Besides the Schoolmen, by whom the problems of life were viewed in the refracted light of theology and philosophy, there was another important class in mediaeval times which exercised itself over the same social questions, but visaged them from an entirely different angle. This was the great brotherhood of the law, which, whether as civil or canonical, had its own theories of the rights of private ownership. It must be remembered, too, that just as the theologians supported their views by an appeal to what were considered historic facts in the origin of property, so, too, the legalists depended for the material of their judgment on circumstances which the common opinion of the time admitted as authentic.

When the West drifted out from the clouds of barbaric invasion, and had come into calm waters, society was found to be organised on a basis of what has been called feudalism. That is to say, the natural and universal result of an era of conquest by a wandering people is that the new settlers hold their possessions from the conqueror on terms essentially contractual. The actual agreements have varied constantly in detail, but the main principle has always been one of reciprocal rights and duties. So at the early dawn of the Middle Ages, after the period picturesquely styled the Wanderings of the Nations, we find the subjugating races have encamped in Europe, and hold it by a series of fiefs. The action, for example, of William the Norman, as plainly shown in Domesday Book, is typical of what had for some three or four centuries been happening here and on the Continent. Large tracts of land were parcelled out among the invading host, and handed over to individual barons to hold from the King on definite terms of furnishing him with men in times of war, of administering justice within their domains, and of assisting at his Council Board when he should stand in need of their advice. The barons, to suit their own convenience, divided up these territories among their own retainers on terms similar to those by which they held their own. And thus the whole organisation of the country was graduated from the King through the greater barons to tenants who held their possessions, whether a castle, or a farm, or a single hut, from another to whom they owed suit and service.

This roughly (constantly varying, and never actually quite so absolutely carried out) is the leading principle of feudalism. It is clearly based upon a contract between each man and his immediate lord; but, and this is of importance in the consideration of the feudal theory of private property, whatever rights and duties held good were not public, but private. There was not at the first, and in the days of what we may call "pure feudalism," any concept of a national law or natural right, but only a bundle of individual rights. Appeal from injustice was not made at a supreme law-court, but only to the courts of the barons to whom both litigants owed allegiance. The action of the King was quite naturally always directed towards breaking open this enclosed sphere of influence, and endeavouring to multiply the occasions on which his officials might interfere in the courts of his subjects. Thus the idea gradually grew up (and its growth is perhaps the most important matter of remark in mediaeval history), by which the King's law and the King's rights were looked upon as dominating those of individuals or groups. The courts baron and customary, and the sokes of privileged townships were steadily emptied of their more serious cases, and shorn of their primitive powers. This, too, was undoubtedly the reason for the royal interference in the courts Christian (the feudal name for the clerical criminal court). The King looked on the Church, as he looked on his barons and his exempted townships, as outside his royal supremacy, and, in consequence, quarrelled over investiture and criminous clerks, and every other point in which he had not as yet secured that his writs and judgments should prevail. There was a whole series of courts of law which were absolutely independent of his officers and his decision. His restless energy throughout this period had, therefore, no other aim than to bring all these into a line with his own, and either to capture them for himself, or to reduce them to sheer impotence. But at the beginning there was little notion of a royal judge who should have power to determine cases in which barons not immediately holding their fiefs of the King were implicated. The concern of each was only with the lord next above him. And the whole conception of legal rights was, therefore, considered simply as private rights.

The growth of royal power consequently acted most curiously on contemporary thinkers. It meant centralisation, the setting up of a definite force which should control the whole kingdom. It resulted in absolutism increasing, with an ever-widening sphere of royal control. It culminated in the Reformation, which added religion to the other departments of State in which royal interference held predominance. Till then the Papacy, as in some sort "a foreign power," world-wide and many-weaponed, could treat on more than equal terms with any European monarch, and secure independence for the clergy. With the lopping off of the national churches from the parent stem, this energising force from a distant centre of life ceased. Each separate clerical organisation could now depend only on its own intrinsic efficiency. For most this meant absolute surrender.

The civil law therefore which supplanted feudalism entailed two seemingly contradicting principles which are of importance in considering the ownership of land. On the one hand, the supremacy of the King was assured. The people became more and more heavily taxed, their lands were subjected to closer inspection, their criminal actions were viewed less as offences against individuals than as against the peace of the King. It is an era in which, therefore, as we have already stated, the power of the individual sinks gradually more and more into insignificance in comparison with the rising force of the King's dominion. Private rights are superseded by public rights.

Yet, on the other hand, and by the development of identically the same principles, the individual gains. His tenure of land becomes far less a matter of contract. He himself escapes from his feudal chief, and his inferior tenants slip also from his control. He is no longer one in a pyramid of grouped social organisation, but stands now as an individual answerable only to the head of the State. He has duties still; but no longer a personal relationship to his lord. It is the King and that vague abstraction called the State which now claim him as a subject; and by so doing are obliged to recognise his individual status. This new and startling prominence of the individual disturbed the whole concept of ownership. Originally under the influence of that pure feudalism which nowhere existed in its absolute form, the two great forces in the life of each member of the social group were his own and that of his immediate lord. These fitted together into an almost indissoluble union; and therefore absolute ownership of the soil was theoretically impossible. Now, however, the individual was emancipated from his lord. He was still, it is true, subject to the King, whose power might be a great deal more oppressive than the barons' had been. But the King was far off, whereas the baron had been near, and nearly always in full evidence. Hence the result was the emphasis of the individual's absolute dominion. Not, indeed, as though it excluded the dominion of the King, but precisely because the royal predominance could only be recognised by the effective shutting out of the interference of the lord. To exclude the "middle-man," the King was driven to recognise the absolute dominion of the individual over his own possessions.

This is brought out in English law by Bracton and his school. Favourers as they were of the royal prerogative, they were driven to take up the paradoxical ground that the King was not the sole owner of property. To defend the King they were obliged to dispossess him. To put his control on its most effective basis, they had no other alternative left them than to admit the fullest rights of the individual against the King. For only if the individual had complete ownership, could there be no interference on the part of the lord; only if the possessions of the tenants were his own, were they prevented from falling under the baronial jurisdiction. Therefore by apparently denying the royal prerogative the civil lawyers were in effect, as they perfectly well recognised, really extending it and enabling it to find its way into cases and courts where it could not else well have entered.

Seemingly, therefore, all idea of socialism or nationalisation of land (at that date the great means of production) was now excluded. The individualistic theory of property had suddenly appeared; and simultaneously the old group forms, which implied collectivism in some shape or other, ceased any longer to be recognised as systems of tenure. Yet, at the same time, by a paradox as evident as that by which the civilians exalted the royal prerogative apparently at its own expense, or as that by which Wycliff's communism is found to be in reality a justification of the policy of leaving things as they are, while St. Thomas's theory of property is discovered as far less oppressive and more adaptable to progressive developments of national wealth, it is noticed that, from the point of view of the socialist, monarchical absolutism is the most favourable form of a State's constitution. For wherever a very strictly centralised system of government exists, it is clear that a machinery, which needs little to turn it to the advantage of the absolute rule of a rebellious minority, has been already constructed. In a country where, on the other hand, local government has been enormously encouraged, it is obviously far more difficult for socialism to force an entrance into each little group. There are all sorts of local conditions to be squared, vagaries of law and administration to be reduced to order, connecting bridges to be thrown from one portion of the nation to the next, so as to form of it one single whole. Were the socialists of to-day to seize on the machinery of government in Germany and Russia, they could attain their purposes easily and smoothly, and little difference in constitutional forms would be observed in these countries, for already the theory of State ownership and State interference actually obtains. They would only have to substitute a bloc for a man. But in France and England, where the centralisation is far less complete, the success of the socialistic party and its achievement of supreme power would mean an almost entire subversal of all established methods of administration, for all the threads would have first to be gathered into a single hand.

Consequently feudalism, which turned the landowners into petty sovereigns and insisted on local courts, &c., though seemingly communistic or socialistic, was really, from its intense local colouring, far less easy of capture by those who favoured State interference. It was individualistic, based on private rights. But the new royal prerogative led the way to the consideration of the evident ease by which, once the machine was possessed, the rest of the system could without difficulty be brought into harmony with the new theories. To make use of comparison, it was Cardinal Wolsey's assumption of full legatine power by permission of the Pope which first suggested to Henry VIII that he could dispense with His Holiness altogether. He saw that the Cardinal wielded both spiritual and temporal jurisdiction. He coveted his minister's position, and eventually achieved it by ousting both Clement and Wolsey, who had unwittingly shown him in which way more power lay.

So, similarly, the royal despotism itself, by centralising all power into the hands of a single prince, accustomed men to the idea of the absolute supremacy of national law, drove out of the field every defender of the rights of minorities, and thus paved the way for the substitution of the people for itself. The French Revolution was the logical conclusion to be drawn from the theories of Louis XIV. It needed only the fire of Rousseau to burn out the adventitious ornamentation which in the shape of that monarch's personal glorification still prevented the naked structure from being seen in all its clearness. L'Etat c'est moi can be as aptly the watchword of a despotic oligarchy, or a levelling socialism, as of a kingly tyranny, according as it passes from the lips of the one to the few or the many. It is true that the last phase was not completed till long after the Middle Ages had closed, but the tendency towards it is evident in the teachings of the civil lawyers.

Thus, for example, State absolutism is visible in the various suggestions made by men like Pierre du Bois and Wycliff (who, in the expression of their thoughts, are both rather lawyers than schoolmen) to dispossess the clergy of their temporalities. The principles urged, for instance, by these two in justification of this spoliation could be applied equally well to the estates of laymen. For the same principles put into the King's hand the undetermined power of doing what was necessary for the well-being of the State. It is true that Pierre du Bois (De Recuperatione Terre Sancte, pp. 39-41, 115-8) asserted that the royal authority was limited to deal in this way with Church lands, and could not touch what belonged to others. But this proviso was obviously inserted so arbitrarily that its logical force could not have had any effect. Political necessity alone prevented it from being used against the nobility and gentry.

Ockham, however, the clever Oxford Franciscan, who formed one of the group of pamphleteers that defended Louis of Bavaria against Pope John XXII, quite clearly enlarged the grounds for Church disendowment so as to include the taking over by the State of all individual property. He was a thinker whose theories were strangely compounded of absolutism and democracy. The Emperor was to be supported because his autocracy came from the people. Hence, when Ockham is arguing about ecclesiastical wealth, and the way in which it could be quite fairly confiscated by the Government, he enters into a discussion about the origin of the imperial dignity. This, he declares, was deliberately handed over by the people to the Emperor. To escape making the Pope the original donor of the imperial title, Ockham concedes that privilege to the people. It was they, the people, who had handed over to the Caesars of the Holy Roman Empire all their own rights and powers. Hence Louis was a monarch whose absolutism rested on a popular basis. Then he proceeds in his argument to say that the human positive law by which private property was introduced was made by the people themselves, and that the right or power by which this was done was transferred by them to the Emperor along with the imperial dignity.Louis, therefore, had the same right to undo what they had done, for in him all their powers now resided. This, of course, formed an excellent principle from which to argue to his right to dispossess the Church of its superfluous wealth—indeed of all its wealth. But it could prove equally effectual against the holding by the individual of any property whatever. It made, in effect, private ownership rest on the will of the prince.

Curiously, too, in quite another direction the same form of argument had been already worked out by Nicole Oresme, a famous Bishop of Lisieux, who first translated into French the Politics of Aristotle, and who helped so largely in the reforms of Charles V of France. His great work was in connection with the revision of the coinage, on which he composed a celebrated treatise. He held that the change of the value of money, either by its deliberate depreciation, or by its being brought back to its earlier standard of face value, carried such widespread consequences that the people should most certainly be consulted on it. It was not fair to them to take such a step without their willing co-operation. Yet he admits fully that, though this is the wiser and juster way of acting, there was no absolute need for so doing, since all possession and all property sprang from the King. And this last conclusion was advocated by his rival, Philip de Meziers, whose advice Charles ultimately followed. Philip taught that the king was sole judge of whatever was for public use.

But there was a further point in the same question which afforded matter for an interesting discussion among the lawyers. Pope Innocent IV, who had first been famous as a canonist, and retained as Pontiff his old love for disputations of this kind, developed a theory of his own on the relation between the right of the individual to possess and the right of the State over that possession. He distinguished carefully between two entirely different concepts, namely, the right and its exercise. The first he admitted to be sacred and inviolable, because it sprang from the very nature of man. It could not be disturbed or in any way molested; the State had therefore no power to interfere with the right. But he suggested that the exercise of that right, or, to use his actual phrase, the "actions in accord with that right," rested on the basis of civil, positive law, and could therefore be controlled by legal decisions. The right was sacred, its exercise was purely conventional. Thus every man has a right to property; he can never by any possible means divest himself of it, for it is rooted in the depths of his being, and supported by his human nature. But this right appears especially to be something internal, intrinsic. For him to exercise it—that is to say, to hold this land or that, or indeed any land at all—the State's intervention must be secured. At least the State can control his action in buying, selling, or otherwise obtaining it. His right cannot be denied, but for reasons of social importance its exercise well may be. Nor did this then appear as a merely unmeaning distinction; he would not admit that a right which could not be exercised was hardly worth consideration. And, in point of fact, the Pope's private theory found very many supporters.

There were others, however, who judged it altogether too fantastical. The most interesting of his opponents was a certain Antonio Roselli, a very judiciously-minded civil lawyer, who goes very thoroughly into the point at issue. He gives Innocent's views, and quotes what authority he can find for them in the Digest and Decretals. But for himself he would prefer to admit that the right to private property is not at all sacred or natural in the sense of being inviolable. He willingly concedes to the State the right to judge all claims of possession. This is the more startling since ordinarily his views are extremely moderate, and throughout the controversy between Pope and Emperor he succeeded in steering a very careful, delicate course. To him, however, all rights to property were purely civil and arguable only on principles of positive law. There was no need, therefore, to discriminate between the right and its exercise, for both equally could be controlled by the State. There are evidences to show that he admitted the right of each man to the support of his own life, and, therefore, to private property in the form of actual food, &c., necessary for the immediate moment; but he distinctly asserts as his own personal idea that "the prince could take away my right to a thing, and any exercise of that right," adding only that for this there must be some cause. The prince cannot arbitrarily confiscate property; he must have some reasonable motive of sufficient gravity to outweigh the social inconveniences which confiscation would necessarily produce. Not every cause is a sufficient one, but those only which concern "public liberty or utility." Hence he decides that the Pope cannot alienate Church lands without some justifying reason, nor hand them over to the prince unless there happens to be an urgent need, springing from national circumstances. It does not follow, however, that he wishes to make over to the State absolute right to individual property under normal conditions. The individual has the sole dominion over his own possessions; that dominion reverts to the State only in some extreme instance. His treatise, therefore (Goldast, De Monarchia, 1611-1614, Hanover, p. 462, &c.), may be looked upon as summing up the controversy as it then stood. The legal distinction suggested by Innocent IV had been given up by the lawyers as insufficient. The theories of Du Bois, Wycliff, Ockham, and the others had ceased to have much significance, because they gave the royal power far too absolute a jurisdiction over the possessions of its subjects. The feudal contractual system, which these suggested reforms had intended to drive out, had failed for entirely different reasons, and could evidently be brought back only at the price of a complete and probably unsuccessful disturbance of the social and economic organisation. The centralisation which had risen on the ruins of the older local sovereignties and immunities, had brought with it an emphasised recognition of the public rights and duties of all subjects, and had at the same time confirmed the individual in the ownership of his little property, and given him at the last not a conditional, but an absolute possession. To safeguard this, and to prevent it from becoming a block in public life, a factor of discontent, the lawyers were engaged in framing an additional clause which should give to the State an ultimate jurisdiction, and would enable it to overrule any objections on the part of the individual to a national policy or law. The suggested distinction that the word "right" should be emptied of its deeper meaning, by refusing it the further significance of "exercise," was too subtle and too legal to obtain much public support. So that the lawyers were driven to admit that for a just cause the very right itself could be set aside, and every private possession (when public utility and liberty demanded it) confiscated or transferred to another.

Even the right to compensation for such confiscation was with equal cleverness explained away. For it was held that, when an individual had lost his property through State action, and without his having done anything to deserve it as a punishment, compensation could be claimed. But whenever a whole people or nation was dispossessed by the State, there was no such right at all to any indemnity.

Thus was the wholesale adoption of land-nationalism to be justified. Thus could the State capture all private possessions without any fear of being guilty of robbery. It was considered that it was only the oppression of the individual and class spoliation which really contravened the moral law.

The legal theories, therefore, which supplanted the old feudal concepts were based on the extension of royal authority, and the establishment of public rights. Individualistic possession was emphasised; yet the simultaneous setting up of the absolute monarchies of the sixteenth century really made their ultimate capture by the Socialist party more possible.