and several most important causes are generally entirely overlooked. As we more than other peoples love to go by precedent, it is good that we should be quite sure what precedent has been as to this matter. "Land," says an ancient Irish Tract, supposed to be a part of the Brehon Code, "Land is perpetual man." From the land comes everything which composes our bodily frame; and thus Selden explains the ancient custom of doing homage by offering earth and water—that of which the man is made.
All Englishmen are afraid of that which is new. Very many Englishmen are afraid that this country would no longer be stable if once the great estates ceased to be as large as they are at present, and if small holdings were greatly multiplied. It will be shown that whatever small freeholds are, they are no new thing, but a very old one—older far than the Norman system in which we trust. It will also be shown that the possession of a little land promotes those virtues known as "conservative," rather than those virtues known as progressive. The more conservative a man is, the more ought he to desire for his country a numerous peasantry, who are not petty tenants-at-will, subject to eviction, but little freeholders, secure in their tenure.
The Saxons were of the great Gothic stock—the second of the three great migrations from East to West, from Asia to Europe. At first they were called Scythians; but even by Pliny's time, one tribe of them had become so predominant that the Persians called all Scythians "Sacae," from their ancient name of "Saksun." The Saxons were of the same blood as the Teutons, but they had spread farther west, and Tacitus does not mention them among the great Germanic tribes. At first the Saxons settled on the north side of the Elbe, on the neck of the Cimbric Chersonesus—the old name of the Danish provinces—and in the three isles, Nordstrand, Busen and Heligoland. Soon they spread over the whole region between the Elbe and the Eyder—over Jutland, Friesland, Schleswich and Holstein. They became a Confederacy of Tribes, of which the Angles of Holstein were the chief; and so the whole Confederacy came to be called "Anglo-Saxons."
From their earliest appearance on the stage of history, the Saxons were sea-rovers—to put it plainly, pirates—and Heligoland was their chief nest. Long before the Romans left Britain, the Saxons had become so terrible that the officer appointed to protect our southern coast was called "the Count of the Saxon Shore."
But though the Saxons were pirates, and though their conquest of Britain was one of the most ruthless known to history; though till they became Christian they created nothing, destroyed all the Romans had created, and were solely engaged in cutting one another's throats, in what Milton calls their "wars of kites and crows"; yet they brought with them a precious inheritance, destined to shape the political history of all their after-time. This was the idea of an Assembly of the People; it was called the Witenagemot, or Assembly of the Wise, and without its consent the acts of a Saxon king were illegal. This inheritance has been more or less the common property of all the men of Gothic blood. And inextricably bound up with this idea was the custom of Trial by Jury, whereby a man is tried by his equals, and not by his superiors, as was the case under despotic governments. English law has never lost the impress of this principle.
In historical times, two great systems of land-tenure have prevailed—the allodial and the feudal. The systems may differ in detail in different countries and among different races, but fundamentally all systems belong to one or the other of these two. The differences between them have often been misapprehended. Because the allodial system was a freehold system, it has been sometimes supposed that no duties attached to lands held under it. But we may safely say that some duties (gradually crystallised into the shape of rent, but at first personal service) have always attached to the holding of land, and under the allodial system a man was as much bound to defend his country as under the feudal. The grand fundamental difference was that in the allodial system a man did not hold of an overlord; the duty and service he owed were to the community, not to an overlord. Under the feudal system, all land was held of a feudal superior. The system was a ladder—the little men held of the great men, who in turn held of some great noble, who held directly of the King. And even some little men came to hold directly of the Crown—or as it was called, in capite. This was especially the case where lands had been forfeit, and were granted or sold by the King to a new owner. The reason why the King was so willing to grant even small estates in capite was merely self-defence. Allegiance to a feudal superior was sometimes a very dangerous doctrine—the Norman barons had so high a notion of it that they vehemently resisted the King's demand that their tenants should take a second oath—of allegiance to the King. A baron's tenants formed in effect a little army, ready to fight in the baron's little wars with his neighbours—and sometimes to march with that baron against the King himself!
The old Saxon system, brought with them by the Saxons when they conquered England, was allodial. The word allodial is defined by Blackstone as "every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior."—"Commentaries," II. c. 7.
Counties were divided into Trithings, Rapes or Lathes, and these again into Hundreds or Wapentakes. These two words, "hundred" and "wapentake," used in different parts of England to denote the same division, suggest that after the Saxon conquest the lands of England were divided among each hundred fighting men, or, as we may say, every hundred spears. The Hundred or Wapentake was divided into tithings, and a tithing is sometimes spoken of as a "ville," or town, but we shall better understand the ancient ville if we think of it as a "township," for it was more than a collection of houses. The divisions into Hundreds were not equal, and the amount of land in a Hundred is not known with certainty. The hide may be estimated roughly at a hundred acres (it was sometimes more), but there could be several hundred hides in a Hundred, for Hundreds are spoken of as "single," "double," "triple," and "quadruple." Nor were there a hundred villes in a Hundred. "Never that I know," says Spelman, "are 100 villes found in any Hundred in England. Those are thought large which have 30 or 40; many have not 10, some have only 2, or even i." Blackstone says the Hundred consisted of a hundred families. From all this it is clear that the Saxon system started from the tithing, and the tithing from the household.
There is little doubt that before the Conquest all lands in England were held by the custom of Gavelkind—that is, they were "partible" among all the sons. There was no primogeniture until the custom of knight's service brought it in—partly because the eldest son was the soonest able to bear arms, partly because he would perform his military service with more dignity if he held all the land. In Gavelkind, if one of the sons had died, leaving a son, that son inherited with his uncles. By the time of King John, the presumption was that all soccage lands were held by primogeniture, unless Gavelkind could be proved. But in Kent, all such lands were presumed Gavelkind, and primogeniture must be proved, either by showing that the lands had been "disgavelled," or that they were originally granted on knight's service. Of course this applied to the grants made since the Conquest to Norman feoffees. Gavelkind was an ancient custom of the Saxons and Danes (68 of Canute's Laws).
In Gavelkind, if there are several houses, the eldest son takes his choice of them. If there is only one, it is his, but he must pay its value to his co-heirs.
There is another old custom in Kent and Sussex called Borough English. By it, the youngest son inherits the land. This has been accounted for by supposing that the elder sons would be grown up and off to the wars before their father's death, and therefore unable to fulfil the duties of the tenure. Like Gavelkind, Borough English cannot be disputed as a custom; it must be shown not to hold good in the particular case. It is not peculiar to Kent and Sussex. A letter in the Gentleman's Magazine for 1783 says that the custom of Borough English then still remained in the manor of Taunton Dean in Somerset. "Where, if a tenant dies, having no wife, the youngest son shall enjoy his lands; and if there be no son, then the preference shall be given to the youngest daughter."
The serfs of Saxon times were the descendants of the conquered Britons, or freemen who had been degraded for crimes, or sometimes men who had sold themselves through misfortune. But these serfs were not numerous in comparison with the classes of the semi-free—the villeins of every degree up to the class known as freemen.
Before the Conquest, land-tenure in England included three rights which have been called "the test of land-freedom." They were:
1. The right of alienation, or transfer by sale or gift.
2. The power of disposal by will.
3. The power of transmission by inheritance.
After the Conquest, the first two were virtually abrogated as to great estates, and the third was completely changed in character so as to subserve only the feudal rule of succession.
In Saxon times, there was: first, "folk-land," or land of the people—that is, the common land of the township, which belonged to the community as a community. Secondly, there was "book-land," by which was meant land granted to individuals by charter. These folk-lands and charter-lands have been compared to the publica terra and the privatus ager of the Romans : the "public land" was the subject of the famous agrarian agitations. It was only by consent of the Witen that a Saxon king could grant any public domains—the folk-land. In Saxon times the King was not the lord paramount of all land. That was a much later theory; Edward III. was the first English king to claim universal ownership.
Under the Saxon system, any part of the folk-land could be held by individuals as tenants of the Commonwealth, and might, as we have just seen, be granted with consent of the Witen to private persons. But all land was subject to three conditions: 1. Military service in defensive war; 2. the repair of bridges; 3. the repair of royal fortresses.
The large owners were the Eorls, or Earls. They held under the Crown. The small were the Ceorls, or Churls. They were independent landowners in their humble way. Hallam says of them: "They are the root of a noble plant ; the free soccage tenants, or English yeomanry, whose independence stamped with peculiar features both our Constitution and our national character" ("Middle Ages," ii. 386). The churl was a yeoman, and when he held 5 hides (600 acres) he became "of thaneright worthy." A register was kept of lands, deeds, decisions, and mortgages. Transfer was very simple — the Saxons trusted to publicity. A grant of land was enrolled in the Shirebook, after proclamation made in public Shiremote, for any that could claim the lands to be conveyed. Such transfers were "as irreversible as the modern fine with proclamations of recovery" (Gurdon on "Courts Baron"). Hoskyns says of Saxon times: "It might almost shame a reader of our Bluebooks on 'Sale and Transfer of Land,' to find a 'Registry of Title,' and what was then almost its equivalent, a 'Register of Assurances,' existing in the ancient English County Courts, while the age of Christendom was yet written in three figures." This is an illustration of the terrible truth that the world can move backwards, that progress is very far from being constant, that ebb and flow by no means necessarily counterbalance each other, with a constant if slight gain of territory; but that a truer image is afforded by the wearing away of a coast in the storms of each succeeding winter, with occasional catastrophes by which a whole village may be carried away or a harbour ruined for ever.
In these old times before the Conquest, the power of disposition by Will was unrestricted—even an oral declaration was valid if made in the presence of eight or ten witnesses. All Wills had to be established in the County Court.
It is from Domesday Book that we get the deepest insight into life in rural England in the tenth and eleventh centuries—and most of the life was rural; there were very few towns of any size. Domesday sheds a light backwards over the seventy years since Ethelred the Unready, and tells us almost as much of England before the Conquest as of England afterwards. It shows us what the English meant when they took the Conqueror at his word, and demanded their old laws. Long before Domesday, the land had been divided into hides, or as it was called "hidated." Domesday constantly refers to these former "hidations," and tells us that such and such land was taxed at so much "in the time of King Ethelred," or "in the time of King Edward," or "in the time of Harald"—whom it never calls King. The first hidation for assessment was made in the time of Ethelred the Unready (979-1016). That unlucky monarch raised a tax called the "Danegeld," variously described as a war tax for resisting the Danes when they came, and as a bribe to induce them not to come. For long, the "hide" was a very elastic term. The Latin equivalents show that it meant whatever land was attached to a homestead. After the Conquest, a "carucate," or " plough-land " (called also an "oxgang") meant as much land as one team of oxen could plough in a year. Hides were not even always of the same size—one that was mostly arable would be of smaller extent than one in which there was much forest and waste. The object of hidation was assessment, and what the land could pay was taken into account. This helps us to understand how a hide sometimes contains (as in Dorset) 240 acres. Usually, it is anything between 30 and 60 acres.
Long before Ethelred the whole land was divided into tithings and hundreds. We shall best understand the tithing by considering it as a parish. It could not consist of fewer than ten men—that is, ten families, or homesteads; and Domesday shows that it was seldom as small as this. It was called a tithing, because each of the ten householders would contribute one tenth of any fine or compensation adjudged to be due from the community for the offence of an undiscovered criminal. For, ferocious as the Saxons had shown themselves in war, in peace they preferred to punish criminals in purse, instead of in life or limb. Instead of hanging him, or chopping off a hand or a foot, they made the offender pay a fine. And if the offender could not be discovered, the little society of the village, or the larger society of the hundred or the shire, had to make good what he had done, so far as money could do. Thus crime was unpopular, and a criminal was looked upon with disfavour, even by those whom he had not personally injured. From the tithing upwards there were common responsibilities. The lord was responsible for the evil deeds of his villeins; and if there was no lord, but the land was held in community, then the community was liable.
The great man of a township did not own it in the sense in which it is owned by a modern squire. The part which he farmed himself—called in Norman times the demesne—was all that was his in this sense. The rest was held by tenants, sometimes called "sokemen" from the "soke" or jurisdiction; and said to hold in "soccage" because they gave plough-service by way of rent. In those days, when roads were bad and few, and communication difficult, every township had its own jurisdiction, some part of which still survives. These local courts could not sit without a certain number of sokemen. There was the Court Baron, presided over by the Town Reeve, elected by the township, and the Court Leet, or local criminal court. In both these courts, questions of book-land could be decided.
Note.—Spelman says, under the word Allodium, that it is prædium liberum nulli servituti obnoxium— free land, subject to no service; the opposite to feudum, which is always subject to some service. A feud cannot be handed down even to a son or nephew without consent of the lord; but allodium can run over the whole line of heirs, and be given or sold to anyone—even though the lord should demur. On this account, it is called allodium by the Saxons, from leod; for a means to or for, and leod, the people; and as a feudum is the property of a lord, so is an allodium the property of the people. In the Laws of Canute, "allodial" is opposed to "feudal," and is called "book-land," which in the Laws of Alfred is hereditary land, and seems to be the same as what is now fee-simple. Allodium is also called free land, which a man holds of none, nor acknowledges any in another place or jurisdiction—for land is bound to a lord as to protection and jurisdiction. See Spelman, Glossarium.
- The first migration was the Celtic; the third, the Sclavonic.
- "The Anglo-Saxons, Lowland Scotch, Normans, Danes, Norwegians, Swedes, Germans, Dutch, Belgians, Lombards, and Franks, have all sprung from that great fountain of the human race, which we have distinguished by the terms, Scythian, German, or Gothic."—Sharon Turner, "History of the Anglo-Saxons," i. 93.
- As ten families of freeholders made up a town or tithing, so ten tithings composed a superior division, called a "Hundred, as consisting of ten times ten families."—"Commentaries." Introduction, s. 4.
- The man who had committed a crime, and could not pay the fine, and could find no one to pay it for him, clasped his hands in court, and said that he had no one "to make amends" for him. Then he lost his freedom, and sank with his children into the ranks of the servi. For a year, however, he might be redeemed.
- This is often called copyhold in later times. The original idea of copyhold went back to the Saxon conquest.
- A carucate was only plough-land. The rest of the estate is given in acres. Four virgates made 1 acre. This was long measure. When used in connection with a hide, a virgate means much more—it is then anything between 15 and 30 acres. The acre of Domesday is about the same as our own, as defined by Edward I. It is always unequal-sided, never square.
- Allodium. In Swedish, udalgodo; Ger. allodium; Fr. alleu, or franc-alleu'; Low Latin, allodium. A word of uncertain etymology. According to Pontoppidan, it comes from all (odh=all property, whole estate, or property in the highest sense of the word). Odh is connected with udal; Danish, odel; Orcadian, udal'; all having the same signification as the word allodial.—Lloyd's Encyclopedic Dictionary.