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"TITLE TO PROPERTY."

In spite of the protests and lamentations philanthropists and reformers, these many thousand years, the physical and mental inequalities which nature has imposed upon mankind have created corresponding social inequalities, and there is no reason to anticipate a material change in these conditions in the future. Probably the strongest and the fittest will continue to prevail forever in the struggle for existence. And yet unlimited competition has led to results so terrible that men have always sought to mitigate them by, I apprehend, the evolution of law, whose function is to protect the weak in various essential rights, chief among which rank rights in property. For, where the weak are altogether unprotected, the favored few become masters, while the majority sink into slavery, and the longer and severer the competition may be, the more attenuated the body of masters becomes, and the more exasperated the slaves, until order dissolves in chaos. Such convulsions are always attended by bloodshed and confiscation, and it is to temper such convulsions that the law pretends to secure to every man that which he owns. The theory is good. The difficulty has lain in reducing theory to practice, for it has been found singularly difficult, at certain moments, to determine in what, disputed rights in property, consists. When this condition occurs society grows progressively unstable, for it is obvious that a society is stable in proportion as the bulk of the population profit by maintaining that which exists, and is unstable in proportion as the majority look for advantage in revolution.

My thesis is that every man owns all that he can defend, and if the law fails to recognize and regulate this practical

ownership, it to that extent leaves the rights of property to be fixed by force, or, in other words, by private war.

I suspect that, throughout the western world, our civilization is facing some such crisis as this, in the sporadic warfare now waged between capital and labor, touching the ownership of industrial property, and in this short article I propose to enter a little into history in order to investigate these antagonistic claims to property, with a view to illuminating in some small degree the chasm which I infer our law must bridge, if order is to be permanently preserved. Now, in my judgment, lawyers would have deserved better of their clients and their age, had they shown more anxiety than I conceive the evidence indicates that they have shown, to mitigate the rigor of competition by adapting, as far as in them lay, the institutions over which they have exercised some control, to social changes whose hardships, though they could not avert, they might, by intelligence and good temper, have sensibly ameliorated.

I would suggest that probably the cause of the extreme instability of English society after Hastings was the series of confiscations which reduced perhaps the majority of the old population to villeinage. Villeins, by law, could neither acquire nor hold property as against their lord, while the class of landlords stretched upwards in gradations to the king, who was the greatest of all landlords, but greatest by so narrow a margin that he had often much ado to preserve some vestige of sovereignty. Hence the king intrigued with the serfs against their masters, and the abler the king the more he intrigued, as did Henry I, until the serfs gained very substantial advantages.

Also the crusades began, and commerce and capital grew with the crusades, and so, by the beginning of the thirteenth century, the serfs and burghers held the balance of power as between the allied barons and the king, as they conclusively proved in 1215 at Runnymede, when John

sealed Magna Charta. Now the law may say what it will, but, in fact, a man does own all the property he can defend, and in 1215 the villein could defend his title to some of the increment in the value of the land which he tilled, which was due to his labor; and this title the manorial courts recognized, because they could not help it, as a sort of tenant right, calling it a customary tenancy by base service. A century later these services in kind had been pretty frequently commuted into a fixed rent paid in money, and the serf had become a freeman, and a rather formidable freeman, too. For it was largely from among these technical serfs that Edward III recruited the infantry who formed his line at Crecy in 1346, and the archers of Crecy were not exactly the sort of men who take kindly to eviction, to say nothing of slavery. As no one meddled much with the villeins before 1349, all went well until after Crecy, but in 1348 the Black Death ravaged England and so many laborers died that the cost of farming property by hired hands exceeded the value of the rent which the villeins paid. Then the landlords, under, I fear, very bad legal advice, tried coercion. Their first experiment was the famous Statute of Laborers, which fixed wages at the rates which prevailed in 1347, but as this statute accomplished nothing the landlords repudiated their contracts, and undertook to force their villeins to render their ancient customary services. Though the lay landlords were often hard masters, the ecclesiastics were harder still, and the ecclesiastics were served by lawyers of their own cloth, whose sharp practice became proverbial. Thus the law declined to recognize rights in property existing in fact, with the inevitable result of the Peasant Rising in 1381, known as Wat Tyler's Rebellion. Popular rage perfectly logically ran highest against the monks and the lawyers. Both the Archbishop of Canterbury and the Chief Justice were killed, and the insurgents wished to kill, as Capgrave has related, "all the men that had learned only law." Finally the rebellion was suppressed, chiefly by the duplicity of

rents, and so induced them to go home with his charters in Richard II. Richard promised the people, by written charters, a permanent tenure as freemen at reasonable their hands; but they were no sooner gone than vengeance began. Though Richard had been entirely at the peasants' mercy, who might have killed him had they wished, punitive expeditions were sent in various directions. One was led by Richard himself, who traveled with Tresilian, the new Chief Justice, the man who afterward was himself hanged at Tyburn. Tresilian worked so well that he is said to have strung up a dozen villeins to a single beam in Chelmsford because he had no time to have them executed regularly. Stubbs has estimated that seven thousand victims hardly satisfied the landlords' sense of outraged justice. What concerns us, chiefly, is that this repression, however savage, failed altogether to bring tranquility. After 1381 a full century of social chaos supervened, merging at times into actual civil war, until, in 1485, Henry Tudor came in after his victory at Bosworth, pledged to destroy the whole reactionary class which incarnated feudalism. For the feudal soldier was neither flexible nor astute, and allowed himself to be caught between the upper and the nether mill-stone. While industrial and commercial capital had been increasing in the towns, capitalistic methods of farming had invaded the country, and, as police improved, private and predatory warfare, as a business, could no longer be made to pay. The importance of a feudal noble lay in the body of retainers who followed his banner, and therefore the feudal tendency always was to overcharge the estate with military expenditure. Hence, to protect themselves from creditors the landlords passed the Statute de Donis1 which made entails inalienable. Toward the end of the Wars of the Roses, however, the pressure for money, which could only be raised by pledging their land, became too strong for the feudal aristocracy.

1 13 Edw. 1. c. 1. (A. D. 1284).

Edward IV, who was a very able man, perceived, pretty early in his reign, that his class could not maintain themselves unless their land were put upon a commercial basis. Therefore he encouraged the judges, in the collusive litigation known to us as Taltarum's Case, decided in 1472, to set aside the Statute de Donis, by the fiction of the Common Recovery. The concession, even so, came too late. The combination against them had grown too strong for the soldiers to resist. Other classes evolved by competition wanted their property, and these made Henry Tudor king of England to seize it for them.

Henry's work was simple enough. After Bosworth, with a competent police force at hand to execute process, he had only to organize a political court, and to ruin by confiscatory fines all the families strong enough, or rash enough, to maintain garrisoned houses. So Henry re-modeled the Star Chamber, in 1486, to deal with the martial gentry, and before long a new type of intelligence possessed the kingdom.

The feudal soldiers being disposed of, it remained to evict the monks, who were thus left without their natural defenders. No matter of faith was involved. Henry VIII boasted that in doctrine he was as orthodox as the Pope. There was, however, an enormous monastic landed property to be redistributed. This was confiscated, and appropriated, not to public purposes, but, as usually happens in revolutions, to the use of the astutest of the revolutionists. Among these, John Russell, afterward Earl of Bedford, stood pre-eminent. Russell had no particular pedigree or genius, save the acquisitive genius, but he made himself useful to Henry in such judicial murders as that of Richard Whiting, Abbot of Glastonbury. He received in payment, among much else, Woburn Abbey, which has since remained the Bedford country seat, and Covent Garden or Convent Garden, one of the most valuable parcels of real estate in London. Convent Garden the present Duke re

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