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+Project Gutenberg Etext of Landholding In England, by Joseph Fisher
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+Title: Landholding In England
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+Author: Joseph Fisher
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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 savethat 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 homo 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 homo, 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 HOMO 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 HOMO 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 HOMO.
+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 homo 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 homo 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 homo 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 guarenteed by the 55th William I., and whose existence
+would be the glory of the country and the safeguard of its
+institution.
+
+
+
+
+
+End of Project Gutenberg's Landholding In England, by Joseph Fisher
+
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