The Lie of the Land

 In what follows, some parts of my narrative echo histories in my other posts, for instance on why the regional landscape looks like it does, or the old squabbles that shaped our odd Constitution and which are currently being re-enacted in the USA.  Here, I have a different objective and am focusing on the origin, nature and delusions about land ‘ownership’ so for the sake of brevity and avoiding repetition, I have added links back to earlier posts.

The Lib Dems' anthem, sung in a boozy session at each conference, is ‘The Land Song’. The chorus finishes with the declaration that ‘God made the land for the people'. The old hippies among you might recall that Woody Guthrie expressed a similar sentiment in secular terms. “ This land is your land, this land is my land…….This land was made for you and me”.

The Glee Club Song

In real, tangible terms, how can you own something that will be here for aeons to come? In what sense is the land yours, mine, or ours? Ill-defined rights to ownership are frequently claimed which on examination prove to be nebulous, a bit like the bloke who claims that the parking space on the street outside his house is ‘his’. 

People are protective about property rights as if they are obvious and relatively unchallengeable by God or Man. After all, the Englishman’s home is his castle and one advantage of land is that no one can pick it up and walk away with it. Their land and often the house on it, was theirs to buy, sell and use as they wished, grudgingly acknowledging some town planning controls, a few conditions written into their title deeds and rights of way etc.

The Englishman's Home etc.

This view is a romantic view. History and the law tell a different story, and even castles have a habit of changing hands without due process of law let alone the interference of so-called human rights.

At a very basic level, you might ask which people God was referring to and on what basis the gift was made. Clearly, it doesn’t say ‘all of them, no strings attached’. The Bible makes it clear that the land that the Israelites had their eye on was a gift to them. Leviticus adds the caveat that it could not be sold because it was God’s land, where they only resided as ‘foreigners and strangers’ and that the gift was dependent on good behaviour. It is a wonder that, based on the last condition, God hasn't foreclosed on it.

God's Gift of the Land

An ordinary distinction is between who owns the land and who gets to use it. In olden times and still in many places today, the former was usually a despot claiming a title underwritten by whatever Almighty he subscribed to. The latter was the individual, family, community or tribe who farmed it. Their interdependence was reflected in undocumented reciprocal commitments, with the farmers paying either a share of the bounty of the land or offering service in return for protection from rogues, thieves and invaders and sometimes more general assistance.

Farming as a team sport

Moving forward from the time of the Old Testament to the New, the Romans had proper, written laws. Because their hobby was nabbing other people’s territory, they had one set of rules for their home turf and another for captured lands. In their heartlands, the citizens got more protection and there were periodic and fraught attempts to frustrate venal exploitation and to redistribute land to the poor. In the lands won by conquest, they simply side-lined the existing landlords and vested the territory in the State to distribute as it saw fit. Competing politicians were bought off, generals and old soldiers were rewarded, palms greased etc.

Roman Arrival

In our foggy little island, little of this survived the departure of the legions in around 400 AD, not least because it was followed by chaos engendered by plague, famine and the arrival of hairy pagans in small boats. They had their ideas on the organisation of the agricultural economy and weren’t as keen on writing rule books, although a Wessex King called Ine and, later, Alfred the Great, codified many of the customary practices reflecting the inter-dependence of the rulers and the ruled.

King Alfred the Great

In essence, the early English Kings didn’t own all the land but could distribute the right to exploit chunks of it and took on some responsibility for the common weal. Echoing the deal between God and the Israelites, this came with obligations to toe the line, and to support the Royal military and other ventures as required. This reciprocal arrangement didn’t include a right to part with it without permission, which in turn often hinged on a sizeable contribution to the Royal coffers.

Supporting the King

Those rights and obligations cascaded down the social ladder, from the Lords or Ealdormen to the minor land-holders called Thegns and various flavours of peasant. Each held the right to use the land in return for providing a service to the senior rank. The nobility were effectively warlords with private armies, who regarded the King simply as the first among equals and were discomfited by the fact that, at a whim, ‘what the Crown giveth, the Crown taketh away’.

The Pecking Order

If this sounds feudal to you, it should. You might have been taught that the Normans introduced Feudalism to England. Not true; they simply did it better. While Saxon customs gave their warlords a degree of independence, William simply wiped them out and declared that the Crown (i.e. the office, not the individual) was the ultimate owner of the entire land. In time-honoured fashion, he then doled out rights to to his henchmen to use and exploit it as they saw fit. You find very few Saxon names in the Domesday Book and, even now, French family names are disproportionately common among the hereditary owners of large estates.

The system William introduced was more hierarchical and structured towards sucking into the royal coffers, the profit from the rights to farm the land or trade, often in the form of monetary or equivalent payment rather than the provision of labour and services. The principle of reciprocating rights and responsibilities began to fray and you can see a more modern pattern beginning to emerge. In the centuries that followed, there were three long-lasting trends that continued this trend and led to major changes to the land laws and the underlying practical agricultural economy.

In the engine room of the agricultural economy, the land held by the minor local Lord of the Manor was often farmed on a collective basis, reflecting long standing custom and sometimes documented in the records of the Manor. The open and unfenced fields surrounding a village or hamlet were divided into strips which were redistributed among the villagers every season. This ensured that everyone got a fair share of the good land, together with rights to access Commons for grazing, water and fuel etc. In return for the right to do this, they had to farm the Lord’s own substantial ‘demesne’ lands for him.

Feudalism

In the 1300s, the 'Black Death' made Covid look like a mild case of sniffles, and recurring crop failures added to the death rate. It is estimated that between a third and half of the population died. Resulting labour shortages meant that the survivors mostly enjoyed rising incomes, but a corollary was increasing use of land for rearing livestock. This lent to greater individual investment, smaller enclosed fields and a decline in arable farming as a collective endeavour.

The Black Death

Livestock farmers usually trade their produce, helped by the fact that sheep can walk and wheat cannot, and individually owned and enclosed land could be treated as an economic asset like any other. The result was that, over time, there was a move from a subsistence-based rural economy to one more beholden to the market, and the land slowly morphed from being the means of providing sustenance to a community, to a capital asset producing cash profits for individuals. It wasn’t a frictionless process. Many of the popular revolts of the period had their origins is the loss of rights to farm land.

The history of this trend can be found in this blog post if you are interested. Link: The Enclosures

The Monty Python take on class!

If you have never seen that sketch, here it is: Link Monty Python : Political Peasants

It helped that, after Henry VIII dissolved the Monasteries and sold their land to fund his wars, there were a lot more people holding land for profit rather than produce. This might be the distant start of the British obsession with owning land and also the more recent proxy of house prices. The new Landed Gentry and increasing wealthy agricultural middle class saw land ownership as a source of rent, profit and status. It helped that it was increasingly possible to borrow money at reasonable rates from Jewish moneylenders, allowed to return by Cromwell. Christians were forbidden to lend, so those that were prepared to risk hell fire to do so, charged a premium rate!

The Dissolution of the Monasteries

You can trace the English obsession with landownership and even perhaps house prices, to this moment in time. In contrast the French tended to see land as being intrinsically useful and houses were bought for living in while the Dutch, who were always short of land, were more inclined to spend the riches of their Golden Age on chattels and luxuries.

A subtle change illustrates this. In Saxon times and thereafter, the size of a land holding was measured by ‘hides’, defined as how many people it could support, so the physical area of a ‘hide’ could vary, being smaller in fertile areas. By the 1600s, it had begun to be measured simply in terms of its area, by a new ‘surveying’ profession, armed with equipment and techniques first employed on a grand scale in Ireland when land was reallocated from the ousted Catholic nobility after Cromwell's military excursions there.

Early Land Surveyors

Meanwhile, going up the hierarchy of ownership and back in time to before the travails of the 1300s, the great Lords, even though they were descendants of the Norman invaders, had looked back to the greater independent authority that their Saxon predecessors had enjoyed. They wanted some of that, and disliked the monarchical habit of undercutting them by unilaterally giving nice rights and legal protections to the rank and misbegotten commoners.

Their disgruntlement (can you be gruntled?) famously led to the con trick that was the Magna Carta, Civil Wars and a series of subsequent changes to the law aimed, in essence, at putting the King back in his box. I am torn on this; the Council of the Lords was the grandfather of parliaments and hurrah for that. But on the other hand, it was the Kings who were more inclined to take the side of the commoners, particularly in relation the enclosures. 

The Magna Carta :  Plaque in US Supreme Court

I described this history in my another blog post: 

Link: The Magna Carta That Wasn't

Land ownership issues were debated at length at the time, and later came to the fore once again during the English Revolution and Cromwell's Republic, and later still by the different ideas and expectations of the American colonists which fuelled their revolution.

The English Revolution was driven by religion, but also by egalitarian and republican ideas exemplified by the Levellers, and at the extreme by the activism of the Diggers in simply commandeering unused land. They were probably influenced by the Protestant Dutch legal thinker Hugo Grotius, whose view was that empty land was there for the taking and using.

The Diggers. Often unwelcome.

The governance arguments came to a head in a debate at St Mary’s Church in Putney. (It is still there. Go visit). Reflecting the increasing reality that land ownership equated to wealth and that, many of the Republicans (including Cromwell) were landowners, they argued that only those with property or some equivalent in terms of wealth and status should be entitled to a vote in Government, since they alone had a tangible stake in the fortunes of the country.

The Putney Debates

The egalitarians countered that in a democracy, rights should be vested in people, not land. Cromwell had more clout and won the argument. It took centuries to dilute the political power of the major land owners, during which the key battle was usually between the Monarch and a Parliament stuffed with those landowners and merchants who had fewer concerns for the rights of smallholders and the landless.

St Mary's Putney. Today.

Meanwhile, emigration to America went on apace, helped by the availability of land which was unused, according to Grotius definition which conveniently bypassed any rights of wandering natives. Their goal in the Northern colonies was religious freedom and the unencumbered right to own land to farm themselves. In the South, larger estates grew up, often run by immigrant English slave owners who weren’t getting their own hands dirty and focused on tobacco for export. In both cases, they wanted to harvest the full benefit of their effort and endeavour, subject only to mutually beneficial arrangements that they had directly agreed to.

The result was that the long-running and fractious English debate about land rights came to a head some 4000 miles from London. Did the rights accorded to landowners emanate from the Crown in faraway Britain? Or did they arise from the endeavour of those directly or indirectly engaged in farming in the new world? Should Grotius' principle apply? (The natives of course didn’t get a say because they had no fixed abode, a perfect illustration of the extent to which ideas about the nature of land ownership are culturally contingent).

Hugo Grotius

Those colonies certainly resented the claim of the English monarch, justified in part by divine right, to own the land. In age-old fashion, Charles awarded swathes of settled land, primarily between the Atlantic and the Appalachians, to his supporters and over the heads of the settlers. The deal was that they would protect the estate owners and promote immigration and agriculture. In return, they could charge a rent.

The estate owners thought that they were being cheated. They got little of real benefit from these remote aristocrats who appeared demanding rent for the land they had previously considered to be freely held, and had invested in and worked on, based on a unilaterally imposed senior title. And far from promoting trade, the English were inclined to restrict it or tax it for their own strategic reasons. (Another idea that the USA now appears to have embraced! Is Trump the reincarnation of George III? )

One of their lobbyists and an influential figure both in pre-revolutionary America and England, was John Locke. Riffing on Grotius’ notion that the rights to land should start with the people doing the work to extract value from it, he shaped the arguments of both the smallholders in the north and the southern slave-based estates and provided justification for ignoring the interests of the natives. Some biblical support for this argument was also found which was always a bonus! This all fuelled the cause of a revolution that was ostensibly against the rights of the Crown even though Parliament was probably the primary author of the specific problems.

John Locke

The rules around land ownership on either side of the pond might look similar now, but the context is different, partly because the USA is a very much larger country with less historical baggage and without the complexity of State's rights. In contrast there wasn’t much useful and unused land in Blighty where  Thomas Hobbes, an equally renowned contemporary of Locke, argued that it was necessary for peace that all land titles should be within the gift of a powerful ruler, exemplified in his eponymous book 'Leviathan'. 

Hobbes Leviathan

Our current practice suggests that this notion had staying power and the ultimate ownership of the land wasn’t really disputed and never changed. Basically, the Crown owns it all. Every bit. Including yours. The only possible prior claimant is God who, perhaps for existential issues, seems to have absented himself from the laws on the matter. You cannot own land outright, but only rights to use it. 

This means that land that doesn’t have a specified legal owner, belongs to the Crown. That includes seabed and most foreshores,. It makes a fortune out of selling the rights of the former for oil wells, wind farms and whatnot. The law about how far a freehold title stretches over your head or under your feet is tortuous but if you dream of finding oil or even gold under your back garden, I'm afraid those are the Crown's too. It also receives any property belonging to someone who dies without leaving a Will or heirs. This isn’t unusual. Most countries have a similar arrangement whereby orphaned land reverts to the State, nationally or locally.

Exploratory Oil Well Willesden, London, Mid 1900's

A freehold title is just a bundle of use rights granted to you for an unlimited period. It is rarely if ever unconditional. Usually you can dispose of it as you see fit. But beyond that the title itself might reserve rights, for instance of use, access, passage or drainage. Others arise from statutory law, for instance Town Planning and building regulations. Critically, you might still have to contribute to costs shared with others or pay various taxes, rates being an example. If you let the land or buildings upon it go to waste and this affects others, you can be forced to remedy the problem. And the law of ‘Adverse Possession’, which are a more drastic version of Squatters Rights, means that if you have allowed someone to occupy and use your property without interruption or complaint for a decade or more, they can get a right to keep it.

This sharing of interlocking rights and responsibilities with others and public control over what you do on your property is common in many places, but means it takes a stretch to get the visceral joy of sole, unchecked possession that the American backwoodsman might fondly imagine they enjoy, exceptions granted.

Think of it like a long lease on a flat. Once, you paid rent and in return, the freehold owner kept the structure and the services in order. It was a reciprocal arrangement. Nowadays the repairs might be funded by a service charge to cover the freeholder's costs and the ground rent is pure profit. The reciprocation has effectively morphed into a simple right to charge you i.e. a financial asset.

Tenant's eye view.

In any event, the State has rights to take your land. The legal process is known as Eminent Domain, a term borrowed from Mr Grotius and used on both sides of the pond. In the UK, the means is usually a Compulsory Purchase Order which can be exercised through subsidiary bodies, for instance, Network Rail. The law demands that compensation is paid but the ‘in principle’ is debated. Should it be based on what the land is worth in its current use? Or its market value? And should it be allowed to include any ‘ransom’ value it has, for example ‘you can’t have access across my turf to fix your garage unless you pay me this ridiculous sum’.

So how does all this play out today? It probably doesn’t affect many people much. Protected by their delusions about the nature of land ownership, few fret about the difference between a freehold and a very long leasehold. The comparatively practical British Courts, unburdened by the rigidities of the Napoleonic law codes in much of the rest of Europe, don’t normally care to enforce unreasonable restrictions if they no longer make sense. (I worked for a while for one of London's great landed estates and can’t believe they have ever enforced their standard lease conditions prohibiting the ‘deposition of carboniferous material in receptacles intended for the purpose of ablutions’ or the use of premises as a ‘railway parcel booking office’).

Napoleon writes the rules

Where it does seem to have affected people recently is in relation to taxation and Compulsory Purchase. Both illustrate this transformation of land ownership from an illiquid and permissive right to use it, into a liquid and tradeable financial asset. For some, usually the wealthy, the ‘rights’ to use land seem to have morphed into a claimed right not to have to pay tax. The principle could not be further removed from Grotius’ formulation or the ancient idea of landholding with its emphasis on collective and reciprocal obligations. At least the promoters of tax avoidance schemes based on the creation of psuedo-independent ‘micro nations’, like Sealand on the old forts in the middle of the Thames Estuary, normally seize on something that is unused.

Sealand

The purchase of British properties by Russian and Asian oligarchs is a good example. Many of the properties are not used at all and serve simply as a place to stash wealth out of sight of their own national law and tax codes. Our super-rich do the same in Monaco and Switzerland.

Jeremy Clarkson’s travails are another. He notoriously bought a farm to reduce the potential inheritance tax burden on his progeny, found out that he quite enjoyed the country life and then, posturing as a son of the soil and a stalwart of ancient rights when it was proposed that the relevant tax break be removed, moaned vociferously. He was far from alone.

Clarkson owns Diddly Squat

A similar issue arises with Compulsory Purchase Orders. These compensate for land taken. In fairness it isn’t always about money, and some folk have a genuine attachment to their toehold which cannot be readily compensated. But in most cases, it is simply about the money. Until recently, the price paid for property that is compulsorily purchased has been its market value, with a few caveats. But in the context of the need to build lots of new homes and make them affordable, it is now proposed that the basis of compensation in some cases should be what the land is worth in its current use. So the farmer whose land is required gets its value as a farm and not as a site for housing development.

There will be howls of rage from some. Nothing better illustrates the move from the ownership of defined rights to use land, to some mystical right to treat this immovable asset as coin. Yet the extra value attributable to the possibility of development was rarely earned. Rather, it arose from taxpayer-funded investments in the roads and services that made it more valuable in an alternative use. This isn’t a socialist argument; it was once made eloquently by Winston Churchill. People who buy land as a speculation on any rise in value have even less basis for complaint. Any possible windfall arose by chance, the toss of a coin, and the flip side of speculation is an acceptance that the coin might land wrong side up.

Some have argued that the European Convention on Human Rights, by recognising the right to property as a fundamental human right, gives owners some immunity from interference. But that isn’t any sort of absolute right and the Convention includes major caveats precisely aimed at preserving the delicate balance between individual and collective interests. Point is, you don't own land in the sense of a God-given, inalienable and unconditional right. It is none of these and if you think it is more than that, your imagination is playing tricks on you.

The Lord of the Manor: Delusions of Grandeur

Would Locke have objected to this? Clearly, his ideas are time-worn, but it is worth noting that his support was dependent on there being land enough for everyone. Adam Smith went further, claiming that rent was unearned income and a good target for taxation. Even Robert Nozick, a modern right-wing American ideologue who suggested that the sole legitimate role of Governments was the protection of property, subscribed to a principle akin to that. Locke also supported the principle of the Poor Laws, the cost of which was entirely borne by property owners.

In summary, the right to use land is shaped by history and law. Originally, that focused on the reality that the farming the land required collective endeavour. The growth of the market-led economy and the full bloom of capitalism led to land becoming a financial asset of sorts that is fettered, alienable and taxable. The idea that there is a deified bond between man and land now only exists in the romantic imagination. In any event, rights that are the gift of God or Governments are by definition not absolute, but even if there were any, outright ownership of land isn’t one of them, any more than owning a car gives you a right to drive like a maniac.