The American Spectator

The connection between political liberty and the individual ownership of property is one of the great certitudes of human society. It is carved in granite, at least in the English language, where the words “freedom” and “freehold” come from the same root and have impinged on and interrelated with each other through many centuries, from the most distant origins of Anglo-Saxon communities in the Dark Ages.

The propensity of private property to promote freedom only functions when ownership rights are enforced by the rule of law. In Greek societies, and in Rome after the overthrow of the Republic, private rights were subordinate to the public power, so representative institutions withered or never developed at all. It was a different story among the Germanic tribes, which began to settle in the British Isles from the early 5th century. Among them—as we can surmise, though we have no direct written evidence— rudimentary forms of freehold were widespread, and leaders tended to take important decisions after consulting widely with freeholding followers. This key conjunction becomes more specific when early Anglo-Saxon England emerges in the documents. The laws of Aethelbert of Kent in the early 7th century reveal the existence of large numbers of free peasants with a Wergild or death value of 100 golden shillings each. They are likewise to be found, in even larger numbers, though with a much smaller Wergild, in the laws of Ine, King of Wessex, at the end of the century. At the same time there are indications that freeholders met with local kings in the assembly known as the witan (“wise man,” the title bestowed on its members) to make or amend laws. As Anglo-Saxon England was united, from King Alfred’s day onwards, the great Witena gemot (assembly of wise men) developed as the consultative council of the country, distant ancestor of Parliament and of the American House and Senate. The Norman “Conquest,” as it came to be known, and the arrival of a form of feudalism did nothing fundamental to change this connection between freeholding and constitutional government. Slavery had virtually disappeared in Anglo-Saxon England, and the Normans, who were themselves rooted in the relatively free societies of Scandinavia, did nothing to reimpose it, though various forms of unfree tenure persisted for many centuries. King William I’s barons gave him, in theory, knight-service in return for their lands, which were not, therefore, strictly speaking freehold. But knight-service was gradually commuted to money-payments, and once land was bought and sold on the market, however primitive, true freehold developed. The king’s great barons met three times a year, at Christmas, Easter, and Whitsuntide, in the Great Council, to give advice and consent, this taking over the function of the Witena gemot. At a lower level freeholders were summoned to serve on juries, to judge facts and give evidence, by which process law was enforced.

In 1068 William embarked on the Domesday survey, determined at the Christmas Great Council, when the king “held very deep speech with his council about [England]—how it was peopled and with what sort of men.” The survey itself was carried out by expert commissioners, summoning local juries of freemen to provide the sworn facts, and was conducted and recorded throughout in a highly responsible manner, indicated that the rule of law was taken very seriously indeed. This is the first great recorded political and economic event in English history, and shows the overwhelming importance of individual landed property in society and government. The book itself—I have held it in my hands and it is remarkably light, being written on parchment, not paper—was the first key State Paper in English history, and is still the central pride and joy of the Public Records Office in London.

The king continued to rule in conjunction with his great landed freeholders for two centuries. When the central power was weak, as under the disputed reign of Stephen, 1130-54, anarchy ensued, teaching the lesson that individual ownership must be balanced by crown authority to ensure that the rule of law would be upheld in courts capable of guaranteeing owners’ property rights. The reaction to anarchy, under Henry II, saw the introduction of a formidable series of constitutional laws, which the king was careful to enact at a series of Great Councils, where the freehold landed interest was fully represented.

When royal tyranny, as opposed to baronial anarchy, threatened to upset the national consensus and the rule of law, as under Henry II’s son, King John, the property-owning nation, which of course included the church and the emerging towns, was forced to come together to bring him to reason. This was the story behind the Magna Carta (1215), the second great event in the evolution of the English form of sovereignty.

It was written in the form of a statute, which the king was obliged to sign, and all his leading men of property did likewise. It guaranteed every person’s rights, according to his condition, and promised that everyone should be judged by his equals. It became the first of the Statutes of the Realm, which continue to this day, and is also therefore the prototype for the enactments of Congress.

From the Magna Carta onwards, there was a tendency to enlarge Great Councils into parliaments, in which towns as well as the landed interests were represented. This sprang from the need to raise money to keep the king’s government going, for the king could no longer “live from his own” (i.e., from the Crown estates), so special taxes were imposed, and that could be done only with the consent of those taxed, i.e., the owners of property, whether real (landed) or mercantile and financial. The major freehold landowners attended parliament by individual writ of summons, but they were joined by “Knights of the Shires,” two from each county, elected by minor landowners with property not less in value than 40 shillings a year. These “forty-shilling freeholders” remained the basic constitutional unit in the country till the Great Reform Bill of 1832, and the 80 or so County Members carried more weight in Parliament than the burgesses from the towns. The latter were chosen by a variety of franchises, but all were based on individual ownership of property, and inevitably MPs from the richest cities—Bristol, Norwich, and above all London—carried more authority.

Parliament as a whole constituted a representative assembly of property ownership of all kinds, in which mere head-counting of persons only very slowly became of significance, and was not formally acknowledged until 1832. Nations that adopted democratic institutions in the 20th century proceeded immediately to one-person-one-vote methods of election, rather than going through the intermediate stage—which in England lasted half a millennium— in which property ownership was the criterion for the right to be represented in Parliament. Perhaps this is one reason why such democracies have proved so fragile. For without property of their own, voters have no fixed interest in conserving the property of others, and therefore no reliable commitment to political stability.

The existence, in England, of a parliament based on private property ownership, and forming a tripod of power—king, lords, and commons, upon which sovereignty rested—was in contrast to most European countries, and explains why the English-speaking peoples developed differently, especially in two respects. First, it enabled England to preserve the rule of law more surely. Even during the reign of Henry VIII (1509-47), England’s nearest approach, in the whole of her history, to a statist tyranny, the king was always careful to proceed through Parliament, both in enacting laws which repudiated the papacy and Catholicism, and in executing his wives, like Anne Boleyn and Catherine Howard, and ministers, such as Sir Thomas More and Thomas Cromwell. Parliament might be subservient but it still functioned, and represented the consensus of property owners, so the rule of law continued to be upheld.

The question remained to be settled, however: Was the king subject to the rule of law, as much as anyone else? If the answer was “yes,” then property was safe, protected by the courts. If “no,” then it was insecure. In this respect the Stuart kings were quite clear that they were above the law. As Charles I put it:

“A King and a Subject are plain different things.” In effect he claimed he was not bound by the Magna Carta but could impose taxation according to his judgment of national need. This was the real cause of the Civil War of the 1640s, and the issue was posed even before it broke out, when Charles exacted Ship Money (to pay for the navy) by his own decree.

The opposition to this unauthorized tax was personified in John Hampden (1594-1643), a Buckinghamshire landowner and member of Parliament, whose family had been squires of the village of Hampden and its neighborhood since Anglo-Saxon times. He was a man of  considerable wealth, and this is important for it enabled him to take on all the power of the Crown and its lawyers, in a case that was fought through the courts high and low from 1635 to 1638. As Clarendon, an eyewitness, wrote in his great History of the Rebellion, his refusal to pay the tax and his fight in the courts made him a symbolic national figure, “every man inquiring who and what he was that durst at his own charge support the liberty and property of the Kingdom, and rescue his country from being made a prey to the Court.” Had Hampden been a poor man he could never have done it.

His example is a classic case of which we need men of not only principle but wealth to give principle the sharp edge of power. As Hampden himself said: “He would be content to lend as well as others but feared to draw upon himself that curse of the Magna Carta which should be read twice a year against those who impinge it.” A century later, denouncing George III’s similar attempt to impose taxes upon the Americans, Edmund Burke underlined the moral point beneath the financial issue:

“Would twenty shillings have ruined Mr. Hampden’s fortune? No, but the payout of half twenty shillings, on the principle it was demanded, would have made him a slave.” Hampden’s wealth enabled him to fight the case vigorously and make its details universally known, so that while judgment in 1638 went to the king by majority (the judges being divided), Hampden won a moral victory, and when the Long Parliament met two years later, one of its first actions was to declare the judgment “against the laws of the realm, the rights of property and the liberty of the subject.”

Hampden continued to use his freehold wealth to support freedom, raising a regiment of green-jacketed infantry when the Civil War began, and dying from wounds received at the head of it in 1643.