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April 19th 2014 print

Daniel Hannan

Liberty and Property

Wills and inheritances loom large in an immense number of English-language novels. Sadly, we have come to take the idea of total ownership for granted -- a great pity because it is a key element of what both explains the Anglosphere and sets it apart

hannan smallerEvery Freeborn Subject of England is heir by Birthright unto that un-paralleled privilege of Liberty and Property, beyond all the Nations in the world beside; and it is to be wished that all men did rightly understand their own happiness therein.

William Penn, 1687

In 2010, when I was briefly and uncomfortably a front-bench spokesman for my party in the European Parliament, I had to deal with a directive to harmonise inheritance laws across the EU. The proposal was a technical one, to do with what happened to the belongings of people who died intestate while living in another EU state. But it revealed a striking difference between British and Continental notions of property rights.

In most of Europe, an individual cannot bequeath his possessions as he pleases. There are laws that, for example, guarantee a portion of his estate to surviving widows and children. In some states, you have discretion over only a third of your assets at death.

In Britain, by contrast, as in most of the Anglosphere, you can do pretty much what you like with your property—at least, with what is left over once death duties have been paid. If you want to leave everything to a trust to look after your cat, it’s up to you. If you want to alter your will in favour of your new teenage girlfriend, that’s your descendants’ tough luck.

Wills and inheritances loom commensurately large in the Anglosphere consciousness. An immense number of English-language novels turn on them. We have come to take the idea of total ownership for granted.

Yet our common-law attitude to property is, by global standards, extraordinary, and requires some explanation. The approach taken in most civil-law states is, on the surface, more rational. Why should the wishes of a dead person override the needs of the survivors? The living, after all, are better placed to see how assets might usefully be allocated.

The answer goes to the heart of how different societies conceive ownership rights. If all property is ultimately the tribe’s or the kin group’s or the king’s (or, nowadays, the state’s), then it makes sense for surviving members of the tribe (or, nowadays, government officials) to determine the most rational distribution of resources. Ownership in such societies is, in effect, a form of lease: an exclusive right to enjoy a given asset. Such a right will not usually be prolonged beyond death.

Man is a social animal, and most human societies conceived property as at least partly communal. Before there were cities, before there were farms, before there were tools, even before there were words, men and women existed in kin-groups. From prehistoric times until the early modern period (and, indeed, until the present day in large parts of the world), the basic economic unit was the extended family. The laws that governed ownership and transaction were developed in this context, and naturally elevated the clan over the individual.

The idea that property represented a total right of ownership by a single person was peculiar to English-speaking societies. The discrepancy I encountered in the European Parliament didn’t simply set the United Kingdom apart from the rest of the EU; it set the Anglosphere apart from virtually the entire planet. Hence the misunderstandings and conflicts that accompanied so many colonial encounters between English-speakers and indigenous peoples.

When settlers accustomed to common-law property rights arrived in North America, in Africa, in New Zealand—even, many centuries earlier, in Ireland—they found that their notions of property were literally beyond the comprehension of local people. The settlers would, as they saw it, purchase land. The natives, however, had no concept of permanently alienating land from their tribe. In their eyes, they were selling the right to make use of resources on territory which an individual might no more own than he could own the wind or the sunshine.

We hear the same grievances over and over again in the complaints of the indigenous peoples, whether Cherokee, Maori or Kikuyu. The settlers, they would complain, had cheated them out of their inheritance, or tricked them into land deals they hadn’t properly understood, or bribed an individual chief into signing away rights that were not his to give. Some of the colonists were, of course, unscrupulous and rapacious, and there were plenty of acts of straightforward theft. But there was also a fundamental incompatibility of understanding that made bloodshed almost inevitable.

For a long time, the unique nature of Anglosphere land law went unremarked. Consciously or otherwise, historians tended to see social history in broadly Marxist terms. According to Marxist orthodoxy, a peasant society had, at some stage in the past five hundred years, given way to a capitalist society. The former had been settled, rural, hierarchical and largely autarkic; the latter was individualistic, specialised, money-based and competitive.

Karl Marx was keenly interested in England as a template for his theories. It was, he believed, the country where capitalism had first developed, and so would be the first to succumb to a socialist revolution.

England, Marx taught, had been a peasant society until the end of the fifteenth century, when it began its gradual shift towards a market economy. By “peasant society”, he meant that England had had an economy based on self-sufficient families and feudal dues rather than money. “The mode of production itself had as yet no specific capitalist character,” he wrote. Land was treated as a common family birthright, not a commodity to be bought and sold. The basic economic unit was not the individual, but the peasant farm:

The economic totality is, at bottom, contained in each individual household, which forms an independent centre of production for itself: manufactures purely as domestic secondary tasks for women …

The transformation, for Marx, came when rent-in-kind began to give way to money rents, something that led to “the formation of a class of propertyless day-labourers”, who could then be exploited by employers.

Marx presented his economic models as empirical, scientific facts, not as political opinions. His followers duly followed his version of history almost to the letter. The easy-going Friedrich Engels wrote that England’s “natural economy” in which “the exchanging family heads remain working peasants who produce almost all they require with the aid of their families on their own farmsteads”, had been displaced by a “capitalist economy” that had “dissolved all inherited and traditional relations and replaced time-hallowed custom and historical right by purchase and sale”.

What’s striking, reading these words, is that they don’t seem especially Marxist. Like many of Marx’s precepts, this one has become so orthodox in academic circles that we have lost sight of who first authored it. Virtually every major writer followed Marx in positing a transformation from familial self-sufficiency to a modern cash economy, though they differed a little as to precisely what had caused it. Max Weber, the German philosopher who has as good a claim as anyone to be the founder of sociology, thought that Puritanism, which made a virtue of thrift rather than of generosity, had been as important as the development of a class of free labourers.

R.H. Tawney, the enormously influential British historian, agreed with Weber, positing a shift from a “distributive” Catholic ethic to an “acquisitive” Protestant one. Yet both writers, in common with virtually every social historian who followed, unhesitatingly accepted the Marxist account of a progression from self-sufficient family units, in which all worked and shared, to a society of atomised individuals mediating their relationships through cash.

Tawney described the peasant household unit rather more eloquently than the Marxists whom he was echoing:

It is a miniature co-operative society, housed under one roof, dependent upon one industry, and including not only man, wife and children but servants and labourers, ploughmen and threshers, cowherds and milkmaids, who live together, work together and play together.

It comes as quite a jolt to realise that this narrative is orthodox Marxism. Most of us, if we got any social history at school, will have been taught a version of it. It is reinforced in countless historical novels and dramas. It was played out before a massive global audience in the opening ceremony of the 2012 London Olympics, which showed a bucolic landscape, complete with happy shepherdesses, being enclosed by private owners, who then sent the peasants to work in their grim mills and chimney-stacked factories.

The reason that the Marxist account caught on, and spread well beyond the Left, is that it was largely true—true, in fact, in every respect except one. It described a process through which almost every European country had passed, albeit some much earlier than others. It applied, not just to Europe, but to Russia, China and India. Indeed, it was relevant to almost all European and Asian societies. The only place to which it didn’t apply at all was the place Marx had been writing about: England.

In 1381, small farmers and artisans marched on London from nearby counties demanding better conditions, a protest known to historians as the Peasants’ Revolt. There are many ways to think of that bloody spasm: as a howl of rage against the conditions of serfdom; as a consequence of the rising wealth and rising aspirations of the class of yeomen whose influence had grown since the depopulation of the Black Death; as the last Anglo-Saxon revolt against a French-speaking aristocracy. The one thing that no one called it at the time, though, was a peasants’ revolt, for the good reason that the word peasant didn’t exist in English. Or, to be precise, it was used only when talking about foreigners, being a direct rendition of the French word paysan, countryman.

The reason the word didn’t exist in English is that the thing it described didn’t exist in England. The word peasant was understood by contemporaries much as it is by historians. It didn’t simply mean someone who dwelt in the countryside. It also denoted the socio-economic characteristics identified by Marx, Weber, Tawney and the rest.

A peasant was attached to, and to an extent defined by, his family’s land. That land was not his to do with as he wanted: it was the common inheritance of his extended household. It could be sold only in times of dire need, and with the consent of all male heirs. The peasant’s family unit tended to produce and consume internally, with little trade. Staples would be grown or reared on the land, and only luxuries and occasional goods exchanged. Even then, the exchange was often in the form of barter rather than cash purchase. Money existed, but tended to be treated as one more asset to be stored, not as a means of exchange.

Such peasant societies existed medievally right across Europe and Asia. They began to adapt in north-western Europe from the sixteenth century, but were still widespread in Eastern Europe until the nineteenth, and in Russia until the twentieth.

Until recently, it was assumed that England’s rural economy had not differed substantially from those of neighbouring states. Then, in the 1970s, a young Cambridge historian named Alan Macfarlane began to study the parish records of medieval England. What he found, to his astonishment, was a form of social organisation that met none of the criteria of what is generally called a peasant society. The commonalities of rural society ran right across Eurasia, from the Pacific to the Atlantic. But they stopped at the English Channel:

The majority of ordinary people in England from at least the thirteenth century were rampant individualists, highly mobile both geographically and socially, economically rational, market-oriented and acquisitive, ego-centred in kinship and social life. Perhaps this is no surprise, for it makes them very like their descendants.

In most of Europe, land-ownership was settled, with farms being treated as an inalienable patrimony. In England, by contrast, there was a lively land market from at least the thirteenth century (earlier records are harder to come by). In most of Europe, children would work on their parents’ farms, receiving board and lodging rather than wages. In England—to the surprise and occasional disgust of overseas visitors — children would generally have left the family home by their teens, either for apprenticeships or to work elsewhere. The farm work would instead be done by hired hands for competitive pay. In most of Europe, the family was recognised as the primary unit, not just in custom but in law: parents generally could not disinherit their children, and the family plot was treated as a communal resource. In England, there was almost no notion of shared ownership. A boy who had reached legal maturity was, in the eyes of the law, a wholly free agent: his father had neither claims over him nor duties to him.

Macfarlane’s thesis was at odds with the temper of the times. In the 1970s, most academics were still influenced by Marxist historiography, for all that they might have consciously eschewed Marxist politics. But he found his conclusion to be inescapable:

What now seems clear is that England back to the thirteenth century was not based on either “Community” or “communities”. It appears to have been an open, mobile, market-oriented and highly centralized nation, different not merely in degree but in kind from the peasantries of Europe and Asia.

When and why did these differences emerge? On the question of when, Macfarlane frankly admitted that it was impossible to say. The peculiar individualism of English society was taken for granted in the earliest sources he could find. He suspected that the origins went right back to the earliest Anglo-Saxon settlements, and had their roots in the first-century Germanic commonwealths described by Tacitus. But, in the absence of hard evidence, he could only guess.

On the question of why, he was much clearer. The individualistic character of English society was guaranteed by two connected legal features: primogeniture and the total ownership of land by a single person.

Primogeniture—the practice of settling an entire estate upon the eldest son, rather than dividing it equally, or passing it on collectively—is intimately linked to the alienability of land. It amounts in one sense to the disinheriting of all claimants in favour of a single one. Neither primogeniture nor outright ownership is compatible with a peasant society on the Continental model. Both are products of the bottom-up common-law system. Together, at a physical as well as a political level, these two precepts shaped the Anglosphere—quite literally.

Suppose you were flying from, say, Budapest to Birmingham, and dozed off. One glance from the window when you woke up would tell you whether you had crossed the English Channel. The land laws of England have taken tangible form in the countryside. Farms across Europe tend to be rectilinear, often divided into strips. So as not to waste space, the boundaries are generally marked by wire fences, which may be swiftly moved when brothers inherit.

In England, by contrast, the fields are irregular and undulating. They follow natural features, curving with brooks, rather than forming straight lines. They tend to be enclosed by more permanent barriers: hedgerows in most of the country, dry-stone walls in parts of the north and west.

England’s landscape was made by English laws. Because properties did not have to be shared or divided, natural boundaries remained in place.

A countryside marked by hedgerows is one in which property has long been secure. Unlike a wire fence, a hedgerow cannot easily be moved. An old English hedge is a thick, bristling riot of plant varieties: dwarf oak, maple, honeysuckle, clematis, wild rose, sallow, blackthorn, hazel, alder. There is even a handy rule for calculating a hedgerow’s age: count the number of woody species in a thirty-yard stretch, not including ivy or blackberry, and multiply by 110.

Such ancient boundaries, some of which have stood since Saxon times, tell us that these were not lands divided among siblings. As fortunes rose and fell, families would buy and sell whole estates. Here was a functioning land market, underpinned by confidence of tenure.

The same is true of the great estates that are such a marked feature of the English countryside. It is extraordinary, walking about their grounds today, to think that their eighteenth-century owners laid out their seedlings in such a way as to reach perfection hundreds of years later. What assurance those early landscape gardeners had in the stability of the nation and its political system! They expected their parks to be enjoyed, in their ripeness, by their great-great-great-grandchildren. They felt certain that their homes wouldn’t, in the meantime, have been expropriated by a tyrant, wrecked by a mob, or used to billet foreign invaders.

These great estates were more than houses and gardens. To generations of Englishmen, they represented everything that was healthy and free about their nation. Some of the greatest writers of the sixteenth and seventeenth centuries—Ben Jonson, Thomas Carew, Andrew Marvell—are known as the Country House Poets, because they used the rural garden as a political metaphor, an antidote to court politics. The royal court, in their verses, was effeminate, mannered, artificial, scheming; the country was artless, organic, loyal, frank. The great country houses were, as a later generation would see it, a solid expression of Whig political philosophy. Their survival down the generations rested on the ancient custom of primogeniture.

In 2012, the United Kingdom and the other Commonwealth states that shared a monarch agreed without any fuss to alter the succession law so as to remove the preference for male heirs, opening the door to a number of claims by aristocratic elder daughters. For most families, the idea that a first-born male heir was entitled to a greater share than his siblings had long since been abandoned.

Yet, while it lasted, the practice of primogeniture had vast social consequences. In Britain, unlike in Europe, the nobility never became a closed class. Younger sons of landowners would have to make their way in the world as soldiers or doctors or clergymen or businessmen. In most of Europe, where nobility was an inherited legal status, the aristocracy could comprise a substantial proportion of the population: as much as 30 per cent in some countries. In Britain, their numbers were always tiny. On the eve of the 1789 revolution, there were 140,000 aristocrats in France. In Britain, prior to the creation of life peerages in the 1960s, there were generally fewer than 200 members of the House of Lords, and never more than 600.

A consequence was to make Britain a country with unusually high social mobility. That phrase is used nowadays by politicians and commentators to mean that poverty should be no bar to success. Yet this, if you think about it, is only half the picture. In a society with high social mobility, poor children will indeed be able to rise higher than in one where status is determined by birth. Yet one individual’s ascent of the social scale must be matched by another’s decline. We are talking here, not of absolute wealth, which can rise for everyone, but of someone’s status relative to his fellow citizens. If a yeoman farmer becomes an earl, then several people in between will have moved fractionally down the scale.

This downward social mobility was enormously exaggerated by the primogeniture rules. One son would get everything; the rest would be cut adrift. As they moved down the social scale, they would carry with them the habits that they had picked up in childhood: literacy, for example.

There is an intriguing theory, due to the science writer Matt Ridley (coincidentally a British hereditary peer, and thus a beneficiary of the primogeniture system), that such downward social mobility was the proximate cause of Britain’s take-off in the eighteenth century. That take-off was preceded by a quite extraordinary demographic alteration. Put simply, from the beginning of the seventeenth century, the rich began massively to outbreed the poor.

In 2004, two academics at the University of California undertook a major survey of English wills at the turn of the seventeenth century. The results were striking. A man leaving less than £10 in his will would, on average, be survived by two children; a man leaving more than £500 would, on average, be survived by four. These were cruel times: medicine was primitive, hunger not uncommon, and infant mortality high. But, as incomes rose, the wealthier classes were able, in effect, to purchase a higher survival rate for their children. Since only one of these children could inherit the family estate, the rest would have to make their way in the world.

The seventeenth century was a period of what the French call déclassement: most Englishmen and Englishwomen had lower status than their parents. Many who had benefited from a measure of education had to make their way as small businessmen or artisans. In consequence, literacy rates among these groups—at least as measured by the number of people able to sign their names on legal documents—began to soar. In 1600, 35 per cent of Englishmen were able to read. By 1700, the figure was 60 per cent (25 per cent for Englishwomen). The population was primed and ready for the massive economic changes that were just getting under way.

Although primogeniture has now almost entirely died out in Anglosphere societies, its legacy has not. English-speaking societies, on every continent, retain the peculiar concept of inalienable property that had been an almost unique feature of England itself. The idea that the rights of an individual linger even after death—the ultimate defiance of collectivism—had profound political consequences. It facilitated the establishment of trusts and foundations: bodies that were there, in effect, to give force to the wishes of deceased property owners. These institutions, in turn, helped create what we now call civil society: that space between the state and the individual that is filled by unofficial, voluntary, philanthropic endeavour.

Continental visitors to the Anglosphere were constantly struck by the extent to which private foundations took on many of the responsibilities that, in their countries, were discharged by the state, or at least by state-run churches. Endowments led to the creation of schools and hospitals, art galleries and orphanages.

These institutions, in turn, helped create a political culture in which charitable and non-profit activity was no more seen as the government’s responsibility than was commercial activity. Even today I encounter the difference in the European Parliament. In Britain, there is a presumption of legality; across much of the Continent, it is assumed that you need to go to the authorities for a licence before launching any initiative. The first reaction of my fellow European Parliament members, on learning that some new activity has escaped the attention of the state, is often to propose a pan-European regulatory regime. The roots of statism claw their way deep into the cold soil of the Middle Ages.

In most of the world, the legal system was top-down, property was collective and freedom was contingent. In English-speaking societies, common law comes from the people, property is absolute and residual rights are assumed. All else follows. Therein lies the Anglosphere miracle.

Daniel Hannan is a Conservative MEP in the United Kingdom. He visited Australia in February on a speaking tour for Quadrant and the Centre for Independent Studies. His new book, How We Invented Freedom and Why It Matters, is published by Head of Zeus.