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 
 </country in different districts, and we find they are 
 constantly being altered by the action of the legisla- 
 ture which represents the population in each country. 
 The earliest records tell generally of village commu- 
 nities, where land was deemed the common property 
 of all, and for convenience of cultivation only was 
 appropriated from year to year to certain families. 
 On this system, in Europe, supervened feudalism, 
 which vested all land in the State, as represented by 
 the Sovereign, and conceded its possession during life 
 only to those who could render service to the State. 
 Gradually the right of inheritance was permitted, 
 
CH. ii.] VARIETY OF SOCIAL RIGHTS. 29 
 
 and much later the right of bequest to a stranger. 
 But to this day there are parts of England where 
 descent is not to the eldest son, but equally 
 among all, under the name of gavelkind ; and there 
 are towns where under the name of borough English ' 
 the youngest son's right is held superior to that of 
 the rest of the family. The ecclesiastical province 
 of York, comprising all England north of the Hum- 
 ber, had till quite recently rules respecting the suc- 
 cession of personalty different from those of the rest 
 of England ; and Scotland, in this respect, is as 
 different from England as France is. So also Parlia- 
 ment has of late greatly shortened the periods of 
 limitation of actions, which means the abolition of 
 all rights of property not asserted within the time 
 fixed by statute. Nor does a year indeed pass with- 
 out some modification being made in the rules 
 respecting private property, sufficient to establish 
 that in the opinion of all they are not < sacred,' but 
 are simply arrangements of convenience, which may 
 be justifiably altered whenever the balance of con- 
 venience is found to suggest a change. 
 
 By the operation of rules thus established, the 
 very great inequality of property in the hands of 
 different persons follows as a natural consequence. 
 Eesorting again to the practical illustration of the 
 gold diggers, it may of course happen that one man's 
 ' claim ' proves richer than his neighbour's. That 
 
30 EIGHTS OF PEOPERTY. [CH. n. 
 
 may be mere luck, but it may also be the legitimate 
 result of greater skill in selection. It is, however, 
 nearly certain that while some miners spend all that 
 they make, some will save a portion from consump- 
 tion, and these naturally and legitimately begin to 
 amass property while the others remain poor. The 
 savings thus made furnish means for investing in 
 provisions or luxuries for sale to the rest, or for 
 buying up the ' claims ' of those who are tired of 
 labouring, or for paying wages to men who prefer a 
 steady rate of income to the chances of working on 
 their own account, or whom recklessness may have 
 forced to sell their rights. In these legitimate ways 
 savings become capital, and capital may quickly 
 double itself by continuance of industry, and by 
 paying for more labour. Then the capital acquired 
 by more than one person may on their death descend 
 to a single heir, and if he pursues a like course of 
 prudence and economy, the fortune, whether invested 
 in trade or in land, may speedily become that of a 
 millionaire. 
 
 But throughout this process we may observe the 
 maintenance and the development of the distinction 
 between the two rights of property we have examined. 
 There is first the natural right, which is derived from 
 labour, but which is limited to the individual who 
 has laboured, and endures only during his life. There 
 is next the social right, which is the creature of arti- 
 
<?H. IT.] STATE PRESCRIBES RULES OF PROPERTY. 31 
 
 ficial law, moulded by general agreement, and based 
 on convenience. And this last right is the only one 
 which has any existence in regard to all property not 
 created by the labour of persons now living. It is 
 therefore the sole right attaching to by far the chief 
 portion of property in any country. It is the sole 
 right of the landowner or capitalist, whose property 
 has come to them either by descent or purchase. 
 And as it exists only by agreement, so it is only 
 maintained by the power of the State ; for the State 
 performs the duty of protector of property. By its 
 combined strength, of which the instruments are the 
 courts, the army, and the police, it prevents anarchy 
 and maintains such rights as it allows. It is there- 
 fore entirely justified in laying down the conditions 
 on which it will recognise and maintain these privi- 
 leges. If a rich man disputes the authority of the 
 State to interfere with what he calls his rights, let 
 him consider where his rights would be if the State 
 should merely outlaw him. Short work would be 
 made of his rights of property if the State were to 
 deny him access to its courts and the protection of 
 its policemen. But if he claims State help, he must 
 acknowledge the supremacy of those State rules, which 
 prescribe on what terms and to what extent such help 
 shall be given. 
 
 There is no need, therefore, to inquire whether 
 the root of property rests in the State or not. We 
 
32 EIGHTS OF PEOPEETY. [CH. H. 
 
 may admit that everything may become private pro- 
 perty by the labour of private individuals. But when 
 private individuals are members of organised com- 
 munities we must also admit that these communities 
 have an absolute and unqualified right to decide 
 how much property, of any description whatever, 
 any one individual may be allowed to hold, and on 
 what terms he shall be allowed to deal with it, either 
 during life or after his own death. 
 
33 
 
 CHAPTER III. 
 
 OF THE AIM OF LAWS OF PROPERTY. 
 
 WE now come to the inquiry, What are the princi- 
 ples which should guide the State in exercising its 
 powers of establishing or modifying rules respecting 
 the tenure of property by its members ? 
 
 The one leading principle is obviously the general 
 advantage of the community. For a free State is 
 the organised community ; it exists for the sole ob- 
 ject of mutual advantage, and therefore it must 
 regard the general advantage as the object of all 
 its legislation. The advantage of certain of its 
 members may be considered when it does not go 
 a,gainst the interests of the rest. But where there 
 is conflict between the interests of the few and of 
 the many, and when all have equal authority, it is 
 clear that the interests of the greater number ought 
 to, and ultimately must, prevail. Whether that 
 greater number be poor or rich can make no dif- 
 ference. All are alike members of one body, all are 
 alike both governors and governed, and if, in some 
 
 D 
 
34 AIM OF LAWS OF PROPERTY. [CH. m. 
 
 countries, the majority suffer the minority to rule, it 
 is only because they choose not to exert their united 
 strength. But even the rule thus permitted is on 
 condition of sufficiently consulting the welfare of 
 Jill, and when this condition is violated in a degree 
 which unites the majority in resentment, the minority 
 must speedily succumb. 
 
 The principle that the State is instituted for the 
 benefit of all has led some to the conclusion that it 
 ought so to deal with all the results of labour as to 
 equalise their possession, or, as it is usually called, to 
 establish Communism. There is much to be said in 
 favour of this system, if it were possible to carry it 
 out; but there is one objection to it founded on 
 principle, and many founded on practical considera- 
 tions. The former is, that it interferes with each 
 person's right to his own labour, which, as we have 
 seen, is his right to his own body and mind, the highest 
 right which can be conceived. The practical objec- 
 tions are equally fatal. It cannot be just that all 
 should share equally in the products of labour, unless 
 all labour equally. But each person's powers vary, so 
 that all we can say is, that each should labour equally 
 in proportion to his powers. Then who should decide 
 whether each does so labour ? Or who should decide 
 at what work each person should labour ? If his own 
 inclination is to be his guide, he may choose what 
 is useless to the community, or what is already over- 
 
CH. in.] COMMUNISM AND SOCIALISM. 35 
 
 stocked. If the community should decide for him, 
 his individual tastes and capacities must be over- 
 ruled ; an artist may be made into a coal hewer, a 
 mechanician appointed to be a poet. But, in any 
 case, the apportioning a suitable task to each indi- 
 vidual, and the enforcing its execution would demand 
 an army of officials, superintending and checking one 
 another. On a small scale, the arrangement might 
 be possible ; on a large scale, which implies the ad- 
 mixture of men of every variety of character, vast 
 organisations, profound complexity of administration, 
 not merely in production but in distribution, it is 
 hardly possible to conceive that self-interest, negli- 
 gence, and fraud, would not be destructive of profit- 
 able results. 
 
 Similar practical objections lie to the modern 
 form of Socialist theory which suggests that all 
 industrial enterprises should be under the man- 
 agement of the State. This cannot be called con- 
 trary to principle, and we even have examples of it 
 in the State management of the business of the Post 
 Office, of telegraphs, of railways (in many foreign 
 countries, and partly in India), in arsenal and dock- 
 yard and clothing factories. In all these cases, 
 however, the State is able to ensure efficient labour 
 by the fact that it is not the sole employer, that it 
 can check its results against those of private factories, 
 and that it can turn off the men who are inefficient 
 
 D 2 
 
36 ADI OF LAWS OF PROPFJITY. [CH. in. 
 
 workmen. All these securities would be lost if 
 the State were to be the sole employer of labour 
 in every department. But further, in proportion 
 as it assumes larger responsibilities, the means of 
 securing due superintendence would diminish. Go- 
 vernment offices do not obtain the best work ; the 
 officials as a rule (admirable exceptions must always 
 be recognised) work less diligently than in any 
 private firm, and the highest in place are well 
 known to be often the most indifferent. Quia custo- 
 diet ipsos custodes ? If a Secretary of State may 
 make it his chief object to defer everything that 
 ought to be done, who is to ensure efficient activity 
 in all the subordinate departments of his office? 
 One man's negligence may paralyse and impoverish 
 a great section of the nation, and as his own success 
 or ruin is in no respect at stake there is no check 
 possible on his idiosyncrasy. But, apart from indi- 
 vidual peculiarities, every one who has had dealings 
 with a government office is too sensible of the dis- 
 position to avoid trouble, and therefore to maintain 
 routine and refuse improvement, which characterises 
 it. Until the Socialists show some practicable 
 method by which these tendencies shall be reversed, 
 and the ' how not to do it ' spirit exorcised, we can- 
 not deem that their scheme would be a desirable 
 substitute for the energy of private ownership, 
 stimulated by competition, and inspired by the per- 
 
<JH. in.] TWO PKIMAEY KULES. 37 
 
 sonal prospect of gain or fear of loss. Our task in 
 the meantime must be so to regulate by law the 
 system of private property as to procure from it the 
 maximum of advantage to all, with as little as may 
 be of evil to any. 
 
 Now the advantage to all, which by its very consti- 
 tution the State must seek in these arrangements, in- 
 cludes benefits of various kinds, moral, intellectual, 
 and material. In so far as these depend on the insti- 
 tution of property, it is tolerably obvious that they 
 will, as a general rule, be the greater the more pro- 
 perty is gained and diffused. For this is only an- 
 other way of saying that, if property is a good, it is 
 well that it should be increased, and that as many 
 as possible should possess it. Hence we have the 
 proposition that the social rules which establish the 
 rights of property should be so framed as 
 
 Firstly, to encourage its growth, or production. 
 
 Secondly, to encourage its diffusion in as many 
 hands as possible. 
 
 Both these objects must, it is true, be qualified 
 by due consideration of other elements. Property 
 is certainly not the highest human good, but only 
 one source of good, and a means towards attaining 
 others. Men may work their lives out in accumu- 
 lating property, and be only miserable all the time. 
 Operatives may be induced by high wages to work 
 to such a degree that disease and early death follow. 
 
38 AIM OF LAWS OF PEOPEKTY. [CH. m. 
 
 Apart from physical deterioration, moral deterioration 
 may easily attend the too eager pursuit of wealth. 
 It is necessary, therefore, to keep in view that laws 
 which tend to encourage the increase of property 
 must be watched in order to be sure that they do not 
 bring in their train mischiefs which would more than 
 counterbalance their benefits. 
 
 In the same way the general proposition that it 
 is for the public advantage that the law should en- 
 courage a tolerably equal distribution of property 
 may need to be subjected to limitations. It might, 
 for instance, prove to be the fact that such laws might 
 at the same time have the effect of diminishing the 
 total efficiency of labour, and so of diminishing the 
 amount of property. Now since our first general 
 rule is that property should be increased, this conse- 
 quence, if demonstrated, might show that an equal 
 distribution is less to the public advantage than an 
 aggregation in few hands only. For it might even 
 happen that such aggregation tended to increase the- 
 total results of labour so largely that the poorer 
 classes gained thereby a greater share than would 
 have fallen to them had the tendency of the law been 
 to encourage at first a more equal division. If this 
 were the case, it might be justly argued that laws 
 tending to promote the wealth of the few were de- 
 fensible on the ground that indirectly they tended to 
 promote, more rapidly at least, the well-being of the 
 many. 
 
CH. HI.] QUALIFICATIONS OF EULES. 39 
 
 Yet even if such an argument were tenable in 
 regard to material prosperity, there would be con- 
 siderations of a different nature which must be 
 weighed before we admit it to be conclusive. Physical 
 progress may not always be accompanied with moral 
 progress. Say, for instance, that it is quite certain 
 that a single capitalist, as owner of a mill, might 
 make by his peculiar skill and undivided command 
 much greater profits than could be made by a co- 
 operative company consisting of the workmen ; say 
 that he might thus be able to pay them higher wages 
 than their shares would bring them; yet it would 
 not necessarily follow that it was better for them to 
 work as his hands than on their own account. In 
 the one case it is possible that they might be treated 
 only as well-fed slaves ; that, dependent wholly on 
 their master, there might be no influence tending 
 to raise them above the beershop ; in the other it is 
 possible that the nurture of the habits of combination 
 and independence might tend to make them better 
 men and women, and therefore happier, although 
 their actual gains were less. Especially in the pur- 
 suits of agriculture must such questions be considered. 
 On the one hand there may be great estates on which 
 the labourers are comfortably housed and well paid, 
 but in which every sense of human dignity and pro- 
 gress is carefully discouraged. On the other hand 
 there may be yeoman cultivators of petty patches, 
 
40 AIM OF LAWS OF PROPERTY. [CH. in. 
 
 hardly nurtured and poorly fed, and yet merely 
 because of owing service to no man, living an honest, 
 upright, and sturdy life, and advancing with each 
 succeeding generation in intelligence and worth. 
 And yet again it is quite within possibility that 
 some of the rules of property established by the 
 State may, while encouraging such good influences, 
 bring other evils in their train ; may turn thrift into 
 penuriousness ; or make the diffusion of property the 
 means of creating filial neglect or family jealousies. 
 
 On the whole, then, we can only say that the 
 total effect of any rules of property established by 
 the State must be carefully scrutinised before they 
 can be fully approved. All that we can safely venture 
 to lay down in advance is generally that their primary 
 object must be to promote the true advantage, moral 
 as well as material, of the whole community. In 
 what way this is to be done is a question of judgment 
 ripened by experience. 
 
 It is, however, to be remembered that these 
 cautions and provisoes are all of the nature of 
 exceptions to general rules, and therefore that the 
 burden of proving them in each case will lie on those 
 who allege that the general rule should give way in 
 a particular case, for particular reasons. 
 
 We may now add to the two primary general 
 principles (stated at page 37) some others which 
 
CH. in.] OBJECTIONS TO CASTE. 41 
 
 may be deemed corollaries. It follows from the first 
 principle that, in order to encourage production, social 
 rules should aim at making each person's labour as 
 productive as possible. For the value of labour is 
 not in itself, but in its results. Obviously, then, the 
 less of labour that is spent in obtaining these results, 
 or, in other words, the more results are obtained for a 
 given amount of labour, the better for the labourer 
 and for the community. This rule is especially im- 
 portant when we regard the diversity of human capa- 
 city. One man with an aptitude for a special occu- 
 pation will accomplish a great deal more than one 
 who has not the aptitude. But each person has a 
 different aptitude for different things, and to obtain 
 the best results from the special qualifications of 
 each, no obstacle should be interposed by law in the 
 way of each person adopting the avocation best suited 
 to him. 
 
 This principle shows the impolicy of caste, by 
 which all who happen to be born in a particular 
 family are compelled to follow its peculiar pursuits. 
 No doubt the mischief is modified by the effect of 
 custom developed by hereditary transmission, since 
 we know that men may thus acquire a special dexterity 
 in their limited calling. But human nature is only 
 amenable to training to a very small extent, and 
 however long a race may have practised a single art, 
 there will be constant occurrence of cases in which 
 
42 AIM OF LAWS OP PEOPEETY. [CH. in. 
 
 individuals cannot successfully practise it, but could 
 more skilfully pursue some other art from which the 
 laws of caste debar them. 
 
 The same principle illustrates the advantage of 
 division of labour. By this arrangement each person 
 not only works at what he can do best, but avoids- 
 working at that in which he would be less expert. 
 By thus producing the largest possible results for 
 his labour he gains personally, and the community 
 gains, because he can dispose of these results more 
 cheaply. 
 
 It follows that one general aim of all laws of 
 property should be to permit its easy transfer. For 
 by this means the basis of labour, on which the actual 
 owner would ineffectually spend his time and exer- 
 tions, passes naturally into the hands of those whose 
 special skill will find in it a field for specially favour- 
 able results. 
 
 Another means by which the maximum of pro- 
 duction may be encouraged is by framing laws of 
 property so as to secure that the products of labour 
 shall be fully completed. For property (as far as 
 we are here treating of it) consists in material ob- 
 jects, on nearly all of which a certain amount of 
 labour has been already spent, but which need some 
 further labour to make them fully valuable to man- 
 kind. It is only uncultivated soil, or raw ore in 
 
CH. in.] LABOUR SHOULD BE COMPLETED. 4S 
 
 mines, that has as yet received no labour, and it is- 
 only the most highly and completely finished articles- 
 that have received enough of labour. Between these- 
 two stages every article is imperfect and compara- 
 tively useless. Land needs to be ploughed, manured,, 
 and sown ; the crops need to be harvested, the grain 
 needs to be threshed and then ground, the flour needs 
 to be kneaded and then baked, before the land is fully 
 useful to man. So the ore must be dug, then smelted 
 and refined ; the metal must then be fashioned, per- 
 haps into tools, then used to make machines, then 
 the machines to make cloth, or to cut timber, or to- 
 form articles needed for our dwellings, or for trans- 
 port of goods, or so on. Now, if at any of these 
 stages labour is arrested, all that has been previously 
 spent is lost. All the work given to raising and 
 harvesting grain is wasted if it is only locked up in 
 a granary without being ground and made into bread. 
 The toil of the miner and of the smith is wasted, if a 
 machine is left to rust unused ; nay, it is half wasted 
 if the machine is run at only half speed, so that it 
 turns out only half its proper products. 
 
 Now the total wealth of the community depends,, 
 not on the total amount of raw material it possesses,, 
 for that is in itself useless, but on the total amount 
 of the most highly finished products it can enjoy. 
 Hence, if any owner of these products at an inter- 
 mediate stage fails to use them for the further pro- 
 
44 AIM OF LAWS OF PKOPEKTY. [CH. in. 
 
 duction of the completed article, he robs the com- 
 munity of all the labour which up to that stage has 
 been employed upon it. 
 
 The law, then, which, for the benefit of the com- 
 munity, secures to each person a right of ownership 
 in what he buys or inherits, carries with it the im- 
 plied condition that he shall so use these articles as 
 to make them, within the limit of his power, benefi- 
 cial in the highest degree of which they are capable. 
 The law, in other words, must have for its aim the 
 use of property in such a way as to yield the fullest 
 possible return for the labour that has been already 
 spent upon it. 
 
 The second of the general principles which must 
 guide laws of property is to encourage its diffusion, 
 and from this it follows that law ought to discourage 
 its excessive aggregation in the hands of individuals. 
 
 What may be excessive is a question of degree, 
 ;and may vary at different places and in different 
 times. But the truth of the general principle will 
 be apparent if we remember that each person is only 
 capable of a certain degree of happiness, and that 
 certainly the happiness of his life does not augment 
 with the largeness of his possessions. Up to a cer- 
 tain point moderate wealth furnishes increased com- 
 fort and gratification of both the senses and the 
 mental faculties. But beyond that point no further 
 
CH. in.] OBJECTIONS TO AGGREGATION. 45 
 
 gratification is possible. Therefore, whatever wealth 
 one individual possesses beyond that point does him 
 no service ; while, if it were distributed among those- 
 who fall short of the point of maximum gratification 
 it would enhance their enjoyments. 
 
 We may go further, indeed, and safely say that 
 excessive wealth is noxious to the owner and perilous 
 to the public. It tempts the owner into the indulg- 
 ing of whims, if not of immoral cravings, and it is apt 
 to be spent by him in works which are not reproduc- 
 tive, but which perish with the using. The lives of 
 very many extremely rich men cannot fail to occur 
 to us as examples of this truth. And since great 
 wealth gives the means of buying the services of 
 many, it is easy to see that one individual thus fur- 
 nished with the most powerful of all weapons might 
 even in modern times become a danger to the liber- 
 ties of others, or to the institutions of the State. 
 Obviously this peril is as great whether the property 
 be in land or money. 
 
 It is sometimes urged that accumulation of wealth 
 in the hands of individuals is necessary to the pro- 
 gress of civilisation and to the encouragement of art. 
 But the fact that the greatest works in modern times- 
 are executed by joint stock enterprise shows that a 
 diffused wealth is a much more potent implement of 
 progress than the same wealth concentrated in one- 
 person. The same principle applies to art. When a 
 
46 AIM OF LAWS OF PROPERTY. [CH. in. 
 
 true understanding of art comes to be diffused, as 
 with the progress of education and of comfort it 
 undoubtedly will be, district and municipal collec- 
 tions will be formed, and the combined means of 
 each locality will form a more trustworthy patronage 
 of artists than that of rare individuals, while the 
 local museums and galleries will better serve to sup- 
 ply a true artistic instruction than the stores which 
 are hidden in a rich man's mansion. 
 
 It must also be remembered that the objects 
 suggested in the first general principle of property 
 law are more likely to be attained if wealth is dif- 
 fused than if it is concentrated. An immensely rich 
 individual is generally indifferent to the creation of 
 further wealth, and careless in using, for the pro- 
 duction of further wealth, the fruits of labour. But 
 persons with only small or moderate means are pre- 
 cisely those who are most active and industrious in 
 the effort to increase their stock. The productive- 
 ness of wealth of all sorts is therefore unquestionably 
 enhanced by its more general distribution. 
 
 It is, of course, impossible to lay down a fixed 
 point as that at which individual wealth becomes so 
 large as to be hurtful, or subject to influences that 
 detract from its benefits. The point varies with 
 different states of society, and even with the dis- 
 positions of different men. But since there is un- 
 doubtedly a degree of hurtful excess, and practically 
 
<JH. in.] APPLICATION TO LAND. 47 
 
 there is not any degree of hurtful diffusion, it is clear 
 that the general aim of law should be to promote 
 influences that tend to diffusion instead of aggre- 
 gation. 
 
 Applying to the special form of property which 
 consists in land the general principles above stated, 
 we shall find that they suggest the following doc- 
 trines as those which the laws should embody : 
 
 1. Land, as the root of the wealth of the com- 
 munity, should be dealt with so as to evoke its 
 maximum production. 
 
 2. To this end there should be nothing tending 
 to preserve it in the hands of a hereditary caste, 
 whether of large or small owners, but every facility 
 should be given for its transfer from those who can- 
 not use it profitably to those who can. 
 
 3. Any system which tends to make the labour 
 employed on land not fully productive should be dis- 
 couraged. 
 
 4. The application of capital, which is saved-up 
 labour, should be encouraged. 
 
 5. Large estates, implying great wealth, and 
 consequently less inducement to production, should 
 not be an object of legal favour. 
 
 6. So far as experience may show that there is 
 no moral or economic objection, the law should 
 rather seek to promote the division than the aggre- 
 gation of landed property. 
 
48 LAND LAWS OF GREAT BRITAIN. [CH. iv. 
 
 CHAPTEE IV. 
 
 OF THE LAND LAWS OF GREAT BRITAIN. 
 
 THE principles laid down in the last chapter as those 
 on which laws of property should be based, r have been 
 for a very long time recognised in the action of 
 our own Legislature. Before pointing out in what 
 respects our laws are still defective or unsound, it 
 may be useful to observe how far these principles 
 have formed the motives of reforms which have been 
 already enacted. It has been noticed that within 
 the limits of our own island there is sufficient 
 variety in the legal rules of property to demonstrate 
 that we acknowledge in it no absolute and sacred 
 right. But it is also true that we have, almost from 
 the commencement of our history, been in the process 
 of gradually altering those rules with the avowed 
 object of making property more easily transferable, 
 more free from restraints on its use, more generally 
 diffused, and more productive. The first of these 
 objects has inspired the long series of statutes 
 passed for the simplification of conveyancing. The 
 
CH. iv.] CHANGES ALKEADY MADE. 49 
 
 power of an owner to entail his lands to all genera- 
 tions was established in England in 1284, and in 
 Scotland in 1616, but it was broken down in the for- 
 mer country by a judgment of the Courts, sanctioned 
 by Parliament in 1542, and in the latter by a statute 
 passed in 1848. Accumulation of either real or per- 
 sonal estate for more than twenty-one years after the 
 death of a testator was forbidden by the Thellusson 
 Act (39 and 40 Greo. III. c. 98), which was extended 
 to Scotland by the 11 and 12 Vic. c. 36, 41. A 
 number of statutes have been passed both in England 
 and Scotland for increasing the powers of owners of 
 estates limited to their own life, in the hope of pro- 
 moting the better cultivation of the land. The 
 Bright clauses of the Irish Land Act 'acknowledged 
 the duty of the State to aid in the acquirement of 
 land by small farmers ; and the Agricultural Hold- 
 ings Act of the last Government was based on the 
 
 o 
 
 right and interest of the public to promote such con- 
 ditions of the letting of lands to tenants as might be- 
 most favourable to production. 
 
 It may also be kept in mind that it is the almost 
 daily task of Parliament, as representing the State, 
 to compel the sale by private individuals of property 
 either required for State purposes, or for works car- 
 ried on by private individuals for the public benefit. 
 Although in these cases a full price is paid, yet the 
 personal rights of property are entirely set aside by 
 
 E 
 
50 LAND LAWS OF GREAT BRITAIN. [CH. iv. 
 
 compelling the owners to surrender the special de- 
 scription of property which they would not have 
 voluntarily parted with. 
 
 Nevertheless, while such is the universally ad- 
 mitted power of the State, and while its power has 
 been steadily exercised in amending the laws relat- 
 ing to property, in the direction indicated, there is 
 still much, especially as regards land, that remains 
 undone. Legal rules are still in force which have 
 for their purpose and effect to withdraw land from 
 the ordinary motives of human conduct, to interpose 
 obstacles to its being transferred from negligent to 
 industrious hands, and to hinder its being used so as 
 to yield the maximum benefit to its owners and to 
 the community. The object of these rules is the 
 maintenance of large estates in the hands of indi- 
 vidual owners, and the means they employ are the 
 restriction of the powers of each successive owner. 
 We shall consider separately the results of the objects 
 in view, and those of the means employed. 
 
 I. Extent of Land held by one Owner. 
 
 Notwithstanding the abolition of the laws of en- 
 tail already referred to, there remain in the system 
 of jurisprudence of the United Kingdom certain rules 
 which serve the purpose of entailing land. The law 
 in all cases of intestacy carries the whole of the land 
 to a single male heir. That this is not a natural 
 
CH. iv.] LIFE INTERESTS. 51 
 
 rule of succession is shown by the fact that it does 
 not apply to personalty, nor even to realty if the 
 nearest heirs are females. And although the rule 
 may be altered by express will, yet its existence as a 
 legislative maxim unquestionably exercises a power- 
 ful influence in determining testators to adhere to its 
 principles. It need hardly be pointed out that the 
 principle is unjust in itself, and indefensible at the 
 present day, however suitable to feudal times. We 
 have only to think of its cruel operation when there 
 is no estate but land, and when in consequence, if 
 a father dies without making a will, the eldest son 
 takes all, and his brothers and sisters are left without 
 a farthing, to see that in itself it is inexcusable. If 
 such cases often occurred it could not have survived 
 till now. But its rigour is mitigated by the circum- 
 stance that any personalty which there may be is 
 equally divided, and that, if the deceased owner 
 has no personalty, he almost always makes a will 
 providing for his younger children by a charge upon 
 the land. But out of this there grows a fresh mis- 
 chief, which will be more fully examined when we 
 come to deal with other burdens on the estate. 
 
 Besides the law of primogeniture there is the law 
 which enables estates in land to be limited to the 
 life only of the holder. Such a holder cannot sell 
 the land except for the purpose of paying off mort- 
 gages laid upon it before it came into his possession. 
 
 E 2 
 
52 LAND LAWS OF GREAT BRITAIN. [CH. iv. 
 
 Nor has he any power to devise it by will. He is 
 in the English law language simply a ' tenant for 
 life,' in the Scottish a ' life-renter,' and both terms 
 express that he has no power except to draw the 
 profits during his life. The land, therefore, re- 
 mains in his hands without being subject to his dis- 
 posal, and passes at his death to an heir fixed by the 
 deed which gave it to him. There may also be a 
 succession of such life interests. Every full owner 
 of land is permitted to name a succession of heirs 
 who shall all take the estate for life only. The sole 
 condition imposed is that the person so named must 
 be actually living at the date of death of the person 
 naming him. Thus a father may appoint as succes- 
 sive ' tenants for life ' not only all his children, but 
 his grandchildren, if they are living at his own death, 
 and while any one of those named survives (which 
 may obviously extend for a period covering a full 
 century), he will take the estate as an inalienable life 
 interest only. 
 
 Again, although the principle of entails is abo- 
 lished, as beyond persons in life when the entail is 
 made, yet the theory survives and gives rise to a 
 practice which effects the same result. For it has 
 never been declared unlawful to make an entail. On 
 the contrary, an entail is perfectly valid, and may 
 be the rule of succession for ever. What the judges 
 (in England) did, and what the Legislature in Eng- 
 
.CH. IT.] STRICT SETTLEMENTS. 53 
 
 land and Scotland has confined itself to, is to declare 
 that any heir under an entail may, when he comes 
 of full age, execute a deed of which the effect is to 
 annul the entail. Till such deed is executed the entail is 
 the law of the estate. From this rule, and that referred 
 to in the last paragraph, has grown up the common 
 expression that land may be ' tied up ' during lives 
 in being and for twenty-one years after. This is not 
 quite accurate. The real fact is that an estate may 
 be ' tied up ' during the lives of any number of per- 
 sons living at the date of the operation, and for an 
 indefinite period afterwards, but that the tie may be 
 loosed by the first successor .who was born after that 
 >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. 
 
<CH. v.J COST OF FOEEIGN MEAT. 67 
 
 The same principles apply to the feeding of cattle. 
 The labour in summer is only superintendence as the 
 animals graze. There is some cost for fencing in 
 settled countries, which is saved on the actual prairie ; 
 hut it must be incurred as soon as prairie lands are 
 divided into farms. In a few districts where the 
 climate is very favourable, the beasts are left out all 
 winter. But farmers who adopt this course seldom 
 fatten their beasts under four years old ; while Eng- 
 lish farmers who feed under roofs and on roots and 
 cakes, turn them out at two years old, so that the 
 labour employed in making an animal fit for the 
 butcher is not greatly different in the two cases. 
 But when the cattle are fed in America, they cost 
 the labour of transport before they reach England, 
 and this cost is entirely saved when they are bred in 
 England. 
 
 It follows that the assertion that it is more 
 economical of human labour to grow the food of 
 Englishmen at 4,000 to 10,000 miles distance from 
 England is false in fact. The system really involves 
 a great waste of human labour. 
 
 Secondly, let us examine for a moment the 
 reasoning which is based on this false assertion. 
 The proposition put forward is that since English- 
 men can be fed from abroad they have no right of 
 control over what is done with the land at home. It 
 
68 NATIONAL INTEREST IN LAND. [CH. v. 
 
 is argued that the circumstance of landlords drawing" 
 rent is no concern of the rest of the population, and 
 that whether much or little food is grown affects only 
 the bargain between the tenant who pays and the 
 landlord who receives the rent. If little is grown we 
 shall import the more, and we shall pay for our im- 
 ports with the produce of our labour in manufacture. 
 This proposition would be sound only in one case. 
 If we wasted no labour in defective cultivation, and 
 if we employed usefully all the labour which skilful 
 cultivation demands, so that on the whole the land 
 of England produced food to its utmost economical 
 capacity, then it would be true that we should not 
 have any economical ground for interference with 
 land-owners' proceedings. But this imaginary case is 
 a very long way from being realised. At present we 
 actually waste, even in England, an immense amount 
 of agricultural labour. If land is undrained it pro- 
 duces only half crops, and as the same labour is re- 
 quired on undrained as on drained land, half the 
 labour given to undrained land brings in no return, 
 or is wasted. If there are not proper buildings for 
 carrying on the business of preparing grain for market, 
 or for feeding stock, labour is again uselessly wasted 
 in these stages. If the farmer, from want of capital 
 or proper security, does not manure sufficiently, bis 
 crop is deficient, and the labour of raising it is partly 
 wasted. If antiquated rules of cropping are enforced, 
 
CH. v.] IMPERFECT CULTURE. 69 
 
 again there is a deficiency of returns, equivalent to 
 a waste of labour. If the crops grown are eaten up 
 by game, the labour of growing them is equally 
 wasted. In these and a thousand other ways the 
 present system of cultivation involves conditions of 
 which the effect is to make much of the labour em- 
 ployed in our fields and barns as unproductive to the 
 community as if the labourers were working in prison 
 on the treadmill. 
 
 Not only is so much spent uselessly, there ought 
 to be spent usefully a great deal more than there is. 
 Every authority in farming agrees that the great evil 
 of English agriculture at the present day is the in- 
 sufficiency of the capital employed. Now capital is 
 stored up labour, and the employment of it would be 
 in supporting additional labour. This labour would 
 be engaged in extending cultivation, in draining land 
 that needs it, in erecting buildings, in attending upon 
 more stock, in applying more manure, in manufac- 
 turing more artificial manures and more improved 
 implements of husbandry, and finally as & result in 
 carrying more grain to market. All this extra labour 
 would be paid for at a profit by the extra profits 
 which its employment would bring in. These profits 
 would be diffused through the community ; first, the 
 farm labourers, being more in demand, would get 
 better wages ; next, the labourers of the manure and 
 implement works would benefit; the rise in these wages 
 
70 NATIONAL INTEREST IN LAND. [CH. v. 
 
 would be partly spent in food, returning to the 
 farmer's pocket what he gave, partly in clothing, 
 to the advantage of the manufacturing districts,, 
 partly in luxuries, and to some extent in books.. 
 With increased profits in one department of industry 
 there would be improved circumstances throughout 
 every class, and every one would in a degree be 
 richer (as well as better fed) if we grew our food at 
 home and paid the home producer for it, instead of 
 paying the producer in another hemisphere. Even 
 the sailors and railway men whose carrying trade in 
 grain and meat would be lessened, would have as 
 much to do in bringing to us the luxuries of other 
 climes, which our saving in the cost of food would 
 enable us to buy. 
 
 It may be worth while to estimate (however 
 roughly) what is the yearly loss to the nation caused 
 by the neglect of proper culture of its own soil. It 
 is calculated by Mr. Caird and other statisticians 
 that the average yield of the British islands is worth 
 in animals and their produce about 126,000,000?.;: 
 in grain and potatoes, 104,000,000?. But of the 
 former class we import annually about 38,000,000?. 
 worth, and of the latter about 54,000,000?. worth. 
 On the whole we grow at home some 230,000,000?. 
 worth of food (including grain used for horses and: 
 cattle, but not grass, hay, or straw) and we import 
 102,000,000?. worth. Now it has often been said 
 
CH. v.] ESTIMATE OF NATIONAL LOSS. 7 1 
 
 by very competent authorities that better culture 
 would double the produce of our home fields. But if 
 we only added a half to the present produce we should 
 save the whole that we now pay to foreigners. Yet 
 let us adopt a very much smaller estimate. I suppose 
 there is not any intelligent farmer who will not admit 
 that, taking the country all over, one-fourth might be 
 added to the gross total of produce by the aid of 
 more drainage, buildings, and manure. If this be 
 so it would give us, on merely the items of human 
 food, an increased value of above 50,000,000^. a 
 year. This sum, or its value in goods, we at present 
 pay to foreign countries. How much is lost in the 
 process of barter ? Clearly at least the cost of trans- 
 port of the goods we import and all incidental profits 
 of middlemen. Taking these at rates equivalent to 
 10s. per quarter of wheat about two ninths of a ton 
 and which, therefore, is a rate of 45s. per ton, and 
 taking the value of wheat at 101. per ton, or 45s. 
 per quarter, we have a net loss of over 11,000,000^. 
 per year on our imports of food. Capitalising this 
 at 3 per cent., it represents a total capital of 
 360,000,OOOL, or not far from one-half the National 
 Debt. This is the loss to the nation, in national 
 labour wasted, by its being applied to manufactures 
 instead of agriculture, or to agriculture under condi- 
 tions that diminish the proper returns it should yield. 
 A loss firstly to those concerned in the production of 
 
72 NATIONAL INTEREST IN LAND. [CH. v. 
 
 food, in their several grades, but ultimately distributed 
 through the whole nation, and equivalent to a poll 
 tax of about 6s. Sd. per head on every man, woman, 
 and child within the United Kingdom. Or, in other 
 words, the present system of cultivation costs every 
 family of four persons 26s. per year, not spent like 
 ordinary taxation on objects of more or less necessity 
 or utility, but as much thrown away as if it were 
 carried into the middle of the Atlantic and there 
 thrown overboard. 
 
 This computation, let it be remembered, is stu- 
 diously moderate. It is restricted to the loss on 
 carriage alone, and its amount would be quadrupled 
 if we were to take as its basis the opinions of such 
 competent judges as Lords Leicester and Derby on 
 the actual deficiency in our returns arising from im- 
 perfect cultivation. 
 
 The conclusion is forced upon us that the present 
 system of culture of land in Great Britain results in 
 a prodigious annual loss of wealth to the nation. 
 It is a loss so large as to bear an important ratio to 
 the amount of national taxation, and it affects not 
 only the persons immediately interested in land, but 
 indirectly the whole community. The community 
 has, therefore, the strongest possible interest and 
 right to have our home production of food increased. 
 If its increase is impeded by any of the laws now in 
 force, the will and duty of the nation to alter them 
 is incontestable. 
 
CH. vi.] ARGUMENTS FOE LARGE ESTATES. 73 
 
 CHAPTER VI. 
 
 OF THE ECONOMIC AND SOCIAL RESULTS OF LARGE 
 AND SMALL ESTATES. 
 
 THE considerations set forth in the last Chapter 
 establish that the present productiveness of the soil 
 of this country is greatly below its possible limits, 
 and that it is of great national concern that it should 
 be increased. We now proceed to enquire whether 
 the deficiency is due to the system of tenure of land 
 maintained by existing laws. The object of that 
 system was shown in Chapter IV. to be the perpetu- 
 ation of large estates, and the means employed are 
 the restriction of the powers of the present possessors. 
 
 The advocates of this system assert that it is in 
 fact the most economically productive. They argue 
 that culture on a large scale admits of a better 
 division and distribution of labour, of the employ- 
 ment of machinery, and of the investment of more 
 capital in improvements and in what is called high 
 farming, than is possible under a system of small 
 estates. 
 
 But in using this argument (whether it be sound 
 
74 LARGE AND SMALL ESTATES. [CH. vr. 
 
 or not) there is apt to be a confusion between estates 
 and farms. Whatever its value, it obviously applies 
 only to individual farms, and has no application to 
 estates consisting of several farms. Every large 
 estate is actually broken up into smaller ones for the 
 purposes of cultivation. Very few farms exceed 
 1,000 acres, and even on the largest estates the great 
 majority of holdings are under 500 acres. But 
 the subdivision for cultivation goes actually much 
 further, and in practice it is found that farms of 300 r 
 200, or even of 100 acres are capable of cultivation 
 with as much economy and success as those of 1,000 
 acres. Here then is a demonstration that it is not 
 for any cultural facility, or economy, or profit, that 
 the law need care to maintain estates of above a 
 few hundred acres in extent. 
 
 Nor does the circumstance that a number of such 
 farms belong to one owner at all make the position 
 of his tenants superior to that of the owner or the 
 tenant of a farm which forms the total extent of the 
 estate. Probably if the property does not consist of 
 more than ten or twelve farms, it may be managed 
 by the landlord in person, but not usually with more 
 liberality to the tenants than if he had only one 
 farm. Above the higher number the probability m 
 that the property is managed by an agent, who is- 
 not seldom a lawyer with little practical knowledge, 
 and who, even if he knows what is required, must 
 
CH. vi.] ESTATES CONSIST OF FAKMS. 75- 
 
 obtain authority for his outlays from a landlord who 
 has little personal knowledge of or interest in the 
 tenantry. Supposing, finally, that the estate is ex- 
 ceptionally large, that fact frequently implies that 
 the landlord has an ample fortune, and here one 
 might say is the special opportunity for beneficial 
 application of capital in improvements. But in this 
 case the landlord often does not care to increase his 
 income, or to help his tenants to increase their pro- 
 fits ; he prefers to let rents remain low as a condition 
 of keeping the tenantry in a certain position of 
 dependence on himself, so as to vote for his nominee 
 at election times, to make no objection to a large 
 head of game, and in a general way to recognise a 
 fitness of things in the subordination of ranks. 
 Every one who knows rural England must be aware 
 that on the majority of very large estates this is the 
 tacit but well-understood system of tenancy. 
 
 It seems obvious, then, that there is no clear 
 advantage to cultivation or productiveness in the 
 existence of estates exceeding in size the extent of a 
 single farm. It is, however, maintained by some that 
 to introduce any legal rules which would favour their 
 division, would be to commence a process which we- 
 could not stop ; that it would rapidly lead to the sub- 
 division of land into patches too small for useful 
 cultivation, that it would substitute peasant proprie- 
 tors for large farmers, and the final result would be- 
 
76 LAEGE AND SMALL ESTATES. [CH. vi. 
 
 to bring the production of the soil of England as 
 low as that of France. 
 
 As it will be seen hereafter that I do not advocate 
 any method of compulsory division of land by inheri- 
 tance or otherwise, I might afford to pass by all 
 objections directed against the results of such me- 
 thods. But, as even the natural operation of social 
 economy, if left unbiassed by law, would undoubtedly 
 tend to diminish the average size of estates in land, 
 down to a point which cannot be precisely fixed, it 
 will be proper to consider the real nature and value 
 of the objection to such a result as that which has 
 been above suggested. 
 
 It would indeed take a volume to answer in full 
 detail the arguments used on this question, and only 
 a few pages can be here devoted to it. Since then, 
 for want of room to cite other authority, I shall be 
 compelled to let a good deal stand on my own, I may 
 be forgiven if I say that at least I have the means of 
 knowing the subject in dispute. I have during all 
 my life been intimately acquainted with, and I have 
 a direct personal interest in, the farming in one of 
 the best managed districts in Scotland ; that of 
 England and of parts of France and Germany I 
 know from observation and intercourse, as well as 
 from books ; and I have myself during the last ten 
 years lived and farmed in Guernsey, an island in 
 -which culture is on the minutest scale. I shall, 
 
CH. vj.] EDUCATION OF FARMERS. 77 
 
 therefore, at least not draw on imagination for any 
 facts, nor compare different systems without knowing 
 their practical working. 
 
 With regard to the alleged superiority of intel- 
 ligence and education of the cultivators of large over 
 those of small farms, it is necessary to keep in view 
 the extremely progressive state in which agriculture 
 at present is. It is barely half a century since drain- 
 ing was extensively practised ; it is not yet forty years 
 since the first experiments were made with artificial 
 manures ; the general use of food for stock, other than 
 that grown on the farm, is of still later introduction. 
 In a single generation these three novelties have 
 revolutionised agriculture. An infinite number of 
 errors have inevitably been fallen into by those who- 
 first adopted them, errors sometimes due to the mis- 
 takes of scientific men, sometimes to the ignorance 
 of practical men, but errors which have been, and 
 still are being, corrected by experience. But different 
 districts have made very different progress in apply- 
 ing the new and valuable knowledge thus attained,, 
 and it is quite impossible to maintain that more 
 progress has been made where farms are large than 
 where they are small. So also, taking any district 
 by itself, it is quite impossible to maintain that the 
 large farmers are, as a rule, more advanced in their 
 methods of cultivation than the smaller. What may 
 be fairly stated is this. In every district the new 
 
78 LARGE AND SMALL ESTATES. [CH. YI. 
 
 systems have been introduced by one or two in- 
 dividuals more enlightened and enterprising than 
 the rest. These have nearly always been cultivators 
 of farms above the size of yeomen's, but beyond this 
 not more often farmers on a large than on a moderate 
 scale. When visible success crowned these first ex- 
 periments, they have been more or less followed by 
 their neighbours, but at this stage quite as promptly 
 by the yeoman as by the large farmer. It has been, 
 in short, an advance of individuals, not of classes, 
 dependent on personal activity of mind, and not on 
 comparative means. 
 
 Agricultural education is, however, making rapid 
 progress. What a few years ago was scouted by 
 farmers of all degrees, is now accepted by all as 
 sound practice. To initiate experiments requires 
 indeed a knowledge so exceptional that it cannot 
 be expected that one farmer in a thousand should 
 possess it. But to observe and adopt results is a 
 process which is within the capacity of all. And the 
 education which is now becoming within the reach 
 of peasants is amply sufficient to guide them in ob- 
 serving and adopting. There are many known to 
 me in only the ranks of peasants in Scotland and 
 Guernsey who are now cultivating their few acres on 
 principles as enlightened, and using scientific results 
 with as much sound judgment and liberal outlay, as 
 the largest tenant farmers or landowners in Great 
 
CH. vi.] USE OF MACHINERY. 79 
 
 Britain. They are also as sensible of the progressive 
 nature of science. The Agricultural Association of 
 Aberdeenshire, a county of moderate-sized farms, has 
 recently led the way in a series of practical experi- 
 ments more carefully devised, and productive of more 
 certain benefit, than any which had previously been 
 instituted by the great and wealthy Royal Agricul- 
 tural Society of England. 
 
 With regard to the proposition that culture on 
 a large scale must be more productive and more 
 economical than on a small, it appears to rest on a 
 superficial acquaintance with the subject. It supposes 
 that machinery can be substituted for manual exertion 
 only where a farm is of large extent. Many machines, 
 however, including those for threshing, grinding, 
 pulping, chaff- cut ting, &c., are just as efficient and 
 useful when of a power that needs only one man, one 
 horse, or a small engine, as when they are much larger. 
 Excellent steam engines are now made of from half- 
 horse to five-horse power, which give a duty practically 
 as high as those of five to twenty-horse power. If 
 the same cannot yet be said of ploughing or traction 
 engines, it is because even on a large scale these are 
 yet too imperfect to be generally introduced. The 
 system of combination of small cultivators is also a 
 very efficient means of equalising their position with 
 that of farmers in a more extensive way. Dairy 
 husbandry used to be considered a branch which 
 
80 LAEGE AND SMALL ESTATES. [CH. vu 
 
 could not be profitably conducted except by those 
 who were able to keep a considerable number of 
 cows. But in France a contractor drives his cart 
 through the villages in early morning and evening, 
 and, as the tinkle of his bell is heard, the thrifty 
 housewives bring the milk cans, containing the pro- 
 duce of their one or two cows, and receive from him 
 the same price which the farmer gets who makes his 
 own butter or cheese by the hundred-weight. In 
 America and in England cheese factories have been 
 established which take any quantity of milk which it 
 may be convenient to the cow-keeper to furnish, and 
 with good profit to themselves are able to pay to 
 those who supply them a remunerative price. So also 
 in the processes of the farm, travelling threshing 
 machines, or ploughing machines, are coming into 
 very extensive use, and are available for farms of 
 every variety. Generally as yet they are of large 
 dimensions, but there will be no difficulty whatever 
 in providing them of smaller dimensions to perform 
 the work of small farms as economically as of large. 
 Those, therefore, who assert that cultivation must 
 be on a large scale to be conducted economically, are 
 simply speaking in ignorance of the facts. Those 
 who assert that farming on a large scale is more 
 efficient, are mistaking facts. It is the small farm- 
 ing, the careful minute diligence which makes every 
 inch of soil do its duty, which brings the proper 
 
CH. vi.] ADDITIONAL LABOUK. 81 
 
 manure to the root of every plant, that evokes by far 
 the largest crops. The market garden which pays a 
 rent five times as high as the adjacent farms, is an 
 indisputable testimony of this truth. It is not 
 merely that the market gardener grows crops of 
 greater value, he grows "ordinary crops also of 
 greater bulk, and he extracts from the soil a greater 
 weight of annual produce than the farmer who uses 
 half the manure and a fourth of the labour. Would 
 it then pay to spend more labour and manures on 
 the ordinary crops of the farm ? That is a question 
 which every agricultural authority without excep- 
 tion will answer in the affirmative. They declare 
 unanimously that more capital, which means more 
 labour and manure, is what British agriculturists most 
 need, and they will agree that there is hardly a farmer 
 in the kingdom who would not make more money if he 
 held half his present acreage. The contrast between 
 our own island and the virgin 'soils of America and 
 Australia tells the same truth. Labour there, partly 
 because it is dear, and partly because land is cheap, 
 is spread over a large surface, but it does not raise 
 larger produce for the amount employed. One man 
 with a pair of horses will till his 150 acres, but he 
 does not raise such bulk of produce as the one man 
 in England who does not with a pair of horses pro- 
 fess to till above half the extent of land. To farm 
 
 G 
 
82 LARGE AND SMALL ESTATES. [CH. vi. 
 
 on a still smaller scale than is now the rule in 
 England would give a still more profitable return 
 for the labour, besides furnishing a much larger 
 amount of produce. There is some confirmation of 
 these views to be found in the fact that, during the 
 recent depression of agriculture, small farmers have 
 suffered less than large. I do not venture to state 
 this as a universal experience, because my personal 
 knowledge is of course limited, but it is undoubtedly 
 the fact that in several localities where good farming 
 prevails it has been impossible to let a large farm 
 without a considerable reduction of rent, while on a 
 small farm, within the compass of one man's labour, 
 there has been no abatement asked, and no lack of 
 offers, at even a rise of rent, when a vacancy occurred. 
 Yet a poor man is even less able than a rich man to 
 stand actual losses, and the inference therefore is that 
 in times of bad seasons and low prices the small 
 farmer has in England suffered less loss than his 
 wealthier neighbours. In other words, where it has 
 been possible to apply a larger amount of labour to 
 the soil, farming has been more successful, and the 
 injury done by bad seasons has been diminished. 
 This result will not seem surprising if we reflect 
 h*ow much may be gained in adverse circumstances 
 by mere watchfulness and care, and by the ability to 
 do at the right moment what ought to be done. This 
 is precisely what the small farmer can do. 
 
CH. vi.] FRANCE AND CHANNEL ISLANDS. 83 
 
 Against this proposition there is usually set th 
 assertion that it is disproved by the results shown 
 by France. We are told that statistics there give 
 the average return of wheat at only 14 bushels per 
 acre, whereas in Great Britain it is 29 bushels. 
 But those who use this argument forget two facts. 
 One is that before the Revolution, when France was 
 a country of large estates, agriculture was in a state 
 so wretched that France in the intervening period has 
 advanced far more rapidly than England in increas- 
 ing her produce. The other fact is that in France a 
 large area of the best land is taken up with vines and 
 other plants which are more profitable than wheat, 
 and therefore the wheat areas in many departments 
 are confined to inferior lands, which necessarily 
 reduces the average of the whole. But the matter 
 can be tested nearer home. In the Channel Islands 
 a nearly equal division among heirs has been the 
 rule for many centuries, and therefore subdivision 
 has long reached its ultimate limits. Under these 
 circumstances farms vary from 50 acres down to a 
 mere patch, the great majority ranging between the 
 limits of 2 and 10 acres. Neither soil nor climate 
 is particularly adapted for wheat, yet the average 
 produce is considerably above the average of England. 
 The rent of land is four times what the same soil 
 would bring in England, and though this is partly 
 due to the climate, which favours early crops and 
 
 o2 
 
84 LARGE AND SMALL ESTATES. [CH. vi, 
 
 gives a longer season of growth, yet it is equally 
 certain that these rents could not be paid if the fact 
 were that the methods of cultivation on so small a 
 scale are in any respect inferior to those which are 
 employed on a large scale in the best-managed dis- 
 tricts of England and Scotland. 
 
 There are certainly in these islands some practices 
 which, to the English farmer, appear uneconomical. 
 He is startled, for instance, at seeing men on their 
 knees weeding the crops, and he thinks that to fatten 
 cattle on parsnips instead of oilcake is antiquated. 
 But if he enquires before he sneers, he will find that 
 in the well pulverised ground a shower would make 
 weeds root so fast that a horse-hoe would only trans- 
 plant them, and therefore it saves labour to pull them 
 up by hand. He will find also that by this careful 
 cultivation the parsnip crop pays in beef a handsome 
 profit on the labour (the gross return is 30. to 40L 
 per acre) which is more than can be said by the best 
 English farmers for their root crops supplemented by 
 oilcake. He will find also that the rate of agricul- 
 tural wages is higher than in the purely agricultural 
 districts in England, and that not an hour of labour 
 is spent by the thrifty peasant on any task that does 
 not yield an ample profit. He will find as a total 
 result that, exposed to the competition of French 
 as well as English importation, and therefore with 
 home markets no higher than in either of these 
 
-CH. vi,] SOCIAL EFFECTS OF LAKGE ESTATES. 85 
 
 countries, the Channel islander, by good cultivation, 
 by careful attention, and by keeping a sharp eye on 
 what he can raise that will bring the best price when 
 exported, is able to make his ordinary crops as well 
 as his extra crops bring him in a profit that gives 
 him a comfortable subsistence, from an extent of soil 
 that does not very greatly exceed the proportions 
 where ' every rood of land supports ' at least one 
 member of a family. 
 
 We see, then, that while under the existing system 
 of large estates, land in England 'fails to fulfil its 
 primary function, that of being in the highest degree 
 ;serviceable to the community, there is reason to ex- 
 pect that under a different system, which would tend 
 to its greater subdivision, it would yield far larger 
 returns. But it is alleged by the supporters of the 
 present state of things that land fulfils other func- 
 tions more valuable to the public, and which would 
 be lost were any serious innovation made in its tenure. 
 It is argued that the maintenance of considerable, and 
 in many cases of immense estates, is essential to the 
 existence of a landed aristocracy, and we are told that 
 such an aristocracy brings with it social advantages 
 so important as to counterbalance any physical losses 
 that may accrue from property being insufficiently 
 productive. 
 
 But with regard to the political effect of an aris- 
 
86 LARGE AND SMALL ESTATES. [CH. vu 
 
 tocracy connected with land, which is a subject too- 
 large to be treated here, it may be sufficient for pre- 
 sent purposes to observe that in so far as a higher 
 intellectual culture is concerned, there is certainly no 
 advantage nowadays perceptible on the side of the 
 landed over the mere moneyed aristocracy. The 
 culture of towns is higher on the whole than that 
 of the country, and landowners may be said to ex- 
 hibit culture pretty nearly in proportion as their life 
 is spent in towns instead of on their estates. With 
 regard to the steadiness of political life and object 
 which is supposed to be contributed by a landed 
 aristocracy to the government of the country, it may 
 also be observed that it appears to be contributed 
 quite as much by a peasantry of landowners, as in 
 Germany, France, and the United States, as by an 
 aristocracy of large landowners as in England or 
 Austria. 
 
 Turning now to the social benefits arising to the 
 nation from the institution of an aristocracy of land- 
 owners, we must here also apply the principle of 
 comparison. No land reformer need wish to deny 
 the charm of much of the rural life of this country. 
 Rich and poor are still knit together by the remains 
 of a warm kindly feeling. The sentiment which 
 honours an old-descended family is, in the majority 
 of instances, justified by the goodness of its inten- 
 tions and its actions. Refinement, culture, know- 
 
CH. vr.] INFLUENCE OF COUNTY FAMILIES. 87 
 
 ledge, are insensibly diffused from rank to rank ; a 
 civilising and progressive influence, moral and intel- 
 lectual, is in perpetual silent operation from the 
 intercourse of the wealthy with those whom they 
 feel to be friends as well as dependents. Nor does 
 the power that is exercised by the wealthy often de- 
 generate into tyranny. As a rule, the local govern- 
 ment of an old county family is paternal in its best 
 form, and the submission that is expected rather than 
 demanded is the consequence of untiring personal 
 efforts to promote the happiness of tenantry, la- 
 bourers, and poor. 
 
 Nevertheless, even in its best aspect, this is a form 
 of social life that it is well for the country should die 
 out. Paternal government is, in its essence, a des- 
 potism ; and if, at one stage, it aids, at another it 
 cramps the full development of those subjected to its 
 sway. In some instances, even if they are exceptions, 
 it is abused, and becomes an instrument of cruel in- 
 justice. But even in its most favourable operation it 
 is only an education, and when the work of education 
 is effected, the submission of pupils to teachers ought 
 to cease. Reciprocal kindness need not vanish, though 
 the relations of the parties are changed to a footing 
 of greater equality. If the influence of old families 
 dies away, it will be because they have done their 
 work. Their place would be taken by slow degrees 
 by the descendants of those whom they had fostered. 
 
88 LARGE AND SMALL ESTATES. [CH. vi. 
 
 Who does not see how much happier England will 
 be when, instead of one great mansion surrounded by 
 miles beyond miles of one huge property, farmed by 
 the tenants at will of one landlord, tilled by the mere 
 labourers, whose youth and manhood know no relaxa- 
 tion from rough mechanical toil, whose old age sees 
 no home but the chance of charity or the certainty 
 of the workhouse, there shall be a thousand estates 
 of varying size, where each owner shall work for him- 
 self and his children, where the sense of independence 
 shall lighten the burden of daily toil, where educa- 
 tion shall give resources, and the labour of youth 
 shall suffice for the support /)f age. Changes like 
 these cannot indeed be created ; they must grow. 
 But our business ought at least to be to permit 
 their growth, and the first step towards it must be 
 to abrogate laws which make impossible, or even 
 difficult, the natural processes of disintegration, by 
 which, when free scope is given to them, land is sub- 
 divided into such properties as the state of social life 
 at the moment may require. 
 
 Furthermore, it ought to be remembered that 
 even such temporary advantages of a social kind, as 
 are claimed for the system of large landed properties, 
 are incompatible with the existence of very large 
 properties. The personal intercourse of the land- 
 owner and his family cannot, in the nature of things, 
 reach beyond the radius of their daily walks and 
 
<CH, vi.] LARGE LANDOWNERS ABSENTEES. 89 
 
 drives. When an estate extends beyond these limits, 
 the inhabitants of its remoter portions are wholly be- 
 yond the civilising influence of the great house. This 
 is obviously also the case where there are properties 
 in several different parts of the country, in each of 
 which there can only be a brief temporary residence. 
 Besides, as the landowner becomes more wealthy, the 
 supposed calls upon him to be absent from his estate 
 increase in urgency. He must spend a fourth of the 
 year in London, perhaps another fourth on the Con- 
 tinent or in yachting, a month in the Highlands, a 
 month or two in visiting, so that his home residence 
 is limited to the shooting and hunting season. These 
 absences are very much more frequent and longer now 
 than they used to be in the days of our fathers or 
 grandfathers, and their tendency is still to increase. 
 But with this result there is palpably a most serious 
 diminution in the beneficial influence which can be 
 attributed to a landowner residing on his own estate. 
 He becomes, in fact, every year more of an absentee ; 
 if the estate is large, he is wholly an absentee to great 
 part of it, and no one has ever maintained that ab- 
 sentee landlordism is an institution which is good for 
 a country. 
 
 On the whole, then, the conclusion to which we 
 must come on a fair investigation of the facts is that, 
 nowadays, and more and more with every year's lapse, 
 the benefit from the maintenance of large estates, is 
 
90 LARGE AND SMALL ESTATES. [CH. vi, 
 
 an inadequate compensation for the loss of happiness 
 which follows from the exclusion of a larger number 
 of persons from the possession of land. When we add 
 to this conclusion the fact that large estates, such as 
 exist in England at present, do not afford the maxi- 
 mum of production, we are forced to the conviction 
 that there is, at least, no presumption in favour of 
 the laws which tend to maintain the existing state of 
 things. 
 
CH. vii ] AGKRICULTUEE EEQUIKES CAPITAL. 91 
 
 CHAPTEK VII. 
 
 OF THE RESULTS OF RESTRICTED POWERS OF 
 OWNERSHIP. 
 
 HAVING satisfied ourselves that the object aimed at 
 by the restrictive laws applicable to the land, viz. r 
 the preservation of great estates, is in no sense ad- 
 vantageous to the public, we are now to examine the 
 operations of the means employed for that object. 
 These* means, it will be recollected, are the laws per- 
 mitting land to be settled and to be mortgaged. 
 
 It is a primary condition of good cultivation that 
 a large amount of capital must be invested in the 
 business. Land, as has been shown, is not a peren- 
 nial fountain of wealth from occult and inexhaustible 
 sources ; it is merely the instrument by which the 
 powers of nature work out the task of converting 
 into food the materials which we supply. From all 
 ordinary soils we can gain only what we put in, 
 converted into a useful shape, and therefore to gain 
 much we must spend much. This outlay divides 
 itself into two classes : firstly, that required to fit 
 
1*2 RESTRAINTS ON OWNERS. [CH. vn. 
 
 the land for cultivation buildings, drains, roads, 
 fences and secondly, that required in actual cul- 
 tivation, labour, machines, and manures. The first 
 class is usually considered the landlord's part, the 
 second the farmer's. But obviously, before the 
 farmer can profitably invest his capital in culture, 
 the landlord must have rendered the land fit for cul- 
 ture. And further, before the farmer, if he is not 
 the owner, can safely invest his capital in labour and 
 manures, the landlord must agree to secure its return, 
 either by a lease or some similar stipulations. 
 
 This expenditure of both classes is becoming 
 mere imperative every year. Scientific agriculture, 
 which only means agriculture founded on knowledge 
 of the natural laws of the growth of plants and 
 nutrition of animals, is the only form of agriculture 
 which is now profitable, or which indeed in the face 
 of foreign competition is now possible. That it is pro- 
 fitable is the testimony of all who have judiciously 
 (that is really scientifically) put it in practice. It 
 has no immutable counsels ; it varies in every district 
 with local circumstances, climates, soils, labour, and 
 markets ; but it involves one inevitable condition, 
 that money must be invested. It is vain to farm 
 highly on undrained land ; it is futile to fatten beasts 
 or keep dairy cows in unsheltered yards ; it is impos- 
 sible to compete with foreign machinery unless pro- 
 vision is made for using machinery at home. Every- 
 
CH. vn.J APPLICATION OF CAPITAL. 93 
 
 where, therefore, outlay is demanded in the per- 
 manent improvement of land. Every year, also, as 
 the farmer's outlay in labour and manure becomes 
 larger, it is necessary that he should obtain more 
 definite assurance that he shall have time to get it 
 returned in produce. So that the essential prelimin- 
 ary condition of successful farming must now be said 
 to lie in the investment of capital by the landlord, 
 and the granting of liberal leases to the tenant, if 
 the landlord does not himself farm. 
 
 Now how are these conditions affected by the 
 laws we are considering? Cases may be conceived 
 in which they are unaffected. If a landlord of an 
 estate in which he has only a life interest be a wealthy 
 man, and if his heir be one for whom he is willing 
 to make exertions and sacrifices, all may be well. 
 But the reason will be that in such a case the laws 
 do not come into play at all, for the owner would 
 have dealt with the land and the succession to the 
 land in the same way if he had been under no restric- 
 tion. Take, however, the cases in which the laws do 
 operate. Suppose that the property is settled upon 
 an heir whom the present possessor dislikes, is it pro- 
 bable that he will spend money for that heir's advan- 
 tage ? Suppose that the present possessor has a 
 family of daughters, is it likely that he will diminish 
 their portions to enhance that of the son, or the more 
 distant male heir ? Suppose that the present pos- 
 
94 RESTRAINTS ON OWNERS. [CH. vn. 
 
 sessor is not wealthy, but has only the income of the 
 land, after paying interest on debts, to live upon, is 
 it likely that he will borrow at 7 per cent, to im- 
 prove the land for a future generation ? Suppose 
 that the estate, whether settled or not, is deeply 
 mortgaged, is it likely that the owner will in any 
 way be able to improve it ? No answer but one can 
 be given to these questions. Yet they suggest cases 
 which are exceedingly common, if not in some 
 respects the most common which do occur. 
 
 It is, in fact, evident that we violate those prin- 
 ciples of human action which political economists 
 rely upon as the strongest motives of production and 
 of accumulation when we establish such artificial rules 
 of property. The purpose of permitting inheritance 
 and the right of bequest is to induce men to provide 
 for those whom they love, and to work in order to 
 amass such provision. If the State were to confis- 
 cate every man's property at his death, he would have 
 no motive to augment it during his life. But there 
 is no difference in effect between the State confiscat- 
 ing, and the State transferring to an individual whom 
 the owner of the property dislikes. It may even be 
 said that in many cases a man would prefer that his 
 property should be taken by the State, rather than 
 be handed to a detested successor. Certainly, if it 
 is not to benefit a person who is loved, but a person 
 who is hated, the motive will be not to improve but 
 
CH. TIL] MOTIVES AGAINST IMPKOVEMENTS. 95 
 
 rather to deteriorate the property. When, then, an 
 estate must pass, by the terms of a deed of settle- 
 ment, to an individual whom the present possessor 
 regards with disfavour, that is, to whom, if he had the 
 power, he would not leave it, we certainly give him 
 every reason to stop whatever processes might tend 
 to increase its value. No prospect of immediate 
 benefit to himself will outweigh the influence which 
 the prospect of a hated heir reaping the ultimate 
 benefit will exercise upon his mind. 
 
 Nor can it be urged that these motives of action 
 are such as, though natural, at least ought not to be 
 indulged. It may happen occasionally that the life- 
 tenant takes an unfounded prejudice against his heir. 
 But it may happen, and probably more frequently, 
 that the disapproval is merited and just. The eldest 
 son may be a spendthrift, or undutiful, or a scoun- 
 drel ; all the same, he must become the proprietor of 
 the estate. No matter how different the character of 
 the other members of the family may be, they must 
 be excluded. When we take the frequent case of an 
 estate settled on heirs male, it needs not that the 
 nephew or cousin, who takes in default of sons, should 
 be a reprobate, to make him inevitably less a favourite 
 than the daughters whom he is to exclude. In all 
 these events the tenant for life is warranted in pre- 
 ferring those to whom he cannot give the estate to 
 the individual to whom it must go, and he is there- 
 
96 RESTRAINTS ON OWNERS. [CH. vn_ 
 
 fore justified in giving as little as he possibly can to 
 the heir whom the will of others has provided ta 
 supersede his own better informed judgment and 
 natural affection. 
 
 It is, indeed, one of the cruel and impolitic ano- 
 malies of the present laws, that even money which 
 in the hands of its possessor is subject in every way 
 to his pleasure, becomes, the moment it is applied to 
 improving a settled estate, subject to the rules of the 
 settlement. And as the essence of such settlements 
 consists in the land passing to an heir selected by the 
 original settlor, every improvement on the estate in- 
 volves for its consequence that the present possessor 
 must resign some rights of his own, some powers to 
 do what he likes with his own funds, and subject 
 them to the arbitrary pleasure of the owner from 
 whom he has received a mere life interest in the 
 land. To expect, then, that the holder of such a 
 life interest shall often be thus liberal is to expect 
 more from human nature than it can give, more 
 than in many cases ought to be given. It becomes, 
 in frequent instances, an absolute duty in the life 
 owner to abstain from increasing the value of the 
 estate, and rather to devote his private means to 
 making a provision for those to whom the estate will 
 not pass. Can any absurdity be conceived in legis- 
 lation respecting property greater than this, that the 
 laws should be so framed as to make it wicked to 
 cultivate the soil so as to produce most food ? 
 
<c*. vii.] FAMILY JEALOUSY. 97 
 
 But the injury is not alone to the land, nor the 
 wrong done only in the pecuniary hardship to its 
 possessor and those whom he loves best. There is 
 another evil, perhaps even greater, in compulsory 
 heirship. Between the son, who knows he must suc- 
 ceed, and the father, who knows his son must succeed 
 him, there is set up the involuntary jealousy of pro- 
 perty, which only rare natures can defy to hurt. The 
 dependence of a son upon his father is a legitimate 
 provision of nature which these land laws extirpate. 
 The father's free voluntary love for his son changes 
 its character towards the expectant and inevitable 
 heir, who, with fuller powers, will take his place at 
 his death. Nothing can be conceived more poisonous 
 to family kindness than the setting up of conflicting 
 rights of property within the family circle. This is 
 no mere sentimental apprehension. It was one of 
 the felt evils which Coke and Blackstone declared 
 moved the English Parliament to abolish entails. A 
 generation had passed after Coke wrote when what 
 Parliament had abolished was revived in a changed 
 form by the cunning device of a Chancery lawyer, 
 who first invented the modern method of transmit- 
 ting estates to persons unborn. But though the device 
 failed to tie up the estate beyond one series of heirs, 
 yet it is precisely in that limited scope that the do- 
 mestic mischief arises. ' Children,' says the Conser- 
 vative Blackstone, ' grew disobedient when they knew 
 
98 EESTRAINTS ON OWNERS. [CH. viu 
 
 they could not be set aside ' under the law of entails, 
 but the heirs under a settlement cannot be set aside ; 
 and thus the evil work of the entail system is revived 
 and continued. 
 
 It is, indeed, not a little extraordinary that Par- 
 liament, which, three hundred years ago in England, 
 and thirty years ago in Scotland, pronounced entails 
 a public mischief that could not be endured, should 
 yet permit the very same principle to be established 
 by creating estates for life. What is intolerable for 
 two generations must be contrary to sound principle 
 even for one. When it is declared contrary to public 
 policy that land should be secured to an unborn great 
 grandson, it cannot be right that it should be secured 
 to an unborn grandson. If it were always right that 
 land should be preserved in the family, the Legisla- 
 ture ought to make the rule universal. If it deems 
 this not to be right, it is not justified in permitting 
 an individual to create a law for one estate which is 
 not suitable for all, a law which does not come into 
 operation till his own interest has vanished, and which 
 is incapable of repeal by those who, at the time when 
 it does take effect, have the best means of knowing^ 
 whether it is fitting or disastrous. 
 
 The owner of land over which a mortgage has 
 been granted is, in some respects, as much hampered 
 in his action as if he had only a life interest in it. 
 
CH. VIT.] EFFECT OF MORTGAGES. 99 
 
 By the law of England, the legal estate passes to the 
 mortgagee ; the mortgagor has no longer the powers 
 of owner. In the courts of equity, and in Scotland, 
 the mortgagee is, however, regarded only as holding 
 an interest in the land in security for payment 
 of the debt due to him. But viewing the transaction 
 even in this more favourable light, it places the 
 mortgagor, or original owner, in a false position. To 
 the world he appears unencumbered. He is reputed 
 owner of the land, and if his title is subject to heavy 
 drawbacks, he at least prevents anyone else from ac- 
 quiring a better. But at the same time, he has bound 
 himself to pay a fixed rent charge. While his income 
 is subject to fluctuation, and may be seriously di- 
 minished by the occurrence of bad seasons, a fall in 
 prices, or failure of tenants, the interest on the 
 mortgage must be paid without delay or abatement. 
 Hence he has to meet all the risks of property out 
 of a mere margin. He has also to perform all the 
 duties of property with only a fraction of its receipts. 
 And besides these legal and moral obligations, he has 
 to maintain the social position to which the extent 
 of his land entitles him. This, indeed, is an optional 
 burden ; but it is like a debt of honour, more likely 
 to be discharged than others which are fortified by 
 legal sanctions. 
 
 It is hardly, therefore, to be expected, because it 
 is hardly practicable, that the owner of a mortgaged 
 
 H 2 
 
100 RESTRAINTS ON OWNERS. [CH. vn. 
 
 estate should improve it. The fact of the mortgage 
 implies the fact of want of means. A further mort- 
 gage (even if possible) generally involves a higher 
 rate of interest, an advance from a Land Improve- 
 ment Company involves repayment of the principal 
 by annual instalments. Neither resource is available 
 to a man whose income is already overburdened and 
 forestalled. 
 
 Undoubtedly the situation of such an owner is 
 better than that of the owner of a settled estate in 
 that he has full control over the reversion. He may 
 select his own heir, and therefore he has a motive to 
 improve the estate. But what does this avail when 
 he has not the means of improving ? 
 
 He may indeed sell. By so doing he would relieve 
 himself from embarrassment, and materially augment 
 his income. But he does not choose. To sell even 
 part of his property would diminish his importance ; 
 it would be a wrench to his feelings of pride in his 
 ancestry and in his acreage. The law which sanctions 
 mortgages enables him to keep up false appearances, 
 and human nature prefers the show to the substance. 
 But to keep up the fictitious position it is necessary 
 to spend on himself and his family, on equipages, 
 dress, and living, the small balance remaining to him 
 of his rental, and the land must therefore be starved. 
 The situation is summed up in a few words. There 
 are two owners of the land, the mortgagor and the 
 
CH. vii.] OPEKATION OF RESTRAINTS. 101 
 
 mortgagee. Of these the former has possession with- 
 out means of cultivation, the latter has the means 
 without the possession. Between the two the land 
 is left unimproved and half-cultivated. No tenant 
 with skill and capital will take a farm on a heavily 
 mortgaged estate, for he knows that he must farm 
 under one, who with the best dispositions must, from 
 his situation, be a poor, and therefore a bad, land- 
 lord. 1 
 
 Such are the consequences of the twin rules of 
 law which sanction settlement of estates and mort- 
 gages. Evil as they are in separate operation it is 
 needless to enter into an examination of their effect 
 when, as so often happens, they are in combined 
 force. For most settled estates are mortgaged, either 
 to external creditors, or to members of the settlor's 
 family by way of family charges. 
 
 These facts explain why land in England produces, 
 
 1 If these remarks should appear to anyone too strong, Jie 
 may be glad to know the opinion of the Marquis of Salisbury, 
 who at least is not a revolutionary reformer. Speaking at Wat- 
 ford on Dec. 9, 1879, Lord Salisbury is reported to have said : 
 4 There is no tenure more destructive to the well-being of a 
 country, more destructive to the relations between landlord and 
 tenant, and fatal to improvements, than the holding of land by 
 a man whose land is so heavily mortgaged that he has no further 
 direct interest in the property.' In this extreme case his lord- 
 ship recognised an extreme mischief, and it follows that, when 
 the cause is less in degree, the mischief will still occur to a 
 more or less mitigated extent. 
 
102 RESTRAINTS ON OWNERS. [CH. VH. 
 
 as those who best know its capabilities assure us, 
 only half the crops it might grow ; and why the best 
 farmers in the realm are now so rapidly transferring 
 their skill and capital to countries where they can 
 farm their own land, and where no landlord in- 
 terposes to arrest midway the profits of their toil, 
 by forcing them to cultivate under conditions that 
 prohibit the returns which Nature is ready to grant. 
 
 It may be convenient here to glance at certain 
 slight modifications of these laws which leave their 
 principle unaffected but which have been suggested 
 with a view to abate their admitted noxious in- 
 fluence. 
 
 I. Abolition of the rule of primogeniture. 
 
 Undoubtedly this would be a proper step, and it 
 would both have a certain direct and by degrees a 
 much larger indirect influence. But the rule being 
 now, as it still would be, strictly optional, we cannot 
 attribute to it many of the evils we have examined, 
 nor expect from the alteration any material correction 
 of them. The change would strengthen the senti- 
 ment of natural justice and equality in families, but 
 it would have no effect at all in increasing the power 
 of an owner over his settled property, nor his means 
 for beneficially managing it if these are deficient. 
 
<CH. vii.] SLIGHT AMENDMENTS. 103 
 
 II. Restriction of powers of settling estates to 
 lives in being. 
 
 This also would be an utterly insignificant amend- 
 ment of the law. It was pointed out (p. 53) that the 
 power of limiting estates to life only is already confined 
 to lives in being, and the infancy of an heir unborn at 
 the date of the settlement, simply because during in- 
 fancy such an heir cannot exercise his legal right of 
 acquiring and disposing of the fee simple. It would, 
 therefore, be a mere verbal juggling to declare that 
 living persons may still be placed under restriction, 
 but that an unborn person shall at once on succeeding 
 become possessed of the fee simple. Estates would 
 by such a rule be as absolutely tied up from beneficial 
 use by the existing generation as they are at present. 
 
 III. Powers of sale for settlor's debts. 
 
 It has been already shown that this concession, 
 proposed in the Land Bills of Lord Beaconsfield's 
 Government is entirely illusory. It would only give 
 generally the powers that nearly all settlements give 
 already, and would do nothing at all towards liberat- 
 ing owners of land from the burdens which their own 
 extravagance, or it may sometimes be their own 
 sense of justice and affection, have laid upon them, 
 and which make impossible the due improvement of 
 the land of which they are the life-owners. 
 
104 KESTKAINTS ON OWNERS. [OH. vn. 
 
 IV. Simplification of conveyancing. 
 
 Very little can be effected in this direction white 
 the power of creating a variety of interests in land 
 continues. Deeds may be shortened by compelling 
 the use of brief phrases with the statutory sense 
 of long ones ; registration may make the title more 
 secure ; and law and equity may be reconciled by 
 declaring that mortgages shall be deemed only 
 securities, but when all this (which is all that is 
 proposed by the merely professional reformers) is 
 effected, the law of England will simply have reached 
 the stage at which the law of Scotland already stands. 
 But in Scotland conveyancing is still complex, and 
 therefore expensive, because the law there, as in 
 England, allows each owner to hamper his successor 
 with burdens and restrictions, with trusts and charges 
 on the land. Were these cleared away land might, 
 when the parties are satisfied of its identification, be 
 transferred as easily and cheaply as consols. But 
 while these interests, less than ownership, are allowed 
 to be created, there can be no simplicity of transfer, 
 because the title of the transferror cannot in general 
 be simple. 
 
 It is equally clear that, though every one of these 
 reforms were carried, nothing would be done either 
 towards favouring the diminution of excessive estates, 
 or towards fostering the application of capital to their 
 
CH.'VII.] SUCH KEFOKMS USELESS. 105- 
 
 improvement. Every legal obstacle, and every per- 
 sonal motive, which under the present system stands 
 in the way of transfer of property, of sale for pay- 
 ment of debt, and of investment of capital in good 
 cultivation, would remain as powerful as ever. This, 
 being the case, the nibbling at legal reform in the 
 direction which has been referred to need not further 
 occupy our attention. 
 
106 RESUMPTION OF LAND BY THE STATE. [CH. vm. 
 
 CHAPTEE VIII. 
 
 OF PROPOSALS FOR RESUMPTION OF LAND BY 
 THE STATE. 
 
 THE obvious evils and anomalies of the present system 
 of land tenure have led to the suggestion of a variety 
 of remedies. Some of these propose to meet the 
 exigency by the direct assertion of the right of the 
 State to resume the land, in whole or in part. In 
 this chapter we shall pass rapidly under review the 
 leading methods which have been recommended to 
 effect this purpose. 
 
 I. Nationalisation of Land. 
 
 The scheme which commonly receives this name 
 has been advocated by Mr. Herbert Spencer, and in 
 one modification it was recommended by Mr. J. S. 
 Mill for adoption in Ireland. Under the broader 
 form of the proposal the first step is that the State 
 shall purchase the land from its present owners, 
 either compulsorily, or by agreement, but in either 
 
<JH. TIII.] NATIONALISATION OF LAND. 107 
 
 case paying to them its full value. The next step 
 is to divide it into suitable portions and to hand it 
 over to the cultivators, either permanently, for the 
 consideration of a price to be paid by instalments, 
 (which was the method favoured by Mr. Mill), or for 
 a limited period, for the consideration of the best 
 rent that can be got by competition, which is the 
 method insisted on by Mr. Spencer as the only one 
 consistent with the rights of the community. 
 
 Mr. Spencer places this proposal on the high 
 ground of abstract justice. He starts from the un- 
 questionably true principle that every man has right 
 to the full exercise of all his faculties, except in so 
 far as such exercise would interfere with the similar 
 rights of others. He argues that private property 
 in land is incompatible with this original right, be- 
 cause it prevents those who are not owners from ex- 
 ercising their faculties in the cultivation or enjoy- 
 ment of land if they should be so minded. But he 
 considers that if the State should take possession of 
 all land, and should lease it out to the highest bidders, 
 exclusive possession by such bidders would not be 
 unjust to others, because any one else might have 
 obtained possession if he had been willing to pay 
 more to the State for the privilege. 
 
 It is difficult, however, to see a sound distinction 
 in principle between a temporary and permanent ex- 
 clusion. If a man wishes to exercise his faculties in 
 
108 EESUMPTION OF LAND BY THE STATE. [CH. VIIK 
 
 farming in the year 1880 it is no satisfaction to him 
 to be told that he might have had the opportunity in 
 1879, or he may have again the opportunity in the 
 year 1900. He may also reasonably say that, though 
 in 1879 he was willing to give only 20s. an acre of 
 rent, yet if in 1880 he is willing to give 25s. he is, on 
 Mr. Spencer's principle, entitled to exclude from pos- 
 session the present tenant who only gives 20s. This- 
 principle, then, would make leases granted by the 
 State valid for only one year, and would require that a 
 fresh opportunity of bidding against each other should 
 every year be afforded to all who desire to farm. 
 Mr. Spencer does not, in point of fact, say what 
 length of endurance the State leases are to have. 
 
 But if the State may justly grant a title of ex- 
 clusive possession for even one year, it may, on the 
 same principle, grant it in perpetuity. For when it 
 is conceded that for the public benefit men may be 
 excluded from the exercise of their faculties during 
 even the shortest period, provided others are willing 
 to pay for the privilege of excluding them, it is clear 
 that a higher payment would justify a longer exclu- 
 sion. So then, if a purchaser in perpetuity would pay 
 more to the State than a tenant, the State would be 
 justified in selling. From which we come to the con- 
 clusion that the principle of abstract justice would 
 be fully satisfied if the State were to buy up all exist- 
 ing properties and then to sell them again to the 
 
CH. vin.] STATE AS LANDLORD. 109 
 
 highest bidders. It would thus assert its supreme 
 rights ; it would make the best bargain for all the 
 community ; it would afford to every individual the 
 opportunity for the exercise of his faculties ; it would 
 re-distribute the land among the wealthiest in the 
 community ; and then things would go on exactly 
 as before. After which the process might be repeated 
 with the same results. 
 
 But even if we stop short of the assertion of ab- 
 stract rights of men to the exercise of their faculties 
 in farming, and consider only the cardinal re- 
 sults of the State becoming the universal landlord, 
 we shall hardly find the system beneficial to the 
 public. There is, of course, no objection in principle 
 to the State taking possession of all the land in the 
 realm, on the understanding, which is always in- 
 cluded in the proposal, that it shall compensate the 
 present owners. But how is it to perform the func- 
 tions of landlord ? These, as we have seen, in- 
 volve very heavy and continuous outlay, and such 
 outlay must be made by the landlord in all cases 
 in which the tenancy is at rack rents and for short 
 terms. A private landlord of the best class, looking 
 very closely after his own affairs, can just make 
 such outlay pay ; but it is quite certain that the 
 State, which must manage its property through 
 agents, contractors, and officials at desks, would, be- 
 tween fraud and negligence, do much which it ought 
 
110 RESUMPTION OF LAND BY THE STATE. [CH. vnr. 
 
 not, and fail in much which it ought to do, and both 
 at a heavy cost to the public. But the interests of 
 the actual cultivators would equally suffer. If it is 
 assumed by the principle that the leases are only to 
 be of short duration, and that the land is again to be 
 exposed to general competition, a tenant would have 
 no inducement to farm well, and every inducement 
 to farm badly. Even if the lease were for his life 
 its duration would be too uncertain to allow him 
 to risk capital. Something at present is risked 
 even by tenants-at-will, because of their confiding in 
 the good feeling of their landlord ; but when the 
 landlord becomes a body without feelings, and com- 
 pelled by the rights of man to give every one a chance 
 of evicting the actual cultivator at frequent intervals, 
 the result could only be that each successive tenant 
 would take all he could out of the land while putting 
 nothing in, and thistles and couchgrass would soon 
 be the main crops produced by the State domains. 
 
 This certainty of bad cultivation could only be 
 obviated by the State granting the lands in per- 
 petuity, either for a price, or for a rent, or for a 
 rent which in a certain number of years is calculated 
 to pay up the price, which was the substance of Mr. 
 Mill's proposal in the case of Ireland. In all cases 
 we should have a new set of private owners instead 
 of the old set. The estates might at first be smaller^ 
 but as the power of transfer must be included in the 
 
CH. vm.] APPLICATION TO IEELAND. Ill 
 
 arrangement, if there are any economic laws which 
 tend to the growth of large estates, large estates 
 would again grow up. Let us grant, however, that 
 the immediate object of effecting a subdivision is 
 deemed worth the attempt, and let us see what cost 
 it would involve to the State, and what consequences 
 would follow to the new owners. 
 
 Mr. Mill made his proposals in reference to Ire- 
 land at a time when the social condition of that 
 country caused land to be very cheap, i.e. purchase- 
 able at a rate which was little over twenty-one years' 
 rental, being a return of nearly 5 per cent, on the 
 purchase-money ; while the rents were then, as they 
 in general are now, considerably under the annual 
 value of the land. He was, therefore, able to show 
 that the State, borrowing at 3 per cent., might pay 
 the market price to the landlords, while it might 
 reasonably expect that the tenants would be able to 
 pay not only interest on the purchase-money, but a 
 further annual sum towards its redemption, so that in 
 a moderate number of years they would, without any 
 loss to the public, become unencumbered owners of 
 the fee simple. 
 
 Bnt none of these conditions apply to land in 
 England and Scotland, and now their application, 
 even in Ireland, owing to the rise in the price of 
 land, is materially altered. Within Grreat Britain 
 land brings in general a rental fully equal to its 
 
112 EESUMPTION OF LAND BY THE STATE. [CH. vin. 
 
 value, and a price far beyond its value. For being, 
 as we have seen, not merely purchased as an invest- 
 ment, but as an element of enjoyment, the price ob- 
 tained for it is usually above thirty years' net rental, 
 which makes the interest yielded on the purchase 
 money only 3 per cent. But from even this has to 
 be deducted all the landlord's inevitable outlays in 
 maintenance of farm houses and buildings, of water- 
 courses and roads, of fences and drains, quite inde- 
 pendently of any further outlay in improvements. 
 These reduce his real returns, on an average of years, 
 to barely 2 per cent, on the purchase money. Hence, 
 if the State were to retain the land in its own hands, 
 while continuing the leases to tenants, the financial 
 result would be that it would have borrowed at 3 per 
 cent, to receive only 2 per cent. 
 
 Now, what would be the result if the State, in- 
 stead of holding the property as landlord, acts merely 
 as the intermediary of transfer to another owner in 
 fee. It will have borrowed the full price at 3 per 
 cent. The tenant (whom we will suppose to be the 
 purchaser from the State) will henceforth have to 
 perform the part of landlord in executing all repairs, 
 and therefore the old rent, subject now to that de- 
 duction, will only be net 2 per cent. Either, then, 
 the State, or the tenant purchaser, must find the odd 
 1 per cent. If the State makes it up, it loses heavily. 
 If the tenant-purchaser makes it up, his rent is at 
 
CH. viii.] PUKCHASEKS COULD NOT PAY. 113 
 
 once raised by 30 per cent. But, besides this, he is 
 expected to pay off the price itself by instalments of 
 1 or 2 per cent, a year. This is equivalent to nearly 
 or quite doubling the original rent. Hence, if the 
 State is to be merely reimbursed its outlay, the pur- 
 chaser from it must pay during twenty or thirty years 
 double the present rent in interest and instalments 
 of price with 30 per cent, additional, to make up 
 the difference between interest yielded by invest- 
 ments in land and by investments in consols. In 
 the great majority of cases this could not be done. 
 Grant that the stimulus of ownership would promote 
 exertion and improvement, yet it must be remem- 
 bered that improvement of land is a very slow pro- 
 cess, one in which five, ten, twenty years must be 
 allowed before any very material results are attained, 
 and one which demands not merely labour, but money. 
 How is the rack-rented tenant to find money for im- 
 provements and for instalments of the price, at the 
 same time that he has to take all the risk of bad 
 seasons, without the smallest hope of indulgence 
 from the inevitably cruel creditor, the State ? 
 
 The truth is that all these schemes omit to take 
 into account some practical facts. Not only is land 
 (for the reasons already given) at present over-priced ; 
 it is in very many cases over-rented. The rents offered 
 by tenants, or fixed by valuation, are too often fixed 
 
114 KESUMPTION OF LAND BY THE STATE. [CH. vm. 
 
 on an expected average of fairly good seasons.' When 
 bad seasons come, it is tacitly expected that the land- 
 lord shall make an abatement. It is almost enforced 
 upon him by the fact that, if he does not, the tenant 
 cannot pay. Private landlords, for the most part, 
 make the concession. But when rent is a financial 
 operation entered into witlr the State, or as a basis 
 of dividends payable to the national creditor, how is 
 the contingency of bad seasons to be met ? We may 
 see the answer in India. The State cannot afford 
 any allowance for bad seasons. To make its calcula- 
 tions come correct it must exact the same rent in all 
 years. The cultivator, therefore, must incur debt to 
 pay the rent in bad seasons. But debt means loss of 
 means to farm well, and bad farming with a fixed 
 rack-rent means bankruptcy of the farmer. 
 
 It may be well, however, to recall that what are 
 known as the ' Bright Clauses ' in the Irish Land Act 
 have a very much smaller scope than the scheme of 
 purchase and resale by the State which has been 
 now reviewed. They contemplate only the advance 
 by the State to the purchaser, under certain condi- 
 tions, of a portion of the price, assuming that he has 
 paid the other portion of the price in cash. In cases 
 where the purchaser has really had the cash lying in 
 his hands, this method of granting him an advance 
 by way of mortgage may not cause serious difficulties, 
 for the interest on it will only bear a moderate pro- 
 
CH. VTII.] PEUSSIAN LAND REFORMS. 115 
 
 portion to the annual returns of the land. But if he 
 has borrowed from a private person the amount which 
 he has paid in cash, his position is no better than if 
 he had borrowed the whole from the State. The re- 
 sult will still be that he will have bound himself to 
 pay more, whether as interest or as rent, than the 
 land can in average seasons produce, and very much 
 more than he can pay when bad seasons occur. 
 
 The aid given by the State in Prussia to the 
 peasants, for the purpose of enabling them to free 
 their lands from the services due to the lords of the 
 manor, was of a totally different character, and was 
 not open to the objections which exist to the schemes 
 above considered. The land in Prussia already, in 
 point of fact, belonged to the tenant. His rent in 
 money, if any was due at all, was trifling ; the bur- 
 den to which he was subject was chiefly the perform- 
 ing of certain labour for the lord. The burden was 
 commuted into a cash sum, which was advanced by 
 the land banks, and which the peasant bound himself 
 to repay to the bank in a given number of years. It 
 amounted, on an average, to only a few shillings per 
 acre. It is obvious that this formed a very moderate 
 rent charge, thoroughly within the value of the land, 
 which in all other respects was clear. The principle 
 was, in fact, similar to the redemption of land tax 
 and tithe in this country. No analogy exists between 
 an arrangement for thus clearing off a vexatious, but 
 
 i 2 
 
116 EESUMPTION OF LAND BY THE STATE. [CH. VHU 
 
 really trivial impost on freehold property, and a de- 
 vice for enabling persons to purchase land from others 
 by advancing to them the whole, or nearly the whole 
 price at a rate of interest which is above the net re- 
 turns the land is capable of yielding. 
 
 It is obvious, then, that all hope of advantage 
 to the cultivator from the intervention of the State 
 to establish him either as permanent tenant or as 
 owner, must vanish if the State pays, and charges, 
 the full value for the land. By full value is meant 
 the amount which the original owner could get if he 
 sold or let to a private person. To force a sale at less 
 than this would be confiscation of the difference. 
 But the State, if paying full value would make a 
 ruinously bad bargain for the public, and at the same 
 time it would of necessity be a ruinously hard credi- 
 tor of the purchaser or the tenant to whom it trans- 
 ferred the possession of the land. 
 
 A scheme has been proposed by Mr. Lorimer, Pro- 
 fessor of Public Law in the University of Edinburgh^ 
 in which the part of the State in these operations 
 of transfer would be taken by private individuals, or 
 companies. His suggestion is that these should buy 
 up large estates as they came into the market, and 
 let them in moderate or small portions in perpetuity, 
 at fixed rents, to the highest bidder. Professor Lori- 
 mer thinks that the owners of these estates would 
 
CH. viii.] PROFESSOE LOEIMEE'S PEOPOSAL. 117 
 
 have a security so excellent that they would be satis- 
 fied with a low rate of interest, and that the tenants 
 in perpetuity would be so safe in possession that they 
 could afford to give a high rent. But it can at best 
 not be expected that the rent will be higher than 
 the difference between the farmer's total profits and 
 the interest on his own capital, and 'if the land- 
 lord is no longer to execute repairs, the tenant's 
 capital must be so much the larger. Now, as we 
 have seen that the landlord, after executing repairs, 
 receives a net interest on his purchase of only 2 per 
 cent., it is hardly conceivable that a tenant who un- 
 dertakes repairs should be able to pay to the land- 
 lord a certain and perpetual 3 per cent. The experi- 
 ment might be very well worth trying, at private and 
 philanthropic risk, but it does not seem to offer a 
 prospect of commercial success. It might, however, 
 be very properly put in force in the case of land 
 already owned by existing companies. It would be 
 without loss to them, for they have already made 
 their investment, and any rise of rent obtained by a 
 grant of perpetual leases would be so much rise of 
 interest to the shareholders. And it is not for the 
 public advantage that companies should be the 
 owners of land, since they must be absentees, and 
 must manage by agents. 
 
118 KESUMPTION OF LAND BY THE STATE. [CH. mi. 
 
 III. Appropriation by the State of the ' unearned 
 increment of value of land.' 
 
 This scheme deserves the more attentive con- 
 sideration because it is recommended by the autho- 
 rity of Mr. J. S. Mill. Like that last considered it 
 assumes the ultimate right of the community to 
 the land, but it does not involve actual transfer 
 of possession from the present owners. The argu- 
 ment on which it rests is that by the mere increase 
 of population and wealth land rises in value, and 
 that, as this is not gained by any labour on the part 
 of the owner, he is not entitled to it, and the public 
 may fairly claim the benefit of it in the shape of tax 
 or otherwise. 
 
 The principle appears to be sound. But being 
 sound it cannot be limited to land. Every other 
 species of property is subject to rise in value without 
 act of the owner, and such rise belongs to the public 
 as much as that of land. For example, the iron and 
 cotton industries have received enormous develop- 
 ment through the operation of free trade and the 
 consequent expansion of population. These results 
 are not due to the ironmasters or to the cotton 
 spinners, and the State is therefore entitled to their 
 extra profits. By the growth of population, railway, 
 gas, and water receipts every year augment; the 
 State is entitled to the increase. . By the dis- 
 
CH. TO.] UNEARNED INCREMENT. 119 
 
 coveries of science, manufacturers are enabled to 
 make great savings, which represent profits, but as 
 they did not make the discoveries, the extra profits 
 form ' unearned increment ' to which the State has 
 right. A single class of investors, those in land, 
 would feel greatly injured if they alone were to be 
 mulcted of profits due to the labour of others than 
 themselves. 
 
 But, on the other hand, if the State takes the 
 profits, it is bound to take also the losses. For 
 profits on the whole are only average, and it would 
 clearly be unjust that the State should disturb the 
 average by taking the rise and not sharing in the fall. 
 So that if one coal-mine is ruined by a better seam 
 being discovered near it, the State ought to take the 
 old one off the owner's hands at its original value. 
 Or, if gas-works are ruined by Mr. Edison, the State 
 ought to pay the gas-shareholders. Or if a clay 
 farm is made valueless by importation of grain from 
 America, the State ought to make good to the land- 
 lord the fall in rent. 
 
 Again, it is obvious that many investments both 
 in land and other things are speculative, and made 
 in the hope of a rise from adventitious circum- 
 stances. This is a great encouragement to energy. 
 But if the State destroys the hope of gaining any 
 profit from progress except in so far as each person 
 has contributed to it, one great motive for exertion 
 
1 20 RESUMPTION OF LAND BY THE STATE. [CH. vin. 
 
 is gone. Consequently, the investments would not be 
 made, and the energy which indirectly so much helps 
 progress in production would be discouraged. 
 
 Lastly, it would be utterly impossible to dis- 
 tinguish with any approach to fairness how much 
 the increase of profits is due to public causes and 
 how much to private exertion. Speaking roughly, 
 it may be said that a rise in price is due to general 
 causes, while an increase of production is due to per- 
 sonal exertion. Now within (say) the last century 
 the price of wheat has not risen, but the price of 
 meat has. The increase of rental, even on wheat 
 farms, is due therefore to increase of production 
 caused by improved farming, which clearly ought not 
 to be escheated by taxation. The increase in the 
 rental of grazing farms is due partly to the rise in 
 price of meat, but partly also to improvement of pas- 
 ture by drainage, to the growing of larger crops of 
 loots, and to the earlier maturity of the animals 
 obtained by selection of better races and types, 
 feeding on imported oilcakes, and protected from 
 weather in covered yards. How then, in these cir- 
 cumstances, is it possible to discriminate how much 
 of the rise of rental, even from the rise in price of 
 meat, is due to the landlord, how much to the tenant, 
 how much to the public ? Still more, if the farm 
 (as most farms do) partly produces grain and partly 
 meat, is the calculation difficult. The most skilled 
 
CH. viii.] INCAPABLE OF ESTIMATION. 121 
 
 of valuers would be the most utterly puzzled if asked 
 to solve such a problem. It could not be in any 
 single instance approached with even a hope of 
 making a fair guess at the truth. But if we re- 
 member still further that improvements in culture, 
 which demand more labour, give occasion for higher 
 wages, and that increase of wages reacts in rais- 
 ing prices both of beef and bread, and thus that the 
 very improvements are cause of part of the * un- 
 earned increment in value,' it will be imagined what 
 utter confusion and flagrant injustice would be the 
 result of any practical attempt to abstract from 
 owners of land, alone of all commodities, that ' un- 
 earned increment ' of their wealth which is due to 
 causes to which they have not themselves contributed. 
 Till, at least, the advocates of this idea offer us some 
 practical scheme by which it can be carried into 
 effect, we are justified in refusing it further con- 
 sideration, however eminent the authority by which 
 its abstract justice has been commended. 
 
 III. Increase of the Land Tax. 
 
 In connection with this proposal may be noticed 
 another, resting at least in part on the same general 
 principle, the proposal to increase the land tax very 
 considerably. It is argued that, when first imposed, 
 this tax amounted to 4 per cent, of the rental ; but 
 
122 EESUMPTION OF LAND BY THE STATE. [CH. vm. 
 
 that, by the increase in the value of land, it is now 
 become insignificant ; that it has also been allowed 
 to be redeemed on too favourable terms ; and that 
 justice to the public requires that it should again be 
 raised to its original percentage on the value. Now, 
 when a tax has for a time been levied on one prin- 
 ciple, a proposal to levy it on a different principle is 
 exactly the same thing as a proposal to levy it for 
 the first time on that principle ; and hence we must 
 look at the question as if it were now for the first 
 time proposed to put an ad valorem tax on land. To 
 the justice of the proposal no demur could be made 
 if it were to apply to land only on the occasion of 
 its next devolution, by the death of its present owner. 
 For we have seen that the title of his successor is 
 purely a State creation, which at this moment the 
 State permits only on condition of paying an ad 
 valorem succession duty, and the State would be 
 justified in making the ad valorem duty an annual 
 one. But it would not be justified in imposing an 
 ad valorem duty on rental during the life of the 
 present holders, unless it imposed the same rate of 
 duty on income from every other source. For it has- 
 permitted land at present to be held as an invest- 
 ment precisely in the same way as any other object 
 of property ; people have 1 therefore paid money for 
 it, in faith that the State will continue to treat it 
 like other property ; and even those who have sue- 
 
CH. vin.] LAND TAX. 
 
 ceeded to it have done so on the same understand- 
 ing, and have entered into numberless transactions,, 
 and undertaken many engagements, on the footing 
 that this form of property would be dealt with on 
 exactly the same terms as any other. If, then, the 
 State were to impose a special tax upon them, it 
 would be virtually mulcting them, while owners of 
 other property were left free, a proceeding mani- 
 festly contrary to equity. 
 
 The expediency of a heavy land tax, even though 
 deferred to a period when it might with perfect fair- 
 ness be imposed, appears further open to doubt. The 
 great object of the State must always be to promote 
 increase of production from the land, as from part of 
 the capital of the country. But to lay an ad valorem 
 tax on rental would be to tax exceptionally the pro- 
 fits made by improving the land, and increasing 
 production from it, and the effect would undoubtedly 
 be to check the investment of capital in making im- 
 provements. Every hundred pounds spent on the 
 land, in the hope of gaining a profit of 5 per cent., 
 would yield only 4 per cent, if the State laid a tax 
 of 20 per cent, on the improved value, and capital 
 would therefore be driven from the land. This would, 
 as we have seen, be really the greatest injury that 
 could be done to the community, whose true interest 
 lies in encouraging investment of capital in improv- 
 
 UNIVERSITY 
 
124 KESUMPTION OF LAND BY THE STATE. [CH. viii. 
 
 It is probable that the suggestion has its origin 
 in the spectacle of great estates, of which the owners 
 seem to do nothing for the public good. But a remedy 
 is to be deprecated which would hit most hardly the 
 most energetic and deserving owners, by diminish- 
 ing their profits from improvements. If through 
 wiser changes in our system of laws, land were more 
 equally shared among its owners, and due encourage- 
 ment given to its employment in the most profitable 
 way, it would be seen that there is no advantage, but 
 the reverse, in imposing a special tax on that form of 
 property which lies at the basis of all our wealth. 
 
CH. ix.] DIVISION ON INHERITANCE. 125 
 
 CHAPTEE IX. 
 
 OF PROPOSALS TO LIMIT THE SIZE OF ESTATES. 
 
 SOME suggestions have been made for reform in the 
 land laws which aim, as those discussed in the last 
 chapter do, at the diminution of the size of proper- 
 ties ; but which adopt for their means, not any actual 
 resumption by the State, but rules which would either 
 Istly. Effect gradual division ; or 2ndly. Prevent ac- 
 cumulation. 
 
 I. Compulsory Division on Succession. 
 
 This system has the advantage of being in actual 
 operation in most European States, as well as in our 
 own Channel Islands. It is therefore not a theoretical 
 suggestion, but a practical rule of which we can ob- 
 serve the effects. 
 
 The leading argument which is brought against 
 it is that it leads ultimately to an extreme subdivi- 
 sion of property, which is thought to be injurious to 
 good farming. This alleged consequence has been 
 
126 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. 
 
 already dealt with at page 79, where it was shown 
 that the culture on the smallest scale may be no less 
 economical, and is far more productive, than culture 
 on a large scale. But we may here consider certain 
 natural checks which operate to prevent subdivision 
 in excess, and some circumstances which, interfering 
 with their action, lead to mischiefs which are capable 
 of remedy. 
 
 These natural checks are best examined in the 
 Channel Islands. As the compulsory division on in- 
 heritance is there of far older date than in France 
 (being, in fact, coeval with the earliest records), it 
 has of course long ago reached its ultimate develop- 
 ment. The actual result at the present day is that 
 there are some properties which reach to fifty acres 
 in Guernsey and (I understand) 100 acres in Jersey, 
 representing a rental, or net income, of 300L to 500?. 
 a year. The average may be said to range from two 
 to ten acres there are many below one acre. 
 
 But in these islands there is a standard of com- 
 fort, of which the lowest scale is represented by the 
 wages of an unskilled labourer at 15s. per week. No 
 restraint on the growth of population, such as is prac- 
 tised in France, is resorted to ; the inhabitants marry 
 early, and have large families, yet the number at each 
 recent census shows hardly any increase. Emigration 
 supplies the outlet for superfluous hands. There is 
 scarce a family to be found which has not some of its 
 
CH. ix.] LIMITS OF SUBDIVISION. 127 
 
 members in the British colonies, or in the United 
 States. These generally do well, and often return 
 with a small fortune to end their days at home. 
 
 These habits furnish the natural check to the 
 subdivision of the land. Those who have inherited 
 only a very small portion cultivate it at spare hours, 
 if they can find other employment. It then gives 
 them an addition to their income as labourers. Or 
 perhaps they let it to a neighbour, who thus makes 
 up a little farm, which profitably occupies all his 
 time. Or, lastly, they sell it, and very likely carry 
 away the small capital thus obtained, to give them a 
 better start as emigrants. Having a perfect know- 
 ledge of the value of land, they make it produce 
 its value in one or other of these ways, so that as 
 soon as cultivation becomes less remunerative, on ac- 
 count of the minuteness of the extent, the plot is let 
 or sold, and thus added to a larger piece. 
 
 Exactly similar arrangements take place in France, 
 only with the distinction that as emigration is not in 
 vogue, those who find their portion of patrimony 
 insufficient generally abandon the country for the 
 towns. 
 
 It is true that among many French writers on 
 agriculture there are to be found frequent denuncia- 
 tions of the system of ' morcellement,' as injurious to 
 agriculture ; and these are sometimes cited by Eng- 
 lish writers as proof that compulsory division of in- 
 
128 PKOPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. 
 
 heritances is hurtful to agriculture. But this is a 
 misapprehension. The uniform evidence of French 
 agriculturists is to the effect that agriculture is 
 rapidly improving, and that the production from 
 small properties, and the price of small properties, 
 is greater, and is more quickly increasing, than in 
 the case of large properties. But the error in the 
 French law consists in the regulation that every 
 separate description of property, personal and real, 
 and every separate estate in land, must, on succes- 
 sion, be divided into shares. Naturally, this not 
 only makes each portion smaller than it need be, 
 but it may give to each child two or more patches of 
 ground separated at considerable distances from each 
 other. Similar rules, though subject to some modi- 
 fication, exist in Jersey and Guernsey. The remedy 
 is sometimes supplied by the agreement of the mem- 
 bers of the family to take their shares, of equal value, 
 wholly in real or wholly in personal property, or to 
 divide the real property into lots that shall be con- 
 tiguous. The reformers in these countries desire that 
 this form of arrangement may be made in some de- 
 gree compulsory. But their aim is not to prevent 
 subdivision of the land ; it is only to arrange sub- 
 division so that it may not lead to the absurd and 
 hurtful extreme of the necessary subdivision of every 
 separate property. 1 
 
 1 See this question fully discussed in the Enquete Agt-icole d* 
 
CH. ix.] ADVANTAGE OF SYSTEM. 129 
 
 With the exception of this artificial evil, there 
 can be no doubt that the system works well in most 
 material respects. The standard of comfort is higher, 
 the pauperism less, the independence greater, in all 
 these countries of peasant properties, than it is in 
 Great Britain. An experience of centuries in islands 
 under our own Crown has shown that there are no 
 invisible dangers to be dreaded in the remote de- 
 velopment of the system, but that it is self-acting 
 and self-restraining. And in all this experience 
 there is no local peculiarity to make it inapplicable 
 to Great Britain. If, in France, certain family re- 
 sults are different, it seems to arise from the French 
 peasant not having (as yet) the knowledge, or the 
 aptitude, to resort to emigration when he cannot find 
 a sufficient remuneration for labour at home. But 
 this cause would not operate in Great Britain or 
 Ireland, any more than in the Channel Islands ; and 
 therefore I should have no fear of a pauper popula- 
 tion as a result of equal division of inheritances. A 
 standard of comfort would establish itself, and anyone 
 
 la France, Rapport par le Commissaire General, p. 132. Paris, 
 Imprimerie Imperiale, 1869. It has been stated that the rating- 
 returns show that each owner of property in France holds on an 
 average fourteen separate plots. Ville, Conferences Agricoles. 
 This seems hardly credible, but it is certain that it is this break- 
 ing up of each man's property into patches at a distance from 
 each other that constitutes the mischief complained of under the 
 name of mwcellcment. 
 
130 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. 
 
 whose circumstances fell below this would better him- 
 self by emigrating, and transfer his land to those who 
 could work it most profitably. 
 
 Why, then, should a system which operates in 
 economic respects so excellently not be recommended ? 
 Because it has some evils, which heavily detract from 
 its advantages, and because another system would 
 give the same advantages without the evils. 
 
 These evils are both moral and material. The 
 land is entailed upon children, and it must be divided 
 in fixed proportions among them. This, in a small 
 but wide scale, repeats the moral evils of entail upon 
 a single heir. The children think of the land as 
 theirs, filial affection is weakened by jealousy of 
 property, and a father has no power to correct evil 
 habits, or improve faulty dispositions, for his children 
 may laugh at threats which the law renders him 
 powerless to enforce. This is above all the case 
 where (as in France) the law compels an equal divi- 
 sion of personal, as well as of real estate, and where 
 every child is entitled to an equal proportion of both. 
 It is not surprising that the strictness of this rule of 
 the Code Napoleon has attracted much attention, and 
 has raised serious objections in that country. In the 
 Channel Islands the principle is greatly limited. Only 
 the land and a third of the personal estate must there 
 be divided ; a father may deal with the rest of his 
 personalty as he thinks fit ; and thus, by selling the 
 
CH. ix.] PATEENAL POWEK OF DIVISION. 131 
 
 land, he may, to the extent of two-thirds of his pro- 
 perty, disappoint any or all of his children. Yet he 
 is reluctant to resort to this extreme course, and 
 practically he does not. Thus it happens that each 
 child is an equal co-heir, the father cannot favour 
 the one who most deserves it, whether as son or as 
 cultivator ; and the ill-consequences of looking to the 
 father as only a life-tenant, and to his death as the 
 moment for coming into possession of what is felt to 
 be their own, show themselves in the family relations, 
 and permanently in the character. 
 
 The evil suggests the remedy. If a father had 
 power to divide the inheritance among his heirs as 
 he judged best, the feeling that he keeps them out 
 of their own would have no place. He would then 
 be able to adjust the succession in such shares as cir- 
 cumstances might make most expedient ; giving land 
 to him who would till it best, or dividing it in the 
 manner most convenient, and making up the share 
 of each child, as his or her wants and character might 
 require. It is true that fathers are not always the 
 best judges. But the law must always be the worst 
 judge, for it can take no account of any circumstance 
 whatsoever. It might, indeed, be very proper to set 
 some limit to a father's power of absolute disinheri- 
 tance. The rule already alluded to as prevailing in 
 Guernsey, and which is also in force in Scotland and 
 in Germany (derived from the civil law) by which a 
 
 K 2 
 
132 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix, 
 
 father cannot deprive a cbild of right to an equal 
 portion of one-third or one-half of his personalty, 
 seems reasonable, and does not in practice introduce 
 the moral mischiefs of entails. Such a portion is a 
 security against parental caprice ; but it is not so 
 large as to make in ordinary cases the parent's death 
 an event to be longed for. 
 
 With regard to the object of obtaining the in- 
 vestment of capital in the soil, with a view to its 
 improvement, it is quite clear that the rule which 
 would give an owner perfect (or nearly perfect) liberty 
 of devise is far preferable to one which enforces a fixed 
 division. Just as with a single heir, so with many 
 heirs, the deprivation of choice must often involve 
 deprivation of motive to improve. An owner will, in 
 many cases, be withheld from laying out money on a 
 farm which must go in part to a child of whose con- 
 duct he has reason to disapprove. Give him power 
 to leave it to whom he prefers, and he will generally 
 try to leave it in the best condition. 
 
 Lastly, as to the object of obtaining the gradual 
 breaking up of large estates, it may be observed that 
 the system of entailing in equal portions on children 
 is not always successful, and sometimes may even re- 
 tard the process. Where there is only one child it 
 takes no effect at all; and where the families are 
 small, which happens so often to be the case among 
 the wealthiest, several generations may pass before 
 
VK. ix.] LIMITATION OF EXTENT. 133 
 
 its effect is appreciable. It is calculated that in 
 France the extent of land held in large properties 
 still amounts to one-third of the whole country, and 
 that, at the present rate of reduction, several centu- 
 ries will pass before it is all broken up into estates of 
 moderate size. But if an owner has free liberty to 
 leave to whom he will, it is very possible that, in 
 some cases, he will divide the estate in a manner 
 which would be impossible if the law fixed his heirs. 
 
 If the law of primogeniture were abolished, it is 
 probable that in no long time the custom of primo- 
 geniture would also disappear, and that we should 
 see in land, as we now see in personalty, a rule of 
 tolerably equal division adopted. But the rule 
 should be elastic, not cast-iron, applied by the dis- 
 cretion of each succeeding owner, not by the decree 
 of unvarying legislation. 
 
 II. Limitation of Extent of Land permitted to 
 be held by Individuals. 
 
 It has been proposed that this should be effected 
 -either by the law fixing the amount which one owner 
 may hold, or by imposing a heavy ascending scale of 
 taxation on the amount of property beyond a certain 
 limit. Both methods are based on the right of the 
 State to limit the extent of land which one owner 
 may hold (a proposition in itself indisputable), and 
 
134 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. 
 
 both would be attended with the same difficulties in- 
 ascertaining the quantity or the value of the land 
 permitted to be held. We may, however, suppose 
 that these could be overcome, and proceed to examine 
 the reasons and practical results of the operation. 
 
 The reasons for desiring a limitation of this nature- 
 are both positive and negative. It is deemed that 
 very large estates in land are themselves an evil, that 
 they are apt to be badly managed, and that they 
 confer too much local influence on the owner. It is 
 also deemed that permission given to rich men to buy 
 up great tracts of land unduly raises the price, and 
 so prevents the poor from buying in smaller lots. 
 
 It is undoubtedly true that very large estates in 
 land, as they must be managed through agents, are 
 objectionable. All delegated authority is apt to be 
 exercised with less care and discrimination than by 
 the superior himself. It further prevents that per- 
 sonal interest between owner and labourer which may 
 form, in certain cases, a useful moral bond of society. 
 
 But it is obvious that these objections apply with 
 as much force to manufacturers and to mere capita- 
 lists as to landowners. The owner of very large 
 mills or works must necessarily manage them also 
 by overseers; and if, as is so often the case, the 
 owners are a company, they are utter strangers ta 
 the business and to the persons employed in it. The 
 cases are in truth identical, for farming is only the 
 
CH. ix.] PKINCIPLE APPLIES TO ALL PKOPERTY. 135 
 
 ^manufacture of grain and meat, and the objection 
 on social grounds to a company which manufactures 
 cotton or steel is as strong as it would be to a com- 
 pany which held land for the mere purpose of making 
 money by it. Most men, however, will admit that 
 even wealthy landowners devote more pains and 
 money to the moral duties of their position than 
 can be rendered by a company which looks mainly 
 to its dividends, and very much more than the mere 
 capitalist, who lends his money to such companies. 
 Therefore, while granting that personal relations and 
 direction are objects which are very desirable in the 
 case of landed estates, it must be conceded that they 
 are, at the least, equally important in regard to every 
 species of investment. That property has its duties 
 as well as its rights is a maxim which has been long 
 (and justly) applied to the owners of land. But it is 
 not less imperative in regard to the owner of wealth 
 invested in consols, in railway shares, in manufac- 
 tures, or in commerce. There is an obligation in- 
 cumbent on every one of these holders of property to 
 view it as a trust for the good of those whom they 
 directly or indirectly employ ; and if it is of such 
 magnitude that they cannot perform this trust, there 
 is a powerful argument why they should be deprived 
 of it, or not suffered to amass it to such hurtful ex- 
 cess. It follows, then, that landed estates ought not 
 on these grounds to be subjected to exceptional rules ; 
 
136 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix. 
 
 but that any remedy directed to prevent the growth 
 of too large properties of this nature ought to be 
 equally applied to property of every description. 
 
 With regard to the local influence given by land 
 it may be observed that it is every year diminishing, 
 and that it is perhaps not materially greater even 
 now than that given by other forms of wealth. The 
 changes in agriculture have introduced a much greater 
 degree of independence both in farmers and labourers 
 than used to be the case. Both have discovered that 
 they are not tied to the soil ; that if their position is 
 not satisfactory they can at any time move elsewhere ; 
 both are becoming better educated ; and both are 
 therefore claiming (and quite able to enforce) rights 
 of equal bargain with their landlord or employer. 
 And, again, it may be doubted whether the influence 
 of wealth over dependents is not quite as great in the 
 case of owners of other species of property as in the 
 case of owners of land. The mill-owner, ship-builder, 
 coal-owner, the large employers of labour in factories 
 of all sorts, and even in warehouses and retail shops, 
 have a very distinct influence over those who work 
 for them ; and even the wealthy inhabitant of a town 
 has a great deal of authority with the tradesmen and 
 workmen whom he employs. Here again, therefore, 
 there seems to be no very clear distinction calling for 
 special restraint of the influence of wealth when in- 
 vested in land alone. 
 
CH. ix.] PURCHASE BY RICH MEN. 137 
 
 Turning now to the indirect or negative evils of 
 the accumulation of large estates in preventing their 
 acquisition by small purchasers, it must be kept in 
 view that this can arise only from the fact, if it be 
 the fact, that rich persons will give a higher price for 
 land than poorer men will. It is argued, firstly, that 
 this idea occasions land to be sold in large lots rather 
 than small ; and, secondly, that it unduly raises the 
 price of small lots, so as to deprive smaller purchasers 
 of the chance of getting them at a ' fair ' price. 
 
 Now, the first of these events would not happen 
 if a better price could be got for small lots than for 
 a large estate. But experience very frequently proves 
 that this is the case ; and consequently it often occurs 
 that a large estate is divided into several portions for 
 sale. For, obviously, competition tends to be greater 
 the smaller the lot, since this brings it within the 
 reach of a greater number of bidders. The main 
 cause, however, which limits this process is the ex- 
 cessive cost of conveyancing, which in England is 
 just as high absolutely, and therefore very much 
 higher relatively, for small pieces of land as for 
 large. It is the purchaser who pays for the con- 
 veyance, and hence a purchaser of 1001. worth is 
 often deterred by a very probable expense of 301. for 
 his title, when a purchaser for 1,OOOZ. hardly takes 
 the additional 301. into consideration. Now, speak- 
 ing as a conveyancer both in England and Scotland, 
 
1 38 PROPOSALS TO LIMIT SIZE OF ESTATES. [CH. ix.. 
 
 I do not hesitate to express my conviction that the 
 system of land laws in both countries might be ren- 
 dered so simple that, in cases where there is no dis- 
 pute as to the identity of the piece of ground, its 
 transfer to a purchaser might be effected for a few 
 shillings. If this were done, there would be an imme- 
 diate tendency to sell land in smaller lots than at 
 present, because there would be more purchasers of 
 small portions. 
 
 The truth of this is illustrated by the fact that 
 both in France, Germany, and the Channel Islands, 
 small purchasers are found to give, as a rule, the 
 highest prices for land. The consequence is that it is- 
 sold in small lots, a moderate-sized farm being often 
 divided into portions for the purpose of sale. Nor 
 is it found that there is the least tendency on the 
 part of rich men to build* up large estates by out- 
 bidding the poorer men. 
 
 If, however, this were to be the case, it is obvious- 
 that the injury to poor purchasers would be com- 
 pensated by the advantage to poor sellers. The 
 owner of a small piece of ground who is compelled 
 to sell for debt, or who desires to sell in order to 
 emigrate, or to start in some business, has no reason 
 to thank reformers who wish that he should get a 
 low price in order that some other poor man may get 
 a better bargain. Rather it might be argued that if 
 the poor Naboth can get an excessive price from a 
 
CH. ix.] FACILITY OF EVASION. 139> 
 
 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 
 
<CH. x.] PARKS AND PLEASURE-GROUNDS. 149 
 
 affords. If it is felt to be a hardship that the owner 
 should for his sport exclude the public from the 
 scenery (which in some cases is and in some is not 
 a real grievance) that grievance had better be re- 
 moved by some other method than by settling culti- 
 vators in districts where they can only starve. 
 
 There remains the case of parks and pleasure- 
 grounds occupying good land. But it is not pro- 
 posed to prohibit the retaining by anyone of a certain 
 extent of merely ornamental ground around his 
 house. The question affects, therefore, only the 
 larger parks, and it would be difficult enough to 
 draw the line. But even in regard to those of great 
 extent, it must be remembered that they are re- 
 tained for beauty of scenery, and this is an enjoy- 
 ment which the owner cannot keep altogether to 
 himself, and which it may be said the owners of the 
 largest parks are in general the most liberal in shar- 
 ing with the public by giving free admission to their 
 domains. There are few noblemen's parks to which 
 the neighbouring villagers, and even strangers, have 
 not a practically unlimited access; and the enjoy- 
 ment which is thus widely shared is one which it is 
 not desirable to extirpate even for the growth of 
 food. 
 
 But it is also right to remember that nearly all 
 these large parks consist to a great degree of pasture 
 land which is used for grazing stock, and which in 
 
150 DIRECT INTERFERENCE OF LAW. |~CH. x. 
 
 that way produces substantially in most cases as 
 great a value of food as if it were under the plough. 
 An eminent Liberal writer has indeed argued that 
 grazing is not beneficial to the community, because 
 in that way an acre of land will produce only one- 
 tenth the weight of meat that it would of wheat. 
 But before the Legislature could act on this propo- 
 sition by enacting that all pasture-land shall be- 
 ploughed up, it must first enact that everybody shall 
 eat bread and nobody shall eat beef. For, since we 
 are not at present all vegetarians, there is such a 
 demand for beef that the public willingly pays ten 
 times the price for a pound of it as for a pound of 
 wheat, and the consequence is that it is fully as 
 profitable to grow 200 Ibs. of beef on an acre of 
 grass, as it is to grow 2,000 Ibs. of wheat on an acre 
 of ploughed land. It would therefore be very bad 
 political economy, as well as bad agriculture, to 
 enact that good grass land should be broken up in 
 order that grain might be sown. 
 
 For these reasons, the idea that law can do any- 
 thing to promote cultivation by the compulsory 
 transfer of any considerable tracts of land from the- 
 present owners to new ones must be rejected. It 
 may be fully admitted that the whole of the land 
 now in possession of private owners is not used to 
 the best economical advantage. But the purposes 
 which are uneconomical are not all injurious. And 
 
CH. x.] GAME LAWS. 151 
 
 although many instances may undoubtedly be found 
 in which a change of ownership would be an econo- 
 mical gain, we must remember that law can only 
 deal with facts as a whole, and that it will only do 
 mischief by interposing with compulsory rules, which 
 are only capable of useful application in isolated in- 
 stances. 
 
 II. The Game Laws. 
 
 In this branch of legislation we find, however, 
 the operation of law with the direct purpose of fos- 
 tering a use of land which is contrary to beneficial 
 production. For although an argument has been 
 built upon the proposition that rabbits are food, and 
 although it is true that on certain sterile tracts 
 rabbits may be more profitable than sheep, yet it is 
 true in the main that game destroys more food than it 
 eats, that as food it is a luxury rather than a neces- 
 sity, and that therefore its preservation to any con- 
 siderable extent diminishes the food supply of the 
 country. 
 
 Now the object of the game laws is to make the 
 preservation of game possible. For, by the common 
 law of this and all other civilised countries, game, 
 roaming at large, is not the property of any indi- 
 vidual, and hence it may be taken and killed by 
 anyone. Of course, if the law so remained, no owner 
 
152 DIKECT INTEKFERENCE OF LAW. [CH. x. 
 
 of land could help game being taken and killed by 
 others than himself. But the game laws, though 
 they do not make game property nor the taking it 
 theft, yet create its capture, and even the entering 
 another person's property in search of it, special 
 criminal offences. Thus the law puts in the hands 
 of landowners an authority which enables them to 
 protect their wild beasts and birds from any inter- 
 ference by others, and in so doing it encourages 
 them to use their land for the purposes of preserv- 
 ing game to an extent frequently inconsistent with 
 the raising of crops. 
 
 If the land is not let, it is only the public that 
 is interested in this result. And undoubtedly the 
 destruction of human food by over-preservation of 
 game is in some districts so considerable as to give 
 the public a very strong interest in these laws. It 
 has also a further interest arising from the fact that 
 over-preservation creates a temptation to poaching, 
 which, though in itself only an artificial offence, 
 leads to many serious crimes, not unfrequently to 
 murder itself, and like every violation of law tends 
 to degrade the law-breaker, and make him in other 
 respects a bad citizen. 
 
 But if the land is let to a tenant, his interest is 
 also very greatly affected by the results of the game 
 laws. It is to meet his peculiar grievances that most 
 of the amendments now before the public have been 
 
CH. x. TENANTS' INTEKESTS IN GAME LAWS. 153 
 
 suggested. The proposal, which at present seems 
 chiefly in favour with the farming class, and which 
 is the subject of a Government measure, is the enact- 
 ment of a law declaring that the joint right to kill 
 ground game on a farm shall be the inalienable pro- 
 perty of the tenant. The word 4 inalienable ' is im- 
 portant, for it is seen that if it is not inserted the 
 tenant may agree to renounce his right, which would 
 leave the landlord power still to do as he does at 
 present. 
 
 But there was nothing in the old law which pre- 
 vented a tenant from bargaining with the landlord 
 that the right to the game should belong to either 
 one or the other. In fact, the common law, in 
 absence of bargain, makes it in England exclusively 
 the tenant's. The common law of Scotland is the 
 opposite. Nevertheless there is exactly as much 
 preservation of game, and as much outcry by tenants 
 in the one end of the island as in the other. For in 
 both, the tenants, for the sake of getting farms, 
 expressly or tacitly agree that the landlord shall 
 have the sole right to the game, and shall be entitled 
 to preserve it as much as he chooses. The agreement 
 is generally in Scotland express, besides that it 
 would be in law effected by the absence of any con- 
 trary stipulation ; in England it is frequently tacit, 
 being carried into effect by the circumstance that 
 the lease is usually from year to year, and by the 
 
1 54 DIRECT INTERFERENCE OF LAW. [CH. x. 
 
 perfect knowledge of the tenant that if he should 
 exercise his legal right to destroy the game, he would, 
 be turned out next year. 
 
 With this experience of the powerlessness of law 
 before their eyes it is an extraordinary hallucination 
 on the part of tenants to expect that a declara- 
 tion by Parliament that game should be the c ina- 
 lienable' property of the occupier can make the- 
 smallest difference in practice. The tenant from 
 year to year will know as he does now that submis- 
 sion to the landlord's pleasure is the condition of 
 holding his farm. The tenant under a lease will 
 probably find that the ingenuity of the landlord's 
 lawyer can discover some way of virtually transfer- 
 ring, with his own consent, the ' inalienable ' right 
 back to the landlord. But if we are to suppose this 
 to be impossible, the only effect will be that any 
 landlord who is bent on holding the game will refuse 
 to let the land except from year to year, and then 
 the tenant will understand that continuance of the 
 tenancy depended on the non-exercise of his inalien- 
 able right. Perhaps Scottish farmers may answer 
 that no one will take a farm only from year to year*. 
 The practical reply to this is that over the far larger 
 part of England they actually do. An equally de- 
 cisive reply would be that if we are to suppose that 
 they will have determination enough to refuse a 
 enancy subject to a condition that the holding shall 
 
CH. x.] PUBLIC INTEEEST IN GAME LAWS. 155 
 
 be yearly, they may just as well attain their object 
 without any new law by refusing a tenancy subject 
 to a condition that the landlord shall have the right 
 to the game. It ought to be obvious that if they 
 can make their own bargains about rent and period 
 of holding they can quite as easily make it about 
 game, since nobody compels them to make any bar- 
 gain that does not suit their own ideas. 1 
 
 It may be added that the interests of the public 
 are by no means identical with those of the tenantry 
 on this question. It is quite conceivable that a well- 
 to-do tenant with a taste for sport might become as 
 much of a game preserver, if he had an ' inalienable ' 
 right, as a landlord. This has in some instances 
 been found to be the case where landlords have 
 agreed to give the right to the game to their 
 tenants. In this event the mischiefs arising from 
 the destruction of crops and the inducement to 
 crime are just as great as under the misuse of the 
 law by the landlords. 
 
 The only effectual method of dealing with the 
 evil is by repeal of the laws which make it crime to 
 kill game, and to trespass in pursuit of it. Were 
 this done, the general public might take game, and 
 thus its excessive preservation would be impossible* 
 
 1 The question of interference of law with contracts be- 
 tween landlord and tenant will be further considered in Chapter 
 
 XL 
 
156 DIRECT INTERFERENCE OF LAW. [CH. x. 
 
 It is sometimes asserted that, if there were to be no 
 penalty for trespass in pursuit of game, the protec- 
 tion of property would be impossible. That argu- 
 ment is absurd on its face. It is the superfluity of 
 game which leads to trespass. On estates where 
 game is not preserved there is no annoyance from 
 trespassers. It might, indeed, be reasonable to allow 
 the owner of land or his servants personally to warn 
 intruders on enclosed land to leave it, and on their 
 refusing compliance to subject them to an adequate 
 penalty. This would abundantly secure property 
 from injury, and protect reasonable rights of privacy 
 in ground attached to dwellings. Since no one 
 wishes game to be altogether extirpated, laws as to 
 close time might also be maintained in force for the 
 public advantage. But such regulations would not 
 supply to any landowners the means for raising and 
 maintaining an injurious head of game. As soon as 
 he brought it to a pitch at which the killing it 
 would pay for a man's time, those whom we call 
 poachers would interpose to reduce it. But when it 
 was below the standard at which poaching would be 
 profitable, it would offer little temptation to the 
 poacher. Enough would then remain for fair sport 
 to the owner of the land who could afford time for 
 unremunerative amusement. The operation of na- 
 tural laws would thus of themselves limit the opera- 
 tion of artificial protection, as soon as we abolish 
 
CH. x.] FIXITY OF TE^UKE. 157 
 
 the special enactments which make artificial protec- 
 tion possible. 
 
 III. Fixity of Tenure. 
 
 There is still to be considered one other sugges- 
 tion of interference by the Legislature, by way of 
 compulsion. A considerable party in Ireland, not 
 without sympathisers elsewhere, are persuaded that 
 justice and sound policy both require that the tem- 
 porary interest of tenants in their holdings should be 
 made a permanent one. They argue that this is 
 required in order to secure to the tenants the im- 
 provements they have made, and that it would be 
 the most effectual way of encouraging further 
 improvements. The scheme differs from ' National- 
 isation of the Land,' in so far that the State would 
 not become landlord, nor the tenantry owners. 
 The existing landlords would retain their position ; 
 the only difference would be that they would have 
 no power to evict their tenants, or to interfere with 
 their transfer of possession to others. The tenants 
 would have a right to their present holdings in 
 perpetuity, paying a rent which it is variously sug- 
 gested should be the present amount, or one to be 
 fixed for all time by public valuers, or one to be 
 adjusted from time to time by a fresh valuation. 
 This proposal has not only found much favour 
 
158 DIRECT INTERFERENCE OF LAW. [CH. x. 
 
 among Irish tenants, but it does not seem to be 
 seriously objected to by many Irish landlords. The 
 reason of the predilection for it by both classes in 
 that country is not difficult to trace. On the one 
 hand, the present tenant would obtain a permanence, 
 at rents which are assumed to be the present rates, 
 if at present low ; but which they expect to be re- 
 duced by a valuation, if at any time found too high. 
 On the other hand, landlords who at present are 
 charged with exacting rack-rents, and who have 
 difficulty in recovering any rent at all, would feel 
 themselves entitled to the aid of the public force to 
 collect rents which the public had compelled them 
 to accept, without allowing them any choice of the 
 persons who should be liable to pay. But while the 
 two parties might accept this dictation by the State 
 as a boon to both, it may be doubted whether the 
 arrangement would be equally beneficial to the 
 public. A State guarantee of private rents which 
 would be virtually involved would not be a desir- 
 able undertaking. In bad times the State might be 
 a heavy loser. The tenants might say with truth, 
 6 We cannot pay the stipulated rent ; ' but the 
 landlords would retort with equal truth, ' We were 
 forced to renounce any selection of tenants, and any 
 option of cultivating our own land, and this in the 
 name of a public advantage; we are certainly 
 entitled to expect that the public will see that we 
 
CH.X.] INJUKY TO OTHEKS. 159 
 
 get the equivalent for our sacrifice.' It is very pro- 
 bable that the result might be either discontent 
 bordering on revolt, on one side or the other, or 
 relief to the tenants at the cost of payment to the 
 landlords out of public funds. 
 
 But it may further be pointed out that this 
 immense favour to the tenantry would be conferred 
 in a way very unjust to the rest of the public. It is 
 proposed that the actual tenants at the date of the 
 passing of the Act are to be thus benefited. But 
 -what is the particular merit of the actual tenants at 
 that date, to entitle them to such an exceptional and 
 exclusive boon? Some may have been long in 
 possession ; but some may have only been a year or 
 two. Some may be excellent farmers ; but some 
 may be very bad. Some may have greatly improved 
 their holdings; some may have nearly destroyed 
 them. Some may have capital ; others may be 
 bankrupt. Yet this scheme of very 'wild justice' 
 favours alike all actual tenants, and excludes from 
 its favours the men who happened to be evicted the 
 year before, or the farmers, the cottars, the labourers, 
 the artisans who in a year or two more might have 
 had the opportunity of taking a piece of land. It 
 would insure permanence to the actual holder, but 
 at the cost of permanent exclusion of any other 
 holder. It would thus be a gift to the individuals 
 who by accident are the present tenantry, but at the 
 
160 DIEECT INTERFERENCE OF LAW. [CH. x_ 
 
 expense not so much of the landlords as of the 
 public, who would be ousted of any possibility of 
 obtaining a farm, or an allotment, unless by pur- 
 chase of the right from those whom the State had 
 converted into permanent holders. When this aspect 
 of the question comes to be regarded, it is probable 
 that neither in England nor Ireland will the demand 
 for 'Fixity of Tenure' meet much support from 
 either townsmen or working men who are not already 
 in possession of land. 
 
 It has not been distinctly stated by the advocates 
 of ' Fixity of Tenure ' whether they mean the prin- 
 ciple to be applied only once in favour of the present 
 tenants, or to future as well as present tenants. If 
 the rule were to be limited only to tenants existing 
 at the date of the Act, its injustice would be con- 
 spicuous. Future tenants of the newly-made per- 
 petual tenant would have the same grievance against 
 him as he has against his present landlord, and the 
 same agitation would soon be revived. But if this 
 rule were to extend to all future transactions of the 
 nature of letting, its operation might be attended 
 with curious consequences. It would in great mea- 
 sure forbid any of the new permanent tenants from 
 ever sub-letting, because then his sub-tenant would 
 become at once entitled to the same fixity of tenure. 
 This would probably be not altogether to the taste 
 of the Irish supporters of the proposal. But if force 
 
CH. x.] COMPLICATIONS OF SUB-TENUKE. 161 
 
 of habit, or of circumstances, should lead to sub- 
 letting even on that condition, it would not stop at 
 the first sub-lease, but would go on as long as any 
 margin of profit could be screwed out of a further 
 degree of sub-tenancy. The final cultivator of the 
 ground would thus be the one who would promise so 
 recklessly that no one else could be found to cap his 
 offer. It need not be said that this is precisely the 
 class which furnishes the most hopelessly bad far- 
 mers the men who run out the land preparatory to 
 running off themselves. Between this ultimate 
 tenant and the original landlord would be interposed 
 an infinite series of middlemen, each a landlord, and 
 also a tenant, bound to pay a fixed sum to his im- 
 mediate landlord, and trusting to receive a slightly 
 higher fixed sum from his immediate tenant. This 
 would be a singular method of abolishing 'land- 
 lordism.' It would, on the contrary, create a vast 
 system of sub-infeudation, which is one of the evils 
 of which, in the course of centuries, English and 
 Scottish land-holding has striven to set itself free. 
 The complications of legal relation to which this 
 result would give rise can hardly be conceived. The 
 land would, in the last resort, be liable to pay all 
 these gradations of rents ; but how infinite would be 
 the number of questions to be settled when any one 
 of the middlemen, or the ultimate cultivator, became 
 insolvent, is past the power of imagination to con- 
 
 M 
 
162 DIKECT INTEKFEKENCE OF LAW. [CH. x. 
 
 ceive. All this, however, is on the supposition that 
 the Act of Parliament should be bond fide carried 
 out. But supposing one of the parties, or any 
 number of them, were to try to evade it, by substi- 
 tuting at some stage or other a colourable bargain 
 respecting culture, which should be not quite 
 tenancy? One thing only can be predicted with 
 absolute certainty from such enactments, and that 
 is, that the greater part of the produce of the 
 soil would be converted into lawyers' fees. 
 
 It is clear, then, that, for a community with 
 European ideas, the legislative conversion of tenancy 
 into permanency of holding is an impracticable 
 scheme, alike in its legal, social, and political 
 aspects. Whether the Legislature can usefully 
 establish any rules of tenancy short of permanent 
 tenure, will be considered in the following chapter. 
 
 With regard to the various forms in which fixity 
 of tenure is illustrated in India, only one remark 
 need be made, that none of them appear to conduce 
 to the prosperity of the actual cultivator. Under 
 native rule, the general system is to extract from 
 him the utmost he can pay, while making allowances 
 in bad seasons which save him from starvation. 
 This system, coupled with the immobility of Eastern 
 civilisation, has the effect of making the practice of 
 agriculture absolutely stationary. When European 
 notions of definite rents and strict principles of 
 
H. x.] TENURES IN INDIA. 163 
 
 exaction come into operation, we have a variety of 
 results; but all unfavourable. If the land is as- 
 signed to permanent tenants of the State, holding at 
 fixed rents, they sublet their holdings, and grind the 
 faces of the ryots, in the old fashion. If the State 
 deals directly with the small cultivators, it finds 
 itself powerless to adapt its positive rules to the 
 infinite variety of detail, and because it cannot 
 consider and allow for each cultivator's occasional 
 difficulties or requirements, it drives each in suc- 
 cession into the grasp of money-lenders, from whose 
 coils there is no escape. If it tries to deal more 
 justly by imposing only a low assessment of rent, but 
 reserving power to raise it at intervals, it impedes 
 improvement, by suggesting that improvement will 
 lead to increased exaction. Thus, even in com- 
 munities the most docile, and under systems of law 
 the most ancient, we find State management of 
 property a failure. We find ourselves again brought 
 back to the conclusion that the amplest liberty of 
 competition and contract affords the only method by 
 which the value of land can be correctly ascertained, 
 or fully maintained, and that the -only real favour 
 that the State can bestow on cultivators is to afford 
 to them opportunity of entering into other pursuits, 
 if the owners of the soil should attempt to impose 
 terms beyond what the mutual interest of all parties 
 may sanction. 
 
 M 2 
 
164 DIRECT INTERFERENCE OF LAW. [CH. xi_ 
 
 CHAPTER XI. 
 
 OF LAWS RELATING TO THE LETTING OF LAND, 
 
 IT is part of the usual ideas attached to property of 
 every sort that the owner may lend it, or transfer to 
 another its temporary use, for a reciprocal advantage. 
 Applied to land, this idea takes the form of letting 
 and hiring for a certain period, sometimes for a sum 
 down, but far more often for an annual payment by 
 the hirer or tenant. The law of England, and of nil 
 other countries, permits the two parties to such an 
 arrangement to settle any terms they think fit, 
 regulating not only the payment of rent, but the 
 manner in which the land shall be used. All that 
 law has hitherto done has been to lay down certain 
 rules, founded on equity, or on the supposed inten- 
 tion of the parties, to take effect in reference to 
 contingencies which their express bargain has not 
 embraced. In England most of these provisional 
 rules rest on the common law, which is an expression 
 of the general understanding of the nation, or on 
 customary law, which grows up in different forms in 
 
CH. xi.] NATURE OF CONTRACTS. 165 
 
 different localities, and merely expresses the general 
 understanding of the district. But in all cases 
 either the common or the customary law may be set 
 aside if the two parties expressly agree to make a 
 different bargain. 
 
 Such is, in fact, the general principle of law in 
 regard to all contracts. Men are allowed to bargain 
 as they please, and law only interposes to interpret 
 their meaning where they have not expressed it 
 fully. There is only one exception to the perfect 
 liberty of contract; it is where the object of it is 
 contrary to morality or to the public good. In such 
 cases the law is content to say that it will not recog- 
 nise the contract, nor give aid to enforce it. It is 
 declared void. 
 
 Kules as to the manner of proving contracts are 
 indeed laid down by the Legislature, as in requiring 
 writing, or witnesses, or a seal, or in limiting the 
 time within which it will be enforced by the Courts. 
 So also some persons, as minors and married women, 
 are declared incapable of validly contracting on some 
 subjects, though permitted to contract as to other 
 subjects. Again, in these cases, if a contract be 
 entered into contrary to law, it is deemed to be 
 void ; it cannot be enforced. 
 
 But of late years there has sprung up in relation 
 to land a demand for the introduction of a new and 
 unknown application of law. It is sought that the 
 
166 DIEECT INTERFERENCE OF LAW. [CH. xi, 
 
 law shall compel two persons, if they bargain at all ? 
 to bargain only in one way not merely as regards 
 form, but substance. The penalty also for violation 
 of such a rule is not to be that the contract is void, 
 but that a different contract may be enforced. 
 
 One such demand we have already considered 
 (p. 151) in reference to the Grame Laws. Another 
 demand is that every tenant shall be entitled to a 
 certain length of notice to quit, to a certain sum if 
 he is required to quit, and to repayment of whatever 
 sums he has expended on the farm. All these are 
 of course most legitimate subjects of demand by a 
 tenant in making his bargain with the landlord. In 
 many instances a wise landlord would agree to them,, 
 as being for his own ultimate benefit. But the 
 question now raised is whether they shall be made 
 the inevitable conditions of the contract, so that 
 under no circumstances can a contract be made 
 which does not contain them, and no contract to set 
 them aside shall be valid. 
 
 The question arose first in Ireland, under condi- 
 tions which in truth placed it in a different category. 
 Owing to certain social and political reasons, among 
 which absenteeism and poverty of landlords, and the 
 obstacles formerly placed by the British Parliament 
 in the way of any other field for labour than agri- 
 culture, occupy probably the chief place, the usual 
 duties undertaken by landlords have over a great 
 
CH. xi.] TENANT EIGHT IN IEELAND. 167 
 
 part of that country fallen upon the tenants. It is 
 they who have fitted the land for cultivation, by 
 reclaiming, fencing, erecting dwelling-houses and 
 other buildings, and executing such drainage as 
 exists. Undoubtedly these operations have for the. 
 most part been very imperfectly performed, but the 
 fact is that (in general) whatever has been done has 
 been done by the tenants, without assistance from, 
 but equally without objection by, the landlords. 
 Naturally, therefore, the tenants look upon their 
 labour thus spent as their property, recognised as 
 such as well by equity as by virtual understanding. 
 In some districts this came even to be admitted to 
 be law, and constituted the Ulster tenant-right, in 
 virtue of which the tenant might sell his interest to 
 a new tenant, and the landlord was bound to accept 
 as tenant such a purchaser. In other districts (where 
 probably the labour expended had been less), the 
 claim of the tenant did not amount to a legalised 
 custom, but it was nevertheless a general expectation. 
 In this state of things the Legislature interposed, 
 and in 1870 the Irish Land Act granted to all 
 tenants, below certain amounts of rent, and not 
 holding under written agreement, a valid pecuniary 
 interest in their holdings, which, while they con- 
 tinued to pay the stipulated rent, the landlord was 
 required to allow to them, should he give them 
 notice to quit. A Bill now (July 1880) before Par- 
 
168 DIRECT INTERFERENCE OF LAW. [CH. xi. 
 
 liament preserves this interest even in the case of 
 tenants in certain specified districts who, owing to 
 the bad season of 1879, have failed to pay their rent. 
 
 In such enactments, framed under such circum- 
 stances, it is obvious that there is no departure from, 
 or even straining of, ordinary legal principle. The 
 new law has not created new contracts ; it has only 
 protected implied contracts from violation. In any 
 case in which the parties had deliberately agreed that 
 the tenant should have no interest in his holding, or 
 in his improvements, the law has respected the agree- 
 ment. It has even recognised an implied agreement 
 to such an effect when there has been a written lease 
 for a sufficient period of time, although it might not 
 expressly refer to the question. But in absence of 
 writing it has only given legal effect to a claim based 
 originally on the landlord's failure to execute proper 
 improvements on the land, and on his acquiescence 
 in their execution by the tenant, in the expectation 
 that he should reap a due reward for his labour. 
 
 Precisely similar principles of law have been 
 brought into play in England, not by statute, but 
 by the action of the common law judges. In Lin- 
 colnshire, in Surrey, in parts of Yorkshire, and of 
 some other counties, a custom has gradually sprung 
 up that a tenant shall, on leaving, be reimbursed for 
 his outlay on certain ploughings, manures, or feeding 
 stuffs. The landlord may have never expressly agreed 
 
CH. xi.] TENANT EIGHT IN ENGLAND. 169 
 
 to this ; but if he has not expressly declared his dis- 
 sent before commencement of the tenancy, the j udges 
 hold him liable in virtue of mere acquiescence in a 
 general understanding. 
 
 But the recognition of these equitable rules, alike 
 in Ireland and in England, is something totally dif- 
 ferent from imposition by statute of an invariable 
 rule which no agreement can set aside. Landlord 
 and tenant, whether in Ireland or Lincolnshire, may, 
 at the commencement of their relation, agree between 
 themselves that the Land Act, or the custom of the 
 country, shall not apply in their case. Freedom of 
 contract is thus fully respected. But what is now 
 demanded by some agitators is that they shall be 
 positively forbidden to contract on any other terms 
 than such as are to be laid down in an Act of Parlia- 
 ment ; nay, more, that if they contract at all, it shall 
 Toe understood that they do so in terms of that Act. 
 It is required that a tenant shall be paid, at rates to 
 t>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 
 
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