Friday, October 23, 2009

Early English Land Law, Freedom and Property Rights: in 800 Words or Less

Well I am kidding about the 800 words, but in truth you could fill many bookshelves with authoritative works on these topics individually and in combination, and most of those books remain unread by me or were read decades ago. Making this an impressionistic piece that will sound a lot more definitive than it is. If you wan't to fix it simply do a mental pause and insert a 'probably', 'apparently', or 'this blogger believes' about every two sentences and you will possibly approach the appropriate balance.

When the Germans first appear in European historical sources in the first centuries B.C. it is not clear that they had any settled idea of property rights in land. Certainly they had inherited from their Indo-European speaking ancestors the concept of the 'ham', the 'home' or better 'homestead', but also town or village as in Notting-ham or hamlet. What makes a 'homestead'? Well I would go along with Fustel de Coulanges, author of the classic the Ancient City, that it is marked by an enclosure (that may or may not double as a barrier for men or beasts) and a central hearth, and indeed that idea has come down to us today in the form of 'hearth and home'. But this home was not to be permanently associated with a particular piece of ground among the Continental Germans, not for many centuries, instead the German home could be relocated and re-established. Which was a good thing because in the fifteen hundred years roughly bounded by 700BC and 800AD the Germans were on the march in Europe as this old-fashioned but attractive map shows us:

This mass movement was not uncontested nor did it totally displace the previous inhabitants, Spain remained Iberian (Both "Spain' and 'Iberia' are pre-German conquest words) and France remained largely Celtic, though it did take on the national name of its Germanic conquerors the Franks and the German rulers of North Africa and Spain were ultimately pushed back by the Arabs, Meanwhile what the Romans called Germania was in turn under pressure from new people from the East including the Huns and Magyars.

I am not concerned, or honestly well enough informed, to discuss the political, economic, and social organization of the German invasions/conquests in Southern France, Spain, North Africa or Italy, except to say they seem to have generally adopted Mediterranean customs themselves oriented on the City and so the City State, something that is by nature centered and permanent and corporate. Instead I want to look at Northern Europe and particularly Britain as the Germans transitioned from a condition of mass movement of peoples to final settlement.

Ancient Germany, from which the Angles, Saxons, and Jutes emerged to conquer what became known as Angle-Land or England was not a land of cities. It had cities, particularly in the West, and its kings and nobles had fortified places for defense where they might reside on a semi-permanent basis, but primarily it was a land of villages. Nor were these villages always co-terminous, between the cleared area of the village and fields there would be stretches of forest to which the villagers would claim various levels of customary use. This doesn't mean that Germans were simply atomized into individual villages, instead they had the concept of the 'land' and the 'land lord', too they had the 'kingdom', the 'people' and the 'king' and their was an acknoweldged identiy between nation and territory even as the bounds of that territory moved as the nation or tribe did, but my contention is that they had no equivalent of the modern conception of property ownership, that every square inch of land belongs to someone or something. I'll go further and surmise that even the 'allod', property that is held free and clear of all encumbrances is foreign to original German conceptions and that while the dictionaries tell us that any relation between 'allod' and 'allot' is fanciful false etymology there is some evidence that when Germans moved into new territory that they did divide the use of the land up by share, and that like many ancient peoples let this allocation up to the Gods by reinterpreting what may seem to us like random events (birds flying this way or that, reading entrails, or indeed rolling dice). So fanciful coincidence or not I am going to suggestion reading the German allod as alloted share of the cleared area plus and equivalent allocation of rights to the common areas of the tribe or village.

(My knowledge of Roman Civil Law is skin deep, so feel free to jump in in comments on this next part)
Roman Law has various terms that together cover what we think of property rights today. We have 'usus'/use, 'possessio'/possession, and 'ius'/lawful right. And each may lie in different hands at any given time. moreover there may well be any numbers of layers, or example both German king and peasant alike may have degrees of possession, use and right over the same piece of dirt and there might well be some sort of land lord in between. In this schema tax, rent, and produce are simply different names for what is in origin a more or less equitable claim by each on the use.

In the next installment I will try to localize this to Anglo-Saxon England and then draw in the concept of freedom and then equality.

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