Review of the Book:
The Origins of the Common Law
by Arthur R. Hogue
Edgar Buck
[Reprinted from Land & Liberty,
September-October, 1987]
This is a well-researched book by an American professor on the
origins of the Common Law of England. It makes an important
contribution to the understanding of the civilizing influence of the
Common Law, and does much to establish in the reader's mind the
flavour of the times in which it originally developed.
The author begins with an assumption that "the Common Law has
grown, now rapidly now reluctantly, to keep pace with the changes in
the social order from which it is inseparable".
Although by some the Common Law is defined as a body of law based
upon custom alone, it "had its roots in the soil of native
feudalism, notably the land law and the law of succession".
The discussion on stability and change provokes a realization that
life in the middle ages was necessarily very different from that of
later centuries. For example, the population of England in the
thirteenth century was about two millions, who lived for the most part
in rural villages. London itself contained about 50,000 residents,
but, whatever may be said on this score, it seems clear that in the
context of the times, the Common Law grew up with the consent of the
people as individuals, taking into account custom, interpreted and
made permanent by recorded judicial decisions.
The book clothes these general inferences with illuminating details.
For instance, comparatively soon after Magna Carta (1215) balances in
the Royal treasury dropped as low as £2.8s.ld. (£2.40p) on
29th February, 1286.
The details concerning the king's borrowings speak of loans at 120%
p.a. interest, and that much of the borrowing was from foreign
lenders, because the king could not be sued for debt in English
courts, and the charge of usury could not be brought against an alien
creditor.
There is interesting detail as to how leaseholds came to be used in
support of royal borrowings, and maybe this was the first appearance
of leaseholds; although use for the purpose of estate management was a
motive later on.
The chapter on "Free Tenures and their Obligations"
enlightens by the statement that when land was more abundant than
money, the vassal usually received a "fief -- a grant of land to
be held by the tenure of military service or knight service.
The section on "Tenure by Sergeanty", being a grant of land
in return for the performance of some special service, contributes to
the "flavour" of understanding to which reference has
already been made.
As I progressed through the book, I found myself leaving the role of
mere reviewer to turn to broader considerations. Previously acquired
knowledge and impressions intervened to widen the canvas. It became
possible to gain still more enlightenment by considering the role
played by statute law.
The book deals in the main with the Common Law and quotes Professor
Plucknett as concluding "We are compelled however ... to bear
constantly in mind the cardinal fact that our Common Law is custom ..."
Custom, I submit, is a set of rules which results from personal
assent of the many -- unwritten, it is true, but having the
fundamental attribute of acceptance and establishment of what was
acceptable and desirable, and seen so to be, at the time.
Under it, the much-maligned feudal system operated to ensure that the
expenses of government -- which, in those days in large part were
represented by national defence and military expeditions -- were
provided by services of various kinds by land holders.
In short, it was the land of England which provided the expenses
of government.
It is to the statute law that we must turn to see how that situation
was changed. Understanding is sometimes aided by chronology. For this
one should go back, not to Magna Carta but to the Domesday Book.
After the Norman Conquest, the two books called "Domesday"
(1086) were compiled at the behest of William the Conquerer. These
books gave quite precise detail concerning the land of many of the
counties of England. What could be the purpose of this but to provide
a record of all land belonging to the king for subsequent enforcement
and taxation?
Magna Carta (which the author refers to as "The first Statute of
the Realm") seems to have been the response of the landowning
Barons and the landowning Church. No doubt many of the fine phrases of
that measure record many highly desirable declarations, but I submit
that the main purpose was to break the power of the king as supreme
landowner.
THE FACT that the revolt was by those holding land of the king, is
significant in itself. The Carta was in the form of a declaration of
the King (a copy of it is set out in Vol X, Encyclopaedia Brittanica,
page 1032) and gave enormous power to a committee of 25 Barons and
Churchmen by its clause 61. Such were the fine phrases employed, that
one hesitates to infer the main motive as an effort by landholders to
avoid the obligations then current, and possibly in the future to be
imposed through a completed Domesday Book.
But taking all this with the information in the book now under
review, and in particular the details of the financial embarrassment
of the Kings in 1286 and 1289, it is submitted that the motive is not
misrepresented.
Indeed, this is supported by detail in pages 217 and 218 of the book,
where there appears the following passage: "During the reign of
Henry II" (1154-1188) "the Royal Courts had been concerned
to protect seisin of freehold."
Feudalism was still very much alive, tenants by service still
contributed heavily to the defense of the realm; the fief was still an
economic base for the support of a man-at-arms and his family. But by
the reign of Edward 1st much had altered; the outward formalities of
tenures failed to conceal the fact that men invested in land as a
means of accumulating wealth.
Although feudal forms of tenure persisted, tenures were bought and
sold freely in an active market. If this traffic in land were not
regulated, it would quickly spawn long chains of tenure and deprive
great barons and magnates of the incidents of feudal tenures.
By statute Edward provided for the substitution of the buyer for the
seller in any transfer of lands and prohibited further sub-infeudation
of land. Thus the Statute of Quia Emptores regulated the buying and
selling of land with the intention of preserving to the Barons -- and
the Crown -- the wealth obtainable from wardships marriages and
escheats".
From these beginnings the absolute private ownership of land
progressed. Already the 1215 version of Magna Cart a contained
provisions to provide for inheritance for continuity of the family.
Gradually the ownership of land became vested in fewer and fewer
people. This process was accentuated by the Enclosure Acts later on
(there were 4091 such Acts between 1700 and 1844).
The consequence was that by 1932 the land of our country was owned by
2% of its people. This was the situation which was recognised as a
social evil from biblical times and the law given to Moses on Mount
Sinai provided for a re-distribution every generation of 50 years
(Jubilee). "Ye shall not therefore oppress one another"
(Leviticus Chapter 25 V17).
By Section 1 of the Law of Property Act 1925 on legal estates and
equitable interests it was declared:
"(1) The only interests or charges in or over land
which are capable of subsisting or of being created at law are: (a)
an estate in fee simple absolute in possession; (b) a term of years
absolute."
The words still have legal connotations, but, they are "freehold"
and "leasehold" respectively. However this declaration was
substantially foreshadowed by the Conveyancing and Law of Property Act
1881 and that was only declaratory of the situation as to land tenure
which had grown up over the centuries.
Land monopoly had serious social consequences of which there is
monumental evidence still standing. On the one hand there are the huge
houses of the landed aristocracy. One of them has 365 rooms. On the
other hand there are the workhouses for paupers, some of which still
exist.
I read as a child a chant as a pauper funeral passed. It ran:
"Rattle his bones over the stones,
He's only a pauper who nobody owns!"
Many of the paupers were able-bodied men who had to crack stones for
a night's lodging. The welfare state and the industrial revolution
have intervened but the social evil of land monopoly continues to deny
to people their just economic inheritance.
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