Normans and land ownership
malcolm.ramsay at talk21.com
Sat Nov 27 22:43:52 GMT 2010
Thanks for the comments, Kestrel, but I think you've misunderstood the angle I'm
As you say, I presented a very selective reading of history, but that's because
I'm not interested in the historical situation in itself, I'm only interested in
the influence it had on the development of the law - because that's the only
interest the courts have in it. Fundamentally, what concerns the courts (and me)
is what the law is, or should be, today - the historical perspective is
important to them only to the extent that they are bound by precedents.
They're not bound by precedents because of any reverence for what happened in
the past, but for the essentially pragmatic reason that it saves them having to
argue the same points over and over again. Basically, if a particular kind of
case has been decided one way in the past, the court assumes that it was
properly argued at the time and that the same decision would be reached if it
were argued again. So if a similar case comes up, the litigant has three
options; 1) to show that the current case is different in some significant
detail; 2) to show that the original decision was in fact wrong; or 3) to show
that the original decision was based on circumstances which have now changed.
>From that perpective, I'd say the points you make tend to support my argument.
As far as the law is concerned, the Norman Conquest was a defining point, and
what happened before that is irrelevant. William declared that all the land in
England belonged to the Crown and everybody else would 'hold land of the Crown'.
And that's the position today (in England and Wales); technically we don't own
the land itself, all we can own is 'an estate in land' - a bundle of rights and
responsibilities - and nearly all land titles in existence today derive from the
titles he handed out then.
I can't be sure, but I'll guess that if William had been strong enough
politically he would have explicitly defined the tenant's power to devise land
(to say who the new owner should be) as a delegated responsibility, rather than
as a right .... but as you point out he wasn't. For a court reviewing this
particular point of law, that's one aspect that would have to be taken into
account: the fact that the original 'decision' was almost certainly taken for
essentially political reasons and was very likely not what the lawmaker would
have done, even at that time, if he had had a free hand (it was probably so far
out of the question that there wasn't even any conscious decision involved).
Another aspect that would be relevant, which you also mention, is the fact that
some kind of system was needed for settling the question, and the level of
societal development at the time favoured something simple (and familiar). And a
third aspect that would be relevant would be the fact that the role of the Crown
has developed significantly since then, in particular in its relationship with
the public - it is now seen as the servant of the public in a way it wasn't
I would say that those points would be enough to satisfy the courts that the
original 'decision' should not be treated as a reliable precedent, and that
should allow them to consider what is the right perspective in the circumstances
of today. I can't think of any inherent justification for seeing the power to
devise land as a right; in law the Crown owns all the land, and any devisement
places an obligation on the Crown to enforce the new owner's rights - so how can
ultimate responsibility rest anywhere except with the Crown?
I can think of one or two lines of reasoning which they could use to defend the
status quo if they were determined to resist change, but I doubt that the courts
regard the current system as sustainable in the long term - I think they might
welcome a simple way of escaping from a law which clearly produces huge
But you also misunderstood me in thinking that I regard the concept of
inheritance as being wrong - I don't. It almost certainly developed originally
precisely because it is the most natural system, and it will almost certainly
continue to be the dominant system for the same reason. The person who is best
placed to know who will make the best use of his land when he's gone is
undoubtedly the landholder himself; and mostly the person who would make best
use of it is someone who is already familiar with it, somebody who has grown up
knowing it - in other words his offspring.
But that's only true up to a certain limit; if the land in question is larger
than the landholder's offspring can use themselves, the advantages to society
can turn into disadvantages, because it allows a rentier society to develop.
Where's the public good in allowing absentee landlords to pass on land to others
who will take rent for owning it, but quite likely never even set foot on it?
The principle of inheritance is beneficial, but like most things it only works
well within limits; one of the advantages of changing things in the way I've
suggested is that it would allow debate - on where those limits should be - to
take place in the context of individual court cases, and it would make it easy
for reform to happen in small steps.
From: Kestrel Kestrel <neil_axe at hotmail.com>
To: malcolm.ramsay at talk21.com
Sent: Saturday, 27 November, 2010 14:54:17
Subject: RE: [Diggers350] Re: concepts of land ownership
I think your reading of history is fairly selective here.
At the time of the Norman conquest, England had already got a fair well
established and stable social order with towns, trade, developing national
administrations, education, innovations and legal processes. It was certainly
not in the "dark ages" or somehow a rabble of barbarians as the Romans
supposedly encountered when they invaded a millenium before.
About the only area where England seriously lagged compared to Normandy was in
military technology, but even putting that aside for the moment, I'm sure you
would not wish to imply in any way that a nation should be conquered just
because it is deemed to lag in it's social development and needed to be
"civilised", as was sometimes used as an excuse for imperialist expansion by
colonial powers in the 17th-19th centuries.
When William as king doled out land and positions of authority to those who had
done good service to him, this was nothing new to the Eglish, and neither was
the concept that ownership passed on from generation to generation unless the
owner of the land specifically did something to alter this - like sell or give
away the property or incur serious displeasure of his overlords. One way or
another, even before the Norman conquest, most folk in Britain were not free to
wander far away from their local village and thrall lord, just because they
didn't like the conditions or thought they could do better elsewhere.
William was indeed rewarding his leading knights for the men, equipment, money
and military prowess and expertise that they brought to bear at hastings and
elsewhere in the conquest of England. And yes, indeed, with that land came
responsiblitities - as you rightly say. The fundamental right to pass land on to
descendants, using family members was seen pretty fundamental all round. Life
was often short and death realtively sudden at the best of times what with
plagues, accidents, no health care nor sanitation and so on, but it was going to
be pretty impossible to get many knights to stake into potential future battles,
if they learned that the reward for dying valiantly while pressing the attack or
holding the line was going to be that their widow and offspring would
potentially lose everything.
Equally the king and the other top dogs soon saw that there really had to be a
system of succession that was fairly clear cut and easy to administer, otherwise
the system could soon break down into a series of squabbles at every level over
who was due to inherit what every time anyone with any land, titles or property
at all was unlucky enough to die...whether it was a powerful baron with a
castle, the right to collect rents from hundreds of peasants, hundreds of square
miles of various estates, a chest of fine cloth and golden baubles and a couple
of herds of deer, or a peasant with a smelly cottage, half a furrow, three
sheep, the right to gather acorns in woods, and some brass coins.
The responsibilities you mention were real. But it was a feudal system, and
remembering that is key. There was very little social responsibility as we would
see it today to those below you in the chain. The primary responsibility of the
landowner was to whoever was to those in a line above him in the chain and the
responsibility was mainly political and economic i.e. send money and information
up the chain, and keep your patch (your manor) in a way that means you can
continue to send money and information. You should also expect to provide men
and equipment, if required, to those higher up the chain, without necessarily
asking too many questions.
Over the centuries, things have obviously changed for all sorts of reasons. The
tenants in chief, as the nobles, the barons, the church and the crown have lost
a lot of their powers, titles and rights. But they never really had too much
social responsibility for the common people in the first place, and most of the
social responsibilities that they did take on were either pretty much forced on
them in order to to keep the peace (like the magna carta arguably) or were in
fact in the landowners interests in order to keep the flow or money and info
flowing up the chain.
So to conclude, it is not correct to say that the concept of land ownership
being passed by family succession is wrong, simply because that system came
about in a time when the right to do this was balanced by responsibilities.
To: Diggers350 at yahoogroups.com
From: malcolm.ramsay at talk21.com
Date: Wed, 24 Nov 2010 16:04:10 +0000
Subject: [Diggers350] Re: concepts of land ownership
James Armstrong said: "The king who made the law and defined legality - took the
land by illegal armed invasion."
I think there's an important point here which in fact offers an opportunity for
As I see it, William the Conqueror did indeed 'make the law' - in the sense that
he created laws which have lasted. The reason his system has persisted for so
many centuries is that (despite its flaws) it added something worthwhile to the
existing social structure; the system he established created a new dimension of
government which provided a stable foundation which allowed society to develop.
When he parcelled out land to his tenants-in-chief he wasn't simply rewarding
them, he was giving them dominion over the people on that land - and that
involved giving them not just rights but responsibilities as well.
That's where the opportunity lies: over the centuries nearly all those
responsibilities were taken over by other institutions (leaving the rewards with
the landowners). One stayed with the landholders, however, because it had always
been treated as a right rather than a responsibility: the power to 'devise' land
(to designate the new holder of land when the previous one died) is not really a
right, it is in fact a responsibility which the Crown delegates to the landowner
- therefore that power should be exercised in the interests of the Crown (which
in the modern world means 'in the public interest'), rather than being used to
indulge the landowner's family.
If the courts can be brought to recognise that fact, it would allow change to be
brought about on a case by case basis, with large bequests of land being open to
challenge as not being consistent with the landholders' duties as agents of the
Crown. It's taken me a long time to recognise it (and there are details that
need addressing, such as what should happen when a bequest is successfully
challenged) but I think this simple change of perspective has the potential to
change the whole system within a generation or so; and it's probably the only
way that reform can come about without significant upheaval.
Of course, the courts can only consider it in the context of a case and I
suspect most lawyers would be very reluctant to initiate an action like that.
But if anyone in this group knows a lawyer who might be willing to do so, I'm in
a position to provide a test case.
From: james armstrong <james36armstrong at hotmail.com>
To: diggers <diggers350 at yahoogroups.com>
Sent: Tuesday, 23 November, 2010 23:39:45
Subject: [Diggers350] RE: concepts of land ownership
Yes , it would be for the best in the best of all possible worlds if there was
a way of "promoting beneficial land management " in an ownership society,
but that is exactly what is impossible when 'ownership' is exclusive . The
recurring result of exclusive ownership is exploitation of non -owners.
Who on earth would advocate 'giving away land free?' That inplies 'giving
away'. After giving land away- you have resurrected the ownership system.
Selling Life time personal tenancies is compatible with common opwnership of the
You confuse ownership with usage.
It is not necessarily the use of the land that is the issue. More its current
The planning system would still designate land for housing and for farming and
for caravan sites etc.
But the market for land would be removed from its malign influence on the use
Reference to 'the original owners' is a hopeless dream. It also begs the
question. It implies that ownership to-day should be based on some hypothetical
ownership in the past - but how far back are you to go?- and advocates of 'no
ownership to-day' would logically and vigorously demonstrate the inequity of
ownership however far back you could demonstrate it.
Just one instance-
Duke William of Caen, and William Eu, and Henry de Ferrers and Bernard de
Neufmarche ..... carved out for themselves great estates
by the sword. Does that give good title? Occupation by conquest is both
illegal to-day and and condemned by the church then.
The questiion of legality you raise is also raised on that issue since The
Normans introduced new title to land- All the land of England was held of the
king - as a feu- in return for knights service. The king who made the law and
defined legality - took the land by illegal armed invasion.
Dont stop there in your essay into the past - Harold at Hastings was Danish . Go
furher back and you find in Bede cica 700 that 'the king gave wilfrid land at
Selsey together with the slaves on it to Wilfrid. SO land ownership then
implied the now illegal practice of slave ownership. This was not uinusual but
the norm. It was tehnorm for Anglo Saxons to enslave the native Britons - the
indigenous populatin So going back in history is not the way forward.
For a More up to date approach refer to the last clause in the title of the
1947 Town and Country Planning and COMPULSORY PURCHASE ACT.(where land can be c
p'd by the state at less than market value.) Legal is as legal does.
I suggest the desirability of de commodifying land is not essentially to change
the usage of the land but to end two endemic weaknesses of private exclusive
ownership as at present.
a) End Monopolising land ownership and using the monopoly against the public
eg to garner CAP benefits paid for by the public which thepublic don't qualify
for (£3.9billion a year at present.) another example is
plc housebuilders cornering land with Planning permission and then not building
thehoises required so that thescarcityu value drives uop the price of new
houses and also the value of teh landbanks of horded land.
b) buying and selling land as a commodity and speculating on it. The systemic
rise in price of farmland from around £2,000 and acre to
currently anything up to £8,000 yields a staggering bonus to land monopolists
(some 197,00 of them) At 70% of UK land as farmland and 60million acres in UK
you work out the benefit to the exclusive 'owners' and the harm to new
entrants into farming and to food prices..
Maybe I'm wrong and or misguided . Please correct me
gers350 at yahoogroups.com
From: liliapatterson at hotmail.com
Date: Tue, 23 Nov 2010 12:32:04 +0000
Subject: [Diggers350] concepts of land ownership and protecting the biodiversity
of the land
there seems to be some discussion about the difference between ownership and
responsibility of ownership and also freedom of distribution and also of
management practices towards different possessions that can be either owned or
Can I remind some people that these concepts are all different and mutually
exclusive and also just because someone might say that they want to own some
land and then give it away for free - does not necessarily mean that giving land
away for free is the best way for the biodiversity of the planet to be improved.
Personally I would state that promoting beneficial land management practices is
a million times more beneficial than the concept of promoting for land or other
resources to be given away for free.
I would also state that it would actually be grossly criminally negligent for
members of TLIO to continue to promote the confused concept that giving away
land and resources for free is a positive ideal. It most definitely is not.
If one would like to consider for example - that the land and mineral resources
of the Palestinian people of Gaza have just been taken for 'free' by the Israeli
government, through use of military intervention of the Israeli navy against
both Palestinian and international citizens, then this would be an 'example' of
a collective group of people taking 'land and its resources for free' and then
re-distributing them as they see fit, against the consent of the original
This is against international laws and the acts performed by the Israeli
military and navy constitute war crimes.
Therefore I would really suggest that if TLIO wants to continue in the future as
a 'credible' organisation, that some people consult 'lawyers' in relation to
'land rights of ownership and management policies' in relation to how to
effectively promote better ecological systems to help more healthy lifestyles
for people on this planet as a credible part of the environmental movement in
the future, otherwise their statements are questionable and therefore
ridiculous, in the wider international context of the debate about how the
'environment' and 'biodiversity of life on this planet' should effectively be
managed in the future in a way that is equitable and fair for all, including
landowners, whose rightful access to their own land is being exploited or
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