REESE LIBRARY OF TIIK \ UNIVERSITY -OF CALIFORNIA. "Kec, APR SO 1893 ON PEOPEETY IN LAND PBINCIPLES OF PKOPEETY IN LAND BY JOHN BO YD KINNEAR n AUTHOR OF 'PRINCIPLES OF REFORM, POLITICAL AND LEGAL' 'A PRACTICAL TREATISE ON THE LAW OF BANKRUPTCY IN SCOTLAND' 'DIGEST OF HOUSE OF LORDS APPEAL CASES' ETC. LONDON SMITH, ELDER, & CO., 15 WATERLOO PLACE 1880 [All rightt reserved] I 36 INTBODUCTION. AT A TIME when the Conditions on which Property in Land should be held are being brought under con- sideration, it seems desirable to examine the Prin- ciples on which such Property rests, as well as the practical results of our present laws affecting Land. The preliminary inquiry into Principles is the more necessary, because very conflicting theories respecting the Institution of Property are put for- ward by defenders and opponents of the existing system of law. On the one side we have assertions of the sacredness of Property in private hands ; on the other we have the doctrine that Property can vest only in the community, and that its appropria- tion to individuals is a moral wrong and an econo- mic blunder. Between these exti ernes there is to be vi INTRODUCTION. found every variety of view as to the limits of right and of expediency. In this situation a brief exposi- tion of the basis of Right is essential to clear the ground for the investigation of Expediency, and the determination of what is expedient must finally be controlled by consideration of what is practicable. In the following pages it is therefore attempted to bring Principles to bear on Practical Legislation ; to examine the teaching of Political Economy in the light of the facts of modern Agriculture and Science ; and to illustrate the conclusions arrived at by a review of the actual operation of different systems of Law in our own and in other countries. After tracing the effects of the erroneous principles embodied in our present Laws affecting Land, the various Reforms which have been proposed in them are discussed ; and finally, the leading Amendments which Legislation may usefully introduce are pointed out, and their application and consequences are con- sidered. LINCOLN'S INN : July 1880. CONTENTS. CHAPTER I. OF THE MATERIAL OBJECTS OF PROPERTY. PAGE All material objects of value derived from the earth . 1 The value of land is the value of its situation and con- stituent ingredients 4 No distinction between it and other wealth in respect of its limitation in extent 5 Or liability to be monopolised 7 Or indestructibility 9 Or benefit from natural laws 11 Sole distinction consists in its immoveability . ' . . . 12 And forming a source of enjoyment 13 CHAPTER II. OF RIGHTS OF PROPERTY. Modern resort to first principles . . . . . . 17 Division into natural and social rights 17 Natural right to live and to possess fruits of labour . .18 Does not involve right to specific portion of land . . . 19 Except by labour 20 Vlll CONTENTS. PAGE Occupancy no right without labour . . . . .22 Labour applied to all land 24 No other natural title to property 25 Limited to life 26 Social rights founded on agreement 27 Their variety 28 Cause of differences in individual wealth . . . .29 State is supreme arbiter of social rights of property . . 31 CHAPTER III. OF THE AIM OF LAW OF PROPERTY. exists for the benefit of all 3:3 Communism ;>4 Socialism 35 Aim of laws of private property to promote, 1st, productive- ness, 2nd, diffusion of property H7 Limitation of these aims 38 Subordinate rules, first, labour should be made productive . 41 Which involves that property should be transferable . . 42 Second, labour should be carried to completion . . . 4o Third, excessive aggregation should be discouraged . . 44 Application of these principles to land . . . .47 CHAPTER IV. OF THE LAND LAWS OF GREAT BRITAIN. Kecent reforms recognise principles stated in last chapter . 48 Still embody hurtful principles of fostering maintenance of large estates 50 By primogeniture 51 By creation of life interests 52 CONTENTS. ix PAGE By entail and strict settlements ...... 53 By resettlements 54 By mortgages 55 By family provisions 57 All these restrict powers of present owner . . . .58 No relief from Land Improvement Acts nor from powers of sale , 60 CHAPTER Y. OF THE NATIONAL INTEREST IN CULTIVATION. Argument unsound that free trade in corn makes cultivation immaterial 62 Untrue that production abroad cheaper than at home . . 64 Cost of transport 65 Waste of labour at present 68 More should be expended . . . . . . .69 Estimate of loss from waste 70 Immense amount 72 CHAPTER VI. OF THE ECONOMIC AND SOCIAL RESULTS OF LARGE AND SMALL ESTATES. Large estates not necessary for good culture . . .73 They must be broken up into farms 74 No advantage in one landlord owning many farms . . 74 Comparison of large and small farms as to education of farmers 77 Use of machinery 79 Methods of agriculture , . 80 Channel islands and France . .... 83 X CONTENTS. PAGB Social advantages claimed for large estates gradually dis- appearing 86 Moral advantages of small properties 88 Absenteeism of large landowners increasing . . . . 89 CHAPTER VII. OF THE RESULTS OF RESTRICTED POWERS OF OWNERSHIP. Necessity of investing capital in improvement of land . 91 Must be first by landlords 92 Settlements deprive owners of motive to improve . . 93 Moral injury done by settlements 97 Effects of mortgages in preventing improvements . . 98 Slight amendments of those laws useless . . . . 102 CHAPTER VIII. OF PROPOSALS FOR RESUMPTION OF LAND BY THE STATE. ^/Nationalisation of land .106 Mr. Mill's proposals to facilitate purchase in Ireland . . 110 Both schemes involve a loss to the public . . . .111 Not advantageous to the purchasers or tenants . ..112 Mr. Bright's clauses in Irish Land Act . . . .114 Prussian Land Banks 115 Professor Lorimer's proposal . . . . , 116 Mr. Mill's proposals for appropriating the unearned incre- ment of value of land 118 Principle equally applicable to personal property . .118 And to losses 119 Obstructive to improvement 119 CONTENTS. xi PAGE Unearned increment incapable of being discriminated . . 120 Increase of Land Tax 121 Would be a tax on money invested in improvements . . 123 CHAPTER IX. OF PROPOSALS TO LIMIT THE SIZE OF ESTATES. Equal division on inheritance . . . . . .125 Not objectionable as tending to too minute division . . 126 Operation in Channel Islands 126 Explanation of inconvenience in France . . . . 127 Advantages 129' Moral objections 130 Objections to interference with paternal discretion . .131 Direct limitation of size of estates 133 Equally necessary in personal property as in land . . 134 Would diminish the price of property 137 Easy methods of evasion 139 Only practical method lies in limiting amount bequeath- able to one individual . . . 141 CHAPTER X. OF DIRECT INTERFERENCE OF LAW WITH THE USE OF LAND. Compulsory cultivation 144 Cultivation of wastes 148 Objections to the enforcement of . . . . . 149 Game laws . 151 Inalienable right given to tenants nugatory . . . 153 Abolition of game laws sole practicable method . . . 155 Fixity of tenure by tenants 157 xil CONTENTS. PAGE Reasons why favoured in Ireland . . . . . . 158 Objections to it . . . . . . . . . 159 Its indefiniteness 160 Operation in India 162 CHAPTER XI. OF LAWS RELATING TO THE LETTING OF LAND. Contracts of lease 164 General principles 165 Demand of compulsory contracts 166 Tenant-right in Ireland 167 Custom in England 168 Difference between these and the new demand . . .169 Objections to it . . 170 Hurtful to agriculture 172 Temporary improvements 174 Proper sphere of law 175 Defect of Agricultural Holdings Act 176 Independence of tenantry the true remedy . . . .177 Progress of agriculture in Scotland 178 In England 180 Prospects of agriculture 181 Unnecessary to review systems of tenancy or theories of rent 183 CHAPTER XII. OF THE AMENDMENTS REQUIRED IN THE LAND LAWS. Evils arise from laws of settlement and mortgage . . . 187 Effects of their abolition 188 Abolition of trusts of land 189 CONTENTS. xiii PAGE Except for sale and as regards personalty . . . .190 Method of securing family provisions 191 Husband and wife . x 192 Provision for dignities 193 Resulting advantages 195 Borrowing for improvements . . . . . . . 1 99 Methods of introduction 199 Effect on conveyancing 202 Increase of small properties 203 Sale of land belonging to corporations or companies . . 205 Co-operative ownership . 205 General conclusions ... 206 PEINCIPLES OF PHOPEBTY IN LAND. CHAPTER I. OF THE MATERIAL OBJECTS OF PROPERTY. ALL things which men can use are derived from the earth, being either minerals, of which it is composed, or animals and plants which are nourished by it, or substances derived from these sources. Our food, clothing, dwellings, fuel, utensils, ornaments, all material objects whatsoever, are the produce of the earth, and to become fit for our use they are either simply collected by us, or, more frequently, subjected during growth, or after being collected, to some pro- cesses involving human labour. The only j distinctions, therefore, that can be made between these things in regard to their pro- 2 MATERIAL OBJECTS OF PROPERTY. [CH. i. duction, lies in the comparative amount of labour expended upon them. A dinner of herbs, a coat of sheepskin, a wigwam of branches, vessels made of shells and gourds, rough tools of flints, are obtained with little more exertion than the gathering by human hands. Between these and a loaf of wheaten bread, cotton and woollen and silken clothing, fur- nished dwellings, glass and pottery ware, implements of steel, ornaments of gold and jewels, railways and steamships, and all the refinements and appliances of civilised life, there seems an infinite difference, yet in all cases the original materials are wholly de- rived from the earth, and the distinction lies only in the amount of human labour from first to last em- ployed fn the transformation of the raw material into higher uses. Land consequently is the basis of ail wealth. But this does not make it different in character from the products obtained from it. These products are merely the land itself, either still in the shape of minerals, as stone, clay, sand, earthenware, glass, iron, gold, and so on ; or transformed by the agency of light and air, and in conformity with the laws of nature, into plants, and from plants into animals. So strictly are these last products part of the land that if any ingredient in them is not contained in the land it must be added artificially before we can get the organic compound which we call plant, or the animal en. i.J KEAL VALUE OF LAND. 3 that needs the plant for food. So that when the soil runs short of any such ingredient (be it phosphorus or potassium, or what not) the plants will not grow, and we must supply the missing element to enable the other elements to fulfil their own functions in forming organisms. This being the case it is evident that land is not a concrete entity, but merely so much of certain articles of more or less value. An acre of land contains vsome thousands of tons of sand and of clay ; if these are of peculiarly fine quality, fitting them for manu- facture into pottery or glass, the value of the land is just the value of that number of tons of sand and clay. If these are worthless for manufactures, they are equally worthless to the farmer, except as a mere basis of his operations, but the value of the land to him is expressed by the value of the number of pounds per acre of nitrogen, of phosphorus, of potash, of lime, and of a few other elements which are re- quired by plants. These substances in the soil are just of the same value as if they were imported from foreign countries as merchandise (as in fact they are for manure), and were lying in the merchant's ware- house. In both cases their utility when employed on any particular plot depends on its mechanical condition, its situation, and its climate. But in both cases they are simply so much wealth provided by Nature from the earth, and available to man for the B 2 4 MATERIAL OBJECTS OF PROPERTY. [CH. i. supply of his requirements by the exercise on them of his labours. The area of the land is nothing more than the factory in which by the labour of man, and with the help of the universal agencies of nature, heat and light, water and air, these raw materials are manu- factured into useful products. 1 There are therefore only two factors involved in the value of land. The one is its situation, which not merely refers to its proximity to towns, markets, or means of conveyance, but also to its climate^ altitude, capability of drainage or of other material improvement. The other is its composition, which may affect its value mechanically, as if there is an excess of clay which makes it damp, or of sand which makes it arid ; or chemically, if it contains an excess of a hurtful ingredient, as sulphur or iron in certain combinations, or if it is deficient in a substance such as nitrogen or phosphorus which is necessary for organ- ised life. Now as regards the first of these conditions, 1 If this view of the nature of land differs from what has been commonly taught in books of political economy, it is because the researches of modern chemists and physiologists, commencing with Sir Humphrey Davy, and carried on by Liebig, Boussin- gault, Lawes, and others, have informed us of the true functions of the soil in the nutrition of plants, which till now were not understood. Much remains to be ascertained, but it is already quite established that a fertile differs from a barren soil only because it contains more of the elements above-named, and the economic value of the soil is therefore simply the value of its contents in these elements, modified by the circumstances of the situation in which thev are found. CH. i.J LAND UNLIMITED. 5 that of situation, it is obvious that it affects land precisely as it does any other factory. In all cases a factory is of more or less value according to its locality, and in many cases according to its con- veniences of air, light, water, and climate. And as regards the second class of considerations, that of composition, land also resembles most of the raw materials of manufacture. For all these vary in value according as they are more or less rich in certain elements, and in very many of them we can, as in the case of land, correct a superfluity or a de- ficiency of certain elements by processes which enable us to eliminate an excess or supply a defect. Nor is there any such distinction as that which has been maintained even by some of the most eminent political economists, between land and other forms of material wealth on the ground that land is limited. It is certainly limited by the extent of the earth's surface, and for special purposes it is limited also by the conditions requisite for such purposes, such as fertility and climate. But everything else, being derived from it, is limited in precisely the same extent. We can have no more wheat than there is land capable of producing wheat, no more gold than there is land with gold in it. Nay, in practice, land is much less limited than its products, for besides that they can have no greater extent than the land which contains them, they are further limited by the 6 MATERIAL OBJECTS OF PROPERTY. ICH. i. amount of labour necessary to obtain them. The land capable of growing wheat or cotton or wool is, in point of fact, very much more extensive than the actual stocks of wheat, cotton, or wool, which the world possesses at any moment, and which form in ordinary language the materials of wealth of the farmer, the cotton spinner, or the cloth merchant. For these stocks are only so much as human labour has been able to amass, whereas there are in the earth the materials for a very much greater quantity, were human labour in sufficient supply to draw them forth. Indeed, speaking broadly, it may be said that the extent of land capable of supplying the chief neces- saries of life is quite unlimited. Every day we dis- cover vast deposits of coal, ironstone, and other ores in various parts of the world. There are millions on millions of acres capable of growing wheat, or feeding cattle, still unoccupied in North and South America, in Northern Asia, in Australia, and in Africa. But if we regard only particular products, within certain specified districts, we may find them very limited indeed. In some countries there are no gold mines, nor copper nor iron ores. Some regions are too hot or too cold for wheat, some too wet or too dry for cattle. Within a single country the same distinctions may be found in different provinces. In such countries or provinces then it may be asserted that mineral CH. i.] LAND CANNOT BE MONOPOLISED. 7 richness or fertile land is of limited extent. But equally so are the products of such mines or land ; and possession of the produce is therefore as much a monopoly as possession of such land. Perhaps it is answered that this is not so because we can go to other countries and buy their produce. But if we are to go out of our own country for produce we can equally well go out of it for the land. In fact we can more easily do the latter, for, as has been ob- served, land itself is more extensive in supply than the produce from it. There are only a certain number of million quarters of wheat for sale at a given moment, or even within a given year ; there is in fact hardly more than the population of the globe will eat within the year, and the supply being thus restricted it is easily conceivable that (as was in fact attempted in the United States last winter) so large a proportion might be secured by speculators that it would become a real monopoly in their hands, and might even pre- vent us from buying enough for subsistence. But the myriads of untilled fields on the globe are beyond the scope of any c ring ' to monopolise ; they far exceed the number of hands available to till them. Land, therefore, even fertile land, is in truth the least limited of all commodities on the earth. Of course when we set up artificial limits of our own erection, such as frontiers of states, we can make out land to be limited. But as there is no natural 8 MATEKIAL OBJECTS OF PROPERTY. [CH. i. rule that confines men to any artificial limit, any reasoning which is based upon those limits is fictitious and unsound. Each district naturally yields only a portion of what the human race needs, but by barter and commerce the produce of each becomes available for all, and thus when we speak of man we must speak of him as inhabiting the world, and not merely the narrow spot, bearing a conventional designation, in which he breathes for the time being. There was a time, indeed, still not very remote when there was neither a field for, nor the means of, emigration, when Europe was deemed to be fully populated, and when no practical outlet for an in- crease of the human race was in view. To the writers of the last generation, and even in the youth of many now living, America meant only the settled states on the Atlantic seaboard, and a narrow belt within reach of the Mississippi and the St. Lawrence ; Africa was believed to be a desert of burning sand ; Siberia a desert of frost ; Australia and New Zealand were islands that had been touched by adventurous geographical explorers ; and, even if a few settlers might push into the wastes, there were no practical means by which either their productions might be brought to Europe or by which the surplus millions of Europe might be transported to follow in their steps. Even the writings of Mill are therefore coloured with the apprehension that mankind was CH. i.] LAND DESTRUCTIBLE. 9 rapidly outgrowing its means of subsistence, and that there was a double necessity to check the in- crease of population, and to husband the use of pro- ductive land of which there was so little visible supply. But the triumphs of steam, which have bridged the seas and covered the wildernesses with roads, which have founded colonies embracing regions far larger than the mother country in all quarters of the globe, which have brought at once the wealth of continents to our shores, and stretched the empire of our race over boundless ranges of land as yet un- occupied, compel us to take a very different view of our situation. There is a new world opened up to us, and the arguments and theories which were built on the narrow limits of the old must necessarily be abandoned in the light of actual facts which then were unknown and unimaginable. It has, however, been suggested that there is still a distinction between land and other species of wealth, in the circumstances of the indestructibility of land. All other articles, it is said, wear out, while land does not. But this rests on a very imper- fect view of its nature and condition. It is true that there are a very few tracts of limited extent where the soil is naturally so full of the elements of fertility that it may be cultivated for a long time without sensible deterioration. Such are the 6 black earth ' 10 MATERIAL OBJECTS OF PROPERTY. [CH. i. regions in Russia, a small portion of the river bottoms in America, and some pastures in Somerset and York- shire. But these areas are far too trifling in extent to be worth reckoning among the elements of supply of human food. With these immaterial exceptions the rule is that land deteriorates with every crop taken from it. A portion of its essential constituents is contained in every crop, and if these are not restored the next crop is smaller. Not even does the manure made from the feeding of animals suffice to maintain fertility. The animals themselves carry off a proportion of nitrogen, of phosphorus, of lime, and of potash, and if these are not restored the land becomes less fertile. To restore the ingredients thus removed by the grain and the meat which is sold (and which we wastefully pour by the sewers of our towns into the sea), farmers are obliged to import from foreign countries oilcakes, nitrate of soda, guano, bones, mineral phosphates, potash salts, ground flesh and fish, &c., &c., besides applying lime and coprolites obtained from certain districts at home. Enormous sums are expended in Great Britain in thus maintaining the fertility of the soil, and the practical fact confirms the truth of chemical research, which has taught that land is very far from being an inexhaustible store, but that it is in truth a store which needs replenishing precisely as it is used. In countries where the land is not replenished, whether CH. i.] POWERS OF NATURE. 11 from ignorance or because manure would be too dear, even the virgin soils become in a few years so barren that they must be abandoned. Land therefore, just as much as any other species of raw material, is destructible, as regards the quali- ties which give it value. Equally does it demand the like outlay if we regard it merely as a factory* For, as in the case of other factories, it needs constant expenditure in maintaining the buildings, the drains, the roads, the fences, without which it would not yield its returns. In every aspect, therefore, land is not a self-maintaining source of wealth ; it needs in sub- stance and, as a rule, in degree, just as much outlay in the supply of fresh materials, and the use of as much labour in working them up, as any branch of what are ordinarily called manufactures. If again it be argued that the growth of plants and animals is due chiefly to natural laws in which man has no part, while the fabrication of manufac- tures is due wholly to human labour, it must be an- swered that this is not the case. The cultivation of the soil does not dispense with human labour. Although the sun and air bring up the plants, and the richness of the soil feeds them, yet man must dig and sow and weed and reap, in order to make these natural powers available for his purpose. But the powers of nature are at the service of man, and are necessary for his purpose, in his other labours 12 MATERIAL OBJECTS OF PROPERTY. [CH. i. too. It is the law of nature that carbon unites with oxygen, and in the union evolves heat, which furnishes us with fire to cook food or to smelt metals. It is the law of nature that gases expand with heat, which furnishes us with the steam-engine. It is the law of nature, which we call cohesion, that enables us to build houses, to construct ships, to weave cloth, to do almost every necessary daily act. In all that we do we use the various powers of nature as fully as in farming we use the sun's heat. Nature is alike bountiful to every labourer ; but to every gift she attaches the one condition, that it shall be utilised by our own labours. This is the law of cultivation in neither a higher nor lower degree than it is also the law of every species of manufacture. 1 In every view then, which can be taken, land, as a material for profitable use, differs in no respect from all other materials on which labour may be ex- pended. But it must now be noticed that when we do not consider mere utility, we shall find that land may have some points of difference from other forms of wealth. All these are subject to be removed, while land is immoveable. Hence the names used in Eng- lish law of personal and real, and in other systems of law, of moveables and immoveables, to distin- guish portable wealth from what is fixed in or to 1 See Mill's Political Economy, ' Production,' chap. i. CH. i.] LAND A SOURCE OF ENJOYMENT. 13 the soil. The distinction will be seen to be very material when we have to consider the use of either as a pledge for loans, since obviously its irremove- ability makes land to be preferred as a material guarantee of repayment to any other sort of security. But this circumstance does not make the smallest difference between land and other wealth from the point of view of its use as a means of production, since clearly a mortgagee cannot make more out of land than the mortgagor. In another respect land has what may be called an artificial value as an element of enjoyment. But this, as well as that which we have just noticed, is due not to its' own intrinsic nature, but to the pecu- liarities of human nature. Men do not in general care for the mere possession, as distinguished from the capacity of use, of material objects, other than land. This is, of course, subject to some exceptions. A miser rejoices in merely counting his gold ; a virtuoso in gaz- ing at a rare cup or jewel which belongs to him ; and some men love the mere sense of possession, no matter what the article or its use. But, speaking broadly, mankind esteem material objects in proportion as they either can yield direct pleasure, or, by increasing the wealth of their owner, can become the means of pro- curing pleasure. But the simple possession of land, apart from its utility, is a joy to human nature. 14 MATEKIAL OBJECTS OF PROPERTY. [CH. r. There is an instinctive satisfaction, to which few are insensible, in being the proprietor of the house one lives in, the garden attached to it, the park surrounding it, the farm, or the estate. Other emotions natural to humanity enhance this feeling. ^Possession of land is a visible and tangible evidence of property, and therefore augments the considera- tion given to those who have it. It affords scope for the indulgence of the love of beauty, either in its natural state or under the improvements which individual taste may suggest. Chief of all, perhaps, it flatters the sense of exclusiveness, the sense that one's house is one's castle, where one is lord over all, and where no intruder dare claim equality. For all these reasons the mere possession of land is an object of desire, irrespective of its value, and men are pecu- liarly apt to be satisfied with such mere possession as an ultimate end, instead of viewing land, as the interests of the community require, as a form of pro- ductive capital. We shall find hereafter that this tendency to disregard the economic use of land, and to regard only its value as a personal enjoyment, demands some special conditions in the laws affect- ing it. In the meantime, however, it is sufficient to recognise that in its material qualities there is no essential distinction between land and every other form of material wealth. Whatever distinction ex- H. i.] TRUE BASIS OF DISTINCTION. 15 ists in its use or enjoyment arises from the difference of feeling in the human mind. The distinction, in short, is not objective but subjective. To some persons it may seem that it is of little consequence in what the distinction lies, if there be a distinction. But we cannot frame wise laws unless we understand the subjects they are to affect, and the sentiments they have to deal with. And undoubtedly some very mischievous legislation has taken place, and has been proposed on the ground that the dis- tinctions exist, which we have seen are unfounded. ] 6 EIGHTS OF PROPERTY. [CH. n. CHAPTER II. OF RIGHTS OF PROPERTY. IT is sometimes said that to inquire into the founda- tion of rights is merely pedantic work, proper only for curious antiquarians or for impractical philosophers. Yet it so happens that in the most practical and busy parts of the world these rights are every day being traced to their origin, and rules are established which illustrate the fundamental principles on which the doctrine of property everywhere depends. When a new grazing tract or gold-digging region is discovered in unoccupied territory, the first occu- piers take what they like, because there is enough for all. But when the rush has set in, squatters and miners set up an unwritten code, which very soon becomes the fixed laws of the new community. This code recognises that mere appropriation confers no title unless supported by labour. Within a limited time the squatter must sufficiently stock the run, and the miner must actually work his claim. In default of the fulfilment of these conditions, the law of the CH. ii.] NATUEAL AND SOCIAL EIGHTS. 17 new community declares that no property exists* And even subject to these conditions, the extent of ground which may be appropriated is generally pre- cisely fixed at so many thousand acres or so many square feet. Here, then, is an illustration, in practical daily application among infant communities of English- men, of resort to first principles in establishing rules of property. We may therefore, with very great advantage, inquire the foundation of these princi- ples, with a view to understand the basis on which laws at home as well as in our colonies are built up. There are two divisions of all Eights : the first consists in principles which commend themselves to reason as obviously at all times and in all places just, so that we feel the violation of them to be un- ^usTj these we may call" Natural Eights. If it be said that different persons take different views of justice, it can only be answered that we must be guided by the general feeling of mankind, gathering it as best we can. But the second class of Eights consists in rules framed by communities regulating the rights and obligations of their members on grounds of convenience or other advantage. These vary in different communities, and from time to time even in the same community. These, therefore, we may call .Social Eights, and they obviously will in- c IB RIGHTS OF PROPERTY. [CH. n. elude all which we cannot agree to be natural rights. It is important that we should keep this distinction in our minds, because many persons are apt to deem to be natural rights such laws as they are merely accustomed to, but which are in fact the creation of social convenience ; thus assuming that men have a natural light to certain things which are really only allowed to them by the general agreement of the community. I. Natural Rights. Among natural rights we need consider, in re- lation to property, only two, the right to live, and the right to possess the fruits of labour. The first admits of no argument ; it is obvious and axiomatic. From it there follows that every man has a right to maintain himself, since otherwise his life would de- pend on the pleasure of some one else, which clearly would not satisfy his absolute right to live. And since no one can maintain himself otherwise than on the products of the earth, it follows that every one must have a natural right to possess a sufficient part of the earth's surface to suffice for his living, and that of those dependent on him. But when it is argued from this that every man is entitled to claim a portion of the land in the country he is born in, there is a flaw in the reason- CH. ii.] EIGHT TO LAND. 19 ing. For countries are not natural but artificial divisions of the earth's surface, made for the social convenience of those who agree to form a community, and it is clear that a natural right does not include a right to participate in the social arrangements of a limited body of persons. This will be apparent if we consider the case of a country where the actual popu- lation is as large as the land can nourish. As the right to live obviously does not include a right to take away the living of another person, it is clear that an addition to the population cannot insist on having assigned to them a portion of the land which already only suffices for those in possession. The fact of being born among them can give no title to oust them. So also, even if there be some superfluous land, the community is plainly entitled to divide it among its existing members without giving a share to new members. For in doing so it is not depriving any one of the means of living, but only of the means of living in that particular community. And as natural freedom implies that every man may leave a commu- nity if he chooses, the correlative right cannot be denied that every community may exclude or expel such persons as it chooses. To every person who claims a share of lands within its special territory on the ground of natural right to live, it is entitled to answer : ' Your right to live does not include any natural right to live in the precise spot you choose to select. c 2 20 RIGHTS OF PROPERTY. [CH. n. It is strictly a right to live, and not a right to please yourself, and since you can obtain ample means of" living in the parts of the world as yet unappropriated, you are entirely without claim upon us to make our social arrangements suit your pleasure.' It is obvious that this answer is equally irrefrag- able by reason or by force. Therefore we must acknowledge that no individual can pretend to as- sert a natural right to possess land in any special ter- ritory already occupied. His natural right to make a livelihood independent of any other man can obtain its satisfaction in the ample ranges of unoccupied lands in other countries, and the power to emigrate deprives him of any reason to complain if the com- munity in which he is born deems that it cannot consistently with the general advantage find him a portion of land at home. But if now we ask by what right one man may exclude another from possession of a particular piece of ground, and by what just authority the community may maintain one of its members in possession of that particular piece, we shall find it in the second natural right to which we have referred. This is the right which every man has to his own labour and to its results. A man's labour is in the fullest sense his own property by the law of nature, for it is the result, physically, of the waste of muscular tissue in his own body, and CH. ii.] EIGHT GIVEN BY LABOUR 21 mentally, of the exercise of his volition ; so that it may be said to be the direct produce of a man's own body and mind. Consequently, whatever a man does or makes is his property by the highest possible title. From this some have argued that whatever he applies labour to is made his property. But this is an obvious error, for the raw material is the gift of nature, or creation of (rod, and no human being has ever by labour created one atom of matter. What labour does is to move the atoms of matter so that they assume a new shape, as when wood is cut or metals are hammered or filed ; or to move them so that natural laws take effect upon them and transform them into new combinations or forms, as when we bring sand and soda under the influence of heat and make glass, or place fuel under a boiler and generate steam, or dip two metals into an acid and make a galvanic current. ^In^all^these__f!a.sps (and in other case) the result of a man's labour is palpably his, but the object on which he exercises it does not become his by the act of using it for his purposes. Supposing the original matter had been already ap- propriated by the law of the country to some one else, it would not in reason pass to a new owner by the mere fact that he chose to use it for his own purposes. Labour then of itself gives a good natural title to its actual results, but no title at all to the 22 EIGHTS OF PROPERTY. [CH. n. raw material, the original matter, on which it has been expended. But if no one else had a prior title to such original matter, then the labour spent upon it cannot be justly taken from the labourer by one who has not laboured at all. The labourer may, therefore, hold the manu- factured article on the ground that the part of it due to his labour is justly his, and that no one else has a better title than he to the rest. And the more the labour he has given to it, by so much the more does his title to the whole become stronger. So that if, as frequently happens, the total value of an article depends much more on the labour it has received than on the original material, the title of the owner of the labour may become almost complete. Most systems of law regard occupancy, or the seizure of what had not been previously seized by any one else, as the foundation of property. But it is in its nature only the right of the stronger, for it is impossible to see how the mere act of grasping is in justice to forbid another to grasp the same thing. Convenience, and prevention of disputes, may form motives to induce the community to confirm the claim of him who has first grasped, but it cannot be maintained on the footing of natural justice. Still less can a mere symbolical and fictitious grasping afford a valid natural title. To point to a tree and say, 'That is mine;' or to draw a line round a CH. ii. J EIGHT FKOM OCCUPANCY. 23 wide tract of ground and say, 'All within this is mine,' would never be admitted by the common sense of mankind as enough to exclude all others from pos- session of these objects. So that occupancy or seizure is really no title at all, since it is only recognised as the right given by actual force. But if labour be added to occupancy the case becomes quite different. Labour, as we have seen, is in the fullest sense property. So if a man has . pruned and dressed the tree, or dug and manured the ground for a crop, the produce is enhanced by his labour, and to that increase of produce his labour spent on it clearly gives him a good title. Generally speaking, the increase is so great in proportion to the natural produce, that it may conveniently be taken to include the natural produce under the same title. This becomes more and more the case, the higher the cultivation. Modern crops, for example, include not only the reclaiming of the soil from waste, but its amelioration by successive generations of labourers, the removal of stones, the drainage, the deepening of the tilth, the fencing, weeding, and manuring, besides all the actual operations connected with the special crop. The seed itself is the product of long-continued labour and skill in selecting and improving varieties ; and the machines used are the result of almost equally long intelligence and toil in mechanical improve- ments. What is raised by all this outlay of labour 24 EIGHTS OF PROPEETY. [CH. n. is hardly any longer a natural product ; it is almost entirely the produce of labour and therefore is property. There are, indeed, two descriptions of land on which less than the average labour is bestowed. The one consists in very rich alluvial soils, most profit- ably employed in grazing, the other in mountainous or sterile tracts which would not repay culture. In both these instances the physical labour is mostly attendance upon stock. But even in these cases a great amount of skill, which is a result of mental labour, is devoted to the selection of the proper breeds of cattle or sheep, their management, and their pur- chaSe and sale in the manner best adapted to the locality, the climate, and the character of the herbage. Through such labour as this, even these exceptional lands produce a great deal more food than they could possibly do if merely used as com- mon lands open to the first comer, however careless and ignorant. It would be difficult or impossible, therefore, to distinguish these from the lands which owe their fertility in a higher degree to the amount of physical labour that has been bestowed upon them. We now see what is the true reason why one man cannot assert a natural right to a piece of ground already occupied by another. It is that the other has put his labour into it, has made it something different from (and more valuable than) what it was CH. ii.] LIMITS OF NATURAL EIGHT. 25 naturally, and therefore, having a title of property in V his labour, he has a title which is at least better than that of any one else to that which his labour has im- proved. We shall see hereafter how this natural right is extended by communities, for the joint advantage of their members, to a degree where it becomes more a social than a natural right. / It is obvious, however, that there is no difference \ \ . between the natural title to property in land, thus ^ \\ originating, and the title to property in anything else. The sole title in all cases is the labour bestowed.! N"obody is justified in seizing the result of another man's labour, whether it has been spent on improv- ing soil, in growing crops, in grazing cattle, in feed- ing and shearing sheep, in spinning yarn, in weaving, cloth, in digging mines, in smelting and refining ore, in making machinery, in constructing houses, or in fashioning the highest results of any form of skill. And since no one is justified in appropriating any such results of labour, the expenditure of labour on what has not been previously appropriated gives a reasonable title to the possession of the. article as against any other claimant. Such is the foundation of property, viewed as yet merely as a natural right. But at the same time we must attend to the limits by which this natural right is hedged in. Since property exists because of labour, and labour gives property because it is part of a man's own 26 EIGHTS OF PKOPERTY. [CH. n, body and mind, the title can endure only so long as body and mind exist in the individual. After death there can be no property, for the body and mind that made it property has ceased to exist. And because the owner's title is thus limited to his own life he cannot claim any natural right to give it to another for a period beyond the endurance of his own rights over it. Clearly no one can enlarge his right by assigning that right to some one else. The utmost effect of this operation would be to give the assignee the opportunity of adding his own labour to the article assigned, and so creating in some degree a new title in himself. But this cannot be if the assignment is delayed till the original owner's death, for then before the very moment of transfer his title to transfer has ceased. There is therefore no natural right either of inheritance or of bequest. Whatever rights of this nature are allowed in law, are only the result (like many other rights) of general agreement in a community. These we next proceed to consider. II. Social Rights. When men come together, though it be only from selfish motives, they almost immediately dis- cover that if they are not to be perpetually quarrel- ling they must agree on some conditions defining what each may appropriate. So Abraham in the CH. ii.] SOCIAL EIGHTS. 27 plains of Jordan offered Lot the choice of separate grazing grounds for his flocks and herds ; so, 3,000 years later, English squatters and gold diggers con- struct, as we have seen, a rough code of property. They concede the natural right arising from first possession of what has not yet been occupied by another. But they limit the extent of ground which may be thus appropriated, and they declare that the title shall become altogether void unless fortified by actual labour on the 'claim.' Thus far they are only recognising, while they define, the natural rights of labour, as strictly limited to the person of the labourers. But men in communities desire something more. They wish a recognition of their right to transfer the property acquired by their labour, most often by way of exchange with another for a different sort of property he has acquired by his labour. Now if this transfer were only to be valid during the period of natural right, i.e. the lifetime of the transferors, a bargain of this nature would be hardly possible. Again, nearly all persons wish to give, either before or after their own death, ^ to those whom they love, the benefit of what they have acquired by their labour. Natural law limits their title to their own lives, and so renders the donation almost nugatory. Therefore in both of these cases, social agreement comes in to give a title u beyond that conferred by the right of labour. The 28 RIGHTS OF PROPERTY. [CH. n. community agrees to enlarge the natural right of each of its members to a point which shall be bene- ficial to all. It therefore allows transfer for more than life, and permits donations to continue valid after death. Hence come the rules of sale, of bequest, and of inheritance in default of express will. All these are purely social rules, adopted by each community as its inclination suggests, and maintained in force by the social authority which supports its laws. They vary, therefore, in each community according to its own ideas of what is most advantageous and convenient at the time. Experience and history confirm the accuracy of this explanation of the nature and growth of what are called rights of property. We find them differ- ing not only in different countries, but in our own date as soon as he comes into possession, provided he is then, or as soon as he becomes, of full age. It is by adopting and ingeniously interweaving these principles of English law that land is placed under what lawyers call ' strict settlement.' With this object the full owner, or the several persons whose rights taken together include full ownership, .and whom we shall call the settlor, executes a deed in which successive life interests are given to all the heirs who are already living. Each of these will thus on succeeding be limited to the position and powers of a mere ' tenant for life.' But to each in his order, beginning usually with the eldest son, is appointed a series of ' heirs in tail,' consisting of his own male descendants first, and afterwards probably 54 LAND LAWS OF GREAT BRITAIN. [CH. ir. his female descendants. The first of these ' heirs in tail ' who gets the estate, may, when of age, annul the deed and constitute himself the full owner. But till such a power can be and is executed, the original settlement subsists in force, and will bring in the successive life tenants, and their respective heirs in tail, in the order in which they were directed by the settlor -to take the estate. Thus a strict settlement may remain in operation for a very long period. But at least it will certainly reduce to zero the powers of one generation of owners, and it usually happens that the next generation, far from being able to exercise their legal power of annulling it, become the instruments by which it is made binding on a generation further on. For there is another principle in English law which is brought into play for this purpose. It is that one who has no present property, but only a hope of succession, may in advance renounce the rights which would come to him. Thus the son who, being unborn at the date of the settlement, would be entitled on coming into possession to annul it and make himself full owner, is commonly induced in his father's lifetime to sell that birthright. The mess of pottage that is offered to him is a present allowance by his father, and the usual occasion is his marriage. On such an event being arranged, the father, who, having himself only a life interest, has no wish that his son should have more, customarily proposes that CH. iv. J MOETGAGES. 55 the son, in consideration of an allowance, shall join him in executing a new settlement, the first effect of which is that the son agrees that his own future right shall be limited to a life tenancy. Thus from genera- tion to generation the process goes on, with the result that there never is any owner entitled either to sell or devise the estate as he thinks fit. And every acre which may be purchased is brought successively under the same rule. Thus a continual aggregation proceeds, and the natural influences that lead to subdivision among heirs, or to induce a sale of part or the whole of the estate, to meet the circumstances of the moment, are rendered nugatory. The law respecting mortgages of land has similar results. The ordinary rule of life is that a man who owes money and has the means of paying should pay. He may borrow for temporary needs, but few persons live under a permanent load of debt. If they wished it, their creditors would not let them. For it soon becomes known that a man is in debt, and each creditor fears that if he delays to exact payment others will be more prompt, and nothing will be left for him. They therefore insist on payment, and if the assets are insufficient the Bankruptcy Court seizes and divides them. The process is hardly staved off by the debtor granting a bill of sale over some part of his personal property to one special creditor 56 LAND LAWS OF GEEAT BRITAIN. [CH. iv. without transfer of possession. Such a security is invalid unless registered and made public ; its pub- licity alone brings down other creditors on the debtor, and as the property is perishable and can be made away with, the favoured creditor is not so safe as to be willing to accord a long delay. Even this form of security is, however, deemed injurious to the public by many persons acquainted with mercantile trans- actions, and far from being a natural incident of property, under the Code Napoleon and in Scotland it is not permitted at all. But mortgage of real estate has very different consequences. It may in England be secret from all the world, and though this objection might be removed by requiring (as in Scotland) entry in a public register, it would still be of a character totally different in its effects from any security granted over personalty. Land in its nature is stationary, and therefore it is accepted as security for debts intended to be of long endurance. The mortgagor is thus enabled to lay a continuous burden on his property, and neither the secured creditor nor the general creditors have any inducement to compel a sale. At the same time the land is not handed over to the custody of the debtor, as is commonly the case with stocks, goods in a warehouse, or the majority of other personal resources when they are used as a security for advances. It remains in the hands of the debtor, it continues to be his estate, CH. iv.] FAMILY PKOVISIONS. 57 .and yet it is practically not subject to sale for his debts. For even if the creditor desires to call up his money, the debtor can easily obtain an advance for the purpose of paying him by transfer of the security to a fresh mortgagee. Thus the law which permits land to be made security for a special debt operates to impede the ordinary motives and processes which require debt to be paid off by sale of property. The incumbered owner can retain land for an indefinite time, and hence it is obvious that the system of mort- gaging tends to maintain estates in land without diminution. This method of dealing with land as a security has a like operation in regard to family provisions, in so far as the owner has power to make them out of land. Supposing him to leave legacies out of person- alty, the estate is either divided, or it is sold and its proceeds are divided. But this is rarely the case with land. The legacies or annuities are merely charged on the income of the land, which itself re- mains undiminished in the hands of the heir. This is rendered practicable, because of the law which permits valid security to be thus created over land. Manifestly it operates to prevent the natural process which would divide an estate into fractions in nearly each successive generation. By means of these rules the law of England suc- ceeds in preventing the diminution of estates in land 58 LAND LAWS OF GREAT BRITAIN. [CH. IT. by the action of natural causes. It thus encourages the aggregation of land in the hands of only a few persons, and correspondingly prevents its diffusion in small portions among a greater number. II. Restriction of the Powers of Owners. The law which permits estates to be conferred on a holder for his life only, and keeps the fee simple in abeyance till another generation comes into possession, of course seriously limits the power of the life owner over the management of the land as well as over its devolution. Although most modern settlements give him power to sell part of the estate for debts which had been incurred by the settlor, and the Court of Chancery may supply such powers when defective, yet this relaxation does not apply to any debts contracted by the tenant for life himself. These he can neither charge on the estate, nor pay off by selling it ; he must remain subject to a burden which, from its uncertain nature, probably involves a very heavy rate of interest that eats up a far larger share of his income than would be the case if he were at liberty to pay it off by sale. The late Grovernment (Lord Beaconsfield's) intro- duced some measures which professed to enlarge the powers of owners of settled estates, but they merely dealt with details of procedure, and left the principles CH. iv.] LOANS FOR IMPROVEMENTS. 59 of the law, and their operation, as above explained,, entirely unaffected. Some Lands Improvement Acts have been passed of which the object is to allow private companies to advance money to owners of settled and encumbered es- tates in England for the purpose of effecting improve- ments. The money so advanced forms a first charge on the land. But, before it can be so obtained and in- vested, a good deal of legal machinery must be put in operation, in order to secure that the owners of subse- quent interests are in no way prejudiced. In England the Enclosure Commissioners must certify and super- intend the application of the money, and this costs on an average 7 per cent, additional in the shape of costs. In Scotland the application must be made to the Supreme Court, and involves a still heavier expense. In a small case I have known the costs of obtaining the loan amount to 30 per cent, of the advance. But besides this charge falling on the owner, he must pay not merely interest on the ad- vance, but such further sum of annual interest, generally 2 to 2-J per cent., as will suffice to clear off" the loan in 20 or 25 years. Practically, therefore, the owner of a settled estate cannot obtain any ad- vance, even for improvement, unless he is prepared to pay 7 or 8 per cent, a year for the loan, or in other words cripple himself for the sake of making a gift to his successors. 60 LAND LAWS OF GREAT BRITAIN. [CH. iv. It will also be remembered that such an owner lias no choice as to who his successor shall be. He may have a limited power to grant portions to his younger or female children, but the bulk of the estate (subject to such charges) must devolve on his eldest son, or on some remoter heir, who has been irrevocably fixed by his ancestors, or by himself at an antecedent period. The powers of an owner of land which has been converted into security for debt (whether by mort- gage or by charge for children) are almost equally limited. He may indeed obtain a further advance if the margin left is considerable, and he may sell, or select his own heirs. But so long as he does not choose to exercise the power of selling he will find it difficult and costly to raise more money even for the purpose of making valuable improvements. His burden is different from that of an owner of a life interest, in that it is optional, but there are many social reasons that induce him to accept it as impera- tive, and while he so views it, its weight is as oppres- sive as if it were imposed by a rule of law. How this position affects the culture of the land will be shown in Chapter VII. It therefore appears that the effect of the peculiar rules applicable to the tenure of land in this country is to favour the maintenance of large estates, by CH. iv.] GENERAL RESULTS. 61 diminishing the powers of the owners who are for the time being in possession of them. We must next proceed to examine whether either the object or the means are beneficial to the individuals affected or to the community. 62 NATIONAL INTEREST IN CULTIVATION. [CH. v. CHAPTER V. OF THE NATIONAL INTEREST IN CULTIVATION. BEFORE proceeding to examine the results of the English land laws on cultivation, it is requisite to meet a preliminary objection. Since all wealth comes originally from the earth, and most of it from the produce of its surface, it has hitherto been assumed, as political economists have agreed in maintaining, that it is of high importance to promote the productiveness of the soil in each country. So strongly did this proposition use to be insisted on, especially by the Conservative party, that it was even argued that special laws ought to be enacted, taxing the community for the sake of supporting agriculture. But since this extreme view has been rejected, there have been some writers belonging to the same school who have advanced diametrically opposite views. They have argued that the adoption of Free Trade has made it no longer of any consequence how much food we grow CH. v.] ARGUMENT OF LAND OWNERS. 63 at home. They urge that the principle of Free Trade is, that labour is most advantageously em- ployed in those industries for which each country is peculiarly adapted, and that whatever cannot be most economically produced in one country should be imported from another. They then assert that grain and meat can be produced more economically {that is, with less labour) in America, Australia, Russia, and other distant countries, than in England, while our special advantage lies in manufacturing. Hence they deduce the proposition that we ought to employ our labour mainly in manufacturing, and buy food from abroad with the price of our exported manufactures. It would follow from this reasoning that, absorbed in commercial pursuits, we may be indifferent to the management of the soil of this country. The public therefore, these economists tell us, having no interest in securing a maximum of return from the land, is not entitled to interfere with the proceedings of its possessors. If, then, its possessors should prefer to let it lie waste, or to convert it into game preserves, the nation has no right and no motive to object. Or if, for social and political reasons, the State should deem fitting to establish rules which favour accu- mulation in the hands of individuals, though by processes which discourage agriculture, we should not be justified in demanding their alteration. 64 NATIONAL INTEKEST IN CULTIVATION. [CH. v. This line of argument has the merit of being bold and thorough ; but it is open to the double exception that it rests upon inaccuracy of fact and unsoundness of reasoning. First, let us consider the facts. The- proposition that the staples of food can be perma- nently produced more cheaply out of England than within it is not true. Wherever food is grown it demands labour. There are a few exceptionally rich soils in the world where a little labour affords a large return ; but these are of so limited extent, that they do not practically affect the question. Over all the great food-producing regions it may be affirmed that nearly equal amounts of labour are involved in raising equal amounts of food. Even if the soil of America or Nervv -Zealand be clear of timber and brush, which is only occasionally the case, the leading features of culture are identically the same in both places as in England. The ground must be ploughed, the seed sown and harrowed in, the grain must be cut down,, threshed, and sent to market. In all these opera- tions, exactly as much human labour (supposing the machines employed to be similar) is spent in the New as in the Old Continent. 1 And the cost of labour is at least as high in the former as in the- latter. In England, additional labour is spent in 1 On certain soils there is a temporary saving of labour owing to the shallower cultivation necessary. But this advantage ceases generally after the first crops. CH. v.] COST OF FOREIGN CORN. 65 manuring and in weeding, and this is not the prac- tice in the newer soils. But in these soils (with very few and limited exceptions) the product, after the first year, barely reaches an average of twelve bushels of wheat an acre ; and Mr. Lawes and others have shown that an average English soil will year aftei year yield an average of sixteen bushels per acre without manure, or labour in manuring. If English farmers give manure it is because, by so doing, they obtain a greatly enhanced return, even after deduct- ing the cost of the materials and of the extra labour. This cannot be done in new countries, because the manure does not exist, and to import it would double its cost. Thus, even in this computation, the fact is that labour in England skilfully applied raises more food in proportion than the same amount of labour expended elsewhere. But this is not all. The wheat must not only be grown, but it must be brought to the consumer. In England, this employs the labour of the carter, who takes it to the mill, and from the mill to the baker. But if the wheat has been grown in America or New Zealand, it must be carted, not to the miller, but to the railway station. Thence it must be car- ried to a shipping port, then put on board, carried across the Atlantic, or perhaps the Pacific as well, unloaded in England, again transferred to rail, and at last delivered to the mill. Here, then, is the F 66 NATIONAL INTEREST IN LAND. [CH. v. labour of railway-men, seamen, dockmeu, and the charges of middlemen, all added to the labour of the grower before foreign wheat can be eaten in England. How much this may amount to is a question of dis- tance ; but it is under the present average to put it at 10s. per quarter, or about l^d. on every four pound loaf. This represents the extra amount of mere labour required to supply us with food from ubroad, instead of growing it at home. And it is because this extra amount of foreign labour is em- ployed that landlords are able to get rent for their wheat-farms in England. The growing of the wheat is in both countries effected at nearly the same cost for labour (a little less, however, in England, because of the advantage of manure on the spot), but the American grower is obliged to add 10s. per quarter for extra labour in transporting it to England. But us the English farmer gets the same price in the market as his American rival, he has 10s. per quarter extra profit. Out of this, if he grows four quarters per acre, he is able to pay the landlord 40s. per acre for rent. The American farmer pays no rent, but he grows only one and a half quarter per acre, and he has to give the produce of half an acre to get the produce of two acres to the English consumer ; so that this half acre, and all the labour employed on it, is simply wasted by growing wheat for English mouths in America instead of at home. neighbouring Ahab, there is a benefit to the commu- nity, since by the operation so much of Ahab's super- fluous wealth is transferred to Naboth. But to for- bid Ahab from buying at all, because he already has enough of land, would leave him with all his wealth to his own enjoyment, and since Naboth could only offer his vineyard to a restricted number of compara- tively poor purchasers, the result would be that one of them would take his place, but that he would have to part with his vineyard for less than its actual value in the market. It seems clear that an expe- dient is hardly to be recommended in the interest of purchasers of small means which would operate in their favour only by a corresponding injury to sellers whose means are small. The truth, however, is, that any scheme of this nature would, like all which aim at defeating natural freedom of contract, be easily evaded. A rich man. would buy in his son's name ; or he would buy in some other person's name, and take a lease, with as ample powers of enjoyment as if he were owner, from the nominal purchaser. These arrangements (and others can easily be imagined) could not be defeated by law, because they would take advantage of general principles of law which cannot be interfered with- it is impossible, for instance, to restrict the freedom of making leases ; it is impossible to fix the difference- between a substantial and a nominal rent ; it is impos- 140 PEOPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. sible to enquire whether a son buys with his father's money or with his own. If, then, there is a motive inducing a rich man to buy at an exorbitant price, we may be quite certain that we cannot prevent him. For these reasons it seems to me to be impractic- -able, while, if it were practicable, it would be inexpe- dient, to attempt to restrict by any direct enactment the amount of property, whether in land or in any other article which one individual may amass by pur- chase. To make the attempt indirectly, by a scale of taxation applying more heavily to larger estates, would be equally impossible. There would be the same difficulty in ascertaining where the point of -excess may be reached, the same dependence either on the owner's conscience, or on an army of informers, to make the returns, the same facility for fraud by holding the property under different tenures or in different names. Moreover, by taxing more heavily property as it increases in value, we should be cross- ing one of the most valuable principles of political economy, which urges that it is for the general ad- vantage that property should be increased, and made more productive. Lastly, it seems obvious that if an excess of landed property in one man's hands is an evil to the nation, it ought not to be allowed on condition of paying the nation for the privilege, since this would be to grant to the wealthiest what is re- fused to those of less wealth. CH. ix.] PREFERABLE METHOD. 141 III. Limitation of Amount of Property taken by Bequest or Inheritance. At the same time, recognising fully the impor- tance of the diffusion of property in many hands, in place of its accumulation in one, I will venture ta point out what seems the only practicable method,, if imperative methods should be deemed necessary.. The State, we have seen, has the most ample right to regulate the devolution of property after death of its owner. At present, its rights in this way are illustrated by its imposing a heavier succession duty on remoter relatives or on strangers, amounting to no less than one-tenth of the whole. Its right, there- fore, to appropriate a larger proportion is incontest- able. But it does not seem advisable that its right should be more largely exercised in this form. For if it were,, one of the main reasons leading to exertion in order to increase wealth would be taken away. As soon a& any one had made as much as the State would allow him to dispose of by will, he would be apt to cease to care for making more. It might thus happen that a flourishing business, employing profitably many- persons, would be brought to a standstill. But the case would be different if the State were to place a limit, not on how much a man might leave, but on how much he might leave to one individual- 142 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. Then he has in his power to select the persons whom he desires to benefit, and to give to each the portion (within legal limits) he may think advisable. His motive to accumulate continues, for he may benefit those whom he wishes, provided only he selects a sufficient number. If to any one he gives more than the law allows, the excess of that share would form a debt due by that individual to the State. It would be ascertained or recovered just as the State at pre- sent recovers the amount of taxation charged upon legacies. Intestate succession would follow a like rule ; each among the next of kin entitled would take the portion permitted by law ; the rest would devolve on the State, or might be allowed to be divided among remoter heirs. The result of this would no doubt be that one person might conceivably take an immense fortune by an accumulation of bequests from several different individuals. But these would be very exceptional cases, and even in these cases the fortune would necessarily be broken up into portions of legal amount at the death of the lucky legatee. It does not seem possible that any schemes could be devised for effectually evading such a law. It would, of course, apply to donations as well as be- quests ; and these, in the case of land, stocks, and generally all property which requires writing for its transfer, are as easily traced, whether the transfer be CH. ix._ NECESSITY OF LIMITATION. 143 during life or after death. What is capable of trans- fer by mere delivery might be made the subject of undiscovered gift ; but the property capable of such transfer is limited. The attempt to effect transfer by interposition of trusts would not be available in the case of land, because, as will be seen in chapter XII., trusts of land would cease to exist under the proposed reforms in the law. Nor could a trust of personalty loe depended on to carry to a successor an amount of personal estate which the law declares illegal. Such a method of limiting the accumulation of property may not be necessary at the present moment. But I refer to it as one which is undoubtedly practi- cable, and to which no accusation of injustice can apply. Sooner or later the question will have to be considered by the public. The gigantic amount of property which, in London and other towns, will ere long come into the hands of certain persons, through the falling in of building leases, of "which they are the ground landlords, will form a public danger simi- lar to that against which the Thellusson Act was passed to provide. But the question must then be regarded as including personal estate, as well as real. The public mischief from inordinate wealth of individuals is obviously quite as great, whether the income be derived from rents of farms, rents of houses, or interest on stocks. The method above proposed would have the advantage of being applicable to value from what- ever source. 144 INTEEFEEENCE OF LAW WITH USE OF LAND. CHAPTEE X. OF DIRECT INTERFERENCE OF LAW WITH THE USE OF LAND. WE have thus far examined the effect on the culture and management of land which is produced indi- rectly by the laws that regulate the transmission and powers of ownership. But it is deemed by some persons that laws may be framed which would by direct compulsion, or by enforcing certain forms of agreement, greatly extend cultivation, and lead to enlarged production from the soil. I. Compulsory Cultivation. It must, however, be first pointed out as a mere axiom that no laws can fix the rules of good hus- bandry and make their observation by farmers im- perative. This effort is made on a small scale by many landlords, when they prescribe certain courses of cropping, the maintenance of old pasture, the application of a certain quantity of manure, and the like. But it has become fully recognised that such CH. x.] COMPULSOKY CULTIVATION. 145 conditions tend to hurt culture by cramping enter- prise and progress, and if such be the result of con- ditions imposed on the management of each single farm, made and agreed to by those who are best acquainted with its special needs and capacities, it will be admitted that an attempt by the State to pre- scribe general rules would be absolutely destructive to good farming. Equally fatal would be any attempt to regulate such matters by public inspectors. This would make a public officer, with no superior know- ledge, and with no interest in results, the arbiter and director of delicate operations, which must be modi- tied to suit the peculiarities of not merely every farm but often every field, which involve the appli- cation of ripened skill, experience, and local know- ledge, and which turn for success on the nicest calculations of markets, and probabilities of seasons. No trade could survive under such fetters, and, if 1 refer to the idea at all, it is only to point out by stating it, how impracticable is the notion which is really sometimes advanced that it is the duty of the State to compel proper farming. The idea is, however, often urged under a slightly modified and much more plausible form. It is said that there is a large extent of land in this country which is uncultivated, being kept in a state of nature out of simple negligence or caprice, or for mere enjoyment, as in parks and pleasure grounds, L 146 DIRECT INTERFERENCE OF LAW. [CH. x. or for purposes of sport, as in game preserves and deer forests. Why, it is asked, should not the State take possession of land thus wilfully left waste, and divide it among small cultivators who would develop its resources ? The answer to be given depends on the particular case. First let us consider the question as regards land which is not cultivated properly on account of the indifference of the owners. But although this may be the real motive of a great deal of bad agri- culture, it would be exceedingly difficult to found legislation upon the circumstance of supposed motives. It would be scarcely less difficult even to ascertain the facts, because they are facts of opinion. In a very large number of instances an equal number of valuers could be found to assert that a given tract of land was properly farmed as could be brought forward to prove that it was in a state of shameful neglect. For farming is, as has been already stated, always a question of degree and circumstances, in- capable of being reduced to rule. It is also a specu- lative question, in which experience only can prove whether a different system would be more profitable. Hence it would in most cases be felt to be a grievous injustice that an owner should be dispossessed for the reason that a certain number of persons, or a judge, was of opinion that different methods from his would be preferable. CH. x.] NATUKAL LAWS SAFER. 147 Especially as it must be remembered that on this system no man could feel secure. There must be some one to decide what estates, or portions of estates, were so badly cultivated as to demand trans- fer to other hands, and the authority thus created must necessarily be applicable to all the land in the kingdom. As its judgments could only rest on opinion, they must necessarily be arbitrary. Hence it would follow that there would be in every district a local authority charged to enforce farming on the prin- ciples it deemed correct, and armed with the power of enforcing its decrees by sale of the lands of recu- sants. It is impossible that such a system could be beneficial, or could even be endured, for every owner of land, small as well as great, would certainly com- bine against it. It is safer and sounder to trust to natural laws to remedy the evil. Eeally bad farming is unprofitable, and what is unprofitable may be followed for one generation, but scarcely for two. Great wealth, de- rived from other sources, may for a time permit the capital which is locked up in land to rest unused, but if estates are reduced to smaller dimensions, and pecuniary losses are permitted to have their natural effect in compelling sales, we may be certain that the ordinary motives of human conduct will ere long conspire to enforce the proper use of land, or L 2 148 DIRECT INTERFERENCE OF LAW. [CH. x_ its voluntary transfer to those who could use it to- more advantage. When there is an actual motive leading the owner of land to withhold it from cultivation, it would be found not less difficult for legislation to- deal with the case. For instance, land which is devoted to purposes of pleasure has a very high market value, simply for the reason that it is capable of affording pleasure. As it is always assumed that the State would give the present owners the full market value, it would have to pay very much more than the agricultural value if it were to purchase such land for the purpose of bringing it under culti- vation. We have seen, in considering the Nationali- sation of land (p. 112), that this involves a heavy loss to the State, that is to the taxpayer, on the total operation. But next it is to be observed that a very large proportion of the land left uncultivated, particularly of what is used as deer forests and game preserves, consists of rugged mountain ranges, and (in the low country) of heathy and poor soils, or woods, on which cultivation of any sort is barely practicable, and in which the pasturage of sheep would make an inappreciable addition to the national food or wealth We need hardly trouble ourselves about the destina- tion of such barren and unreclaimable regions to the purposes of the only wild sports our country now e fixed by statute or by arbitration, for whatever he shall do, that is deemed to be a * permanent im- provement ' to the farm. The landlord is to be al- lowed no power of objection, since to object would annul the statute. So also the tenant is to be paid for the unexhausted value of the manure recently applied, equally without power of objection by the landlord. In some forms of the claim no length of possession under lease is to bar the assertion of these 170 DIKECT INTEEFEEENCE OF LAW. [CH. XK rights. The result, at all events, is that, for the period specified, the landlord will no longer be owner ; he will have merely a rent charge, with a power to repurchase the farm on paying for the improvements. He will have no power to decide whether he desires an improvement or not; if a given proceeding by the tenant is deemed by a third party, under the name of arbiter, to be an improvement, the landlord must take it and pay for it. The objections to such imperative legislation are palpable. When no question of morals, or of poli- tical arrangement is involved, it is quite impossible that one cast-iron rule can be suitable for all situa- tions. Persons who voluntarily contract do it for their own advantage, and the Government cannot tell them what is most for their own advantage. If the State injunction be certainly for their joint ad- vantage, no doubt they will ultimately adopt it. But then they would have done so sooner or later without State dictation. On the other hand, if they do not at the time see that the State injunction is agreeable to themselves, they will defy it by not entering into- a contract at all. For though it may be possible for the State to ordain that if a landlord lets his farm it shall be on certain specified conditions, it is entirely beyond State power to compel the landlord to let his farm at all, if he does not choose to do so. This contingency is one which the advocates of CH. XL] COMPULSION IMPOSSIBLE. 171 imperative ' tenant-right ' appear never to take into their calculations. Yet it is undoubtedly a contin- gency quite certain to occur to a greater or less ex- tent. If the legal consequences of letting be such as are distasteful to the landlord, he will, in many cases, take his farms into his own hands rather than, subject himself to the bonds of the law. There is no^ insuperable difficulty in such a course. He would not need to turn farmer ; he would lay down his fields to grass, or cultivate them by means of bailiffs. Some of the dispossessed tenants would find employ- ment in that capacity, but not all : for a bailiff could superintend the management of many farms. The grass-land would cost little capital, for stock could be taken in to feed without purchase, or the fields could be let annually. Capital would, however, be forthcoming in many ways, since the local banks,, which now readily make advances to the tenants, would be equally willing to make advances to the landlords, on security of each crop, and taking means easily devised for superintending the outlay. If, as is probable, some landowners would lose money on this proceeding, it is also probable that many would gain, for they would conduct the business with the advantages of buying and selling on a large scale;, they would be freed from the restrictions they at present impose on their tenants, and, turning their minds to farming as a commercial question, they 172 DIKECT INTERFERENCE OF LAW. [CH. xi. would see their advantage in adopting many new systems which are profitable, but which, under the existing relation of landlord and tenant, neither party cares to introduce. It is far from certain, therefore, that the public might not profit by the change. But it is quite certain that the present race of tenants would lose. Compulsory conditions of letting, if of such a nature as are unsatisfactory to landlords, would simply lead to wholesale eviction. What is more, it would not be possible to establish conditions by law which would not be, in many cases, not merely unsatisfactory, but positively hurtful to cultivation. Take the simplest and most favourable -case for legal interference, that of sanctioning outlay by the tenant in drainage. Beyond doubt, a very : great proportion of the land in England would be made more valuable by being drained. But there exists also a description of land in which drainage would be hurtful, and the boundary line between the two is matter of opinion. In a number of instances it can only be settled by results. Now, if a tenant is to be entitled to drain whatever land he thinks fit, ^against the judgment of the owner, and to be paid by the owner for doing it whatever sums an arbiter may fix, it is obvious that the landlord will not infrequently have to pay for suffering an injury. Advance to more difficult questions the accommo- dation for stock, or the grubbing up of hedges. Here CH. xi.] PERMANENT IMPROVEMENTS. 175 there is still great dispute as to the best kind of ac- commodation for stock (e.g. whether stalls, boxes,, covered or semi-covered yards), and as to the con- flicting benefits of shelter from hedgerows, and re- covery of the space they occupy. Further, that which is suitable for one method of farming is not suitable for another. Hedgerows are more beneficial to grass than to grain crops ; and young stock, and fattening stock, and dairy stock, all need a different sort of shelter. What one tenant does to suit his own ideas may not merely be against his landlord's ideas, but may be against the ideas of the next tenant, and to compel the landlord to pay for it is a manifest wrong. Much more complex cases will constantly arise. It is sufficient to point these out to show that reason and justice, and public advantage, may very often be on the side of the landlord in resisting proposed out- lay by the tenant. He may very often be the more enlightened improver of the two. The proposal to settle the question of useful or useless outlay by final arbitration is really to call in a third person to fix what is the proper method of cultivation. But even a third person is not always the soundest judge. Sometimes the award might mulct the tenant of a heavy outlay on matters which would be really bene- ficial, though to the arbiter they did not appear so. Sometimes the case would be reversed, and the land- lord would have to pay for permanent damage done UNIVERSITY 174 DIRECT INTERFERENCE OF LAW. [CH. xi. to the farm, because to a prejudiced arbiter it seemed at the moment likely to be a benefit. Not only could landlords not be blamed, but they would deserve commendation if, to escape such risks, they declined to accept a tenant whom the law would arm with such powers of possible mischief, and if they should, in preference, retain the operations of farm- ing their land under their own control. Of course, if the tenant's claims for compensation are limited to what the landlord has previously agreed that he shall execute, there is not the slightest objec- tion to such an arrangement. But this would be under private contract, and not by a condition im- ported by Parliament into the contract. So also there cannot be any objection to the adaptation to England of the principle of Ulster tenan Bright. If a tenant secures his landlord's consent, or even ac- qoiiescence, in making improvements, on the under- standing that they shall be his property, no one can demur to the arrangement. It would, however, be necessary that the acquiescence should be proved, and therefore notice would have to be given by the tenant to the landlord before the works are begun. Thus far we have been considering only what are called permanent improvements. There is another description which consists in acts of culture, and in the application of manures, for which also a claim under the vague name of tenant-right has been set CH.XI.] TEMPORARY IMPROVEMENTS. 175 up. The right to repayment of both is, we have already noticed, recognised, though not always under the wisest conditions, as a custom having the validity of law, in several English counties. There is no reason why it should not be made statutory law ap- plicable to all. But the custom only takes effect in absence of express written agreement on the sub- ject, and so also should the law. For it may suit the parties, and be for the interest of the land, to make some arrangements different from those which -a stereotyped law would lay down. Each soil and climate has its peculiarities, which affect both the immediate and the lasting influence of both acts of cultivation and of manures. Nobody so well as the parties can determine what is best in each case, and arbitration on this question, as on the last, subjects their interests to an opinion which cannot be in- fallible. That in general it is for the advantage of both parties to agree on terms which shall secure to the tenant not only complete reimbursement of his outlay, but sufficient profit upon it, is beyond dis- pute. What is insisted on is that the terms should be settled by agreement, and not by Act of Parlia- ment in defiance of agreement. While, however, for these reasons, any positive enactments to supersede contract are to be repro- bated, there remains an important sphere for law. Its duty is to establish presumptions, of a fair and 176 DIEECT INTERFERENCE OF LAW. [CH. xi. beneficial character, which shall take effect as con- tracts wherever special contracts do not supersede them. But they ought to have no operation when deliberately set aside by special contract. If a landlord lets a farm already in high condition at a moderate rent, on the express proviso that the tenant shall spend so much in oilcake and bones during the last year of his tenancy without compensation, the presumption is excluded; its place is taken by a contract to which both parties agree, and which is better suited to the arrangements their circumstances require than the presumption of law would be. But it must be distinctly insisted on that the rational presumptions which custom or statute may set up may properly be deemed imperative, unless a clear and specific contract takes their place. It is quite reasonable to require that general rules, framed to meet the demands of justice in the majority of instances, shall not be set aside by a vague disclaimer on one side, but shall only be annulled by distinct contract entered into on both sides. Herein lay the error committed in the Agricultural Holdings Act of 1875. It declared ( 57) that its provisions should not apply to any contract of tenancy from year to year or at will (that is to say, to the vast majority of current tenancies in England) c if within two months after the commencement of this Act the landlord or the tenant gives notice in writing to the other to the CH. XL] INDEPENDENCE OF TENANTS. 17? Affect that he (the person giving the notice) desires that the existing contract of tenancy shall remain unaffected by this Act.' Thus an opportunity was given to either of the parties to make the Act of no effect without substituting any other contract. The result would have been materially different if to existing yearly tenancies there had been applied the rule established for future tenancies, that the Act could only be set aside by agreement in writing, signed by both parties, declaring that the Act, or any part or provision of the Act, shall not apply to the contract ( 56). Everything that is possible would have been gained when a tenant's attention was drawn in writing to the fact that what an Act of Parliament declared to be just was not to be deemed in force in his case, and when he signed his renunciation of its securities. For it must be observed that it is only the dependent and subservient position in which tenant- farmers have so long voluntarily lain, that makes even such an Act at all necessary. There is no compulsion on any one to be a farmer on any terms which he does not think reasonable. Least of all is there any compulsion on a young man to turn farmer if the conditions offered to him are not satisfactory. Were he to decline them, he might not obtain a farm ; but every other avocation in life, and, above all, emigration, would be as open to him as to others. N 178 LETTING OF LAND. [CH. xi. Unjust landlords are, therefore, a direct consequence of submissive tenants. If we ask why tenants should be submissive to such a point, we shall probably find the reason to be because landlords are so seldom unjust. It is a rule so seldom in England departed from that a tenant retains his holding with little change of rent, and passes it from father to son, that the question of compensation on eviction scarcely ever arises. When it does arise it is in general fairly dealt with. Thus tenants get into the way of expecting that all will go well, and they neglect the proper business precaution of a written agreement. There is a further reason. Eents in England have generally been so easy, and in hard times abatements are granted so much as a matter of course, that a tenant has been able as it were to insure himself against loss. That is to say, he has made a com- fortable livelihood, and has speculated (or gambled) on the chance that he might not be ruined by being turned out. Generally, he has won ; when he loses he is hardly entitled to blame any one but himself. In Scotland matters have taken a different line. The intercourse with England which grew rapidly after the final extinction of the claims of the House of Stuart, and the augmenting wealth of the mer- cantile classes, drew the landowners into a compe- tition, in which, weighted with the disadvantage of CH. xi.] PKOGRESS IN SCOTLAND. 179 inferior soil and climate, they were forced to put forth all their energies. They began to improve their lands, they let their farms by tender to the highest bidder at frequent intervals, and thus they found a rapid increase of income. But tenants who offered high rents demanded in return the security of leases ; and obtaining that security, they invested all their energy as well as their capital in developing the capabilities of the soil. After each cycle of 1 9 or 21 years, its improved value was again recognised by a higher bid from the old or a new tenant. But the landlords were not idle. As they saw that judicious expenditure would be rewarded by higher rents, they met the advance of the times by constant outlay in improvements. Draining, machinery, cottages, cattle-sheds were everywhere provided by the landlord, and the tenants, with the security of a lease, have everywhere responded by immense expen- diture in manures and labour. Competition, encou- raged by the unjust law of hypothec, has been excessive, and in bad times many have been ruined. There has also been, as in England, too much sub- mission to restrictions on cultivation, and too little insistence on conditions of compensation. But enlightened landlords and independent tenants are beginning to see their mistake, and new arrange- ments, suited to the times, are being pretty generally introduced. N 2 180 LETTING OF LAND. [OH. xi. Similar influences are now at work in England. Foreign competition makes easy-going farming impossible any longer, however low the rent may be. Tenants must have security, and must have the land and buildings made suitable to modern systems. Landlords will be forced to provide these, but they will be rewarded by higher rents. The relation between the two parties will become more strictly commercial; each will stipulate for his rights; dependence, and submission, and reliance on under- standings will cease. Exceptional laws in favour of the landlord, such as that of distress, will be abolished. He will become his tenant's partner, or merely his ordinary creditor. The tenant, who must invest so much more money in the business than used to be required, will decline to enter it unless his position as the active partner is acknow- ledged, and the contingencies of trade fairly provided for. The parties will thus adjust their own relations, and they will ask of law only to leave them to settle their own affairs in their own way. Thus, in actual farming, as in the principles of ownership, the essential reform is merely the ob- taining of full freedom. Every individual is for himself the best judge of his own interests. The law, when interfering with freedom, only does mis- chief. When it sets up artificial rules and restraints, it stops natural development. CH. XL] PROGRESS IN AGRICULTURE. 181 The improvement in cultivation, which is being forced on farmers by competition, and which will ultimately raise their position to one of greater dignity and independence, will be further aided by the changes in the laws relating to the tenure of land demanded by the public. For these changes will by degrees diminish the size of estates to the point of maximum profit, which will be found to be the point at which the owner can give his own close personal attention to their management. At the same time, they will place the owner in the position of being absolutely unfettered and unencumbered, able to make whatever arrangements with tenants may be most advantageous to both parties, and able to apply to the land the capital which is requisite as a preliminary to improved cultivation. Under such conditions, there is no ground for despair of British agriculture. If it were freed from unnatural restrictions, it has all the advantage on its side against competitors. A fertile soil, a medium climate, supplies of manure which are unapproach- able by other countries, because they arise from a density of population, and are the waste products of a variety of arts which nowhere else exist, and proximity to the best markets in the world, are circumstances which cannot fail to give to British farmers and landlords success over all competitors. The one thing still needful is that they should open their eyes to see the things on which their success 182 LETTING OF LAND. [CH. xi. depends. There is no uniform rule which they can follow. Every district, every farm, has in its situa- tion and capabilities some special superiority ; and it is in seizing this advantage that profit is to be secured. With one it may be milk, with another butter, with a third straw (valueless to the American farmer here often worth 51. to 81. per acre, in addition to the grain), with a fourth vegetables, with a fifth fruit, with a sixth grass and hay, with a seventh wheat, with an eighth barley, with a ninth roots, with a tenth wool, with others mutton, or lamb, or beef, or veal, or pork, or it may be with a sound and foreseeing combination of a number of these various resources. Nor is every year the same. The sensible and truly practical farmer will alter his supply with the alteration of demand, and with the opening up either of new markets or of new com- peting districts. But still one point in his favour is invariable, and that is, that it must always cost him less to put his produce in the market than it must cost his more distant competitors, and that, on the whole, his supplies can never be in excess of the demands of a rapidly augmenting population. Amid the vicissitudes of seasons and change of prices which make farming in some respects the most gambling of pursuits, this is the one chance in his favour which gives to the home agriculturist an advantage that must secure him ultimate superiority in the contest. -CH. xi.] PEOGEESS IN AGEICULTUEE. 183 Because the future of British farming lies in such variety of method and adaptation, it is needless to enter into any examination of either the practical systems or the legal rules which now prevail in dif- ferent districts. As each locality, each farm, nay, each field, has its peculiar fitness for a special mode of cultivation, and contains in itself resources which the intelligent farmer will develop in the most eco- nomical and profitable way, so every county, one might say every estate, suggests some difference in the relations between landlord and tenant which cannot be beneficially transplanted elsewhere. The leases of Scotland and Norfolk, the customs of Lin- colnshire, the tenant-right of Ulster, all produce ex- cellent results where they have grown up, but all would be prejudicial to progress if enforced under different conditions. The most convenient duration of leases, the most advantageous notice to be given of their renewal, the nature of the crops to be taken as they approach termination (even supposing no rotation to be prescribed), the valuation of the dung, straw, or roots taken or left, the question of the descent to heirs of the right conferred, are only a few of the points which must be settled by the parties in view of their individual character, circumstances, and opinions, and which cannot be made universal by Act of Parliament. Whether compensation is better than leases ; whether, if adopted, it should extend 184 LETTING OF LAND. [CH. xu to specified acts and manures, or include everything ;. whether it shall be assessed by a fixed rule, or by a sliding scale, or by arbitration, and over how many years each separate application shall be computed to be of value, only suggest some of the difficulties which in each individual case must be adjusted in view of local and personal considerations. What,, again, shall be the limits of tenant-right, how far it shall imply fixity of tenure or rent, how far be subject to modification by agreement, are points that even in Ulster are undecided, and which could not be settled for the whole country by the Legislature. Since, then, the profit of both landlord and tenant demands variety of arrangements, it is vain to point to any one system as affording a lesson for general adoption. The circumstances that force both parties to seek their profit in mutual agreement will be the best teachers of what their agreement should be. 1 Finally, it may be observed that in the fact of this adjustment by the parties we are relieved from 1 I may illustrate the extreme difficulty of introducing what may be called foreign ideas in the arrangements between land- lord and tenant by the fact, that although for thirty years I have urged publicly and privately in Fifeshire the advantage of engrafting on the customary nineteen year leases a claim for compensation for unexhausted manures and feeding stuffs, and. on my own property have even insisted on its adoption, I can only boast of having made one convert to my views. Yet this is a matter which primarily is purely for the tenant's advantage, and the Fife tenantry are second to none in intelligence and skilL CH. xi.] PROGRESS IN AGRICULTURE. 185 any necessity for discussing the nature of Rent. Rent for our purposes is only what the tenant agrees to give and the landlord to take under the circum- stances of their case. It varies, therefore, not merely with fertility of soil and prices of crops, but with the skill of the individual tenant and the liberality of the individual landlord. Generally, it may be- considered as the share of the profits of cultivation which the tenant can afford to pay after retaining the ordinary rate of interest on his own capital, and an average remuneration for his own knowledge and exertions. It is idle to speak of three or any number of incomes made from the land. The ex- penses of cultivation must be paid, as in all other processes of manufacture. Capital must obtain its average remuneration, as in every other employment. The balance of receipts forms profit, out of which rent can be afforded for the use of the land. But its amount can neither be fixed by Act of Parliament nor by philosophic definition. It depends on the tenant's estimate of what average years will yield,. and if the estimate proves erroneous it must be amended, or the tenant will cease to farm. It re- presents a fair proportion of the savings he can make over his rivals competing in the same market, and by whose competition prices are fixed, whether the savings be effected in cost of labour in growing the 186 LETTING OF LAND. [CH. xi. crops, or in their carriage to market. These ele- ments, again, include an infinity of considerations of climate, fertility, rate of wages, price of manures, but not least of all the factor of personal character and sense in both landlord and tenant. CH. xii.] AMENDMENTS PROPOSED. 187 CHAPTER XII. OF THE AMENDMENTS REQUIRED IN THE LAND LAWS. HAYING now reviewed the nature and operation of the laws relating to property in land, and examined the various reforms which have been proposed in them, we are in a position to consider what amend- ments are really called for to remedy their defects and make them more beneficial to the community. The great evils which flow from them are, as we have seen, the consequence of the powers of settle- ment and of mortgage. And these powers, it must "be steadily kept in view, are artificial ; that is to say, they are neither necessary to the enjoyment of property nor do they commend themselves to reason as offering any peculiar advantages to individuals or to society. For bequest and inheritance, which, as we have seen in Chapter II., are the creation of mere social agreement, imply that the possessor of property shall be able to give it on his death to whom he likes, but not to persons whom, not being then in existence, he cannot like. And the liability of pro- 188 AMENDMENT OF LAWS. [CH. xn. perty for debt implies its liability for every debt,, and not for such only as the debtor may choose to favour with peculiar security. These rules, further,, by enlarging the powers of deceased owners, limit the powers of present owners, and convert land, which nature obviously intends for the present sus- tenance and gratification of mankind, into a com- modity that is useless and barren, yielding neither its natural increase, nor capable of serving the purposes which prudence and affection may suggest. Principles thus hurtful in application are in- capable of amendment by modification. The remedy for their mischief is to be found only in their abo- lition. Let us now proceed to examine what would be the results of this course and by what steps it might be most advantageously adopted. Such an alteration of the law would include,. 1st. Abolition of the rule of primogeniture; 2nd. Abolition of the powers to grant estates in land for life only ; 3rd. Abolition of the power to assign land as a security for a special debt. But we may also state the same changes in a positive instead of a negative form. Thus they would be 1st. In case of intestacy all the children would share alike ; 2nd.. Every owner of land would be entitled to sell or to leave it absolutely to such individuals as he chooses ; 3rd. All creditors of an owner of land would be entitled to take the land as part of his general CH. xii.] ABOLITION OF TRUSTS. 189 assets for payment of his debts. Thus it may be said generally that while these changes in the laws would diminish the powers of the past and present generations over the future, they would increase the powers of each generation as regards its own present concerns. In order to cariy such changes into effect it would also be necessary to prohibit the creation of trusts affecting land. This device was originally adopted for the purpose of evading the intentions of the Legislature, and it could still be used to main- tain interests for life though their direct creation might be prohibited by Parliament. But both in this indirect action, and in their direct operation, trusts of land are incompatible with good cultivation, for they interpose between the land and its actual owner a person who has powers of control without adequate personal interest in the subject. Speaking generally, it is the case that landed estates which are under trusts are badly managed. The same objection does not apply to trusts of personal property. These consist generally in in- vestments in the public funds, or in industrial enter- prises ; the money is thus used by persons who have a direct interest in its application, and the trustees are merely creditors holding a right to interest and repayment. This distinction, therefore, illustrates the proposition that was laid down at page 14, that 190 AMENDMENT OF LAWS. [CH. xir, it is necessary in some particulars to deal differently with land and with personal property. Men desire for their personal gratification to preserve estates in land undiminished, although they may not fulfil the primary condition of yielding the maximum of pro- duce, and it is for this end that they create partial interests in them. But when they create partial interests in personal property, it is not for the purpose of continuing the same form of investment, but solely to effect some temporary purpose of provision for individuals, quite irrespective of the source from which it is drawn. Between land and moveables, therefore, viewed in this relation, there is the double difference, firstly, that a trust of land is detrimental to its due management, while a trust of money is not ; and secondly, that the motive of a family trust of land is to preserve the land specifically from sale and division, while a trust of money authorises such changes of investment as imply its being lent to those who will profitably use it. But when the purposes become identical, which is the case when land is merely left in trust for sale, the treatment of both will properly be identical. The prohibition of trusts of land will therefore not apply to trusts for its sale, but only to trusts for holding it, or for drawing an income from it. Thus all the purposes of family provision will be as fully carried out under the proposed changes as CH. xii.] FAMILY PEG VISIONS. 191 they are at present. If it is advisable, in the opinion of any landowner, to give to a son or daughter or other person an income for life, without power over capital, he will effect the object by authorising the sale of so much of the estate as is necessary, and by directing that the proceeds shall be held by trustees on investments other than land, for application as he may desire. The security of family provisions, which is deemed to be one advantage of charging them on land, would be quite as fully, and much more cheaply and con- veniently attained, by converting them into personalty in the hands of trustees. Consols are at least as safe as land, and the interest which they yield is higher. If it be suggested that land cannot be made away with, but that stock may be sold by a fraudulent trustee, it may be replied that it would be easy to- establish in England a system already in force in some countries, under which a public officer is made trustee of all funds of which it is merely desired to- assure safety of the capital, and payment of interest to named beneficiaries. An extremely trifling charge- would defray all the costs of such an institution, and it is further recommended by the increasing difficulty of finding private persons willing to undertake the annoying and perilous duties of trustees of settle- ments. If it should hereafter be deemed fitting by the 192 AMENDMENT OF LAWS. [OH. xn. Legislature to give to children an absolute right to a portion of the father's estate in land, such as is established by the rule of legitim in the Roman and the Scottish law as regards personalty, it would be effected without difficulty by the process of giving them a right to call for a sale of as much of the land as would be needed to meet the amount, in the event of the father not having made other arrange- ments for the purpose. The case of provisions for the husband or wife of a deceased owner of land may be deemed a little different. At present (subject to some intricacies) the widower of an heiress, if there has been a child, takes his deceased wife's landed estate for his life, under the name of courtesy. A widow, if her rights have not been barred, as they may be in England, but not in Scotland without her consent, takes a third of her deceased husband's real estate for her life under the name of dower. Some such provision is proper in both cases, and possibly reason might suggest that a fixed proportion of one-third of the rental to the survivor in all cases would be the most just. But however this may be, there is a difference between the case of such survivor and the case of any other annuitant in relation to the land itself. He or she is in a sense merely continuing possession, and stands in the position of a joint owner with the actual heir who has succeeded to the estate. The CH. xii.] SUPPOKT OF DIGNITIES. 193 interest thus created is, on an average, for only a few years' endurance, and thus is different from a similar interest given to a child. The public is also in general aware of the existence of jointure, and since the facts are known the owner of the land is not under the same temptation to keep up the appearance of a full income as if he had to pay interest to an unknown mortgagee. In any case he would, under the law as now proposed to be amended, have power to sell the land and invest the proceeds in trust to meet the jointure. But it would perhaps be to carry a sound principle to a needless extreme if he were to be compelled to take this course in reference to a burden which is in several of its incidents so different from those either of an ordinary mortgage or of a settlement upon children. If again it be argued that the principle of an aristocracy involves the maintenance of hereditary dignities, which need a hereditary income for their due support, it may be pointed out that a trust to hold an adequate fund of consols to attend the suc- cession would be a very suitable and harmless method. I am indebted for this suggestion to a very eminent Conservative solicitor, who has had the management of some of the most extensive estates held by members of the peerage, and whose experience of the practical evils wrought by strict o 194 AMENDMENT OF LAWS. [CH. xn. settlements of land has led him to the conviction that such property ought not to be suffered to be used for the mere purpose of affording a permanent maintenance to families of rank. It is, of course, not suggested that peers should be forbidden to hold land. They might still hold it on the same terms as ordinary persons, that is, subject to their own full power of disposal, and liable for all their debts. But they might be secured in a separate income, just as a married woman, an infant, a lunatic, or a spendthrift, by a trust of money in the funds, if any one of the line of peers should think that course desirable for his descendants. 1 It must be obvious that the powers proposed to be taken away from a landowner by these changes are not such as can make any appreciable deduction from his real comfort and happiness. Nothing but a vain family pride is hurt by for- bidding him to pawn his estate, whether for family provisions or for his debts, instead of selling so much of it as these purposes may require. It is preposterous to argue, as some anonymous writers have gravely done, that the most valuable incident of property is the right to pledge it, and to transmit 1 It has been suggested that trusts might still be created by leases for years. That, however, is easily prevented. A lease ought to require for its validity the possession by the lessee, and monies derived from land would be equally incapable as the land itself of being affected with trusts, express or implied. CH. xii.] ADVANTAGE TO LANDOWNERS. 195 it to a long succession of heirs. The assertion is disproved by facts. Land in France, where it can- not be limited to life estates, brings actually a higher number of years' purchase than land in England. Personal property in Scotland and on the Continent, where it cannot be mortgaged by bill of sale, is found to be equally convenient and valuable as in England. Far from being injured, landlords would greatly gain by these reforms. The first result would be that each owner in possession, being absolutely un- fettered in disposing of the land, would have the strongest motive to improve its value. For all the improvement he could effect in it would be for his own enjoyment during life, for his profit if he sold it, and for the benefit of whatever child or other person he might desire to leave it to. He would have the power to promise it during his life to an heir if he thought good, but no heir would be en- titled to expect it, and the knowledge that its dis- posal rested in his own discretion to the moment of his death would enable him without hesitation to invest money in increasing its value. So also, should he think it advantageous to his family to divide it, he would be able to do so in such shares as might be most convenient for the property, and suitable to his successors. Every owner in short would have the same freedom as a first purchaser o 2 196 AMENDMENT OF LAWS. [CH. xn.. has now, and as it is a known fact that the chief investments of capital in the improvement of land are made by new purchasers, we might expect to see in a short time a great part of the land of England brought under improvement. Equal advantages would follow from the laud becoming liable for the whole of its owner's debts. It would add to his general credit when he needed to borrow for any temporary purpose. But his creditors would not trust to it as a permanent se- curity, and when his circumstances became seriously involved, they would insist on a sale. Practically, therefore, he would obtain cash for permanent pur- poses only by sale of part of the property. In the- same way, as portions for children or other legacies could no longer be charged on land, it would be necessary to sell so much as would pay them off, when personal assets were deficient. By this means a good deal of land would from time to time be brought into the market. But as no purchaser could borrow upon it, it would necessarily be divided into such lots as would bring in the greatest number of bidders able to pay cash down. The consequence would be that in a short time no land would belong to encumbered owners. This result would be brought about not only without pecuniary loss, but with considerable pecu- niary gain to the owners themselves ; for they pay OH. xii.] PECUNIAEY GAIN TO LANDOWNERS. 197 at present 4^ per cent, interest on their mortgages, and they make less than 2J per cent, on the capital value of the land. This, as we have seen, is the case, because land as a source of enjoyment brings a price beyond its value as an investment. Con- sequently, to sell so much of the land as will pay the debts would be a saving of nearly half the in- terest. For example, suppose the owner of an estate of 1,000?. a year rental owes 10,000?. on mortgage, he has a clear income of only 550?. a year, whereas if he were to sell 10,000?. worth of land to pay off his mortgage, his gross rental would be diminished by only 250?. a year, and his future net income would be 750?. Thus the blow to his pride in being the proprietor of a smaller apparent estate would be at least somewhat assuaged by an actual addition of 200?. a year to his resources. Nor is it immaterial that on this better income he would be under less temptation to keep up false appearances, and would have a smaller extent of land requiring outlay for improvements. That the invalidity of all mortgages would affect small owners as well as large, and prevent peasants as well as peers from purchasing land beyond their power to pay cash for it, must be fully admitted ; but the circumstance cannot be considered an objec- tion. An incumbered owner is just as helpless to better himself, if his property is small, as if it is 198 AMENDMENT OF LAWS. [CH. xir, large. The fact in both cases is the same ; he holds land which he cannot improve. There is no sadder spectacle than a peasant proprietor struggling to pay interest on a loan, when he can only make the rent. In France and in Germany, those who have been seduced by the love of property into buying be- yond their means are well known to be the least prosperous and most careworn of their class. In India, it is the facility of mortgaging which is ruining the ryots. Even in America all careful observers agree in the conclusion that while the man who buys land with his savings is in a position of comfort, he who buys with borrowed money sinks deeper and deeper in penury and misery. By all means let us have peasant proprietors, consisting of those who can honestly pay for their purchases out of their savings ; but do not let us encourage men to ruin themselves and injure the public by becoming proprietors in name only, while they are really the hard-wrought and hopeless serfs of a mortgagee, no matter whether he be called the State, a bank, or a private usurer. At the same time, it may be pointed out that whether or not all borrowing on security should be prohibited is not a question raised here, The argu- ments adduced apply to land only, and there would be no difficulty in framing provisions which would still permit validity to mortgages on houses or other real property not used for agricultural purposes. CH. xii.] BORROWING- FOE IMPKOVEMENTS. 199 It has been urged that exception should at least be made of a power to borrow for execution of im- provements, since this would fulfil the purpose of effecting them. There would, perhaps, be no serious objection to this being permitted. Such improve- ments must be executed after Inspection and under supervision of a Grovernment Board, which alone in- volves a waste of money. But it is not so material a public loss as to demand prohibition by the State. If there are persons who are anxious to improve, even at this cost, there seems no sufficient reason for preventing them from taking the burden on them- selves. As there would be no other encumbrance to be set aside, it would be unnecessary to have, what is now required, a prior inspection, in order to see if the expenditure would be remunerative to the estate. It would suffice to ascertain that it had actually been made, so as to prevent a loan for improvements being converted to other purposes. In introducing these changes in the law, it need not be said that care would be taken to prevent injury to the value of property, or to any rights already existing in it. This would not be difficult to effect. The further creation of estates for life may be at once prohibited, since no vested interest would be thus interfered with. But it is desirable to afford some immediate relief in cases where such 200 AMENDMENT OF LAWS. [CH. xn. limited estates are already created. This might be effected by allowing a present tenant for life to con- vert, if he chooses, his estate into a fee simple, on condition of paying to those who have estates in re- mainder the present value of their expectancy. Such value an actuary would have no difficulty in com- puting. The principle has been already sanctioned by the Legislature. In 1 848, in abolishing future entails in Scotland, Parliament enacted that exist- ing entails might also be annulled on the three next heirs giving their consent. But in 1875 (38 and 39 Vic. c. 61, 4) it enacted that the consent of two of these might be dispensed with, provided that the court should ascertain ' the value in money of the expectancy or interest of such heirs,' and should order the amount so ascertained to be paid or secured to them. It is obvious that this principle fully covers the case of all classes of expectant heirs, and does them complete justice, while it would be for the tenant for life to choose whether he would libe- rate himself from the settlement by such a process. It would, in fact, operate as a division of the pro- perty among all who have an actual interest in it, in proportion to the value of each interest respectively. In a case which has been decided by the House of Lords during the present session, arising out of this statute, it has been laid down (contrary to the opinion of the Court of Session) that the state of CH. xii.] GEADTJAL INTEODUCT10N. 201 health, as well as the age, of intermediate heirs must be taken into account in computing the value of an expectancy. This seems a refinement which is superfluous, and, as depending on medical opinions, somewhat uncertain. But Parliament ma} 7 correct it. Another point which might fairly be considered in framing a general Act is the question whether any payment ought to be made to a minor for re- demption of his expectancy. One so young cannot have entered into engagements in which his expec- tancy is an element, and might properly be placed in the same position of dependence on his father which young men on entering life usually and natu- rally occupy. With regard to mortgages, their creation for the future may be prohibited at once. It only requires .a declaration that land shall not be deemed a security for one debt in preference to others. Evasion of the rule would be provided against by declaring that no -conveyance should be effectual which is made upon -condition, nor any lease which is not accompanied with transfer of possession. In dealing with existing mortgages, it would be proper to allow a certain period of time for their being paid off, both for the purpose of enabling the mortgagor to draw upon other re- sources, and to avoid forcing any large quantity of land at once into the market. It might, for example, 202 AMENDMENT OF LAWS. [CH. xn. be enacted that existing mortgages should retain their present legal effect for a period of two years after the passing of the Act, and thereafter for a period of (say) ten years after their date, if created before the passing of the Act. Thus mortgagees would only by degrees be required to enforce a sale, should payment not be made, and the clearing of the land of the whole kingdom would be effected by means of sale of portions of encumbered estates spread over a period of twelve years. In mentioning such periods, however, it is of course not meant to recommend them absolutely. Parliament would maturely consider the question, and allow a longer or shorter time as in its wisdom it might deem fit^ But sooner or later the whole land of the kingdom would thus be freed, and permanently, from encum- brance. 1 It has only further to be remarked that these- changes would suffice of themselves to make convey- ancing simple, rapid, and cheap. A title on which there were no encumbrances, no subordinate interests,, no remainders, no trusts, could need no investigation, no requisitions, no conditions, no parties to join in the conveyance, beyond the individual vendor and the vendee. The deed could contain nothing more 1 A fuller discussion of this reform will be found in the nightly Review for September 1879. CH. xii.] IMPROVEMENT OF CONVEYANCING. 203 than the names of the parties, description of the lands, and the verb ' Transfer.' Eegistration of such a document would complete the transaction, and be notice to all. Cases might occur in which it was necessary to identify the lands, and to settle boun- daries between conterminous owners, and in so far only would the proceedings differ from a transfer of stock. But these are exceptional questions, which are not properly matter of conveyancing, and which do not in fact very frequently arise. In all cases in which the parties are satisfied that they know the lands intended to be conveyed (and such cases are by far the majority), a fee of a fractional per cent, to the lawyer, and of a few shillings to the Eegistry Office, would comprise the whole expense, and a single day would complete the transaction. From the simplification of conveyancing, a rise in the price of land would at once follow, in spite of the increased quantity of land which would be offered for sale. This would be peculiarly noticeable in the case of small properties, on which present convey- ancing charges are prohibitory. There is every reason to believe that, in consequence, properties for sale would generally be broken up into small lots, because the larger number of bidders would raise the price more in proportion than that which large pro- perties would bring. At the same time, the frequent 204 AMENDMENT OF LAWS. [CH. xn. necessity of sale of small portions of an estate for its owner's debts, or for family purposes, would tend in the direction of diminishing large, and increasing the number of small, properties. The greater energy given to their cultivation would enable the pur- chasers to outbid wealthier men, who seek only investments on a large scale. There seems no more effectual mode of promoting the acquisition of land by a large number of the population, than by thus making it the interest of owners to sell, and of pur- chasers to buy, small portions of land rather than large. But the process would be regulated by natural laws ; it would proceed just so far as economic experience proved it io be required by, and beneficial to, the community. Lastly, the law might properly take steps to bring by degrees into the market all land that is at present vested in corporations or companies, not for purposes of immediate public utility, but as an in- vestment. It is not a profitable investment, and it is not a beneficial form of ownership. The owners are absent, and personally unknown ; management must be by agents it is c^tly, and frequently in- efficient. To require such estates to be sold, and in lots of moderate size, would be no infringement on either rights or sentiments of property, and could be made the medium for testing the demand for small CH. xii.] CO-OPEEATIVE OWNEESHIP. 205 holdings, and their profitable cultivation. The sug- gestion of Mr. Lorimer to grant leases in perpetuity has been already noticed (page 117) as an alternative which might be considered in dealing with such estates. Prohibition of the investment in land by joint stock companies would not necessarily interfere with co-operation in the holding of land, because excep- tions could easily be made in favour of owners who reside or work on the farm. But it does not seem that there is any advantage in co-operation as applied to land which calls for legislative favour. We have seen that culture by individuals on a small scale may be quite as economical as culture on a large scale, and that individuals may combine for separate purposes, such as purchase and sale, and the use of implements, without loss or inconvenience. It i& not probable that the trifling advantage obtained in some operations of farming, through the fields being of large extent (which limits itself to the saving of time in turning of implements), will be so material as to outweigh the advantage which arises from each cultivator having not only the sole interest in his farm, but being able to carry into effect his own views, without the necessity of submitting them to a council of his fellow- workmen. Moreover, the cost of superintendence will form a not inconsiderable deduction from the profits of co-operative farming. 206 AMENDMENT OF LAWS. [CH. xu. Interesting as the experiment in some instances has been, the utility of the principle is evidently re- stricted to the artificial circumstances created by the present state of the land laws, which form an impediment to the preferable system in which private ownership would have its full development. The conclusion to which the examination of the whole questions relating to Property in Land has now brought us is very simple and uniform. It is only that the law which creates private property (and which in our present position appears best for the community) should liberate it as far as possible from restraints. It should give to the owners the fullest power of disposal during their life, and on their death, but for no longer time. It should trust absolutely to the principles of human nature to secure judicious management of the land, and to effect its distribution among the community. But it should refuse to allow land to be used for purposes foreign to its nature, to be locked up as a pledge, or to be accumulated as an instrument of pride or op- pression. More than this, however, law cannot do. It will fail if it attempts to prescribe any method of use ; it will be defeated if it seeks to dictate invari- CH. xn.] GENEKAL CONCLUSIONS. 207 able contracts. It can indeed supply language when men have been silent, and enforce bargains that have been understood, though not expressed. In this task it can carry into effect principles of equity and general convenience. But when, in matters innocent, men come to certain agreements, law can only recog- nise and permit them. If in aught they do, in exercise of their free volition, they are less wise than others might be, we must remember that to compel wisdom in its subjects is the boast of a paternal government, but a boast of which the second or third generation invariably proves the futility. It is the part of free men to allow freedom to all ; an en- lightened self-interest then conspires with duty and with affection to establish arrangements which ex- perience will mould and justify. Perfect freedom to buy, to sell, to use, to bequeath, and to lease land, is all that the wisest reformers will ask or suffer. The forces opposed to such reforms are probably less than is commonly imagined. They will be found to consist not so much in the resistance of the pre- sent holders of land as of those who desire to hold it for objects of speculation or vanity. Persons who dabble in land, especially near towns, as they would in stocks, will be seriously interfered with by being required to pay for their speculative purchases. The nouveaux riches, whether merchants, manufac- 208 AMENDMENT OF LAWS. [CH. xn. turers, or professional men, who aspire to found ' county families ' by buying and entailing consider- able estates, will be hostile equally to the abolition of the power to tie up land by settlements, and to the limitation of the extent of land they can secure, by the abolition of the power of mortgaging. To these classes may be added the main body of lawyers, who are terrified at changes that will destroy the system they have been trained to admire and by which they have their gain. All these are undoubt- edly persons of much energy, able to make a vigorous resistance, and a greater show of resistance because of having a large anonymous connection with the press. But the persons really interested in land will not share their views. The heads of old families are in very many instances desirous of relief from burdens which they feel so deeply, and from which the present law makes their own escape impossible, although it sets their children free. It is quite cer- tain that the method suggested (p. 199) for the liberation of the existing owners from the bonds of settlements would receive in England, as its partial adoption has in Scotland, the support of the majority of those who have an actual interest in the question. The prohibition of mortgages is an idea which, be- cause it is comparatively new, may take longer time to make way. But the mischiefs wrought by pledg- ing land for specific debts, and thus becoming liable CH. xii.] GENERAL CONCLUSION. 209 to pay interest exceeding the value of the rental, are so numerous, and to a candid observer so manifest, that public opinion will ere long decide the question. Every day accumulates instances which show that under every variety of condition the owning of land subject to such a burden (unless it be in process of rapid extinction out of savings) is so disastrous, whether the estate be large or small, that depriva- tion of such a resource would be a real boon to the landowners, while of incalculable and multiform benefit to the public. INDEX. ABS ABSENTEES, 89, 166 a - Accumulation, trust for, see Thellusson Act Aggregation of property, 44 Prevention of, 106, 125, 143 Agreement, foundation of rights, 27 For letting, 166, 180 Agricultural Holdings Act, 49, 176 Agriculture, condition of, 3 Defects of English, 68 Foreign, 83 Kequirements of, 8l, 93 Variety of, 172 In Scotland, 178 Prospects of, 181 Arbitration between landlord and tenant, 173 Art, effect of small properties on, 63 Assignment of rights, 26 "DEQUEST not a natural v right, 21, 28 Limitations on, 141 Blackstone on entails, 97 Borough English, 29 Bright clauses in Irish Land Act, 114 COR pAIRD, estimates by, 70 ^ Capital, accumulation of, 29 Application to land, 93 More required, 69, 81, 91 Carriage of food, 70, 182, 186 Caste, 41 Cattle, improvement of breed, 24 Importation of, 67 Rise in price of, 120 See Grazing Channel Islands, farming in, 76, 83, 126 Cheese factories, 80 Chemistry, teaching of, 4 Coke, opinion of, 97 Communism, 34 Companies, see Corporations Compensation to tenants, 168 Compulsory legislation, 144, 169 Contracts, general principles, 164 Of lease, 166 Conveyancing, simplification of, 104, 203 Co-operative farming, 205 Corporations as landowners, 116, 135, 204 212 INDEX. COU County families, influence of, 86 Desire to found, 208 Custom of country, 168 Excluded by agreement, 175 Cannot be transplanted, 183 "HEVISE, see Bequest Diffusion of property, 44 Distress, law of, 180 Division of inheritances, 125, 130 Dower, 192 T^DUCATION of large and " small cultivators, 77 Emigration, power of, 19 In Channel Islands, 126 Entails, origin of, 49 Objections to, 93 Abolition of, 49, 53, 188 Gradual extinction, 200 PIXITY of tenure, 157 - 1 - Foreign competition, 64, 181 Foreign corn, growth of, 64 Importation of, 65 France, rules of succession in, 127 Morcellement in, 127 Cultivation in, 80, 8:5 Free trade, effects of, 62 n.AME laws, 151 Gavelkind, 29 Gold digging, rules in, 16 Grazing, in new countries, 16 Value of land for, 10, 67, 149 Guernsey, see Channel Islands TTISTORY of property, 28 " Entail law, 48 Hypothec, 179 MIL IMPROVEMENTS, landlords and tenants, 91 Acts, 59, 200 Compensation for tenants, 168 Increment of value, 118 India, tenures in, 162, 198 Inequality of property, 29 Inheritance, origin and rules, 28, 29, 31 in Channel Islands, 126 In France, 127 Ireland, tenant-right in, 167 Fixity of tenure in, 157 Peasant proprietors in, 167 Compensation for distur- bance, 168 JERSEY, see Channel Islands Joint-stock Companies, see Corporations T ABOUR, sole natural title to n property, 20 Equal amounts required, 64 More required, 81 Land, its real value, 4 Not limited, 5 Resembles all other wealth, 9 Except in estimation, 12 Right to possess, 19 Land Banks, 115 Land Tax, 121 Improvement Acts, 59, 195 Large estates, 73 Farms, 76 Lawes, Mr., 4, 65 Life, estates for, 51, 103 Valuation of, 200 Lincolnshire customs, 168 Lorimer, Professor, 116, 205 Loss by bad cultivation, 70 MACHINERY, use of, 80 111 Mill, proposals for State purchase, 111 INDEX. 213 MIL Mill, idea of unearned incre- ment, 118 Moral considerations, 39 Objections to entails, 97 To compulsory division, 130 Morcellement, 128 Mortgages, 55 Abolition of, 188, 196 Mortgagor, powers of, 60, 98 "\TATION, its interest in *' cultivation, 62 See State Nationalisation of land, 106 Nature, laws of, 11 ABJECTS of property, 1 Occupancy, right by, 22 Opponents of reforms, 207 PEASANT holdings, 76, 126, 198 Peerages, support of, 193 Permanency of holding, see fixity of tenure Plants, growth of, 4 Portions, see Provision Presumptions proper objects of legislation, 176 Price of land, 111, 137, 203 Above real value, 112 Primogeniture, 50, 102, 188 Provision, family, 96, 191 Prussian land reforms, 115 "DEFORMS proposed, 187 -*-* Remainders, valuation of, 200 Rent, nature of, 113, 188 Fixing by State, 158 Due to State, 114 Restraints on ownership, 91 Rights natural and social, 17 To live, 18 To enjoy fruits of labour, 20 WIL Rotation of crops, 182 Ryots, 114, 163, 198 OALE, powers of, in settle- ments, 58, 103 By mortgages, 201 Scotland, entail law, 49, 52, 195 Progress in, 178 Compensation in, 208 Settlements, strict, 53 See Entails Small culture, 76 Properties, 126, 198, 203 Socialism, 35 Soils, value of, 3, 91 Difference of treatment, 175 Spencer, see Nationalisation State, powers of, 31 Objects of, 33 Resumption of land by, 106 Sale by, 112 Action of, 163 Stock, see cattle Subinfeudation, 161 TENANT for life, see Life Estates Tenant-right in Ireland, 166 England, 168 Tenants, improvements by, 91 Compensation to, 168 Dependence of, 177 New relations of, 180 Thellusson Act, 49 Trusts, abolition of, 189 TTLSTER tenant-right, 167 u Unearned increment of value, 118 Uses, see Trusts WI LLS, see Bequest Wives, dower of, 188 I.OXHON 1 miSTKD BY SPOTTISWOODK ASD CO., NEW-STREET 8QUABH XKD PARLIAMENT STREET SMITH, ELDER, & CO.'S PUBLICATIONS. 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