The Land Laws,
The English Citizen
His Rights and Responsibilities
by Frederick Pollock 1887
PREFACE
Some words of introduction seem desirable in order to explain what this book aims at, and what it does not. The subject is the Land Laws of England, not those of Scotland or of Ireland, which, for different reasons, were beyond my plan. Scotland has a distinct legal system of her own with a distinct history; the study of it, a highly interesting one so far as with my slight knowledge of it I can judge, would be a separate undertaking. Irish land law, on the other hand, is nothing but imported English law with certain modifications. The only material modifications are those lately made in the relations of landlord and tenant, and they are too much involved with political controversies, and with still unsettled questions peculiar to Ireland, to be profitably treated in connection with English institutions.
Dealing, then, with England alone, I have endeavoured to make the principles and the leading features of our law of real property intelligible to a reader who is without legal training, but is willing to take some little pains to understand. I say the principles and the leading features, not the application in detail; it would be worse than idle to hold out any pretence of making every man his own lawyer in such matters. There are already quite enough popular books of that kind for such as will put their trust in them. I have adopted in the main the historical plan of exposition, rather because the nature of the subject-matter forced it on me than from any general prepossession. My task has been to speak at the same time exactly enough for lawyers and plainly enough for laymen; a task of which the difficulty can be estimated only by those who have made the trial I have endeavoured not to introduce technical terms without explanation, and to make every explanation accurate as far as it goes. Having, moreover, to do this in a small compass, it cannot be that I have not sometimes erred; happily those who are most able to detect errors will also be the most ready to forgive them. In touching on controverted points of policy, I have tried to state facts clearly and fairly, but have not attempted to disguise my own opinions.
Various topics of government and public economy, more or less connected with land tenure, may be said to lie on the border of the main subject, and question may be made whether they would be properly included, and which of them, if any, should be preferred to the others. But no doubtful choice among such topics has offered itself in the present undertaking, for the simple reason that there was no room to treat of any of them. Local Taxation, Succession Duties, and the Game Laws, are examples of the kind. It seemed better to give a tolerably full view of a few things not generally accessible than to slur them over for the sake of adding a hasty summary of other things already familiar in public affairs, and assignable with at least equal justice to other departments.
In a work of this scale it is impossible to make such acknowledgments as otherwise would be due. Scholars will be able to follow and test my authorities without much trouble; for their use (and without displeasure, I trust, to the less curious reader) I have given specific indications where I thought it convenient. And yet I have debts which I must not omit to mention. Mr. Elton has laid me under obligation by private communications as well as by his published writings. My friends Mr. H. W. Elphinstone, Mr. G. H. Blakesley, and Mr. F. W. Maitland, have at all times given me the fullest benefit of their learning and criticism—a generosity in things of the mind, comparable to that of the apostolic community in things of worldly substance, which has ever been the tradition of our common profession. Among books which handle the matter on the economic rather than the legal side, that which I have found most useful and trustworthy is the Warden of Merton’s English Land and English Landlords.
An Appendix is added for the discussion of certain special points. The Notes marked A, B, C, and D are intended for historical students as well as for lawyers. Notes E and F and, in a less degree, G, are addressed to lawyers only.
The Index is made, by a simple typographical device, to serve to some extent the purpose of a Glossary.
ADVERTISEMENT TO THE SECOND EDITION
Since the first edition was published, now just four years ago, the movement of historical research and of legislative reform has alike been active.
I have made in the text and the notes such alterations as appeared necessary, and have given references to new sources of information or argument Mr. Elton’s review of the first edition in the Academy (March 22, 1884) deserves to be specially noted here for the sake of students.
It will be understood that many of the statements about current legislation, or projects thereof, are in their nature transitory and subject to correction.
The dedication to the Bishop of Chester stands unchanged, in memory of the too short time for which I had the honour of being his colleague at Oxford. For this anachronism, if it be one after explanation, I ask no excuse.
Lincoln’s Inn, Michaelmas 1887.
ADVERTISEMENT TO THE SECOND EDITION
Since the first edition was published, now just four years ago, the movement of historical research and of legislative reform has alike been active.
I have made in the text and the notes such alterations as appeared necessary, and have given references to new sources of information or argument. Mr. Elton’s review of the first edition in the Academy (March 22, 1884) deserves to be specially noted here for the sake of students.
It will be understood that many of the statements about current legislation, or projects thereof, are in their nature transitory and subject to correction.
The dedication to the Bishop of Chester stands unchanged, in memory of the too short time for which I had the honour of being his colleague at Oxford For this anachronism, if it be one after explanation, I ask no excuse.
F.P.
Lincoln’s Inn, Michaelmas 1887.
CONTENTS
Chapter I: Introductory
Chapter II: The Old English Customary Laws
Chapter III: The Medieval System
Chapter IV: Legislation and Transformation
Chapter V: Development op the Modern Law
Chapter VI: Landlord and Tenant
Chapter VII: Modern Reforms and Prospects.
APPENDIX
Note A. The Germanic Land System
Note B. The Classification op Anglo-Saxon Estates in Land
Note C. Villenage, Villein Tenure and Copy-holds
Note D. Primogeniture in Socage Lands
Note E. “Cestui que Use” at Common Law
Note F. Settlements and Perpetuity
Note G. Recent Publications on Land Transfer.
Chapter I, Introductory
The laws and usages which govern the tenure of land in England are, as a whole, unique. Our land system is commonly called feudal, sometimes by persons who use the word as a disparaging epithet without any clear notion of what it means. This is not in itself wrong, but it conveys a most imperfect notion of the number and variety of the influences that have made our land laws what they are. The statement and the belief implied in it are so inadequate as to be misleading. Almost every possible kind of ownership, and almost every possible relation of owners and occupiers of land to the State and to one another, have at one time or another existed in England, and left a more or less conspicuous mark in the composite structure of the English law of real property. We have to follow out a long story before we can understand how much and how little feudalism abides in the present state of things. There are still in force many local customs and rights which are now known to date—in their nature in all cases, and in their actual origin in many—from a time when the feudal system was unheard of, and indeed when private property in land, as we now understand it, was a struggling novelty. The main body of the technical expressions of the law, and of the technical habit of thought which they preserve, is derived from feudalism; but this feudalism has been deeply modified by circumstances peculiar to England. In Scotland the feudal system grew to its full development with little interference, if any, from legislation; and the forms of Scottish land law still preserve the system in great comparative purity. Here legislation has constantly interfered, and its effects have been to produce radical changes. These changes have not always been such as the Legislature intended; in one or two material in- stances the effect has been the very opposite of that which was aimed at. One celebrated measure of Henry VIII’s reign, the Statute of Uses, was passed in order to restore the ancient simplicity and notoriety of titles to land, though more in the interest of the Crown and other great lords than in that of the public. The object of the statute was almost at once defeated by judicial construction. But it did not remain inopera- tive; it had other and quite unexpected results. The first was to make the transfer of land, without any act or ceremony for securing publicity, far easier than it had ever been before. The second, worked out in the days of the Commonwealth and the Restoration by the ingenuity of two or three lawyers, was to introduce the method of strict settlement of landed property which is practised by a great proportion of landowners to this day. Thus, as we shall see more fully hereafter, a measure intended to compel notoriety and simplicity became the chief instrument of secrecy and complication. Turning, on the other hand, from the titles and tenures of owners to the relation between owners and occupiers, we find this resting to a great extent on something thoroughly opposed to feudal ideas—namely, the modem economical conception of land as an article of commerce which, like any other commodity, is bought, sold, and hired for prices regulated by competition. In the case of town dwelling-houses, and buildings used for trade or manufacture, this view is carried out to its full extent, and the relation between landlord and tenant is a purely commercial one. As to farm-holdings, it is still otherwise in many cases, though I suppose by no means in all, owing to the survival of usages and habits which we may in a loose way call feudal if we please.
Thus our system of landed property is a structure of the most complex and heterogeneous kind. So great is the technical complication and difficulty of our laws on the subject that within the special studies of the legal profession the study of them is a speciality of itself. Even among accomplished lawyers the number of those who are well versed in real property law is but small; the number of those who know the history of the law is a smaller one still. A generation ago learned persons might be found, such as the late Lord St. Leonards, who seriously maintained that this complication was inevitable, and was indeed only a mark of perfection in the machinery. Few persons, if any, can be found to maintain it now. But this very complication which calls for amendment is one of the chief obstacles in the way of amendment being made. The whole subject is such a mystery to laymen that, though they may know something is amiss, they cannot tell where the remedy should begin, and do not know what to ask for. Among lawyers a considerable number are hostile to change, and a greater number indifferent. Those who make the shoe do not feel it pinch, and those who feel it pinch do not know how shoes are made. It has often been said that in no country are landowners so ignorant of their legal position or so dependent on legal advice as in England; and I believe it cannot be contradicted. It would seem, therefore, worth a serious effort to overcome or break down in some fashion the barrier between the minds of lawyers and laymen which is apt to make discussion between them a game of cross purposes. How this can best be brought about is a knotty question. Statements made in the proper technical terms are in danger of not being understood, or, what is worse, being misunderstood; while for those who are once accustomed to the use of such terms it is far from easy to state the same facts, even in the most general outlines, in language to be understood by all men, and yet accurate as far as it goes. One common method of popular exposition, not only in law but in other special sciences, is to give loose or insufficient explanations of the terms of art, and then use the terms as if the reader had been enabled really to understand them. This is the most dangerous way of all, being by so much worse than those which lead to mere bewilderment as false knowledge is worse than ignorance. Instruction of this kind is answerable, presumably, for the loose talk about primogeniture and entail which still abounds in the mouths of people who might easily know better. Serious and capable writers, Mr. George Brodrick and some others, have done something to provide a remedy. But the discussion of economical questions has left them, as a rule, hardly room enough to show clearly and plainly the legal composition of our land system. Now the whole structure, as we have just said, and as Mr. Brodrick points out in a notable passage of his book, is a result of many successive accretions, and those not of a natural but of a casual sort. It has not been produced by deliberate legislation, nor yet by the spontaneous growth of custom. Hence it cannot be understood by itself. It has no intrinsic coherence, and no organic principles. It is a series of historical accidents, and becomes intelligible only in the light of its historical conditions. And this is not less the case, but rather the more so, when the persons desiring to understand it are viewing it from the outside and are unfamiliar with its details. Our aim therefore will be, so far as our skill reaches and the thing can be done on so small a scale, to disentangle the several historical elements that go to make up our modem English real property law.
Let us imagine ourselves placed on some commanding point within the boundaries of a great English estate, looking over its mansion-house and its park, its fields and pastures, its woods and wastes. Over against us there rises an open hill, covered, it may be, with brilliant gorse and heather in their season, and fringed and crested with wild woods. These are open and common lands, over which many persons have rights of putting so many beasts to graze, of cutting turf and underwood for the use of their habitations, and the like, according to the custom of the country and place. Such rights were explained by our law-books, until quite recently, so as to make them fit into a complete feudal theory of landholding. They were supposed to have been granted by the lord of the manor to his tenants, or to have grown up within his domain by way of sufferance and usage, till the long-continued approval of successive lords passed from a matter of favour into a matter of right This, or something like it, may sometimes have happened. But in general the true history is just the other way. The people who exercise rights of common exercise them by a title which, if we could only trace it all the way back, is far more ancient than the lord’s. Their rights are those which belonged to the members of the village community long before manors and lords of the manor were heard of. Perhaps there are also parcels of Lammas land in the neighbourhood—fields which are enclosed and cultivated part of the year, and during the other part thrown open for the common use of the several occupiers, or (as is more likely to be the case) of a larger class of persons. Such arrangements are relics of the time when separate ownership of land was in its infancy. These and other ancient communal rights are often vested in the inhabitants of the parish, which may well be thought to represent a still older community, and to preserve in such lingering usages some traces of its original constitution. Examples of them have been much diminished in the last few generations by the steady progress of enclosures, but they are still not uncommon. Between our imagined post and the waste land there lies a stretch of cultivated ground, occupied by one or more farmers. They may hold under leases for a considerable term of years, or only from year to year, but in the latter case they may, under favourable circumstances, enjoy a good deal of practical security in their tenure. In any case their legal condition is of a relatively modem and simple kind. It was barely provided for in the economy of the feudal system, and is exempt from the mysteries of the law of real property. A leaseholder’s interest in his farm is dealt with, in case of his death without disposing of it by will, in exactly the same way as his interest in the stock on the farm, or money in the funds, or any other movable property. In the language of the law it is personal, and not real estate. The complexities of which we have spoken affect him only through his landlord, in so far as they tie the landlord’s hands in dealing with the tenant and improving the property. Nearer to us, again, at the foot of the park, is a little home-farm, kept in hand and managed by an agent on the lord’s immediate behalf. This method of cultivation was the prevailing one for a considerable part of the Middle Ages. We now meet with it only as an exception; sometimes it is a luxury, sometimes an experiment, sometimes the necessity of a bad season.
Now let us turn to the park and the manor-house itself, which may fill the foreground of our imaginary landscape. The lord of all this is himself a tenant, though not in the popular sense, or to much practical effect. His lands are held of the Crown, or perhaps of some other superior who himself holds of the Crown. His predecessors before the Commonwealth time owed rent or services, or both, and were subject to a variety of occasional dues and payments, some of them of a vexatious kind. They were bound to follow the king or other over-lord when he went forth to war, and bring with them a specified armed force, or pay for the maintenance of its equivalent. The feudal dues and services have been abolished; but ancient money rents, technically known by various names, and reduced to a nominal amount by the changes that have taken place in the standard of the coinage and the value of the precious metals, often survive to this day. Some ancient rents are not in money but in kind. The city of London still pays to the Crown certain horse-shoes and nails as the rent of a piece of land in the parish of St. Clement Danes, once granted by the king to a farrier, and a faggot as the rent of some waste lands in Shropshire.[1] In some cases the Crown is entitled to receive some weapon of war, or part of warlike equipment—a sword, a banner, a pair of gloves, or spurs. Once or twice these ancient tenures, which were esteemed peculiarly honourable, have been imitated in modern times on the occasion of public grants for distinguished military services. But if the remnant of feudal relations to a superior is at this day no burden to the English landowner, and at most adds a picturesque circumstance to his title, he is apt to be restrained in other ways of more modern and subtle invention. The lord of this mansion is named by all men its owner; it is said to belong to him: the park, the demesne, the farms, are called his. But we shall be almost safe in assuming that he is not the full and free owner of any part of it. He is a “limited owner,” having an interest only for his own life. He might have become the full owner, though still under a greater or less burden of encumbrances created by his predecessors, if he had possessed the means of waiting, the independence of thought and will to break with the tradition of his order and the bias of his education, and the energy to persevere in his dissent against the counsels and feelings of his family. But he has had every inducement to let things go their accustomed way. Those whom he had always trusted told him, and probably with sincere belief, that the accustomed way was the best for the family, for the land, for the tenants, and for the country. And there could be no doubt that it was at the time the most agreeable to himself. As soon, or almost as soon, as he was of age to bind himself, he entered into a new settlement, by which his own interest was reduced, like his father’s before him, to that of a life-tenant, and the succession of his offspring secured in advance down to the furthest limits allowed by the law. The legal machinery by which this is done is little more than two centuries old, and, though refined and improved in details by the ingenuity of generations of conveyancers, has not been much altered in substance since its first invention. It owes nothing to legislation, except by accident. Thus, then, the apparent owner of the domain is no more absolute as to its actual disposition and management than the king is absolute in a limited monarchy. He can do but little of his own motion, and what he does is for the benefit of successors not of his own choice. Likely enough, he has no clear notion of his own powers and their limits. An English family settlement is on the whole less intelligible, and certainly less understood by most English citizens, than the English Constitution.
In practice the limited owner has to put himself a good deal in the hands of experts, and oftentimes he is fain to make the family solicitor his prime minister. The advice he gets is pretty sure to be on the safe side—that is, on the side of not trying experiments. A family solicitor, unlike those who administer affairs of State, has no motive whatever for being enterprising in his client’s affairs, and many to the contrary. He cannot hurt himself by overcaution, and may hurt himself much by rashness. So he takes, as a rule, the line of doing as little as possible, which is one much commended in all walks of life to those whose first object is their own peace and quietness.
Peradventure the lord of this estate is lord in a strict legal sense—that is, as lord of a manor. We have, indeed, assumed as much in our description. In this capacity he is a kind of small sovereign prince, possessed of his own courts, and doing justice according to his own procedure and customs. But his powers and jurisdiction are shrivered by the changes and chances of centuries into next to nothingness, and only the names of them remain. In the voluminous settlement which confers title to these lands on him and his issue, the manorial franchises are enumerated in a roll of strange-looking terms, many of which are now obscure even to the lawyer, unless he is also a historical student; there are English words among them of immemorial antiquity, which had their technical meaning centuries before the Conquest, and which the Norman lawyers, only half understanding them, thought it prudent to leave un-translated. They held their own through the invasion of Norman-French and Latin, and their native English hardly knows them again when it meets them. As for the lord himself, he knows neither the words nor their meaning unless he happens to be a scholar and an antiquary. Nor is he concerned to know them for any purpose of business. The ancient franchises and profits are obsolete, and have been so for many generations. The manorial courts exist in form, and their records are kept in the ancient fashion. But the fine by which a thief caught within the boundaries redeemed his life is no longer a source of revenue to the manor, neither does the lordship of “view of frankpledge and all that to view of frankpledge doth belong” convey any sensible increase to the wealth or the dignity of the modern landowner. To be lord of a manor is to be the lord of a secular ruin, in which he that knows the secret of the crabbed spell-book may call up the ghosts of a vanished order of the world.
Thus we have taken a hasty view of the legal aspects of an English landed estate, which will presently come before us one by one for a more detailed survey. It is an unparalleled accumulation of layer upon layer of diverse materials. Tenure and convention, custom and competition, legislation and usage, the rude common life of the free Teutonic warrior tribes, an aristocratic military system sprung from sheer necessities of mutual defence, and disguised in the terms and reasons of a Romanised law, the subtle deductions of a legal profession trained in scholastic disputes, the attempts of an impatient Parliament to make their crooked things straight, the not less subtle and more flexible inventions of modern lawyers, the partial clearances and half-hearted amendments of modern law-reformers: all these have gone to the making of the vast and inextricable mass, and all must be considered in their turn by the seeker who is bold enough to search out the history and the meaning of the land laws of England.
It may be not amiss, meanwhile, to point out one or two of the general features in which the legal conceptions of ownership and rights over land are at variance with the popular ones. It is commonly supposed that land belongs to its owner in the same sense as money or a watch. This has not been the theory of English law since the Norman Conquest, nor has it been so, in its full significance, at any time. No absolute ownership of land is recognised by our law-books except in the Crown. All lands are supposed to be held, immediately, or mediately, of the Crown, though no rent or services may be payable, and no grant from the Crown on record. The feudal lawyers forestalled to some extent in substance, and to a large extent in form, the modern Socialist dream of the State as the universal landlord. It was much more thoroughly forestalled, as we shall shortly see, by the Germanic customs of unknown antiquity which our remoter forefathers brought with them into Britain. On the other hand, the law is equally far from countenancing the belief that there is land which belongs to nobody and is free to all the world. Some such belief is probably held by most people who are not lawyers. Appearances are certainly in its favour, and indeed the thing was legally possible in the Roman system, and I suppose is still legally possible in many Continental countries. But in England it is not legally possible. Land may be subject to public rights of way, to rights of common, and to a great variety of private rights. It may be worthless for all purposes except those of recreation, and the owner may be undiscoverable. But an owner there must be somewhere; the Crown in the last resort if no other is forthcoming. I am not aware that the public at large have a strict right to be anywhere except on highways (including estuaries and navigable rivers) and public paths, in places expressly dedicated to public use and enjoyment by their former owners or by Act of Parliament, and on the foreshore of the sea between high and low water mark. And, strictly speaking, the right to be even on a highway is limited to the purpose of passing and repassing. As Whewell, when he was still only a tutor of Trinity College, Cambridge, said of the College bridge over the Cam, it is a place of transit and not of lounge. In like manner the right to be on the foreshore is of doubtful extent. It is said to be limited to purposes connected with navigation and fishery, though this opinion was given not without weighty protest, and would perhaps not be upheld now. There is a widely-spread popular notion that the public have the right of going not merely along the foreshore, but along the edge of the cliff, where by reason of the steepness of the coast there is no foreshore; in short, that it is of common right to make one’s way along the coast somehow, by the foreshore where there is any, but if not, then otherwise. So far as I can discover, there is no legal authority whatever for this belief. “We may take the legal contrast between Wimbledon Common and Dartmoor as another pretty striking illustration. To ordinary observation they both have the air of waste places belonging to nobody, and Dartmoor, I need hardly say, is much the waster and wilder of the two. A shrewd observer might guess from the situation of Wimbledon Common that it would hardly remain open at this day if something had not been done to preserve it. But certainly no one but a lawyer would guess that the public have a better right to be on Wimbledon Common than on Dartmoor. Yet such is the case. Wimbledon Common has been dedicated to the public by an Act of Parliament. Dartmoor is, in practice, quite as free for all the world to walk and ride on, but the number of persons who have any strict right to be there is probably by no means a large one. Most of the moor belongs to the Duchy of Cornwall, which, on the whole, is better for the public than if it belonged to private owners. The only legal obstacle to Dartmoor being enclosed is the existence of rights of pasture and turf-cutting over it, which, of course, belong not to the public but to a definite though considerable number of commoners. Probably it might be found in the case of Dartmoor, as in the case of Epping, that the old forest laws afford means which may at this day be used with effect against encroachments, but still the public at large would have no enforceable right.[2] The same is the case with any other common which is not preserved by statute. Practically the unenclosed and untilled ground of England is free to the public for two reasons. The owners have no interest in keeping the public off, and would find it both an invidious and a troublesome thing if they tried. Against a trespasser not in pursuit of game the only remedy is a civil action, and no jury would give substantial damages, nor any judge give costs, against a trespasser on a wild moor or down who had neither molested the owner, disputed his title, nor injured his property. No one is likely to spend his money for the sake of having a farthing damages, being told by the judge that it serves him right, and making himself odious and ridiculous. As a rule we hear of actions for trespass only when there is a claim of right to be settled. This is an example of a principle that runs through the whole administration of law, and in English law is very conspicuous. It is impossible so to limit the rights of owners that they cannot sometimes be harshly and vexatiously used. But it is possible to have things so ordered that the extreme use of a man’s legal rights which would be intolerable to his neighbours shall also give to himself so much trouble as will deter most men from attempting it. This is accomplished in England partly by an active public opinion, partly by the wide discretion entrusted to judges and juries. For many things of great importance, including all the modem developments of the British Constitution, we are content to rely on understandings rather than positive law. The day may come when express law has to take the place of these informal understandings. It has come in the business of Parliament, and in the relations between landlords and farmers; while these pages are passing through the press, it comes in the matter of labourers’ allotments. It is useless to deprecate changes of this kind in the face of need; but there will always be a sort of people, often the best sort, who regret the old easy-going ways.
It may seem strange that in England, the land where above all others the personal and political rights of the simplest freeman have been saved whole through all changes of princes and dynasties, the law should find so little room for public and unstinted rights of using the very elements. Even the air is not free, for the maxim is that the owner of the soil is owner up to the height above and down to the depth beneath. It seems to be the law that to pass over land in a balloon, at whatever height, without the owner’s or occupier’s license, is technically a trespass. This doctrine does not, for the reasons I have mentioned, lead to any grave inconvenience. If it did, its historical explanation would not throw much light on the question of what should be done with it, much less justify its continuance. But the explanation is not far to seek, and it is fitting that we should put ourselves in a position, so far as we can, to judge ancient institutions and maxims with all fairness, not only as to their present convenience for us, but as to their origin and history, and the reasons of their acceptance in the past In this case history tells us that the conception of rights common to all the public is a modem one. Even the personal freedom of the old days was the right of a privileged class, for below the freeman there were unfree men, serfs bound to the soil and slaves, the conquered foes of past generations and the captives of his own. The Eoman citizenship, which had grown step by step from the exclusive franchise of a conquering tribe to the common right of every freeman in the empire, had its community rudely broken up by the Teutonic invasions. Far into the Middle Ages law was for many purposes not general or territorial, but personal. Besides the radical distinction between free and unfree men, the freeman of the Carolingian empire might be a Frank, or a Lombard, or a Boman provincial, and in every case he would be governed by a different law. So in British India to this day there are widely different laws of marriage and inheritance for the Hindu, the Mussulman, and the Parsee, and sensibly different laws, though not so different, for the Hindus of Bengal and the Hindus of Madraa. In Europe this kind of difference could not persist. The victory of the Christian Church, and the revival of the Roman ideal of uniformity, which had first moulded her institutions and then found a last refuge in them, destroyed all personal distinctions founded on religion by making the Church include the State.[3] Distinctions founded on race went the same way ere long. The Norman and the Englishman, and at a later day the Englishman and the Welshman, became one people. But a man’s rights were still for the most part his rights, not simply as an Englishman, but as a member of some particular class and community. He lived under customs and enjoyed franchises which might be peculiar to his native hundred or even his native parish. In the Middle Ages there were few holders of land, by however humble a tenure, who had not some kind of rights of common annexed to their holdings. And every village and township would no doubt be as anxious to exclude strangers from its woods and pastures as to preserve its ordinary members’ rights in them against encroachment from within or from above. “We know, indeed, that the boundaries of the ancient German communities were guarded by a kind of sacred horror, and the most frightful penalties denounced upon violators of the mark. The medieval Englishman’s rights of common provided for his wants both of use and of recreation. People did not then travel for their pleasure, or make recreation a study. The legal theory which denied the possibility of public rights over land was only the formal expression of the dispositions and habits of society. These being what they were, the usage by which popular rights are acquired could not and did not grow up except within limited particular regions, for particular purposes, and in the acts of small local communities.
[1] These rents are now received by the Queen’s Remembrancer a few days before the beginning of Michaelmas term. The payment has long since become merely ceremonial, the same horse-shoes and nails doing duty on each occasion.
[2] The customs of Dartmoor have never been properly investigated, and the materials are still only in part accessible. There is every reason to believe that the result would be most interesting.
[3] As late as Coke’s time it was the theory of English lawyers that an infidel or pagan could have no civil rights. Jews certainly had none before their expulsion by Edward I. Regulations were made for their government, and they were ultimately banished from the realm, by the sole authority of the Crown; and they are expressly called the king’s serfs in contemporary documents. In medieval theory no one not a Christian could be a real member of the State, and Christianity was one and indivisible.