Landholding in England

by F.R.H.S. Joseph Fisher

It was enacted that no person shall have or keep on lands not their own inheritance more than 2000 sheep, under a penalty of 3s. 4d. per annum for each sheep; lambs under a year old not to be counted; and that no person shall occupy two farms.

Further measures appeared needful to prevent the evil; and the 27th Henry VIII., cap. 22, states that the 4th Henry VII., cap. 19, for keeping houses in repair, and for the tillage of the land, had been enforced on lands holden of the king, but neglected by other lords. It, therefore, enacted that the king shall have the moiety of the profits of lands converted from tillage to pasture, since the passing of the 4th Henry VII., until a proper house is built, and the land returned to tillage; and in default of the immediate lord taking the profits as under that act, the king might take the same. This act extended to the counties of Lincoln, Nottingham, Leicester, Warwick, Rutland, Northampton, Bedford, Buckingham, Oxford, Berkshire, Isle of Wight, Hertford, and Cambridge.

The simple fact was, that those who had formerly paid the rent of their land by service as soldiers were without the capital or means of paying rent in money; they were evicted and became vagrants. Henry VIII. took a short course with these vagrants, and it is asserted upon apparently good authority that in the course of his reign, thirty-six years, he hanged no less than 72,000 persons for vagrancy, or at the rate of 2000 per annum. The executions in the reign of his daughter, Queen Elizabeth, had fallen to from 300 to 400 per annum.

32 Henry VIII., cap. 1, gave powers of bequest with regard to land; as it explains the change it effected, I quote it:

"That all persons holding land in socage not having any lands holden by knight service of the king in chief, be empowered to devise and dispose of all such socage lands, and in like case, persons holding socage lands of the king in chief, and also of others, and not having the lands holden by knight service, saving to the king, all his right, title, and interest for primer seizin, reliefs, fines for alienations, etc. Persons holding lands of the king by knight's service in chief were authorized to devise two third parts thereof, saving to the king wardship, primer seizin, of the third paid, and fines for alienation of the whole lands. Persons holding lands by knight's service in chief, and also other lands by knight's service, or otherwise may in like manner devise two third part thereof, saving to the king wardship of the third, and fines for alienation of the whole. Persons holding land of others than the king by knight's service, and also holding socage lands, may devise two third parts of the former and the whole of the latter, saving to the lord his wardship of the third part. Persons holding lands of the king by knight's service but not in chief, or so holding of the king and others, and also holding socage lands, may in like manner devise two thirds of the former and the whole of the latter, saving to the king the wardship of the third part, and also to the lords; and the king or the other lords were empowered to seize the one third part in case of any deficiency."

The 34th and 35th Henry VIII., cap. 5, was passed to remove some doubts which had arisen as to the former statute; it enacts:

"That the words estates of inheritance should only mean estates in fee-simple only, and empowers persons seized of any lands, etc., in fee-simple solely, or in co-partnery (not having any lands holden of knight's service), to devise the whole, except corporations. Persons seized in fee-simple of land holden of the king by knight's service may give or devise two thirds thereof, and of his other lands, except corporation, such two thirds to be ascertained by the divisor or by commission out of the Court of Ward and Liveries. The king was empowered to take his third land descended to the heir in the first place, the devise in gift remaining good for the two thirds; and if the land described were insufficient to answer such third, the deficiency should be made up out of the two thirds."

"The next attack," remarks Sir William Blackstone, vol. ii., p. 117, "which they suffered in order of time was by the statute 32 Henry VIII., c. 28, whereby certain leases made by tenants in tail, which do not tend to prejudice the issue, were allowed to be good in law and to bind the issue in tail. But they received a more violent blow the same session of Parliament by the construction put upon the statute of fines by the statute 32 Henry VIII., cap. 36, which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII., whose policy was (before common recovery had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched in his act under covert and obscure expressions; and the judges, though willing to construe that statute as favorably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication when the statute DE DONIS had expressly declared that they should not be a bar to estates-tail. But the statute of Henry VIII., when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention."

Fitzherbert, one of the judges of the Common Pleas in the reign of Henry VIII., wrote a work on surveying and husbandry. It contains directions for draining, clearing, and inclosing a farm, and for enriching the soil and reducing it to tillage. Fallowing before wheat was practised, and when a field was exhausted by grain it was allowed to rest. Hollingshed estimated the usual return as 16 to 20 bushels of wheat per acre; prices varied very greatly, and famine was of frequent recurrence. Leases began to be granted, but they were not effectual to protect the tenant from the entry of purchasers nor against the operation of fictitious recoveries.

In the succeeding reigns the efforts to encourage tillage and prevent the clearing of the farms were renewed, and among the enactments passed were the following: