Chapter 7

"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.