Front Page Titles (by Subject) ( b ): EQUALITY. - The Collected Papers of Frederic William Maitland, vol. 1
The Online Library of Liberty
A project of Liberty Fund, Inc.
( b ): EQUALITY. - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 1 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 1.
About Liberty Fund:
The text is in the public domain.
Fair use statement:
Equality has never been so universally accepted an ideal of politics as Liberty. Still, it would on all hands be admitted that “Equality before the law” is good. We require—(1) an impartial administration of justice, and (2) impartial laws—that is, laws making no distinctions save such as are necessary consequences of the principle according to which all laws should be framed1 . But we must pass to more controverted matter, to the claims which have been made in favour of equality of political power, and equality of property
The premises from which Locke would deduce a system of morality are: the existence of a Supreme Being, infinite in power, goodness, and wisdom, whose workmanship we are, and on whom we depend; and of ourselves as understanding, rational beings2 . But when we see him at work on his political system we find that he has obtained another premise, which is not a consequence of those just mentioned. Men are “promiscuously born to all the same advantages of nature, and the use of the same faculties3 .” Now in favour of this doctrine of the equality of men’s natural faculties Locke has scarcely a word to say. This is the very corner-stone of Locke’s politics; he quietly assumes it. Whether Locke took it from Hobbes may be doubted; but it is noticeable that this assumption is made by our first psychologist, and had its origin in the psychologist’s belief that introspection gives us a clue to human action. At any rate, it was not until the study of psychology was supplemented by other studies that this belief was abandoned. The study of history was not sufficient; Adam Smith had not freed himself from it. That we now see it to be false is due chiefly to those who have studied physiology as well as psychology.
Locke’s denial of innate ideas and innate principles probably led, though it did not drive him to this opinion. Though antecedently to all experience a man’s mind may be a blank, it does not follow that the same external influences will produce the same effects on all blank minds. It is not necessary to Locke’s argument against innate ideas that similar characters should be formed by similar external circumstances acting on different minds.
But after all, this matters little. Let us grant that all men are equal at starting, must we say that they are always to be treated as equals? Now, to say that those who come out of God’s hand as equals should always be treated as equals, is just specious; but there is a difficulty which stares Locke in the face. How are we to justify paternal power? Paternal power has been a standing protest against those who would found a system on natural equality. Locke has to admit that idiots, minors, and lunatics may be coerced without their consent being asked, and the reason he gives is, that such persons cannot know the law of nature. Those who have a natural right to be free and equal are those who have a capacity of knowing the law, and this capacity all men of the age of twenty-one and upwards have, and have apparently in an equal degree, if we except idiots and lunatics1 . Now of this, his fundamental proposition, Locke gives no proof whatsoever, he gives no proof that our faculty of knowing the law of nature is not a matter of degree. If all men are, after the age of twenty-one, capable of knowing the law of nature, what are we to say of atheists, who, as Locke says cannot, or will not, acknowledge such a law? Filmer’s editor is triumphant; Solvitur Legendo! is in effect his reply. All men equal? Who can write like Sir Robert? Locke’s friends have a better right to such an argument. It is particularly strange that Locke should speak as if all men had an equal capacity of perceiving the law of reason, for he is rather fond of dwelling on the differences between the moral conceptions of different men, on the crimes which men can commit with “confidence and serenity,” and has been reproved for so doing2 . And even if we have equal faculties for perceiving the moral law (and it is on the universality of “reason” that Locke lays most stress) it does not follow that we have equal faculties for doing what we know to be right. Thus, even granting that all men are born with equal faculties, we must still affirm that, at the age at which Locke would set them free from all government to which they have not consented, they are not equal in that faculty on which their conduct as citizens depends, much less in other faculties.
But it may be said that inequalities are adventitious, that when we came from God’s hand we were all equal, and that this is evidence of God’s intention. Without entering deeply into theology, we may surely urge, in the first place, that we have no reason to say that God willed the equality of babies more than the inequality of men. We must do one of two things, either we must ascribe all events to God’s will, or only good events, and if we choose the latter alternative we must know independently what goodness is. On the first supposition we must say that tigers being God’s workmanship ought not to be destroyed. On the second, if we accept Locke’s account of good and evil, we must say that equality of political power is only willed by God when it is productive of pleasure.
But if there is little to be said for this argument as it is in Locke, there is less to be said for it as it is in Tom Paine. Locke says, “the taking away of God, though but in thought, destroys all.” Truly it destroys his system; we can argue about the intentions of God, we cannot argue about the intentions of Nature, even when we spell Nature with a capital letter.
Mr Spencer gets rid of one difficulty which troubled his predecessors, he denies a paternal right of coercion—we are to have a free nursery. In that complete democracy which he thinks the one passable form of government, lunatics, idiots, babies in arms are apparently to have the suffrage. Coleridge said that this was a legitimate deduction from the politics of pure reason. Perhaps he thought this a reductio ad absurdum.
Here appears one of the greatest difficulties which lie in the way of those who would transcend Utilitarianism, by setting up “the freedom of every man to do all that he wills, provided that he infringes not the equal freedom of any other man,” as an Ideal of politics. For such philosophers hold that a purely democratic government “is the only one that is not intrinsically criminal1 ,” and yet they would find it hard to prove that such a government is the one most likely to acknowledge their supreme principle. If reason directs us both to pure democracy and to the greatest freedom of all, there is some chance of reason being self-contra dictory. Here is an antinomy, the recognition of one portion of the rightful freedom of all may render improbable the realization of our complete ideal. What we should do in this case may be a question not of ethics, but of moral therapeutics, but it is one which fairly tests the practical value of a philosophy.
We have however arguments for equality of political power coming from a very different quarter, coming from the strictest sect of empirical Utilitarians.
To determine the best form of government was according to Bentham a very simple matter. What we want is that the rulers shall be those only whose interests are bound up with the interests of the people, this is “the junction-of-interests principle.” Any rulers who are not answerable to the people will have sinister interests, which will take the place of general interests in their minds. He saw in pure democracy the one way of securing rulers who have no sinister interests. But the junction-of-interests-principle would seem only fitted to secure “appropriate probity,” and Bentham also required “appropriate intellectual aptitude,” and “appropriate active talent.” Blackstone himself held that virtue is the characteristic of democracy, but that we require an admixture of monarchy and aristocracy to give us strength and wisdom. But Bentham thought that democracy will provide not only appropriate probity (virtue), but also appropriate intellectual aptitude (wisdom), and appropriate active talent (strength). In his Catechism of Parliamentary Reform he does indeed seem to doubt whether pure democracy will provide sufficient wisdom; he would allow the king to nominate certain members of the Assembly who should have a right of speech, though no right of voting1 . But in his Constitutional Code, “Corrupter General” has vanished, and we hear little of intellectual aptitude and active talent. The one thing is to secure governors who have no sinister interests2 .
The same theory, freed from all qualifications and thrown into a precise form, was elaborated by James Mill. The doctrine of his essay is so simple that it may be stated in a few lines. “The reason for which government exists is, that one man, if stronger than another, will take from him whatever the other possesses and he desires.” There are three simple forms of government: monarchy, aristocracy, democracy. The two former are bad, because the rulers will engross all the materials of happiness. It might be thought that they would be easily satiable. But no, they are insatiable, for they require not only present pleasure, but security for future pleasure. They will therefore attempt to reduce their subjects into a state of complete dependence. They will leave them but the bare means of subsistence, they will keep them in the most intense terror. Democracy has not the same evils, for the rulers being all, the interests of the rulers are the interests of all. But democracy without a representative system is impossible. We should therefore try to obtain a representative government, which, by means of universal, equal suffrage, constant elections, and secret voting, should find its interest in acting in exactly the same way as that in which a complete assembly of the people would act, were it not too large to act at all.
This was an effort to construct a pure deductive science of government by the method of Hobbes. An attempt was made to justify it by citing the success of the same method when applied to political economy. Coleridge declared that a pure science of political economy was an impossibility; experience shews that he was wrong. But the pure deductive method which does seem applicable to the narrow subject-matter of plutology, is inapplicable in the wider science of politics. We can make a supposition about the distribution of wealth never very incorrect, in the case of great commercial transactions absolutely true—Men will buy as cheaply and sell as dearly as possible. On the other hand, we have no one proposition about what all rulers will do, sufficiently true to be the basis of a pure science. Even if we admit that all men seek their own interests, this is only true because it is vague. It is obviously far less definite than the proposition from which pure plutology starts.
Least of all can we admit James Mill’s axioms. He had taken his opinion of human nature from Mandeville and Hobbes, and thought it demonstrable that no king will be content until he has reduced his subjects into perfect slavery. It is certainly amazing that one who professed that he wished for the greatest happiness of the greatest number should have allowed no social impulses to any one else. If he imagined that were he king he could still be a well-wisher to mankind, the whole argument collapses. As it is, he falls into all sorts of absurdities. Only males of forty years old and upwards are to have votes. The interest of those under forty is taken to be identical with the interest of those over forty, and yet one man of forty will always, if not deterred by fear, take from another man of forty all that the latter has and the former desires. The fact is, that were men such as they are here painted, all discussion about government would be utterly in vain. Not only would the state of nature be a state of war, that is a trifle, it would be absolutely demonstrable that no other state could exist. What would be the first action of the representative assembly? It would be a step towards reducing the rest of the nation to slavery. Would they be kept in terror by the prospect of losing their seats? Would they not rather take care that there should be no future election? The people might thwart the attempt: but then, the people can thwart the attempts of a king or of an aristocracy.
Above all, who is it that will really make laws in a democracy? The majority. Then is it not absolutely certain that they will reduce the minority into slavery?
This objection is powerful, but it must be admitted that James Mill had some defence against it. Having assumed that, at any rate for the purposes of a science of government, we may look upon man simply as a being desiring the materials of happiness, he could maintain that in a democracy of such men there could never exist any permanent party divisions. There would be no permanent majority or minority. Combination to rob would have a limit. The poor majority would of course pass laws taking from the rich minority their wealth until wealth was equally distributed. Beyond this they would not go. When equality of power has given birth to equality of property, then all further combination would, on our hypothesis as to man’s one motive, be impossible. A and B would have no more temptation for combining to rob C, than A and C have for combining to rob B, or B and C to rob A. An equal distribution of property would thus be a point of equilibrium.
But this shows the essential weakness of the position. The political combinations of which we read are seldom the results of a desire for wealth. Suppose that in the community the majority are Catholics, the minority Protestants, may not the former entirely exclude the latter from the possession of any legislative power? In such a case how would the Protestant be better off than if he were the subject of a Catholic prince? The laws made would be laws made by Catholics, not laws made partly by Protestants, partly by Catholics. The whole legislative force moves as the majority wishes, there is no diagonal between the ayes and the noes. Doubtless the grievances of the Protestants will be heard, and this is a real and powerful argument for representative government, men being what they are; it would be no argument at all were men such as James Mill described them. That the community “cannot have an interest opposite to its interests,” is doubtless true, but that a majority of the citizens can have an interest opposite to the interests of the whole, is equally true, and far more important.
James Mill however would reduce his opponents to an absurdity, by saying that if men are not what he represents them, then there is no necessity for government. A more easily exposed fallacy was never given to the world. We want government not because all men are what he represents them, but because some men are something like what he represents all men to be. Were there but one thousand of his “men” in the country, we should require a government. But this would not do for James Mill, he must have a universal proposition or nothing. What is true of one man is true of all; this assumption of the psychologists has been the bane of our political philosophy.
In his Fragment on Mackintosh Mill defended his Essay on Government. He actually cites Plato and Hume as witnesses for the defence, because they held that there should be some community of interests between the rulers and the ruled. There was no need to bring philosophic authority in favour of so common a common-place. The questions of his opponents, which James Mill had really to answer, were: (1) Is a community of interest between the ruler and the ruled all that you require—is it not necessary that the ruler should have the power as well as the will to rule well? (2) Is this power to be found in representative governments? (3) Can you prove that the interests of the majority and the interests of the whole must be identical? (4) Is it not demonstrable from your principles that peaceful government is an impossibility? (5) Has not your theory been contradicted by the whole course of history? In answering this last question “let him bethink himself of the age in which there was scarcely a throne in Europe which was not filled by a liberal and reforming king, a liberal and reforming emperor, or, strangest of all, a liberal and reforming pope1 .” There is scarcely a Tory who would not allow some force to the junction-of-interests principle, but there is not the slightest absurdity in believing with Plato and Hume, with men in general, that the ruler should be one who has the same interests as the ruled, and at the same time rejecting the democratic ideal.
As to the authority of Hume. Hume certainly says “political writers have established it as a maxim, that in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave, and to have no other end in all his actions than private interest2 .” But common sense would tell us that we ought not to make our constitution one fitted only for perfectly wise and virtuous beings. The whole meaning of Hume’s sentence depends on the meaning of self-interest. Interest is an elastic word. Hume would not have agreed to the following (which will shew how far James Mill could go). “We have seen that the principle of human nature, upon which the necessity of government is founded, the propensity of one man to possess himself of the objects of desire at the cost of another leads on by infallible sequence, where power over a community is attained, and nothing checks, not only to that degree of plunder which leaves the members (excepting always the recipients and instruments of the plunder) the bare means of subsistence, but to that degree of cruelty which is necessary to keep in existence the most intense terrors.” It is further to be gathered from the context that the qualifying words “where nothing checks,” mean “where no fear checks.”
This argument for equality of political power, though in many ways so different from Locke’s doctrine, has its origin in the same tendency, the tendency to overlook the differences between men. We see this tendency at work as soon as ever an attack is made on the doctrine of innate ideas. Hobbes expressly announces that introspection gives us the true clue to human action, history is worthless1 . This was not necessary to Locke in his argument against innate ideas; but it was extremely natural to assume that all blank minds are the same. Bentham and James Mill do not conclude from this that all men ought to be treated equally by introducing a theological doctrine; but the supposition colours all their philosophy. They could not conclude from this that all grown men when placed in the same circumstances will have the same desires, but they are led to exaggerate the force of external circumstances. Thus they do not contemplate the tyranny of a majority as possible, because they do not contemplate the possibility of there being in a democracy bodies of men with interests permanently conflicting. The external circumstances as regards matters of government are the same for all, therefore the desires of all as regards matters of government will be the same.
The love of simplicity has done vast harm to English political philosophy. The question of how far the interests of all men are harmonious is of fundamental importance, and yet our philosophers have failed to find a satisfactory answer, because they have assumed that the answer must be simple. English philosophy has here forgotten its usual caution; it has rushed from one extreme to the other. At one time it is ready to say that men are only kept from destroying each other by fear, at another that true self-love and social are the same. This comes of following the lead of Hobbes, of prefering to assume that all men are alike, to insisting that history must be called in to verify à priori theories. One of the strangest instances of this rushing into extremes occurred when Macaulay’s Westminster Reviewer changed the principle of James Mill just discussed into an assertion, that the greatest happiness of the individual is in the long run to be obtained by pursuing the greatest happiness of the aggregate.
But the pupil may be excused when the master is inconsistent. Bentham, writing on international law, had said that there is a difficulty as to whose happiness the statesman should seek. Shall it be that of his subjects or that of the whole human race? The answer is, that practically the two are to be obtained by the same means. If a sovereign were to consult only his own subjects’ happiness, he might think it necessary to serve other nations as he actually serves the beasts. “Yet in proceeding in this career, he cannot fail always to experience a certain resistance.” He will find that the line of action which aims at the happiness of all nations is “the line of least resistance.” “For, in conclusion, the line of common utility once drawn, this would be the direction towards which the conduct of all nations would tend, in which their common efforts would find least resistance, in which they would operate with the greatest force, and in which the equilibrium, once established, would be maintained with the least difficulty.” These words are capable of overturning Bentham’s theory of government. He admits that what is true of international relations is true of governmental relations. “The end of the conduct which a sovereign ought to observe relative to his own subjects . . . ought to be the greatest happiness of the society concerned. . . . It is the straight line—the shortest line—the most natural line by which it is possible for a sovereign to direct his course.” Why so? Because “this is the end which individuals will unite in approving, if they approve of any1 .” What then becomes of our denunciation of kings and oligarchs? Why should their interests be always sinister when the line of least resistance, their most natural course, is that which leads to their subjects’ happiness?
The fact is that neither opinion is true. Sometimes our line of least resistance leads to the public good, sometimes it does not. But Bentham had a hankering after mathematics, vagueness was an abomination, so he makes now one simple (and therefore improbable) supposition about human nature, and now another. On the whole, the longer he lived the less well he thought of mankind. The famous note, “So thought Anno 1780 and 1789, not so Anno 1814, J. Bentham1 ,” illustrates this change. It was a change for the worse, and James Mill was but too ready to go beyond Bentham, though even James Mill was very far from being consistent.
The essay by James Mill is important because it marks an epoch in the history of English philosophy. It was a grand attempt to found politics on empirical psychology unverified by history. At present it looks like a last attempt to fulfil what Hobbes proposed. Its extravagancies roused a storm of oposition. But it should be noticed that what was attacked was not Bentham’s first principle that the greatest happiness of the greatest number is the one desirable end for all action, but his teaching about the dissonance of interests. The defeat of the Utilitarians (and they were defeated) was no triumph for the intuitive moralists. Let us take three champions of very different schools who attacked Mill’s work. Macaulay was apparently a believer in Paley2 , and shocked Mackintosh (who had recanted his Utilitarianism) by ethical heresies3 . Coleridge was “a zealous advocate for . . . deeming that to be just which experience has proved to be expedient.” Mr Disraeli, in a defence of our constitution modelled on Burke, expressly says that it is not the Benthamite supreme rule which is objectionable, this is really conservative, but the theory of the sinister interests of rulers. In fact the protest was directed against any attempt to found a pure science of government upon psychology. Coleridge pleads for the study of history, Macaulay for the Baconian method. We know now that it was this conflict of history and psychology which gave birth to the completest account of the logic of social science that we have. It was Macaulay’s essay that roused John Mill from his trust in his father’s geometrical method1 . From the school of Coleridge he learned to value history. Then he arrived at his conception of the inverse deductive method2 as the method of social science, a conception that has yet to be supplanted.
Some of James Mill’s opponents erred in their enthusiasm for history. Macaulay would have found the pure Baconian method impracticable; he unfortunately set up Bacon’s inquiry into the nature of heat as a model, an inquiry which Bacon’s warmest friends condemn. Besides we have read that “That is the best government which desires to make the people happy, and knows how to make them happy.......Pure democracy, and pure democracy alone, satisfies the former condition of this great problem. That the governors may be solicitous only for the interests of the governed, it is necessary that the interests of the governors and of the governed should be the same. This cannot often be the case where power is entrusted to one or to a few.” It was not James Mill who wrote this, it was Macaulay1 , and yet the method of reasoning is scarcely Baconian.
The collapse of James Mill’s theory marks one of the few great advances in English Political Philosophy. Since that time we have heard little of one distribution of political power as semper et ubique the only good one. Those who still argue that there is but one form of government not criminal are not Utilitarians—not followers of Hume, but followers of Locke, Rousseau, and Coleridge’s friend Major Cartwright. We have for the most part returned to the position of Sir Thomas Smyth, “According to the nature of the people, so the commonwealth is to it fit and proper2 ,” and we look for the nature of the people in its history. We have got rid of the assumption of Hobbes that for political purposes men may be treated as equals. It was necessary that the force of education should be brought into prominence, but our seventeenth century philosophers attended too little to the original differences between men. Perhaps there is some one form of government which will ultimately be found the best for all communities, but any useful ideal of government must be relative—relative to the people for whom we propose it, relative to their history. John Mill’s Essay on Representative Government proposed a relative ideal, an ideal for the English Constitution. James Mill’s Essay on Government proposed an absolute ideal. We may notice that by abandoning the traditional method, John Mill was brought to recognize many important facts hidden from our earlier philosophers; such, for instance, as the immense influence which government exercises on the life of the nation outside the sphere of direct governmental interference. This led to a new plea for a wide distribution of power as a means of education.
Of Coleridge’s peculiar doctrine of representation we must speak very shortly. He professed to discover from history that “the idea” of English government consisted in a representation of the interests of permanence and progression. The landed interest—“the realty”—is the interest of permanence; the personal interest—“the personalty”—is the interest of progression. This “idea,” whatever else it is intended to be (and this is not clear, for Coleridge, in his Kantian moments, declares that an idea expressed in words is always a “contradiction in terms”) is also an ideal. We are to strive to realize the idea in any alteration of our constitution. Looking then at Coleridge’s idea of a state simply as a constitution to be aimed at, we find it open to the gravest objections. The exact proposal was that the House of Lords should be taken to represent the realty, that the suffrage should be so distributed that the majority of seats in the Lower House should belong to the personalty, the realty having a strong minority1 .
(1) A representation of interests as opposed to a representation of numbers (against which Coleridge rages)2 comes to mean a representation of classes, for the law can only take notice of obvious external distinctions. Surely it is bad to insist on the discord of class interests unless it is absolutely necessary; legal recognition of the discord will aggravate it.
(2) The distinction of interests into permanent and progressive is bad. There never has been a party which could make standing still its whole programme. We all want to move, but we want to move in many different directions. The real conflict is not between those who would stand still and those who would move, but between those who would go this way and those who would go that.
(3) Had Coleridge known more of that political economy which he despised and called semi-infidel, he would have seen that to place in one class landlords, tenant-farmers, and agricultural labourers, in another lawyers, capitalists, artizans, and others, is a thoroughly worthless distinction. Whether a man gets his income from land or not is quite unimportant; the really important question is, What influences does his income depend on? Coleridge would have found that the agricultural labourer and the artizan have much more interest in common than the agricultural labourer and the farmer. The old distinction of high and low, rich and poor, goes nearer to the root of the matter than that of realty and personalty.
(4) Some of the personalty have no peculiar interest in progression. The conveyancer’s interest is more allied to permanence of a particular kind than even the landowners.
(5) Some of the realty have no peculiar interest in permanence. Coleridge puts together the contentment of the wealthy landowner and the obdurateness of prejudice against change “characteristic of the humbler tillers of the soil.” But while wealthy men will probably be tolerably contented whether they be landowners or not, he would be a rash man who trusted to the agricultural labourers, now that communication is easy, showing any peculiar aversion to change. The fact is, Coleridge was led away by the talk of the Protectionists, who made believe that farmers and agricultural labourers would be injured by free trade. How wrong they were is well evidenced by the fact that the once familiar phrase “the landed interest” has dropped out of our political vocabulary.
(6) Coleridge should have known that human interests are not so simple as James Mill thought them; he was here following the school which he disliked. Men do not want to vote only in their economic character, they want to vote as Churchmen, as Dissenters, as Total Abstainers, as friends of Peace at any price. The line dividing the realty from the personalty does not even roughly coincide with some of the most important distinctions. The consequence would be that in Coleridge’s scheme some men, e.g. merchants, would be refused votes because if they had them their class would be over represented. A merchant will say that he does not want to vote quâ merchant but quâ Ritualist, and he will feel his exclusion as arbitrary. Some merchants must be left out; but why should it not be his Evangelical neighbours? Unless some such arbitrary lines are drawn, the results of Coleridge’s plan would coincide with those of a representation of numbers.
A consideration of the complexity of interests at greater length would bring us to the conclusion that, in a community fully conscious of the way in which it is governed, no system of representation can be stable which does not proceed on few and simple rules. Every addition to the number of rules leads to distinctions which must be felt as arbitrary. All changes in our representative system which are to be final or successful will be movements towards greater simplicity, not necessarily towards greater simplicity in the machinery of election, but towards greater simplicity in the distribution of voting power. We shall move towards the scheme advocated by John Mill, not towards the scheme advocated by Coleridge. It might be different could we label men as belonging to different “interests,” but this becomes more and more difficult every day.
Harrington started an interesting line of speculation when he said that the balance of power depends on the balance of property, and it is a pity that this has not been followed up. His own theory was far too simple, he thought monarchy in England had become impossible because landed property was so widely distributed; it proved otherwise. Still we may say that any change in the balance of power which is not brought about by force, and which is not a restoration, will tend to place the balance of power in the same hands as the balance of property. We can say also that equality of political power tends to produce equality of property, for where there are no hereditary distinctions one motive for saving is absent. But unfortunately we have no speculations on this subject.
In the early days of our political philosophy, the right to property was not made the matter of such frequent dispute as the right to rule. There was less difference between practical men as to the former right. But even in the days of Hobbes there were levellers abroad, who “were casting how to share the land among the godly, meaning themselves, and such others as they pleased1 .” They looked for the speedy establishment of the fifth monarchy; there was among them that religious enthusiasm which might have made socialism possible. Even Harrington, who was no enthusiast, would set a limit to property in the interests of popular government. Hobbes of course could defend existing property law, as he could defend all existing law; we have consented to it. The great continental jurists also made consent, or occupation and consent, the foundation of a right to property. Locke however tried to find a title to property independent of consent, for he wished to insist that this was one of our rights which had not been surrendered to the legislative body. He deduces it from the common right of all men to the gifts of God, and the exclusive right of every man to his own labour.
The gifts of God to be used must be consumed, and consumption involves appropriation2 . Things must be considered appropriated when labour has been spent upon them. He shows clearly that much of the value of wealth is due to labour, and holds that the propriety of labour overbalances the community of land. Hallam contrasts this “excellent chapter” most favorably with the teaching of Grotius and Puffendorf, and the “puerile rant of Rousseau3 .” “That property owes its origin to occupancy accompanied with labour is,” he thinks, “now generally admitted.” What property owes its origin to is one question, what is its justification is another. These questions Locke, in the manner of his age, confounds; but he certainly meant to give not only an historical account, but a deduction of right. He thinks that in former times, when there was enough for all, “right and conveniency went together;” before the invention of money (the influence of which Locke always exaggerated) men had no temptation to enlarge their possessions beyond their wants. But (and here he abandons his first theory) since the invention of money, “it is plain that men have agreed to a disproportionate and unequal possession of the earth; they having, by a tacit and voluntary consent, found out a way how a man may fairly possess more land than he himself can use the product of.” So after all, Locke rests the natural right to property as it at present exists on a tacit consent, evidenced by the use of money.
Dr Rutherforth, who belonged to the English Grotian school, criticized Locke’s theory with justice1 . He thinks that even if Locke can show that labour has a title to 99/100 of the value of property, there is still a 1/100 part to which labour has no right; it comes from nature. He lays stress on Locke’s falling back upon consent, and argues that consent, evidenced by occupation, is the real foundation of the right. Thus both Locke and the Grotians, in the last resort, rely on a title by tacit consent.
Such was the state of the argument when Rousseau began his tirade against inequality. He would not recommend a return to natural equality; he only wishes for a state in which no man is so rich as to be able to buy another’s labour, no man so poor as to be bought1 . Still, if “buying” mean “hiring,” this is a long step towards levelling. He allows that labour may give a title to property, but it must be labour, not a mere marking out of the ground. This argument has been repeated by Paley2 . Though Rousseau’s historical account is far inferior to Locke’s, he could have driven the latter into very awkward positions. Locke’s argument seems only just as long as there is “common” to be reclaimed. What! are we “promiscuously born to all the same advantages of nature,” only to find all nature’s gifts engrossed? Why is a tacit consent enough in this case, when the social compact requires “express promise and contract”? “Men have agreed to a disproportionate and unequal possession of the earth.” What men? Do the promises of parents bind their children? Locke says they do not. Let us make the consent a reality. Enough of fictions. Let the landowners shew that they have laboured, or that we have consented.
Meanwhile Hume produces another justification of property, its utility. But Hume allows that “wherever we depart from . . . equality we rob the poor of more satisfaction than we add to the rich3 .” The rule of equality is useful, and has been shewn by history to be not wholly impracticable; but perfect equality we cannot have. “Render possessions ever so equal, men’s different degrees of art, care, and industry will immediately break that equality. Or if you check these virtues, you reduce society to the most extreme indigence.” This is the line of defence behind which Paley and Bentham took their stand.
Then Hume asks that question which his opponents find it so hard to answer. What is property? Now if Locke is not to fall into pure Hobbism, he must find some criterion by which we may judge any scheme of property law. What ought to be a man’s property? Shall we allow devise, bequest, inheritance? If so, let us put to Locke the question which Locke put to Filmer. Who is heir1 ? We know who is heir according to English law, but who is heir according to the law of nature deduced from the ideas of God, and of ourselves? Here let us quote Locke himself. “There being no law of nature, nor positive law of God, that determines which is the right heir2 .” . . . No law of nature on so important a point! Then is the law of nature our sole criterion of right and wrong? How are we to justify English property law, since the law of nature will not answer the very simplest question as to the extent of the natural rights of property? There is an escape; we may say with Locke that “the public good” (i.e. pleasure) “is the rule and measure of all law making;” then we are at one with Hume.
Paley followed Hume closely in his justification of property, but he brought into relief the weak side of the Utilitarian argument. The institution of property is, he thinks, “paradoxical and unnatural.” The fable of the pigeons seems to lead to levelling principles. Inequality is admitted to be an evil, but it is a necessary evil; it flows from rules by which men are incited to industry. “If there be any great inequality unconnected with this origin it ought to be corrected1 .”
Bentham agrees. There is a prima facie argument in favour of equality. On this subject he tries to be very precise. His theory as set forth in the Principles of the Civil Code2 , and more accurately in the Pannomial Fragments3 , is that if we go on adding to a man’s wealth, to the sum of material objects of desire of which he has the use, each increment of wealth produces an increment of pleasure, but the pleasure never increases so rapidly as the wealth. It follows that the distribution of a given amount of wealth, which produces most pleasure, is an equal distribution. This may be looked upon as a cardinal doctrine of Utilitarianism, for Hume, Paley, Bentham, and Mill are agreed upon it. But none of these teachers recommend any very serious measures for obtaining this equality. Before we can estimate their reasons for narrowing the sphere of this doctrine we may see what attempts have been made to obtain an equation connecting wealth-produced happiness with wealth. Now we have two probably independent attempts to perform this feat. Bentham says, “It will even be matter of doubt whether ten thousand times the wealth will in general bring with it twice the happiness4 .” Paley says that it ought to be assumed that ten persons possessing the means of healthy subsistence possess a greater amount of happiness than five people however wealthy5 . This agreement is striking. The wealth-produced happiness of the richest is never twice the wealth-produced happiness of a man who has the means of a healthy subsistence. How large an admission of levelling principles this is can easily be shown in a rough way. Let us take £100 per annum as a means of a healthy subsistence. There are in this country 8500 incomes of £5000 and upwards; these, if cut up into incomes of £100, would produce more than twenty-five times as much happiness as they now do.
What has Paley got to say against this strong case? According to him the principal advantages of such a property system as ours are that: (1) It increases the produce of the earth; (2) It preserves the produce of the earth to maturity; (3) It prevents contests; (4) It improves the conveniency of living, by permitting a division of labour and by appropriating to the artist the benefit of his discovery. These may all be summed up in what Hume says in the passage quoted from him. To which Hume adds that equality of possessions weakens authority by leading to equality of power. Bentham’s defence is by far the most powerful, he insists vigorously on the supreme importance of security. The evils which would follow from constant redistributions (alarm, danger, the extinction of industry) would throw the good of an equal distribution into the shade. “Equality ought not to be favoured except in cases where it will not injure security; where it does not disturb expectations to which the laws have given birth; where it does not derange the actually existing distribution.” Bentham’s Essay on the Levelling System contains all these arguments repeated in their most telling form.
But what is remarkable is that we have not yet come across the Malthusian argument. I would not say that Bentham and Paley fail to resist the enormous prejudication which they have raised in favour of equality, but on their own principles it would have been difficult to reject a proposal made by Tom Paine.
Paine was the most popular of English demagogues, and justly so, for he came out of his controversy with Burke (who was hampered by the conventional theory) without serious loss. This being so, it surprises us to find that Paine was but little of a socialist. Indeed, socialism was not a product of 1789, but rather of 1830 and 1848. Paine was a leveller, not a socialist, and a comparatively moderate leveller. He would but establish a national fund out of which £15 should be paid to everyone on arriving at the age of twenty-one, and £10 per annum to every person over fifty years of age “to enable them to live without wretchedness, and go decently out of the world.” He considers agrarian laws unjust, for the greater part of the value of land is due to labour; still there is some portion of the value due to nature, and on this the tax should be thrown1 . Locke’s premises lead to this, if we exclude title by consent.
What we may ask would Paine’s scheme necessitate? Supposing our present population to remain constant, a tax of about 6 per cent. on all incomes over £100 would suffice. Now supposing this scheme was introduced with great caution, supposing that it was only to come into force after the lapse of a generation, I think Bentham and Paley would be put to it to find objections, if they chose to abide by their principle.
Of course such a tax would diminish wealth. But all that Bentham and Paley can say is that a man will not work for others as he works for himself. The rest of Paley’s objections need not apply; there need be no insecurity, no uncertainty, no contests. How much the motives to industry would be diminished by such a tax we can scarcely guess, but it would need a perfectly preposterous assumption to show that wealth would be so much diminished, that the great advantages of an equal distribution would be overbalanced. It is all very well to say that the rich would consume their wealth instead of saving it, and thus there would be no wages, demand for commodities not being demand for labour; but we must not let the phrases of economists drive us into absurdities. What way is there in which the rich can use by far the greater part of their wealth without paying wages, or inducing someone else to pay wages? One and one only, they can waste their wealth without obtaining any enjoyment from it.
Against socialism, with its attendant uncertainty, Paley and Bentham have a very good defence, a defence which will be sufficient until some considerable change in human nature has taken place. But to considerable steps towards levelling, to taxing the rich for the relief of the poor, they cannot fairly object. As to Paley, one chapter in his work is the best apology for levelling ever made1 . He holds that the improvement (i.e. increase) of population is “the object which ought, in all countries, to be aimed at in preference to every other political purpose whatsoever.” He devotes a chapter to suggesting means to this end, he actually goes out of his way to revive the moribund fallacy of the balance of trade, because he thinks that the “accession of money” increases population, he would add to our species by adding to our specie. Paley’s principles justified Pitt in saying, “Let us make relief in cases where there are a number of children a matter of right and honour, not of opprobrium1 .” Pitt framed a bill providing that people should be paid for bringing children into the world. The bill was withdrawn, thanks, it is said, to the criticism of it which Bentham sent to Pitt2 . Bentham’s editor, Dumont, gives to Bentham the credit of anticipating Malthus3 , but he is scarcely warranted in so doing; indeed, though Bentham did not think with Paley that legislative interferences are required in order to make the population increase sufficiently quickly, he never (as far as I know) used the Malthusian argument.
If we compare this chapter of Paley’s with the ordinary talk of our own time, we find how completely new the most popular modern justification of property is. The subject of population is one on which Plato and Aristotle had speculated, but it was strangely neglected in England. Malthus really drew attention to a class of facts which had been ignored by all preceding English theorists. Nor did he assume his principles as convenient hypotheses; he had a stronger sense of the value of history than has been granted to most of our philosophers. He sought to prove from history that the “positive checks” on population have been in constant operation. We have here only to inquire how much he added to the Utilitarian defence of a property law such as ours. It must be allowed that if the increase of population was due to causes over which we have no control, Paley and Bentham would lead us to some vigorous scheme of levelling. In Paley’s case this is obvious. If to increase the population be the first and foremost duty of a statesman, Malthus might well ask Paley how he could spend his time in devising petty changes in our laws when Paine had recommended so much more efficient a route to the desired end. “Accept Paine’s advice,” he might say, “and you will have your heart’s desire: the country will swarm with men and women.”
Modern socialism has always seen in Malthus its most formidable enemy, and Malthus’ first opponents found no way to answer him save by an audacious denial of the fact that population was increasing1 . The fact is that there was a strong superstition which Malthus had to resist. Providence, it was thought, will take care that population does not increase too fast. Godwin held that “there is a principle in human society by which population is perpetually kept down to the level of the means of subsistence2 .” Yes, said Malthus, there is such a principle, the principle of starvation.
Malthus showed that to insure to every person the means of subsistence would cause a rapid increase of population. But this was not enough. It might be argued that every man would still have as good a chance of extracting a livelihood from nature as had his fathers. But here comes in Malthus’ principle that population tends to increase faster than the means of subsistence, which means this, that as long as our means of coercing nature remain what they are, we can only extort an addition to our supply of food by a more than proportionate addition to our labour. Now here we have a really new argument against levelling, an argument which Malthus and Ricardo made too much of when they pleaded for the abolition of the poor laws, but an important addition to the armoury of Bentham and Paley. I do not however believe that even with this addition Bentham and Paley would be safe. It might be said that even allowing for an immense increase of population, a great decrease in the incitements to industry, and full force to the law of diminishing returns, the supposition that the richest man has never twice as much wealth-produced happiness as the poorest man, leaves an ample margin for levelling principles. It might further be urged that there are pleasures to which the law of diminishing returns does not apply, such are the pleasures of family society. Again, Godwin founds his plea for equality, that plea which occasioned the reply of “the Arch-Priest of Famine” (as Godwin’s son-in-law called Malthus), not so much on the desirability of lessening the pains of physical want as on the desirability of getting rid of “the spirit of oppression, the spirit of servility, and the spirit of fraud,” which are “the immediate growth of the present administration of property.” On the other hand, Malthus, by showing how fast population might increase if a bounty was given, did show that redistribution must be frequent, and thus added new force to Bentham’s argument against insecurity.
It is doubtful whether Paley and Bentham could logically defend such a property law as ours without modifying what they say about the connection between wealth and happiness. I may not enter into verbal criticism, but neither philosopher sufficiently recognized the possibility of a man’s wealth-produced happiness being a minus quantity. When Bentham says that ten thousand times the wealth does not bring twice the happiness, he seems to assume that the wealth-produced happiness of a man who has no wealth is zero; but this is natrue, it is a very large negative quantity. Let us first attend merely to the happiness which results from the use of “material objects having a value in exchange,” or “wealth-happiness.” If we decrease a man’s wealth below a certain point, his wealth-happiness becomes a minus quantity, he suffers the pain of want. Further, let us remark that Paley much underrates the connection between wealth and happiness in general; a certain minimum of wealth is necessary as a condition for any happiness. The pain of starvation excludes all or nearly all pleasures. From the consideration of the possibility of a man’s wealth-happiness being a minus quantity, we may come to think that though ten men with £1000 a year are together far happier than one man with £10,000, yet one man with £100 per annum is happier than ten men who have but £10 a piece to last them through the year. But does not this add new force to the argument for equality? Yes, if we consider only persons in esse. No, if we consider persons in posse. No, if our scheme will ultimately increase the number of those whose wealth-happiness is negative. Suppose a Utilitarian had an annuity of £1000 and there were nine existing persons who had nothing, we should go even further than Paley in recommending an equal distribution; it will save much suffering. But suppose a Utilitarian has an annuity of £1000 and no children, we should say that he ought perhaps to wish for nine children who might share his wealth, but not for 99, certainly not for 999. If however we do not admit the possibility of wealth-happiness being negative, if we hold by the letter of what Bentham and Paley have said, we must admit that 1000 persons with £1 per annum a-piece are together more than fifty times as happy as ten persons with £100 per annum a-piece. And this, when we consider that some wealth is a necessary condition for almost every class of pleasures, seems absurd.
The Utilitarian can perhaps scarcely get to any precise theories on this subject, he can only point to the quarters from which the good and evil effects of measures promoting equality will come. The fact that there is doubt on such subjects as the connection between wealth and happiness, is a terribly strong argument against Bentham’s scheme of a political arithmetic. But still we know that there is a general argument against inequality, an argument valid in the absence of other Utilitarian arguments, an argument admitted every time that our Court of Chancery says that equality is equity. This argument would be one of great force in any discussion of our present law of inheritance. On the other hand, we know whence the evils of a levelling scheme will flow.
Unsatisfactory principles no doubt to the believer in neat theories, but where, let us ask shall we look for better? Locke will not help us, for, though he can deduce a right to property from the law of nature, he cannot tell us whether that right includes the right of inheritance. Hutcheson will not help us, for he becomes Utilitarian. Our English moralists will not help us, for since the writers on the law of nature gave way before the Scotch psychologists, scarcely one anti-Utilitarian moralist has treated of politics. Even Dr Whewell will not help us, for he gives no criterion by which we may judge different schemes of property law, and Dr Whewell is one of the few English moralists who have attended to the morality of law.
One refuge remains. There is Kant, who to some extent formulated the doctrines of “natural jurisprudence.” Here we have his account of what ought to be property. “Das aüssere Meine ist dasjenige ausser mir, an dessen mir beliebigem Gebrauch mich zu hindern, Läsion (Abbruch an meiner Freiheit die mit der Freiheit von Jedermann nach einem allgemeinem Gesetze zusammen bestehen kann) sein würde1 .” Now how could we use this in constructing a law of property? Kant admits testamentary power; but what testamentary power? It is surely evident that if the law of equal freedom allows of bequest at all, it allows of settlements in perpetuity.
Let us once more refer to Coleridge. “Now,” he says, speaking of this very doctrine, “it is impossible to deduce the right of property from pure reason2 .” Then follows this note—“I mean, practically and with the inequalities inseparable from the actual existence of property, abstractedly, the right of property is deducible from the free agency of man. If to act freely be a right, a sphere of agency is so too.” I suppose this “practically” and “abstractedly” means that we can from the fact of free will deduce that there ought to be some proprietary rights, but that we must appeal to expediency to know what rights, for (as Coleridge has just told us) whatever is expedient he deems to be just.
Coleridge was a Utilitarian in politics because he was a Conservative. He escaped out of Kant’s system just in time, for what would a supporter of “the realty” have said to Mr Spencer’s use of the Kantian principle as destructive of a right to property in land?
A distinction between property in land and property in other things has been common. It has been supposed that a justification good for the latter is not good for the former. This is due partly to the distinction between mobilia and immobilia which every code naturally makes, partly to the distinction between realty and personalty, the result of the conflict in this country between feudalism and commercialism, above all to the superstition that nature helps agriculture more than any other industry. This superstition is ancient, in modern times it formed the foundation of the physiocratic economy, it hampered Adam Smith, it crops up where one least expects it.
The physiocrats used this doctrine to account for the fact of rent. Thus Paine could say that rent is not due to labour or capital, but to nature; therefore the levelling tax should be a rent-charge. This was correct on Locke’s principles, for had not Locke admitted that a part of the produce of land is due to nature, and must not this part be the rent? When Bastiat came to deal with Paine’s successors, with all his cleverness he made one unfortunate admission. If Ricardo’s theory be true, then property in land is unjust. Ricardo’s theory most certainly is true, all Bastiat’s ingenuity notwithstanding. Here is the difficulty of admitting that labour alone gives a title to property. Bastiat can only escape by playing upon the word “service.”
Next we will take Mr Spencer’s deductions from the law of equal liberty1 . He says: “Given a race of beings having like claims to pursue the objects of their desires, given a world adapted to the gratification of those desires, a world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. . . . It is manifest that no one or part of them may use the earth in such a way as to prevent others from similarly using it; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law.” This certainly seems a correct deduction from the law of equal freedom, and Kant must give up the right to landed property. But cannot we go further? Let us change the argument. Given a race of beings having like claims to pursue the objects of their desires, given an apple adapted to the gratification of these desires, an apple near which such beings are similarly born, and it unavoidably follows that they have equal rights to that apple. . . . It is manifest that no one or part of them may eat that apple in such a way as to prevent others from similarly eating it; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law.
Mr Spencer would have the society constitute itself the supreme landlord. He argues that the law of equal freedom is not broken in this case, for every man has an equal power of becoming tenant. Certainly every man would have an equal power of becoming tenant if every man could offer an equal rent, but what of this? Every man has now an equal power of becoming a landlord, if every man can offer an equal price.
Then there comes this reductio ad absurdum of “landlordism.” If one man may be the rightful owner of any part of the earth’s surface, some few men might have a right to exclude all their fellows from the world. But is it not obvious that we can also say that if one man has an exclusive right to any one particle of matter, some few men may have a right to all matter.
But these arguments can scarcely be serious. If the law of equal freedom condemns land-ownerism it condemns coat-ownerism also. Touch not, taste not, handle not, make haste to leave this world lest you infringe the equal rights of others; this is the law of equal freedom.
But then there is an apparently solid argument. “We daily deny landlordism by our legislation.” The railway and canal acts are appealed to as evidence of this. Now Mr Spencer holds a leasehold tenure to be just, a freehold tenure to be unjust. He appeals to popular opinion as supporting him. Here we can apply a really crucial test. If popular opinion as evidenced by Acts of Parliament makes any difference between wrongful and rightful tenures, these Acts will treat the leaseholder in a different way from that in which they treat the freeholder. Do they do so? Certainly not: a company has just the same power of compelling a tenant for years at a competition rent to sell his interest, that it has of forcing a tenant in fee to sell his estate. If we deny “landlordism” we deny land-tenantism also. The reason why land is more often made the subject of compulsory sale than are other things is obvious, and has nothing to do with the law of equal freedom. In case of war our government might very likely force shipowners to sell their steamships; it would deny shipownerism, if ships were wanted for public purposes, just as it denies landlordism and land-tenantism when land is wanted for a railway.
But Coleridge also drew a distinction between property in land and property in other things. “It is declared by the spiritual history of our laws that the possession of a property not connected with especial duties, a property not fiduciary and official, but arbitrary and unconditional, was in the sight of our forefathers the brand of a Jew and an alien; not the distinction, nor the right, nor the honour, of an English baron or gentleman1 .” This is the Idea of our law of real property. Towards the Idea, “the line of evolution, however sinuous, has still tended. . . . sometimes with, sometimes without, not seldom against, the intention of the individual actors, but always as if a power greater and better than the men themselves had intended it for them2 .” The Idea is not only the point towards which evolution has tended, but it is also an ideal, an object to be aimed at by us. Now whether property in land ought or ought not to be absolute and unconditional may be an open question; but if the spiritual history of our laws declares that a fiduciary and official property in land is the point to which evolution has tended, the spiritual history of our laws must have some little difficulty in accounting for facts. Indeed, it must state what is, temporally speaking, exactly the reverse of the truth. There has been through long centuries a tendency at work making the law of realty more and more like the law of personalty. True, we still say that no subject can be the supreme lord of land, but what is now the merest fiction was once a great reality, and that reality disappeared bit by bit. Little by little the power of alienation and the power of testamentary disposition were won. When the legislature would not move fast enough popular opinion permitted the judges to evade the very words of statutes by all manner of fictions, fines, recoveries, and so forth. Surely these powers of disposition are the signs of absolute as opposed to fiduciary possession. Take again the extremely gradual extinction of manorial rights. These were “connected with especial duties,” but they have disappeared. Coleridge sometimes asserts that the idea of property in land is a new one. This also is untrue. It is an idea which has very slowly evolved itself through the course of our history. Nor could Coleridge say that it appeared during the reign of the false philosophy. No, it came in during the ages which he loved. The great statute which converted all tenures into free and common soccage was older than the days of Locke. From the Statute of Fines to the last Land Transfer Act there has been one steady tendency in all legislation on the subject, a tendency to assimilate the law of real property to the law of personal property. It may be that this tendency has been from good to bad. It is open for Coleridge to say that this has been the case; but it should be admitted by all that if property in land is to be made less a matter of commerce than property in other things the tendency of centuries must be reversed.
Mill prophesies that it will certainly not be much longer tolerated that agriculture should be carried on (as Coleridge phrases it) on the same principles as trade1 . This may be so, but this prophecy must be founded on other grounds than a history of our law, however “spiritual.”
To consider the now common arguments for making a distinction between property in land and property in other things would be to transgress our limits by entering on post-Coleridgean controversy. But it may be remarked, that if we rigorously exclude the old physiocratic fallacy, and perceive that the law of equal freedom cannot make any distinction until it is supplemented by some doctrine as to the way in which restraint must be measured, the controversy is not one which can be decided by a bare appeal to first principles, but requires much economic and historical discussion.
THE LAW OF REAL PROPERTY1
It may be hoped that the reform of our land laws will at some not distant day come within the sphere of practical politics. Already most Liberals acknowledge that there is, or may be, a “Land Question,” though they would freely admit that at present they are not prepared with an answer to, or even with a very precise statement of, that question. Nor is there necessarily anything unreasonable in this somewhat vague dissatisfaction. Many an invalid knows that he is unwell without being able to give a name to his ailment, and it certainly is not surprising that those whom lawyers call laymen should have no very definite opinions about real property law. With all their love for politics and public affairs, Englishmen are easily content with knowing nothing of the ordinary civil law under which they live. So long as it is not scandalously unjust they are satisfied, and for the rest will trust to Providence and the family solicitor. And if this be the case with the more modern and intelligible portions of the law, still truer is it of the inscrutable mysteries of real property. How could it be otherwise? How is the ordinary man to become acquainted with them? If he consult his “Blackstone” he straightway finds himself in the Middle Ages, or, what is far worse, in a theory of the Middle Ages, concocted by the lawyers of the last century. He has to learn a new language, and to acquire wholly new habits of thinking about the most ordinary transactions. He is perplexed by ancient statutes, and troubled with “the learning of feuds.” All is to him unreal and unreasonable, and in all probability he decides not to waste his time over matters which, after all, do not concern him very greatly. As to his own affairs, there is the family solicitor, while as to the affairs of other people, they are, by supposition, no affair of his.
Natural as all this is, it is none the less to be regretted. For we move in a vicious circle. The people cares not to understand its own laws, because these laws are obscure and antiquated; the laws are obscure and antiquated because those who would be advantaged by their reform know nothing about them. And as our Constitution grows more democratic it becomes ever more important that our civil law should be widely known. Little will now be done by Parliament to which it is not urged from without, and in these days, when there are always many excellent and exciting electioneering cries, many questions about which it is easy to make a stir, no Minister could afford to devote Session after Session to measures, however indisputably useful, for which there was no popular demand. It concerns Liberals in particular to see that nothing is lost by those successive extensions of the suffrage which they have advocated. But something will assuredly be lost unless the electoral body can be persuaded to interest itself in our everyday civil law. Something will be lost if the spirit of law reform which was fairly awakened in Parliament some half century ago be allowed to languish before one tithe of its appointed work is accomplished.
It is hard to believe that there can be any reform more necessary than a reform of our land laws, and yet it is a reform which might easily be accomplished were popular attention once fixed on the work. It is really to no one’s interest that the law should remain what it is. Opposition, of course, there would be, for there are some whose honour demands that they should resist every change; but their honour would be easily satisfied, their resistance official and half-hearted. There have been times when a vigorous and virulent opposition to law reform was to be expected from lawyers. But lawyers have apparently grown wiser. It has become plain, from many proofs, that they have no real interest in maintaining a cumbersome and clumsy system. Here, for instance, is Mr Joshua Williams, the professor appointed to instruct law students in the hidden wisdom of real property law, the writer of books from which hundreds of lawyers have learnt all the real property law they know. He lectures on the Seisin of the Freehold. Now, when a very learned professor of the laws undertakes to lecture on so dark and mysterious a theme, we are wont to expect from him some of those bravura passages about ancestral wisdom, and the perfection of reason which Blackstone so brilliantly executed before crowded and admiring audiences. But Mr Williams disappoints us. In his first paragraph1 he states his belief that some of the most remarkable of our laws are “absolutely worthless,” while “others are worse than worthless; they are absurd and injurious”; and in his last paragraph1 he modestly opines that he has made good this his first thesis. Now, when those who are set to teach the youth hold such language as this, there are but two courses open to us—to silence the professors, or to reform the laws.
But while it is impossible to defend the law as it at present stands, it is only too possible for reformers to differ among themselves as to what changes should be made. There are many who would look on no improvement of the law as final which did not do something towards securing a more equal distribution of landed property, towards lessening the power and influence of the land-owning aristocracy. There are others who would move in this direction with reluctance, or at least with much hesitation. Now it is to be feared lest a difference of opinion about the end of the journey may prevent our taking steps which all must allow tend in the right direction. For it seems to us that before any further advance can profitably be made, it is quite necessary that the law should be much simplified. Here is something on which we might agree at the present moment, and a measure which can in no way prejudice the cause of any further reforms. Unless this work be done we shall have more of that tinkering of antiquated law of which the disastrous results are daily seen,—fresh gins and pitfalls for the unwary. The new patch will be put upon the old garment with the result which we have been taught to expect.
But though the reforms at present most necessary are chiefly reforms tending to simplification; though they imply no alteration in the habits of English society, no interference with the manners and customs of land-lords, farmers, and labourers; though they might leave the agricultural system which Lord Hartington has lately attacked, and Lord Beaconsfield defended, much as it was before, it should be well understood that they must be real reforms, real changes, not mere additions to our law. Of mere additions to our law we have seen enough. We have now before us two Blue Books containing the results of an inquiry conducted by a Committee of the House of Commons as to the steps which ought to be taken “to simplify the Title to Land and facilitate the Transfer thereof, and to prevent Frauds on Purchasers and Mortgagees of Land1 .” The point to which the attention of the Committee was chiefly directed was the complete failure of two modern statutes, the one due to Lord Westbury, the other to Lord Cairns, intended to provide means for the registration of titles to land. On these two statutes, or at least on the latter of them, many reformers had pinned their hopes, but the witnesses examined, and the members of the Committee, however they might differ on other points, could not but agree that the failure has hitherto been complete. This is, indeed, so painfully obvious as to be beyond dispute. The Acts have been ignored by landlords and their advisers. Many different causes were assigned for this failure. The more hopeful considered that the scheme had not been sufficiently advertised; that solicitors had not been properly conciliated; that Lord Cairns’ Act had been prejudiced by the collapse of Lord Westbury’s inferior and less practicable measure. The less hopeful referred to the great complexities of English titles, so different from the simple and registrable titles of Australia and New Zealand, to the fact that a land owner has no inducement to incur the expense of putting his land on the register, to the English love of secrecy, the English hatred of offices and officials. These differences of opinion spread from the witnesses to the members of the Committee, and produced two draft reports, the one submitted by Mr Osborne Morgan, and finally adopted, the other proceeding from Mr Shaw Lefevre. The chief issue between the two reports was the expediency of requiring the registration of deeds. Now the registration of deeds is a very different matter from the registration of title. The report puts the distinction clearly and well. The registration of title “aims at presenting the intending purchaser or mortgagee with the net result of former dealings with the property,” while the registration of deeds “places the dealings themselves before him, and leaves him to investigate them for himself.” It was generally admitted that the registration of title aimed at by Lord Cairns’ Act is the more desirable system, and that the Act itself is very cleverly constructed. The great question was whether, this Act being for the present a dead letter, we ought not at least, as a temporary protection against fraud, to compel the registration of deeds. It was allowed that such registration is an efficient protection against frauds of a particular kind, a kind which has lately been brought to the notice of the public by the ingenuity of Messrs Dimsdale and Downes. These gentlemen, it was acknowledged, could hardly have succeeded in giving ten or twenty “first mortgages” on the same piece of land, had that land been situate in Middlesex or Yorkshire, in a county, that is, in which the registration of deeds is required. But desirable as it is to secure ourselves against a repetition of these scandalous frauds, it is thought by Mr Lefevre and those who followed him that this security would be bought at too dear a price were we to abandon our ideal, a registration of title, and adopt and consecrate an inferior though more immediately practicable system. The question is doubtless difficult, and we hesitate to decide between many high authorities and many sound arguments; but, on the whole, we think that the minority of the Committee were in the right. We shrink with Mr Lowe from that “mausoleum of parchment,” a registry of deeds. Of two schemes, both of which will protect us against Mr Dimsdale, but only one of which will render the sale and mortgage of land a simpler and less costly undertaking than it now is, the choice seems easy, and we will not believe that the better plan is impracticable until efforts much more vigorous than any hitherto made have failed to secure its adoption. For the present compulsory registration of title is out of the question, and we may be heartily glad that it has not been tried. It would, indeed, be impossible to force all land owners to do what not one land owner in a thousand has chosen to do of his own accord. The suggestion has been made that it is so much for the benefit of society at large that a habit of registering should be formed, as to make it sound policy for the State to undertake for some few years to register titles for a very small fee, or even gratuitously. This suggestion seems to us worthy of all attention. It may shock stern economists that public tax-raised money should be spent to confer a benefit on individuals already lucky enough to possess land; but it may well be doubted whether we could lay out money in a manner more advantageous to posterity than by inducing the present generation of land owners to set their titles in order, and have them publicly registered.
But all this by the way; whether the State should insist on the registration of titles as a matter of national concern; whether, even if it were willing to incur expense, it could in the present state of English law get the work done successfully, are questions which we may raise, but will not discuss. One fact, however, is obvious, namely, that among the chief obstacles to any efficient system of registration is the perverse complexity of real property law.
This was brought to the notice of the Committee by many most competent witnesses. Indeed, it was so constantly brought to their notice that they could not but recommend in their report certain changes in the law. Perhaps they felt that in proposing these changes they were trespassing beyond their proper sphere. To this we readily ascribe the timid and desultory nature of their proposals. They propose that a certain statute, called the Statute of Uses, should be repealed; that the land of a dead owner should pass, not straight to his heir, but to a “real representative” comparable to the personal representative who takes his goods and chattels; that the machinery of a mortgage should be less clumsy than it at present is. Now all these may be changes in the right direction; but if it was the Committee’s business to consider them it was also their business to consider many other things also. Apparently they were content to catch at a few valuable hints thrown out by Mr Joshua Williams, Mr William Barber, and other witnesses, without asking themselves whether the particular absurdities which they condemn are not logical parts of a system the whole of which is equally worthy of condemnation. We should be glad to learn that the Committee (a more able and industrious it would be hard to find) had been reappointed with power to consider the whole of our land laws. We are convinced that such reappointment would result in proposals very different from those now made, proposals not limited to the trimming and pruning of essentially bad law, but extended to the rooting up of the cause of all those evils which are noticed in the present report and countless others no wit less grave.
For though we would begin with changes which might be called formal rather than material, these changes should be bold and thorough. The simplification of our land laws which is needed is nothing less than a total abolition of all that is distinctive in real property law. The distinction between real and personal property might be done away, without any disturbance of substantial rights or interests. There would be a saving of money, of time, of temper, of trouble; a saving of vexatious lawsuits and of those worst of quarrels—family quarrels; vast masses of antique and unintelligible law might be for ever forgotten; but beyond this, there would be little change, and certainly no change which the veriest Tory could call revolutionary.
It is really high time that the question should be asked, whether we gain anything whatever by keeping two systems of property law. Two systems we have, as many know to their cost, each with its own peculiar history, each with its own peculiar doctrines. Of course, it is plain enough that for certain purposes law must distinguish between the various subject matters of proprietary rights, and must place land in one class, moveable goods in another. It is chiefly with regard to the remedies for wrongs, breaches of contract, trespasses, and the like, that the distinction is important, and the distinction is well enough marked in English law, but marked, it should be noticed, by a line which does not coincide with that which divides real from personal property. And yet it is to this distinction that the words real and personal apparently point; for real property, so the phrase would lead us to think, there are real remedies, for personal property none but personal remedies. But these words are of late introduction, and were always inapt. The old word hereditaments, things descending to the heir, is the real key to the situation. Our distinction between the two kinds of property is not to be explained by any jural necessity, it is the outcome of a long chapter of accidents. What is really at the bottom of the distinction is the fact that we have two systems of inheritance, or, if that phrase be incorrect, one law of descent and another law for the distribution of an intestate’s goods and chattels. This is the one central, all-important fact from which the two systems diverge.
What, then, do we want with two systems of inheritance? We might, however, be thought visionary and unpractical were we at once to address ourselves to this abstract question. To any arguments drawn from the complexities which arise from this dualism, or from the comparative simplicity of foreign law, it might be replied that having a good, or at least tolerable, law of descent, we ought not rashly to abandon it for the sake of technical symmetry. For, of course, it is the law of descent, the law applicable to real property, that is threatened, no one being so enamoured of the heir-at-law as to desire that he should take, not only all the land, but also all the goods. Of the law of descent we are therefore obliged to speak, though it is certainly difficult to criticise it without insulting the intelligence of our readers. What need be said may be said in few words. The law makes a will for intestates which no sane testator would make for himself. However often this may have been said, it remains unanswered; it is unanswerable. Its truth may be easily tested. There are hundreds of wills set forth in the law reports, and any one who will look at them, or who will even look at the Illustrated London News, may see that it is not the rule, but the rare exception, for any man to leave his land to his eldest son without making provision thereout for his widow and younger children. Besides, what class of persons is it that the law of inheritance should regard? Surely those who are most likely to die intestate, the men of small means, not the owners of vast estates; and in popular estimation a man of small means would be guilty of more than folly and little less than crime were he to make the will which the law, in the fulness of its wisdom, makes for him. We are glad to hear Mr Williams speak his mind on this matter. He, we should imagine, had no prejudice against the law of real property, but “I confess,” he says, “that, saving estates tail, the descent of which should, I think, be permitted to remain, I should be glad to see the whole law of inheritance swept away1 .”
The Essay by Mr Eyre Lloyd, with the title of which we head this Article, is instructive2 . We cannot, indeed, praise the work very highly, but it serves to bring into strong relief the fact that the whole civilised world is against us. It was not always so; primogeniture has been known in many parts of Europe, the postponement of women in most, perhaps in all. But it is so now. Mr Lloyd arranges the countries of Christendom in alphabetical order, and as we pass from Austria to Wurtemburg the same phrases constantly meet our eyes; “all property, real and personal, is divided equally between the children,” “without distinction of sex,” “no distinction between males and females,” and so forth, continually. And the exceptions are noteworthy. The only exceptions of any importance are Great Britain, Russia, and Servia. Have we not lately learned (if not, we cannot plead a lack of instructors) that of all countries Russia is the most barbarous and backward, save, perhaps, Servia? And yet it is to the despised Russia, and the contemptible Servia, not to France, Germany, or Italy, that we must look for a law at all resembling our own. But let us not be downhearted. Mr Lloyd has concerned himself only with Christian countries; should he at some future time turn to the heathen he may obtain valuable and gratifying results.
But, better still, he should turn to the Dark Ages. To Herr Brunner the English law of inheritance is vastly interesting1 . There has, it seems, been a notable dispute among German antiquaries, who have divided themselves into two Schools, Gradualisten and Parentelisten, over the question, What was the pure Teutonic law of inheritance before it was corrupted by Romanism and reason? Some aid towards solving this nice problem may, Herr Brunner thinks, be found in the Anglo-Norman law; and so in praiseworthy fashion he has set himself to examine Glanvill, Bracton, and the old Norman customs. His short Tract is a valuable contribution to the history of English law, one of those contributions which we obtain but too seldom from English lawyers. But we must leave Gradualisten and Parentelisten to fight their own battles. We are, unfortunately, not at present in a position to examine our law from the archæologist’s standpoint. Let us, however, notice, with pardonable pride, that a learned historian in search of the primitive finds it in law which is still in force among us. For should our readers desire to know what law it is that Herr Brunner reveals as a curiosity for admiring antiquaries, they have no need to trouble themselves with mediæval Latin or Norman French; let them but turn to Mr Williams’s well-known text-book, and there, explained in the clearest English, they will find substantially the self-same law1 . A few little changes have been made—for accidents will happen in the best regulated museums—but, on the whole, this interesting specimen of antiquity has been most carefully preserved.
Englishmen, no doubt, are proud of this priceless curiosity, but apparently their pride is somewhat uncritical; they are hardly aware of the facts whence it derives its vast value in the eyes of connoisseurs. Such, at least, is the conclusion to which we are brought by a perusal of “Hansard.” It seems to be thought that a vague reference to “feudalism” is a sufficient account of the origin of primogeniture. Perhaps familiarity with this law has blunted our power of discrimination. We are so accustomed to see all the ages jumbled together in our nineteenth century law that nothing surprises us, and any semblance of explanation which may be offered for existing institutions is accepted as satisfactory. “Feudalism” is a good word, and will cover a multitude of ignorances. To ask what was the real connection between feudalism and primogeniture would argue a reprehensible discontent with beliefs sanctioned by Blackstone and orthodoxy. Thus we miss the really noticeable points in the history of our law, and our attention must be drawn to them by learned foreigners, by whom they can be contemplated with the single eye of scientific interest. We are used to an unreasonable law of real property, and we find no difficulty in believing that what is unreasonable now was unreasonable always, “feudalism” of course, being a particular form of unreasonableness not to be rashly defined.
And so with the postponement of women, this also is sometimes called feudal, but with much injustice; it is better than feudal, it is primitive, it is grandly barbarous; nay, it is prehistoric. Indeed, the decline of the old law of inheritance had begun long before anything that could be called feudalism made its appearance. Already in the seventh century a king of the Visigoths ordained in the plainest terms that females should share equally with males, and supported his decree by sophistical reasoning about nature and justice. But there is no accounting for the caprices of foreign monarchs; and in this country no rationalizing Prince, Potentate, or Parliament has hitherto laid unholy hands on the sacred principle. Englishmen, we say, are not sufficiently aware of the high pedigree which may be claimed for their law. It may be (we do not say it is, for we would not excite hopes destined to be blighted, but it may be) that our law of inheritance has some connection with that pure and primitive record of barbarism, the Salic law, ce texte si fameux, dont tant de gens ont parlé, et que si peu de gens ont lu1 . We must not be too eager to adopt a conclusion so gratifying to our national vanity, but the fact remains, that the author of our Leges Henrici Primi, when he came to speak of the law of inheritance, thought fit to abandon his English authorities, and to transcribe, with slight modification, a passage from the Ripuarian law. This passage was itself but a slightly modified transcript of the world-famous words in the Lex Salica. Why the English compiler did this we cannot say, nor can we shut our eyes to the fact that his work is bad and untrustworthy, but still there is some ground for hope, and national boastings have been based on worse evidence. But what a cause for congratulation is here! The Lex Salica, so high authorities tell us, was in its earliest form the production of a still heathen nation uncorrupted by Christianity or civilization. Really, when we think of the many destructive forces which at one time, of course long ago, threatened to deprive the male sex of its just prerogative, it seems little more than an accident, little less than a miracle, that our law of inheritance came safely through those revolutionary Dark Ages. There was the Church arrayed on the side of women, and of the meddlesome canon law all diligent readers of “Blackstone” know what to think. There was the civil law, including those improper Novels which even English judges are suspected of having perused in private. Nor are the names of individual revolutionists wholly forgotten. In the seventh century, and the neighbourhood of Paris, there lived a monk and conveyancer, one Marculf by name, the father of all those who publish collections of precedents. This bad man, not respecting ancestral wisdom, settled a form of conveyance from a father to his daughter, with intent to circumvent the salutary Salic law, which he scrupled not to call “diuturna sed impia consuetudo.” Diuturna, indeed, what would he have said now? We are afraid that he would have said diuturnissima. Impia indeed, but let us remember, in his favour, that the law was not in his days so old and mellow as it now is. And yet there are those even in this nineteenth century who, unconvinced by the annual eloquence of Her Majesty’s law officers, and glorying in their invincible ignorance, still mutter to themselves the words of Marculf, “diuturna sed impia consuetudo,” or, changing the phrase but not the meaning, adopt Mr Williams’s plain English, “worse than worthless,” “absurd and injurious.”
But, in all seriousness, why should women be postponed? It must be out of respect for some one’s memory. But whose? Is it Ethelbert or Cnut, is it Salagast, Bodogast and Widogast, or Choke, Croke, and Coke, is it Howel Dda or Dynwal Moel Mud? The Conservative party is a historical party, let it explain to the uninitiated the exact form which its ancestor-worship takes. And it really should be more consistent. It would, perhaps, be imprudent to re-enact the whole of the Lex Salica, because there are so many words in it which no one understands. A modern judge, not inexpert in the construction of obscure documents, might reasonably shrink from the title “De Chrene Cruda.” And so with the Welsh Triads, and the Senchus Mor, and even with the Dooms of Hlothar and Eadric. But were we really in earnest something might, with the help of philologists, be done for the great principles of archaic law. Foreigners have stated as a fact, that it is still common in England for a man to sell his wife1 ; that they mistake Punch for the Statute Book is plain, though pardonable. The statement is unfortunately not quite accurate, but it might be made so ex post facto by the next Metropolitan Markets Act. We are in difficulties with our bankruptcy law; might not a short and easy way with insolvent debtors be found in, let us say, the Twelve Tables? But we really must have the blood feud; no criminal code will be complete so long as this antique and excellent institution is neglected. As matters at present stand, our law of inheritance does look a little foolish, and from time to time the words of Marculf recur to our minds. But make our law all of one piece, and all will be well, the wisdom of our ancestors will be respected, and the price of woad will rise.
We would fain be serious, but we can only regard the arguments in favour of postponing women to men as some sort of fantasia or capriccio on the Leges Barbarorum. But the subject has a side which cannot be so airily treated. We again repeat that it is not our purpose to deal with the more obvious effects of our law of inheritance; about these readers of this Review have probably made up their minds. But it seems doubtful whether the full strength of the case for reform is widely known, and we turn to some of the less obvious effects of the law, believing that were these well understood there could be but one opinion as to the necessity of a radical change. For absurdity can go no further than to represent the badness of this law as a sentimental grievance. It may seem a small thing to introduce a reasonable system of succession on intestacy, for few who have aught to leave allow our absurd law to distribute their property; but even though the direct and immediate reform may be small, it must bring in its train certain other reforms which would effect a simplification—a time-saving, money-saving simplification throughout the whole body of the law.
But, in the first place, let it be noted that our canons of inheritance, besides being guilty of the two capital follies with which they are commonly charged—primogeniture and the postponement of women—are in other respects thoroughly bad. What shall we say of a law which ordains that if a man purchase land and die without issue, his most distant relative on his father’s side shall inherit before his nearest maternal kinsman, before his mother herself? A “parentelic” system of descent may interest foreign professors, but its convenience and justice are not readily seen. Surely there is nowadays no presumption that a man’s paternal kinsfolk are, or ought to be, nearer or dearer to him than his mother and his mother’s kin. Our Statutes of Distribution, which, being but two centuries old, we may call modern, may not be very perfect; but at least they start from the sound cognatic and “gradualistic” principle, which is, as a matter of fact, the principle of the modern family.
In the second place, we can now well spare the local customs of descent—gavelkind, borough English, and those still more anomalous customs which lie dormant for centuries, and never awake save to do a mischief. The only reason for retaining the gavelkind custom has been, that it was one degree less ridiculous than the common law; it postpones females to males, but knows not primogeniture. The borough English rule, which gives all a man’s land to his youngest son, has also fulfilled its only purpose, that of preserving for modern historians a relic of an almost prehistoric family system. But the time has come when all these local rules should perish; they are merely snares for lay-men and traps for costs. However, all this is, or should be, obvious enough, and we pass to some remoter consequences which must follow from the adoption of one law of succession for all kinds of property.
Foremost among these we reckon the abolition of “equitable conversion,” and all its attendant subtleties. The doctrine of conversion (let not our readers think that we here desert law for theology) arises in this way. A man owns land; by his will he directs trustees to sell that land, and to divide the proceeds between A and B. The trustees do not sell at once, and while they delay A dies; who is to take his share of the money, his real or his personal representatives? It would be unfair that the trustees’ delay should benefit the heir at the expense of the next-of-kin, and the rule has been established that the trust to sell converts the land into money for the purpose of succession. And so with the converse case in which a testator directs money to be laid out in buying land for one who dies before the purchase is made. A person, it is said, may make land money, or money land. Hence an infinity of perplexing questions, hence a vast mass of law, much of it very equitable and very elegant, but all of it quite unnecessary. Many thousand law-suits has this transubstantiation, or rather consubstantiation (for land may be land for some purposes and money for others), cost the country; and yet this doctrine is the unavoidable consequence of having two systems of succession where one would suffice. Once get rid of the heir-at-law, and there will be no more need for conversion; all property will be for ever personal property.
It should be remembered that English law is by no means unprepared to deal with personal property in land. In the first place, this device of conversion is often resorted to for the very purpose of placing land beyond the reach of our inheritance law, and rendering it divisible among the next-of-kin. In the second place, there are leaseholds, and leaseholds are personal property. It is certainly very ludicrous that when a man dies intestate the field that he holds in fee should go one way, the field that he holds for a thousand years another; but clearly all property in land might be made personal without our being driven to invent a wholly new system of land laws. Leaseholds may be regarded as providentially preserved for our guidance. If we must have a theory of tenure, let it be that all land is in the last resort held of the Crown for a million years1 . Those who argue that to render land divisible among the next-of-kin would necessitate frequent actual subdivision, show their complete ignorance of English law and English habits. They may fairly be challenged to prove that a minute subdivision of long leaseholds is any commoner than a minute subdivision of freeholds.
When we reflect on the English impatience of taxation, it is surprising that we should allow ourselves to be heavily taxed by means of lawyers’ bills for the maintenance of the “worse than worthless.” What an outcry would there be were the Chancellor of the Exchequer to propose a vote of money to be spent on a decent edition of “Bracton”—something better than that with which Sir Travers Twiss has favoured the world—and yet we are willing to pay for a cabinet of legal antiquities, if only we can have the annoyance of causeless litigation thrown in for nothing. We are willing to maintain even a “doctrine of conversion,” a most expensive property, provided that we are suffered to keep our diuturna sed impia consuetudo of postponing females to males.
Another reform would follow. After a long struggle we have succeeded in establishing the principle that a dead land owner’s debts should, if possible, be paid. But owing to our double property law, the principle is carried into effect by very imperfect machinery. Clearly the creditors should have some one person or body of persons to whom they could look as representing the dead man for all purposes, and bound to pay the dead man’s debts so long as there are assets. As it is there is one man with the land, another with the goods. So convinced is Mr Williams of the necessity for some measure establishing a real “real representative,” that he would secure this object even though the law of inheritance remained in other respects unaltered. Mr Williams has on this point convinced the Committee, but we hope for better things. Let all property be personal property, and this, as well as many other reforms, will follow as a matter of course. A will of realty will be proved as a will of personalty is proved, and a man’s executor or administrator will represent him for all purposes whatsoever.
Take, again, the law concerning the effect of marriage on property. No one can pretend that it is in a satisfactory condition, and clearly the whole subject must one day be reconsidered. But an abolition of the distinction between real and personal property would go far towards making it more intelligible, and a better subject for further consideration. For, leaving out all question as to property settled, whether by statute or contract for the wife’s separate use, and all consideration of the very capricious “equity to a settlement,” we have this state of things—A man marries a woman who has both freeholds and leaseholds, his rights in the two are utterly different. During the marriage he cannot sell the freeholds without his wife’s consent solemnly given; he can sell the leaseholds against her will. If he survive his wife he is absolutely entitled to the leaseholds; he gets at most a life estate in the freeholds. For all this there is no reason, though there may be a historical explanation. It is true that the law of real property is rather more favourable to married women than the law of personal property, and the abolition of the distinction would afford a good opportunity for making our one system of property law better than either of the existing systems. But it surely is of some importance that the law of husband and wife should be intelligible to the people, and this it never will be until we have determined that two systems of property law are one system too many.
You cannot create an estate tail in personal property. This is a blessed truth and full of promise. Establish, therefore, that freeholds are only extremely long leaseholds, and estates tail disappear. Here it may be thought that we pass from matters of mere law reform to questions of great social and political interest. But not so, for any lawyer will tell us that it is perfectly possible, and very common, so to settle leaseholds and other personal chattels that they shall go along with an entailed freehold estate. There is no need to investigate the mechanism employed by our modern Marculfs for this purpose; but the fact is, that, if it were impossible to create an estate tail, settlements of land might still be made, and would most certainly be made, which for most practical purposes, and in the ordinary course of events, would have the same effect as those which are now in use. The result would not be quite the same, but so far as all matters of real importance are concerned the result would, we believe, be the same. Not a great reform, then, some Liberals may be tempted to say; but we cannot agree with them. Once effected, it would be easy, if thought advisable, to set narrower limits to the power a proprietor has of settling his property, whether land or goods; but until some such simplification has been introduced, any attempt to shorten settlements will, in all probability, but darken the darkness of real property law. Let us first do that which all men who think about the matter must see to be good, then will come the time for deciding questions about which men may reasonably differ.
The position of a tenant in tail of full age is amusing. Something between a life tenant and an absolute owner, he can make himself an absolute owner by executing a deed and having it enrolled— that is, by paying certain costs to his solicitor. Very instructive is all this to learned Germans, but to tenant in tail, and all who have to do with him, a nuisance. Besides, these estates tail form one of the worst stumbling-blocks in the way of an unlearned testator. By some phrase thrown out at random he may succeed in creating one of these anachronisms, or still more probably render a law-suit inevitable by leaving it doubtful whether he meant to give an estate tail or an estate in fee simple. All such doubts should once for all be answered; estates tail should vanish; one pitfall would be safely filled in, one “possible construction” of obscure wills be rendered for ever impossible.
Can anything be more absurd than what happens on the death of a mortgagee in fee? The only substantive right, the right to be repaid the money, passes to his personal representatives. But his heir takes something; he takes “a legal estate” in the land. Really he has no rights, he must deal with his precious possession as others bid him, he can make no penny thereout for himself. But the legal estate, the ghost of a departed right, goes wandering from heir to heir, and devisee to devisee, until it is hunted down, and safely exorcised, and “got in,” not without costs. Otherwise there will be a law-suit and more costs. These legal estates, mere abstractions of nothingness, are a plague to vendors and purchasers, they are one of the chief hindrances to the registration of titles. To some extent, but to what extent our authorities tell us is not very clear, an improvement has been introduced by a recent Statute; but how? By grafting an anomaly on an absurdity, by timid tinkering and caulking. There is but one way to meet the evil. Render it impossible that the heir of a mortgagee, or the heir of any one else, should take anything whatever. For as with mortgagees, so with trustees. We are not pleading for elegance or technical refinement, but for real solid reforms, which would benefit the nation at large. Should any reader think that we overstate our case, we can only send him to the text-writers, but we send him with confidence as to the result. Let him reckon up the reported cases due to these outstanding legal estates, let him multiply their number by the average cost of a law-suit, let him consider how few are the cases reported out of those decided, let him consider how many are never pressed to a decision, let him think of these things and of the obvious remedy.
But throughout our law, look where we will, the distinction between the real and the personal is found a permanent cause of mischief. It is an all-pervading distinction, similar to that which some metaphysicians make between the objective and the subjective. Indeed, were it still, as once it was, the fashion for our lawyers to adorn their works with scraps of second-hand and third-rate philosophy, there would doubtless not be wanting those who would convince us that the real is the objective and the personal the subjective. However, lawyers have been in some respects more fortunate than those with whom we have made bold to compare them; for between the two great opposites they have found what metaphysicians are still to seek, a tertium quid, the mixed fund. The part played by the mixed fund is well illustrated by an extract from Mr Pollock’s Principles of Contract, given below. First, however, let us notice that the law of England is good enough to encourage marriage, and with this object in view has established certain rules respecting the invalidity of a condition avoiding a gift on the marriage of the donee. Of course, however, it cannot deal with the two kinds of property by one set of rules, for it is, or must be deemed to be, a maxim of our law, that distinctions are to be multiplied. The extract is as follows:—
“Conditions in Restraint of Marriage:—
“If precedent, are with trifling exceptions (if any) valid as to both real and personal estate.
“General restraint. Good, it seems, as to real estate. Bad as to personal estate or mixed fund (or a fund arising only from the sale of realty, semble), and this whether there is a gift over or not.
“Particular restraint. Good as to real estate; and good as to personal estate if there is a gift over, otherwise not1 .”
This is a very fair specimen of English law, and the reader will see that we have not been romancing. We have one rule for personalty, another for realty, and then arises the question which rule is applicable to the mixed fund. But why two rules? Either sound policy demands that a condition defeating a gift on the marriage of the donee should be void, or it does not, but it cannot possibly draw any distinction between land and goods. It is, of course, very interesting to know that the ecclesiastical and temporal courts could not agree about the validity of these conditions, but a history, however interesting, is not a reason. This is, we repeat, a fair specimen, and we have chosen it, not because it is more strikingly irrational than many others, but because Mr Pollock’s statement is so concise, that it may easily be quoted. In truth, “it is curious to notice,” as Mr Williams observes, “the strange differences that exist in our law, without any particular reason whatever, so far as one can see, between real estate and personal estate1 .” This remark serves as an introduction to an account of a very strange difference indeed, and one due to the unprincipled meddling of a modern Parliament. We say unprincipled, for an opportunity was offered for establishing on a particular point the same rule for real and personal property, but our legislators preferred to introduce a new complication for which we will defy any one to find “any particular reason,” or, indeed, any reason particular or not particular. The matter is too elaborate to be here explained, but we refer our readers to Mr Williams’s book on Settlements. If they do not agree with the learned author that “it is curious,” their taste for legal curiosities must need cultivation.
Now, it seems to us plain that, even if both our two systems were reasonable and convenient, there would still be good cause for ridding ourselves of one of them. Much more, therefore, ought we to abolish so inconvenient and unreasonable a system as that of which we read in The Seisin of the Freehold. The general reader would hardly thank us for any observations on the abstruser doctrines of the law so lucidly expounded, we had almost said exposed, by Mr Williams. And yet it is only by considering the minuter details of the law that we can appreciate its worthlessness at its true value. This is one of the worst impediments in the way of improvement. When told that the law is bad, and might easily be bettered, we are sceptical, we desire, and rightly desire, a proof, and when the proof is offered, we say, and truly say, that it is dull. For who shall interest us in contingent remainders, or the Statute of Uses, while Chinese metaphysics remain unexplored? If we want barbarism at its best, we can turn to the Lex Salica. If we want scholasticism at its best, we prefer Thomas Aquinas to Lord Coke. Were it a matter of wrong or wicked lewdness reason would that we should lend an ear (the reports of the police and divorce courts are found by some to have a certain human interest), but as to words and names and our law, our ordinary civil law, let lawyers look to it, for we will be no judge of such matters. And yet the subtle learning of contingent remainders is suffered to interfere with actual life. It is mere innocent ingenuity amusing itself with frivolous distinctions. On it may depend the rights of the widow, the orphan, the purchaser who has paid for land and bought a law-suit. And it is all unnecessary. There can be no contingent remainders of leaseholds. Make freeholds personal property, and one mass of obscure and difficult doctrines may be for ever forgotten. Who would lose by such a reform? No one. Must we hint that this is the very reason why no one cares to alter the law? Who would gain? Every one who, whether as vendor or purchaser, donor or donee, had anything to do with freehold land.
Then there is that marvellous monument of legislative futility, the Statute of Uses, the statute through which not mere coaches and four, but whole judicial processions with javelin-men and trumpeters have passed and re-passed in triumph. It has been said of this ambitious statute that its sole effect has been to “add three words to a conveyance.” This may pass as a contemptuous epigram, but it is far from the whole truth. It has caused innumerable unnecessary law-suits. This is not an epigram but a fact. It is not a mere Statute of Uselessness but a Statute of Abuses. And it will be readily understood that if there is a flaw or a stupidity in our property law, the whole body of the civil law is the worse for it, for property law must be the very core of the Corpus Juris. Thus, it is not only those who make and profit by elaborate settlements of land who suffer by our misplaced antiquarianism. Whenever title to freeholds comes in question, directly or indirectly, the power of this statute is felt, and the real merits of the case but too often disappear beneath the accumulated rubbish of ages. It might have been supposed that one part at least of our law would be plain, the law relating to the Parliamentary franchise. But it never will be plain so long as it depends on real property law essentially nonsensical. It is a “fancy franchise,” more fanciful than any conceived by our most fantastic Minister, when the right to vote is given or denied by the fact that a certain deed took effect not under the common law but under this statute. It is a powerful sarcasm on our boasted liberalism that the cases which of recent years have turned on the most absurdly frivolous distinctions have been cases on the right to vote under the Reform Act.
Space may fail us but matter does not, for in truth it is only when we turn to “questions of construction” that the badness of our dual system is seen at its best. To take but one instance, centuries have not sufficed to convince the people of England that the word “heir” is quite inapplicable to personal property; they cannot or will not believe that we have two distinct schemes of succession. The consequence is that in their innocence testators make use of inappropriate phrases, and then follows the inevitable administration suit, the family quarrel, the costs. We do not hesitate to say that ten per cent. of the “questions of construction” which are raised are due to our having, and having long had, two bodies of law where one would suffice. Doubtless, the simplification of our property law would work but slowly and gradually on the minds of testators, but it would work surely, and some day an educated Englishman may be trusted to make a simple will for himself.
Perhaps there is not sufficient work for our Courts, that wrongs being unknown, and all contracts kept, we are obliged to invent problems for our judges. Can there be any other explanation than this for the care with which we preserve a system or want of system ingeniously framed to lead testators astray? And yet we are constantly told of large arrears of cases waiting to be tried, we constantly hear demands for more and more judges. We are not so very successful in suppressing fraud and breach of faith that we can afford to encourage by artificial means that worst kind of litigation, litigation between parties all equally innocent, equally unfortunate. The promoter of bubble companies, the swindling director, the fraudulent bankrupt, are allowed a respite, which may be ruinous to those whom they have cheated, while the Courts are deciding what shall be done with the property of a man whose sole crime is that he has shown a not unnatural ignorance of the distinction between real and personal estate.
Now, were it seriously contended by the friends of the heir-at-law that his existence is necessary for the maintenance of our present social order, that he is a prop of the State, or the Church, or of anything else, we might have to consider whether the system of law of which he is the centre might not be made more tolerable by amendment. But no such contention is raised. On the contrary, the advocates of primogeniture are fond of laying stress on the fact that few land owners die intestate. Is it not a little one?—this is their favourite plea. No, we reply, the abuse is not a little one. It is for the sake of the heir-at-law that we disorder the whole of our jurisprudence. In order to postpone women to men, in order to make a will which no one wants made, we render our law unknowable by any save experts. If after all our efforts we fail in attaining our worthless object, if daughters and younger sons are not disinherited, this is but an additional argument for reform. We undergo all the evils of having two systems of property law, and have nothing to show for it. You cannot prove that a law is good by showing that all sensible men contrive to evade it.
It is quite unnecessary for us to say harsh words of our ancestors. There is no need to seek a scape-goat among the feudalists, the canonists, the civilians. We have no quarrel with the Parliament which passed the Statute De donis or with that which passed the Statute of Uses. For all our legislators and judges from Ethelbert to Eldon we profess profound respect. It is we who are guilty of our own law, for as Hobbes rightly says, “The legislator is he not by whose authority the laws were first made, but by whose authority they now continue to be laws.” It is therefore our present law-givers, and we who have elected them, that are to blame, if the right to land, and the right to vote, may still depend upon nonsense which it would be unjust to the schoolmen to call scholastic, nonsense which can only be explained by long stories about the quarrels between Courts which we have abolished. If these quarrels ended in an illogical compromise, this may have been our ancestors’ wisdom, but that the terms of this compromise are still retained as law for all time is no better than our own folly.
To any reader trained in the historical school now fashionable our arguments may savour of a narrow and frigid Utilitarianism long since abandoned by all enlightened persons. The law of real property is, we shall be told, an historical institution—the product of social evolution, of national life—and as such it must be criticised; nor must it be rashly condemned if it fail to conform to our notions of practical convenience. Now, it is but too probable that we are sadly deficient in the historic sense which it is the pride of this generation to have discovered in itself. It is not unlikely that we are behind an age whose chief ambition is to be behind itself. We must even confess to a belief that the law reformers of fifty years ago were often on the right track, though it is but too plain that they were ignorant persons who knew nothing of the primitive Aryan, and believed that all the Middle Ages were contemporaries. Were it necessary we should not fear to maintain the heresy that no practical convenience, however small, is to be sacrificed on the altar of historic continuity. But in the present case there is no need for the assertion of this very old-fashioned doctrine. Were it expedient, we might easily show that for centuries past there has been one steady tendency running through the whole movement of our property law; a tendency towards the assimilation of real to personal property. Indeed, we know not where to date the beginning of this tendency, for, as far as our records reach, we see it at work. We have been gradually, very gradually, moving towards the idea of absolute property in land. The theory of feudal tenure marks a particular stage in the movement; but the movement had begun long before the feudal theory was conceived, and has continued long after that theory has been capable of producing any consequences save confusion and inconvenience. What is now desirable is that we should bring the work which has been so long in hand to its logical conclusion. We know that there are those who would hesitate to sanction the doctrine that there may be and is absolute property in land. They have a certain affection for the old theory of tenure, not because they are Conservatives, but because they are Radicals; because in their eyes that theory serves to indicate, however imperfectly, the principle that property in land ought not to be placed on the same footing as property in other things. How far their economical reasonings justify this distinction we may not here inquire; but let them ask themselves whether they can seriously hope to make use of the theory of tenure in aid of their schemes. To us it seems that they do but prejudice their cause by seeking an alliance with worn out and discredited principles. If there be any special reason for taxing landlords more heavily than other people, if there be just cause for appropriating to the State “the unearned increment” of rent, all this is compatible with a simple system of property law, unencumbered by theories of tenure. We do not believe that any sense of the claims of the community on the land is kept alive by the doctrine still to be found in our law books, that of land no subject can be the absolute owner. Every one knows that this doctrine, however indispensable as an explanation for some of the subtleties of real property law, is, in fact, untrue. “The first thing the student has to do is to get rid of the idea of absolute ownership1 .” So says Mr Williams; but we may add, with equal truth, that the second thing he has to do is to learn how, by slow degrees, the statement that there is no absolute ownership of land has been deprived of most of its important consequences. The question, therefore, for those who would limit the rights of property in land is, whether they would rather work in the dark or in the light; whether they would rather deal with a modern and reasonable system, capable of further improvement, or with a mass of old theories—once, perhaps, an organized whole, but long since fallen into decay.
For our own part, we can imagine no sounder advice than that given by Mr Williams:—“For the future, perhaps, the wisest course to be followed would be to aim as far as possible at a uniformity of system in the laws of both kinds of property; and, for this purpose, rather to take the laws of personal estate as the model to which the laws of real estate should be made to conform, than, on the one hand, to preserve untouched all the ancient rules, because they once were useful, or, on the other, to be annually plucking off, by parliamentary enactments, the fruit which such rules must, until eradicated, necessarily produce1 .” Thus has Mr Williams preached through twelve editions of his book, but we grow no wiser; and now we have Mr Morgan’s Committee marking out for us the annual crop of weeds for the year 1880: a statute to be repealed, a real administrator appointed, verbiage curtailed, but no attack on the root of all evil—the heir-at-law. Perhaps when Mr Williams has published twelve more editions we may be converted to his bold and sensible policy, and regret that we have spent so much well-meant labour in trying to patch up a hopelessly rotten system. When that time comes we shall think of Mr Williams not only as of a very learned lawyer, but also as of a law reformer who knew what he was about: a law reformer of the good old school, which knew that a reform to be effectual must be logical and thorough.
Such, briefly stated, is the case for reform. We have chosen to take what may seem to some a narrow and a low view of the subject, but our object has been to lay stress on the practical inconveniences of our present law. We are quite willing to adopt Mr Matthew Arnold’s argument, that to our law of inheritance is in part due that very unequal distribution of wealth of which he complains, and we are decidedly of opinion that “materialize,” “vulgarize,” and “brutalize” are brave words and not inapt. We are quite willing to leave open the question whether our law does not give to settlors too vast a power of tying up property. We would gladly see land a merchantable commodity. But we have purposely avoided all great social and political questions, and even all questions which are likely to be warmly contested. We have taken our stand on low ground, the saving of quarrels and costs, but our position is, we verily believe, impregnable.
There was a time, some fifty years ago, when it might have been plausibly said that to meddle with so old a structure as our land laws was dangerous. For centuries they had been almost untouched by statute, and there was some reason for thinking that to improve them was beyond the power of mortal man. But there were reformers in those days. The work that they did was done skilfully and well; and yet it was a daring work. Old abuses fell like leaves in autumn. Fines were not saved by their antiquity, nor recoveries by their absurdity, nor real actions by their costliness. The writ of entry sur disseisin in the quibus perished along with writs of aiel, besaiel, tresaiel, and cosinage. Our sense of historical continuity was not keen enough to save “the casual ejector,” or “the common vouchee.” A decent oblivion was provided for John Doe and Richard Roe. The law of inheritance itself did not altogether escape the touch of the innovator. The deluge did not follow. The House of Lords exists. The Church flourishes. Had these measures failed, had they even produced great though temporary inconvenience, were we inconsolable for the loss of the solemn mummery of fictitious actions, we might hesitate to make another perilous experiment. But these measures were splendidly successful. There probably has never been a statute which has won higher praise for its technical perfection, and that too from critics not wont to praise highly, than the Act which abolished fines and recoveries. It did its work with little friction. It was skilful and it was bold. Are we to believe that similar skill and boldness are not now at the command of law reformers? This surely is not the case. The work might be done, and done well, were there a demand for it. But such a demand must nowadays be a popular demand. We trust it may soon be made. It did not seem unreasonable to hope that a Conservative Ministry might have given us this reform; for it is a Conservative reform, one, that is, which has no tendency to benefit one class at the expense of others. But now, it seems, we must wait for the Liberals; may they soon come and deliver us from this heir-at-law. The war against him and his works, let it be well understood, must be a war of extermination. There should be no compromise, for this simple reason, that any compromise must leave us with two systems of property law instead of one. The details of the campaign it may be impossible to foresee, but of the general plan there should be no doubt; it must leave us with one system of property law, and one only. This is what a civilized jurisprudence requires, and here, as always, scientific jurisprudence is on the side of convenience and common sense. What is inconvenient in fact is anomalous in law. A system of law logical but inconvenient may perhaps be imagined, but it cannot be realised; it must fall into confusion so soon as it is applied in practice. First one exception is admitted, then another, then chaos. The converse is true; make law convenient and you make it scientific. Contemplate, therefore, this reform from what point of view you will, from that of the jurist, from that of the farmer, from that of the land-owner, from that of the plain man of sense, it is seen a necessary indispensable reform.
This heir-at-law must know that the time of his departure is at hand. His doom was long ago pronounced. It was foreseen by the dramatist who determined that the epilogue to The Heir-at-Law should be spoken by Dr Pangloss, LL.D. and A.S.S. It was foreseen even more clearly by Bentham, when he said in the pages of this Review that the heir-at-law must be “abandoned to the Society of Antiquaries1 .” This is his doom, “abandoned to the Society of Antiquaries”; yes, with all his rights, privileges, and appurtenances. Or if our antiquaries will not have him as a gift, if there is in England no Pangloss who will receive him with an apt quotation, we will hand him over to the tender mercies of Gradualisten and Parentelisten, who shall write monographs upon him until the end of time.
THE LAWS OF WALES.—THE KINDRED AND THE BLOOD FEUD1 .
The Ancient Laws and Institutes of Wales, of which Mr Aneurin Owen now many years ago published an edition and an English translation for the Record Commissioners2 have hardly hitherto received, even in the Principality, the attention which is their due. Englishmen having at one time somewhat too greedily devoured Welsh myths are now wont to mistrust any information contained in a Welsh document, and thus an indiscriminating credulity has given birth to an indiscriminating scepticism. There seems really very little ground for doubt that the bulk of Mr Owen’s three codes, Venedotian, Dimetian, and Gwentian, was at one time law in Wales, or at least was thought to be law. This qualification we add because it is very apparent that a large part of these masses of rules is neither law made by any “sovereign one or many” (to use Austin’s phrase), nor yet “judge-made” law, nor yet again a mere record of popular customs. It is lawyer-made law, glossators’ law, text-writers’ law. That the kernel of the mass is a real old code compiled by Howel the Good about the year 928 is more than probable1 . But our documents do not profess to give us the code, the whole code, and nothing but the code. By comparing the several versions which Mr Owen assigns to Gwynedd (North Wales), Dyfed (South West Wales), and Gwent (Monmouth), we soon come to the conclusion that they have been made at different times, in different parts of the country, and that the makers thereof have held themselves free to gloss, to rearrange, and to introduce new matter. The relation of these versions to the real ancient code is probably much the same as that of the compilations which bear the names of Edward the Confessor, William the Conqueror, and Henry the First, to the codes and statutes of Cnut and his West-Saxon predecessors. Between the Norman Conquest and the reign of Henry the Second, there lies a time in which it must have seemed likely that the future of the law of England was committed to glossators and textwriters. This period was brought to a close by Henry’s vigorous legislation. But in Wales there was no one to issue assises or constitutions. Much as the later Welsh lawyers must have added to their ancient code, they hardly ever refer to any subsequent legislation. Only fitfully, now and again, were the Welsh people united under one chieftain, and then for the purpose of war, while even in each separate kingdom or principality the king or prince can have had but small legislative power. The care of the laws belonged not to kings or princes, but to lawyers. It was for them to explain, and in explaining to develope the ancient law. In this there is nothing strange. The really strange thing is that during the period of English history which ends with the Conquest, we hear so very little of “law-men,” so very much of real legislation1 . For this we have to thank the energetic line of West-Saxon Kings and very possibly the influence of the Frank Empire. In Wales, where no great family succeeded in gaining a permanent, unquestioned, irresistible supremacy, there arose a special class of men learned in the laws, a class quite comparable to that of the German and Scandinavian “law-men,” and the Irish “Brehons,” and it is not unworthy of note that the one great Welsh law-giving King, Howel the Good, whose code was universally regarded as the very core of Welsh law, was himself a tributary of the English Æthelstan.
From what has been said it will be easily understood that the materials provided by the Ancient Laws and Institutes of Wales should only be used with the greatest caution. They are of very uncertain date; even the dates of the MSS. (and they are numerous) from whence they are taken have not yet been assigned with much accuracy. Again, though in the main they are far more consistent than we might expect, it is sometimes very difficult, or perhaps impossible to harmonise them even when they touch on matters of considerable importance. Clearly the first qualification which should be required of any one who would deal with these materials thoroughly and scientifically must be a very competent knowledge of the Welsh language, its dialects and its history, and the second must be a large acquaintance with other old systems of law, for it is at once apparent that this mass of Welsh rules has many and strong resemblances to other masses of ancient law, and in such other masses a sound criticism would find many of its best weapons. But even to one who boasts no such equipment, and who is wholly dependent on Mr Owen’s English version, there are certain things fairly clear and very interesting in these documents, and such an one now submits to his readers a brief account of what seems to him a very noticeable part of the system described in the Welsh laws1 .
A fact which at once strikes us is that very great importance is attached to nationality. The pureblooded Welshman has many privileges which he does not share with any foreigner, or with any one who is tainted by foreign blood. We constantly read of aliens and foreigners, and seemingly a considerable part of the population was, or was deemed to be, of alien descent. But with scarce an exception the alien is a villein; not indeed a slave or bondsman, for below these alien villeins there is a yet lower class of real slaves, whom the Welsh lawyers constantly compare to the beasts that perish and lie unavenged; but still the alien is unfree, is a villein, and the very word villein has made its way into Wales. In all respects he is on a lower level than the pure-blooded Welshman. How strict are the notions entertained concerning purity of blood may be seen from the provisions which permit the alien, whose ancestors have for several generations been settled in Wales, to become a true Welshman. According indeed to one authority, but one which seems open to suspicion or worse, no less than nine generations are requisite to purge out the stain of foreign blood, and thus a period of nearly three centuries may elapse before a true Welshman is born of a foreign stock1 . This is probably exaggeration, but more trustworthy authorities agree that long settlement in Wales is necessary, the number of generations requisite being apparently three2 .
On hardly any point is there so striking a difference between the Welsh laws and the earliest English laws that have come down to us. In England, to all appearance, law very rapidly became territorial, and he was a West-Saxon who lived in Wessex. It may well be that for some time after the Teutonic invasion, Jutes, Angles and Saxons thought of their laws as the laws of their race, not of their territory. In Ine’s code the Welshman, even when no slave, is clearly not on a level with the West-Saxon3 . He has a smaller wer, probably an altogether inferior status. But Ine’s code belongs to the seventh century, and there must have been many Welshmen in his dominions who had become his subjects not by birth but by conquest. No such distinction appears in our next code, that of Alfred, and from that time onwards the laws hardly mention the Wealh1 , though a large portion of the population of the south-western counties must have been of British descent, and must have spoken a Celtic tongue. So again after the Danish invasions, “the Danes’ law” seems to have rapidly become territorial, and indeed the phrase became the name of a territory2 . Nowhere do we hear anything of the strange system of “personal law,” as it is called, or of tribal or national law as we might better call it, which prevailed on the Continent and which allowed the Frank to carry about with him his Salic or Ripuarian law into Saxony or into Lombardy or wherever he might go. Probably what distinguished England from the Continent was this: that on the mainland there was one system of law utterly different from the customs of any of the German tribes, the Roman law. The Church was deeply interested in its preservation, and the clergy secured from their conquerors and converts the privilege of retaining their old law. This made a nucleus, round which an elaborate system of “personal law” arose, each man keeping wherever he might be the law to which he was born. In England, Roman institutions perished, and the British Church gained no hold over the invaders. But be the explanation what it may, the Danes’ law rapidly became the law, not of men of Scandinavian descent, but of Eastern and Northern England. Even the Norman Conquest, deeply as it affected the history of our law, placed no new nation alongside of the English. The privileges which belonged to Normans as Normans were very few. At last we find the Common Law of England so utterly careless concerning purity of blood that it holds every man an Englishman if born in the English king’s dominions, an alien if born elsewhere. Very different is this from the Welsh law with its excessive care for pure Welsh nationality.
To refer this difference to an ultimate difference in national character would be rather easy than satisfying. Before so doing we should remember that the English conquest of Western Britain must have done much to make the Welsh law the law of a race not of a territory, and to keep alive the memory of pure Cymric descent. The Welsh had an outstanding claim to the whole of Britain, and to no narrower territory could their law attach itself. In the struggle against English invasion they became an exclusive people.
The same causes which made for the preservation of a national as opposed to a territorial ideal of the state, must have aided the retention in Wales, down to the very last days of Welsh law, of an organisation of society for legal purposes by kindreds and families. No one will now be surprised to find traces of a time when the kindred or clan and not the individual was the true unit of the legal system. But in Wales, so long as Welsh lawyers continued to write about Welsh law, that time had not wholly passed away. The kindred or clan was, to use a phrase but little too technical, a corporation having rights and duties in its corporate capacity, not indeed a corporation created by law, but one which the law must recognise. The constitution of these kindreds and their corporate rights and duties are a matter well deserving of observation, and we may be pardoned for speaking of them at some length.
The kindred (cenedl) must have normally been a body of considerable size, for fifty of its full grown male members were often required to act in common, and in some cases even three hundred. It is a body of kinsmen tracing their descent from a common ancestor, and there are some signs of a theory that all these kinsmen are distant from the common ancestor by at least three generations. A family of aliens is not a kindred until at least a certain number (some say nine) generations have passed away. One curious passage suggests that, according to the current notion, this is the way in which all kindreds have been formed1 . After aliens have remained in the country for the due time a Welshman is born, and he becomes the head of the kindred, and he is not in law called the son of his father being rather his father’s father in the law2 .
The relationship between the members of a kindred was normally a real blood relationship, but we read of nine methods “by which strangers can become relations3 .” Each of these consists of some great service done to a kindred, espousing its cause in a blood feud, or the like, and the benefactor thereby becomes a member of the clan which he has benefited. There are other passages which show that similar legal fictions were not unknown. The lord who takes by escheat becomes the son of the dead man1 , and as already said a man may be his own father’s father. But normally the bond of union was blood relationship, and that agnatic. The bond of kindred was closely connected with the possession of land, and though there is some slight conflict between our various authorities, it seems perfectly plain that according to the oldest law, and the law which prevailed in Gwynedd down to the time of Edward the First, no woman could in any case inherit land2 . In three quite exceptional cases she could transmit to her sons a right to inherit her father’s land along with her brothers. It is constantly assumed that it is the duty of a woman’s kinsmen to give her in marriage where her sons may obtain a paternal inheritance. If they fail in this duty her sons will inherit through their mother. If a Welshwoman be given in marriage to an alien, if she be given as a hostage into a foreign land and there marry, if she suffer rape by an alien, her sons will inherit with their maternal uncles and be members of their mother’s kin3 . These (with one other to be hereafter mentioned) are the exceptional cases, and in all others it is through males and only through males that relationship is traced.
A man therefore belongs not to many kindreds, but to one kindred, namely, that to which his father belongs. But it is a very noticeable fact that marriage did not in Wales, any more than in England, take a woman out of her own kindred and transfer her to that of the husband. Here we can only notice this fact, hoping to return thereto at a more convenient season. However, plain it is that in Wales, as in England, the wife remained a member of her own kindred1 . But though, as already said, a child normally belongs to his father’s kin, there are exceptions to this rule. Owing to the somewhat loose notions of marriage and legitimacy which prevailed in Wales, it was not always easy to determine who a child’s father was. Apparently the son even of a common prostitute2 is not a child without a father. If the mother can affiliate him he becomes a member of his father’s clan. If the attempt to affiliate him be unsuccessful (and no more than one attempt is ever allowed), he becomes a member, and seemingly a perfectly legitimate member of his mother’s clan. For him, as for the most lawfully begotten of children, a wergild (or galanas) is payable, and there being no father’s kindred a greater share than usual is paid to the maternal relatives3 . If the man on whom a child is fathered be living, he may free himself by solemn oath4 . If he be dead then the matter rests with his kindred. Here we see the clan and its chieftain in full activity and get a glimpse of the organisation. The chief with six of the clan may go to the church and there by oath repudiate the child, and seven other members must swear that the oath is pure. If there be no chief, the men of Gwynedd require the oaths of twenty-one kinsmen, while in Powys and Dyfed there must be fifty swearers. Provision, however, is made to prevent the denial being given by those whose interest conflicts with their duty. Those with whom the child would be entitled to share the paternal inheritance are disqualified to repudiate him. Until solemnly repudiated the child is “a son by sufferance,’ and the clan must pay if he commits manslaughter, but have no claim if he be slain, having as it were the burden but not the benefit of being related to him1 . A solemn and impressive form of adoption is provided. The chief and six of the best men may acknowledge the child. The chief takes the child’s hands within his own and kisses it, then places its hands within those of the oldest of the other men, who kisses it, “and so from hand to hand until the last man.” If there be no chief, the ceremony is performed by twenty-one (according to others, fifty) of the clan’s best men2 .
Over the clan there presides a chieftain (pencenedl). Concerning the title by which he holds his power, the more trustworthy sources give us but little and that negative information. It is not a hereditary title. “A son is not to be chief of kindred after the father in succession, for chief of kindredship is during life1 .” From this we may infer that though not deemed hereditary, such it was tending to become; and this is probable, for from the same source we learn that the nobility of the chief extended to the members of his family, their galanas, or as the English would have said wer, being greater than that of the mere nonnoble free man2 . Less trustworthy authorities are richer in information. “A chief of kindred is to be the oldest efficient man in the kindred to the ninth descent3 .” How far this requirement was actually fulfilled in practice we cannot say, nor is it impossible that age was reckoned in some artificial manner which represented the members of an older line as themselves older than members of younger branches, for by such means a transition may have been made to that hereditary transmission of the office against which the law expressly provides.
The chief’s position is one of honour and privilege. In the Welsh laws, as in other ancient systems, every man has his price, the price which must be paid for him in case he be slain. In Wales this price is called galanas, and like the wergild of the Teutonic nations, it fixes a man’s station in society4 . Now the galanas of the chief is according to the Venedotian Code, “nine score and nine kine once augmented5 .” Concerning the phrase “once augmented” we can only here say that it seems to mean that the sum named is to be increased by one-third of itself. The chief’s value therefore is 252 kine. He is thus ranked on a level with the highest of the king’s servants or officers of state, the steward, the chancellor, and the chief huntsman. The value of the mere Welsh free man according to the same system is 63 kine1 . In the other codes the difference between the chief and the free man is still greater, the life of the one being apparently nine times as valuable as that of the other2 . In short, no one is more honourable than the chief of a clan, save only the king, queen, heir apparent to the throne, and the chief of the royal household, for even the king has his price in Wales, as in England and in Scotland.
Many other payments are regulated by the amount of a man’s galanas, for instance, his saraad or honour price, the sum he receives if insult be done him, the ebediew, relief or heriot payable on his death, the amobyr or fine for leave to marry his daughter, and the cowyll or morning-gift and agweddi or dower to be provided by her husband. Thus his galanas fixes a man’s general status, just as in England many legal consequences depend on the amount of a man’s wer. Judging by this standard, the chief’s position is honourable and exalted. He enjoys other privileges and immunities. He receives galanas for the death of a kinsman, but does not pay3 . He is entitled to twenty four pence from every youth admitted to the kindred, and to twenty-four pence from every kinsman who places a woman under his protection1 . To slay him is among the gravest crimes2 . In all matters which concern the clan he takes the lead, and if in “counselling” a kinsman he has recourse to a blow, that blow may not be redressed3 .
Thus much we have on good authority. The Triads of Dynwal, to which we refer with very much less confidence, ascribe to the chieftain vast political and constitutional importance. For instance, it is by a chief of kindred that an assembly may be convoked for the deposition of an unjust king4 . These Triads bring out very strongly the theory, doubtless the old traditional theory, that the Welsh nation is constituted, not of individuals, but of kindreds each under its own chief. But they are poetic and vague, and probably in their present form of little value as evidence of fact, though of much value as evidence of ideals and aspirations. They leave the impression that the kindred for many purposes, both civil and constitutional, acts as a body, being in some sort represented by its chief. Also the chief has large though rather indefinite powers in the internal government of the kindred and the direction of its affairs. “Every one of the kindred is to be a man and a kin to him, and his word is paramount to the word of every one of the kindred5 .” “Three things, if possessed by a man, make him fit to be a chief of kindred; that he should speak on behalf of his kin and be listened to; that he should fight on behalf of his kin and be feared; and that he should be security on behalf of his kin and be accepted1 .” “It is the duty of every man of the kindred to listen to him, and for him to listen to his man2 .” We are told more definitely that he is entitled to maintenance from the ploughs of the kindred3 . He also has the privilege of imprisonment, whatever that may mean4 . He is assisted by a council of seven elders, also by a “representative” of the kindred, and by one who bears the ominous title of “the avenger5 .” The avenger punishes evil doers and leads the kindred to battle. This must imply important duties, for it is as a corporation capable of making private war that the kindred retains its chief importance in Welsh law. The “representative” must we are told be a learned man. It is for him to act as the chief’s deputy, and we must regard him as the kindred’s peace-maker, negotiator, and man of business. To the existence of the council of seven elders, the avenger, and the representative there is testimony in the “codes,” but hardly anything is there said of their qualifications, rights, or duties6 .
Though there is some evidence that the kindred as a corporate body is still capable of possessing property, it is chiefly in the sphere of criminal law, or what we should consider the sphere of criminal law, that it finds scope for its corporate activity. The whole subject of Welsh criminal law is well deserving of examination, but here it is only necessary to premise a brief explanation, and one which will hardly surprise those who are acquainted with other ancient systems of law. The Welsh laws in some cases inflict real punishments. Most frequently these are fines or mulcts payable to the king or lord, but mutilation and death are occasionally though rarely denounced. There is a real penal or criminal law. But this does not extend to what we are wont to think the gravest of all crimes. It does not extend to homicide. Neither manslaughter nor what we call murder was, strictly speaking, a crime at all. It was a legal justification for a blood feud, which feud might be composed by the payment of the slain man’s worth or galanas, a payment of just the same nature as the wergild of our own old laws. Criminal or penal law, the law which does not extort reparation but punishes, seems to have followed the same course of development in Wales as in England. It is seriously doubtful whether at any time before the Norman conquest homicide, unless it was accompanied by some foul and diabolic dealing which made it morth, was punished in this country by anything beyond a pecuniary mulct, while it is certain that the punishment of death had long been freely applied in cases of theft and even of petty theft1 . There is some discrepancy between the various Welsh authorities as to the limits within which the blood feud is permissible. According to one version of the Venedotian code the slain man’s kindred may only revenge his death on the person of the slayer2 . Apparently, therefore, in North Wales that step towards the abolition of the feud had been taken which in England was taken by King Edmund. In this case we are able to test the value of the Welsh authorities by appeal to a very trustworthy source. Edward the First issued a commission to examine witnesses from North Wales touching their laws1 , and one of these gave evidence of just such a limitation of the blood feud as marks the Venedotian code and ascribed it to David ap Llywelyn, apparently the prince of that name who died in 12462 . In the other codes there is certainly no such limitation. An act of homicide if not duly paid for within the appointed time is still a signal for private war of kindred against kindred. That the revenge was not originally restricted to the person of the slayer should be clearly understood, for only thus can we understand the composition for homicide whether it be called wergild or galanas. The slayer’s kindred must pay the money, not because they are bound to help a kinsman out of a difficulty, but because they themselves and every of them are liable to the revenge of the slain man’s clan. With the money, wergild or galanas, they purchase not their relatives’ peace, but their own. On the payment of the galanas within due time, what may fairly be called a treaty of peace is concluded. Three hundred men of the offended kindred swear that the slayer is forgiven, and everlasting concord and perpetual amnesty are established1 .
Now first we must notice that though a man properly belongs to one kindred only, namely, that of his father, he is by no means a stranger to his mother’s clan. If he slay or be slain, not only his paternal but also his maternal kin are involved in the feud. Seemingly it is thought that his mother’s kin have only one-third share in him. They pay or receive a smaller part of the galanas, the greater part being paid or received by the father’s kinsfolk. It is well worthy of note, that of this rule which is firmly established in Wales, we have evidence from England also2 . Thus there are four kindreds involved in each feud, and apparently the maternal kin on the one side is at war with the maternal on the other, the paternal with the paternal. At least, paternal kin pay to paternal, maternal to maternal; and paternal swear peace to paternal, maternal to maternal.
When we pass to more minute rules, we find that these were evidently the subject of many differences of opinion. We are told what “some say” and “others hold,” and one Welsh lawyer frankly confesses that “the sharing of galanas “is one of “the three complexities of the law1 .” However, even on this dangerous ground, we may take a few steps.
In the first place we must distinguish from the galanas another payment, namely, the saraad. Whenever a person is subjected to any injury or disgrace, saraad is done to him, and must be paid for. Just as every man has a certain price which must be paid if he be slain, so he has a certain saraad or, as we may term it, “honour price,” which must be paid if he be insulted2 . The latter price varies with the former. Thus, if a man’s galanas be three score and three kine, his saraad is three kine and three score pence, the one being determined by the other. Similar instances of prices for minor injuries, dependent on the amount of the injured person’s wergild are to be found in the old English laws. Now, if a man be slain, saraad is done him, and must be paid for. But saraad and galanas spring from different notions. The galanas is payable (as in the English wer) for very much less than murder. It is payable seemingly for every voluntary homicide; it is payable even in cases where a modern coroner’s jury would be inclined to refer death to misadventure, or to the Act of God. Saraad, on the other hand, is payable only for injury wilfully inflicted. The difference is brought out thus: If an idiot slay a man, the idiot’s kindred must pay galanas, but they need not pay saraad3 , and such also is the case where the slayer is an infant1 . To occasion saraad there must be bad will; but nothing of the sort is necessary to give rise to galanas. But ordinarily, where there is homicide, both payments must be made. Now saraad is paid both by and to a narrower class of relations than that which pays and receives galanas. One-third is paid to the slain man’s widow if he leaves one and the rest is divided among his near relations. Authorities differ as to how near the relations must be who claim the saraad. One names only father, mother, brothers and sisters2 (whom we may call the household); another names brothers, first cousins and second cousins3 (whom, for reasons which cannot be here given, we may call the inheriting family), while others, perhaps describing the practice of a later date, after deducting the widow’s third mix the rest of the saraad with the galanas4 . So again the saraad is paid by a narrower circle of relations than those who pay galanas. Generally, indeed, the books speak as if the offender pays the whole saraad, but it seems that at least in case of his insolvency his kinsmen to the distance of second cousins are liable5 .
Now here again is a curious likeness to old English law. The payment of the bulk of the wergild was preceded in England by the payment of a sum to the nearest relatives of the slain. This was the heals-fang; in the Latin versions “apprehensio colli,” the taking of the neck. “Heals-fang belongs to the children, brothers, and paternal uncles; that money belongs to no kinsman, except to those within the joint (binnan cneowe)1 .” Our older commentators supposed that heals-fang had something to do with the pillory. But Dr Schmid has ingeniously suggested that it is connected with a mode of representing the degrees of relationship by reference to the various limbs of the human body which was well known among the Germans2 . It is the portion taken by those who “stand in the neck,” those who are within the joint (binnan cneowe); more distant relations “elbow cousins,” “nail cousins,” and the like have no share. However, there are many differences between the heals-fang and the saraad, and we by no means intend to suggest that the resemblance between Welsh and English law is due to any survival of British customs in England, or to any influence of English upon Welsh law.
The saraad being paid, it remains to pay the galanas, which is of considerably greater amount and importance. Some light on its distribution is thrown by the strange number which the Welsh took as the unit of galanas. When these laws were written, the use of money, at least as a means of reckoning, had become common; but the galanas, an old traditional payment, is always expressed in terms of cattle. The unit of galanas, if we may so speak, the worth of a mere free man, is “three score and three kine,” more noble persons being valued at “six score and six,” or “nine score and nine.” Now the number 63 is not only the product of two very sacred numbers, 7 and 9, but it is also the sum of the geometrical series 1+2+4 to six places. Six persons or classes of persons can pay 63 cows, the first person or class paying one cow, the second twice as much, the third twice as much again, and so forth. Apparently it was this property of the number which gave it a place in the galanas system.
So far as we can see the burden of paying galanas was borne thus1 :—Divide the whole sum by three; one of the three parts falls on the slayer and his nearest relations, whom we will call his household. Of this the slayer himself pays one-third, his father and mother one-third, his brothers and sisters one-third, the father paying twice as much as the mother, and a brother twice as much as a sister. The remaining twothirds of the whole sum are again divided by three, two-thirds falling on the paternal, one-third on the maternal kindred. Of each kindred, six classes of relations pay, the first class paying twice as much as the second, and so on. It will be seen that if the total sum be sixty-three, the class which pays least must provide the third of a cow; while if the full galanas be “nine score and nine,” the class which pays least is liable for just one cow.
The mode of computing the degrees of relationship seems to be “parentelic,” that is to say, my father and all his issue constitute a class or parentela, but these, since they take the household’s third, are not one of the six. The first of the six consists of my grandfather and his issue, other than my father and his issue; the second consists of my great-grandfather and his issue, other than my grandfather and his issue. Thus a sixth cousin is in the last class which pays or receives galanas. A mode of reckoning somewhat similar to this was apparently prevalent in England also1 , and indeed is still involved in our law of inheritance, which exhausts my father’s issue before it passes to the next parentela.2 .
The right to receive galanas is governed by much the same rules. There are, however, differences. In the first place, the lord at the time of which these laws speak takes one-third of the whole for his trouble in exacting payment. Then, again, the slain man of course receives nothing, and, consequently, the house-hold’s share is somewhat differently distributed. But the most curious point is that a woman pays but does not receive galanas. The notion seems to be that she pays as representing her infant, or yet unborn children; for a woman who is past child-bearing, or will swear that she will never have children, is exempt, and if she have children of full age she is absolved by their payment3 . In cases where she pays she is only liable for one-half of a man’s share1 .
Apparently each class of relatives is liable to pay or entitled to receive the whole sum allotted to it, however few or many be the members of the class. Beyond the relatives bound to pay galanas stand yet remoter kinsmen who, if the sum cannot be otherwise raised, are bound to contribute a “spear penny,” and can only escape by swearing that they are of no kin to the slayer2 . But all these rules are probably only rules apportioning the burden as between various members of the kindred. If the whole sum be not paid then there is war between the kindreds, even though certain members of the offending clan have been ready with their contribution—such at least must have been the old rule, though, doubtless, it was mitigated in course of time.
We have already noticed the resemblance to English law in the distribution of the burden and benefit of the composition between paternal and maternal kin in the proportion of two to one. A division of the wer into three parts, one of which is paid by the household, one by the father’s and one by the mother’s kin, is found in the Lex Salica3 . There is, however, little to be gathered from the so-called Leges Barbarorum concerning the mode of distributing the wer, and not much more to be gathered from the Anglo-Saxon authorities. Owing to the power in one case of the Frank Empire, in the other of the West Saxon house, the old wer-gild system rapidly gave way before a system of punishment, and it is to the extreme north of Europe that we must look for any body of rules so complicated as the Welsh. The Scandinavian lawmen seem to have delighted as did the Welsh in elaborating the scheme, and anyone who will turn to Wilda’s Strafrecht der Germanen will find a parallel for nearly every Welsh rule in some authority Icelandic, Norwegian, Swedish or Danish1 For instance, in the East Gothlanders’ law, as in the English, as in the Welsh, the paternal kindred pay twice as much as the maternal, while (and this is very remarkable) the West Gothlanders’ law has the rule that six classes of relations pay, each paying twice as much as the one which is one degree more distant2 .
It is plain that since every manslaughter involved four kindreds in the feud, some nice questions might arise from the mutual interference of family obligations. A man might be called on to support his mother’s kin in a feud against his father’s kin. Such a case is actually provided for, and in the strangest fashion. If a man slay another of his own kindred he has to pay to the kindred the galanas of the slain, and in this case he alone is liable, for the kindred cannot pay to itself3 . He also forfeits his patrimony, and doubtless the law affords him but little protection against the justice more or less irregular of a domestic forum; but law fully he may not be slain “since the living kin is not killed for the sake of the dead kin1 .” Now if a man in avenging the death of a maternal relation kill one of his own kindred and thereby forfeit his patrimony, he is to be allowed an inheritance from his maternal grandfather2 . Perhaps there is no more striking example of the queer mixture of barbarism and logic which characterises these Welsh laws. One of the few exceptional cases in which a woman can transmit inheritance to her son is where that son is a murderer.
Even long after the English had finally mastered Wales, and when there could no longer be any talk of the blood feud as a legal mode of redress, the payment and receipt of galanas continued. In the same way in England, long after Edmund’s legislation and long after the Norman conquest, we hear of men paying and receiving the wer-gild. Among the Welsh authorities there is a book of precedents for pleaders, seemingly of as late date as the reign of Edward the Fourth. This contains “a plaint of galanas.” “This is the plaint of John, son of Madog, &c., on account of there being two parts on behalf of the father, and the third on behalf of the mother of John, son of David, to whom came Maredudd, son of Phylip, and caused death to that said John.” It then states with good and sufficient pleader’s verbiage how Maredudd dealt with the said John, making “an unjust and public attack through wrath and anger, and animosity, and surreption, and disrespect, to the lord, and to the dominion, and to the kindred.” It demands the payment of three marks, the worth of a free privileged uchelwr (gentleman). It is addressed to “the governors,” for “the law has not apportioned to the lord a share in the worth of anyone, but by causing the inquiring party [the plaintiff] to obtain the whole1 .”
One more testimony to the endurance of the blood feud shall be given, and this from an unimpeachable source, namely, the English Statute Book. First we must notice that if a man be charged with slaying another and wish to deny the accusation, he can do so. The Welsh law, like other old systems, recognizes compurgation as the usual mode of trial, or rather of defence, in criminal cases. The number of compurgators required is very large, far larger than any of which we hear in England or on the Continent. In the case of homicide, the number of men who help the accused in “making his law” is no less than three hundred, and they must be men of his kindred. “The oaths of three hundred men of a kindred are required to deny murder, blood, and wound, and the killing of a person,” and therefore, the law adds, the same number of oaths is required when galanas is paid and peace thereupon sworn. Now a Statute of the year 1413 (I Henry V., c. 5), refers to the then late rebellion in Wales and complains that the Welshmen are still taking revenge for the deaths of their kinsmen against the king’s faithful lieges, and some of such lieges they keep in prison until they have paid ransom, or until they have purged themselves of the death of the said rebels so slain as aforesaid, “par un assach1 selonc la custume de Galles, cest a dire par le serement de ccc hommes.” The fact is that the Welshmen had been acting according to their notions of law and requiring three hundred compurgators. This is not the only instance in which our Statute Book bears out the testimony of the Welsh laws, but here, at least for a time, we must take leave of the Kindred and the Blood Feud.
THE CRIMINAL LIABILITY OF THE HUNDRED1 .
The practice of making a district answerable for crimes committed by its inhabitants, or of making a group of men answerable for crimes committed by a member of the group was at one time thought to be of vast antiquity. The institution which the Norman lawyers called frank-pledge, and which has lately, perhaps for the last time, found mention in our statute book, was regarded as much older than the Norman Conquest, and indeed as one of those institutions which might safely be ascribed to King Alfred or to primitive man according to the taste of the ascriber. Recent investigations however have thrown doubt, or more than doubt, on its claims to so long a pedigree. Professor Stubbs speaks of it thus2 :—
“This institution, of which there is no definite trace before the Norman Conquest, is based on a principle akin to that of the law which directs every landless man to have a lord who shall answer for his appearance in the courts of law. That measure, which was enacted by Athelstan3 , was enlarged by a law of Edgar4 , who required that every man should have a surety who should be bound to produce him in case of litigation, and answer for him if he were not forth-coming. A law of Canute1 re-enacts this direction, in close juxta-position with another police order; namely, that every man shall be in a hundred and in a tithing; where the reference is probably to the obligation of the hundred and the tithing to pursue and do justice on the thief. The laws of Edward the Confessor, a compilation of supposed Anglo-Saxon customs issued in the twelfth century, contain a clause on which the later practice of frank-pledge is founded, but which seems to originate in the confusion of these two clauses of the law of Canute.”
Having given the substance of this well-known clause, well-known because it is the foundation of all that was written touching frank-pledge from Bracton’s day onwards, Professor Stubbs thus sums up the evidence:—“There is no trace of any similar institution on the Continent, or even in England, earlier than the middle of the twelfth century, although, as has been said, it would not be strange to the legislation of the Conqueror.” Not strange to the legislation of the Conqueror because not unlike the law ascribed to him fining the hundred in which a Frenchman was found murdered.
It would be rash to dispute, nor have I any intention of disputing the sentence thus pronounced, a sentence which bears the authority not only of the great historian from whose book it has been cited, but the authority of almost all those who in these days have been at pains to search out the origin of the curious institution in question. But there is evidence, and that of a very remarkable kind, in favour of the supposition that even before the Conquest the practice of fining a district for the offences of its inhabitants obtained at least in one part of England, and so far as I am aware that evidence has never yet received the notice that it deserves. It does not explain the frank-pledge in its later shape, the shape which it bears in Bracton’s treatise, but unless it be the outcome of some mistake, it does show that the common responsibility of a group of men for the crimes committed by one of their number was an idea familiar in England before William of Normandy landed upon our shore.
In the first place we must refer to Doomsday Book. As is well known there are scattered about in this great rent roll some brief notices of English criminal law. We are told what are the forisfacturœ which the king enjoys in this and that county, in other words, what according to local custom are the pleas of the crown, criminal justice being from the royal point of view a source of income. We know from Canute’s code1 that the number of these pleas which were considered as inalienable rights of the crown was very limited; but still there were certain crimes, which (save where some more than ordinary franchise had been granted) brought profit to the king himself. Among these was breach of the king’s special peace or protection (grith or mund), not a mere breach of the general peace (frith) which existed at all times and in all places, but a breach of the peculiar peace which surrounded the king’s person and dwelling, or had been granted by his letters of safe-conduct, or in some other manner specially proclaimed. Now the brief notices in Doomsday of these placita coronœ are for the more part so thoroughly in harmony with all that we know of the native English law, that they seem trustworthy evidence of that law even when other authority fails us. But concerning breach of the king’s special peace they tell us what is very remarkable, and it may be well to repeat their substance at some length.
— If any one kills a man who has the king’s peace, he forfeits to the king his body and all his substance.
— If any one breaks the peace given by the king’s hand or seal, by slaying the man to whom the peace is given, his life and members are at the king’s mercy.
—In this county if any one knowingly breaks the peace which the king gives with his hand, he is deemed outlaw; but the peace of the king when given by the sheriff, if any one breaks this, he pays 100 shillings.
—The king has in his demesne three forfeitures, breach of the peace, hamsocn (house-breaking), and forsteal (ambush); whoever commits one of these crimes pays 100 shillings to the king, whosesoever man he may be.
—Peace given by the king’s hand or writ, or by his deputy (legatum), if this be broken, the king has 100 shillings, but if the king’s peace be at his command given by the earl, out of the 100 shillings the earl has the third penny. If the same peace be given by the king’s reeve or the bailiff of the earl, breach thereof is paid for with 40 shillings. . . . If a free man in breach of the king’s peace kills another within a house, his lands and goods go to the king, and he is outlaw.
These customs have been cited in order that the reader may contrast them with what he will meet when he quits Mercia and enters the Daneslaw. There seems at first sight some variance of local practice as to whether or not a breach of the king’s peace given by his hand is or is not a crime for which a money composition is accepted. Possibly the passages may be reconciled by supposing that the 100 shillings fine is payable only when the breach of the peace is not aggravated by homicide, but this is not to our point, which is that nothing whatever is said about any fine imposed on any save the criminal. But let us enter the Daneslaw.
Nottinghamshire and Derbyshire2 .
—Peace given by the king’s hand or seal, if this be broken, it is paid for by (per) 18 hundreds. Each hundred £8. Of this the king has two parts, the earl the third, i.e., 12 hundreds pay to the king, and 6 to the earl.
—Peace given by the king’s hand or seal, if this be broken, it is paid for to the king only by (per) 12 hundreds. Each hundred £8. Peace given by the earl, if this be broken, it is paid for to the earl himself by (per) 6 hundreds, each £8.
—Peace given by the king’s hand or seal, if this be broken it is paid for by 18 hundreds. Each hundred pays £8; 12 hundreds pay to the king, and 6 to the earl.
Can there be any doubt about the meaning of these passages? “Unumquodque hundredum solvit viii. libras.” The writer must have meant that a fine was laid upon certain districts, called hundreds, that each hundred paid £8, that thus the heavy fine of £144 or £96 was collected,—a very different matter from the fine of 100 shillings which elsewhere paid for a breach of the king’s hand-given peace. Was all this a blunder of Norman scribes? If so it was a wild, stupendous, blunder.
But this is by no means all the evidence concerning these large fines levied in the Daneslaw and only in the Daneslaw. Among the various sets of laws bearing the names of the Confessor and the Conqueror there is a brief code of which we have both a French and a Latin version3 . The origin of both versions is very obscure, and the French version in its completeness is known to us only in the work of the forger who called himself Ingulf. Consequently it is a document under suspicion. It seems to be a work of private enterprise patched together from the laws of Canute and perhaps from some old English documents which have not come down to us. That the Latin version is a translation made from the French, seems to me, after a minute examination of the two texts, indubitable, while I believe it to be the opinion of philologists that the French version, though undoubtedly it has suffered at the hands of copyists, can in substance hardly be of later date than the twelfth century1 . Be that as it may, we are there2 told that if in the Mercian law any one breaks the king’s peace, the fine is 100 shillings, but in the Daneslaw the fine is £144. We are not told who pays this fine, we are only told its amount. That amount is simply enormous if the fine be set on the individual peace breaker, and wholly out of proportion to the general criminal tariff set forth in this very document. It would be easy to change pounds into shillings, but how can we do this with Doomsday before our eyes? The agreement with the great survey is exact, for £144 is just what will be paid if 18 hundreds pay £8 apiece.
Turn we next to the code bearing the Confessor’s name, which professedly states the report of those jurors from whom William demanded a summary of the English laws3 . This is the work which Professor Stubbs in the passage above cited describes as “a compilation of supposed Anglo-Saxon customs issued in the twelfth century,” and the issue of which there is some reason for attributing to Glanvill. It is, at least in its present form, a queer untrustworthy patchwork, but good evidence of what the twelfth century thought about the eleventh. Now this contains much to our purpose. In the first place the writer enumerates the various solemn peaces1 . The peace of the king is manifold. There is the peace given by his hand, the peace of his coronation days, the peace of the great church feasts, the peace of the king’s highways. Then as to the punishment of him who breaks the king’s peace. “Qui scienter fregerit eam, x. et viii. hundreda in Danelaga, et corpus suum in misericordia regis.” This enigmatical sentence would not of itself give us much information. But the writer after an interval returns to this matter2 , again enumerates the great peaces and says that they all have one and the same sanction. “Verbi gratia, in Danelaga per xvii. hundreda, qui numerus complet septies xx. libras et iiii.; forisfacturam enim hundredi Dani et Norwicenses (al. Norguenses)3 vocabant viii. libras.” His meaning is becoming clear. In the Daneslaw the fine of a hundred is £8, and this multiplied by 18, since in some way 18 hundreds are involved, gives £144. He then explains how out of each £8 the king has £5, the earl of the county £2 10s., the tithing-man (decanus) the remainder.
The mention of the tithing-man (decanus), who in one version is raised to a deanery1 , sets the writer off on the subject of frank-pledge. But again he returns to his hundreds2 . Yorkshire3 , Lincolnshire, Notting-hamshire, Leicestershire, Northamptonshire and to the Watling Street, and eight miles beyond the Watling Street, are, he says, “sub lege Anglorum,” but doubtless he means “sub lege Danorum,” and what others call a hundred these counties call a wapentake4 . Then follows an etymological excursus, and then5 “Erat eciam lex Danorum, Northfolc, Suthfolc, Cantebrugescire, que habebat in emendationem forisfacturæ ubi supradicti comitatus habebant xviii. hundreda, isti x. et dimidium. Et hoc affinitate Saxonum, quia tunc temporis major emendacio forisfacturæ Saxonum erat quater xx. lib. et iiii.” This seems to mean that while in York, Lincoln, etc., 18 hundreds at £8 make up £144, in Norfolk, Suffolk, and Cambridge, 10 1/2 hundreds make up £84. This difference between the two parts of the Daneslaw is in some way due to the neighbourhood of the three last named counties to the “Saxones” among whom the greater forisfactura is £84.
Before going further it will be well to notice that the Leges Henrici Primi, another twelfth century compilation, though they over and over again make mention of breach of the king’s special peace and its punishment, have nothing whatever to say about those enormously heavy fines. The crime is either one for which no pecuniary composition will be accepted, or is paid for by a fine of 100 shillings. This, taken along with our other evidence, may dispose us to believe that the practice of fining the district did not obtain throughout England, and in this context it is worthy of remark that the writer of the treatise which has gotten the name Leges Henrici ascribed some kind of super-eminence to the laws of Wessex1 . It will have been observed that all our evidence concerning these large fines comes only from the Danized part of England. The exception to this, if exception it be, is the vague and obscure reference in the Leges Edwardi to the “Saxones” who lived near Norfolk and Suffolk.
Now from what has been already said we seem entitled to draw this inference, namely, that the makers of the Doomsday survey believed that it then was, and that the lawyers of the next century believed that it then was, or at least had been, the law of some part of England, that when the king’s hand-given peace was broken, a fine should be imposed upon a large district, consisting of 18, 12, or perhaps 10 1/2 hundreds, each hundred paying £8. What was the origin of this law? That it was enacted by the Conqueror at some time between the conquest and the survey seems incredible. That surely was not the time when a difference between Mercia and the Daneslaw arose, when the custom of Cambridge became other than the custom of Nottingham. Two suppositions are open to us, either that these rules were older than the Conquest, or that they never existed save in the minds of Norman lawyers who mistook a payment of hundreds of coins for a payment by territorial districts called hundreds.
There is, so far as I know, but one passage in any of the old English laws directly bearing on the subject. It is necessary therefore to consider “the laws which King Ethelred and his Witan have decreed at Wantage, as frith-bot1 .” It has generally been considered that despite the fact that the ordinance in question was seemingly made at Wantage in Berkshire, it was nevertheless intended in some special manner for the Danized part of England. In favour of this conclusion are the mention of “the five burghs” (which can hardly be other than the five Danish towns, Derby, Nottingham, Leicester, Stamford, and Lincoln), and the computation of all sums of money Danish fashion in half-marks and ores, instead of English fashion in shillings. Now taking Thorpe’s translation, what we are told is this:—The king’s grith (his special peace) is to stand as it formerly stood. The grith which he gives with his own hand is to be bot-less, that is to say, a breach thereof is a crime not to be atoned for by any money payment. For the grith which the ealdorman and the king’s reeve give in the assembly of the five burghs, bot may be made with twelve hundred (bete man thæt mid xii. hund.). For the grith which is given in a burgh assembly, bot may be made with six hundred. For that which is given in a wapentake, bot may be made with a hundred. For that which is given in an alehouse, bot may be made, for a dead man with 6 half-marks, for a live man with 12 ores.
Now doubtless the natural interpretation, and as I suppose the only interpretation that the Anglo-Saxon text will bear, is that the twelve hundred, six hundred, and hundred here spoken of are coins. It is a little strange that the quality of these coins should not be mentioned, for such an omission is, to say the least, very rare in the Anglo-Saxon laws, but in this very document there is a passage1 in which a person is directed to deposit “a hundred,” the kind of the coins not being stated, and I believe that reckoning by hundreds without naming coins was a common Scandinavian, though not an English practice. Still no one can consider this Wantage ordinance side by side with the customs reported in Doomsday and the Leges Edwardi without believing that there is some connection between them. They are almost exactly in pari materia. It is true that according to Ethelred’s law there seems to be no fine when the peace broken is that given by the king’s own hand, while it is just in this case that according to the later authorities the 18 hundreds are fined. On the other hand, it is far from impossible that between the date of the Wantage assembly and the Norman Conquest the severity of the law had been mitigated, and this bot-less crime had become one for which in some cases a composition might be taken1 . Besides, if we are right in our construction of the customs in Doomsday Book and in the twelfth century compilations, the heavy fines there spoken of have nothing to do with the fate of the criminal. They are not paid by him but by his neighbours. It may be, therefore, that under Ethelred’s law (which expressly declares itself to be merely declaratory), as there was a hundred fine, a six hundred fine, a twelve hundred fine, so also there was an eighteen hundred fine.
While therefore admitting that the hundreds mentioned in the Wantage ordinance are hundreds of coins, one is still tempted to believe that more is implied in the law than is expressed. The fine for breaking the peace given in a wapentake is a hundred, and what is the wapentake but a hundred or the assembly of a hundred? May it not be that in naming the amount of the fine, we also name the district upon which it is imposed? This ordinance relates, apparently, to the king’s own peace proclaimed in and comprising a local assembly. When the ealdorman and king’s reeve have proclaimed the king’s peace in the assembly of the five burghs, an assembly representing a large district, if that peace be broken the whole district is fined. So with the wapentake, the assembly of a single hundred, if the king’s peace proclaimed therein be broken, the whole hundred is fined; so even with the alehouse, probably the meeting places of township or tithing, for which in later days the vestry was substituted. It may, indeed, be difficult to imagine on what occasions the king’s peace would be proclaimed in so humble an assembly, still there may have been occasions when the king’s reeve had to transact business with the township.
Some such explanation as this is made the more probable when we attempt to determine what were the coins of which the “hundred” or several “hundreds’ consisted. A breach of the peace proclaimed in the alehouse, or assembly of the tithing, is paid for by 12 ores. If, however, a man has been slain, the fine is doubled, and becomes 6 half-marks. Now if the fine for a wapentake’s peace be a hundred ores this will fall in with the theory that the wapentake consists of ten tithings, for it is by no means improbable that the hundred here mentioned is the so-called “long hundred” of 1201 . At any rate, there is no other coin so probable as the ore. The wapentake’s peace is thus reckoned at “one hundred” ores, the peace of a burgh assembly at “six hundred” ores, the peace of the assembly of the five burghs at “twelve hundred” ores. For peace given by the king’s own hand no composition is provided; but, as already said, the supposition that for the breach of this also a fine is required from the district is not excluded by the declaration that the crime is (for the criminal) bot-less. Might we suppose that this fine was 18 “hundreds,” that is 18×120 ores, we should neatly arrive at our sum of £144, for though the better opinion seems to be that the Danish ore was usually deemed equal to but fifteen pence, yet there is direct authority in Ethelred’s laws for reckoning it at sixteen pence1 . This result is arrived at by a perilous series of suppositions, nor is any stress laid upon the exact correspondence of figures. It is, however, necessary to notice that the largest fine mentioned in the Wantage ordinance is, if the hundreds be hundreds of ores (and that they must be so seems clear from the relation of the fine in the case of the wapentake to the fine in the case of the alehouse), a fine not merely great but enormous. At the very least twelve hundred ores are £75 and they may be £96. I believe that no other law contained in the Anglo-Saxon collection or in the Norman compilations exacts a fine to the king amounting to one-tenth part of this sum. The heaviest of such fines or mulcts is I believe £5, and the difference between £5, and £75 is (the word must be repeated) enormous. What has just been said should be qualified by the statement that the murder fine was 46 marks, but the murder fine was a fine laid on a district not on an individual, and even this did not amount to one-half of £75. Now considering the comparatively small fines which were exacted even in the very worst cases, the conclusion seems inevitable that if the twelve hundred of Ethelred’s law mean twelve hundred ores, the fine is imposed not on the criminal but on the district, and that district a large one. If they be not ores what are they? Twelve ores (sometimes 24) are demanded when the peace given in an alehouse is broken, and from this we clearly have an ascending scale, one hundred, six hundred, twelve hundred.
Probably therefore the Doomsday surveyors were not in the wrong when they said that in the Danized counties a breach of the king’s peace was paid for by a number of hundreds, each paying £8. Mistakes about numbers they may have made, but there was some substantial truth at the bottom of their statements. It may seem very strange to us that so large a territory as 12 or 18 hundreds should be fined for a crime, but the Leges Henrici speak of the impleading of a whole county, or of several hundreds1 . There is, too, a series of entries in the Pipe Roll of the 31st of Henry I2 which seems to tell of a very large fine “propace fracta” imposed on a part of Cambridgeshire. The fine is paid in part by the great landowners, in part by the sheriff on behalf of the men of this, that, and the other township, and though we cannot say with certainty that all these entries were occasioned by one and the same crime, still they follow each other in immediate succession.
The importance of the evidence to which attention has been asked is not small, and I hope that it may come into the hands of explorers more competent than myself. Its importance is not small, because even if this fine for breach of the king’s peace stood quite by itself it would be a very noticeable fact in the history of our criminal law. But it does not stand by itself, for if once established, it might be brought into connection with those two most remarkable institutions, the frank-pledge and the murder fine. As regards the former, it certainly throws no light on the much debated relation of the territorial tithing to the personal frank-pledge, or group of ten or a dozen sureties, but it may suggest that the tithing which was fined if the peace proclaimed in its alehouse was broken, may have been a responsible unit in the police system for other purposes also. As to the murder fine it may suggest that neither of the two rival stories about its origin contains the whole truth, neither the story now generally accepted that William introduced it as a protection for his French followers, nor the story which Blackstone took from Bracton and Bracton from the Leges Edwardi that the English Witan introduced it at Canute’s request as a protection for his Danes. If in the Daneslaw it was the practice to fine a hundred or several hundreds for breach of the king’s peace, it may also have been the practice to fine the hundred within whose bounds was found the body of a murdered foreigner, a foreigner to whom the king was “a protector and a kinsman1 .” Lastly, it may suggest that the twelfth century writers who spoke of England as divided between three laws, Danish, Mercian, WestSaxon, had more reason for insisting on this theory than they get credit for with most of their readers, and that there really were very great and very important diversities of local custom of which they tell us nothing expressly.
MR HERBERT SPENCER’S THEORY OF SOCIETY1 .
Sidgwick, Method of Ethics, III. v.
Hum. Under., IV. iii. 18.
Gov., II. iv.
Gov., II. 52, et seq.
Hum. Und., I. iii. 9. Whewell, Hist. Mor. Phil., Lect. v.
Soc. Stat., ch. xx.
Bentham’s Works, vol. III. pp. 542, 543.
Vol. IX. p. 3, et seq.
J. S. Mill, Represent. Gov. (ed. 3), p. 15.
Essays, I. vi.
Op. cit. III., pp. xi.–xii.
Principles of Internat. Law (Works, vol. II., p. 536 et seq.).
Principles of Internat. Law (Works, vol. I., p. 5).
Essay on Westminster Reviewer’s Defence.
Mackintosh, Hist. Eth. Phil., Note W.
J. S. Mill, Autob., p. 158.
Logic, VI. x.
Essay on Mitford’s History.
De Republicâ Anglorum, p. 17.
Church and State.
Table Talk, 19 Sept., 1830.
Hobbes, Op. cit., VI. 365.
Civ. Gov., II. 25–51.
Hist. Lit., IV. iv.
Institutes, I. iii. 10.
Soc. Cont., II. xi.
Mor. Phil., III. iv.
Inquiry . . . Morals, III. i.
Civ. Gov., I. 106.
Civ. Gov., II. 1.
Civ. Gov., III. 2.
Works, I. 304.
Works, VI. xi.
Quoted by Ricardo (Pol. Ec., ch. v.).
Works, I., Preface, 70. VIII. 440.
E.g. Cobbett, Pol. Regist., 10 April, 1823.
Pol. Justice, VIII. iii.
The Friend, Essay IV.
Soc. Stat., X. and XI.
Church and State, p. 49.
Essay on Coleridge.
Westminster Review, 1879.
The Seisin of the Freehold, p. I.
The Seisin of the Freehold, p. 202.
Reports from the Select Committee on Land Titles and Transfer, 10th July, 1878, and 24th June, 1879.
Seisin, p. 97, and Evidence before the Committee, First Report, p. 27.
Primogeniture as it exists in England, by Eyre Lloyd, B.A., London, 1877.
Das Anglonormannische Erbfolgesystem, Leipzig, 1869.
Principles of the Law of Real Property, by Joshua Williams, Q.C., twelfth edition, London, 1877.
Montesquieu, L’Esprit des Lois, liv. XVIII, ch. xxii.
“Es ist bekannt, dass in England unter den gemeinen Volk der Gebrauch noch heut zu tag gilt, die Frau auf dem Markt zu bringen und zu verkaufen.”—Grimm, Deutsche Rechtsalterthümer, p. 451.
Mr Lowe, we observe, ascribes this proposal to Mr Senior. (Second Report, Q. 2938.)
F. Pollock, Principles of Contract, 1st ed., pp. 282, 283.
Settlements, p. 159.
Real Property, p. 17.
Real Property, p. 468.
“Commentary on Mr Humphrey’s Real Property Code,” Westminster Review, No. XII. Reprinted in Bentham’s Works, Vol. v., p. 387. See p. 405, comment on the word “heirs.”
Law Magazine and Review, August, 1881.
Ancient Laws and Institutes of Wales, 1841. I use the octavo edition, which I believe agrees in all points with the folio.
Haddan and Stubbs, Councils and Ecclesiastical Documents, vol. I., p. 211.
Curiously enough one of the few passages in the Anglo-Saxon authorities which mentions “law-men” is a provision for the administration of justice between Englishmen and Welshmen, the “ordinance respecting the Dunsetas.”
I cite the three Codes as Ven., Dim., and Gwent., respectively by Book, Chapter, and Section, and the remaining tracts as Bk. IV., V., etc., here again giving Chapter and Section.
Bk. XIII. 2, § 66, 67. This thirteenth book seems to me the least trustworthy of all the authorities, and such I understand is the opinion of better judges.
Bk. V. 2, § 123, 126, 144.
Ine 23, 24, 32, 33, 46. (I cite the Anglo-Saxon Laws from the second edition of Schmid’s Gesetze.)
Æthelstan, VI. 6. Æthelred, II. 6.
It still, I imagine, gives its name to the Hundred of Dacorum in the County of Hertford. This means the Danes’ hundred, for our ancestors thought it classical to call the Danes, Daci. This hundred perhaps got its name as being the only district south-west of the Watling Street, which was under the Danes’ law. That law we are told extended to the Watling Street and eight miles further. This would nearly include the hundred in question. (Leges Edwards Confessoris. 30 (27).)
Bk. V. 2, § 144.
Bk. XIII. 2, § 66, 67.
Bk. X. 2.
E.g., Ven. II. 6, § 28.
The Bishop and Chapter of St Asaph, stating their grievances against Llywelyn (a.d. 1276), say, “Mulieribus et si alii heredes deficiant, jus successionis hereditarie immo denegat. Set hoc consuetudo patrie est.” This admission seems conclusive. See also the Statute of Rhuddlan, and Ven. II. 15, § I.
Ven. II. 15, § 1–4. The same rules with slight variations occur in many other passages.
Legg. Hen. Primi 70, § 12, and Schmid, Anhang VI. § 7.
“A woman of bush and brake,” Gwent. II. 39, § 40.
Ven. II. 31, § 7, 8.
ibid., § 4.
Bk. V. I, § 7. Bk. V. 2, § 82.
Ven. II. 31. Dim. II. 8, § 30. Gwent. II. 39, § 40. Bk. X. 7, § 4. Bk. XIII. 2, § 120.
Gwent. II. 40, § 10.
Gwent. II. 5, § 11. Dim. II. 17, § 23.
Bk. XIII. 2, § 88.
The same word galnes or galnys occurs in the old Scotch Regiam Majestatem. (Acts of Parliament of Scotland, pp. 273, 276, 300.) Seemingly it means murder, slaughter.
Ven. III. I, § 27.
Ven. III. I, § 31.
Dim. II. 17, § 21, 27. Gwent. II. 5, § 9, 15.
Gwent. II. 39, § 14.
Ven. II. 19, § 1, 2.
Dim. II. 8, § 8.
Dim. II. 8, § 20.
Bk. XIII. 2, § 62.
ibid., § 165.
Bk. XIII. 2, § 163.
ibid., § 88.
ibid., § 131.
ibid., § 133.
ibid., § 88, 162.
Gwent. II. 39, § 38, 55. Dim. II. 8, § 8.
As to what constituted Morth, see Schmid, Gesetze, Glossar.
“No one is to be killed on account of another but a murderer . . . For if the kindred disown the murderer, there is no claim upon them.” Ven. III. I, note, § 19. Compare Laws of Edmund.
Printed by Wotton in an Appendix to Leges Wallicæ.
The passage is curious:—“Ithel ab Philippi juratus dicit idem in omnibus cum Kenewrek prejurato, adjiciens quod Princeps potest pro voluntate sua leges corrigere et in melius reformare, exemplificando de David ab Lewel. avo Principis nunc, qui delevit per se et consilium suum le Glanas per totam Northwalliam. Videbatur sibi et consilio suo quod culpa suos debeat tenere auctores delinquentes, et non alios, qui nichil deliquerint, quod aliter fieri consuebat colligendo Glanas, etc.” (Wotton, p. 524). Apparently Edward’s commissioners did not understand this, for some one has written in the margin of the Roll, “Inquirendum quid sit Lex Glanas. Examinandum de emend. Legis.” We, however, have no difficulty in catching the drift of the remark. According to Ithel, David freed the kin from the feud because he thought it unjust that the innocent should suffer for the guilty, “quod fieri consuebat.”
Ven. III. I, § 16.
Legg. Henr. Prim. 75, § 8, 9, 10. Supported by Alfred, 27.
Bk. X. 7, § 27.
Saraad seemingly means disgrace. I borrow the phrase “honour price” from the translation of the Irish laws.
Bk. IV. I, § 2, 4.
Bk. VI. I, § 17.
Dim. II. I, § 14, 16. (In the last of these passages saraad in the English version seems a mistake for galanas.)
Ven. III. I, § 19.
ibid., note, § 22.
Gwent. II. 8, § 10. Ven. III. I, § 19.
Schmid, Anhang VII. (In the Record edition this is printed at the end of the laws of Edward and Guthrum.)
Schmid, Glossar. Heals-fang. Grimm, Deutsche Rechts Alterthumer, pp. 468—470.
The passages most in point are, Ven. III. I, and the version in the notes to that chapter, Dim. II. I, Gwent. II. 8, Bk. IV. 3, Bk. X. 3. The account in the text is compiled from these, and is not exactly borne out by any one of them. The discrepancies, however, seem due rather to imperfections of statement than to any difference of principle.
Schmid, Glossar., Cneôw.
But there are many difficulties about the Welsh reckoning which I cannot pretend to have solved. Vent. II. I, § 12. Dim. II. I, § 17–29. Gwent. II. 8, § 1–7. Bk. IV. 3. It is, however, much more intelligible than the Irish.
Ven. III. I, § 21—23. Ven. II. I, § 64.
Ven. II. I, § 64. Dim. II. I, § 16.
Ven. III. I, § 13.
Lex Sal.—De composit. homicid. (Hessel’s and Kern’s ed., 388–396).
W. E. Wilda, Strafrecht der Germanen, p. 372 f. It seems to me that many, if not most of the writer’s conclusions concerning the early stages in the development of criminal law, though derived entirely from Teutonic sources, hold good also as to Welsh law. It is much to be regretted that of early Scotch law we have but the merest fragments, and at present it is hardly safe for any but an Irish scholar to speak of Irish law.
Wilda, p. 379.
Gwent. II. 37, § 2.
Gwent. II. 39, § 54.
Dim. II. 8, § 21. Gwent. II. 39, § I. Bk. IX. 30, § I.
Bk. XII. II.
Asach. An oath, a troth. Pughe’s Welsh Dictionary.
Law Magazine and Review, 1881–2.
Const. Hist., § 41.
Athelstan, II. 2.
Edgar, III. 6; IV. 3.
Canute, II. 20.
Canute, II. 12–15.
I. 56 b. It is much to be regretted that concerning a large and important part of England (Sussex, Surrey, Hants, etc.), no information is given us.
I. 154 b.
I. 262 b. See also Shropshire, I. 252.
I. 280 b.
I. 298 b.
I. 336 b.
Will. Conq. I.
Littré, in his Dictionary, on many occasions adduces it as eleventh century work. As to the originality of the French version, c. 45 seems to me conclusive, when it is compared with the code of Canute from which it is taken—Canute, II. 24. The Latin writer thinks that voest comes from voir (videre) and makes nonsense of the passage. It really means vouch and has more to do with vocare than videre. See too the absurd Latin rendering of c. 31.
Leges Edwardi Confessoris.
C. 27 (25).
Stubbs, Preface to Hoveden’s Chronicle (Rolls Series), vol. II., p. xlvii. The writer, who has theories of nationality, means men of Norway, not men of Norwich.
Decanus episcopi: the whole document seems full of the interpolations of would-be expositors.
C. 30 (27).
A better reading than Warwickshire.
I think that every one who has said anything of this passage has pointed out that “Anglorum” should be “Danorum,” and this is made still plainer by the MS. spoken of by Stubbs, Preface to Hoveden (loc. cit.), where the following clause runs “and what the English (Angli for alii) call a hundred, these counties call a wapen take.” In the Law Magazine and Review (No. CCXLI. p. 348), I have suggested that the eight miles beyond Watling Street was meant to include the hundred “Dacorum” in Hertfordshire.
C. 33 (30).
He more than once says that Wessex is “caput regni et regum” (70, § 1; 87, § 5), a phrase which is applied to London in one version of the Confessor’s Laws.
Under Ethelred and Canute a reaction seems to have set in against the severe penal laws of their predecessors: Ethelred, v. 3; VI. 10; Canute, II. 2.
“If, as is generally believed, the Anglo-Saxon hundred was the long one of six-score, the tithing ought to have contained twelve, and Fleta speaks of the frank-pledges as dozeins.”—(Stubbs, Const. Hist.,§ 41, note, p. 86.)
Schmid, Gesetze, Glossar. v. Geld-Rechnung.
Leg. Hen. Prim. 48, § 2 “Si totus comitatus, vel vii. hundreta super aliquibus implacitentur.”
Ethelred, VIII. 33; Canute, II. 40; Leg. Hen. Prim. 75, § 6,7.