THE LAWYERS
Besides the Schoolmen, by whom the problems of life were viewed in the
refracted light of theology and philosophy, there was another important
class in mediaeval times which exercised itself over the same social
questions, but visaged them from an entirely different angle. This was
the great brotherhood of the law, which, whether as civil or canonical,
had its own theories of the rights of private ownership. It must be
remembered, too, that just as the theologians supported their views by
an appeal to what were considered historic facts in the origin of
property, so, too, the legalists depended for the material of their
judgment on circumstances which the common opinion of the time admitted
as authentic.
When the West drifted out from the clouds of barbaric invasion, and had
come into calm waters, society was found to be organised on a basis of
what has been called feudalism. That is to say, the natural and
universal result of an era of conquest by a wandering people is that the
new settlers hold their possessions from the conqueror on terms
essentially contractual. The actual agreements have varied constantly in
detail, but the main principle has always been one of reciprocal rights
and duties. So at the early dawn of the Middle Ages, after the period
picturesquely styled the Wanderings of the Nations, we find the
subjugating races have encamped in Europe, and hold it by a series of
fiefs. The action, for example, of William the Norman, as plainly shown
in Domesday Book, is typical of what had for some three or four
centuries been happening here and on the Continent. Large tracts of land
were parcelled out among the invading host, and handed over to
individual barons to hold from the King on definite terms of furnishing
him with men in times of war, of administering justice within their
domains, and of assisting at his Council Board when he should stand in
need of their advice. The barons, to suit their own convenience, divided
up these territories among their own retainers on terms similar to those
by which they held their own. And thus the whole organisation of the
country was graduated from the King through the greater barons to
tenants who held their possessions, whether a castle, or a farm, or a
single hut, from another to whom they owed suit and service.
This roughly (constantly varying, and never actually quite so absolutely
carried out) is the leading principle of feudalism. It is clearly based
upon a contract between each man and his immediate lord; but, and this
is of importance in the consideration of the feudal theory of private
property, whatever rights and duties held good were not public, but
private. There was not at the first, and in the days of what we may
call "pure feudalism," any concept of a national law or natural right,
but only a bundle of individual rights. Appeal from injustice was not
made at a supreme law-court, but only to the courts of the barons to
whom both litigants owed allegiance. The action of the King was quite
naturally always directed towards breaking open this enclosed sphere of
influence, and endeavouring to multiply the occasions on which his
officials might interfere in the courts of his subjects. Thus the idea
gradually grew up (and its growth is perhaps the most important matter
of remark in mediaeval history), by which the King's law and the King's
rights were looked upon as dominating those of individuals or groups.
The courts baron and customary, and the sokes of privileged townships
were steadily emptied of their more serious cases, and shorn of their
primitive powers. This, too, was undoubtedly the reason for the royal
interference in the courts Christian (the feudal name for the clerical
criminal court). The King looked on the Church, as he looked on his
barons and his exempted townships, as outside his royal supremacy, and,
in consequence, quarrelled over investiture and criminous clerks, and
every other point in which he had not as yet secured that his writs and
judgments should prevail. There was a whole series of courts of law
which were absolutely independent of his officers and his decision. His
restless energy throughout this period had, therefore, no other aim than
to bring all these into a line with his own, and either to capture them
for himself, or to reduce them to sheer impotence. But at the beginning
there was little notion of a royal judge who should have power to
determine cases in which barons not immediately holding their fiefs of
the King were implicated. The concern of each was only with the lord
next above him. And the whole conception of legal rights was, therefore,
considered simply as private rights.
The growth of royal power consequently acted most curiously on
contemporary thinkers. It meant centralisation, the setting up of a
definite force which should control the whole kingdom. It resulted in
absolutism increasing, with an ever-widening sphere of royal control. It
culminated in the Reformation, which added religion to the other
departments of State in which royal interference held predominance. Till
then the Papacy, as in some sort "a foreign power," world-wide and
many-weaponed, could treat on more than equal terms with any European
monarch, and secure independence for the clergy. With the lopping off of
the national churches from the parent stem, this energising force from a
distant centre of life ceased. Each separate clerical organisation could
now depend only on its own intrinsic efficiency. For most this meant
absolute surrender.
The civil law therefore which supplanted feudalism entailed two
seemingly contradicting principles which are of importance in
considering the ownership of land. On the one hand, the supremacy of the
King was assured. The people became more and more heavily taxed, their
lands were subjected to closer inspection, their criminal actions were
viewed less as offences against individuals than as against the peace of
the King. It is an era in which, therefore, as we have already stated,
the power of the individual sinks gradually more and more into
insignificance in comparison with the rising force of the King's
dominion. Private rights are superseded by public rights.
Yet, on the other hand, and by the development of identically the same
principles, the individual gains. His tenure of land becomes far less a
matter of contract. He himself escapes from his feudal chief, and his
inferior tenants slip also from his control. He is no longer one in a
pyramid of grouped social organisation, but stands now as an individual
answerable only to the head of the State. He has duties still; but no
longer a personal relationship to his lord. It is the King and that
vague abstraction called the State which now claim him as a subject; and
by so doing are obliged to recognise his individual status. This new and
startling prominence of the individual disturbed the whole concept of
ownership. Originally under the influence of that pure feudalism which
nowhere existed in its absolute form, the two great forces in the life
of each member of the social group were his own and that of his
immediate lord. These fitted together into an almost indissoluble union;
and therefore absolute ownership of the soil was theoretically
impossible. Now, however, the individual was emancipated from his lord.
He was still, it is true, subject to the King, whose power might be a
great deal more oppressive than the barons' had been. But the King was
far off, whereas the baron had been near, and nearly always in full
evidence. Hence the result was the emphasis of the individual's absolute
dominion. Not, indeed, as though it excluded the dominion of the King,
but precisely because the royal predominance could only be recognised by
the effective shutting out of the interference of the lord. To exclude
the "middle-man," the King was driven to recognise the absolute dominion
of the individual over his own possessions.
This is brought out in English law by Bracton and his school. Favourers
as they were of the royal prerogative, they were driven to take up the
paradoxical ground that the King was not the sole owner of property. To
defend the King they were obliged to dispossess him. To put his control
on its most effective basis, they had no other alternative left them
than to admit the fullest rights of the individual against the King. For
only if the individual had complete ownership, could there be no
interference on the part of the lord; only if the possessions of the
tenants were his own, were they prevented from falling under the
baronial jurisdiction. Therefore by apparently denying the royal
prerogative the civil lawyers were in effect, as they perfectly well
recognised, really extending it and enabling it to find its way into
cases and courts where it could not else well have entered.
Seemingly, therefore, all idea of socialism or nationalisation of land
(at that date the great means of production) was now excluded. The
individualistic theory of property had suddenly appeared; and
simultaneously the old group forms, which implied collectivism in some
shape or other, ceased any longer to be recognised as systems of tenure.
Yet, at the same time, by a paradox as evident as that by which the
civilians exalted the royal prerogative apparently at its own expense,
or as that by which Wycliff's communism is found to be in reality a
justification of the policy of leaving things as they are, while St.
Thomas's theory of property is discovered as far less oppressive and
more adaptable to progressive developments of national wealth, it is
noticed that, from the point of view of the socialist, monarchical
absolutism is the most favourable form of a State's constitution. For
wherever a very strictly centralised system of government exists, it is
clear that a machinery, which needs little to turn it to the advantage
of the absolute rule of a rebellious minority, has been already
constructed. In a country where, on the other hand, local government has
been enormously encouraged, it is obviously far more difficult for
socialism to force an entrance into each little group. There are all
sorts of local conditions to be squared, vagaries of law and
administration to be reduced to order, connecting bridges to be thrown
from one portion of the nation to the next, so as to form of it one
single whole. Were the socialists of to-day to seize on the machinery of
government in Germany and Russia, they could attain their purposes
easily and smoothly, and little difference in constitutional forms would
be observed in these countries, for already the theory of State
ownership and State interference actually obtains. They would only have
to substitute a _bloc_ for a man. But in France and England, where the
centralisation is far less complete, the success of the socialistic
party and its achievement of supreme power would mean an almost entire
subversal of all established methods of administration, for all the
threads would have first to be gathered into a single hand.
Consequently feudalism, which turned the landowners into petty
sovereigns and insisted on local courts, &c., though seemingly
communistic or socialistic, was really, from its intense local
colouring, far less easy of capture by those who favoured State
interference. It was individualistic, based on private rights. But the
new royal prerogative led the way to the consideration of the evident
ease by which, once the machine was possessed, the rest of the system
could without difficulty be brought into harmony with the new theories.
To make use of comparison, it was Cardinal Wolsey's assumption of full
legatine power by permission of the Pope which first suggested to Henry
VIII that he could dispense with His Holiness altogether. He saw that
the Cardinal wielded both spiritual and temporal jurisdiction. He
coveted his minister's position, and eventually achieved it by ousting
both Clement and Wolsey, who had unwittingly shown him in which way more
power lay.
So, similarly, the royal despotism itself, by centralising all power
into the hands of a single prince, accustomed men to the idea of the
absolute supremacy of national law, drove out of the field every
defender of the rights of minorities, and thus paved the way for the
substitution of the people for itself. The French Revolution was the
logical conclusion to be drawn from the theories of Louis XIV. It needed
only the fire of Rousseau to burn out the adventitious ornamentation
which in the shape of that monarch's personal glorification still
prevented the naked structure from being seen in all its clearness.
_L'Etat c'est moi_ can be as aptly the watchword of a despotic
oligarchy, or a levelling socialism, as of a kingly tyranny, according
as it passes from the lips of the one to the few or the many. It is true
that the last phase was not completed till long after the Middle Ages
had closed, but the tendency towards it is evident in the teachings of
the civil lawyers.
Thus, for example, State absolutism is visible in the various
suggestions made by men like Pierre du Bois and Wycliff (who, in the
expression of their thoughts, are both rather lawyers than schoolmen) to
dispossess the clergy of their temporalities. The principles urged, for
instance, by these two in justification of this spoliation could be
applied equally well to the estates of laymen. For the same principles
put into the King's hand the undetermined power of doing what was
necessary for the well-being of the State. It is true that Pierre du
Bois (_De Recuperatione Terre Sancte_, pp. 39-41, 115-8) asserted that
the royal authority was limited to deal in this way with Church lands,
and could not touch what belonged to others. But this proviso was
obviously inserted so arbitrarily that its logical force could not have
had any effect. Political necessity alone prevented it from being used
against the nobility and gentry.
Ockham, however, the clever Oxford Franciscan, who formed one of the
group of pamphleteers that defended Louis of Bavaria against Pope John
XXII, quite clearly enlarged the grounds for Church disendowment so as
to include the taking over by the State of all individual property. He
was a thinker whose theories were strangely compounded of absolutism and
democracy. The Emperor was to be supported because his autocracy came
from the people. Hence, when Ockham is arguing about ecclesiastical
wealth, and the way in which it could be quite fairly confiscated by the
Government, he enters into a discussion about the origin of the imperial
dignity. This, he declares, was deliberately handed over by the people
to the Emperor. To escape making the Pope the original donor of the
imperial title, Ockham concedes that privilege to the people. It was
they, the people, who had handed over to the Caesars of the Holy Roman
Empire all their own rights and powers. Hence Louis was a monarch whose
absolutism rested on a popular basis. Then he proceeds in his argument
to say that the human positive law by which private property was
introduced was made by the people themselves, and that the right or
power by which this was done was transferred by them to the Emperor
along with the imperial dignity.
Louis, therefore, had the same right to undo what they had done, for in
him all their powers now resided. This, of course, formed an excellent
principle from which to argue to his right to dispossess the Church of
its superfluous wealth--indeed of all its wealth. But it could prove
equally effectual against the holding by the individual of any property
whatever. It made, in effect, private ownership rest on the will of the
prince.
Curiously, too, in quite another direction the same form of argument had
been already worked out by Nicole Oresme, a famous Bishop of Lisieux,
who first translated into French the _Politics_ of Aristotle, and who
helped so largely in the reforms of Charles V of France. His great work
was in connection with the revision of the coinage, on which he composed
a celebrated treatise. He held that the change of the value of money,
either by its deliberate depreciation, or by its being brought back to
its earlier standard of face value, carried such widespread consequences
that the people should most certainly be consulted on it. It was not
fair to them to take such a step without their willing co-operation. Yet
he admits fully that, though this is the wiser and juster way of acting,
there was no absolute need for so doing, since all possession and all
property sprang from the King. And this last conclusion was advocated by
his rival, Philip de Meziers, whose advice Charles ultimately followed.
Philip taught that the king was sole judge of whatever was for public
use.
But there was a further point in the same question which afforded matter
for an interesting discussion among the lawyers. Pope Innocent IV, who
had first been famous as a canonist, and retained as Pontiff his old
love for disputations of this kind, developed a theory of his own on the
relation between the right of the individual to possess and the right
of the State over that possession. He distinguished carefully between
two entirely different concepts, namely, the right and its exercise. The
first he admitted to be sacred and inviolable, because it sprang from
the very nature of man. It could not be disturbed or in any way
molested; the State had therefore no power to interfere with the right.
But he suggested that the exercise of that right, or, to use his actual
phrase, the "actions in accord with that right," rested on the basis of
civil, positive law, and could therefore be controlled by legal
decisions. The right was sacred, its exercise was purely conventional.
Thus every man has a right to property; he can never by any possible
means divest himself of it, for it is rooted in the depths of his being,
and supported by his human nature. But this right appears especially to
be something internal, intrinsic. For him to exercise it--that is to
say, to hold this land or that, or indeed any land at all--the State's
intervention must be secured. At least the State can control his action
in buying, selling, or otherwise obtaining it. His right cannot be
denied, but for reasons of social importance its exercise well may be.
Nor did this then appear as a merely unmeaning distinction; he would not
admit that a right which could not be exercised was hardly worth
consideration. And, in point of fact, the Pope's private theory found
very many supporters.
There were others, however, who judged it altogether too fantastical.
The most interesting of his opponents was a certain Antonio Roselli, a
very judiciously-minded civil lawyer, who goes very thoroughly into the
point at issue. He gives Innocent's views, and quotes what authority he
can find for them in the Digest and Decretals. But for himself he would
prefer to admit that the right to private property is not at all sacred
or natural in the sense of being inviolable. He willingly concedes to
the State the right to judge all claims of possession. This is the more
startling since ordinarily his views are extremely moderate, and
throughout the controversy between Pope and Emperor he succeeded in
steering a very careful, delicate course. To him, however, all rights to
property were purely civil and arguable only on principles of positive
law. There was no need, therefore, to discriminate between the right and
its exercise, for both equally could be controlled by the State. There
are evidences to show that he admitted the right of each man to the
support of his own life, and, therefore, to private property in the form
of actual food, &c., necessary for the immediate moment; but he
distinctly asserts as his own personal idea that "the prince could take
away my right to a thing, and any exercise of that right," adding only
that for this there must be some cause. The prince cannot arbitrarily
confiscate property; he must have some reasonable motive of sufficient
gravity to outweigh the social inconveniences which confiscation would
necessarily produce. Not every cause is a sufficient one, but those only
which concern "public liberty or utility." Hence he decides that the
Pope cannot alienate Church lands without some justifying reason, nor
hand them over to the prince unless there happens to be an urgent need,
springing from national circumstances. It does not follow, however, that
he wishes to make over to the State absolute right to individual
property under normal conditions. The individual has the sole dominion
over his own possessions; that dominion reverts to the State only in
some extreme instance. His treatise, therefore (Goldast, _De Monarchia_,
1611-1614, Hanover, p. 462, &c.), may be looked upon as summing up the
controversy as it then stood. The legal distinction suggested by
Innocent IV had been given up by the lawyers as insufficient. The
theories of Du Bois, Wycliff, Ockham, and the others had ceased to have
much significance, because they gave the royal power far too absolute a
jurisdiction over the possessions of its subjects. The feudal
contractual system, which these suggested reforms had intended to drive
out, had failed for entirely different reasons, and could evidently be
brought back only at the price of a complete and probably unsuccessful
disturbance of the social and economic organisation. The centralisation
which had risen on the ruins of the older local sovereignties and
immunities, had brought with it an emphasised recognition of the public
rights and duties of all subjects, and had at the same time confirmed
the individual in the ownership of his little property, and given him at
the last not a conditional, but an absolute possession. To safeguard
this, and to prevent it from becoming a block in public life, a factor
of discontent, the lawyers were engaged in framing an additional clause
which should give to the State an ultimate jurisdiction, and would
enable it to overrule any objections on the part of the individual to a
national policy or law. The suggested distinction that the word "right"
should be emptied of its deeper meaning, by refusing it the further
significance of "exercise," was too subtle and too legal to obtain much
public support. So that the lawyers were driven to admit that for a just
cause the very right itself could be set aside, and every private
possession (when public utility and liberty demanded it) confiscated or
transferred to another.
Even the right to compensation for such confiscation was with equal
cleverness explained away. For it was held that, when an individual had
lost his property through State action, and without his having done
anything to deserve it as a punishment, compensation could be claimed.
But whenever a whole people or nation was dispossessed by the State,
there was no such right at all to any indemnity.
Thus was the wholesale adoption of land-nationalism to be justified.
Thus could the State capture all private possessions without any fear of
being guilty of robbery. It was considered that it was only the
oppression of the individual and class spoliation which really
contravened the moral law.
The legal theories, therefore, which supplanted the old feudal concepts
were based on the extension of royal authority, and the establishment of
public rights. Individualistic possession was emphasised; yet the
simultaneous setting up of the absolute monarchies of the sixteenth
century really made their ultimate capture by the Socialist party more
possible.