by Philippa Morris Dec '07

Introduction

The matter of ‘property rights' surfaces regularly in the agricultural press; usually in the form of complaints by farmers and agricultural pressure groups about restrictions placed on landholders in general, and freeholders in particular, by the three levels of government in Australia.  The aim of this brief article is to discuss the evolution of modern land tenure, and demonstrate that modern freeholders in Australia have unprecedented freedom in their management and modification of land.    It was intended that the article remain simple, but the subject is so complex that it became impossible to remain concise without losing all sense of the subject. 

Land tenure is at once a cause and consequence of other social relationships in any society; feudalism pre-supposed a certain hierarchical relationship between individuals in a society, whilst the concept of feudal homage differed from allegiance from one individual to another which could be based on kinship.    Land tenure was also crucial in the deployment of political authority in society, as landholding has always been allied with political power. 

Land title and tenure, and the word alloidal

It is essential to emphasise the word ‘tenure', for all such landholders are tenants of an overlord - in our case ‘the Crown'; the word tenure itself derives from the French word ‘tenir', to hold.    From about the 7^th century AD onwards a broadly tribal approach to landholding gave way to feudalism; from the thirteenth century onwards feudalism started to evolve into modern land titles, so that land tenure was never static. 

Orkney and Shetland had a Norse type of alloidal tenure system in which there was no overlord.    This has led right wing groups - mostly in the United States of America - to come up with statements like this one (culled from the Internet) which, of course, ignores the existence of previous landholders,

"Our Creator gave us Liberty, Free Agency, and the Responsibility to be stewards over the possessions we see fit for our personal wants and needs. We hold such stewardship in Alloidal title, which is an absolute and perfect title. Our ownership may not be challenged, questioned, taxed, let, hindered, removed, or violated in any way, without our express permission." 

 A document from a Caribbean native title group (also found on the Internet) demands

"That states recognize the inherent rights of alloidal title of indigenous peoples, so that we may, according to our own values, customs, traditions, and Cosmovisions develop, restore and maintain our collective sustainable sources of living that are necessary to guarantee our way of life.  An example of this recognition can be found in the constitution of Venezuela."

This is an example of two groups absolutely opposed to each other, one of which dispossessed an indigenous people and the other being a dispossessed indigenous people, using the same word - the philologically obscure ‘alloidal'- to justify their positions. 

Other documents suggest that the phrase "alloidal title" is actually a contradiction because the word ‘title' implies the existence of the overlord who grants title to the land, whereas allodial land holdings are held by tradition and without title, with absolute hereditability and no provision for land to be resumed by an overlord for, say, the public good; nor does an alloidal tenure have any assumption of land being a saleable commodity.  A landholding system of this type has enormous implications for the development of the state - if the state is not defined by being the overlord of a geographical area, then what does define it.   It has been a perennial problem of so-called indigenous peoples that they do not have the mechanisms in place that bind them into a state, and that their loyalty is to a family or clan.   This makes it very difficult for them to function amongst people who have a land-based state to which they may give national allegiance.   

Curiously, none of the printed works or internet sites consulted during the construction of this article mentioned the concept of communal ownership of land (slightly different from commonage in which individuals have a common right to use a piece of land, which is still under the jurisdiction of an overlord).   However, Anglo-Saxon society had three rather neat grades of land (i) folkland held by traditional without written title which normally reverted only to kinsmen (ii) bookland was held by written title (iii) loanland held, usually for three lives, and with conditions upon it and forming the basis of modern leasehold.   Of these three, even folkland was still the property of an individual, but as it reverted to kinsmen could never be sold.    

 ‘Indigenous' people have an alleged mystical and emotional relationship to the land; western peoples are allowed no such sentiment and for us land is simply a commodity to be traded like everything else.  It is important to keep in mind that the development of modern land title happened as traditional attachments to the land were diffused and finally destroyed.  A good example of this sort relationship is that the people of Uffington in the Vale of the White Horse maintained the white horse from about 2,000 BC until it came under the care of the Ministry of Works in the early 1900s.   

Scottish feudalism

The process of land title evolved differently in different countries; Scotland, for example, had a highly developed form of feudalism that allowed massive estates to come into existence.  As the feudal system decayed, overlords retained security of tenure (held directly from the Crown), but their undertenants largely lost their security of tenure.   The Highland Clearances were, in effect, a breakdown of the system, as landlords literally cleared their feudal tenants off the land, ignoring their feudal obligation, which had been commuted into monetary rental at a time when many social and geophysical changes were also affecting the land.    Now, with the re-establishment of the Scottish Parliament the matter of Scottish land ownership is being re-addressed, as governments can and do intervene into the matter of who owns land, how much they own and what is done with it.    A recent report by the Land Reform Policy Group (The Scottish Office February 1998) stated that about 60% of Scottish land is in private ownership, the bulk of that forming fewer than 1500 vast private estates; some held by absentee landowners, a significant number of whom are either foreigners or corporations.   The Isle of Eigg provides a neat case study of Scottish landownership as this once feudal holding was cleared of many of its tenants, changed hands several times and has finally been purchased by its few remaining residents (many of whom are incomers anyway). 

At the beginning of the 18th century there were around 9500 "landowners" in Scotland , dropping to around 7637 in 1814. By 1873 some 118 people owned over 50% of the land area of Scotland . Despite considerable social and political agitation during the latter part of the 19th century, which resulted in the provision of security of tenure to Highland crofters with the 1886 Crofters' Holdings Act, Scotland's feudal land laws survived intact until the end of the 20th century. It is a remarkable fact that legally the notion of feudal superiority was only removed with the Abolition of the Feudal Tenure Act in 2000 (Warren, 2002).   It is worth noting that "landowner motivation, land use decisions and the assumptions underlying property rights and obligations, can have marked effects on environmental stewardship standards" (Whiteman 1996 p14).

Irish feudalism

By contract in Northern Ireland during the 1800s a cadastral system of land title was developed, actually based on the Australian system of Torrens Title (A History of Land Tenure Arrangements in Northern Ireland James H Thomas 1997) aimed at providing security of title.   The version of feudal land holding that prevailed in Ireland before English occupation was appropriate to land that was not likely to be invaded and in which military service was a limited requirement, to quote Thomas;

"A tribal chief would lend stock to a tenant. The tenant then had the right to occupy land for the period of time of the agreement between the parties. In return for the stock, the landlord/chief would receive an annual return from the stock. The annual return was equivalent to a percentage of the value original stock and could take the form of cattle or work for the chieftain. Upon completion of the tenure, the chieftain was entitled to receive payment of the equivalency of the original stock. Since the receipt of the annual share provided a comfortable income to the landlord, typically a new arrangement would be made upon the end of the term."

This system has obvious similarities to the licenses to depasture stock granted in Australia in the mid 1800s, which were dependant on evidence of the land being stocked with sheep or cattle.  The key element of this sort of occupation of land is that money was paid for the depasturing of stock, rather than the occupation of land.  As a matter of interest, my own reading of original material has left a distinct impression that many accounts of so called ‘depredations by aborigines' were actually excuses to destock grazed out land.

The evolution of modern land title

As feudalism decayed, modern land title started to appear, and did so in the social context of the growth of the rational, independent individual.   To quote Toby Dodge writing in "Inventing Iraq";

"In tracing the rise of the European concept of the rational, unencumbered individual from the Enlightenment onwards, we find this argument places the individual property owner at the centre of modern land tenure in Europe and later in the colonised world."

The unencumbered individual was an individual without fealty, allegiance or feudal duty to an overlord and as the Enlightenment moved into the Romantic and modern eras this individual became increasingly self-seeking - whilst the eighteenth century landowner played a role in ordering society, the modern landowner no longer expects to play that role.    The word freehold also requires a little explanation, because the word ‘free' refers to the status of the landholder, who was a freeman not subject to feudal service, rather than to freedom in land use.   Before the Norman Conquest, another sort of holding had appeared in towns and trading centres, as many of those who settled in towns were freemen, and anyway it was impracticable for a merchant or tradesman to render feudal service, so they began to pay a fixed rent.   This ‘burgage tenure' had a great deal, in common with what we now understand by freehold, because the tenements were hereditable and could be free mortgaged or sold. 

As feudal titles faded, they were replaced by monetary transactions, although within the last fifty years my grandparents still paid ground rent to an overlord for the land on which they had built a house, which they owned.   As another example of how title changed, the area known as Mayfair in London was originally granted to Sir Geoffrey de Mandeville by his feudal overlord William the Conqueror as a reward for his support, and Sir Geoffrey gave it to Westminster Abbey (exempt from feudal service).  At the time of the Dissolution of the Monasteries the land reverted to the Crown, which was then leased by the Crown to a tenant, a moiety of this lease was purchased by one Cranfield, who subsequently sold his interest to Hugh Audley, from whom it passed by inheritance to Mary Davies who married Sir Thomas Grosvenor, from whom it has descended to the present day.   

Fee simple and  freehold are not "do as you like for as long as you like", there is always an ultimate owner who can both interfere with activities on that land, and if necessary resume it, if the owner is deemed to be ‘wasting' the land.   There is a good article on wastage in Wikipedia.   The whole of the modern USSR was resumed by its government after 1918 and the rest of Eastern Europe after 1945. 

Historically land ownership conferred privileges and responsibilities.   It can be argued that land owners used those privileges to bolster their own position, and certainly after 1790 various Acts of Parliament restricted public access to land (and the amount of common land) and the Game Acts made all game (even rabbits) the property of the landowner.   This forced the poor to either poach or go without, and led to the development of the lurcher.   From the mid 1750s vast areas of common land; a feudal remnant, being land held in common by villagers, with grazing rights, was declared to be waste land, bought from the government by already wealthy landowners and enclosed.  Official histories tell us that this land was mismanaged by the villagers and enclosure brought it into production; other histories tell us different!

Other responsibilities of land tenure have been to improve soil, maintain trees, hedgerows, woods and drainage, and landowners historically had a moral obligation to the poor (they were fairly good at the decent poor, not so good at the indigent poor!), and all over England in churches you will see signs showing charities established to help the poor and provide public education.  In other words throughout English history, land ownership has not just been about making money; it has been about maintaining the physical fabric of the landscape, society and the people that inhabit it; which is not to say that these obligations were not frequently breached.   

In Australia the government intervened very early in the piece, first by granting plots of land in the Hawkesbury, and then by licences to depasture in the inland.   It was not until the 1870s that any sort of freehold was established outside the inland towns, and that is why you rarely see larger houses dating from before that time, and even those holdings were highly conditional, and much land was resumed in the early 1900s for closer settlement and then for soldier settler blocks.     Throughout the 1920s much land had conditional stocking rates; if the landholder did not stock adequately land could be resumed, and a great deal of land was handed out with an obligation to clear scrub or prickly pear, and to do so in a very specific manner.  Parts of the property Terlings were cleared on that basis, with requirements for firebreaks (actually lines of belah under which the grass would not grow), shade clumps, fodder trees, and other specific species to be retained.    Modern freeholders would be furious at these restrictions on their activity. 

Conclusion

Land tenure has evolved in a complex manner all over the world, and in doing so has been a reflection of society and as a driving force in social evolution.   In nearly all Western societies, there is an ‘overlord', which may be the crown or state, and until recently there was a strong tradition of landowners as having social responsibilities and responsibilities to maintain the landscape as well as to modify it.   When people speak of property rights in isolation, they have rarely grasped the history of land tenure or the nature of the responsibilities historically attached to various types of land tenure.