Property Rights and Pogroms
Once upon a time I had a viva for an essay prize. I’d written about the Norman Conquest. When I walked in, the interviewer smiled, and said:
“So, Felix, when was the Norman Conquest?”
The correct answer, I think, would discuss the reign of Edward the Confessor, who grew up in Normandy. At his coronation in 1042, his power was constrained by Godwin, the mighty earl of Wessex and the biggest landowner in England. In 1051, Edward attempted to exile Godwin and his sons, only for them to return to power in 1052; Harold Godwinson would briefly rule the country, before being killed at Hastings.
But in all honesty, you can’t look past 1066 as the moment that everything changed; not least because of the sea-change in landholding that would occur over the course of William’s reign. In the course of this piece, I’m going to talk about how English property rights changed during the eleventh and twelfth centuries, and how that shapes my political thought.
William was crowned king at Westminster Abbey on Christmas Day 1066. The power transition was not easy. William claimed ownership of the entire country through right of conquest; but he wouldn’t get it without a fight. During the service, his soldiers set fire to much of London; William would spend the next four years fighting a sporadic war to enforce his conquest, culminating in the 1069-70 Harrying of the North.
Although he initially left the English nobility in place, ultimately William found it expedient to reward his own followers with property; and so a 1068 entry in the Anglo-Saxon Chronicle tells us that he “gave away every man’s land”. William then enforced the new state of affairs with Domesday Book, the 1086 demonstration of state capacity that recorded who owned what.
Seisin and Subinfeudation
Giving away every man’s land has pretty significant implications for property rights. The Norman Conquest created a clean break; by right of conquest, the new King owned all the land in the kingdom; anyone who argued was likely to come to a sticky end. From this monopoly position, William gave out land to individuals, in exchange for the promise of their service; but those individuals did not own it in any modern sense; they merely “held it of the king”. One might say that William had a lot of capital, in the form of land; but he didn’t had enough labour to put it to work himself. So he used the land he held to buy loyalty and military service from his followers.
Crucially, though, landowners didn’t have a property right that they could hand down to their children. This applied both to lords, who held directly of the king, and also to their subinfeudated tenants, who held land of the local lord. Indeed, the word “landowner” is a bit of a misnomer in this context - it makes more sense to think of a “landholder”, or a tenant holding of the king.
So whereas modern property is a right in rem, guaranteed by the state (indeed, in Locke's view this is the original function of the state), mediaeval English property rights were more murky; security of tenure was exchanged for performance of service. This kind of property-in-exchange-for-service was known as seisin. When a tenant died, his property would not be inherited by his heir - instead, a dead tenant's land would return to the lord in what was called escheat. At this point, the lord could, at his pleasure, choose to seise that heir.
In the vast majority of cases, the lord did seise the heir. By far the most common verb used in charters for this process was not dare (to give) but reddere (to give back), a word typically used in contexts where the recipient already had some right in what was being granted. Nonetheless, in the eleventh century, the principle of the escheat meant that no tenants had a secure right 'against the world' to the land which they held.
But things would change; and the most likely cause was the increase in royal legislative power seen during the reign of Henry II (1154-1189). Medieval property rights were often bound up with jurisdiction; this meant that lords judged cases brought by their subtenants. But as Henry’s power waxed, the royal court increasingly started to intervene in these disputes. The creation of standard legal procedures - the writ of right (breve de recto), the assize of mort d’ancestor, and the assize of novel disseisin made it cheaper and easier for subtenants to appeal to the king. For instance, William of Newburgh, a pretty reliable historian, tells us that Henry appointed “in all districts of his kingdom judges and legal officials to coerce the wickedness… according to the merits of their cases”. Royal interference in the personal relationship between lord and subtenant decoupled property rights from this relationship, making it into a “right against the world” ultimately backstopped by central power.
You can see this in the language of the agreements signed between local lords and their subtenants; the subtenants swore homage to their lord, and in exchange the lords warranted their property. In the early twelfth century, these warranties tend to be signed by both the lord and his heir; only this would guarantee the continuation of the warranty past the death of the lord. But in the 1170s, the names of the heirs disappear from the charters; instead, we start to get the language “I and my heirs will warrant”. The extra abstraction, up to both a man and his heirs breaks the primacy of the individual person relationship and replaces it with a right in rem. Now that relationships of homage and warranty between two men were heritable, it became increasingly possible to see property in the same light.
This transition has interesting implications for the relationship between a lord and his own heir. If the heir can withhold his signature from important warranties, then the heir actually has quite a lot of power over his father! But at the same time, if property returns to the king in escheat, the position of the heir is more shaky. So as these transitions in property rights were effected, the right of the heir to inherit became stronger, even though his rights as an heir disappeared; indeed, the legal principle developed that nemo heres viventis - nobody is the heir of a living man.
The Pogrom of York
These conceptions of property rights are crucial for understanding one of the more unpleasant stories of the twelfth century, one which illustrates the messy realities of property rights and state power in the period. In the twelfth century, Jews in England enjoyed a degree of security. They had been invited to England by William the Conqueror after the Conquest, but the whole population of 3,000 would be expelled by order of Edward I in 1290.
In 1187, Saladin won a crushing victory at the Horns of Hattin over the knights of Outremer, causing the pope Gregory VIII to issue an encyclical called Audita tremendi. The letter starts like this:
“Audita tremendi severitate iudicii, quod super terram Hierusalem divina manus exercuit, tanto sumus nos et fratri nostri horrore confusi, tantisque afflicti doloribus, ut non facile nobis occureret, quid agere, aut quid facere deberemus;”
“Having heard of the severity of the awesome judgment that over the land of Jerusalem the divine hand exercised, by such a horror were we and our brothers disturbed, and afflicted by such sorrows, that it did not easily come to our minds what to do, or what we should do.”
But Gregory soon made up his mind, and called for the Third Crusade. By 1189, with the death of Henry II and the accession of his hot-blooded son Richard I, preparations for the crusade against the infidel were in full swing. It was in this context that a royal official called Richard Malabisse started a coniuratio - a consiparcy.
Malabisse was one of the king's foresters, a tenant holding directly of the king who often sat as a justice in the royal courts. But in order to succeed to his tenancies, he had to pay proffers to the king - and in doing so, he’d racked up a significant debt. The only source of debt capital in twelfth century England was the Jews. According to J.C. Holt, Jews weren't allowed to hand over their debts to their heirs; instead, the debts of Jewish moneylenders reverted to the king. So Jewish had to make damned sure that they didn’t die with any debts outstanding!
This legal structure, of course, created a perverse incentive - one exacerbated by the antisemitic atmosphere of the Crusade. So in 1190 Malabisse’s coniuratio started a pogrom against the Jews of York, and proceeded to York Minster to burn a chest full of Jewish debt bonds. It’ll come as no surprise that the coniuratio was composed primarily of tenants indebted to the Jews; since according to our friend William of Newburgh, the mob sought to to achieve "liberation for themselves and many others"
This is an all-too-familiar story of a pogrom, repeated across Europe for centuries; but it’s also a product of English property rights and state capacity. Not only did Malabisse and his coniuratio feel that destroying the records of their debts would absolve them; not only were they were backed by an antisemitic royal statute; they were also secure in the knowledge that they themselves were the instruments of royal justice. And while Malabisse and the others were punished for their actions, it seems overall to have been a good trade for them!
That’s a failure of institutions; we’d probably like to live in a world where it’s not rational for mobs to murder moneylenders. Interestingly, though, there’s another story of institutional failure here, found in the proffers that Malabisse and his cronies racked up their debts to pay. Absent a more effective way of raising revenue, the Exchequer began imposing more and more feudal incidents (or taxes) over the course of Henry’s reign. Men had to pay proffers to inherit “their” tenancies, when they took on a ward, and when they got married. Absent a more efficient set of capital markets, tenants sought loans from the Jews. Absent a more secure basis in security and property rights, the Jews were at risk of being massacred.
Whigs and Conservatives
Whig history gets a bad rep.
Generally, the term refers to any theory which assumes development and perfection towards a final state. Specifically, it refers to the English historical tradition between 1688 and 1940: Henry Hallam's Constitutional History of England (1827), T.B. Macaulay's The History of England from the Accession of James II (1848), and the work of the great nineteenth-century historians such as Bishop Stubbs, J.B. Bury and J.R. Seeley. That story is partially one of English exceptionalism; the growth from the dark days of the eleventh century through to the enlightened Victorians and Edwardians. But it’s also one of Christian exceptionalism; the hand of God is at work in all this.
For example, take this passage from the conclusion of Lord Acton’s 1877 History of Freedom in Christianity:
“Therefore, if there is reason for pride in the past, there is more for hope in the time to come. Our advantages increase, while other nations fear their neighbours or covet their neighbours' goods. Anomalies and defects there are, fewer and less intolerable, if not less flagrant than of old. But I have fixed my eyes on the spaces that Heaven's light illuminates, that I may not lay too heavy a strain on the indulgence with which you have accompanied me over the dreary and heart-breaking course by which men have passed to freedom; and because the light that has guided us is still unquenched, and the causes that have carried us so far in the van of free nations have not spent their power; because the story of the future is written in the past, and that which hath been is the same thing that shall be.”
But I think an important consequence of the kind of historical study that Lord Acton and Bishop Stubbs embarked upon, and which I’ve gestured at in the story above, is a sense of the extraordinary fragility of our modern institutions. Reading the Whig story, you can’t miss the awful predicament in which our ancestors found themselves; property rights, the monopoly on violence, these are precious inventions indeed. We were once thus; and there, but for the grace of our strong central institutions developed over 900 years of brutal struggle, we might be again. This attitude is why Peter Ghosh likes to argue that nineteenth-century British politics was, above all, concerned with the constitution. The uniquely English attitude here, as distinct from the continent, is a distrust of revolutionary ideas; a faith in the gradual evolution of institutions, and a respect for those institutions grounded in a fear of their absence.
This attitude has become important for my political thinking; it makes me think that state-building is incredibly difficult, and that those of us lucky enough to live in a country with strong institutions should prioritise their defence. So that means choosing the SEC not crypto; Eliezer Yudkowsky not e/acc; Israel not Palestine. The State is not something to be taken lightly; it’s the awesome product of the virtue and justice of millions of people, to bring order out of chaos. We are really not so far from the world of Henry II and Richard Malabisse; and we shouldn’t take for granted that we will never return.