1. INTRODUCTION
Property rights have assumed a leading role in explanations of economic and social change. Growth is continually described as having depended on the specification and enforcement of rights that had been vague or contentious, thus removing ancient uncertainties. Sometimes the implication is that industrialisation itself was made possible by the establishment of secure property rights. The argument almost invariably rests on generalisations of English historical experience but is very weak even when applied to England. It is this weakness that the present paper seeks to demonstrate, thereby indicating that no universal claim for secure property as fons et origo of economic growth can be entertained.
Max Weber's view, long present in the background, was rendered by Talcott Parsons as treating the ‘common law, with its well-developed property and contract rights, procedural propriety and consistency, adaptive efficiency, and guarantee of judicial independence’, as ‘a fundamental prerequisite’ of the industrial revolution.Footnote 1 On the face of it, the logic is compelling, to the point of obvious: if their property is insecure people will shy away from investing in it. The proposition is associated in economic history with the work especially of Douglass North and his associates, and in studies of modern growth with that of Hernando de Soto.Footnote 2 Other papers among an expanding literature include those by Thomas Merrill and H. E. Smith in legal studies; in political history by Steven Pincus and James Robinson; in economics by Peter Boettke and Alexander Fink, by Raghuran Rajan and Luigi Zingales and by Gary Libecap and Dean Lueck; and in (economists') economic history by Daron Acemoglu, Simon Johnson and James Robinson, and a long, outstanding series by Dan Bogart and Gary Richardson.Footnote 3
Prominent authors currently bringing the issue to the widest notice are the Oxford historian, Niall Ferguson, in his 2012 Reith Lectures (published the same year as The great degeneration) and the American economists, Acemoglu and Robinson, in their 2012 book, Why nations fail.Footnote 4 Their books are examples of what is, or was, called in courses on historical method the ‘uses of history’ genre, meaning basing policy on historical examples. These authors and others have fixed property rights in the minds of many academics and the educated public as explaining both the industrial revolution in England and the Rise of the West. In some versions the security of property is explicitly traced from the Glorious Revolution of 1688.
The scepticism of Peer Vries about this version of events acknowledges its reach by opposition:
The claim that the Western world, first and foremost Britain after its Glorious Revolution of 1688–1689, had well-described and secured property rights and that this made the essential difference indeed is not very convincing, notwithstanding the fact that scholars as famous as Douglass North, Robert Thomas, Barry Weingast, John Wallis, Daron Acemoglu, Simon Johnson, and James Robinson systematically make it.Footnote 5
Vries adds that most economists ‘regard institutions as the ultimate determinants of modern growth’, supporting this opinion with a list of sources, most of them books. When a proposition establishes itself firmly in books as well as articles we may recognise it as orthodox.
The leitmotiv is baldly expressed by Acemoglu and Robinson as: ‘the reason that Britain is richer than Egypt is because in 1688, Britain (or England, to be exact) had a revolution that transformed the politics and thus the economics of the nation… culminating in the Industrial Revolution.’Footnote 6 The topic exerts considerable rhetorical influence – Acemoglu even asking, ‘Will the Arab Spring mirror England's Glorious Revolution?’Footnote 7 Meanwhile Pankaj Mishra claims that, ‘though essential to the growth of Western capitalist economies, notions of absolute property rights turned millions of communitarian peasants in Asia into cheaply hired hands’.Footnote 8 Even if Mishra reverses the direction, this too exalts the explanatory force of property rights. The mantra of secure property now extends into the realms of policy: the UK government's chief scientific adviser lately opined that Africans need to be free from having their land sold out from under them, ‘as in the seventeenth century’.Footnote 9
Beyond the main disciplines, property rights are discussed in estate management, historical geography and land surveying. Over a long period, sporadic books and articles have also traced the nature of American institutions to their roots in English village organisation.Footnote 10 Contributions to the subject form a continuum, but with breaks since writers first and foremost address other authors in the same discipline, reinforcing mutually referring groups. Within each subject ‘silo’, citations also operate like rolling up a carpet, neglecting earlier work, apparently on grounds of its vintage alone. This would be acceptable only were the work definitively outmoded.
From the economics side, contributions tend to be aggregated, and this, combined with what has been called ‘source domination’, suits tractability without always following closely the chronology or circumstances of local developments.Footnote 11 Few of the contributions cite much primary evidence and some cite none. Theirs is ‘theorists’ history' and historians may wish to see what evidence it can really bear. When we find accounts of medieval agriculture that equate common fields with open fields, or assertions that respect for property rights emerged first in England, the test is not being met.Footnote 12 Criticising these practices is open to the charge of numerous exceptions but, short of writing a literature review, it is possible to refer only to central tendencies.
In the literature there is no single ‘theory’ of property rights; instead, there is a spectrum of opinion. A common feature is an underlying assumption that the role of the state was more significant than local or regional expressions of national tendencies. The main thrusts are, first, that if property rights are well defined by government, efficiency will follow from bargaining among individuals. Unclear or unenforced rights generate inefficiencies. In reality, bargaining does not always take place: the neo-classical view that if there are inefficiencies, rational people will bargain them away, does not accord with the prevalent sluggishness in the property market. We observe great ‘stickiness’, with ancient plots and boundaries unchanged for centuries, even today. If rights were so secure, why were they so infrequently tested in the marketplace? One reason was the non-market motives of landowners.Footnote 13
A related, but somewhat more historical claim is that the set of property rights and their enforcement after 1688 substantially explains economic development. Against this it is possible to argue that other forces were responsible for growth; many possibilities are canvassed in economic history and I shall refer later to the crucial widening of factor and product markets. Conceivably the law of property merely adapted to growth, though legal historians are inclined to emphasise autonomous changes in the law.
Sophisticated work in a series of papers by Bogart and Richardson has gone well beyond the simple nostrum of secure rights.Footnote 14 They emphasise institutional changes that freed up markets, permitted more transactions and conduced to the reallocating of assets. The authors argue that, about 1700, the English parliament established a forum in which rights to land could be reorganised. Accordingly they make claims for an eighteenth-century ‘property rights revolution’ in which rights were rendered malleable while remaining secure. Their studies are a decided advance and include comprehensive evidence about relevant categories of acts of parliament. Some of the work refers to infrastructure, particularly investment in communications, which does not precisely reflect agricultural uses of the land and will not be dealt with here. (Improvement acts, for instance, pertained as much to the development of towns.Footnote 15) With respect to land, enclosure acts and estate acts, the former reorganising holdings and the latter overriding restrictions on landowner behaviour via the strict settlement of estates, are presented as facilitating ‘rational use’.Footnote 16
The present paper does not challenge the research on which this is based or question the application to communications. Instead it addresses some limitations evident in the ‘rights’ literature, even in these important contributions, which may be thought to convey too rosy an impression of the fluidity of the eighteenth-century land market. It shows that changes affecting the land sector were restricted and slow, often awaiting developments during the nineteenth and twentieth centuries and even then not always achieving their ends.Footnote 17 An argument might be entertained that the rigidities in the land market described below signify in themselves that property really was secure, although they were probably occasioned more by aversion to the uncertainties and costs of litigation, as well as the costs of altering the boundaries of fixed parcels and physical features of the landscape.
The focus here will be on the landed sector. Land was obviously connected with other sectors of the economy but its vast scope and intrinsic interest are plain. Until 1840 land was the largest sector of the economy and the growth rate in agriculture was therefore the primary determinant of the national growth rate.Footnote 18 Industrial inputs long remained mainly organic.Footnote 19 If there was no revolution respecting land, given the power of landowners in their own localities and in parliament, there can have been no universal transformation of property rights. Concentrating on land also helps to show that in England the state did not directly dominate local decisions affecting economic development. Finally, if landed property was insecure, ultimately nothing was secure; alternatively, if land was too secure the market could not work well. Either way the sector must be at the centre of debate. To quote the legal scholar, Ron Harris, ‘property rights in land were the major form of assets of the time…’ but ‘did not develop (between 1700–1850) in a way that the property rights school prescribes as encouraging economic growth. Private property in land was not well defined.’ He adds that, ‘land was not fully commodified and was not made freely transferable until the late nineteenth and early twentieth centuries.’Footnote 20
2. ISSUES
One of the main issues relates to how far property rights were already secure, or were made secure by the Glorious Revolution; paradoxically, another issue is whether the effects of security on the liquidity of the land market were genuinely positive. A gap in the case for a greater security of rights after 1688 concerns the standard by which security is to be judged. Hinging so much on the Glorious Revolution without contrasts with previous experience risks observation bias – happenings after 1688 may be exaggeratedly presented as novel. In reality there was only a small upturn in the number of local acts of parliament from that date; the more distinctive increase awaited the mid-eighteenth century.Footnote 21 Rather than sweeping allusions to Stuart arbitrariness, the most telling historical experience was probably that of the years between 1660 and 1688, given that a person 50 years old in 1688 would have been an infant before the first Civil War. The main exposure to government intervention for someone of that age would have been when Interregnum Parliaments sequestered royalist estates; under Charles II and James II the greater contentions in politics were religious in nature. All told, too heavy an emphasis is placed on the ruler's potential for expropriating his subjects and whether his commitment to respect their property was credible. Under the common law, respect for private property was supposedly directed against possible encroachments by the Crown.Footnote 22 This anxiety seems excessive compared with challenges by one's neighbours or local landowners.
Second, the assumption that civil order imposed by the state was and is essential for growth is open to question. Alfred Russel Wallace and Frederick Cloud disputed it from Asian experience and it is questioned today for Africa.Footnote 23 Social contract theorists from Hobbes to North assume the centrality of the state, whereas growth may emerge more reliably from bottom-up developments. The professional tendency of economists to seek simple theorems has recently been recognised as unhelpful in development economics.Footnote 24
Third, the literature does not contrast the situation in England with that of foreign countries in any detail.Footnote 25 The common law is usually held to be superior to European civil law, because it is more adaptable.Footnote 26 It is more fashionable to consider differences between England and China but, since China's industrialisation came so late in time, it is not in that respect the most relevant control. If the proposition is that secure property rights are indispensable for growth, it has to be noted that the Qing economy expanded to cope with enormous population growth – implying millions of business transactions – without independent law. For growth leading more narrowly to industrialisation, it might be better to consider early follower countries like Belgium or some of the German states. Were their property rights secure earlier – in which case why were they followers? – or did they revolutionise their institutions in order to catch up with England's industrialisation?
Fourth, a link has not been established between supposedly greater security of property under William III and industrialisation a century later. Such a connection could have been only diffuse and clearly took a long time to act. At best it was an enabling condition, the force of which might be revealed by its absence, taking us back to the need to demonstrate greater insecurity and a consequent curbing of investment before 1688.
There are further reasons why emphasising 1688 may mislead. One is that no single event in a long sequence is likely to explain distant outcomes. If any single change is to be chosen, the Act of Settlement, 1701, has perhaps as much of a claim as 1688, since (although primarily concerned with succession to the throne) it granted the judges effective independence. The aim may have been to prevent royal meddling with judicial decisions but it frustrated parliamentary meddling too. Henceforth the judiciary was able to follow the logic of the law, free from political interference. But this was no guarantee of support for free markets, which the judges did not reliably espouse.Footnote 27 In 1800 they were still maintaining sanctions on price manipulators and regulating the grain trade to preserve social order. The legal scholar Joshua Getzler points out that legal institutions and forms of property do not neatly track social and economic change.Footnote 28
A strong objection to the idea of revolutionary consequences following 1688 is that old systems of rights were not suddenly overturned. There was only prolonged institutional decay. Regulations made in 1700 were not repealed until the early or mid-nineteenth century and resisted amendment then.Footnote 29 The changes followed rather than preceded a long phase of growth, making it hard to conclude that greater security of property had been formative. As J. H. Baker observes, strict settlement, restricting the inheritor of an estate to living off the rents rather than mortgaging the capital value, was perfected in the seventeenth century and lasted for 300 years. It ‘shackled much of the land in England to the same families until Victorian times and after. The economic undesirability of keeping so much land out of circulation was keenly felt in the nineteenth century.’Footnote 30 Harris adds that, ‘as a result of the restrictions on transactions, lands were often not put to the most valuable use’.Footnote 31
Landowners were caught between wishing to maintain the integrity of their estates and keep them in the family, and hankering to break the entail for purposes of consumption and to take up investment opportunities. Escaping strict settlement does not seem to have guaranteed that it would not be re-imposed nor ensured that the property freed would actually be used productively. Although it is possible to tabulate estate acts intended to lift entail, their proportionate importance remains hard to determine; Bogart and Richardson themselves cite authorities who report that at the peak something within the astonishingly wide bracket of one-quarter to three-quarters of land was subject to strict settlement.Footnote 32 Nor is it easy to assess the effects on agriculture of lifting the entail via estate acts without case studies comparing subsequent and prior levels of investment on landed properties. Much estate expenditure was on amenities, for instance country houses and parks, the number of which doubled in the Home Counties between 1760 and 1820, while ‘Capability’ Brown alone created about 150 ornamental lakes.Footnote 33
Too much weight may be placed on changes in formal law, without demonstrating the extent to which the courts were resorted to and the laws enforced. In Cheshire, transactions and disputes – over township boundaries, enclosures, fishing rights and so forth – long continued to be settled satisfactorily by independent lay assessors.Footnote 34 The initial post-Restoration economic expansion in the provinces may have taken place with limited formal legal help. Some acts of parliament were permissive rather than coercive; in other words they were inputs and do not necessarily denote outputs. Merely counting them or even counting clauses may tell us only about aspirations. Allowance must also be made for the number of failed acts. Harris concludes that it is essential to know what the courts actually decided in particular cases, something that has rarely been researched.Footnote 35 This matters, especially as the appellate or appeal courts could make legal rules independently of parliament. After charting the growth of legislation, Julian Hoppit warns that local authorities had considerable discretion with respect to enforcement. He quotes Daniel Defoe in 1704 to the effect that a multitude of statutes lay dormant and had been ‘superseded by custom’ (quite the opposite of modern expectations), and notes a ‘spectacular low’ in activity in the courts of common law in 1750.Footnote 36
Decisions about land management issues were recorded, when recorded at all, in manorial court records and were mostly judgements without much supporting argument. These records, Gillian Tindall observes, were minutes for people who ‘had the unlettered habit of keeping all information in their heads anyhow’ and knew what one another meant.Footnote 37 Often they described boundaries by reference to relatively transient features like trees.Footnote 38 The uncertainty of boundaries, despite their importance for demarcating agricultural assets and settling responsibilities for tithes and taxes, led to interminable disputes, hence the exertions of fixing ‘bounder stones’ and ‘beating the bounds’ on Rogation Sunday.Footnote 39
Vestiges of archaic practices – beating the bounds, open fields, lot meads, courts leet – survive today. They may seem merely of antiquarian interest but the significance is in the gradualness of their decay.Footnote 40 Hundred courts were abolished in the 1860s but some of their legal role lasted until 1886. The court leet was one of the two forms of manorial court by which local affairs were regulated. It promulgated what would now be termed by-laws, dealing with disputes over encroachments on the rights of the public or lords of manors and the preservation of landmarks. The matters concerned, though individually small, formed the base of the rural economy. Many courts leet continued to be instruments of civil administration before justices of the peace superseded them in the mid-nineteenth century. As another example, take soke mills, to which the inhabitants of manors were required to bring their grain for milling.Footnote 41 This requirement weakened with lessening manorial control in the seventeenth century but did not fall away steeply in some counties until about 1750. An Act to regulate mills in 1798 specifically preserved tolls charged by soke mills and in places they continued into Victorian times.
3. ILLIQUIDITY IN THE LAND MARKET
Adam Smith declared that in Europe (and we may say above all in England), primogeniture and perpetuities hindered the division of great estates and impeded the multiplication of small, more industrious proprietors. ‘The same regulations, besides, keep so much land out of the market that there are always more capitals to buy than there is land to sell…’.Footnote 42 Since a farmer's eldest son was usually the one who inherited, fathers found it difficult to establish their younger sons on farms, commonly apprenticing them to other trades or obliging them to seek work as labourers. Nor did copyhold land come onto the market readily.Footnote 43 Admittedly, copyholds may rarely have run for the original three lives: Michael Havinden found in Devon that the leases tended to be surrendered or renegotiated about every 10 years. However, the very facility of paying a fee to add new lives tended to keep holdings within the same family.Footnote 44
The great landowners expanded their holdings year after year, not only through parliamentary enclosure, but also by buying any small parcel whose owner could be persuaded to sell. To that extent there was an active market, but it was a one-way street and eventually the bulk of farmers became mere tenants. The return of owners of land (1873), the so-called New Domesday, a census of landownership, showed that by then a mere 10,911 people owned half of England, in estates of over 1,000 acres; reworked, the figures show that four-fifths of the land belonged to just 7,000 people, a degree of inequality only Austria–Hungary or Romania could match.Footnote 45
England's landscape is termed by historical geographers and other topographers a palimpsest, denoting superimposed layers of occupation and use. ‘Constrained palimpsest’ would be better, since, although developments are superimposed, the process has often preserved the parcels of land in shapes deriving from ancient agrarian uses. They were easier to amalgamate than alter and in that sense security was a double-edged sword. Layouts were so entrenched that rearranging them into the ring-fenced farms favoured in the eighteenth century was costly, while before the advent of earth-moving machinery altering man-made physical features was infinitely expensive. Many hedge-banks in Devon are effectively immovable to this day. In east Suffolk and other areas neither parliamentary enclosure nor the removal of hedges came soon enough to ease the use of farm machinery.Footnote 46 An American study compares irregular systems of land allocation with grid patterns and shows that in the latter the market is more liquid, i.e. land transactions are cheaper and more frequent.Footnote 47
The drama surrounding the parliamentary enclosure movement readily leads to overestimating its scope: Bogart and Richardson point out that in 1700 only one-quarter of arable land lay in open-field villages.Footnote 48 In these, parliamentary enclosure came late in time – efforts at promoting a General Enclosure Act failed until 1801 – and occurred mainly in the central belt of the country, even there applying to only a proportion of parishes.Footnote 49 The process scarcely affected the great east and west zones of old, piecemeal enclosure and assarting, where fields continue small and irregular, and left, too, over a million acres of common and open land remaining in modern England. In England development is still obliged to adapt to earlier forms: there is no regular grid but countless inconvenient parcels. The influence of former property bounds is commonly patent on the ground and landscape historians can recover much of the half-concealed residue. The shapes of fields outlast buildings and even footpaths; they are the parcels that continue to be bought, sold and bequeathed and the sinuous shapes of former open-field strips persist like fossils in the layout of urban streets.Footnote 50
Even the prospect of altering the layout of towns after they had been levelled by large settlement fires was often frustrated by the rights of existing occupiers. Old farming practices failed entirely to halt but definitely cramped the growth of industrial cities. It is tempting to suggest that the closer presence to towns of large landowners in southern than in northern England may have had something to do with the greater urbanisation of the north, yet there were plenty of impediments in the north too, and from groups of small proprietors. In Nottingham, the ‘Cowocracy’ clung to the right to have its cattle graze the stubbles on encircling fields after harvest, until the town – obliged to build upwards and densely – became a slum reputedly second in the British Empire only to Bombay.Footnote 51 Reforms failed in 1786, 1792 and 1795 because the corporation was unsure of its legal power to raise the money. An attempt to widen the streets failed in 1808–1809 and widening did not start until 1863. One street was left too narrow after repairs in 1744, a problem solved only by making it one-way – in 1924.
Around the western periphery of Coventry, the retention of the Lammas lands (not enclosed until 1860) and the Michaelmas lands (1875) ‘placed a stranglehold on expansion’.Footnote 52 (Lammas lands were opened for the grazing of all owners' livestock only on 1st August, after the hay-making, and Michaelmas lands only on 29th September, after the harvest.) To the south-east lay an entailed estate that could not be developed for building. Instead, slums were crowded inside the limits. Leeds was built on little fields that had been the tenter garths of textile producers. They came on the market singly and were developed only haphazardly. In 1852 the Leeds Mercury commented that the street plan ‘looked as if the town had used an earthquake for an architect’.Footnote 53 Everywhere regular town plans were feasible only when land for development belonged to a single owner, but, since estates were not necessarily compact, regularity was not always possible even under one owner: when an estate in Leeds was freed from entail in 1755 its holdings remained a veritable scatter of fields.
There can hardly have been a general revolution of rights when neither private nor municipal business could extricate itself fully from the grip of ancient property bounds. Time and again, the problems resisted solution well into Victoria's reign and consequences for layout and legal costs persist today. Furthermore, transaction costs are not the whole story, since when a lot is irregularly shaped or awkwardly positioned even a new owner finds operating costs perpetually high.
It would be possible to perceive these nearly static features in the landscape as indicating that rights were secure all along. Equally, they may demonstrate that the expected costs of alterations persuaded people not to reorganise their holdings or expose them to the risks of challenge, or not to buy properties at risk; this is more consistent with the evidence of ceaseless disputes.Footnote 54 Insecurity introduced an element of paralysis. When both rights and parcels were still emerging from the medieval jigsaw puzzle, formally recorded rights to land did not become secure in an absolute sense; they became contestable. The law may have offered an umbrella but lawyers charged high fees for holding it over one's head. Access to the law was too expensive for large swathes of the population to chance having to defend their positions. There is no need to cite the ruinous instances of prolonged contests in the courts, à la Dickens, to show that litigation was no safe or affordable remedy.
4. DISPUTES
The prevalence of disputes over enclosure and tithes reveals the lack of lubrication in the system. Parliamentary enclosure, when it came, represented a significant development, though, as we have seen, one easy to exaggerate. It is also easy to overlook the length of time after 1688 before governments paid systematic attention to enclosure. Until 1774 they ‘took not the least notice of the agrarian revolution then in progress’.Footnote 55 Only then were general principles formulated concerning the terms on which enclosure might take place. Standing orders for that year reveal how gross the abuses were: some proprietors not informed; no notice given; extortion by the commissioners; and draft bills containing neither the names of the commissioners nor details of the compensation proposed to be allotted to the lord of the manor and the owner of the tithes.
Despite every effort by social historians the history of resistance to enclosure is a submerged one, although the doyen of enclosure historians, W. E. Tate, described enclosure records as an invaluable source of evidence on disputed topics.Footnote 56 Some episodes of violent resistance are well known, such as the riots at Otmoor and the unrest in the Forest of Dean, but although a scatter of others can be found they seem few compared with the total number of enclosures. It is plain to see why: the larger landowners held almost all the cards, while commoners often lacked written titles to the land and depended on their rich neighbours for employment. Accordingly, active resistance was rare, while passive discontent, as the saying is, ‘butters no parsnips’.
Tate found only 11 counter-petitions against 144 Nottinghamshire enclosures from 1743 onwards; in 3, the petitioners, who were usually persons of substance, succeeded in getting the enclosure deferred for up to 39 years.Footnote 57 As Lord Ernle long ago observed, parliamentary enclosure procedures were much abused, public meetings were rare, the principal owners were secretive, and before the reforms of 1774 the bulk of the inhabitants was kept in the dark.Footnote 58 The costs were heavy but Ernle cited a plea in mitigation on behalf of the livelihood of attorneys! The notion that losers were compensated in a substantial way is quite implausible.
Conflict was most visible when taking place among members of the elite. Property owners were capable of long delaying enclosures. In one Buckinghamshire parish, the Verneys succeeded in deferring enclosure for 120 years and in 2 others for 70 years.Footnote 59 In the first case they did this by buying a mere one-and-a-half yardlands and a cow commons, explicitly described as ‘enough to prevent an enclosure’. Part of their stated motive was that great animator of the landed classes, a desire for unimpeded blood sports. The activities of the Verneys were examples of the ‘tragedy of the anti-commons’ which explains the under-use of resources through group exclusion, although a single owner with a large enough share of the land could produce this result.Footnote 60 Nicholas Blundell, squire of Little Crosby, Lancashire, faced one inhabitant in 1714 who ‘would not comply with what we all thought reasonable’ and would not be reconciled.Footnote 61 At Church Oakley, Hampshire, enclosure was delayed from 1742 to 1773 because at the former date ‘all consent to enclosure, except one person who in crossness sticks out…’.Footnote 62 However, at Itchen Stoke, Hampshire, in 1788 coercion seems to have secured an enclosure ‘by agreement’: two reluctant farmers were told that if they held out and made a parliamentary bill necessary, ‘whether you consent or not you must pay your share in the expense’.Footnote 63 Direct testimony on such bullying is understandably hard to find.
Although the ability of many single landholders to block enclosure was removed by the procedures of parliamentary acts, which concentrated power on those who owned two-thirds or more of the acreage in a parish, the levying of tithes continued to suppress incentives for extending cultivation. Between 1793 and 1814 the Board of Agriculture's county reporters were almost unanimous in finding tithes a source of agricultural difficulties. Tate said, ‘one may well share Dr Venn's [author of Foundations of Agricultural Economics] astonishment that agriculture could be carried on at all under such incessant friction as took place between the clergy and the farmers.’Footnote 64
As Tate further remarked, ‘it is impossible in the space at our disposal to enter fully into the not very edifying history of tithes in England.’Footnote 65 A parliamentary enactment after the Dissolution had stipulated that former monastic land, exempt as such from tithe, was to continue exempt under lay ownership. According to O. S. B. Hockey, this ‘sowed the seed of endless litigation as to what was titheable and what was not’.Footnote 66 Janet Stevenson stated that at some time or other ill-feeling or acrimonious disputes arose in almost every Wiltshire parish.Footnote 67 Enforcement costs were notoriously high. Farmers ganged up on new incumbents in order to reduce the tithe rate and not every clergyman had the resources to establish a winning case ‘in the face of vague customs and hearsay half remembered’. Nevertheless, tithe owners did fight back and Stevenson noted that the number of such suits more than doubled in Wiltshire between 1625–1659 and 1660–1685. All four general enclosure bills between 1795 and 1800 failed to pass because of clerical opposition to their tithe proposals. In the early 1830s three attempts to settle the issue failed until success came with the fourth. Enormous gains followed the Tithe Commutation Act, but that was not until 1836.Footnote 68
Until Victorian times there were two parallel systems of justice: secular courts and church courts. The extensive records of the ecclesiastical courts, which enforced the payment of tithes, reveal that the complications of tithing were as unceasing as the disputes. At Yarnton, Oxfordshire, it was even uncertain which tithes were payable in that parish as opposed to next door in Begbroke, and commutation was not agreed until 1845.Footnote 69 Cheltenham's physical expansion was held back by the presence of church lands. The surveyor, John Norden, had pointed out that the common pasture was enclosed by consent of the lord of the manor and freeholders in 1617 – yet the substantial, scattered rectory lands and the unwillingness of their owner to countenance an alteration in the way tithes were paid held up any general reorganisation of the arable strips for another two centuries.Footnote 70 The ancient system of tithes continued after Cheltenham's enclosure in 1801. They were recorded separately from title to the land, an anomaly removed only in 1849 and 1850 under the provisions of the 1836 Act. That solution was therefore not arrived at for almost 150 years after 1688.
5. LAND REGISTRATION
Uncertainty in the English land market was intensified by the absence of a land registry. One had been established in Holland by a plakkaat (edict) of Charles V in 1529, requiring sales of land, houses and tithes to be registered; as a result mortgages could be arranged quickly.Footnote 71 This system was regularised under Napoleonic rule. Nor was Holland the only predecessor; several other states completed the needed arduous surveys of their land.Footnote 72 Sweden and France had been active in this regard.Footnote 73 In Prussia, tax was levied on a valuation of the land surveyed, which was updated at intervals, and something similar took place in Silesia, Bohemia, the duchy of Milan, Savoy and Piedmont.
England was aware of its lack and perpetually lamented the embarrassment. Repeated efforts to amend the situation included Henry VIII's unavailing attempt to persuade parliament to agree to the registering of conveyances, Lord Burghley's proposal in 1590 for using the parish registers as evidence of landed titles, and requests in the early seventeenth century to record the registers in order to use them as evidence in cases of inheritance and the alienation of land.Footnote 74 Crown lands were surveyed before Parliament sold them in 1649–1651, employing the most detailed surveys since Domesday; the same surveys were used after the Restoration but the procedure was never generalised. A discarded bill for census registration in 1753 spoke of the desirability of using the census as evidence in cases of inheritance and land transfer. Lord George Rose's Act of 1812 explicitly sought to use parish registers in respect of claims to real estate, while the 1830 Commission on the Law of Real Property deplored ‘two centuries of attempts to suppress the inconvenience, expense, and potential for fraud associated with transferring ownership of land by private conveyance (by reference to private deeds with no public verification or deposit)’.
Similarly the Report from the Select Committee on Parochial Registration, 1833, lamented the fact that ‘the value of property is diminished by… insecurity in which it is so often held and acquired’. Six districts had adopted registries between 1663 and 1735 but these proved useless, especially where the same surnames kept recurring. And every time proposals were made to register land centrally, ‘the invention [inventiveness] of lawyers was at length too much for the precaution of Parliament’.Footnote 75 Any suggestion that property was especially secure in England is implausible, since unlike some continental countries neither the state nor individuals could be wholly certain who owned which tracts of land.
The legal profession frustrated attempts at regularisation. Efforts to establish a registry were talked out by the Judiciary in 1651 and 1656, despite appeals to Dutch precedent and support from Cromwell. There was too much at stake by way of fees that could be charged for sorting out the complexities.Footnote 76 Sir William Dugdale was paid handsomely for employing his antiquarian skills to strengthen the uncertain legal position of the Duke of Bedford's Company of Adventurers with respect to the Great Levels. The outcome was Dugdale's History of imbanking and drayning (1662). One of his patrons was the Leicester antiquarian, William Burton, who had acted as mediator when Dugdale had become involved in an enclosure dispute concerning his manor of Blythe, near Shustoke, Warwickshire.
However, lawyers were taking over from antiquarians. No documentation was required for the transfer of land until the Statute of Frauds in 1677, but whereas the lawyers did not object to documentation – far from it, though they wanted it stylised – their resistance to land registration remained implacable. The Pastons, landowners in fifteenth-century Norfolk, had been obliged to deal with long-trailing claims over property that had already been bought or sold; they attempted to recover land via partly politicised, partly professional law, and by overt force.Footnote 77 There was no formal registration of title and antiquated genealogies of ownership had to suffice far later in time, certainly to the mid-eighteenth century.Footnote 78 ‘Establishing rights in privately held land, in the absence of a formal system of registration of title, was a cumbersome matter, both in terms of legal procedure and the evidence required.’Footnote 79
Acts in the nineteenth century failed to overcome the absence of comprehensive registration. Whereas the Torrens Act established compulsory registration in the Australian and New Zealand colonies, at home the Land Registry Act of 1862 was voluntary and a dead letter. In 1905, A. V. Dicey declared outright that despite more than 100 enactments between 1830 and 1900 there had been no revolution.Footnote 80 The ceremonious procedure of handing over turf and twig in the presence of witnesses (Livery of Seisin) was not abolished until 1845 and supposedly the system of transfer by lease and release was abolished in 1925, although the former survives at Malmesbury, Wiltshire.Footnote 81
6. WHOSE RIGHTS?
Indeterminacy is only half-concealed by admissions that property rights were already secure before 1688 – or became so soon afterwards. It depends how property rights and security are defined and whose rights they were. There was often a zero-sum element in which one person's right was another's burden, gains were matched by losses, and rent-seeking was pursued. Both the powerful and the weak could be guaranteed to view with suspicion alterations to rights and sources of income. The difference is that the former were able to defend their interests or obtain compensation for giving way. The poor were seldom capable of paying the fees demanded for putting their case. Economists seem to imply that, whatever it meant for equity, this imbalance between classes of occupiers of land did not matter on efficiency grounds.Footnote 82 But this is to make a prior judgement about the relative productivity of small farms.
Among insecure categories of rights were, first, those of commoners who did not possess written title. There is disagreement over what fraction of the poor had common rights, yet whatever the proportion, a large number had undoubtedly exercised customary rights.Footnote 83 As Schlicht points out, these rights were not originally divisible, alienable or transferable, which puts them outside a property-rights approach based on the assumption that rational individuals will seek the optimal distribution via market exchanges.Footnote 84 Parliamentary enclosures swept away the claims, leaving only tiny grace-and-favour lots for the poor to gather fuel. It is also obvious that incomes were depressed by excluding the public from large areas (especially for game rearing), hence restricting the gathering of the bounty of nature. As to enclosures by agreement, it is unclear how far they dispossessed people since it is unknown how many cases there were like those at Ampney Crucis and Farmington, both in Gloucestershire. In these parishes the lord of the manor enclosed more than had been agreed and set the commoners at defiance.Footnote 85
Bogart and Richardson claim that enclosure acts exposed land and resources to market forces, the implicit assumption being that this must have raised productivity.Footnote 86 It does not necessarily follow. Acquiring more land while continuing to farm with existing methods would still have been a gain. An enclosure act, Bogart and Richardson declare, began with a series of public meetings where residents of the village debated the issue, after which ‘four fifths’ could sign that they wanted an enclosure. This was, they declare, an accessible, affordable and predictable system. It was not. The four-fifths mentioned refer to acreage owned, not votes among the inhabitants. Petitions were almost always drafted with the support of the lord of the manor, and in the rare cases where this was not forthcoming, seldom succeeded.Footnote 87 Enclosure acts were private acts and the members of parliament promoting them were mostly friends and relations of the petitioners. In very few cases did dissentient smallholders avail themselves of the luxury of briefing counsel. They could neither have afforded nor dared to do so. Wealth, status and power were grotesquely unequal and deference was required if one wanted to keep one's job or hoped to get work on the new farms. The predictable result was that those whose rights were merely customary lost out. In the assault on common agricultural land, recreational plots were often collateral damage. Places where villagers played cricket were brusquely re-designated as private. Why should such rights have been committed to writing when those involved knew what they were?Footnote 88
Second, consider public rights. These too were insecure in the sense that they were open to judicial seizure by the rich and powerful. Road capture is an instance, overlooked in the literature but very frequent. The map of England is spattered with thousands of road diversions which are plain on the ground, nothing to do with turnpikes and occurring anywhere a landowner satisfied his eighteenth-century preference for amenity and privacy by having the public road bent around the edge of his estate.Footnote 89 It took only two magistrates to agree that such a diversion was in the public interest when patently it was not. Other inhabitants were obliged to travel further, raising their costs.
Road capture did not suffer from the ambiguity of enclosure with respect to the alternatives of raising output or bettering amenity. S. R. Epstein makes the crucial point about inducements to improve – they did not guarantee a response: ‘the commercialisation model describes growth, but does not explain it.’Footnote 90 A landowner might make money by improving the farming of enclosed land but was under no obligation to do so and at the least might delay the necessary investment. However, road capture was all about amenity. It contradicts the assumption of contract theory that the privatising of assets will bring resources into the hands of the individuals most likely to use them productively. Road capture destroyed productivity, no doubt in a minor way in most cases, but with considerable effect overall.
Just as the network of routes made intensive use of the landscape, so the land itself was exploited for the informal harvest of its resources. This is no quaint point to be dismissed in favour of the big battalions or convenient sets of administrative statistics – to think so displays unfamiliarity with the workings of rural society. When the nursery rhyme mentions the sheep in the meadow, the cows in the corn, it is not being ‘folksy’. The rhyme acknowledges husbandry disasters arising from neglectful wardening; livestock simply could not be permitted to wander.Footnote 91 As W. G. Hoskins wrote, ‘our ancestors in the open fields had far more practical sense than they are often credited with by urban-minded historians.’Footnote 92 The sum total of local disputes over land management adjudicated by manor courts and the courts leet was sizeable and so was the aggregate of minor rights of access for collecting items employed in home consumption and for household purposes. Even middle-class consumption long involved the exploitation of biological resources that can be regarded as trivial only from a position of present-day comfort. Examples have been painstakingly amassed by David Woodward.Footnote 93 For the poor the abridgement of rights to gather and harvest such items, especially fuel, was a serious matter.
Third, the rights of certain social categories were abridged. Disabilities were placed on Roman Catholics, minors could not consent to enclosure, and a married woman could make no will because the practice of ‘couverture’ meant that in some wise her property became her husband's.Footnote 94 Couverture was said to have been unique in Europe, therefore rendering one aspect of English property rights distinctive, but not in an obviously productive fashion! In practice it was less than universally employed and reciprocal burdens did fall on the husband. He could not sell his wife's land without her ‘well expressed’ consent, which gave rise to one of the many uncertainties in law when men sold land to one another.
7. CONCLUSIONS
Max Weber saw England as possessing an irrational property system that was an improbable support for the enclosure movement or industrialisation. Property rights were not specified in a way conducive to growth.Footnote 95 Despite this, as Ron Harris remarked, offsetting expedients in the legal system did enable the economy to work; ‘something in the mix did the trick.’Footnote 96 Whatever the something was, it was scarcely a wholesale revolution in property rights.
‘How wonderful that we have met with a paradox. Now we have some hope of making progress,’ wrote Niels Bohr in a different context.Footnote 97 Our paradox is the fact of economic development and industrialisation in eighteenth-century England without a prior or concurrent property rights revolution. Some institutional progress was made but not enough to account for national growth. We should recognise that in the English case – the type specimen of the rights hypothesis – the slow growth of the market within the most general rule of law was what overwhelmed the restrictiveness of an economy only sluggishly detaching itself from ancient norms.Footnote 98
Detachment was a prolonged affair. Even before the sixteenth century was out, changes in land use between arable and pasture were starting to be tolerated, permitting agriculturists to trade on their comparative advantage.Footnote 99 In the next century, improvements in communications and transport were beginning to knit local markets together, enabling larger towns and industries to outcompete smaller ones, and at length promoting the coalescence of a national market.Footnote 100 This was a victory for economies of scale in production, based on small advantages disregarded by accounts of later factory industrialisation. The role of property rights does not seem fundamental.
Encouraging developing countries to respect property rights may well be inherently desirable but we cannot point to England as a model. English growth and industrialisation did not originate in nor were they accompanied by comprehensive reform of the market for landed property. As His Majesty's Land Registrar wrote in 1913:
During the last thirteen years over 150,000 conveyances have passed through the Land Registry and it is our experience that about one in every four descriptions necessitates a visit to the ground to clear up some question of doubt… properties are described by names long disused, by occupiers long departed; wrong dimensions are inserted, wrong positions, wrong boundaries; half a house is conveyed as if it were the whole, six houses as if they were five, north appears for south, long for short, straight for crooked, [and] a house on one side of a street is conveyed by mistake for one on the other.Footnote 101
Arguments that secure property rights, tout court, explained economic growth are unsound because security was not an unambiguous good, especially in the presence of enormous wealth disparities. The alternative, that the eighteenth century saw a wholesale freeing of rights in landed property, is exaggerated in view of the innumerable ways in which freedom continued to be abridged. Yet, although the defects of the property market may have retarded change, it is a tribute to other strengths of the economy that growth was not stifled. ‘Institutions matter,’ writes one of the most astute modern commentators, ‘but perhaps histories matter even more.’Footnote 102
ACKNOWLEDGEMENTS
I am grateful for comments by Alan Albery, John Anderson, Tom Arkell, Joe Bryant, Bob Dodgshon, Charles Foster, Michael James, Wolfgang Kasper, Frank Milne, Joel Mokyr, Ekkehart Schlicht, Albion Urdank, Roland Vaubel, Minoru Yasumoto, and members of a seminar at the University of Buckingham. None is responsible for the use I have made of his remarks.
