EU Law and the Future of the Crown in Great Britain: A Conflict of

Sovereignty and Community

“Land is perpetual Man” (The Senchus Mor)1

Preface

It is certainly a volatile time for the European Community (EC): the most unstable since its

formation through the Treaty of Rome in 1957.2 Major changes to the Treaty are now being

discussed3 as global recession and economic disparity within the EC take their toll. While the

original purpose of the EC may have been to unite Europe in the wake of the two great World

Wars,4 conflicts have subsequently arisen through the struggle to reconcile the ‘one size fits

all’5 of community policy with the individual needs, circumstances and indeed, culture, of

individual nations. In fact, it could be argued, that an economic union can only work where

there is parallel political union, but the 27 Member States maintain political autonomy,6 i.e.

their sovereignty.

However, if the EC is a collection of sovereign states, where is the ‘Community’? If the

Community becomes a sovereign entity within itself, then how can individuality be sustained

within it? On paper, it would seem that ‘co-decision’ by a democratically elected European

Parliament and the individual governments of the 27 Member States determine the course of

European law and policy.7 Nevertheless, a ‘democratic deficit’ is emerging between EU

institutions in Brussels and the citizens of Member States, where the voices of the most

1 Ginnell, L. (1894) ‘The Brehon Laws’, at Chapter III, http://www.libraryireland.com/Brehon-Laws/Senchus-Mor-1.php (Accessed: November 27, 2011).2 Europa, Gateway to the European Union, ‘A History of the European Union’. How the EU works - History, 1945 – 1959. A peaceful Europe – the beginnings of cooperation, http://europa.eu/about-eu/eu-history/index_en.htm (Accessed: December 11, 2011).3 Watt, N. & Gow, D., ‘EU Summit: Treaty changes on the agenda as leaders meet - European leaders descend on Brussels for crucial talks to decide future form of EU’. December 9, 2011. The Guardian, http://www.guardian.co.uk/world/2011/dec/08/treaty-changes-on-eu-summit-agenda (Accessed: December 11, 2011).4 Ibid. Note 2.5 Börzel, T.A. & Risse, T. (2004) ‘One Size Fits All! EU Policies for the Promotion of Human Rights, Democracy and the Rule of Law,’ Workshop on Democracy Promotion, Center for Development, Democracy, and the Rule of Law, Stanford University, http://iis-db.stanford.edu/pubs/20747/Risse-Borzel-stanford_final.pdf (Accessed: December 11, 2011). 6 Zeihan, P. (2010) ‘Europe: The New Plan’, Stratfor, Global Intelligence, http://www.stratfor.com/weekly/20101220-europe-new-plan (Accessed: December 11, 2011). 7 Europa-Gateway to the European Union, ‘How EU Decisions are made’, http://europa.eu/about-eu/basic-information/decision-making/procedures/index_en.htm (Accessed: December 12, 2011).

powerful carry furthest.8 What we are now facing, therefore, is the age-old problem of

identifying the ‘common good’ when seeking democratic solutions,9 i.e. does this concept

represent the voice of the majority? Or is it an abstract ideal for which one should sacrifice

oneself to attain?10

8 Bolton, J.R., ‘EU’s Democratic Deficit’, November 26, 2011, The Washington Times, http://www.aei.org/article/economics/international-economy/eus-democratic-deficit-2/ (Accessed: December 12, 2011).9 Cobb, J.B., Jr. (2003) ‘The Common Good: Individual Rights and Community Responsibility’, http://www.religion-online.org/showarticle.asp?title=3351 (Accessed: December 12, 2012).10 Ibid.

Introduction

“Democracy and sovereignty are at the same time, but also by turns, inseparable and in

contradiction with one another”. Derrida (2002)11

The central themes of this dissertation, although universal in essence and highly relevant to

an increasingly globalised world, focus specifically on the United Kingdom, that is to say, the

United Kingdom of Great Britain and Northern Ireland.12 The UK as we know it today, that is

to say, England, Wales, Scotland and Northern Ireland, was established in 1922, when the

southern counties of Ireland broke away to form an independent republic.13 Despite being a

related political unit, the separate countries maintain some diversity in their judicial systems

according to their respective historical backgrounds; there is a single judiciary for England

and Wales (English Law), another for Scotland, and still another for Northern Ireland.14

English and Northern Irish Law are governed by ‘Common Law’ systems (originally, ‘law

that is common in all England’),15 while Scottish law has evolved from feudal and other

systems determined by its history.16 Anyone or anything from the United Kingdom, including

Northern Ireland, is referred to as ‘British’, even though the title ‘Great Britain’ refers

specifically to the largest island in the British Isles.17 In this dissertation, the title ‘Britain’

will be used in a general sense when describing the English government’s reach into Wales,

Scotland and Ireland through history, while more recent events involving Britain’s

membership in the European Union (EU) necessitate the use of the term the ‘UK’.

The focus of this dissertation is the point of resistance between an identifiable people and

their territory, i.e. Great Britain, and external forces for change. It analyses the historical

basis of the UK’s national identity and structures, to try and unearth a substantial defence for

its sovereign rights. It also looks at the European context, which has seriously challenged the

notion of national sovereignty with its control of cross- border transactions and movement.

11 Derrida, J. (2002) ‘The Reason of the Strongest’, in ‘Rogues’, tr. Brault, P-A. & Naes, M. (2005) Stanford: Stanford University Press, at 100.12 New World Encyclopedia (2008) ‘Great Britain,’ http://www.newworldencyclopedia.org/entry/Great_Britain (Accessed: December 4, 2011), at History.13 Carter, S. (2000) ‘Features: The UK Legal System’, at Background and Constitution, http://www.llrx.com/features/uk.htm (Accessed: January 20, 2012). 14 The Supreme Court (2011) ‘The UK judicial system’, http://www.supremecourt.gov.uk/about/uk-judicial-system.html (Accessed: December 4, 2011).15 Jokinen, A. (2002) Luminarium Encyclopedia Project, at ‘Common Law,’ http://www.luminarium.org/encyclopedia/commonlaw.htm (Accessed: January 15, 2012).16 Sparkes, J. (2007) ‘European Land Law’, Oxford and Portland Oregon: Hart Publishing, at 127.17 New World Encyclopedia (2008) ‘Great Britain,’ http://www.newworldencyclopedia.org/entry/Great_Britain (Accessed: December 4, 2011) at ‘History.’

In the first Chapter, the background to land-ownership in the UK is described via a

chronology of historical shifts in power and the emerging concept of land as private property.

This is in order to emphasise that there are no absolute laws governing it, but rather systems

and policies that have evolved through history and which consequently, could continue to

change. Chapter Two then examines the concept of sovereignty, both from a theoretical

perspective and in terms of its actual expression in Britain and in the EU through systems of

law and government. Thirdly, there will be an examination and evaluation of how EU

legislation and landmark cases have actually impacted on British sovereignty in the

management of land, with some focus on land as a national resource, given the important role

that agriculture and land have played in the UK’s history. Finally, in the Conclusion, we look

at the benefits and drawbacks of maintaining national sovereignty, as opposed to converging

with other states in a single European system.

Chapter 1: The United Kingdom

“Much food is in the tillage of the poor, but there is that is destroyed for want of Judgment.”

Proverbs 13:23 (King James Bible, Cambridge Ed.).

1.1 Overview

Crucial to the central argument is an understanding of the terms, ‘The Crown’, ‘Community’

and ‘Sovereignty.’ These words unfold into vast and far-reaching concepts. Framed within

the context of the UK, they fall together like pieces of a puzzle to create a nation with a

peculiar set of relationships: a monarchy with a democratically elected government; the

former head of an empire with strong residual links across the world through common

language and legal systems; an island which is also part of the ‘supercontinent’ known as

Europe, and a member of the EU. In order to deconstruct the way the UK defines itself as a

nation, and to analyse the aims and vision of the EU in relation to this, particular reference

will be made to the management of land as the commonest expression of ‘territory.’ Implicit

in this are the resources that lie within, the products of this ‘territory,’ and the rights of

specific sets of individuals to access, inhabit or manipulate it.

The UK has been selected to illustrate the theme of ‘sovereignty versus community’, as it is

the author’s home country, and is therefore more likely to be treated with the same kind of

subjectivity and emotionalism that characterises the attitudes of most citizens in the EU

towards their ‘nationality.’ This was considered important as nationalism and patriotism are

very real issues within the EU; as European citizens increasingly endeavour to establish their

identity in a rapidly changing environment. They cannot simply be ignored, suppressed, or

waved away with theories, but workable, long-term solutions need to be identified for the

emerging conflicts. Secondly, the UK provides a particularly interesting example of

sovereignty within Europe as it has maintained its monarchy, Common Law system, currency

and links with nations outside the EU, such as members of the British Commonwealth. It is

also closely allied with the United States, against whom it is often suggested, the EU was

created to compete.18 In addition to this, it must be recognised that the nation of Great Britain

is the result of migration, occupation, invasion and international participation, not just the

linear development of a particular set of early settlers. This further complicates the argument

in favour of preserving national sovereignty.

18 Lotta, R. (2008) ‘Shifts and Faultlines in the World Economy and Great Power Rivalry: What is Happening and what it Might Mean- Part III - The European Union as a Potential Rival to U.S. Dominance, ’http://www.countercurrents.org/lotta060808.htm (Accessed: December 4, 2011).

1.2 Britain’s Relationship with the Land

The most startling truth we can encounter with regard to land ownership in the UK (apart

from Scotland) is that the only absolute owner is the Crown itself.19 This defines the position

of landowners as ‘vassals of the Crown’ with the highest possible title being ‘fee simple

absolute’20 (tenancy in fee)21 rather than as ‘owners absolute.’22 In Scotland, the Scottish

Parliament ended all titles of feudal tenure with the Scotland Act, 2000, to create ‘allodial’

lands with absolute rights of ownership.23 Elsewhere in the UK, one can still only ever have

an ‘interest’ in land, even if the estate is ‘freehold’ and therefore, of indeterminate duration.’

The concept is now redundant and due for reform, but it reflects Britain’s feudal past.24 On

the other hand, an individual’s interest in a freehold estate is ‘perpetual,’25 and at the death of

the freeholder, the property automatically passes to the natural heirs unless otherwise

specified in the will or by probate.26 So why is there no title of absolute land ownership in

most of Britain? To understand this, we must look at land ownership as a kind of leasehold

from the Crown. It is in fact the crux of the 1925 Property Act,27 drawn from feudal terms of

tenure, and designed by the Conservative government of the time to protect Crown interests.

It ensures that all other landowners only have an ‘interest’ in land, with questionable legal

standing as ‘owners’ in a court of law,28 where the interest of the ‘owner’ may be just one

among many.29

In the 21st century, where ordinary citizens inherit, buy and sell property, and have the right

to leave their estate to their heirs, it is very difficult to accept the mediaeval concept of being

a leaseholder from the Crown. The freedom of the ordinary citizen to ‘own’ land is, however,

a relatively recent development in English law. It must also be borne in mind that Britain’s

current legal and political framework evolved as a result of successive changes in 19 Cahill, K. (2001) ‘Who owns Britain?’ Edinburgh: Cannongate Books, at Preface to the Paperback Ed., xiii.20 West's Encyclopedia of American Law, 2nd ed.’ (2008) ‘Estate’, The Gale Group, Inc., in The Free Dictionary, http://legal-dictionary.thefreedictionary.com/Freehold+Estates (Accessed: December 4, 2011).21 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at ‘Introduction’ (Accessed: October, 30, 2012).22 Ibid. Note 19.23 Crombie, K. (2009) ‘Scottish Land Law Glossary/ Dictionary,’ at ‘Allodial Land’, http://www.scottishlaw.org.uk/lawscotland/abscotslawland.html (Accessed: January 19, 2012).24 Ibid. Note 19, op cit. at 397, Appendix 2, ‘Freehold.’ 25 Ibid. Note 20, op cit. at ‘Freehold Estate’.26 Ibid. 27 Ibid. Note 19, op cit. at xiii.28 Ibid. 29 Ibid.

sovereignty.30 More recently, on entering the EC, and in the face of increasing globalisation,

the challenges to Britain’s structures and boundaries have been more insidious than the

military occupation and bloody battles of the past, but no less dramatic in their impact. There

is no logical foundation, either for maintaining a system on the grounds that it is ‘British’

(given that the systems in place in contemporary Britain owe so much to the influence of past

incomers), or for ignoring the significance of the Crown, considering its powerful control for

the greater part of British history. The ownership of land, or at least the rights and duties

associated with it, constitutes a major factor in the development of the British hierarchy and

power systems.31 This chapter therefore discusses the historical development of British

sovereignty and land ownership, first as an illustration of how these have been constantly

decentralised, and then to try and identify the advantages of preserving national sovereignty

within a wider sphere of economic community and globalisation.

1.3 The Earliest Inhabitants

As stated in the Introduction, it is impossible to define an individual nation in absolute terms.

As the population grows, and culture, religion, even language change, nations cease to

resemble their origins. For example, archaeological evidence and the writings of early

observers, such as the ancient Romans, build a picture of the British people as a mixed race,

or consisting of several peoples from different parts of Europe32 bringing with them their

customs and languages. Even the land itself was dramatically different prior to the ice-age,

with Britain joined to both mainland Europe and Ireland before the melting of the glaciers.33

Once Britain became an island, traffic continued through maritime trade.34 There is nothing to

suggest that the original Britons were isolated from the rest of Europe.

Research has actually revealed that, in relation to the land, the earliest inhabitants of Britain

had much in common with many other aboriginal peoples around the world; it is believed

they considered land to be the common property of man.35 By the time the Romans had 30 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at ‘Introduction’ (Accessed: October, 30, 2012).31 The Columbia Electronic Encyclopedia (2007) ‘Feudalism’, Columbia University Press, www.cc.columbia.edu/cu/cup/ at ‘Military Service.’ (Accessed: October 20, 2012).32 Squire, C. (1905) ‘Celtic Myth and Legend,’ Pennsylvania: Wildside Press, LLC, at 19.33 New World Encyclopedia (2008) ‘Great Britain,’http://www.newworldencyclopedia.org/entry/Great_Britain, at History. (Accessed: October 5, 2012).34 Lane, M., ‘The moment Britain became an island’, February 15, 2011, http://www.bbc.co.uk/news/magazine-12244964 (Accessed: December 4, 2011).35 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at ‘Introduction’ (Accessed:

arrived, Caesar observed that the native Britons mainly kept cattle, which represented their

wealth.36 This would have necessitated mobility, corresponding to the seasons and availability

of pasture. The Roman writers, Tacitus and Ptolemy in the first century A.D. describe the

population of Britain as a collection of many different tribal groups based on interdependent

families with land in common.37

What was important amongst the early inhabitants was what the land could do for them at a

particular time, rather than its value as a commodity to be ‘owned.’38 Fisher even goes so far

as to argue that land cannot really be considered as ‘property,’ as it is neither created or fully

controlled by man39 and this view may have been supported by these early societies who

recognised their dependence on the land. We must bear in mind, however, that with a

population of less than a million people,40 and a land mass of around 60 million acres41 there

was space to move around, but a smaller workforce to produce the vital supplies of food, fuel

and raw materials needed for survival. Therefore, an individual’s autonomy depended on the

basic right to be able to live off the land, and on participation within a wider community to be

able to survive.

The closest we can come to describing or understanding this diverse tribal society is arguably

in terms of the Celts, although it is important to remember that there was no cohesive

government in Britain prior to the Roman conquest.42 Nevertheless, archaeological and

documentary evidence referring to the Irish Celts describe a social order with an elected

leader (Ri) from within each ‘tuath’ (clan),43 implying sovereignty within each group. Codes

of behaviour were unwritten (lex non scripta)44 motivated by the desire to respect and benefit

the community. The Irish Celts used written language for other purposes but favoured an oral

tradition with regard to the law, kept and memorised by the Druids.45 It meant acting for the

benefit of the wider community as a matter of honour rather than through the direct fear of

October, 30, 2012).36 Ibid. op cit. at I ‘The Aborigines’.37 BBC History (2011) ‘Native Tribes of Britain,’ http://www.bbc.co.uk/history/ancient/british_prehistory/iron_01.shtml (Accessed: December 4, 2011).38 Ibid. Note 35.39 Ibid. 40 Ibid. op cit. at I ‘The Aborigines’.41 Cahill, K. (2001) ‘Who owns Britain?’ Edinburgh: Cannongate Books, at Preface to the Paperback Ed., op cit. at 6.42 Ibid. Note 36.43 Pierce, K.L. (1989) ‘The society and culture of the Celts-focusing on Ireland. http://www.greyhawkes.com/text/celts.txt (Accessed: December 4, 2011) at II Social Structure.44 Ibid. Note 35.45 Pierce, K.L. (1989) ‘The society and culture of the Celts-focusing on Ireland. http://www.greyhawkes.com/text/celts.txt (Accessed: December 4, 2011) at IX The Druids.

punishment.46 Land was kept within the ‘fine’ or extended family group: bequeathed to blood

relatives (divided equally) or given as a gift, but rarely sold.47 The concept of individual

ownership may have begun with an investment in a particular piece of land, e.g. through

cultivation or creating boundaries to contain animals,48 or even to resolve conflicts,49 on the

premise that clearly defined boundaries can help prevent disputes. Rousseau stated in 1754

that, ‘The first man who, having enclosed a piece of ground, thought himself of saying, THIS

IS MINE, and found people simple enough to believe him was the real founder of civil

society.’50 Individual land ownership in Britain was therefore a giant step away from these

early collective societies.

The first dramatic change came through the Roman conquest during the 1st century AD.51

Britain’s small, unsophisticated and splintered population was easily overcome by the might

of Rome, who governed Britain through a form of enslavement, claiming the land by right of

conquest.52 They established the concept of ‘estate of uses’, renting out land for a percentage

of yield (‘usufruct’, or up to one tenth,53 according to circumstances). A few original

collective social groups of Britons or Celts were able to escape and survive over to the West

and in remote parts of Wales.54 Celtic attitudes to land also prevailed in Ireland,55 which was

never subject to the Romans. In these communities, land was still divided in the traditional

way on the death of the owner, i.e. equally between sons, even daughters, or other close

relatives.56 The Scots, however, were never conquered and occupied the Romans, hence the

construction of Hadrian’s Wall to mark the boundary of the Empire. Their land law is distinct

from that of the rest of the UK, with ongoing changes into the 21st century.57 During the

46 Ibid. op cit. at II ‘Social Structure’.47 Ibid. 48 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at ‘Introduction’ (Accessed: October, 30, 2012).49 Ibid. 50 Rousseau, J.-J. (1762) 9. Real Property, ‘On the Social Contract Book I’, in Nighan, R. (2010) Rousseau and the French Revolution, Tr. Cole, G.D.H., Nighan, R. (Ed.) at 'The Romantic Period', http://www.stjohns-chs.org/english/Romantic/Rouss.html Accessed: November 14, 2011.51 ‘Native Tribes of Britain,’ BBC History, www.bbc.co.uk/history/ancient/british_prehistory/iron_01.shtml (Accessed: November 21, 2011).52 Ibid. Note 48, op cit. at II ‘The Romans’.53 Ibid. 54 Ibid. 55 Pierce, K.L. (1989) ‘The society and culture of the Celts-focusing on Ireland. http://www.greyhawkes.com/text/celts.txt (Accessed: December 4, 2011) at I ‘Brief History’.56 Ibid. Note 48, op cit. at I Aborigines.57 ‘Wightman, A., Callander, R. & Boyd, G. (2004) ‘Common Land in Scotland: A Brief Overview’, Caledonia Centre for Social Development, at Introduction, www.scottishcommons.org/docs/commonweal_3.pdf (Accessed: December 30, 2011).

Roman occupation, however, the remainder of Britain’s land belonged to the Roman Emperor

and was controlled from a central government in Rome. While this introduced the Britons to

the concept of national cohesion, no internal national government was established and when

the Romans finally withdrew in the 5th century as their power crumbled all over the world,58

Britain was left in a worse state than before: deprived of the centralised leadership it had

grown accustomed to, but now also without the family and tribal groups that had once

structured its population.59

On the other hand, agriculture was developed in Britain by the Romans to such an extent that

Britain became the biggest food producer in the Empire.60 This, and the fact that the nation

was leaderless and vulnerable, made it a target for invaders, the most significant being the

Scandinavians from the 8th to the 11th centuries, who began by plundering Scotland, Ireland

and the North of England,61 eventually migrating from their own hostile land to Britain’s

highly favourable growing conditions and greater habitable landmass in the south.62 The

Scandinavians actually impacted Britain at two different points in history: once through these

early invasions and then indirectly in 1066 through their descendants at the Norman

Conquest.63 They had a huge influence on the English, as well as on the Scots and Irish. It is

therefore the author’s conclusion that the origins of Britain’s governmental and legal systems

lie primarily with them.

1.4 Feudalism

What is special about the relationship between the Scandinavians (e.g. the Saxons, Angles

and Jutes) in their impact on Britain is the fact they migrated rather than colonised or

occupied. They therefore established a new governmental system rather than being governed

from elsewhere.64 This is why their systems and early land law became integrated into the

very structure of Britain’s hierarchies and land distribution. They based their regional 58 Damen, M. (2011) ‘USU 1320: History and Civilisation,’ at Section 8: The Fall of Rome, II. The Barbarians Arrive: The Fourth and Fifth Centuries CE, http://www.usu.edu/markdamen/1320Hist&Civ/chapters/08ROMFAL.htm (Accessed: January 12, 2012).59 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at II ‘The Romans’.60 Ibid. 61 BBC History (2012) ‘Vikings’ at ‘Viking raids’, http://www.bbc.co.uk/history/ancient/vikings/ (Accessed: January 19, 2012).62 The Historical Association (2011) ‘Vikings: a brief history,’ http://www.history.org.uk/resources/resource_3867.html63 Hudson, J. (2011) ‘Overview: The Normans, 1066 -1154,’ BBC History, http://www.bbc.co.uk/history/british/normans/overview_normans_01.shtml (Accessed: January 19, 2012).64 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at III ‘The Scandinavians’.

sovereignty on claims of descent from the god Woden65 and gradually built a single kingdom

through the formation of alliances, the resolution of conflicts and the dominance of specific

leaders over others.66

It is at this point that feudalism first put down roots, where land (‘beneficia’)67 was divided

amongst those who had fought for it, creating the ‘liberi homines’ or freemen (the middle

class householder of today). These were the mainstay of Anglo-Saxon society and constituted

its defence force. They had the right to vote and apply law, and held hereditary rights to their

land in perpetuity.68 Land that had been fought for and won by the people, belonged to the

people (‘folc-land’)69 and lots were drawn for it at the ‘folc-gemot.’70 These constituted

‘odhall’ (allodial)71 lands that implied no obligation other than the defence of the nation72 and

the protection of one’s own tenants.73 The allocation of land was therefore by election, not by

birth, conditional on the fulfilment of military duties; it could not be given to another without

authorisation and could be returned to the king or the nation on the death of the holder.74

There were earls and regional chieftains in the Anglo-Saxon system, but the aim was to

represent and protect, not oppress the population.75 There was no ‘nobility’ as such at this

point and no absolute hereditary rights, as the essence of feudalism was the concept of a ‘life

estate.’ Later in its development, however, kings assumed their sovereign right to seize and

redistribute land, issuing it by charter (‘boc-land’).76 These two types of tenure pre-empt

modern ‘freehold’ and feudal ‘copyhold’ tenure.77, 78

65 Ibid.66 Hudson, J. (2011) ‘Overview: The Normans, 1066 -1154,’ BBC History, http://www.bbc.co.uk/history/british/normans/overview_normans_01.shtml (Accessed: January 19, 2012).67 Ibid. 68 Ibid. op cit. at IV 'The Normans'.69 Ibid. op cit. at III 'The Scandinavians'.70 Translated by Nowell as ‘commune court’, see: Brackmann, R. (2010) ‘Laurence Nowell's Edition and Translation of the Laws of Alfred in London, British Library Henry Davis 59’, at para. 12, The Heroic Age: A Journal of Early Medieval Northwestern Europe, November 2010, Issue 14.71 ‘Allōt’ or ‘full property’, was land freely held with no obligations to any overlords, but responsibilities to feudal tenants if applicable. In the Middle Ages, allodial land was all the more remarkable where most land was under feudal tenure. Encyclopedia Britannica Online (2012) ‘Allodium’, http://www.britannica.com/EBchecked/topic/16507/allodium (Accessed: January 16, 2012). 72 Ibid. Note 64.73 Ibid. 74 Ibid. 75 Ibid. 76 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at III ‘The Scandinavians’. 77 Ibid. 78 Copyhold providing fewer rights and imposing more obligations than freehold tenure (It was abolished under the Law of Property Act, 1922). See: The National Archives, Manorial Documents Register, ‘What is copyhold?’http://www.nationalarchives.gov.uk/mdr/help/mdr/mdrfaq.htm (Accessed: January 23, 2012)

Fisher claims that the future class structure of Britain was first established under the

Scandinavians, with upper, middle and lower tiers of society,79 the Crown at the head and the

‘liberi homines’ or ‘freemen’ who managed their life estates peacefully, with no implication

of superiority.80

There are various schools of thought on the origins of the word ‘feudal’. Some claim it comes

from a Germanic word for ‘cow’ which generally represented wealth that could be

transported.81 This was later adopted by the Romans in Europe, as ‘feodum.’82 A more

indicative definition is provided by Fisher, however, who sees a relationship with the

Scandinavian words ‘odhall’, meaning ‘absolute property’, and ‘fee’, meaning ‘stipend.’83 In

other words, the land represented the absolute property of either the people (as common

property), or the King, but was held for a ‘fee’, e.g. in return for defence. Eventually, land

was allocated by the king by charter in early forms of freehold tenure.84

The Scandinavians re-entered British history via the Normans through William the

Conqueror in 1066, imposing a ‘Frankish’ form on the feudal elements that had already been

established under the Scandinavians.85 The Normans had been exiled to France from Norway

for challenging for trying to insist on the rule of primogeniture for land ownership86 rather

than equal distribution amongst the sons of the deceased. The classic feudal structure that we

identify with Western Europe, however, consisted of the king, who was the absolute owner of

all land; a hierarchy of nobility that would hold some of the king’s land, amongst whom the

‘seigneur’ (lord) would manage one manor as a ‘vassal’ of a ‘suzerain’ (overlord), and the

‘serfs’ (peasant class) who worked the land in hereditary service for the seigneur in exchange

for a ‘demesne’ they could farm for their own benefit. It was the suzerain who granted the

‘fief’ to the vassal in a formal ceremony of homage where the latter swore an oath of ‘fealty’

(loyalty) to the former, thus transferring the land in an early form of tenancy. Although this

had to be renewed on the death of either party, in practice it amounted to a form of hereditary

fealty.

79 Ibid. Note 76.80 Hudson, J. (2011) ‘Overview: The Normans, 1066 -1154,’ BBC History, http://www.bbc.co.uk/history/british/normans/overview_normans_01.shtml (Accessed: January 19, 2012). 81 The Columbia Electronic Encyclopedia (2007) ‘Feudalism’, Columbia University Press, at ‘Spread’, www.cc.columbia.edu/cu/cup/ (Accessed: November 2, 2012).82 Ibid. 83 Ibid. Note 76.84 Ibid. 85 Ibid. Note 81.86 Ibid. Note 76, op cit. at IV ‘The Normans’.

In 1066, William, Duke of Normandy invaded Britain to take the British throne by force, on

the grounds that Edward the Confessor’s promise to him of the English throne had been

broken. William the Conqueror subsequently landed on England’s shores to fight and defeat

the newly crowned King Harold and establish his own order.87

This time, the feudal structure was imposed by force and centred upon an autocratic king.

Land was confiscated to establish a stratum of Norman aristocracy and clergy,88 but these all

swore fealty and paid homage to William I as his vassals. William controlled his kingdom by

building castles in strategic positions, such as along the Welsh borders 89and offering large

estates in return for defence.90 However, subinfeudation around these powerful ‘tenants’

created private forces that would later threaten future kings91 and thus, the sovereignty of the

Crown. In fact, by the end of William’s reign, a small group of nobles held half of England’s

land.92

William also ensured that powerful positions in the Church were occupied by French clergy

who would support rather than oppose him93 and appointed nobles as sheriffs to administer

justice in each region, with a consequent blend of Anglo-Saxon, Roman and Norman law.94

Normandy already had a well-organised system of taxation that maximised profit for the

King’s treasury in both direct and indirect ways.95 In Britain, tax (‘geld’) was based on the

value of the land and in order to centralise his treasury and efficiently generate income from

the nation more efficiently, William I created the land register known as The Domesday

Book in 1086.96 Maintaining the security of his reign was expensive, but in this way, William

could identify all the principal landowners and make them swear fealty to him as his vassals,

instead of as freemen.97 This differed from the feudalism of Continental Europe, where the

87 The Royal Household (2009) ‘William I ‘The Conqueror’’, The Official Website of the British Monarchy, http://www.royal.gov.uk/historyofthemonarchy/kingsandqueensofengland/thenormans/williamitheconqueror.aspx (Accessed: January 20, 2012).88 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at IV ‘The Normans’.89 BBC History (2012) ‘William the Conqueror (c.1028 - c.1087)’, http://www.bbc.co.uk/history/historic_figures/william_i_king.shtml (Accessed: January 21, 2012).90 Ibid. Note 88.91 Ibid. Note 89. 92 Ibid. 93 Ibid. 94 Ibid. 95 Whiting, J., ‘It all comes round again’, Domesday Book and Taxation, The National Archives, http://www.nationalarchives.gov.uk/documentsonline/taxation.asp (Accessed: January 20, 2012). 96 BBC History (2012) ‘William the Conqueror (c.1028 - c.1087)’, http://www.bbc.co.uk/history/historic_figures/william_i_king.shtml (Accessed: January 21, 2012). 97 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at IV ‘The Normans’.

aristocracy maintained their independence from the monarchy, and each vassal was directly

subject to his suzerain,98 or overlord rather than the king.

However, a great deal of importance was placed on defence and so much was invested in

securing military service and equipping militia; the system gradually empowered the nobility

with vast landowning wealth and military power to the point where the monarchy could

realistically be challenged.99 The layer of nobility grew as estates were divided and delegated

to family members or knights, since many fiefs were large and would have been difficult for a

lord to govern alone. Despite the fact that the land remained the possession of the king, with

accompanying inheritance tax, the fief was passed on from one generation to the next.100

Meanwhile, the nobles had absolute power over the peasant class that worked and depended

on the estates.

In addition to this, the Church (at this stage, the Catholic Church) played a major role in the

development and maintenance of the feudal system; it was the only real universal governing

force in Europe101 and remained in a dynamic relationship with government, inspiring

development, and itself being empowered by its position and extensive resources, such as

land.102 Many church leaders were active in politics and government. It could even be said

that the ‘State existed within the Church,’103 although inevitable confusion arose between the

‘temporal’ duties of the State and the ‘spiritual’ responsibilities of the Church.104 This is

another topic too vast to explore here, but which must nevertheless be considered as a

background to the absolutism of the age. The mediaeval Church played a vital role in

establishing the ideological foundations of the contemporary world,105 despite the negative

image it tends to conjure up of superstition and corruption. Systems of welfare for the poor,

hospitals and universities were founded all over Europe and the English House of Lords was

largely an elected body, as opposed to the hereditary institution it became after the

98 Ibid. 99 The Royal Household (2009) ‘William I ‘The Conqueror,’’ The Official Website of the British Monarchy, http://www.royal.gov.uk/historyofthemonarchy/kingsandqueensofengland/thenormans/williamitheconqueror.aspx (Accessed: January 20, 2012).100 West's Encyclopedia of American Law, 2nd Ed. (2008) ‘Feudalism,’ The Gale Group, Available at: http://legal-dictionary.thefreedictionary.com/Feudalism (Accessed: December 3, 2011).101 Finigan, T. (2009) ‘The origin and development of the Middle Ages’, Faith Magazine, in ‘The Middle Ages Folder’ http://www.churchinhistory.org/pages/middleages/middleages.htm (Accessed: November 08, 2011). 102 Orlandis, J. (2001) ‘Christianity in feudal Europe’, Faith Magazine, at 1, in ‘Middle Ages Folder’. http://www.churchinhistory.org/pages/middleages/middleages.htm (Accessed: December 3, 2011).103 Ibid. 104 Ibid. 105 Orlandis, J. (2001) ‘Christianity in feudal Europe’, Faith Magazine, at 1, in ‘Middle Ages Folder’. http://www.churchinhistory.org/pages/middleages/middleages.htm (Accessed: December 3, 2011).

Reformation.106 There is also the fact that Roman Catholicism is just that: The Church of

Rome, maintaining elements of the empire of the Caesars107 and providing some cohesion

within Europe and the wider world.

What is especially ironic is that the Scandinavian countries did not fully adopt feudalism

during the Middle Ages, and feudalism was later destroyed in France during the French

Revolution of (1789),108 whereas it endured in a far more visible form in Britain through its

monarchy and aristocracy.

1.5 The Development of the Concept of Land as Property

The period which followed the reign of the Norman kings, known as the ‘Plantagenet’ era, is

characterised by King John’s ‘Magna Carta,’109 which established the roots of democracy by

limiting the power of the King, civil war (the Wars of the Roses),110 and major demographic

change through the growth of towns.111 In real terms this limited the power of the monarch

and eroded feudalism. Some of these changes were due to events in a wider sphere, such as

the rise of other sovereign powers across Europe and the general advancements in

communications.112 The isolated manorial estates were no longer the centres of population,

but towns were developing, giving rise to a new ‘burgess’ class.113

It was a time when the powerful descendants of barons established by William the Conqueror

were able to manipulate weaker kings, while the nation was crippled by civil war. The

population of England was actually significantly reduced during the 300 years of Plantagenet

rule114 and the nobles almost eradicated the liberi homines by dispossessing them of their

allodial rights,115 thus breaking the back of the society that had formed under the Normans.116

On the other hand, one positive outcome of this period was the end of slavery (the position of

106 Ibid. 107 Ibid. 108 The Columbia Electronic Encyclopedia (2007) ‘Feudalism’, Columbia University Press, at ‘Spread’, www.cc.columbia.edu/cu/cup/ (Accessed: November 2, 2012), at ‘Decline.’109 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at V 'The Plantagenets'.110 A series of brutal civil wars between supporters and retainers of powerful lords in the 15th century, Jokinen, A. (2007) Luminarium Encyclopedia Project, at ‘The Wars of the Roses: (1455-1485)’ http://www.luminarium.org/encyclopedia/warsoftheroses.htm (Accessed: January 21, 2012).111 Ibid. Note 108. 112 Ibid. 113 Ibid. 114 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at V ‘The Plantagenets’.115 Ibid. 116 Ibid. op cit. at VI ‘The Tudors’.

the serf and the ‘villein’).117 Citing Bracton, a 13th century lawyer,118 ‘All the goods a slave

acquired belonged to his master, who could take them from him whenever he pleased.’ There

was no way for a slave to purchase his freedom, but there were a few, rare cases of

enfranchisement (meaning in this context the elevation of a slave to the position of a

freeman).119 However, many serfs escaped to the towns and cities seeking asylum from

alleged abuses on the part of their masters. Later, under Richard II in the latter part of the

14th century,120 the lower classes cohesively protested on the following points: a final and

total abolition of slavery, reductions in land rent, permission to trade produce, and pardon for

offences.121 At least some of these demands were met.122 Furthermore, the nobility turned to

the serf classes to recruit for their armies, having crushed the liberi homines, and so the

relationship between serfs and their masters was destined to change.123

Some other interesting events from this time124 involved efforts by Edward III to rebalance

power in the nation, by reinforcing the rights of the Crown as opposed to the power of the

nobles and the Church. He stated:

“That the King is the universal lord and original proprietor of all land in his kingdom, that no

man doth, or can possess, any part of it but what has mediately or immediately been derived

as a gift from him to be held in feudal service.”125

He also created new titles, such as dukedoms, and invited individuals other than the

descendants of Norman barons and nobles by writ to Parliament. However, he later gave

landowners the right to sell their estates and permitted hereditary rights to the nobility in

order to gain support for campaigns. Thus empowered, the aristocracy ultimately brought

down the Plantagenet rulers.126

Many more radical changes were to come under Tudor rule. Henry VII regained the power of

the Crown.127 He also abolished the ‘fee’ of military service, substituting it with money rent.

117 Ibid.118 Ibid. op cit. at V ‘The Plantagenets’.119 Ibid. 120 Bremner, I. (2011) ‘Richard II, 1377-1399,’ http://www.bbc.co.uk/history/british/middle_ages/richardii_reign_01.shtml (Accessed: January 21, 2012).121 Ibid. Note 114, op cit. at VI ‘The Tudors’.122 Ibid. op cit. at V ‘The Plantagenets’.123 Ibid. 124 Jokinen, A. (2011) Luminarium Encyclopedia Project, ‘The Hundred Years War’, at ‘King Edward III of England (1312-1377)’, http://www.luminarium.org/encyclopedia/edward3.htm (Accessed: January 19, 2012).125 Ibid. Note 114.126 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at V ‘The Plantagenets’.127 Ibid. op cit. at VI The Tudors.

Unfortunately, as the tenants had been soldiers not farmers, they had no means of generating

income from their estates. Smaller farms were not lucrative for the big landowners, who now

sought money, and they cleared their lands, dispossessing their tenants and creating poverty

on a massive scale with executions on the grounds of vagrancy. Farming and food production

deteriorated along with the land and buildings associated with it, while the population of the

countryside gradually disappeared. Henry VII was obliged to pass many acts to stimulate

agriculture once more, but there were no longer sufficient incentives.128 The destitution that

ensued led the series of ‘Poor Laws,’129 which met some of the needs of the poorest members

of the society. In various forms, this body of laws remained in force from the 16th century till

after the Second World War, with a system of ‘workhouses’ for those able to work and thus

earn their board.

The plight of the poor was further exasperated by the suppression of the monasteries, which

had hitherto been a source of charity. Henry VIII famously broke away from the Catholic

Church, and established himself as head of the Church of England, thus consolidating all

possible sources of sovereignty in himself and the Crown.130 Land which had once been held

by religious communities and used for purposes that benefited the people, e.g. for education

and charitable works, was confiscated and given to the King’s companions.131 The Tudor era

therefore planted the seeds of land ownership as we know it today, by imposing money rent

as opposed to military service. It was still essentially feudal, in that the land belonged to the

Crown,132 but land was gradually becoming ‘private property’ with certain hereditary

rights.133

In the context of providing historical background to this dissertation, the final piece in the

jigsaw can be found amongst the Stuart rulers who united the Scottish and English thrones for

the first time in the 17th and 18th centuries.134 They take us up to the German ‘House of

Hanover’135 that preceded our current monarchy, the House of Windsor. The great 18th

128 Ibid. 129 Encyclopedia Britannica (2012) ‘Poor Law’, Encyclopedia Britannica Online, http://www.britannica.com/EBchecked/topic/469923/Poor-Law (Accessed: January 21, 2012).130 BBC History (2012) ‘Henry VIII (1491 - 1547)’ http://www.bbc.co.uk/history/historic_figures/henry_viii_king.shtml (Accessed: January 21, 2012).131 Ibid. Note 126, op cit. at VII ‘The Stuarts’.132 Ibid. 133 Ibid. 134 The Official Website of the British Monarchy (2010/1011) ‘The Stuarts’, http://www.royal.gov.uk/HistoryoftheMonarchy/KingsandQueensoftheUnitedKingdom/TheStuarts/TheStuarts.aspx (Accessed: January 19, 2012).135 Encyclopedia Britannica (2012) ‘House of Hanover’ Encyclopedia Britannica Online, http://www.britannica.com/EBchecked/topic/254505/House-of-Hanover (Accessed: January 23, 2012).

century English lawyer, Sir William Blackstone,136, 137 describes the radical changes in

landownership brought about during this reign as:

"A greater acquisition to the civil property of this kingdom than even Magna Charta itself,

since that only pruned the luxuriances that had grown out of military tenures, and thereby

preserved them in vigor; but the statute of King Charles extirpated the whole, and demolished

both root and branches."

Here, Blackstone was referring to Charles II’s statute that abolished The Court of Ward and

Liveries in 1541. The Court of Ward and Liveries aimed at administering the collection of

feudal revenue owed the Crown as the ultimate landlord.138 Fisher actually sees this act as an

eradication of the rights of the citizen represented by the Crown. It indicated the initial

conception of land as ‘property.’139 On the other hand, Edward the II’s law governing the

absolute ownership of land on the part of the Crown was never actually repealed.140

Consequently, as we have already observed, ‘No lawyer will assert for any English subject a

higher title than tenancy-in-fee, which bears the impress of holding and denies the assertion

of ownership.’141 To give some idea of scale, a report from 1696, provides some figures for

the country at this time, with a population of 5,318,000, living on average, four to a house,

with seven acres of land per capita,142 which actually seems quite generous in comparison

with the overcrowding experienced in urban areas today, although land at that time

represented a means of basic survival.

The Stuart reign spanned just 111 years,143 but is sharply defined as a time when the power of

the English monarchy was profoundly undermined and the prominence of Parliament raised.

For example, James I tried hard to re-establish the Crown as absolute owner of land on behalf

of the nation, but he was unsuccessful in the face of uncooperative nobility. His successor,

Charles I,144 continued to try and impose royal control but in the absence of the feudal

136 Duhaime. L. (2007) ‘Blackstone, Sir William (1723-1780)’ http://www.duhaime.org/LawMuseum/lawarticle-271/blackstone-sir-william-17231780.aspx (Accessed: January 23, 2012).137 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, op cit. at VII ‘The Stuarts’.138 The National Archives, ‘Records of the Court of Wards and Liveries’, at ‘Administrative/ biographical background,’ http://discovery.nationalarchives.gov.uk/SearchUI/Details.mvc/Collection/?iAID=258 (Accessed: January 23, 2012).139 Ibid. Note 137.140 Ibid. 141 Ibid. 142 Ibid. 143 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at VII ‘The Stuarts’.

military forces once available for the monarch, he was obliged to confront resistance from the

people themselves with professional soldiers. The House of Commons145 now held the

nation’s resources and money had become more important than tenancy in fee in determining

the power to enforce or resist. It demonstrated that those who had the resources could

overcome law.146 Abandoned land was then redistributed by Cromwell,147 the leader of the

17th century revolution that overturned the monarchy and established military power at the

head of the nation. Land was consequently freed from any remaining feudal obligations, with

the support and approval of the House of Commons, who sought to reduce the power and

resources of the King and increase the power of Parliament.

The army developed into a standing, independent body,148 and became responsible for the

election of the king, and ultimately for governing the nation.149 The Stuart doctrine of the

‘Divine Right of Kings’ and right to the throne by birth was replaced by accession through

statute 150 Nevertheless, legislation passed under the Stuart rulers always favoured the

landowner at the expense of the lower classes. Yet again, an oligarchy was created that

threatened the King’s interests and succeeded in re-instating their privileges. Regardless of

birth or title, Parliament not only became the nation’s decision maker, but also its landlord,

through the creation of freehold.151

Following this examination of the twists and turns of power and control in Britain, one is left

with a dilemma: although the right to buy, sell and inherit land under terms apparently close

to ‘ownership’ sets people free from obligations to superiors and potentially creates wealth

and social mobility, it also puts an end to the concept of land as the common property of man.

Land is a vital resource for sustaining life and creating an environment that favours health

and prosperity within a nation and this suggests a need for some authority over how it is

managed. In other words, there is a strong case for suggesting that land represents a resource

144 The Official Website of the English Monarchy (2012/11) ‘Charles I (r. 1625-1649)’ http://www.royal.gov.uk/historyofthemonarchy/kingsandqueensoftheunitedkingdom/thestuarts/charlesi.aspx (Accessed: January 23, 2012).145 A Parliamentary body that originated towards the end of the 13th century, when landowners who were not of noble birth or from the clergy, began to petition the king, and were eventually chosen as representatives to sit in the ‘House of Commons’, as is the case today, Encyclopedia Britannica, ‘House of Commons,’ http://www.britannica.com/EBchecked/topic/128885/House-of-Commons/215005/History (Accessed: January 23, 2012).146 Ibid. Note 143, op cit. at VIII ‘The House of Hanover’. 147 The Cromwell Association and the Cromwell Museum (2001) ‘Cromwell – a brief biography’, at Cromwell the Politician’, The Oliver Cromwell Website, http://www.olivercromwell.org/ (Accessed: January 21, 2012).148 Ibid. Note 143, op cit. at VIII ‘The House of Hanover’.149 Ibid. Note 143. 150 Ibid. op cit. at VIII ‘The House of Hanover’.151 Ibid.

that should be governed by a higher set of rules than mere individual interests. Louis XIV

stated that “the need for bread is the first thing a prince should care about,”152 and in an ideal

world, the Crown can govern the land on behalf of the people, ensuring that the needs of the

citizens are met, rather along the lines of Karl Marx’s famous Communist ideology: ‘From

each according to his ability and to each according to his need.’153 History shows us,

however, that the desire for individual profit can supersede the ‘common good’154 resulting in

great social inequality and material need.155 In the light of this debate, the following chapters

will attempt to identify sovereignty and its value, first in the abstract, and then in relation to

the Crown and the European Community’s management of land as a resource.

152 Amato, G., ‘Part III: Partial Convergence of National Legal Systems,’ in Snyder, F & Maduro, M. (2000) ‘The Europeasation of Law: The legal effects of European integration,’ Oxford-Portland, Oregon: Hart Publishing, at 156. 153 Cited in: Heubusch, J. (2011) ‘Let’s Redistribute the Wealth, But How?’ Forbes, http://www.forbes.com/sites/realspin/2011/11/01/lets-redistribute-the-wealth-but-how/ (Accessed: January 23, 2012).154 Fisher, J. ‘The History of Landholding in England,’ Release #3799, Project Gutenberg, http://www.gutenberg.org/catalog/world/readfile?fk_files=1453539&pageno=1, at VIII ‘The House of Hanover’.155 Ibid.