The Development of Leasehold in Northwestern Europe, c. 1200 - 1600 [Illustrated] 9782503522548, 2503522548

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© 2008 Brepols Publishers n.v., Turnhout, Belgium

All rights reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, with-out the prior permission of the publisher. D/2008/0095/131 ISBN 978-2-503-52254-8

The development of leasehold in northwestern Europe, c. 1200-1600

Edited by Bas J.P. van Bavel and Phillipp R. Schofield

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Contents

List of contributors

7

List of figures

8

List of tables

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1. Introduction. The emergence of lease and leasehold in a comparative perspective: Definitions, causes and consequences Bas (B.J.P.) VAN BAVEL and Phillipp (R.) SCHOFIELD

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2. The origins of leasehold in the former county of Flanders Tim SOENS and Erik THOEN

31

3. The role of the secular canons in the introduction of leaseholding in the thirteenth century. Case-study: the Liège-area Alexis WILKIN

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4. Leasehold in northern France in the twelfth and thirteenth centuries: economic functions and social impact Ghislain BRUNEL

81

5. The rise and fall of leasehold in Denmark c. 1100-1550 Nils HYBEL

99

6. Tenancy contracts in Scania from the middle Ages to the nineteenth century Christer LUNDH and Mats OLSSON

113

7. Leasehold tenure in England c.1300-c.1600: its form and incidence Jane WHITTLE

139

8. Peasants, lords and developments in leasing in later medieval England Miriam MÜLLER

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9.

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The emergence and growth of short-term leasing in the Netherlands and other parts of Northwestern Europe (eleventh-seventeenth centuries). A chronology and a tentative investigation into its causes Bas (B.J.P.) VAN BAVEL



5

List of contributors BAS (B.J.P.) VAN BAVEL

Universiteit Utrecht (NL)

GHISLAIN BRUNEL

Archives nationales (F)

NILS HYBEL

University of Copenhagen (DK)

CHRISTER LUNDH

Department of Economic History, Lund University, Sweden (S)

MIRIAM MÜLLER

University of Birmingham (UK)

MATS OLSSON

Department of Economic History, Lund University, Sweden (S)

PHILLIPP R. SCHOFIELD

Department of History and Welsh History, Aberystwyth University (UK)

TIM SOENS

University of Antwerp (B)

ERIK THOEN

Department of Medieval History, University of Ghent (B)

JANE WHITTLE

Department of History, University of Exeter (UK)

ALEXIS WILKIN

University of Liège (B)

7

List of figures 3.1 6.1. 8.1 8.2 8.3 8.4 8.5 9.1 9.2

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The geographic regions in the Bishopric of Liège Scania Inter-tenant leases at Brandon (1316-1349) Leases and mean numbers of debt cases at Brandon Sizes of inter-tenant leases at Brandon Brandon leasing patterns Lengths of leases at Brandon (1371-1400) Introduction of the lease in northwestern Europe Leasing ratio in the Low Countries, sixteenth century

List of tables 2.1 2.2 2.3. 2.4. 2.5. 2.6. 2.7. 2.8. 2.9. 4.1. 6.1. 6.2. 6.3. 6.4. 7.1 8.1 8.2 8.3 8.4 9.1

The two social agro-systems in Flanders and a selection of their features (Middle Ages-sixteenth century) The importance of leases in the Flemish agro-systems (ca. 1570) Early leases of curtes (1243-1281) and individual plots (1281) by the Ghent abbey of Saint Peter’s Short-term leasehold of individual plots owned by the hospital of Audenarde in inland Flanders (% leaseholders/categories according to size of plots) Property structures in the ‘Oude Yevene’ watering in the western part of Zeeland Flanders (1388 and 1550) Leases in the western part of Zeeland Flanders (coastal area) of the abbey of Saint Peter’s in Ghent (% leaseholders per category) Number of deeds in Dutch concerning annuity sales (1266-1281) Property structure of land expropriated in Stoppeldijk (1227) Urban landownership in the castellany of Bruges (citizens of Bruges only) Leases in Southern Picardy (1170-1334) Length of period of tenant farmers’ disposal rights according to normative Scandinavian sources Entry fines for tenants at Bjersgård in the seventeenth century (daler) Contract content and form at Knutstorp during the nineteenth century Contract content and form at Duveke during nineteenth century Estimates of the proportion of leasehold land in England by c.1600 Size of leases at Brandon of Ad firmam type Grants (1351-1370) Leases at Brandon (1351-1370) Leases at Brandon (1371-1400) Size of Leases at Brandon of Ad firmam Grants (1371-1400) Leasing ratio of the landownership of various social groups, calculated/ estimated for the western part of the Guelders river area (1400-1570)

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1 The emergence of lease and leasehold in a comparative perspective: definitions, causes and consequences

Bas van Bavel, University of Utrecht Phillipp Schofield, Aberystwyth University

This volume focuses on leasing of land, that is a market or quasi-market in limited use rights pertaining to what was by far the most important production factor in the preindustrial countryside. The chronological period covered by this volume is the twelfth to sixteenth centuries. This period is not accidentally chosen, as in these centuries the exploitation of landownership underwent drastic changes in various parts of northwestern Europe, with strong effects on rural economy and society. In these changes, the emergence of the lease plays a pivotal role. At the end of the Middle Ages, in many parts of the North Sea area, the majority of the land, sometimes even as much as four-fifths of the land, was already leased out for short terms,. The competitive and contractual nature of such leasing has caused many to associate it with the emergence of capitalism in the countryside, seeing its rise as a key element in the transformation of rural economy and society in the last millennium. In view of this, it is surprising that the emergence of leasing, in this particular context, has received hardly any systematic attention, particularly where its roots, its early development, its exact arrangements and the social and economic context of its emergence are concerned, let alone the regional and chronological differences in these elements. While not every paper in this volume addresses directly such issues, and a degree of the discussion here is levelled at perhaps the more familiar territory of lordtenant leasing and, to a certain extent, the leasing of demesnes or parcels of demesnes, including unfree land, this volume aims to make a first step in exploring more directly the significance and development of a more evidently commercial lease.

I.

Developments and definitions

Here distinctions are important. All kinds of temporary grants of land already existed by the early and high Middle Ages. There was the precaria, granting the petitioner the right to use a piece of land for a particular period, mostly against the payment of a real or symbolic rent in kind, money or services. Also, there existed such temporary grants as the usufructus or manufirma, and the so-called peasant fiefs. However, in these cases, the relationship between tenant and landlord was mostly non-contractual and rather determined by manorial custom (Bloch, 1966: 70; Van Bavel, this volume). The relationship between tenant and lord often had clear overtones of dependency. Even if there was some contractual arrangement, these lease or tenancy agreements were not contracted voluntarily between two equal and free parties. Also, in practice these temporary grants were not really temporary, since they mostly allowed for the inheritance of the holding, even if the agreement theoretically was made for a limited period only.

11

The development of leasehold in northwestern Europe, c. 1200 – 1600

In the twelfth and thirteenth centuries, sources start to make mention of the granting of land in pactum, in annuum pactum or sub pacto. The use of the word pactum, which is identical to the modern Dutch and German word for lease, suggests a similarity with the modern leasing. However, most of these leases mentioned in the twelfth and earlythirteenth century sources were leases for longer periods: for life or mostly hereditary, as appears from the specifications iure hereditario or in perpetuum. These are thus examples of the letting out of land on hereditary lease, not fundamentally different from the letting out on a fixed rent, being common at the time. In the few cases where these early leases were non-hereditary, but mainly on one or two lives, they tend to concern larger units, such as granges or former domains. Often, also other rights were included in the lease, like tolls or manorial services. The tenants of these large leaseholds, being widespread in England, were mostly members of the lower nobility or a kind of rural patriciate. This type of exploitation, where large and often manorial estates were given out in life lease by religious institutions to stewards or local potentates, was very common in twelfth and thirteenth century northwestern Europe (Britnell, 1993: 31-34, 40-41, 109). The tenants, often able to promise large sums of money, were often both managers and farmers. Already therefore, by the end of the twelfth century and almost certainly earlier, lords and their tenants were familiar with the concept of short-term leasing, that is, leasing for a short term, as also appears from the numerous leases of tithes and tolls in this period. Pollock and Maitland, in describing the developing interest in the lease in the late twelfth and early thirteenth-century English law, define the lease as ‘a legally protected possession to any person who is in enjoyment of the land and can take the fruits as his own, albeit he is there only a time and is paying rent to a lord’ (Pollock and Maitland, 1968, vol. 2: 110). Slightly more curtly, but to the same effect, Postan has referred to leases as ‘non-perpetual tenancies in usufruct for rent’ (Postan, 1960: lxiv). In defining in legal terms the lease we are also necessarily directed to its constituent elements. In the thirteenth-century English text known as Bracton’s Notebook, the author includes numerous examples of short leases, some apparently dating from the twelfth century, which allow us to identify what we may consider the constituent elements of the lease (for a collection of valuable references, see Postan, 1960: lvi, n. 3). The lease, already capable of definition by the thirteenth century, displays various nuances and modalities, but some basic characteristics can be discerned. First and foremost, it is a free and contractual relationship between landowner and tenant. This relationship is voluntary entered into by both parties and there is some scope for negotiating the terms (Lundh/Olsson, this volume). The fact that a contract is entered into voluntarily does not mean that the contracting parties are always equal in respect of power. They are equal only with regard to the fact that both have the option of not entering into the agreement. It is, almost certainly inappropriate to identify any two parties as truly equal, but here we have in mind the inter-vivos exchange between individuals for reasons of essentially mutual benefit and which is not conditioned by pre-existing power relations, notably but not exclusively a relationship determined by lordship or some other customary basis of control. It can be suggested, however, that in many cases there was no realistic alternative to the agreement for one of the contracting parties, making his possibilities of changing the conditions of the contract minimal.

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Introduction. The emergence of lease and leasehold in a comparative perspective

Another characteristic of this type of leasing is that it is a contract for a limited period, varying from one year to one or two lives, but for a specified time. After this period, all remaining obligations of the two parties will be fulfilled, payments to the landowner and indemnifications for the tenant will be completed, and the leasehold is free to be leased out again. To date, there is only limited evidence for this activity, as for instance in parts of England in the second half of the fourteenth century and in the Guelders river area in the fifteenth and sixteenth centuries (Harvey, 1977: 246ff.; van Bavel, 2001). Here, the continuity of the leasing arrangement was a product of a persistent desire and capacity of the lessee to maintain the lease, or, on the part of the lessor, by making leasehold an increasingly attractive option (see for instance, Dyer, 1994: 137-138). In other regions and at other times, continuation of the lease was more evidently possible by way of silent renewal, a reflection customary rights or personal bonds between owner and tenant (Bloch, 1966: 179-180). In such circumstances it seems reasonable to suppose that social considerations and customary rights were as important as economic considerations. Further to this, a significant feature of the lease, as it developed in the period as a device for the reallocation of usage rights to the land, is the competitive nature of the leasehold relationship, essentially one that is market-driven more than it is determined by, say, custom or established institutional structures or social relations. This also affects another characteristic of what we might refer to as a ‘modern’ type of leasing, namely the fact that the rent is market-determined rent, and not fixed or determined by the same non-economic forces. Van Bavel, in his chapter in this volume, assesses the types of lease observable in our records, distinguishing between those which provided the lessee with a lifetime’s or lifetimes’ interest in the land and those where the individual’s interest relative to the owner of the land was fleeting and fragile. For van Bavel, the truly commercial lease is to be distinguished within this range through both its relative brevity, essentially a term of years, and its rent, which should be economic and adjustable. Without permanent right to the land, the tenant might expect only compensation for improvements made during the term of his or her leasehold. A last element to be mentioned here is the payment of the lease sum itself. Mostly, the annual cost of the lease was fixed, either in money or in kind, but other arrangements did exist. Most important among these alternative lease forms was sharecropping, with the tenant paying a share of the yields (half or, on poorer soils, sometimes a quarter or a third), whereas the landlord provided a large part of the implements, cattle and sowing-seed. This system reduced the risks for the tenant, but also limited potential gains. With a fixed lease sum, tenants could often run into trouble in the arrangement through, for example, crop failure or destruction. That said, a number of schemes existed, the intention of which was to minimise the risk of failure; these might be embedded in contract or organised more informally or by custom. As a consequence the security offered in these arrangements could differ quite significantly and the economic effects of these contractual arrangements could help either to stimulate or to block investments and, potentially thereby, economic growth. It is also evident that behind such formal arrangements may also lurk any number of informal and essentially hidden arrangements, including terms of the agreement and customary forms of payment, the formalities of which, though not necessarily the reality of which, might be entered in the record.

13

The development of leasehold in northwestern Europe, c. 1200 – 1600

Defining the type of short-term leasing emerging in the thirteenth century is thus not easy. All kinds of varieties and grey areas exist. Although some papers concentrate on a type of short-term leasing answering the above characteristics in a sharp form, this volume does not limit itself to a discussion of the ‘modern’ lease. Rather we want to keep an eye on the diversity and the changes in modalities, which do not reveal a single, unilinear, development.

II. Possible causes for the appearance and development of the lease The following, which are not necessarily seen as an exclusive list, do appear to suggest the more significant explanations for the adoption of leasing arrangements in medieval Europe, as defined and described in the essays in this volume and in other, earlier work. Given the fairly limited amount of work directed at the lease to date, there is not much scope here for making claims for evident early origins in one region over another; that said, certain chronological patterns and distinctive features in the history of leasing arrangements are becoming reasonably evident now. Here the authors have inevitably tended to concentrate upon features consistent with their own, often particular, region or studies. Here we will make an attempt to consider some of the more evident features which go some way to explaining the development of the lease in this period. II.1. Urbanisation It is tempting to associate the rise of leasing with urbanisation, often regarded as the motor behind socio-economic innovation and development of the countryside. Certainly, within the Low Countries, where the area of the early emergence of leasing consisted of the most urbanised regions, such as Flanders, Brabant and the Niederrhein region. After its introduction, however, the further rise of leasing started to show strong regional differences, not determined by the degree of urbanisation, but rather by the social distribution of landownership and power relationships between the various social groups (van Bavel, this volume). In the later Middle Ages, short-term leasing became dominant in such regions as the Guelders river area, which was dominated by large landownership but where the lords were losing their non-economic power with the dissolution of manorialism. In the fourteenth and early fifteenth centuries, already three quarters of the land was given out in short-term lease here, and this rose to some 85% around 1500. However, even within a relatively small area such as the Low Countries contrasts were strong. In regions where non-economic force remained stronger or where peasants were predominant – such as Drenthe and, though to a lesser extent, inland Flanders – short-term leasing did not rise this fast: in these areas in the fifteenth century, only some 20-35% of the land was leased out for short terms. The example of highly urbanised inland Flanders suggests that urbanisation may not have been a major determinant in these differences, relative to, for instance, the social property relations of the region in question. In similar ways, it is also evident that urban centres were not vital to this development in parts of rural England where, by the thirteenth century, the short-term commercial lease between peasant tenants was a familiar feature of local land and lease markets, both in urbanised and lightly

14

Introduction. The emergence of lease and leasehold in a comparative perspective

urbanised regions (Page, 1934; Slota, 1988). The same may also have been true in parts of medieval Denmark, though urbanisation had also some evident role to play in offering markets and trade to play there as well (Hybel, this volume). II.2. Market development Quite evidently, and in the most obvious of ways, the payment of the lease, often stipulated in money and/or paid in money, was either wholly or partially dependent on the market. In order to procure money, the tenant had to sell at least part of his agricultural produce in the market. If the lease payment was fixed in money but was made in kind, there still was a clear link with the market, since it had to be determined or negotiated what the value of the agricultural goods delivered as payment actually was. But here we also have in mind the ways in which expectations of commercial use and profit may have driven the development of something identifiably like a market in leases and the concomitant establishment of an assignable interest in land for money or for money’s worth. This might, for instance, include the preparedness of landlords to accept the logic of the economic and demographic context in which they operated and to explore leasing arrangements, of short or long-term, as a means of responding to the expectations of their tenantry and the weakness of established systems of tenure, as Müller also describes in her contribution to this volume (Müller, this volume). Hybel also makes similar observations in his discussion of the development of leasehold relative to the expectations of lordship in late medieval Denmark (Hybel, this volume). This type of circumstance we can certainly identify in medieval England from at least the second half of the thirteenth century, though it is especially evident from the second half of the fourteenth century. Certainly, on at least one estate in eastern England in the thirteenth century the landlord, in a bid to maximise rental income, did experiment with contractual tenures, offering their tenants fixed terms and seemingly abandoning hereditable customary tenures (Miller, 1951: 107-111). Such rents were precarious and, following Miller, ‘revision might now work in the interest of the tenant’. Whilst the proportions of villein land, relet as contractual tenancies, tended to be fairly minor, to quote Miller, ‘between 1251 and 1299 the assized rents [essentially fixed money rents] increased only by 10%; in the same period the volume of contractual rents of one sort and another increased threefold’ (Ibid.: 104). Citing one instance, from the records of a bishopric of Ely manor of Somersham, in Huntingdonshire, Miller describes the growth of contractual tenure from c. 50% in 1299, the proportion had risen to 57% in 1342, to 79% in 1381 and 91% in 1445. Short-term leasing emerged more generally in other parts of England in the second half of the fourteenth century, though there are good examples of such developments in the west of England before 1300 (Hilton, 1975: 148-149), and a significant part of the explanation for such a development must be the desire of the parties to lease to maximise opportunity in a changing economic environment. (Müller, this volume; see also Britnell, 1991: 611-624, esp. 613-616; Bolton, 1980: 40-42, 88-89, 208-220). Hybel (this volume) also notes the same tendencies in thirteenth and fourteenth century Denmark and Soens and Thoen (this volume) also describe the extension of leasehold on the estates of the abbey of St Peter’s (Ghent) in the later thirteenth century at least partly as the consequence of an active economic policy using market conditions.

15

The development of leasehold in northwestern Europe, c. 1200 – 1600

II.3. Capital markets In the Low Countries, it can be clearly observed how important well-functioning credit markets were in the rise of short-term leasing. These were vital for tenants, in order to procure their working capital. Also, the possibility to obtain credit in the market avoided the risk the tenant became dependent on the landlord, thus lending him a stronger position vis-à-vis the landowner, forming a crucial element in the free, contractual nature of the lease relationship. In the Low Countries, capital was fairly cheap, already from the start of the late Middle Ages onwards. The most important credit instruments here were the perpetual rents and life rents, which were secured on real property, mainly land. These rents emerged in Flanders and Brabant in the thirteenth century, and they were created in massive numbers from the early-fourteenth century onwards, both in town and countryside. At this time, the sale of rents also started to emerge in the northern parts of the Low Countries. This made long-term credit for relatively low rents available for large groups in society, including farmers and even peasants, while at the same time offering ample security to the rent-buyer. This instrument became even more attractive with the decline of interest rates, which mainly reflected the improvements in the organisation of the capital market in the Low Countries. In Flanders, the interest rate of perpetual rents sold by private parties and secured on land was 10% in 1275-1281, 8% in 1429-1431 (redeemable, thus even more favourable to the rent-payer) and 6.3% in 1569-1571 (Thoen and Soens, 2003). The decline of interest rates was even stronger in Holland, and accessibility was better here, even for the peasants with smallholdings. A fiscal register from Waterland, a part of Holland, shows that in the late fifteenth century a substantial share of peasants were already heavily involved in the capital market, as were the village communities, which were all able to obtain credit at low costs within an institutional framework offering maximum security to both creditor and debtor (Zuijderduijn, 2007). The near absence of rent differentials also shows how the capital market in Holland was well-integrated between town and countryside, reflecting the favourable institutional framework of the capital market here. Relevant to the position of tenant farmers is that in some parts of the Low Countries, such as in Holland and the Guelders river area, it became possible to sell rents without land as collateral, but only funded on movables. This innovation was particularly important for tenant farmers since they often did not own any land to offer as collateral and could rapidly become dependent on their landlord for credit. In one of the regions where short-term leasing emerged the strongest – that is, the Guelders river area – tenants in the sixteenth century could sell a rent with only their movables as security, sometimes amounting to substantial sums (van Bavel, this volume). In certain other parts of Western Europe, as in most of Germany or France, however, landownership remained necessary in order to obtain credit other than from financiers, such as the Lombards, at high interest rates. This also applied to some parts of the Low Countries, and in even in big cities, such as Brussels, where in 1606 it was still prohibited to sell a rent without real property as security. The opening up of the possibility to obtain credit without offering land as security could mainly be expected in highly urbanised regions, where landownership was only one of the many forms of property and where it was more common to grant credit on movable assets. As appears from the example of Brussels, however, this was not necessarily the case. The security in the capital market and the guarantees offered by

16

Introduction. The emergence of lease and leasehold in a comparative perspective

authorities seem to have been more crucial. In its turn, a secure and accessible capital market was crucial in making power relations between the various parties involved in the lease more balanced, contributing to the rise of open, flexible and competitive lease markets. The favourable situation as existed in parts of the Netherlands, however, was probably quite exceptional in Europe at the time. In England, as seems to have been the case in most of Europe in the Middle Ages and early modern period, the institutions supporting rural credit were relatively weak and insecurity high, particularly for tenant farmers. While, in England, there is good evidence of short-term leasing, amongst villagers by at least the thirteenth century, there is, to date, rather less evidence of credit arrangements secured by land (Schofield, 2004). In those few instances where it has been attempted, simple numerical analysis of the relationship between creditors, debtors and parties to inter-vivos transfer fails to encourage a view that foreclosure on land held as security was common. Since, at the level of the local or manorial court, most gages in the form of leases were almost certainly not enrolled and most credit agreements were not recorded at their inception, we are overly dependent upon incidence of litigation arising from failed agreements (again a potentially reduced category since many disputes over debt could have been resolved extra-curially) to reveal creditor-debtor relationships in the first instance (Schofield, 2007; forthcoming). The significance of failed agreements as a proportion of all such arrangements can, at this point, only be guessed at. The same was almost certainly true as regards the record of short-term leases of land, as we also know and have discussed above. II.4. Formal and informal institutions There are some institutional contexts which either served to support or to hinder the development of leasehold in the form discussed here. We might, in terms of support, consider the ways in which institutions provided the necessary security. Two main forms are the presence of clear property rights and the presence of a clear and well-functioning system of registration, to protect the rights of parties to leasing arrangements. Wilkin, in his chapter in this volume, for instance, suggests that, inter alia, it was a re-emergence of Roman law which helped to define and, by extension, to secure leasehold rights in the thirteenth century (Wilkin, this volume). The organisation of the lease market benefited from the registration by public courts. While it would not be possible to identify a wholly linear process of development, it is reasonable to suggest a tendency toward the creation of written contract in place of oral agreements; we know, for example, of an increase in recorded leases which referred to detailed, and often extensive, terms of the leasing arrangement and were recorded in lease-books maintained by landlords. This is evident in parts of Scandinavia where, as Lundh and Olsson describe for Scania, a formalised but essentially verbal contract in the Middle Ages gives way to a written form in later periods, a point also made by Hybel in his chapter, both chapters making reference to the thirteenth-century common-law book of Scania (Lundh and Olsson, this volume; Hybel, this volume). In the fifteenth century, in many parts of the Netherlands as well, this private and semi-public registration by landlords was also increasingly replaced by public registration by courts. Private leases, between non-seigniorial parties for instance, might also find an early record in the local

17

The development of leasehold in northwestern Europe, c. 1200 – 1600

and seigneurial courts, especially in circumstances where the leased land included land typically held by customary tenure. In parts of England in the second of the thirteenth century, the lease of very small units of land was recorded for short terms, often for no more than one or two harvests or ‘croppings’ (Dyer, 1988: 671). Conversely, but of equal significance, to our definition and understanding of the short-term lease is its potentially transitory nature. By the end of the thirteenth century, local court records in England reveal a number of cases brought by lords against tenants who were engaged in illegal leasing of land. In other cases, lords acknowledged that short-term redistribution of land for one or two years, or even for shorter periods might occur without recourse to formal written record. Such arrangements were undoubtedly common in medieval England, by the second half of the thirteenth century. Müller even suggests that in parts of pre-Black Death Suffolk, inter-tenant leasing was the norm and was only superseded by lord-tenant leasing arrangements in the late fourteenth century (Müller, this volume). In a context where so much inter-peasant dealing was certainly conducted orally, it seems highly probable that a good deal of inter-peasant leasehold arrangements are hidden from us, featuring only in the record as occasional reference to some failure or breach of arrangements (Postan, 1972: 147-148, 151-152; also Whittle, as well as Soens and Thoen, this volume who also note the likelihood that short-term leases would be poorly recorded relative to leases granted for longer terms). On the estates of the abbey of St Albans, in Hertfordshire, for instance, it was recognised that leases of customary land for terms of less than two years ‘could be made without the abbot’s permission’, a practice that was changed to one of formal registration in the mid-fourteenth century (Slota, 1988: 132). Elsewhere in Europe, as for instance in high and late medieval Wales, other devices might be employed to secure fixed-term leasing arrangements in the alienation of land. By the thirteenth century in Wales, tir prid, by establishing an opportunity to engage in the temporary alienation of land which side-stepped restrictions on alienation of freehold interests, helped secure both parties in, de iure, a leasehold arrangement, even if, de facto, the deed ensured perpetual renewal of a fixed term (Smith, 1976: 542). Another element reflects the way in which landlords and potential tenants were brought together. At one end of the spectrum there were the underhand arrangements between the landlord and the sitting tenant or his son, sometimes even with a silent renewal of the lease, and at the other end there was the public auction. This increased the competition for land, enabled the landlord to obtain the maximum price for his land, and increased enormously the mobility of lease land. In the Netherlands, the public auction of leases of tithes, mills and excises existed already in the late medieval period, but auctions of lease land became more common only at the end of the sixteenth century. At that time, they were even made compulsory by the government for several types of property, such as government possessions and the secularised possessions of religious institutions, as in Guelders and Holland (van Bavel, 2003). Also, land was sometimes leased out by tender. Announcements were often mostly made by way of printed posters hung in public places (Kuys and Schoenmakers, 1971: 26, 34).

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Introduction. The emergence of lease and leasehold in a comparative perspective

Next, there are also unwritten, non-formalised institutions influencing the development of leasing. Some sense of collective memory might have served to preserve the integrity of leasing arrangements where these were not supported by the force of legal document (Schofield, forthcoming). More obviously though historians have tended to concentrate upon the resistance to leasing, and associated activities such as piecemeal alienation. Landlords might offer some resistance to an unfettered lease market in land, just as they might resist a land market for the same reasons, above all a desire to preserve intact tenurial units. These conventional arrangements and, indeed, perceptions of restraint also conditioned the extent to which short-term leasehold found its way into the historical record, a matter of some importance for any assessment of the relative rise and importance of the lease in this period. It is highly likely that a good deal of the institutional context for the development and transmission of leasehold is hidden from us and by extension, a fair amount of short-term leasing as well (Postan, 1960; and below, pp. 20-21). Custom also operated in a number of contexts to contain or to promote leasehold. Familial expectations might encourage an expansion of leasehold in ways also considered a little later in this section (below: II.7. demography). The capacity of a family’s economy to accommodate new landholding would be determined by the ready availability of such land, but also by the commitment of, say, a peasant family to such investment and a general sense of the availability of land. Added to this, a customary sense of the availability may, it has been suggested, encourage alienation of small units of land generally perceived as appropriate for regular piecemeal exchange (see, for instance, Blanchard, 1984). II.5. Social distribution of landed property On the one hand, this element is straightforward and rather evident. It can be assumed that large landowners, who did not use the land themselves, were most interested in using the short-term lease as an instrument to exploit their landownership. Particularly after the decline of manorialism, large landowners, like religious institutions, noblemen and princes, typically and famously chose to lease out their land. In terms of social distribution and its consequence for leasehold, the evidence from a number of countries within western Europe suggests that the emergence and growth of a mercantile elite, as well as that of an organised and market-focussed peasantry, or the wealthier sections of the same, helped encourage the development of leasehold. If we consider demesne leasing in terms of and to some degree occasioned by social distribution we can find evidence for a redistribution between lords and their lessees in the twelfth century, to take England as possibly the best example for this earlier period. We also gain a sense of the need for a receptive body of potential lessees capable of permitting such an adjustment and willing to embrace the offer of land to be held at lease. On the Westminster Abbey estates in the late twelfth and early thirteenth century, Barbara Harvey suggests that, as much as a peasantry, it was the ‘tiny middle class of Angevin England - … business men, clerks or administrators’ who took up leases of demesne land (Harvey, 1977: 117). Two centuries and more later, as well as a significant increase in peasant lessees, we again find merchants and gentry stepping in to lease demesnes, as Whittle discusses in her chapter (Whittle, this volume; and references there). By the end of the fifteenth century, lessees of demesne and customary land included substantial

19

The development of leasehold in northwestern Europe, c. 1200 – 1600

figures in terms of both trade and government (Schofield, 2001), a redistribution of landed resource which both played to the advantage of relatively novel social elites in this period at the same moment that an extension of leasehold has also been perceived as a last gasp device for expropriation by landlords (Brenner, 1982: 84, 86-87). In similar vein, the urban patriciate, extending its landownership, particularly in the surrounding areas of larger towns in other parts of western Europe, both also promoted the use of the lease and effected a shift in access to land. Specific examples of this dynamic element are to be found in the regions of Flanders, Holland and the hinterland of Paris, where the extraordinary rise of burgher landownership also replaced a good deal of small-scale peasant ownership (Soens and Thoen, this volume; van Bavel, this volume). In coastal Flanders, this shift seems to have taken place already in the fourteenth century, while in Holland this was particularly evident in the course of the sixteenth century. Our awareness of demesne leasing, undoubtedly informed by a predominance of a certain kind of surviving seigneurial archive, has sometimes limited the discussion of the social distribution of landed property in the context of leasehold to a consideration of the redistribution of demesne land, a redistribution effected at the will of the lord, even where the lord’s will was bent by forces other than his or her own immediate policy and domestic needs. A considerable extent of the discussion in this volume almost inevitably maintains that focus so that, even in such contexts where it is proposed that a commercial lease appeared relatively early, such as parts of the Netherlands and eastern England, the bulk of observable leases, at least in those earliest periods capable of observation, relate to the leasing of demesnes (Brunel, this volume, for instance).1 This focus, although understandable and highlighting an important part of the process, is by no means representative of the full picture. If we shift our view to the less-known terrain of peasant leasing, the effects of the social distribution of property are far less straightforward to identify. As the studies in this volume illustrate, some fairly familiar themes emerge, including a distinction between large units leased by lords to wealthy tenants, or peasant-tenant agglomerates, and piecemeal leasing, often under-represented in our sources and maintained both for commercial reasons and also to support a redistribution of resources in something more akin to a peasant economy. It is often assumed that most of the peasants usually use their land themselves. A crude ‘Chayanovian’ analysis of leaseholding might also associate a peasant family diminished in number, for instance a household where the number of offspring was few or one which was composed chiefly of the elderly or infirm, as naturally inclined to let out holdings. A ‘market’ in leasehold, driven in such a way, might remain fairly low key but also reasonably prevalent if unsophisticated. But perhaps piecemeal leasing out of land owned by peasants on the basis of oral agreements and on a slightly more commercialised basis, as assumed to have existed on a widespread basis in parts of England, would nuance this picture. Intertenant or inter-peasant leasing was certainly not solely conducted between families on the basis of some ‘respiration’ of the peasant family, a movement of resource according to the dictates of family size. While undoubtedly the former description matches plentiful instances of true ‘husbandry’ leases, economic leases of the kind described elsewhere in The editors would like to thank Mrs Jean Birrell for her translation of the chapter by Ghislain Brunel.

1

20

Introduction. The emergence of lease and leasehold in a comparative perspective

this introduction did effect real social distinctions, aiding those with relative advantage to cement that opportunity both through a market in leased land and through the extension of credit supported in some form, such as the gage in its various guises. In this respect the potential redistributions only partially explored for the market in land might be supposed to apply, though less evidently in our sources, for the lease-market in land (Feller and Wickham, 2005). II.6. Power and property rights A good deal of the discussion of the lease is founded upon associations of quasipolitical or institutional power. Thus, in medieval England, the introduction of leasing arrangements is deemed either to be at the desire of lords keen to effect a shift in their estate management (see, for instance, Miller, 1951; Raftis, 1957; Harvey, 1977) or as a result of a shifting balance of power which allows former tenants to insist on improved conditions (as for instance, Harvey, 1977: 273-274; contrast also Müller, this volume). Although, as these contrasting views show, no unilinear conclusion can follow from this, it is clear that the relations and balances of power between social groups played a crucial part in the development and arrangement of the lease. This element can also be observed in the emergence of absolute and exclusive property rights to land, in its turn forming a significant prerequisite for the rise of the modern lease market. The fact that several parties or persons had strong and overlapping claims to the same plot of land, hindered the closing of a rapid and clear leasing deal, and precluded a potentially uncertain act as giving the land out in lease. It could be suggested that it was only after rights to land had became clearer, as well as more exclusive and absolute, making it easier to delineate these rights and to record and protect them, did it become safe for landowners to lease out their land, since otherwise they would run the risk of losing control over the land. This emergence of more absolute and exclusive property rights to land was a slow process, taking many centuries and showing strong regional differences (van Bavel and Hoppenbrouwers, 2004; van Bavel, this volume). In this process towards more exclusive and absolute property rights to land, all kinds of influences played a role, such as the decline of manorialism, the weakening of kin ties, the hollowing out of the feudal system and the disappearance of informal ties or claims of the peasants to their land. In all these elements, the balance between social groups played a vital part. This was perhaps most apparent, and most directly related to the emergence of leasing, in those instances where lords seem to have forced peasants to give up stronger rights to the land and accept short-term leasing. This process is most thoroughly discussed in the English literature on the process of enclosure and the attempts of English landlords to eradicate peasants’ customary rights to the land and to create large, consolidated holdings, often being leased out. In doing so, lords at times used their power to persuade or intimidate peasants. Empirical research has indeed revealed cases where this process was at work, as in the small Kentish town of Lydd, from the mid-fifteenth century onwards, where violent pressure was used by the lords to consolidate fragmented customary holdings (Dimmock, 2001). Also, lords would have pushed up fines on inheritance and sale of customary plots, in order to drive off peasants from their customary lands and replace these by leased out consolidated holdings (Brenner, 1976).

21

The development of leasehold in northwestern Europe, c. 1200 – 1600

Discussion since then has focused on the extent to which Brenner and others might have perhaps overestimated the strength of English lordship, or, conversely, underestimated the protection of peasants’ rights to the land. Still, it is clear that in this process the balance of power between social groups played a main part. The same applies if one sees this process more as a crystallisation of overlapping property rights to the land, instead of as a one-sided expropriation (van Bavel, this volume). If this is the case, still the social balance was crucial in the outcome of this development towards more exclusive, absolute property rights to the land. With respect to leasing, this can be observed in the determined attempts of landlords and central authorities in sixteenth-century Holland to ban customary rights on permanent leasing as claimed by the peasants. In all these instances, it is assumed that the introduction of short-term leasing worked to the advantage of the landlord. By contrast, though, it is also possible to argue, and also in contrast to the argument of Müller in this volume, that leasehold operated, especially for short-terms, in circumstances that allowed the incoming tenant to minimise risk. The development of the short-term lease, especially evident in England in the second half of the fourteenth century in relations between lord and lessee, appears to have operated to the advantage and preference of short-term tenants. By the same token, it is also clear that turn-over within such a system of short-term leasing was extensive, no doubt reflecting the limited preparedness of the lessee to commit and, it could be argued, the need for the lessor to carry a significant proportion of the risk (Lomas, 1984: 311-313; Schofield, 1996). II.7. Demography In one respect we can think of the development of the lease, as described here, as a consequence of demographic crisis. Almost classically, in late fourteenth-century England, the rise of fixed-term leasehold arrangements, of an essentially economic nature and which stand in marked contrast to servile tenures of a kind that preceded it, did follow the population upheavals of the fourteenth century. Müller, in her paper in this volume, tends to characterise the changed tenurial arrangements of the second half of the fourteenth century as a consequence of changed power relations between lord and tenant. Whilst undoubtedly correct in its assessment that the employment of leasehold reflected a changed circumstance, it seems equally evident that the need for landlords to attract new tenants while ensuring a steady supply of income informed the introduction of revised tenurial arrangements. In England, there is in fact a fairly close chronology of emergence and growth of contractual tenure consistent with the population fall of the mid-fourteenth century and the continued failure of recovery into the fifteenth century (Schofield, 1996: 256 especially Figure 1). However, the fact that in most of the Continent short-term leasing rose exactly in a period of rising population numbers and increasing demographic pressure, in the decades around 1300, shows that there was no unilinear link between the two phenomena. Of no less significance in our thinking regarding the short-term lease as a consequence of demographics, but this time more on the micro-level of the households, is what me might term the husbandry lease. Here we have in mind the lease of land developed in order to facilitate exchange of small parcels of land at irregular intervals as response to

22

Introduction. The emergence of lease and leasehold in a comparative perspective

the changing expectations of the family and its land use. Chayanov noted that where redistributive systems for land were lacking or limited, peasant families would need to adjust labour in order to accommodate shifts in their size and requirements; however where opportunities for a redistribution of holding existed, an increase or decrease in the farmed area would be a natural response to changes in the peasant family (Chayanov, 1966: 107-113). It might be argued that the lease in husbandry, of which a good deal has been written, and perhaps especially for medieval England, lacks the necessary commercial force to be included here, save for its purpose and its function, as a short term mechanism for redistribution operating to the advantage of both parties (Schofield, 1998: 83-84, and especially references n. 71; especially references to essays in Harvey, 1984). Importantly, though, in circumstances where such a leasehold regime operates it seems highly likely that it can best operate on the margins of what we might identify as the ‘normal’ tenurial regime. The lease in such circumstances effects a relatively easy distribution of small pieces of land without prejudice to the integrity of the main holding, the terra unius familie, or to the central arrangements regarding distribution. It may well be that on those lordships where piecemeal alienation leading to fragmentation and accumulation of landholding was encouraged, as for instance on some of the Benedictine estates of high and late medieval England, injunctions against legal leasing reflect this transfer ‘at the margins’ (Slota, 1988; Harvey, 1977; see also Blanchard, 1984: 241-248). It is certainly the case that a good deal of short-term leasing as temporary redistribution occurred in England by the thirteenth century; on the estates of Crowland Abbey in Lincolnshire leases between tenants have been described as ‘very frequent’ by the early fourteenth century and the same is also reported to have been the case on some of the manors of the bishop of Winchester’s estates (Page, 1934, cited in Ravensdale, 1984: 207; also Levett, 1916: 28). II.8. Topography/ecology The link between the rise of leasing and ecological conditions is difficult to assess, and clearly more research is needed on this point. There seems to be no specific reason why the emergence of leasing should be linked to specific ecological situations. Perhaps pastoral regions, as the saline plains in the north of the Netherlands and Germany, developed earlier towards a money economy than regions concentrating on grain cultivation, thus promoting leasing here already at an early stage. Early systems of sharecropping leases, not needing the monetary element, can be observed both in arable and pastoral regions. Also, there is perhaps another, indirect link between ecology and leasing. Generally, in Western Europe, most large landownership is found on fertile soils, thus making the importance of leasing bigger here, since it was particularly large landownership that was leased out. Also, one might assume there is a link between ecology and leasing on some risky soils, where the danger of erosion or inundation was high, or the costs of impoldering big. Maintaining agriculture on these soils required high investments and would entail grave risks for an owner-cultivator, thus stimulating the rise of leasing.

23

The development of leasehold in northwestern Europe, c. 1200 – 1600

III. Consequences of development and rise of leasehold The consequences of the introduction and development of leasehold on the rural economy and society are not at all automatic and/or necessarily leading in a single direction. Rather, these consequences wholly depend on two elements: the exact arrangement of the lease system and particularly the economic and social context in which leasing emerges. Roughly, these elements lead to outcomes of four different kinds, sometimes co-existing, but more typically discrete and concentrated in particular regional and temporal contexts. In the first instance, leasing could offer some adjustment to peasant familial organisation with small lease parcels fulfilling a role in a Chayanovian cycle, without any fundamental differences from the role the land market or communal redistribution of the land could fulfil in this respect. In some circumstances, particularly with a dominance of peasant landowning combined with the opportunities offered by market demand, a high population density and strong fragmentation of land could occur (van Bavel, 2002). This situation brought about fierce competition among the peasants for the scarce lease land, resulting in relatively high rents (Jacquart, 1975: 373-374), which could rise above the economic value. This hindered the emergence of large commercialised farms; the lease land remained split up in small parcels, distributed over numerous peasants and leased out for high rents. A particularly clear example of this in the North Sea area is that of inland Flanders, in the thirteenth century and, most evidently, sharper in the sixteenth to eighteenth centuries (Thoen, 2001: 135-136). Secondly, particularly in regions where peasants and/or peasant views on the permanency of use rights to land were strong, leases often remained in the hands of the same peasant family for long. After the lease term had expired, the lease was often renewed or prolonged, or there was a kind of silent reletting (tacita reconductio), and the lease came close to a perpetual right to the land. In this scenario, the lease in its effects did not differ much from types of peasant landownership or strong usage rights of the peasant or farmer. Thirdly, leasing could also be employed as a feudal instrument of surplus extraction. This theme is well-explored for Central Italy, where the mezzadria poderale, as the dominant form of sharecropping lease, developed from the fourteenth century onwards into a system used by patrician landowners to interlink activities in the markets for lease, labour, capital and goods. This was a highly unequal relationship, which worked to the advantage of the landlord both by creating rents well above market price and ensuring high degree of dependency on the part of the sharecropping tenant. In the North Sea area, in contrast to central Italy and southern France, this type of sharecropping mostly disappeared in the course of the later Middle Ages. However, some feudal elements can be found in the organisation of leasing, for instance in inland Flanders. Relationships between landlord and tenant sometimes had a personal character, with landlords often using their tenant farms as country seat and provisioning base, and having a paternalistic relation with their tenants (Thoen, 2001: 128-129). This went hand in hand with underhand arrangements, rather determined by personal relations, often of an unequal nature, than by the lease market. In some cases of high population pressure, as on estates in northern

24

Introduction. The emergence of lease and leasehold in a comparative perspective

Europe in the late thirteenth and early fourteenth centuries, we can also observe how short-term leases were concluded for terms of only a year, not aimed at promoting a medium- or long-term success of the exploitation of the holding, but rather at wringing out the maximum rent from the tenant, or at least in maintaining the holding in some rentable condition so that a lease of some kind, even if not a strictly economic one might be returned. At Birdbrook (Essex), a Westminster Abbey manor in eastern England, holdings were occasionally leased on very short terms, for a single ‘cropping’, and often at moments of crisis, to willing parties.2 This is evident in manorial accounts surviving from the Great Famine years in the early fourteenth century, where such activity might reasonably be supposed to illustrate both a profit maximizing venture and a limited but fairly efficient response to straitened circumstances. Fourthly, under very specific circumstances, leasing could be an instrument in a development towards agrarian capitalism. In the Guelders river area, which was dominated by large landowners, the expiration of the lease was strictly upheld. Continuation of the lease here was only possible by way of a strong economic position in the lease market, not by way of silent renewal, customary rights or personal bonds between owner and tenant. Also, the arrangement of the lease system in this region appears to have been conducive to high mobility of land, open competition, and flexibility of the lease market. The mobility of land in the market could be strong and the lease market could be large. This was dependent on the arrangement of the lease system (the terms, etc.), but also its social context (how many landowners were prepared to let out their land on lease, etc.). One element is the terms for which the lease is concluded, in essence that the term should not be so long as to reduce its flexibility nor so short as to challenge its security (van Bavel, 2008). In most parts of the Netherlands, in the fifteenth/sixteenth centuries, the term of ten years became predominant. From the middle of the sixteenth century onwards, also terms of eight, six or even three years were applied, resulting in a reduction of lease terms to an average of less than eight years. A dominance of leases for six or nine years can be observed in central France, Normandy, Flanders, Brabant and the Lower Rhine area (e.g., Reinicke, 1989: 127-131). Mainly longer terms can be found in the county of Namur (nine to twenty-seven years), the bishopric of Cologne (twelve and twenty-four years) and particularly in large parts of England (twenty-one years, and sometimes even longer) (e.g., Genicot, 1943: 280-281). In practice, the length of a lease agreement could even be longer, as a result of the lease being extended. Moreover, in some regions there existed the practice of the silent reletting or after-letting of the tenancy, as we have seen. But in several parts of the Low Countries, the landlord just sold the lease to the highest bidder, regardless of the wishes or pretended rights of the previous tenant. This particularly applied to situations where the land was auctioned in public. In general, it may be reasonable to suggest that the lease market was more mobile and accessible than the land market, although there were strong regional differences. In Flanders, the north of France and Holland, continuity in lease agreements was strong, with leases often renewed with the same tenant. The mobility of lease land was the strongest in the Dutch river area and its surrounding regions. Here, lease land entered the market every six to ten years on average, whereas land was sold only once every forty-five to fifty-five years 2

Westminster Abbey Muniments 25423: manorial account, 1316-17.

25

The development of leasehold in northwestern Europe, c. 1200 – 1600

(van Bavel, 2003). The mobility of lease land on the lease market was much higher than that of land on the sale market. Transfers of lease land were up to six times as frequent, as shown by a comparison of the above figures on the mobility in the lease and in the land market. The more important leasing was in a region, – and this was particularly in regions dominated by large landownership where non-economic power had disappeared –, the more mobile the land, at least on the level of the land user. Via the highly flexible and competitive lease market, land could be freely accumulated by financially powerful farmer-entrepreneurs, benefiting from the socio-economic circumstances and the development of the wage-price ratio. By using the possibilities for capital-intensive market specialisation and reducing labour inputs, they further increased their profits and strengthened their position, gradually pushing aside small and mediumscale tenants (van Bavel, 2001). This, however, was not an automatic development, since apart from all elements mentioned a lease system was also needed that offered security to both owner and tenant, an unconstrained use of the land, and stimulus for investments, thus promoting the development of the rural economy. Investment was promoted, for instance, by a sound system offering reimbursement of the expenses and improvement made by the tenant, an even distribution of the risks involved in larger-scale farming and equal contributions of the landlords in investment. In regions where all these elements were present, such as the Guelders river area, a strong accumulation of lease land took place in the fifteenth and sixteenth centuries, as a result of the rise of large tenant farms. These farms, some 35 to 70 hectares in size, started to emerge around the mid-fifteenth century and had acquired a dominant position in the agrarian landscape in the second half of the sixteenth century. This development primarily occurred at the expense of small and medium-sized tenants, who increasingly lost their lease lands, making them dependent on wage labour. The rise of the short-term lease can be considered one of the keys to understanding the social and economic developments in the later Middle Ages in some parts of the Low Countries, promoting scale-enlargement, the rise of wage labour and high capital investments in agriculture. Still, it is vital to stress that this was not the single possible outcome of the emergence of leasing, but rather dependent on its exact institutional arrangement and the socio-economic context of its emergence.

IV. Conclusion In the preceding discussion, regional differences and the divergent scenarios in the emergence of leasing in the North Sea area have been stressed. Looking beyond these differences and taking account of the more general picture, by placing the development of leasehold in the North Sea area, and its possible effects, in the wider geographical perspective of Europe as a whole, it may be the case that in some respects the North Sea area stands out. Leaving aside regional nuances, the importance of leasing at the end of the Middle Ages was evidently high in the North Sea area as it was in Italy. It seems reasonable to suggest that the organisation of leasing was economically most competitive in the North Sea area, the relation between landlord and tenant was most equal in the North Sea area and the arrangement of leasing was most conducive to economic growth. In Italy, the organisation of leasing by way of the mezzadria system was in its initial stages, in the thirteenth century, favourable compared to other existing arrangements, and did probably

26

Introduction. The emergence of lease and leasehold in a comparative perspective

at the time promote economic growth, but it increasingly made leasing more personal and economically less competitive, brought an unequal relation between landlord and tenant, and in the longer run rather blocked than promoted economic growth. In Central Europe, again leaving out the regional nuances, lordly power was too strong to allow for a similar rise and arrangement of leasing. In most parts of France and Germany, peasant landownership was too dominant to have enough land let out on lease, with exploitation by peasant owner-occupiers remaining dominant and leasing only playing a secondary and complementary role to this. With respect to the arrangement and importance of leasehold, the North Sea area may therefore stand out in an European perspective. In view of this, it remains tempting to link the rapid development of the rural economy and society in the North Sea area, and perhaps even of economy and society as a whole, to the emergence and specific organisation of the leasing here. This link cannot have been automatic, not even for the North Sea area, since we have identified four scenarios with respect to the effect of leasing, each with a highly different outcome. But the regions where the fourth scenario did occur, were all among the regions where economic growth in the period was strongest and economic development was most precocious. This was an interactive process, in which changing economy and society circumstances particularly working at the regional level determined the specific arrangement of the lease and its social and economic effects, while conversely the lease and its effects formed an integral part in the precocious development of economy and society in the North Sea area, in a intermittent and geographically diverse process starting particularly in the thirteenth century. Testing this interactive link, or the absence or different nature of such a link, is not the aim of this volume. But hopefully it will invite these further tests, to be performed at a regional level.

Bibliography Bavel, B.J.P. van (2001) ‘Land, lease and agriculture. The transition of the rural economy in the Dutch river area from the fourteenth to the sixteenth century’, Past and Present, 172, pp. 3-43. Bavel, B.J.P. van (2002) ‘People and land. Rural population developments and property structures in the Low Countries, c. 1300 – c. 1600’, Continuity & Change, 17, pp. 9-37. Bavel, B.J.P. van (2003), ‘The land market in the North Sea area in a comparative perspective, 13th-18th centuries’ in: Cavaciocchi, S. (ed.), Il mercato della terra, secc. XIII-XVIII. Atti delle “Settimane di Studi” e altri convegni, 35, Prato, pp. 119-145, 183-188. Bavel, B.J.P. van (2008) ‘Land and lease markets in Northwestern Europe and Italy, c. 1000-1800’, http://www.iisg.nl//papers/vanbavel.pdf (Utrecht, 2005), to be published in Continuity & Change, 23. Bavel, B.J.P. van and Hoppenbrouwers, P.C.M. (2004) ‘Landholding and land transfer in the North Sea Area (late Middle Ages – 19th century)’ in: Bavel, B.J.P. van and Hoppenbrouwers, P.C.M. (eds), Landholding and land transfer in the North Sea area (late Middle Ages – 19th century), Turnhout, pp. 13-43 (CORN Publication Series 5).

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Blanchard, I. (1984) ‘Industrial employment and the rural land market’ in: Smith, R.M. (ed.), Land, kinship and life-cycle, Cambridge, pp. 227-275. Bloch, M. (1966) French rural history. An essay on its basic characteristics, London. Bolton, J.L. (1980) The medieval English economy, 1150-1500, London. Brenner, R. (1976) ‘Agrarian class structure and economic development in pre-industrial Europe’, Past and Present, 70, pp. 30-75. Brenner, R. (1982) ‘The agrarian roots of European capitalism’, Past and Present, 70, pp. 16-113. Britnell, R.H. (1991) ‘Tenant farming and tenant farmers: Eastern England’ in: Miller, E. (ed.), The Agrarian history of England and Wales, vol. III, 1348-1500, Cambridge, pp. 611-624. Britnell, R.H. (1993) The commercialisation of English society, 1000-1500, Cambridge (repr. Manchester, 1996). Chayanov, A.V. (Thorner, D. Kerblay, B. and Smith, R.E.F. (eds)) (1966) The theory of peasant economy, Wisconsin. Dimmock, S. (2001) ‘English small towns and the emergence of capitalist relations c.1450-1550’, Urban History, 28, pp. 5-25. Dyer, C. (1988) ‘Social Structure. E. The West Midlands’ in: Hallam, H.E. (ed.), The Agrarian history of England and Wales, vol. II, 1042-1350, Cambridge, pp. 660-675. Dyer, C. (1994) ‘English peasant buildings in the later middle ages, 1200-1500’ in: Dyer, C. (ed.), Everyday life in medieval England, London, pp. 133-165 (first published in Medieval Archaeology, 30, pp. 19-45). Feller, L. and Wickham, C. (2005) Le marché de la terre au moyen âge, Rome. Genicot, L. (1943) L’économie rurale namuroise au bas moyen âge, 1199-1429, Louvain. Harvey, B.F. (1977) Westminster Abbey and its estates in the middle ages, Oxford. Harvey, P.D.A. (ed.) (1984), The peasant land market in medieval England, Oxford. Hilton, R.H. (1975) The English peasantry in the later middle ages, Oxford. Jacquart, J. (1975) ‘La rente foncière, indice conjoncturel?’, Revue historique, 99, pp. 355-376. Kuys, J.A.E. and Schoenmakers, J.T. (1971) Landpachten in Holland, 1500-1650, Amsterdam. Levett, A.E. (1916) ‘The Black Death on the estates of the see of Winchester’ in: Vinogradoff, P. (ed.), Oxford studies in social and legal history, vol. v, Oxford, pp. 1-220. Lomas, T. (1984) ‘South-east Durham: late fourteenth and fifteenth centuries’ in: Harvey, P.D.A. (ed.), The peasant land market in medieval England, Oxford, pp. 252-327. Miller, E. (1951) The abbey and bishopric of Ely. The social history of an ecclesiastical estate from tenth century to the early fourteenth century, Cambridge. Page, F.M. (1934) The estates of Crowland Abbey: a study in manorial organisation, Cambridge.

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Pollock, Sir F. and Maitland, F.W. (1968) The history of English law before the time of Edward I, 2 vols, Cambridge, 2nd ed.Postan, M.M. (1960) ‘The charters of the villeins’ in: Brooke, C.N.L. and Postan, M.M. (eds), Carte Nativorum. A Peterborough Abbey cartulary of the fourteenth century, Northamptonshire, Record Society, 20, pp. xxviii-lx (republished as Postan, M.M. (1973) ‘The charters of the villeins’ in: Postan, M.M. (ed.) Essays on medieval agriculture and general problems of the medieval economy, Cambridge, pp. 107-149). Postan, M.M. (1972) The medieval society and economy. An economic history of Britain in the middle ages, Harmondsworth. Raftis, J.A. (1957) The estates of Ramsey abbey, Toronto. Ravensdale, J. (1984) ‘The transfer of customary land on a Cambridgeshire manor in the fourteenth century’ in: Smith, R.M. (ed.), Land, kinship and life-cycle, Cambridge, pp. 197-225. Reinicke, C. (1989) Agrarkonjunktur und technisch-organisatorische Innovationen auf dem Agrarsektor im Spiegel niederrheinischer Pachtverträge, 1200-1600 (Rheinisches Archiv 123), Köln/Wien. Schofield, P.R. (1996) ‘Tenurial developments and the availability of customary land in a later medieval community’, Economic History Review, 49, pp. 250-267. Schofield, P.R. (1998), ‘L’endettement et le crédit dans la campagne anglaise au moyen âge’ in: Berthe, M. (ed.), Endettement paysan et crédit rural dans l’Europe médiévale et moderne, Flaran xvii, Toulouse, pp. 69-97. Schofield, P.R. (2001) ‘Extranei and the market for customary land on a Westminster Abbey manor in the fifteenth century’, Agricultural History Review, 49, pp. 1-16. Schofield, P.R. (2004) ‘Credit and debt in the medieval English countryside’ in: Cavaciocchi, S. (ed.), Il Mercato della Terra, secc. XIII-XVIII, Prato, pp. 785-796. Schofield, P.R. (2007) ‘Peasant debt in English manorial courts: form and nature’ in: Claustre, J. (ed.), La dette et le juge. Juridiction gracieuse et juridiction contentieuse du XIIIe au XVe siècle (France, Italie, Espagne, Angleterre, Empire), Paris, pp. 55-67. Schofield, P.R. (forthcoming) ‘Peasants and contract’ in: Lambrecht, T. and Schofield, P.R. (eds), Credit and debt in medieval and early modern Europe, Turnhout (CORN Publication Series). Slota, L.A. (1988) ‘Law, land transfer, and lordship on the estates of St Albans Abbey in the thirteenth and fourteenth centuries’, Law and History Review, 6, pp. 119-138. Smith, Ll.B. (1976) ‘The gage and the land market in late medieval Wales’, Economic History Review 29, pp. 537-550. Thoen, E. (2001) ‘A “commercial survival economy” in evolution. The Flemish countryside and the transition to capitalism (Middle Ages-19th century)’ in: Hoppenbrouwers, P. and Zanden, J.L. van (eds), Peasants into farmers? The transformation of rural economy and society in the Low Countries (Middle Ages-19th century) in the light in the Brenner debate, Turnhout, pp. 102-157 (CORN Publication Series 4).

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Thoen, E. and Soens, T. (2003) ‘Appauvrissement et endettement dans le monde rurale. Étude comparative du crédit dans les différents systèmes agraires en Flandre du bas Moyen Age et au début de l’Époque Moderne’ in: Cavaciocchi, S. (ed.), Il mercato della terra secc. XIII-XVIII. Atti delle “Settimane di Studi” e altri convegni, 35, Prato, pp. 703-720. Zuijderduijn, J. (2007) ‘Medieval capital markets. Markets for renten between state formation and private investment in Holland (1300-1550)’ (unpublished PhD thesis, Utrecht University)

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2 The origins of leasehold in the former county of Flanders

Tim Soens, University of Antwerp Erik Thoen, University of Ghent

I. Introduction: goals and limits The introduction and spread of short-term leasehold is one of the most significant features of the agrarian transformation in North-West Europe from the late medieval period onwards. Especially in the 1960s and 1970s, the medieval origins of leasehold received some attention, mainly from continental historians (e.g., Bur, 1967; Fourquin, 1966; Genicot, 1943; Delmaire, 1990; 1995). Nevertheless these studies had two major disadvantages for the understanding of this important phenomenon. First, they considered the phenomenon mainly from a strictly judicial angle, neglecting its social and economic importance for late medieval society. Second, they focused on large holdings and particularly on the leasing out of demesne centres, or curtes, that were originally under direct estate management. Leases of small plots of land or parcels, as well as of smaller farmsteads, are mostly not considered by these studies. One of the reasons is that most studies of estate management of large institutions focused on the high Middle Ages, when the leasing system was still of minor importance. Even if Fourquin exaggerated in arguing that the difference between direct exploitation and the leasing out of large demesne centres was hardly noticed by peasant society (Fourquin, 1966: 52), the impact of the leasing out of individual plots was undoubtedly much greater. It undeniably made a difference when the peasants themselves, who were used to customary rents, were increasingly forced to operate in a system of leasehold, even more so when their farmsteads too were held on lease. A generalised shift in the pattern of property structures from customary rents towards a predominance of temporary leasing profoundly affected what we might call the whole agro-system or, in other words, the way rural society as a whole was economically and socially organised (see below). For this reason, we will concentrate on the development of temporary leases of small plots of land and farmsteads. We will limit our research to the former county of Flanders, which also partly extended into northern France and the southern part of the present-day Netherlands (Zeeland Flanders). Our study mainly deals with the period between 1200 and 1600, focusing especially on the earliest developments. Following a short comment on the available sources and the methodological problems, we will first try to clarify the chronology of the introduction and spread of short-term leasehold in Flanders. We will then try to explain this chronology, paying special attention to regional differences. Finally, we will discuss the consequences for society and for the functioning of the different agro-systems.

31

The development of leasehold in northwestern Europe, c. 1200 – 1600

II. Sources and research problems The first general survey of the importance of leasehold compared to holding at customary rent is based on a series of tax registers from the central government – the so-called ‘penningkohieren’ – from the 1570s (Maddens, 1979; Stabel and Vermeylen, 1997). For the earlier period, rentals, surveys and terriers of estates, accounts, and individual leases provide us with some information. However, since most sources originate from ecclesiastical and lay institutions, this documentation can be very inadequate. Leasehold was especially popular in lay society, particularly among the urban bourgeoisie, for whom few documents survive. Lease contracts were by definition temporary. Once the contract expired, landlords and farmers had little interest in keeping any record of the transaction (van Bavel, 1998: 105-109). Since we can presume the existence and even prevalence of oral contracts in the earliest period, it becomes clear that much land was probably leased out without leaving any traces in the archives. Hereditary or customary rents, in contrast, did not expire and hence are much better documented than short-term leases. Since tenants disposed of secure property rights over the land they held in hereditary tenure, they could sublet this land by short-term lease, but often only the hereditary rent they paid is known to us through the surviving records, not the rent they collected themselves. Furthermore, in the oldest rentals it is often very difficult to distinguish leasehold from customary tenure, as the duration of the contract was not always mentioned. These problems, however, are not typical of Flanders alone (see the other contributions in this volume). This study is based on a combination of existing literature together with a new in-depth analysis of some previously almost unexplored and mostly unpublished surveys and rentals dating back to the 13th century. Apart from some published and unpublished cartularies, we were also able to explore the vast opportunities for historical research offered by two recent electronic databases of medieval diplomatic sources for the (southern) Low Countries.1

III. The chronology of leasehold and the two Flemish ‘social agrosystems’ III.1. Two agro-systems with different importance of leasehold In other publications, we have shown that the county of Flanders can be divided into two distinct rural areas, the sandy inland part of the county on the one hand, and the coastal area on the other. From the late medieval period onwards, both areas were evolving towards The most important sources used are: Gysseling, 1977-1998 (database of diplomatic sources in Dutch before 1300); Tombeur et al., 1997-2006 (database of diplomatic sources concerning the southern part of The Low Countries before 1200 and, provisionally, until 1250); Vermaere, 1974 (“Cartularium X”: survey and rental of the Ghent Benedictine abbey of Saint-Peter, dating back to the second half of the 13th century); “Liber Inventarius”: Ghent, State Archives (RAG), Saint-Peter, I 125 (survey and rental 1281); Ruwet, 1941 (survey and rental of the Cistercian abbey of Boudelo, 1261-63). 1

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The origins of leasehold in the former county of Flanders

different (social) agro-systems, distinguished by divergent social relations and social structures, such as the soil and the environment, power and property relations, income policies and labour relations, agricultural techniques and farm sizes (Thoen, 1999; 2004; Thoen and Soens, forthcoming). Simply put and passing over the constant and structural evolution of both ‘social agro-systems’, they can be characterised as follows: Table 2.1 The two social agro-systems in Flanders and a selection of their features (Middle Ages-sixteenth century)

11

soil and environment

Coastal Flanders

Inland Flanders

growing importance of heavy marine clays and diminishing extent of peat lands and salt marshes

light sandy and sandy-loamy soils

quite ‘recent’ occupation and constant ‘reoccupation’

early occupation and gradual reclamation until 1250

‘challenging’ environment 22a

Social property re- lordship based on power lations and power structures collaboration between central government and local landowners

less demanding environment lordship based on power confrontational model between government, local lords and (bourgeois) landowners

lordship based on estates

lordship based on estates

larger investment of lords (embankments)

limited investment of lords; greater investment of peasants

introduction of short-term leasehold more successful

stronger peasant resistance against leasing of parcels

22b

large and small holdings

evolution from a polarised economy with large estates and small holdings towards a society in which middle-sized to large holdings were predominant

evolution towards a polarised society with a majority of small holdings and a small number of larger ones owned by lords

33a

intensive/ extensive

increasing labour productivity

intensive agriculture with high productivity of land and decreasing productivity of labour

importance of proto-industry (peat) diminishing

growing importance of protoindustry (especially linen)

from a mixed survival and commercial economy towards a ‘commercial business economy’ (meat and dairy; commercial crops)

mixed cultivation of commercial and survival crops and a limited number of commercial farms living in harmony with survival holdings (evolution towards a ‘commercial survival economy’)

33b

mixed/specialised/ market oriented/ proportion arable farming and cattle breeding

Source: Thoen, 1999, 2004; Thoen and Soens, forthcoming.

33

The development of leasehold in northwestern Europe, c. 1200 – 1600

Important for us in this context are the differences in landholding between these two areas, and especially the different proportions of land held on short-term leases. As table 2 shows, the above-mentioned tax registers, the penningkohieren, reveal important information about the situation in the second half of the sixteenth century, just before the period of civil war at the end of that century. Table 2.2 The importance of leases in the Flemish agro-systems (ca. 1570) % of land held on short-term lease (average of different test cases) coastal Flanders inland Flanders (test case Oost-Vlaanderen)

+90% 54%

Source: Vandewalle, 1986: 95; Van Den Abbeele, 1985: 104. It becomes clear that in inland Flanders much more land remained in the hands of the peasants themselves, in most cases paying only a light customary rent. Conversely, in coastal Flanders the predominance of leasehold is undeniable: in the second half of the 16th century, barely 10% of the area was still cultivated by (peasant-) landowners. III.2. The origins and emergence of leasehold Before explaining the discrepancy in the spread of leasehold in the two regions, we will look more closely at the origins of this divergent evolution. Most authors situate the development of leasehold in Western Europe in the 13th century, but the exact chronology remains a matter of conjecture. Moreover, many authors paid (too) much attention to some early mentions of often hereditary or life leases and, according to Irsigler (1983: 302-303), situated the origins of leasehold at least half a century too early. In order to establish a more precise chronology, we have to distinguish between different forms of land tenure and estate management, all of them called ‘leasehold’. Some kind of ‘administrative leasing’ of complete estates or parts of estates occurred already on the domain of the count of Flanders in the early 12th century. Individuals were temporarily entrusted with the administration of parts of the count’s domain for a set rent. This was a common feature of more ‘progressive’ royal or princely administrations, also found in England and Normandy (Lyon and Verhulst, 1967: 95). The influence of this type of ‘administrative’ leasehold on rural society was probably very limited; consequently, we will not deal with it in detail, but confine ourselves to the leasing of estates that involved lessees who were actively engaged – as farmers – in cultivating the estates. Contrary to ‘administrative’ leasehold, this kind of leasehold determined the evolution of property structures. Van Bavel tried to reconstruct the early spread of leasehold in North-West Europe and concluded that the northern part of Flanders was among the first to adopt the new system, together with the coastal area of Holland, the duchy of Brabant, the region of Cologne, and neighbouring territories such as the counties of Hainault and Artois (van Bavel 1999: 483-485). In these areas, leasehold was introduced before the middle of the 13th century, and the system was adopted swiftly in the following decades. The available documentation

34

The origins of leasehold in the former county of Flanders

for Flanders reveals that there is indeed proof of a developing leasing system before 1250, but altogether leases remain very rare. The exploration of the database Thesaurus diplomaticus (Tombeur et al., 1997-2006) which includes thousands of charters from the southern Netherlands up to 1250 makes this perfectly clear. It contains only a handful of instances of leases, most of them for life or hereditary. The leasing system really seems to start after the final end-date of that database. At least this is true for leases of curtes or demesne centres since we can hardly expect leases of individual plots to be found in a database of this kind. An approximate chronology of the first leases of curtes by one of the largest religious institutions of Flanders, the abbey of Saint Peter’s in Ghent, can be reconstructed using charters and two very important unpublished surveys: the ‘Liber Inventarius’ of 1281 and the ‘Cartularium X’ composed in the second half of the 13th century. Since the abbey of Saint Peter’s had important possessions in both coastal Flanders and inland Flanders, these surveys allow us to compare the two regions. In the area we call inland Flanders, the abbey leased out a minimum of 26 curtes (most of them rather small, with an area of between 15 and 50 ha) before 1281, with seven contracts starting before 1260. In contrast, in coastal Flanders only 6 curtes were leased out before 1281. The oldest contract dated from 1258 (Van Lokeren, 1868: no. 687). As a consequence, to claim that the leasing system was much older in the coastal area than in inland Flanders is certainly oversimplified. Other data seem to confirm that for curtes the early expansion of leasehold was more pronounced in inland Flanders than in the coastal plain: for the inland curtes of the Ghent abbey of Saint Bavo’s, Verhulst (1958: 223-224) even found evidence for short-term leasehold as early as 1228 (Lochristi). Conversely, in the coastal area, there were good reasons to maintain direct demesne farming, at least for a few more decades (see below). This double track was short-lived: with a few exceptions (studied by Mertens, 1970), most curtes were leased out all over Flanders around the middle of the fourteenth century, including in the coastal plain (Verhulst, 1990: 78, 110). From the beginning, the duration of these leases was short: in most cases 3, 4, 5, 6, 9 or 10 years. As Delmaire (1995, 534) has suggested for northern France, there was no evidence of an evolution from long-term leases to short-term ones. Table 2.3 Early leases of curtes (1243-1281) and individual plots (1281) by the Ghent abbey of Saint Peter’s Coastal plain

Inland Flanders

Curtes (1243-1281) villages with shortterm leases



6

number of leases



7

villages with shortterm leases



number of leases





26



26

28



13

254



36

Parcels (1281)

Sources: ‘Liber Inventarius’; ‘Cartularium X’; van Lokeren, 1868-1871.

35

The development of leasehold in northwestern Europe, c. 1200 – 1600

The leasing out of parcels and smaller plots of land shows a different evolution. Whereas the leasing out of curtes was apparently most successful in inland Flanders, the leasing out of individual plots seems to have developed much earlier in the coastal plain (already suggested by Ganshof, 1942: 310). Nevertheless, in inland Flanders the leasing of individual parcels was not completely absent prior to 1300. In this area, too, there were attempts to generalise the new exploitation system (Verhulst, 1990: 112). Again, the sources of the Ghent abbey of Saint Peter’s can confirm this. The survey of 1281 mentioned above, drawn up following the bankruptcy of the abbey, allows us to illustrate the different evolution between the two areas: In the coastal plain we can identify short-term leases of individual parcels in 1281 in at least 28 different villages (254 parcels in total). The contrast with inland Flanders is clear: in the latter area we found short-term leases of parcels (28 parcels in total) in only 13 villages. Other thirteenth-century rentals and surveys – e.g., Ruwet (1941) for the abbey of Boudelo (1261-1263) – seem to confirm these results: in the coastal plain the leasing of parcels was already a very common practice in the second half of the century.2 It is therefore not a coincidence that the earliest text at our disposal revealing the leasing out of parcels concerns the coastal plain (Oostburg and IJzendijke – 1227: Verhulst, 1958: 471; Verhulst and Gysseling, 1964: 169).3 To claim that the leasing out of parcels is older than that date is speculative.4 At the same time, the early spread of short-term leasehold in the coastal area does not mean that this form of land tenure had already completely displaced hereditary rents (and hereditary leases). Different forms of land tenure (hereditary rents, hereditary leases and short-term leases) still coexisted, although the leasing system would become predominant in the following centuries. III.3. Further evolution (1300-1570): a brief overview Not only was the introduction of leasehold different in both agro-systems, but the relative importance of leasehold in 1570, about three centuries later (supra, Table 2), also indicates a further divergent evolution. In the following paragraphs, we will give a short overview. III.3.a. Inland Flanders As we have seen, short-term leasehold already existed in inland Flanders at the end of the thirteenth century. Especially between ca. 1270 and 1300 it began to spread. Initially, terms were very short (2, 3, 4 or 6 years), but afterwards they became longer (6 to 9 years). Later, the relative importance of leasehold increased, especially during the fourteenth century (Thoen, 1988a: I 345-346). Mostly this was due to reorganisation of the large Many plots of land which were in 1261-1263 leased out by the abbey of Boudelo were acquired by this abbey in the first half of the thirteenth century, the earliest gift dating back to 1218. It is not impossible that these plots were leased out from the very moment the abbey acquired them. In that case, these would be the earliest leaseholds which we could retrace. 3 The document reveals no information about the term of the lease, but the terminology used – terra locata – seems to indicate (short-term) leasehold. 4 Verhulst (1958: 461-466, 506-507) claims that the short-term lease of parcels in the coastal plain was already widespread at the beginning of the 13th century, but fails to give other examples. 2

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The origins of leasehold in the former county of Flanders

demesnes and increasing purchases of land by the burghers of the towns, who began to invest in landed property from that period on. In many cases, they purchased different plots of land in the same location, which were then merged with new farms and leased out. Although in general the number of larger – leased out – farms was increasing in this way, land tenure remained for the most part based on customary rents, which had almost evolved into freehold. Indeed, a large part of rural society in inland Flanders retained secure property rights over their holdings and certainly over their farmsteads. Smaller plots of land were only taken on lease to complete a holding, although in the latter case, the smaller tenants had to compete with larger farms to obtain these plots. These ‘peasants’ survived thanks to proto-industry and to a more or less harmonious ‘cohabitation’ with the (few) larger farms, where they worked as temporary wage earners and from which they borrowed services and capital (e.g., horses) (Lambrecht, 2002). As we can see in table 4, in which we classify the leaseholders of a larger institution in inland Flanders, the number of tenants who rented very small plots of land (less than 1 hectare) remained predominant. There were also no real changes over time between the beginning of the fifteenth century and the end of the sixteenth century. Table 2.4 Short-term leasehold of individual plots owned by the hospital of Audenarde in inland Flanders (% leaseholders/categories according to size of plots) Years

Plots 15 ha

1435-1436

70

16

6

1

6

1461-1462

61

26

8

1

4

1503-1504

62

26

8

1

3

1536-1537

61

29

7

1

3

1563-1564

64

25

7

1

4

Source: Van Maelzake, 2001: I 131. III.3.b. Coastal Flanders In coastal Flanders the situation was very different. Here an expropriation process that had already started in the thirteenth century (see below) persisted during the later Middle Ages. A major study based on two impressive land registers of a large water authority – a so-called ‘watering’ (infra) – by the name of ‘Oude Yevene’, situated in the western part of Zeeland Flanders, reveals that the number of landowners had fallen dramatically between the end of the fourteenth century and the middle of the sixteenth century (Table 5). In this region, the total number of landowners decreased by about 70%, especially due to the dramatic reduction of the number of small landowners possessing fewer than 5 hectares. Since the surface area remained almost unchanged, and an increasing proportion of the land was owned by non-peasant absentee landowners (Soens, 2006: 192-193, 249-253), we may assume that significantly more land was leased out between these two dates.

37

The development of leasehold in northwestern Europe, c. 1200 – 1600

Table 2.5 Property structures in the ‘Oude Yevene’ watering in the western part of Zeeland Flanders (1388 and 1550) Hectare