Normans and land ownership

Sat Nov 27 22:43:52 GMT 2010

Thanks for the comments, Kestrel, but I think you've misunderstood the angle I'm 
coming from.

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 
then.

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 
injustice.

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.

Malcolm

________________________________
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.

Kestrel ^!^

________________________________
 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 
major reform.

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.

Malcolm Ramsay

________________________________
 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 
land.     

You confuse ownership with usage.
It is not necessarily the use of the  land that is the issue.  More its current 
mis-use .
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 
of  land.
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 
interest 

 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 
James      

 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

Dear Everyone,

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 
shares. 

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 
landowners. 

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 
abused. 

Lilia 