THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Walter I'/. Atkinson Dell L. Falls C. Douglas Wikle Of class of 53L SYSTEMS OF LAND TENURE VARIOUS COUNTRIES. SYSTEMS OF LAND TENURE VARIOUS COUNTRIES. A SERIES OF ESSAYS PUBLISHED UNDER THE SANCTION OF THE COB DEN CLUB. EDITED BY J. W. PROBYN. f NEW EDITION, REVISED AND CORRECTED. C ASS ELL, FETTER, G ALP IN & Co. LONDON, PARIS & NEW YORK'. [ALL RIGHTS RESERVED.] CONTENTS. i. THE TENURE OF LAND IN IRELAND. BY THE RT. HON. M. LONGFIELD i Late Judge of the Landed Estates Court in Ireland. II. THE LAW AND CUSTOM OF PRIMOGENITURE. BY THE HON. GEORGE C. BRODRICK 93 III. THE LAND LAWS OF ENGLAND. BY THE LATE C. WREN HOSKYNS, ESQ 169 IV. THE TENURE OF LAND IN INDIA. BY SIR GEORGE CAMPBELL, K. C.S.I., M.P. 213 Chief Commissioner of the Central Provinces of India. V. THE LAND SYSTEM OF FRANCE. BY T. E. CLIFFE LESLIE, ESQ 291 VI. THE RUSSIAN AGRARIAN LEGISLATION OF 1861. BY THE LATE DR. JULIUS FAUCHER 313 Member of the Prussian Landtag. VI CONTENTS. PAGE VII. THE AGRARIAN LEGISLATION . OF PRUSSIA CURING THE PRESENT CENTURY; ALSO A REPORT ON THE TENURE OF LAND IN THE GRAND DUCHY OF HESSE. BY R. B. D. . MORIER, ESQ., C.B. . . . . . . 351 VIII. THE LAND SYSTEM OF BELGIUM AND HOLLAND. BY M. EMILE DE LAVELEYE 443 IX. FARM LAND AND LAND LAWS OF THE UNITED STATES. BY THE LATE C. M. FlSHER, ESQ 497 Counsellor-at-Law, United States of America. THE COMMITTEE of the COBDEN CLUB have gladly complied with Mr. Gladstone's suggestion, contained in the accompany- ing letter, by at once publishing a new edition of the " Systems of Land Tenure in Various Countries." The Committee have to regret the death of three of their original contributors, Mr. Wren Hoskyns, Dr. Julius Faucher, and Mr. C. M. Fisher, whose essays have therefore been re-published just as they were written. Ill-health has unfortunately prevented Mr. Cliffe Leslie from bringing up the facts contained in his essay on the French Land System to the present time, but it remains sub- stantially a fair description of that system, though in arrear ot the statistics now attainable. The essays of Judge Longfield, Sir George Campbell, and Mr. Brodrick have been carefully revised, and have had additions made to them, by their respec- tive authors. Mr. Morier's " Agrarian Legislation of Prussia " has been supplemented by the publication of his " Report on the Tenure of Land in the Grand Duchy of Hesse," sent to the Foreign Office in 1870. A classified Index, which will be found at the end of the volume, has been added to the present edition. The Committee of the Cobden Club hope and believe that this new edition of their volume on Land Tenure will be of real service to all who are interested in this important question, which is occupying more and more the attention of the whole country. J. W. PROBYN. March, 1881. f AC-SIMILE. 10, AiWiJ/ Q 1 $ $ J r> 4-. ....... /Wvfoiijfor #7. td^******^. 4*. ^ ^/ >A y y tSUffo^ ' M/twtS fa4**4*&4 r s / SYSTEMS OF LAND TENURE IN VARIOUS COUNTRIES. I. THE TENURE OF LAND IN IRELAND. BY THE RT. HON. M. LONGFIEI.D. CHAPTER I. THE laws which govern the relation between landlord and tenant are not very different in England and Ireland ; but there are some differences in their pedigrees, and in some col- lateral circumstances, which have made them produce very different effects. I shall mention a few of those circumstances. In both countries the law is based upon the feudal system, which gave the landlord a certain superiority over his tenants. But the feudal relation, with its reciprocal rights and duties, never existed in Ireland. Here the landlord never led his tenants to battle ; if they fought in the same field, it was on different sides. They had no traditions of common victories or common defeats. The relations that existed between them were hostile. According to the old feudal law, the lordship could not be transferred without the consent of the tenant, lest an enemy might be made his feudal superior; but in a great part of Ireland a sudden and violent transfer of the lord- ship was made to persons whom the tenants only knew as their victorious enemies. The feudal law of distress was increased in force, to make it a more powerful instrument for extracting rent from a reluctant or impoverished tenantry. The old laws, which were unduly favourable to the landlord, were generally retained, as if they had been unalterable laws of nature ; but they were at once altered when they appeared to afford a temporary protection to the tenant. B 2 SYSTEMS OF LAND TENURE [LoNGFiELD. Take the case of a disputed account between the landlord and tenant. The former maintains that a year's rent is due to him ; the latter insists that he owes nothing. Do they come before a court of justice on equal terms, to have this question tried ? On the contrary, the landlord, as the feudal superior, takes the law into his own hands, and without making any proof of his demand, he sends his bailiff to seize the goods of the tenant. The landlord was not obliged to apply to any officer of the law, or to give any security to pay damages if his demand should prove to be unfounded. But it was otherwise with the tenant ; if he saw his goods distrained by this summary process, he could not get them back without a troublesome replevin, which he could only get by giving security to pay the sum demanded. To discourage him from contesting the landlord's rights, he was compelled by an Act of Parliament to pay double costs if he failed. Still, at common law, the distress, or goods distrained, could not be sold ; and a tenant, ruined and driven to despair, might submit to the loss, and still refuse to pay ; but an Act of Parliament was passed to enable the landlord to sell the goods and pay himself. Still, he could not seize the tenant's crops while they were growing, as by the common law crops while they were growing were considered as a part of the soil and freehold, and could not be distrained. But here Parliament again intervened, and passed a law to enable the landlord to distrain the crops while they were still growing, so that as soon as the corn appeared above the ground he might send his keepers to take possession, and cut and carry it away when it was ripe. If the tenant removed his goods to avoid a distress, an Act of Parliament intervened to visit him and the friends who assisted him with a penalty, although the landlord himself may have been at the same moment hiding his own goods to evade an execution. In the same manner Acts of Parliament were passed to give the landlord the power of evicting his tenant for non-pay- ment of rent, and of recovering possession of the land in cases in which he was not entitled to this remedy either by the terms of his contract or by the rules of the common law. Those laws were injurious by leading the landlord to rely more on the extraordinary powers given to him by law, than on the character of the tenant or the liberal terms on which he set IRELAND.] IN VARIOUS COUNTRIES. 3 his land ; but I refer to them now as co-operating with other circumstances to lead the poor Irish farmer to the opinion that the laws were framed entirely in the interests of the landlord class. Here one important difference between English and Irish law must be noticed. In Ireland there were no poor laws. The poor man, reduced to destitution by sickness or want of employment, had no legal claim to a maintenance out of the property of the country. I allude elsewhere to other effects of the poor laws ; but the point which I now notice is, that, notwithstanding all the abuses attending on the administration of the poor laws in England, they had this effect, that the poor man could not shut his eyes to the fact that the laws were in some part framed in his interests, and that for the relief of his class a large sum was levied every year from the wealth and successful industry of the community. Another circumstance tended to diminish the respect of the people for the law of the land. Religion did not, and could not, lend its aid to the authority of the law. The great mass of the agricultural population was Roman Catholic ; and the Roman Catholic priest, their minister and instructor, was in some respects under the ban of the law. He could scarcely be an effectual teacher of the doctrine that it is a moral duty to obey the law of the land, when he himself was obliged to violate it almost daily in the discharge of his most sacred functions. Of all laws, those which are framed for the protection of property are the most likely to be disregarded by the -poor man. The man who never possessed any property can scarcely feel the duty of respecting it. He must be taught that duty, either by arguments, which do not bring conviction to all men, or by some authority which he respects. But the Roman Catholic priest had no property of his own, and he generally belonged to a family which did not possess much property. He had therefore no sympathy with the landlords, who, in general did not belong to his flock. Religion, which ought to be the great bond of union between men of every race and every class, was in Ireland an additional source of disunion. tinder such circumstances, it was not surprising that the Irish farmer was generally discontented with his position, although the landlords did not give him much cause of com- plaint. As a class, the Irish landlords were not greedy nor B 2 4 SYSTEMS OF LAND TENURE [LoxcmLe. oppressive. They did not plunder their tenants, but they neglected them, For some time after the Act of Settlement, leases were granted more readily and for longer terms in Ireland than in England. Fee-farm grants, leases for lives renewable for ever, and leases for terms exceeding one hundred years in duration, covered no small portion of the soil of Ireland. But those long leases, at moderate rents, did not produce a contented tenantry ; they only created a race of middlemen. The descendants of the men who granted those long leases had the mortification of finding that they were deriving a very small income from their estates in proportion to the value of the land, and yet that the occupying tenants were as poor as if they had rigidly demanded the utmost penny that the land could yield. It was felt to be bad management to grant such leases ; and leases for three lives, or twenty-one years, or thirty-one years, were more usually granted in the latter half of the eighteenth century. The leases for lives were in some measure caused by the law which existed up to the Reform Bill. Freeholders alone could vote at an election for Members of Parliament ; and this state of the law was injurious to agriculture by leading to a very inconvenient tenure. It was almost absurd that the duration of a farmer's interest should be made to depend upon such an accident as the longer or shorter duration of a stranger's life. Although leases for lives were very common, their duration appears not to have been understood. It was very common in settlements to insert powers of granting leases for three lives, or thirty-one years, as if those leases were of about equal average duration ; although in reality the average duration of the freehold was about double that of the chattel interest. In computing the compensation due to a landlord for renewal fines, it was assumed that a life to be named by the tenant would expire in seven years ; and this gave the landlord, as compensation, more than five times what he had lost by the tenant's neglect. In the early part of this century a great rise took place in the value of land, as the French war and the depreciation of the currency raised the price of agricultural produce. The tenants who had previously obtained leases became rich. The landlords who had not granted leases obtained a great acces sion to their income. The landlords who had granted leases IRELAND.] IN VARIOUS COUNTRIES. 5 found themselves poorer, inasmuch as their nominal income remained the same, while its purchasing power was diminished. This increased the desire of the tenantry to obtain leases, while it made the landlords less disposed to grant long leases. In 1816, and the three following years, land fell again in value; and the tenants who had got leases or farms during the high times were unable to pay their rents. In many cases they ran away and abandoned their farms ; in other cases they put their landlords to the delay and costs of an ejectment ; in other cases they were permitted to remain in occupation at a reduced rent. The landlords then perceived that a lease was a one-sided agreement. It prevented the landlord from obtaining the benefit of a rise in prices ; but it did not prevent him from suffering if they fell. Still, leases were frequently granted from political motives. The tenants, as a matter of course, voted as their landlords directed them ; and the landlord increased his political influ- ence by granting freehold leases to a numerous tenantry. This condition of affairs was changed by the agitation that preceded the Act for granting Catholic emancipation ; and first in the county of Waterford, and afterwards in a still more remarkable instance in Clare, the tenants voted against their landlords' wishes ; and the latter had no longer any political inducement to grant leases to their tenantry ; indeed, political motives rather acted in the opposite direction. Although it became less usual to grant leases, the tenant was generally left undisturbed in possession at the old rent. Nothing was more common than to find a yearly tenant holding land at a rent fixed by a lease which had long since expired. No general change in the value of land took place of sufficient magnitude to cause a readjustment of rents. But in the year 1846 the potato crop throughout Ireland generally failed ; a fall greater than had ever taken place on any former occasion took place in the value of land. The tenant found that the possession of a farm could not secure him against starvation. Landlords were compelled to submit to a considerable temporary abatement. In 1851 the reaction commenced ; landlords added to the rent by degrees the sums that had been taken off during the famine ; and in some cases they added a little more. Frequent small additions to the rent are very annoying to the tenant, who on each occa- sion has to calculate whether it is more prudent to submit 6 SYSTEMS OF LAND TENURE [LONGFIELD. to this increase, or to incur the inconvenience and expense of giving up his farm and looking out for another. Another circumstance occurred about this time. The En- cumbered Estates Court was established in 1849, an d many estates were sold subject only to existing leases and legal rights. The new landlords were more active, and effected more improvements in the land than their encumbered pre- decessors ; but they were less indulgent to their tenants ; old traditions of liberality were disregarded, and the new landlords were more disposed to exact the full value of the land. They also sometimes introduced changes which, although to the advantage of the country and of the tenantry, were looked upon with suspicion, on account of their evident advantage to the landlords. The tenants did not like any interference with their customs, even when it was obviously for their interests. On the whole, however, the condition of the Irish farmers steadily improved. The value of land increased faster than the rents. Never were they more prosperous than at the present moment. The marketable value of the interests which the occupying tenants have in their farms is about fifty millions sterling, exclusive of their stock in cattle, machinery, and agricultural produce, which is worth as much more. But at the same time they never were more discontented. The reason of this is partly that they fear that their present prosperity is insecure, and partly that they hope to seize upon something more. Their wealth is as safe as that of any other class, so far as it depends upon their capital, or their skill and industry ; but it depends upon the will of the landlords, so far as it is a consequence of their holding land at less than the competition value. They are too dependent upon their land- lords. It is not convenient that the prosperity of one class of men should depend upon the liberality of another class. Besides, in many cases the tenants hope by agitation and outrage to acquire more than they at present possess. They have great political power, and are able to reward the agi- tators who inflame their passions or their cupidity. They are taught to believe that it is in their power to acquire the absolute ownership of the land which they have hired for a limited period. Their well-founded complaints are mixed up with the most unreasonable demands ; and by skilful sophistry and metaphorical language they are almost led to believe that murder may be justified when it is committed from motives of IRELAND.] IN VARIOUS COUNTRIES. 7 avarice or revenge. Before we endeavour to draw a distinction between the just and unjust demands of those who call them- selves the tenants' friends, a question may be asked. "Will outrages against life and property cease when everything that justice requires shall be conceded?" I do not think the question very important, because the claims of justice should be allowed, even if no beneficial results were expected. But the question itself cannot be answered by a direct " Yes " or " No." When- ever any just measure is passed, all discontent is not at once allayed. All that ought to be expected is to reduce the num- ber of the malcontents, and to diminish the vehemence of those who remain dissatisfied. The friends of law and order are strengthened by an increase of their numbers, and by the removal of many of the topics on which their adversaries are accustomed to rely. In this manner a succession of just measures may produce such an overwhelming majority in favour of the law as to reduce the discontented to silence. I do not expect such a result in Ireland to follow imme- diately from any legislation, until the people are taught to look upon murder with horror. If all the land in Ireland was divided in fee-simple among the peasantry, the number of murders would not be diminished. The difference would only be in the heading of the sensation paragraphs in news- papers. Instead of an " agrarian outrage," it would be called a " domestic tragedy." The same feeling that prompts a man to murder his landlord, to prevent or revenge some real or imaginary wrong, would lead him to resort to the same remedy against a sister who claimed her fortune at an inconvenient time, or a brother who did not agree with his views respecting the partition of the estate. Good consequences may be confidently expected from just legislation, although those consequences may not appear so quickly as sanguine people often expect. It is not certain that the discontented farmer thinks that all his demands are just and reasonable, or that he expects them to be conceded. A farmer is generally disposed to make a bargain, and to begin by asking for a good deal more than he expects to get. SYSTEMS OF LAND TENURE [LONGFIELD. CHAPTER II. THE opinions of English and Irish economists generally are different on the subject of absenteeism. The Irish, who feel it, think it a great evil. The English, who do not feel it, think that it does no harm to the country. It does not, however, follow that the Irish are right, for they may perhaps have fallen into the mistake of attributing to absenteeism evils which co- exist with it, but are not caused by it. For a short time the defenders of absenteeism had the arguments of logic on their side. The complainants made a mistake in the form of their complaint. The mercantile system was in full vogue. Money was thought to be synony- mous with wealth. Every transaction which brought money into the country was supposed to increase its wealth, and every cause that led to the exportation of money was held to im- poverish it. With this belief, nothing was more natural than to complain of the rents remitted to England to absentee land- lords, and to calculate how much it amounted to in the course of half a century. It was no matter to be surprised at that Ireland was poor, when so much money was annually sent away without any return. The kingdom was in the same con- dition as if it paid a tribute to England equal to the amount of rent paid to the absentees. The answer made to such complaints was, that no money was sent out of Ireland to the absentees. Commodities, chiefly cattle and corn, were exported ; these were paid for by bills, and the produce of those bills applied to the payment of rent to the absentees. Even if money was sent here to pay for the cattle, and that money paid to the absentees, it would come to the same thing in the end. The rent is still substantially paid, not in money, but in that agricultural produce by means of which the money was procured. As to the wealth sent out without return, that is treated as a matter of no consequence. No one has any cause of complaint. A hundred pounds' worth of corn is sent to England, the produce of that corn is paid to the landlord. He buys a hogshead of French wine, which is consumed by himself and his family. How are the Irish IRELAND.] IN VARIOUS COUNTRIES. 9 people worse off than if that hogshead of wine was consumed by the same persons in Ireland ? It might perhaps be admitted that Ireland would not suffer much by the absence of any landlord who, if he was present, would do nothing with his income except buying French wine. But in fact a landlord does not in general spend so much as half his income in the purchase of foreign goods. The greater part of his income is employed either in paying for services, or in the purchase of goods produced in the immediate neighbour- hood. It makes a great difference to the producer whether his market is close at hand, or whether he must send his goods to a distance to seek for a customer ; and this difference will be the greatest when the goods which he produces are bulky in proportion to their value, and when the roads and other means of communication are bad. It may perhaps be said, " Let him produce such goods as may be readily exported, as he ought to know that he must seek a distant market." But in a poor and ignorant agricultural community the producer has no choice. He can produce certain things, and nothing else; and it would be a dull mockery to tell the family of a poor peasant, who can find no convenient market for his eggs, and butter and poultry, and honey, and the services of his children, that he ought to employ himself in making clocks and watches, or brushes, or gloves, or cloth, or paper. He earns his bread from day to day by the only business that he understands, however imperfectly, and he never saw any one employed in any other pursuit, and he has no means of getting into any other industry. Let us abandon the argument derived from the balance of trade, and examine the effect of absenteeism upon the small village of C. All the property in the neighbourhood, to the amount of ^2 0,000 a year, belongs to absentees. There is not a gentleman's house or garden near it. There is very little traffic, and the roads are bad. The post arrives and departs at inconvenient hours, as there is not sufficient correspondence to induce the Post-Office authorities to incur any expense in improving the postal service. There are no public conveyances, as there is not traffic enough to support them. The shops are few and ill-supplied, goods are sold at a high price, and yet for want of sufficient custom the profit of the shopkeepers is very small. The district cannot support a market, and the people are obliged to travel a considerable distance for their supplies. 10 SYSTEMS OF LAND TENURE [LONGFIELD. The peasant finds it impossible to obtain any price for butter, eggs, poultry, and other small rural produce. They cannot be sold in the neighbourhood, and the expense of carriage to a distance consumes nearly the entire value. There are no means of education. One medical practitioner, with very little skill, has the monoply of an immense territory, from which he obtains a scanty subsistance, as the gentry who are able to give him fees are absentees. Agriculture is in a very backward state. The implements are of the worst kind. The cattle are of the most unprofitable breeds. No improvements in either cattle or implements have been introduced within living memory. There are no gentlemen of wealth and education to know what is done in other countries, to make experiments, to instruct the people, and to introduce improvements. I am writing about the state of things in the beginning of this century. The following extracts are taken from a report on the state of the King's County, presented by Sir C. Coote to the Royal Dublin Society, in the year 1801 : "BARONY OF GESHILL. " Every acre of this barony being the estate of Lord D., it is almost entirely inhabited by farmers. They use the old Irish plough and harrow, and none of the improved kind are yet amongst them." " In this barony there is not a single town, and only two villages, those of Killagh and Geshill, but no market held in either, though each has a patent for one." "The roads throughout this barony are shamefully bad, and at times almost impassable. Deprived of a resident gentry, this district is in a lamentable state of neglect." " Farms run from fifty to three hundred acres; farm-houses have only the appearance of warmth ; and if we except Dean D.'s, Mr. V.'s, and Mr. W.'s, they have nothing of neatness to recommend them. The tenant is obliged to repair : the old leases were for thirty-one years, or three lives, few of which now exist ; those of later date do not exceed twenty-one years, and non-alienation is insisted on." " There is no want of bidders to every farm out of lease ; and the highest gets the preference." "Where such short leases only are granted, little real improvement can be expected ; the tenant is discouraged from it, lest he should have his rent raised in his next tenure to the value of his improvements, which he IRELAND.] IN VARIOUS COUNTRIES. II is fairly apprised of, the highest bidder having always the preference. When the peasantry become more civilised, perhaps this rigorous mode will be abandoned, and real solvent tenants may be granted encouragement proportionate to their abilities and industry." I may add that the owner of this estate was not an encum- bered proprietor. He died without issue, and worth nearly a million sterling, and some of the leases which he granted were impeached by his successor. Sir C. Coote's account of the Barony of Geshill is the natural description of a large property owned by absentees. The object was to give an account of the agriculture of the county ; and he did not refer to those inconveniences which a resident only can feel. Let us suppose that some of the proprietors return to reside in the district which I have described ; and consider the results which are likely to follow. A better description of agricultural implements is introduced. The common cart of the country, with its wheels of solid wood without spokes, which only turn with the axle, gradually disappears. It draws only two hundred- weight, and is replaced by a cart with spoke wheels, which will draw from ten to twenty hundred. The improvement is intro- duced by a resident gentleman who is acquainted with the superior vehicle. He employs carpenters to make them ; and these men and their apprentices are again employed by the farmers in the neighbourhood, who quickly perceive the benefit of an improvement which they see in actual operation, at the same time that the means of making the improvement are placed within their reach. The same thing occurs with respect to ploughs and other agricultural implements. The farmer is generally unwilling to alter his practice in submission to any theory or to any arguments. He will not adopt an improve- ment unless he sees it in actual successful operation. In the same manner the resident landlord is the means of introducing an improved breed of cattle, a better rotation of crops, and that improved cultivation which he has witnessed in other parts of the country. He is the living mode of communi- cation between the ignorant backward district and the more improved and more civilised parts of the kingdom. The resident gentlemen attend to the state of the roads, and insist that they shall be well made and duly repaired. They support by their advice and subscription schools, dispensaries, and 12 SYSTEMS OF LAND TENURE [LONGFIELD. various institutions of utility or charity. They assist in the preservation of the peace and the local administration of justice. The increase of correspondence caused by a number of wealthy residents leads to improved postal communication. The traffic and travelling of themselves and their families, their friends and their tradesmen, lead to the establishment of public conveyances, which formerly could not have been run without a loss. All the residents enjoy the advantages of these conveyances. The custom of the resident landlords is a great assistance to the shopkeepers in the neighbourhood, and enables them to keep a better selection of goods, and to sell them at a lower price, and yet a greater profit to themselves. The resident gentry must have houses, offices, and gardens, which become part of the wealth of the country, and require masons, carpenters, and workmen of a superior description to make them and keep them in repair. I need not proceed further to enumerate the advantages which may be confidently expected from the residence of the landed gentry on their estates. They are certainly not met by the argument that the rents of absentees are not remitted in gold and silver, but in bills purchased by the sale of Irish commodities. We are not to consider merely the effects of absenteeism in the abstract, but its effects upon a poor ignorant country such as Ireland was. It can hardly be doubted that the whole social system must suffer from the absence of one important class. A great gap is made by the want of men with knowledge, wealth, or leisure for anything more than the supply of their immediate pressing wants. The cases I have supposed of the utility of a resident gentry, and the inconvenience of their absence, could readily be supported by reference to facts. The causes of absenteeism are partly the superior advantages which England by nature possesses over Ireland. Its civilisation is older and more advanced. It is a larger country, with a finer climate, much richer in its mineral productions, and is more conveniently and centrally situated. The most convenient way for an Irishman to go to any part of Europe is to pass through England. Ireland will always bear to England a relation like that of a provincial town to the metropolis. But this does not entirely account for the extent to which absenteeism existed. The chief cause is to be found in the confiscations and grants which took place in the time of Cromwell, and confirmed by the settlement made in the reign of Charles II. By those IRELAND. IN VARIOUS COUNTRIES, 13 grants large estates fell into the hands of Englishmen who would not, for ten times their value, have left their native country to dwell in such a barbarous and disturbed country as Ireland was. Accordingly they remained in England, and set their newly-acquired estates in large tracts to tenants who undertook to manage the land and pay the rent. The leases were generally made at moderate rents, and sometimes for very long interests. The laws relating to land made it easier for men to set than to sell their estates ; and from this cause the estates remained in the same families, and absenteeism con- tinued to prevail. It is, however, diminishing. In his Political Anatomy of Ireland, Sir William Petty computed the absenteeism of Ireland to extend to one-fourth of the real and personal property of the kingdom. Lists of absentees, with their names and the value of their estates, were published in 1729, and again in 1769. Many of the estates mentioned there have since been sold, and purchased by men who reside in Ireland ; and in many other cases where the estates remained in the same families, the present representatives reside in Ireland for a con- siderable portion of the year. It may be answered that, although those particular estates are no longer held by absen- tees, there may be other estates now possessed by absentees, which were then held by residents. I do not, however, believe that this has occurred to any considerable extent. Especially it rarely happens that the purchaser of an Irish estate becomes an absentee. Of the estates sold in the Encumbered Estates Court, a very small proportion was bought by Englishmen or Scotchmen, and even in those cases the purchasers frequently came to reside in Ireland. But not only has absenteeism diminished, but even when it exists it is less injurious now than it was formerly. This is the result of several causes. The roads are no longer dependent upon the great proprietors for their existence or repairs. The ratepayers now are permitted to take an active share in this part of the county business, and county surveyors are officially appointed to see that all contracts for the formation and repairs of roads and bridges are duly performed. The poor laws now compel the absentees to contribute their fair proportion to the support of the destitute poor. The dispensaries are supported by a compulsory rate, and no longer depend upon the casual subscriptions of the resident gentry. A large Parliamentary 14 SYSTEMS OF LAND TENURE [LoNGFiKLB grant gives equal independence to the education of the poor. The appointment of stipendiary magistrates gives assistance to the residents, and supplies the places of the absentees. The penny postage and the cheap newspaper press bring informa- tion to every part of Ireland. Steam has almost made a bridge across the channel, and railways are now made to places that were formerly inaccessible. Thus in the Barony of Geshill, in which there was such a want of good roads in the beginning of this century, there is now a railway station ; and it is easier now for a man to travel from Geshill to Dublin than it was then to go from one part of the barony to another. Besides the changes just mentioned, another cause tends to mitigate the mischievous effects of absenteeism. The wealth of Ireland not derived from the rents of land has considerably increased. Taking round numbers, we may say that in the course of two centuries the population has increased five-fold, the rental has increased fifteen-fold, and the general wealth of the country has increased fifty-fold. It is probable that the marketable value of the interests which the occupying tenants have in their farms is about fifty millions sterling. But absenteeism is still an evil, although not so great as it was ; and it may be asked, " Can anything be done to mitigate or prevent it ? " Legislation is slowly moving in this direction. One great truth is gradually dawning on the public mind, that every matter of public importance (not of private interest) should be undertaken by the State, and not be permitted to depend upon the casual contributions of benevolent individuals. Whatever ought to be given to the poor, beyond what they can obtain by their own exertions, ought not to depend upon the accident of their living in a rich and liberal neighbourhood. Several of the changes which I have noticed in our legislation follow at once from this principle. Nothing would more tend to diminish absenteeism than free trade in land, and the absence of all restrictions that im- pede its transfer. There is a natural tendency in property to move towards its owner, or in the owner to move torwards his property. Thus, in the case of a great Irish railway, it was thought expedient, soon after it was formed, to compare the interests of the English and Irish proprietors. It was then found that, although the two classes were equal in number, the English proprietors held two-thirds of the stock. Some years afterwards the same comparison was made, and it was found IRELAND.] IN VARIOUS COUNTRIES. 15 that the proportions in the meantime had been reversed, and that the Irish proprietors held twice as much stock as the English. The change has since gradually gone on in the same direction. '. But there is a much greater tendency in land than in railway shares to belong to the residents of the country in which the property is situated. A railway share is merely a right to receive a certain proportion of the profits made by the company. What those profits are can only be known from the accounts, which are equally accessible to the nearest and the most distant proprietors. But land is something different ; it is more than a mere income, and an intimate acquaintance with it is neces- sary in order to know its value, present and prospective. No person has any special desire for a particular railway share ; but when any land is to be sold, it frequently happens that there are several persons who know its value well, and to whom that land is more desirable than any property of equal value in any part of the kingdom. Such persons must be residents in the neighbourhood, or at no very great distance, and they are therefore the most likely to purchase it. The principal laws that prevent that frequent transfer of land which would put an end to absenteeism, are the law of primogeniture, the heavy stamp duties on conveyance, the law which permits property to be settled on unborn persons, and the general complications permitted in the titles to real pro- perty. Something has been done to facilitate the transfer of land by the creation of the Landed Estates Court ; but it is an inconvenient anomaly, and exhibits the imperfection of the law, that a lawsuit should be thought the best and the most expeditious mode of selling an estate. The Record of Title Act has been passed to facilitate further the transfer of land ; but it has not been very effective, and as long as settlements are permitted, the transfer of land cannot be free from difficulty. 1 6 SYSTEMS OF LAND TENURE CHAPTER III. A VERY injurious custom prevalent in Ireland, and encouraged by the law, was the permitting an accumulation of arrears of rent to remain due by the tenantry. In many districts in the south and west, every tenant was in the condition of an uncer- tificated bankrupt, whose debts amount to more than he can ever hope to pay. It is difficult to conceive anything more calculated to destroy the energies of a tenant than the consciousness that no amount of skill, industry, or economy can improve his position, while idleness and prodigality can hardly make it worse. This is the state of a tenant who holds his land at a rent rather higher than he can afford to pay, and who finds that each year adds to the amount of arrears due to his landlord. If any lucky accident should increase his fortune, or add to the value of his farm, it is a gain to his landlord, but no benefit to himself; while a bad crop, whatever be the cause of it, only makes an addition to the bad debts due to his landlord, but is no concern to himself. As long as he owes more than he can pay, he is equally in his landlord's power, whether the arrears amount to fifty or to five hundred pounds. The landlord, if he wishes it, may seize all his goods, and evict him from his farm. His only hope lies in the forbearance of his landlord, from whatever motive that for- bearance may proceed. A tenant in this position will never make any payment until he has made every effort in his power to evade it. When he pays a portion of his rent, he feels himself so much the poorer ; his property is less by the amount he has paid ; but he does not obtain in exchange that independence and freedom from debt which in ordinary cases are the results or the motives of the payment. It is a most unsatisfactory thing to pay money, and yet to remain hopelessly insolvent. Why, then, does he pay anything ? He does it in order to avoid a distress, or an action, or an ejectment. He knew that he cannot expect to retain possession of his farm without paying something ; he must only feel his way, and try to pay as little as possible. Hence a perpetual effort to avoid payment, IRELAND.] IN VARIOUS COUNTRIES. 17 by pleas of distress and poverty, and a contest between the landlord and the tenant. The former fs uncertain whether the latter's pleas of poverty are true ; the tenant is uncertain whether the landlord is serious in his threats of taking legal proceedings. The contract is disregarded, and the parties have no guide to direct them how much they may demand and how much they ought to concede. When a single tenant succeeds in reducing his rent by pleading inability, every tenant will endeavour to do the same. A man will almost think it a hardship to be compelled to observe his contract, when he sees that his neighbour is permitted to evade it. The feeling of independent honesty is gone. The insolvent tenant is not looked upon in the same light as an ordinary debtor who is unable or unwilling to pay his creditors, but is considered as a man who has made a skilful bargain ; for the payment of each gale of rent is made the subject of a separate bargain. I could narrate many instances in which tenants succeeded in their plea of poverty, and were afterwards by accident discovered to have been in possession of money far more than sufficient to pay their rent twice over. I have known many estates in which no account was ever settled between the landlord and the tenant. Payments were made from time to time, but the tenant cared very little whether they were placed to his credit or not. This vicious custom often led to the offer of rents which the farmer knew he could not pay. The solvent farmer who hoped to cultivate the land skilfully, and to derive a profit from his industry, and skill, and capital, and to pay his rent punctually, had no chance of getting a vacant farm against the competition of a man who did not intend to fulfil his engagements. Thus the system tended to throw the lands into the hands of dishonest or insolvent tenants. Such men began by pro- mising to pay more than the land was worth, and ended by paying less than its fair value. Those tenants were not only unable from want of capital to make the land productive, but it was also their interest to avoid high and efficient cultivation. Their apparent poverty was the staff upon which they relied in lieu of payment of their rent; and to preserve this ap- pearance it was necessary that they should carefully avoid such things as a sufficient stock, or a good breed of cattle, improved 1 8 SYSTEMS OF LAND TENURE [LONGFIELD. agricultural implements, or any outlay on their farm, either for ornament or utility. Their object was, with the least possible expense, to raise a scanty crop, which would prove that they were unable to pay the rent. By this proceeding the landlord, the country, and even the tenant himself, were sufferers. The landlord had his land deteriorated by bad cultivation, and received less than its fair value, and far less than his nominal income. In many cases it did him a further injury, by enabling him to excuse to himself his own extravagance. He owes a good deal to his creditors, but his tenants owe a considerable sum to him ; and in this manner, without going into details, he is able to present a rough balance of accounts to his conscience if it accuses him of exceeding his income.* The country obviously suffers by anything that diminishes the produce of the soil. The tenant hides his money instead of employing it in reproductive works. The fund for the sub- sistence of the labourer disappears, and there is no profitable employment for the peasant and the artisan. A number of ill- paid labourers are employed to do badly a work which a few well-paid men could perform efficiently with proper capital and under skilful direction. Every man who observes the agricul- ture of England and Ireland, even with a careless eye, is struck by the contrast between the produce of the land and the number of men employed on it. To the Irish traveller in England it seems as if the work was done without hands. He sees the work finished, but nobody doing it. The Englishman wonders at the multitude of men whom he sees with agricul- tural implements in their hands, and nothing done to account for their appearance. It was often found that the land was most wretchedly cultivated in districts where labour in abun- dance could be had for sixpence a day, or even less. There is no profit to be made by employing ill-paid labourers. And without skill, and capital, and freedom, and security, the employer cannot afford to pay fair wages. * This may appear fanciful and far-fetched ; but it is certain that many do deceive themselves by comparing their expenditure with their nominal incomes. The observation is not new. " So when they have raised their rents they spend their fortunes by living up to a nominal rent-roll, which is frequently the reason we see so many families ruined and often extinct," &c. " Landlords would have a certain and well-paid rent, and would know exactly what they could depend upon. This would make them less lavish and extravagant than they are." ARTHUR DOBBS, 1729. IRELAND.] IN VARIOUS COUNTRIES. 19 It may be said that, even for a tenant owing more rent than he could pay, it would be on the whole more prudent to cultivate his land skilfully and carefully. This may be the case, but men are naturally disposed to indolence, and a slight argument will often turn the scale. A man is often not indus- trious even when he knows that the produce of his industry will be his own ; how much less will his industry be when he has good reason to fear that another will seize the fruits ? This complaint of high rents has been made without ceasing for more than three hundred years. There was never less ground for it than at the present day, although in some in- stances the rent demanded is still too high ; but this chiefly occurs where the landlords are middlemen, or where the property is very small. Several circumstances concurred in former times to make the competition for land keener, and the demand for high rent more inconsiderate then than now. One great difference between English and Irish law, the importance of which it is difficult to estimate, was that in Ireland there were no poor laws. The poorer tenant, of the class that in England would look to the parish for support, saw no resource in Ireland but to obtain on any terms possession of a sufficient quantity of land to produce as much potatoes as his family could consume, with, if possible, after the potatoes, on the following year, as much corn as with his pig would be sufficient to pay the rent. The general poverty and ignorance of the people increased the competition. There was not much difference among the people who applied for a vacant farm. No man had such capital or skill as to enable him to make a greater profit than his com- petitors, and the most obvious distinction was the willingness to offer the highest rent. For such tenants the landlord could not erect suitable buildings for residences or farm offices. The tenant, if he got them, would not keep them in repair. The law gave some encouragement to this mode of dealing on the part of the landlord by the absence of poor laws, by the law of distress, which enabled the landlord to help himself without the expense of litigation with an insolvent tenant, and by the want practically of any law of limitations to affect the landlord's claims against his tenants. The law has been altered in this respect, although scarcely to a sufficient extent. The imprudence of setting land at high rents to insolvent tenants was becoming apparent to many, and the events con- C 2 20 SYSTEMS OF LAND TENURE [LONGFIELD. nected with the famine of 1847 made it manifest to all. It is comparatively a rare thing now for a landlord to set land at a rent which he does not believe the tenant ought to be able to pay ; and rents are now generally paid with reasonable punc- tuality. Notwithstanding the outrages that occur in some parts of the country, I believe there never was a time in which the occupying tenants owed so little rent. It is still, however, not unusual to insert in leases many clauses and covenants which are inconvenient to the tenant and useless to the landlord. They are not observed ; but they have the mischievous effect of giving the landlord too much power over his tenant. This is not peculiar to Ireland. I have seen copies of English leases which would make it very difficult for a tenant to manage his farm with profit, if he did everything which by the terms of his lease he was bound to do. The allowance of half a year's rent in arrear, under the name of the running gale, is almost a settled institution in some parts of the country. This is so much the case, that a tenant who had not paid his landlord the rent that fell due on the ist of November, would in the following month of March describe himself as owing no rent to his landlord, and in a year after he would describe himself as owing only a year's rent. He would not count the rent that fell due the preceding November. This custom is mischievous, as leading to accumulation of arrears ; it keeps the tenant in the landlord's power ; it prevents the tenant from looking to his lease as the measure of his obligations. In this, as in other cases, the prospect of long credit induces him to offer too high a price. The institution of a running gale often compels the land- lord to plunge into debt, from which he never extricates him- self. A man dies in December possessed of a good estate. The eldest son gets possession, subject to a jointure and por- tion. Thus he has a smaller income than his father had, while he is naturally disposed to live in the same style. He has also to be at some expense in buying furniture and other matters, when he takes possession of the family mansion. But all his difficulties are crowned by the running gale, which adds nearly six months to the period that intervenes before he receives any rent from his tenants. He receives very little before he is ten months in the possession of his estate ; and in the meantime he often contracts inveterate habits of running into debt. IRELAND.] IN VARIOUS COUNTRIES. 21 Arthur Young, in the interests of the tenantry, strongly recommended the enforcement of punctual payment of rent in his advice to Irish landlords. " The first object is a settled determination, never to be departed from, to let his farms only to the immediate occupiers of the land, and to avoid deceit ; not to let a cotter, herdsman, or steward, have more than three or four acres on any of his farms. By no means to reject the little occupier of a few acres from being a tenant to himself, rather than annex his land to a larger spot. Having by this previous step eased these inferior tenantry of the burden of the intermediate man, let him give out, and steadily adhere to it, that he shall insist on the regular and punctual payment of his rent, but shall take no personal service whatever. The meanest occupier to have a lease, and none shorter than twenty-one years, which I am inclined also to think is long enough for his advantage. There will arise, in spite of his tenderness, a necessity of securing a regular payment of rent. I would advise him to distrain without favour or affection at a certain period of deficiency. This will appear harsh only upon a superficial consideration. The object is to establish the sys- tem ; but it will fall before it is on its legs if it is founded on a landlord forgiving arrears or permitting them to increase." " Such a steady regular conduct would infallibly have its effect in animating all the tenantry on the estate to exert every nerve to be punctual ; whereas favour shown now and then would make every one, the least inclined to remissness, hope for its exertion towards himself; and every partial good would be attended with a diffusive evil; exceptions, however, to be made for very great and unavoidable misfortunes, clearly and undoubtedly proved." CHAPTER IV. THE subletting and subdivision of farms are not necessarily connected with each other. A farm may be sublet without being divided. But they partly produce the same effects, and pro- ceed from the same causes ; and, in many cases, subletting leads to subdivision. The common cause is the poverty of the country. This, when there are long leases, leads to sub- 22 SYSTEMS OF LAND TENURE [LONGFIELD, letting ; when the leases are short and unprofitable, it leads to a subdivision of farms. When a man holds land at a rent less than the full value of the land, whether the lowness of the rent is caused by the liberality of the landlord, or by the improvements which the tenant has made on his farm, or by a general rise in the value of land through the country, he has a property which he may enjoy in person, or transfer to another. If his inclination or any other circumstance leads him to any pursuit except the occupation of that particular farm, he will endeavour to dispose of his lease to the best advantage. In the wealthy districts of the north of Ireland he will readily find a purchaser. There are many men anxious to get a farm, and possessed of money sufficient not only to cultivate the land, but also to pay a fair price for the interest of the selling tenant. After this transaction, the new tenant now in occupation of the land has gained nothing by the liberality of the landlord, or the general rise in the value of land, or the improvements made by the tenant. Whatever the land (from any cause) is worth above the rent, he has paid for in the purchase-money which he has given to the preceding tenant. To him it is the same thing as if he had paid a fine to the landlord on getting possession of the farm. The sum thus paid depends more on the means of the purchaser than on a nice calculation of the value of the farm, or of the interest which the tenant has in it, although of course the greater the interest the greater will be the price paid for it. There is nothing in a transaction of this kind injurious to any person. On the contrary, like the ordinary operations of free trade, it appears beneficial to all parties concerned. This is obvious with respect to the immediate parties to the bargain. It is a voluntary transaction, into which neither party would enter if he did not consider it to be for his benefit. The outgoing tenant prefers the money to the land, the incoming tenant prefers the land to the money. The country gains by the change, as the incoming tenant is probably a better farmer or possessed of more capital than his predecessor. The land- lord is secured of his rent, and of the performance of the covenants in his leases. It is not likely that any man would pay a large sum for a farm, and then expose himself to ruin, or put himself in the landlord's power by neglecting to pay his rent, or by breaking the covenants in the lease. IRELAND.] IN VARIOUS COUNTRIES. 23 In one case, however, the change is not always to the landlord's taste. If he conferred an obligation on the out- going tenant by granting him a lease on liberal terms, he may not be pleased by the change which puts the farm into the hands of a person who is under no obligation to him. But this is a very slight matter. The sense of obligation is seldom very durable unless it is kept up by continual kindness, and such conduct on the part of the landlord would excite the same feeling in the new tenant. But there are parts of Ireland, chiefly in the south and west, which are so poor, that a tenant who wished to dispose of a valuable interest in a farm might find it difficult, if not impossible, to procure a purchaser. Many people might wish to get his farm, but none have the money to pay for it. The outgoing tenant therefore sublets the land instead of selling it, and thus receives an annual profit rent instead of a gross sum in hand. The new tenant hopes to pay the profit rent out of the proceeds of the farm. He is in the same position with respect to annual payments as if he had borrowed money to buy the tenant's farm, paying as interest a sum equivalent to the profit rent. He could not, however, borrow the money because there are few who have any sum to lend, and because he has no security to offer. The middleman trusts him with the land, relying upon the extraordinary powers which the law gives the landlord for the recovery of his rent. It is probable that the under-tenant will engage to pay a very high rent, to compensate for the indifferent security which he offers to his immediate landlord. In many cases this subletting was a profession or calling. The chief landlords thought it impossible, or at least very unpleasant, to collect rent from the very poor persons who were the occupying tenants of the country. They gave leases for their lives, or longer, and on reasonable terms as to rent, to men whom they considered good marks for the rent, and who sometimes promised that they would make some improve- ments in order to enable them to sublet at a profit. Thus subletting became very general, and there were large districts in which scarcely a single occupying tenant held directly from the owner of the fee. This system was useful to nobody but the middleman. He had a good income with very little risk or trouble; and in the earlier part of this century, during the French revolutionary 24 SYSTEMS OF LAND TENURE [LONGFIELD. war, and the depreciation of the currency caused by the sus- pension of cash payments by the Bank of England, rent of land rose so much that in many cases the middleman had as much profit from the land as the head landlord himself. Some- times land rose so much in value, that the tenant of the middleman was able to sublet his farm at a profit, and thus to become a middleman himself. The peasantry under this system were reduced to a wretched state. The traditions of liberality which belong to men who inherit large estates did not exist among men who took farms for the purpose of subletting them at the highest rent they could obtain. They were not expected to deal like gentlemen with their tenantry. They belonged nearly to the same class as the farmers, and made as hard a bargain in setting a farm as they would in selling a horse. They could scarcely afford to be liberal. If a gentleman whose estate is set for fifteen hundred a year makes a reduction of his rent at any time to the extent of twenty per cent., he loses one- fifth of his income ; but if he was a middleman, paying a rent of twelve hundred a year, he could not make such a reduction without losing his entire income. The same principle extends to every case. Every act of liberality by the middleman would cost him a much larger proportion of his income. His trade was to extract as much as possible from the wretched occupiers of the land. The increase of population was so rapid, and the general poverty of the country was such, that men were found willing to engage to pay him anything that he demanded. The wages of labour were so low, and the difficulty of getting employment was so great, that it was better to get possession of land on any terms than to trust to casual employment for a subsistence. The middleman, not having a permanent interest, did not care for the improvement or deterioration of the estate. A thought upon the subject never crossed his mind. Two circumstances were of material assistance to the middlemen, and to those who acted like middlemen in their treatment of the tenantry. First, there were no poor laws. They were therefore enabled to cover the land with a starving population, without the possibility of being called upon by law to contribute anything to their support. Secondly, the law of distress was more severe than it is now, and enabled the landlord to distrain growing crops. At common law, the IRELAND.] IN VARIOUS COUNTRIES. 25 crop, until it was severed from the soil, was part of the soil, and could not be seized by distress or execution ; but this was altered by Act of Parliament, to enable the landlord to seize the crops before they were ripe, to put keepers in possession to watch them, and to carry them away when they were ripe, leaving the starving tenant and his family in possession of the naked land. Thus the landlord frequently thought it for his interest to encourage the subdivision of farms. I remember, many years ago, hearing an extensive land agent laying down the principle in a very authoritative manner, that it was better for the landlord that there should be as many occupiers as possible on the land, since the more occupiers, the more tillage was necessary to support the tenants, and the landlord was able to help himself to the produce of the soil before they got anything. But although some landlords may have thought that sub- division was for their benefit, they could not long have retained that opinion of subletting. They soon saw that the middle- man was no use to them, but was merely intercepting a portion of their natural income ; and when the great fall of land took place after the year 1815, many middlemen were broken, and left the chief landlords to deal with the land itself or with the immediate occupiers. Many landlords resolved to grant renewals of leases to none but the tenants in actual occupa- tion. Acts of Parliament were passed to prevent or discourage subletting, and the system of middlemen gradually died away. They exist now chiefly where the land is held under bishops' leases, or under leases for lives renewable for ever. Although I have referred to the subletting Acts, I do not believe that they had much influence in preventing subletting. The law was always sufficient, if the landlords inserted cove- nants against subletting in their leases, and took a little trouble to enforce them. What really caused the change was that the landlords became alive to their interests on this point. However mischievous the old custom of subletting may have been, it is guiltless of one charge that has been sometimes made against it. The landlord had a right to distrain for his rent, even when the land was in the hands of an under-tenant, who had paid his own rent to the middleman. It has been frequently stated as a grievance of no unusual occurrence, that owing to this state of the law, the tenant in occupation was obliged to pay his rent twice over, once to his own immediate 26 SYSTEMS OF LAND TENURE [LONGFIELD. landlord, and again to the head landlord. I have seen this stated in tales written to illustrate the state of Ireland, and even in evidence given before commissioners to inquire into the state of Ireland. But the statement is untrue. Such state- ments could not obtain credence among any men who knew what the real grievance was under which the peasantry laboured from the middleman system. The real grievance was that the rent was so high as to reduce the tenant to indolent apathetic despair. His habitual state was one of hopeless insolvency, and the middleman secured him against being obliged to pay two rents, by charging him with one rent so high as to exceed his means of paying it. The foundation of the charge is this : a man gets a farm for a long term at the moderate rent of ^i an acre ; he sublets it to a farmer at the higher rent of 2 an acre, and, to save him- self trouble, he accepts his profit rent of i from the tenant, and lets the tenant settle the balance with the head landlord. The tenant does not dislike this arrangement, as the head land- lord is usually more indulgent than the middleman. He is apt, however, to describe himself as paying two rents (although he is in reality only paying one rent, divided between two persons), and to complain of it as a grievance that after he has paid his own landlord, another landlord should demand more from him. The system of subletting, at once the cause and the effect of Irish poverty, has nearly disappeared, and the middleman by profession no longer exists. In general, the immediate landlord of the occupying tenant is either the actual lord of the fee, or he has an interest in the land equivalent for all practical pur- poses to that of a fee-simple proprietor. The subdivision of farms arises from different causes ; one cause is subletting. The middleman who sublets looks for the highest price which he can procure. The highest offers will be generally made by the poorest farmers or labourers. These generally would not have the means to cultivate more than a small patch of land, and they would not be a mark for the rent of even a middle-sized farm. In many cases the middleman held a farm in his own hands, and received a con- siderable part of the rent of the small holdings under him in labour, or in such agricultural produce as the cotter tenant could produce, and as his position as a farmer enabled him to consume or utilise. His account with his tenant would be IRELAND.] IN VARIOUS COUNTRIES. 2^ something of this kind : on the one side would be the rent, the per contra would be two shillings and fourpence cash, forty days' labour, seven days' work of a horse and cart, a young pig, two geese, five pair of chickens, six dozen of eggs, and two loads of turf. The accounts, however, were never settled ; receipts were neither given nor demanded ; the tenant knew that he owed more than he could pay, and he had very little curiosity to know the exact amount. But the race of middlemen has now nearly died away, and subdivision from this cause rarely takes place. A more fertile cause of subdivision of land is the custom which prevailed among farmers of dividing their farms among their children. In this manner a farm belonging to a man with several children would be divided into five or six smaller farms ; and these in their turn might be further subdivided in the following generation. The landlord found it impossible to stop this proceeding. There were no formal acts which he could notice ; the children who were born on the land remained on it, and by mere verbal agreement each enjoyed some par- ticular part instead of all enjoying the whole in common. Sometimes they remained for a time in the same house, and then the labour of a few days would erect a separate cabin, which might appear to be intended as a dwelling for a labourer, or as a pigsty, or as a residence for some offset of the family. The chief causes of this custom were the absence of proper buildings on the land, and the ignorance and poverty of the farmers. The son who built a wretched cabin was as well lodged as he had been in his father's house; he had never known anything better. As there were no farm buildings nor any capital on the chief farm, he did not want any for the plot assigned to him for his support. In fact, the want of capital and farm buildings made a small farm more convenient and more profitable than one of larger size. If the large farm had been supplied with a suitable dwelling-house and other build- ings useful for the cultivation of the farm, it could not have been divided without inconvenience and probable loss. Thus the condition of the country made this subdivision a matter of convenience ; but the poverty and ignorance of the people made it a matter of necessity and justice. The farmer possessed nothing but his farm, and, therefore, could not pro- vide for a child in any manner except by giving him part of it. He and his children appeared not to know that any mode of 28 SYSTEMS OF LAND TENURE [LONGFIEI.D. livelihood was open to them except the cultivation of the par- ticular farm on which they had hitherto lived. In many cases they could only speak Irish, which put successful emigration out of the question. Those causes of subdivision of farms are gradually losing their force. Many farms are so well provided with suitable dwelling-houses and convenient offices, that they could not be subdivided without considerable loss. Tenants have more money, and are able to push forward their children in various occupations. There are more sources of employment open to them, and their better education enables them to emigrate with success. The spread of education has been a great cause of the increase of emigration. A very small proportion of that increase has been caused by insecurity of tenure. I do not believe that at present there is much tendency to an inconvenient subdivision of land in the greater part of Ireland ; things may be safely left to find their own level, and under a system of freedom land will naturally fall into those parcels which will make it most productive and useful to the entire community. There are physical causes in the land itself which in some cases will produce small, and in others large farms. CHAPTER V. IT has been supposed by many that a beneficial change might be produced in the condition of Ireland by creating and keep- ing up a large body of peasant proprietors that is to say, of men holding small farms in fee-simple. I shall not enter into much discussion respecting the utility of such proprietors, because I believe it would be very difficult to create them, and impossible to keep them up in such a country as Ireland. Where they have long existed, they may continue for a little longer and be sustained by habits and feelings traditionary in the families. But such habits and feelings cannot be created by any law, and they are inconsistent with the mental activity of Irishmen. They are inconsistent with railways, penny postage, a cheap newspaper press, and national education. IRELAND.] IN VARIOUS COUNTRIES. 29 Men will follow where their interests lead them, and in general it is not for a man's interest to be a peasant proprietor ! This may appear a paradox to some who would lay it down as incontrovertible truth that every peasant would desire to become a proprietor. I do not deny that, but I say that in general the proprietor would not wish to remain a peasant. Take, for example, the case of a man who is the owner in fee of thirty acres of land, worth thirty shillings an acre. The value of this, together with the capital necessary for its cultiva- tion, and the furniture of his house, &c., cannot be less than fifteen hundred pounds, and it is not to be supposed that a man who has received a fair education, and has so much capital at his command, would consider his intellect and time and capital sufficiently employed in the cultivation of five small fields. A farmer with the same capital, and holding a hundred and fifty acres at a full rent would be much better off. He could live in greater comfort, give his children a better education, and leave them a larger provision at his decease. The small proprietor might improve his position by selling his land, and engaging in trade ; or he might set his land, and enter into a profession, or some industrious calling with a salary, or he might emigrate and become the owner of five hundred acres of land instead of thirty, and have boundless prospects for his family instead of giving them the paltry provision of five or six acres each. In short, he can scarcely make a more unprofitable use of his estate than by occupying it himself as a peasant proprietor. Of course, if you take a peasant of forty years of age, and make him suddenly a proprietor, although he may emigrate, he cannot readily betake himself to any other pursuit. But his sons will not remain on that farm. The latest agrarian crime that I saw mentioned in the newspapers was the murder of a man with a Celtic name. He was stated to have been the owner in fee of forty acres of land, which he set to four or five tenants, and went away to earn his bread elsewhere. He returned, having become entitled on his discharge from some public employment to a pension of about ^14 a year. He took back some of the land from the tenants to reside on it himself, forgiving them a year and a half's rent in exchange. He was brutally murdered. In the sales in the Landed Estates Court it may be observed as a matter of constant occurrence that a man with an estate that would be the size of a single small farm does 30 SYSTEMS OF LAND TENURE [LONGFIELD. not hold it all in his own hands, but sets the greater part of it to several small tenants, not keeping more in his own hands than is necessary for the supply of his house. The possession of a small fee-simple estate can have little tendency to prevent emigration. The price would furnish the means of a prosperous emigration. The owner of an estate of forty acres in Ireland may become the owner of several hundred acres in Australia or America. In those countries where there are many very small here- ditary estates, the inhabitants are ignorant, unambitious, selfish, frugal, and laborious. The whole concerns of the family are centred in one care how to preserve the patrimonial field. With this view, only one son may marry, and the occupations of all are settled beforehand with this one object. The peasant proprietor has the virtues which the Irish farmer wants, and the vices from which the Irishman is free. I should not expect much advantage from the sudden creation of peasant proprietors ; but the law ought not to do anything to prevent their existence, as it now does by the law of primogeniture, the law of settlement, and every law that makes the transfer of land tedious, difficult, uncertain, or expensive. The question of large and small farms is sometimes dis- cussed as if it was intimately connected with the prosperity of Ireland. Some think that the country would be more pros- perous if it was divided into large farms, held by men of capital, cultivating the land by means of well-paid labourers, assisted by the most approved machinery. They wish to assimilate the agriculture of Ireland to the manufactures of England. Others are for the division into small farms, where the farmer would be his own labourer and overseer. A great deal may be said on both sides ; but the nature of the land itself generally determines whether the farms should be large or small. Rich plains, well fitted for pasture, will be held in large tracts. Uneven, rocky, rough, light, arable land, will generally be divided into small farms. The grazier, who buys and sells and fattens cattle for the market, requires far more skill than the village farmer. He has far more opportunities of gaining money by skill, or of losing it by ignorance. Hence the unskilful grazier breaks, the skilful enlarges his territory. This he may safely do, as it is not necessary for him, as it is for the tillage farmer, to watch IRELAND.]' IN VARIOUS COUNTRIES. 31 his labourers all day. He may even have several farms not adjacent to each other. The more extensive his operations are, the more opportunities he has of using, and even of im- proving, his skill in the selection, purchase, sale, and manage- ment of cattle. For these reasons there is a tendency for fattening pastures to be held in large tracts. The case is different with rough tillage farms. The expense of locomotion and of carriage from one part of the farm to another, and the impossibility of adequate inspection if the farm is large, naturally lead to the creation of small farms. The nature of the soil also determines to a great extent whether the land should be employed in pasturage or tillage. There is a rich stiff clay that is excellent for pasture, and while under pasture improves every year, but is not profitable for tillage, as it requires so much labour as to consume the value of the crop. Old pasture land, if broken up, takes a long time to recover its fattening qualities, although it will yield hay or be fit for dairy produce. On the other hand, there is a light soil which yields a fair crop without much expense of cultivation, and will not improve by being kept long in pasture, but has a tendency to run into unprofitable moss. This land is necessarily employed in tillage, and divided into small farms. If a farmer makes money, he cannot conveniently extend his operations, which are limited by the size of his farm. His success depends more upon thrift and industry than upon superior skill. The chief difference is that the good farmer is able to live in greater comfort than the bad one. Agricultural skill has not made such progress as to decide the contest between high and low farming. The one makes much, but the other spends little, and runs no risk. I have given instances of land which must be held in large pasture farms, and of land which must be held in small tillage farms ; but these shade into each other by imperceptible grada- tions, and there is much debatable ground, in which sometimes the one and sometimes the other system prevailed. At present I think the system of pasture and large farms has a tendency to extend itself, for the following reasons : In the first place, the price of meat has risen, while the price of corn has not advanced. This is an addition to the grazier's profit. In the second place, the wages of labour have risen in a greater degree than the efficiency of the labourer, and this, by increasing the expense, reduces the profits of tillage. 32 SYSTEMS OF LAND TENURE [LONGFIELD Thirdly, the invention of machines for threshing, reaping, and mowing enables the farmer on a large scale to perform those important operations with less expense and greater rapidity. It would be unprofitable to a small farmer to possess those machines, for which his farm could not furnish more than one or two days' work in the year. It is true that they may be hired, and, in fact, this is often done with threshing machines. But with mowing and reaping machines this is more difficult. The farmer cannot so readily make an appointment some time beforehand, irrespective of the weather ; and when his crop is ready he cannot wait for the reaping machine without some loss. The land also must be properly prepared, or the machinery will suffer damage. These circumstances throw some difficulty in the way of hiring reaping and mowing machines ; but it is not impossible, and is sometimes done. Another circumstance, which tends to keep up large farms when once they have been consolidated, is the larger capital now expended in the erection of farm-buildings. It is obvious that when a farm of 200 acres is supplied with a suitable dwell- ing, a barn, houses for cattle, and other offices, it cannot be divided into two farms without loss. The best remedy against too great an extension of the large farm system, without an injurious interference with the free course of industry, is to be found in a good agricultural educa- tion for the poor. It is a sad sight to see a holding of four acres, of which only one is in a state of cultivation, and that often a cultivation of a wretched kind. The remaining three acres are taking a long rest, after having been over-cropped, and the entire is full of weeds. Meantime, the peasant is looking idly on, and between the time of planting his potatoes and digging them, spends only a few days' labour on his farm in earthing them. His short or long tenure has nothing to do with the matter. The work which he neglects is precisely that work which would yield him an immediate return. It is not always the sloth of the owner which is the cause of the wretched state of his little farm. He is often ready to work for any employer at very small wages. It has not been an uncommon thing for a man to look for work at sixpence a day when he might earn more than double that amount by working for himself on his own little farm. IRELAND.] IN VARIOUS COUNTRIES. 33 Ignorance is the chief cause of his idleness and mismanage- ment. The peasant farmer knows only how to raise potatoes according to the routine of the slovenly farmers around him. While he imitates them, he is inferior to them, for he works with less capital and worse tools ; but he is unaware of the advantages which he might possess by deviating from their practice, and treating his little plot as a garden, not as a farm. He thus might find employment for himself and all his family, and treble the produce of his land when they spent that time in profitable work which they from ignorance often spend in worse than unprofitable idleness. To enable him to act thus he must be taught, for at present he has no opportunity of learning the cultivation of a garden farm by experience or observation of what is going on around him. He has the advantages on his side that the personal ex- penses are inconsiderable. Being himself the labourer, he requires no steward or overseer, and he saves many of the expenses incident to a larger farm. Those advantages are lost as soon as he possesses more land than he can cultivate without a horse. It then ceases to be a garden farm. The small farmer in Ireland has never sufficiently considered the necessity of keeping up the fertility of the land. Ireland has been mercilessly over-cropped. Notwithstanding the in- crease of pasture since 1848, the land has not yet recovered from the exhaustion caused by the over-tillage of a century. Formerly the course of husbandry was of this kind : ist. Potatoes, with manure. 2nd. Wheat. 3rd and successive years, Oats and barley until the land was so barren as to be incapable of yielding another com crop. It was then permitted to rest in dirt and weeds until it got a green skin or sole, and then the same exhausting process recommences. This was the case in Arthur Young's time, 1777. Thus he describes the courses of Newtown Stewart : i. Oats on lay 2. Wheat. 3. Oats. 4. Barley. 5. Oats. 6. Barley. 7. Oats. 8. Left for lay. A few sow clover or rye-grass for two years. His account of the courses of Courtown are i. Potatoes. 2. Barley. 3. Oats ; then more crops of oats, or barley and oats, till the soil is exhausted, when they leave it to turf itself, which it will not do under ten or fifteen years. This system continued until the middle of this century on many estates in which the agents seemed to consider that their only duty was to collect the rents. 34 SYSTEMS OF LAND TENURE [LONGFIELD. Even with careful management, it would not have been easy to preserve the fertility of the soil unimpaired when the chief exports were provisions, and no artificial manures were imported. CHAPTER VI. ULSTER TENANT-RIGHT. THE phrase " tenant-right " is not unknown in England, and is sometimes found in wills and other legal documents. It signifies not merely the actual estate and right of the tenant, but also the good-will, and the expectation which the tenant has that he will be permitted to remain in possession of the land on reasonable terms. The phrase is used in many parts of Ireland besides Ulster ; and in every part of Ireland, any tenant-at-will, under a liberal landlord, could obtain a good price for his interest in the land if he were permitted to sell it. The peculiarity of the Ulster tenant-right is, that it has been reduced into a kind of system, with the consent or acquiescence of the landlords. It has several qualities which may be found separately elsewhere. In the first place, when land is set for agricultural purposes, the rent demanded is not a competition rent; it is not the utmost rent which a good and solvent tenant would be willing to pay. If there is a permanent increase in the value of land, either from the general improvement of the country or from the increased price of agricultural produce, the landlord may raise the rent at his discretion in the same manner as any other landlord may raise the rent of his yearly tenants. It is, however, expected that this discretion will be guided by the same generous feeling which the landlord showed in the original letting. Secondly, it is expected that as long as the tenant pays his rent, the landlord will not use his legal power of putting an end to the tenancy. Thirdly, if a tenant finds it necessary or convenient to leave his farm, he may sell his tenant-right, with the approbation of his landlord. This approbation is not to be capriciously refused ; but, on the other hand, the tenant is not at liberty to IRELAND.] IN VARIOUS COUNTRIES. 35 select any substitute that he thinks proper, irrespective of his character and possession of sufficient means for the efficient cultivation of the land. He is not always permitted even to accept the utmost that an eligible successor would be willing to pay for the tenant-right. The landlord has an obvious interest in preventing this price from being too high. Too high a price might deprive the incoming tenant of the means of doing justice to the farm. Moreover, it might impose a moral obligation on the landlord not to raise the rent so high as he might otherwise do without prejudice to the customary tenant-right allowed on his estate. Thus, suppose the customary value of the tenant-right on an estate has been ^7 an acre, but since the last settlement fixing the rate of rent the country has improved, or the price of agricultural produce has risen, so that it would be reasonable in a short time to make a new agreement with the tenants respecting the rents. In this case, if an incoming tenant, with the consent of the landlord, paid for the tenant-right a price based on the calculation that the present amount of rent would not be altered for a considerable period, he would have a just cause of complaint if the landlord, by raising his rent, should disturb the arrangements, on the faith of which he had paid his money. If the selling tenant should say, Have not I a right to sell my interest for the highest price I can get ? the landlord might reply, Have not I the same right ? The selling tenant has no right to complain, if, when he sells his farm, he gets back the price which he originally paid, together with the value of all the improvements which he may have made in the meantime. Fourthly, all arrears of rent must be paid before the transfer is completed. In a large and well-managed estate, the trans- action proceeds in this manner : John M 'Garry holds a farm at the yearly rent of ^30. He owes a year and a half s rent, and he wishes to sell his farm, in order to emigrate, or to set up a shop, or to pay his debts, or for any other purpose. Charles O'Neil agrees to give him ^500 for it. He asks the agent's consent, which is granted. They call on the agent at his office ; all arrears of rent are paid, probably out of the ^500. An entry is made in the books, and the name of Charles O'Neil is entered as tenant in place of John M'Garry. The transaction is then complete, without any law expenses or any risk of bad title. It is true that as against the landlord it rests D 2 36 SYSTEMS OF LAND TENURE [LONGFIELD. upon his honour and upon public opinion ; but as against the rest of the world the title is perfect. No creditor, purchaser, mortgagee, or claimant under any former tenant can disturb the purchaser. A notice to quit by the landlord will protect him against every other claimant. It is no small advantage to be emancipated from all the complicated laws of landed property. Thus in Ulster, free trade in land, as far as the right of occupation is concerned, prevails in the most perfect manner. Thus important property, to the value of several millions, may be bought and sold without risk, or trouble, or expense, in reference to the title or conveyance as readily as a horse or a cow. Find a person in possession willing to sell, agree upon the value, and pay the price, and the thing is done the pro- perty is yours. It is true that this free trade affects only the permanent right of occupation, and does not extend to the absolute property in the soil ; but this is enough, for it is the industry and capital of the occupier that makes the land the source of wealth. I have alluded to the entry in the agent's books where the estate is large; but where the estate is small, and managed with less regularity, the same transaction is accomplished, without any formal entries in books, by a conversation with the landlord or his agent on the road, or at a fair, or market, or any place where the parties meet each other. There are some advantages attending the Ulster tenant- right, independent of the free trade in land which it creates : under this system the tenantry cannot be very poor. However, it may be said that this result is attained, not by giving pro- perty to the tenant, but by preventing any poor man from becoming a tenant. You cannot become a farmer unless you have sufficient capital not only to cultivate the land, but also to buy at a high price the interest of the tenant who is already in occupation. To the manager of an estate the system is very agreeable. The rents are moderate, and paid with punctuality, and the agent is not subjected to the harassing labour and danger which attend the enforcement of rent in many parts of Ireland. There are no evictions by process of law ; but if the tenant is not thriving, and finds it difficult to pay his rent, he is warned by the agent or by his own prudence that he ought to sell his tenant-right, and retire from his farm with a good sum in hand IRELAND.] IN VARIOUS COUNTRIES. 37 to emigrate or support him in some other pursuit, before he is totally ruined by remaining in a farm that he is unable to cul- tivate with profit. He is succeeded by a wealthier or more skilful tenant, and the landlord and the country at large gain by the change. Under the Ulster system, the landlord appears to receive a smaller rent than he might reasonably demand, but I doubt if he is injured by it. He is less apt to live beyond his real income. His rent-roll does not present him with an extrava- gant view of his means. Owing to the quietness and industry of the people, the value of land improves rapidly. It is better to receive two-thirds of the value of an estate worth ^6,000 a year than the entire value of an estate worth only ^3,000, and this is often the difference between an Ulster landlord and a landlord in those parts of Ireland where the system does not prevail. It is doubtful whether an Ulster landlord does not receive as much rent as a Connaught landlord would receive for an estate of the same natural productive powers. But the system is not without its disadvantages. The tenant is too dependent on his landlord for the property for which he has paid the full value. Not only are his rights against the landlord not recognised by law, but even while dependent upon usage and honour, they are incapable of being exactly denned. The important question, what ought to be the proportion between the value of the tenant's and the landlord's interest, is not ascertained. It varies on different estates according to the wealth and liberality of the landlord, and even on the same estate it is liable to fluctuation. When the value of land remains stationary, the matter is easily settled by letting the rent remain as it is ; but when an improvement takes place gradually, a difficulty arises. It is not easy for some time to determine whether the change is temporary or is likely to be permanent. Every small increase in value, even if it is likely to be permanent, cannot be met by an immediate increase of rent. To make frequent although small additions to the rent would be a very unpopular course for the landlord to take. It would lead to frequent disputes, while it would alarm the tenantry, and diminish their confidence in the tenant-right. Thus, while an increase in the value of land is always gradual, and scarcely seen while it is going on, a rise in rent is a sharp change, and is immediately and unpleasantly felt. 38 SYSTEMS OF LAND TENURE Take the case of a farmer who holds eighty acres at a rent of ;i2o a year. The fair marketable value of the land is ;i 173. an acre, so that he has a profit of seven shillings an acre in addition to the ordinary profits of his capital. For this tenant-right he could readily get a price of *} an acre, ^560 or more, if the people in the neighbourhood are pros- pering either in trade or agriculture. The country is im- proving, so that each year on an average adds threepence an acre to the value of the land. This goes on for twelve years, when the landlord thinks it right to make a new settlement of the rent, by adding three shillings an acre, leaving the cus- tomary seven shillings an acre tenant-right. The tenant will certainly complain loudly. He will see that this increase of rent makes him worse off than he has been for several years past, and that nothing has occurred during the last three or four years to justify such an addition to his rent. He cannot remember accurately what was the general value of land twelve years ago, while he has a very precise recollection of any im- provements which he himself may have made in the meantime, and to such improvements, whether real or imaginary, he will attribute the increase of rent that has been imposed on him. He will complain all the more loudly, and feel a deeper sense of injury, because the justice of his complaint cannot be legally investigated. The legal power of the landlord to increase the rent is altogether independent of the circumstances by which his conduct may be justified. Thus, whether by a gradual process or by starts at long intervals, the landlord finds it equally unpopular and disagree- able to increase the rents in proportion to the improvements, and in this manner the tenant-right on large and liberally managed estates has a constant tendency to increase in value. I believe it never was more valuable than it is now. The right which the landlord has on the sale of a tenant- right, to object to the purchaser or the price, is very rarely exer- cised. The ability to pay the purchase-money may be taken as a fair proof that the incoming tenant will be able to cultivate the land and meet his engagements. As to the price, when the rent is all paid up, the incoming and outgoing tenant may make what bargain they like without the knowledge of the landlord, so that there is seldom an opportunity of objecting on this score. So far everything seems to be in favour of the tenant. But IRELAND.] IN VARIOUS COUNTRIES. 39 if the value of land falls, the loss falls entirely upon him ; and when the great depreciation of land took place in 1848, the state of parts of the counties of Armagh and Monahan was nearly as bad as in King's County or Tipperary. To those who wanted to part with their farms, the tenant-right was valueless, as there were no purchasers. The tenants were unable to sell what they had bought at a very high price. They expected that good times would return if they could hold out for a short time, and were inclined, in defiance of the law, to resist every attempt to deprive them of their holdings, or to make them pay their rents. The value of the tenant-right on an estate is not subject to any fixed principle. It does not depend on any improvements made by the tenant. If the landlord is a just man, he will, in all his dealings with the tenant, value the land as if those improvements had never been made. But beyond those im- provements, and even in cases where it cannot be pretended that any improvement was made, the tenant-right exists, and is often bought and sold for large sums of money. The price is often so high that the interest of the purchase-money, together with the rent, is much more than the fair value of the land. It seems essential to the existence of tenant-right that land should be owned in large masses by the landlords. The owner of an estate of ^20,000 a year may act with great liberality, and set the land for less than it is really worth. But if the same estate was divided among forty men, each with ^500 a year, it is not likely that they would all act so liberally without any regard to the ordinary commercial prin- ciple of getting as much as they reasonably could. There would be a chance that some at least among the number would take every opportunity of making small but frequent additions to the rent, so small that the tenant would not on any one occasion feel it worth his while to make a desperate resistance, but so frequent that the value of the tenant-right would gradually dwindle away.- It is sometimes asked, Would the tenants prefer leases to their present position as yearly tenants ? This, of course, must depend upon the length of the lease. A very long lease would undoubtedly improve their position. A short lease might have a contrary effect by leading to an earlier readjust- ment of the terms of their tenures. They would sometimes 40 SYSTEMS OF LAND TENURE [LONGFIELD: hope that the present system might operate as an adjournment sine die of this readjustment. Time passes away, and it appears as far off as ever, as there is no reason why it should be required in one year rather than another. But if a lease was made, the time would be growing shorter every day. On the whole, however, I believe that most of the tenants would gladly accept a lease for thirty-one years at some increase of rent, rather than remain in their present somewhat dependent and precarious position. It is not to be supposed that this system prevails univer- sally through Ulster, or that any man could make a map to include only the parts in which it prevails. It is more usual to grant leases in towns, and in the neighbourhood of towns. There are also many scattered estates on which leases are granted, and there the leases are often sold, or the land sublet as in other parts of the country. But although there would be no difficulty in the way to prevent the introduction of leases into Ulster, it would not be found so easy to introduce the Ulster system of tenant-right into other parts of Ireland. It is too vague to be capable of exact definition, or of being enforced by law. It depends upon confidence on one side, and honour on the other upon a mutual understanding and public opinion and these feelings cannot be created by law or agreement ; they can only grow up gradually and slowly. No one would wish to break up a system as long as it is supposed to work well, and when no complaints are made by the persons affected by it. But even if it were possible, I should not wish to see it extended to the whole of Ireland. The tenant is dependent on the liberality of his landlord to a degree inconsistent with a democratic constitution. A land- lord who would not venture altogether to destroy the tenant- right has still the power to make a very great reduction in its value. The tenant holds a valuable property at the mercy of another who has an interest in taking it from him. Another evil of the system is, that no man can take a farm unless he has double the capital that would otherwise have been necessary. The purchase of the tenant-right takes as much capital as the stocking of the farm. Thus a barrier is placed against the acquisition of a farm by a poor man. The advantage of the landlord and tenant system, as distinguished from the proprietary system, is that it enables the farmer to IKBLAND.] IN VARIOUS COUNTRIES. 41 apply his capital more efficiently to the cultivation of the soil, when the land itself is only paid for while he is using it. For the use of the land, the tenant pays a rent that would only be a moderate interest on the sum necessary to buy it. In Ulster, the saving in the amount of rent gives the tenant a very low interest on the sum that he is required to pay for the tenant- right. A man with skill and energy and a moderate capital would scarcely think it prudent to set up as a farmer in Ulster. The wealth obtained by the cultivation and manufacture of flax in Ulster is the cause that when a farm is to be sold there is always at hand some person able and willing to pay for the tenant-, ight. In the other provinces the case would be different. None of the neighbours would have money to buy the tenant-right, and the purchaser would be obliged to borrow the purchase-money at a high rate of interest, as the security for payment would be of an inferior character. We should therefore look for some source of improvement in Munster and Connaught, other than the introduction of Ulster tenant-right. Something, however, like the Ulster tenant-right in all its useful characters, but without its vagueness and uncertainty, might be created by an agreement or a law to the following effect : Landlord demises land to tenant on the following terms Tenant shall hold as yearly tenant at the rent of 40, payable on the ist of May and ist of November, and subject to the covenants in the lease contained for the proper cultiva- tion of the land. Landlord shall not be at liberty to evict the tenant for any cause except breach of covenant or non-payment of rent. On the first eviction for any breach, the tenant shall be entitled to redeem within three months on payment of damages, to be settled by the court. The tenant-right shall be considered as of the value of seven years' purchase. The landlord shall be at liberty to raise the rent by giving notice one year at least before the ist of November. If the tenant is not satisfied to pay such increase of rent, he may at any time before the ist of March give notice to the landlord that he will surrender his holding on the ist of November next, upon which the landlord must pay him seven years of such increased rent as compensation for his tenant-right. If the tenant considers his rent to be too high, he may, one year before the ist of November, serve notice on his landlord to have it reduced to such rent as he may choose to name. In this case the landlord, 42 SYSTEMS OF LAND TENURE [LONGFIELD at any time before the ist of March, may serve notice on the tenant that he will not consent to the reduction, and will take up the land and pay him seven years' value of such reduced rent, and upon tender of this sum on the ist of November, the tenancy shall be at an end. The money is not to be paid until the land is given up. In all cases of eviction the tenant shall be entitled to seven years' rent from the land- lord, deducting therefrom all money due for arrears of rent or breach of covenant. The tenant shall not be permitted to divide or sublet his farm, but he may sell his tenant-right, with the consent of the landlord, on giving two months' notice. If the landlord refuses to give his consent, he must purchase the tenant-right himself, paying seven years' purchase, but deduct- ing all money due for arrears of rent or breaches of covenant. The tenant shall not be permitted to charge or incumber his holding. Every contract or engagement that he makes shall be considered as a merely personal contract, binding himself, but not affecting the land until the landlord shall have given his consent. If the tenant finds it necessary to make any improvement on his farm, he shall serve notice on the landlord, specifying the improvement and the estimated expense. If the landlord objects, the tenant may refer it to the Land Tribunal to deter- mine whether the objection is reasonable. If the landlord does not object, or if the Land Tribunal decides that the objection is not reasonable, the tenant may proceed with the improve- ment, and when it is completed the tenant shall be entitled to compensation in the following manner : He shall receive for the term of forty years an annuity at the rate of 7 los. per cent., payable half-yearly. As long as he remains in possession, his enjoyment of the land shall be deemed a payment of the annuity. If he sells his tenant-right, the purchaser shall be entitled to the residue of the annuity on the same terms. If the landlord shall increase his rent with the consent of the tenant, the latter shall be entitled to deduct the annuity, during his term, from the increased rent. If the tenant objects to the increase of rent, the landlord shall pay, as compensation for the tenant-right, seven years of the increased rent, plus the estimated value of the residue of the annuity, minus seven years of the annuity, or, at the option of the tenant, shall pay seven years of the increased rent. To prevent frequent alterations of the rent, it might be IRELAND.] IN VARIOUS COUNTRIES. 43 provided that no increase shall be less than ten per cent, on the rent, and that no increase shall be made at a shorter interval than seven years from the last increase. The above may be called the parliamentary tenant-right, which every landlord should have power to grant, notwithstanding any incumbrance or settlement affecting his estate. CHAPTER VII. A FEELING almost universal prevails in Ireland that the relation between landlord and tenant is not in a satisfactory condition, and that some concessions are required from land- lords, and it is thought by many that such concessions might be made without detriment to their real interests. I shall mention some of the chief complaints, and shall endeavour to draw a distinction between those complaints which appear to have some foundation in real grievances, and those claims which arise from a greedy desire to obtain by political changes that wealth which ought to be the reward of thrift and industry. The first complaint is, that landlords are frequently pre- vented by settlements from granting beneficial leases, or entering into reasonable agreements with their tenants. If a farmer obtains a beneficial lease or a fair agreement, and expends money upon the faith of such lease or agreement, he is liable to utter ruin. The landlord's successor, often his eldest son, may evict him without compensation, relying upon some settlement of which the tenant never could have suspected the existence. The second grievance is, that the tenant gets possession of a farm in such a condition that he cannot cultivate it efficiently, or dwell on it with decency, without making a large outlay on buildings or other permanent improvements. But when he has made those necessary improvements, he is liable to be dispossessed before he has enjoyed the farm long enough to obtain a fair remuneration for his risk and outlay. He loses the money which he expended in the reasonable belief that the landlord who permitted the expenditure would also permit him to reap the benefit of it. 44 SYSTEMS OF LAND TENURE [LONGFIELD. The third grievance is, that a tenant often purchases the interest of a tenant from year to year with the express or implied sanction of the landlord. Sometimes part of the pur- chase-money is paid to the landlord in discharge of arrears of rent due by the outgoing tenant. Notwithstanding this, the tenant who paid the money is liable to be dispossessed by the landlord who received it. The landlord must have known that the tenant paid the money in the belief that he would be permitted to enjoy the land for a reasonable period. In those three cases the tenant has expended money, or money's worth, on the faith of a contract, expressed or implied, that he should be permitted to enjoy the fruits of his expendi- ture. These three grievances could be completely remedied without any revolutionary changes. The first grievance would cease to exist if every limited owner was empowered to grant a lease for a term of forty-one years, at a rent not less than three-fourths of the value. This would completely protect the tenant-farmer ; and if any man seeks to obtain a greater interest in land, there is nothing unreasonable in requiring him to investigate the title like any other prudent purchaser. A line must be drawn somewhere to distinguish the tenant from the purchaser. The two latter grievances might be remedied by an enact- ment that any tenant from year to year who has purchased the interest of an out-going tenant, or any tenant who has improved his farm with the consent of the landlord expressed or implied, may apply for a recognition of his legal tenant-right. If the landlord refuses this recognition, an arbitrator appointed by Government should have authority to investigate the case, and determine whether the tenant has made out his claim for tenant- right. If the claim is established, the arbitrator should in his award set forth what improvements, if any, the tenant has made, and the date and value of those improvements. Until those improvements are exhausted, the tenant should be en- titled to enjoy them without paying any increased rent on their account ; and if he is obliged to leave the farm in the mean- time, he should receive a fair compensation, in addition to the value of his tenant-right, for his improvements. But the claims made by many on behalf of the tenants go far beyond the cases that I have mentioned. They claim rents determined by arbitration, not by contract ; and fixity of tenure, irrespective of any custom of tenant-right, or money IRELAND.] IN VARIOUS COUNTRIES. 45 paid to an outgoing tenant, or any improvement made upon the land. They claim in effect that a man who has taken a lease of a farm for twenty-one years, at a rent of ^50 a year, shall have it changed to a lease for ever at a rent of ^25, although every farmer in the neighbourhood may be willing to pay ^50 rent for the farm. It is scarcely necessary to use argument to prove the in- justice of a claim which is made in contradiction to an express contract. If the contract is unequal or unjust, the utmost that can be demanded by the complaining party is, that it should be rescinded. But except in the claims made on behalf of Irish tenants, it was never known that a man who had made a contract beneficial to himself, the benefit of which he could sell at a considerable profit, and which he would be exceed- ingly unwilling to rescind, should set up a public cry to have that contract altered. What would be thought of such a case as this ? A man sells for 100 a horse, for which, if he set it up to auction, he could probably get ^130. The following conversation takes place the next day between the buyer and the seller. Buyer : " You have charged me too much for that horse." Seller: "I am sorry you think so. However, I am ready to take it off your hands, and to return the price, or I can find a person who will pay you twenty pounds to stand in your shoes." Buyer: "I thank you; but that will not suit me. I am determined to keep the horse, and the price must be left to arbitration ; and if I am satisfied with the price which the arbitrators award, I shall pay it, otherwise not." But such a conversation would not give an adequate idea of the claims of the Irish tenant. He demands not only to pay less, but to get more than he contracted for. His bargain is to get the land for twenty-one years, and his claim is to hold it for ever, although he has not a shadow of right to the land, except under that contract. I am confining myself to the case where the tenant has no claim, except that he is a tenant ; for if he has any other ground for his demand, it ought to be fairly and liberally considered. It is not difficult to prove that a law establishing fixity of tenure would be as impolitic as it would be unjust. It would utterly fail in its professed object. It would be a mere violent and wrongful transfer of property from a certain number of individuals who are now called landlords to another set of individuals who are now called tenants, and who would then 46 SYSTEMS OF LAND TENURE [LONGFIELD. become landlords. The men now in possession would be enabled to violate their engagements, but no future tenants would gain anything by the change. It may be taken as an undoubted axiom in political economy, that if a man is permitted to sell or retain his own property, and to select the purchaser, he cannot be prevented from getting the utmost price that another person will be ready to pay for it. The only test of value is the price which the public is willing to pay. Apply this axiom to the case of land. Suppose fixity of tenure and the settlement of rents by a Government arbitrator to be the established law of the land. I am in possession as owner in fee-simple of a farm of one hundred acres, worth two pounds an acre. A farmer would be willing to pay that rent, hoping to get a fair return for his capital and labour according to the ordinary rate of agricultural profit. If I set it to a tenant, he will have the rent settled by an arbitrator, who will probably award a rent of 100 a year as the fair value. But I may set it to a trustee, who then becomes entitled to the land for ever at the fee-farm rent of ^100 a year. He sets up the tenant-right for sale, which will sell for between two or three thousand pounds. The purchaser will probably be obliged to raise the greatest part of this by mortgage. In the end it will be found that between rent and interest the new tenant will have to pay more than ^200 a year, the rent at which he could have obtained it if the law had permitted me to set it to him at that rent. Moreover, he will have paid away a large portion of his capital, which would have been more profitably employed in the cultivation of the land. The tenant will lie under another disadvantage, in being obliged to deal with two persons, from neither of whom can he expect any forbearance, instead of a single landlord, from whom he might get some assistance or abatement in a bad season. He cannot ask an abatement from the landlord to whom he is paying only half the value of the land as rent. He need not expect any reduction of interest from the mortgagee, for a money-lender is more apt to increase than to reduce the rate of interest in a season of hardship and scarcity. The only mode in which any person could get a farm would be by paying a high price for the interest of some farmer who might be willing to sell his tenant-right. The price would generally be as much as three times the capital that would be sufficient to till the land. A great obstacle would be opposed IRELAND.] IN VARIOUS COUNTRIES. 47 to agricultural improvement by this impediment to free trade in land. No man could become a farmer unless he had much more capital than would otherwise be found necessary ; for he would not be able to borrow the entire sum necessary to purchase the tenant-right ; and without purchasing a tenant- right, he could not obtain a farm. It is not to be supposed that the present tenants, when they had obtained a permanent title to the land, would part with their farms on the basis of the valuation on which they had obtained them. They would certainly require the highest price that could be obtained by free competition. Thus, after the first confiscation of the landlord's estates, the law of valuation would become a dead letter. It would not be used to regulate future contracts, as men would find a way of settling the terms of their own contracts by mutual agreement. As to fixity of tenure, it would soon be found intolerable, and would be repealed as soon as it had done its work of depriving the present owners of their estates. The public would not long bear a law which prevented two men from making a bargain just in itself, useful to the public, and pro- fitable to both parties. I held some land in fee. I am too old and infirm to cultivate it. In a few years my son will be old enough to undertake the management of it. I wish to set it for a term of seven years ; and, on account of the shortness of the lease, to accept a lower rent than if I were granting a longer term. This exactly suits my neighbour, to whom a moderate rent is a greater object than a long lease ; but the law of fixity of tenure would step in, and say that I must either hold on my land at a loss, or part with the possession for ever, and that he must either do without a farm, or pay a sum for a fee-farm tenure beyond what he could afford. The result would probably be, that he would be obliged to remain idle for want of a farm, and that my farm would remain nearly unprofitable for want of a tenant, and the wealth of the country would be proportionally diminished. In general there is no mode of getting land so convenient to a good farmer with a competent capital as getting his land for a moderate term at a rent settled by mutual agreement. The term should not be too long, as the landlord would naturally and reasonably require a higher rent. A belief prevails very generally that land has a tendency to rise in value, irrespective 48 SYSTEMS OF LAND TENURE [LONGFIELD. of any improvements made upon it, or that money will fall in value, so that in the next century land will be worth a higher rent. The advantage of that rise will belong to the person who will then have the disposition of the land. This at present belongs to the owner in fee-simple in possession, and if he is asked to part with it, he will require an increase of rent, or some present payment as an equivalent. This would be incon- venient to the tenant, who expects to make ten per cent, compound interest on his capital. To him it would be a loss to expend any of this profitable capital in the purchase of an expectation to be realised at the end of a century. It is not material whether this belief in the probability of a rise in the value of land be well founded or not, it is sufficient that it exists and must have its influence upon all contracts. It certainly cannot be disproved, and it has the experience of several centuries to support it. I have assumed that fixity of tenure is to be founded on a valuation, because I see no other mode in which it can be established. If the landlord and tenant can fix the rent by agreement, there would be danger that the land would be set in many instances at far more than its real value, with an under- standing (not supported by any promise, and not capable of being enforced by law) that the entire rent would never be demanded. This, as far as the public is concerned, is the worst tenure by which a tenant can hold his land. If the fixity of tenure is to be on the existing rents, it in many cases would be unjust to liberal landlords who often set their lands at less than the fair value ; and also in the case of land held by leases still unexpired and made in the last century or earlier ; while to the harsh landlord, who sets his land for the highest rent that is offered, it would be no injury, but it would be no boon to his tenantry. But the settlement of rent by valuation appears just only to persons who do not know what a valuation of land is, and always must be. The value certainly is that rent which a solvent tenant will be ready to offer for the farm on a lease of moderate duration. When a landlord wishes to set his land, the proposals made by persons willing to become tenants settle the value of the land beyond the possibility of dispute. The solvent tenant will take care not to offer a rent which the profits of the land will not enable him to pay. He is under the strongest inducements to discover the real value of the IRELAND.] IN VARIOUS COUNTRIES. 49 land. He may consult an experienced valuator if he thinks proper ; but he rarely takes this step, as he generally knows the value of the land better than any one whom he could consult. He often talks the matter over with his friends, to know their opinions, and then to form his own judgment. The profes- sional valuator forms a more rapid judgment ; and unless he is living in the immediate neighbourhood of the land, his judgment is not worth much. A serious difference of value between two fields is often caused by circumstances which the most careful examination would fail to detect. This tenant does not merely look to the soil, and to the condition of the roads, the fences, and the buildings : he knows what treatment the land has received for several years the nature and quality of the crops whether cattle appeared to thrive well on the land what rent was usually paid for that and other similar land in the neighbourhood and whether the tenants who paid such rents were prosperous or the reverse. Many other inquiries, which I need not enumerate, he makes before he determines what rent he will bind himself to pay. When men are competent to make their own bargain, it is unjust to compel them to submit to the opinion of a third person. In the year 1865, I made the following observations, and I have seen no reason to alter my opinion since I made them : " Many other things are to be considered, but I have said enough to show how utterly inadequate to the occasion is the cursory inspection that is made by a professional valuator. All that he often does is to find out what is the rent actually paid for the adjacent farms, and whether the farm he is valuing is better or worse than those ; and then to make an abatement or increase on the result so obtained, according to the purpose for which the valuation was made. If the valuation is made for the purpose of taxation, it is generally made low, for then there is less likelihood of an appeal. If the owner gets it valued for the purpose of a sale, the valuation is apt to be high as more likely to suit the interests or wishes or feelings of the employer. " The following cases are fair specimens of the discrepancies which are to be found in different valuations made of the same property." "Since I wrote the above, the estate of John Campbell Jones was offered for sale ; and the following are the differences E SO SYSTEMS OP LAND TENURE [LoNGFiELb. between the valuations made by a civil engineer and by the Ordnance valuation of the same lots : Killiewingan. s. d. Engineer 120 o o Tenement valuation . . . 57 o o No. 5. Valuator .... 8 10 o Tenement valuation ... 250 Ratheline. Valuator 29 17 7 Tenement valuation ... 800 Fox and Calf I bland. Valuator 40 o o Tenement valuation ... 300 Lot 9. Valuator 10 o o Tenement valuation ... i 6 o Lot 10. Valuator 843 Tenement valuation ... 140 " In the estate of Rutledge the following are two of the valuations : Cregganrae. Valuator 53 i 7 Tenement valuation . . . 17 10 o Ballykit. Valuator 226 13 7 Tenement valuation . . . 131 12 o." I have given those examples, not as the most remarkable that could be found, but because they were the most striking cases that came before me within a few days after I had made IRELAND.] IN VARIOUS COUNTRIES. 51 the above remarks. I believe that, in those cases, both the valuations which I have contrasted were intended to be fair, and were made by skilful valuators. It may be asked, " Is there no mode of valuing a farm ? must the tenant make a mere guess at what he is to offer ? " No ; the landlord and the intending tenant have means of knowing the value of the land which no other person is likely to possess and to employ. They both know the past history of the farm, and of all the farms in the neighbourhood ; what rent was paid for them ; in what manner they were cultivated ; and whether the tenants appeared to thrive on them, or the con- trary. No man has such an interest in discovering the exact value as the person who proposes to become a tenant, and as his object is to make a profit by his occupation as farmer, it is not to be supposed that he will give more for the land than he can pay, reserving a reasonable profit to himself. The injustice of setting aside a voluntary contract, and substituting a valuation, is not manifest at first sight, for the words appear fair. Why, it is said, should any tenant be re- quired to pay more than the fair value for his farm ? But every one who has any experience knows that nothing can be more uncertain and undetermined than the valuation of land. It is not uncommon to see two valuators differing enormously in their estimates, and yet neither suffering in reputation as if he had made a discreditable mistake. It is probable the value as fixed by any tenant-right measure would be less than half the rent which a solvent tenant would be willing to pay. All future valuations would be still more uncertain ; for as soon as the possession of land ceased to be a subject of con- tract by mutual agreement, the valuators would have no average market-value to refer to, and would form their estimates on the wildest principles.* This, however, would not be a matter of much importance, as I have shown that between rent and pur- chase of tenant-right every new tenant will be obliged to pay the full value of the land, no matter what changes may be made in the law. In the form of tenant-right which I have ventured to suggest as possible to be introduced and maintained in Ireland, * It is highly probable that, in the excited state of feeling that would be raised by an alteration of the law, no valuator would venture to express an opinion of the value of the land that was not in accordance with the tenant's wishes. E 2 52 SYSTEMS OF LAND TENURE [LONGFIELD. I have therefore taken care that it should be self-working, and not depend upon any valuation of the land to be made by any third person. Some reason should be given for making land an exception to the ordinary rules of commerce, and fixing the price by law, instead of letting it be arranged by mutual agreement between the buyer and the seller, the landlord and the tenant. The reason formerly assigned was, that the possession of land was a question of life or death to the tenant ; that he had no other resource to preserve himself and his family from starvation, and that therefore he was obliged to submit to any terms which an avaricious landlord might impose. That the parties to the contract stood on such unequal ground as to make it necessary for the law to interfere to protect the weaker party. It could not be pretended that this argument was ever applicable except to the case of small pauper tenants, and now the introduction of poor-laws, and the increased demand for labour, put it out of any man's power to say that he is obliged to offer an exorbitant rent for a farm in order to save himself from destitution. The argument never had any bearing on the case of those tenants who hold the greatest part of Ireland, who have capitals of two or three hundred pounds and upwards, and who are farmers, not from necessity, but from choice, because they find the occupation of a farmer more profitable or more suitable to their taste or education than any other employment. On the profits to be expected from their industry and capital it may be necessary to make this remark. It is often said that agricul- ture is the most honourable, the most healthy, and the most delightful of all occupations. If this be the case, it follows from an elementary law of political economy that it must also be the least profitable. It will require greater profits to induce men to enter into any business that is less wholesome, less creditable, or less agreeable. It should ever be remembered that it is a dishonest act for a man to make a contract which he does not believe that he can fulfil. The man who has obtained possession of a farm by promising a rent which he cannot afford to pay has committed a dishonest act. He has done wrong to the landlord, from whom he has obtained possession of the land on false pretences, and he has done wrong to the competitors for the farm whom he has outbid, and he has no just claim to have a law made to IRELAND.] IN VARIOUS COUNTRIES. 53 reduce his rent, and give him an advantage over his more honest competitors. I should not have thought it necessary to point out the unreasonable injustice of the claim made for fixity of tenure on a rent to be settled by valuators, were it not for the mischief that is caused by the expectation of the measure. It not only diverts attention from more practicable means of improving the condition of the people, but it increases the desire (already too strong) to obtain, and to retain, possession of land, no matter how incapable the possessor may be of cultivating the property. There is a hope that the interest, which is now worth little or nothing, will be converted by law into a valuable estate. This hope vanishes if possession is transferred to another. The eviction from a farm is felt not as a loss of the interest which the tenant had, but as a loss of the interest which he hoped to acquire by a change in the law. In many cases a failing farmer, who could dispose of his farm for a sum that would enable him to emigrate or to set up himself or his family in some profitable business, is tempted to hold on to his farm by the belief that the approaching law of tenant-right will give him an interest that he can dispose of for a much larger sum. In some districts the agitation on the subject has fixed it like an axiom not to be controverted in the peasant's mind, that the possession of land, on whatever terms it is acquired, is a property which it is unjust to take from him without paying him large compensation. The relation between landlord and tenant is made the constant subject of violent declamation. His imaginary rights are assumed as if they were too clear for argument ; and indeed this is necessary, for they will not bear argument. A landlord has twenty acres of land in his possession. A peasant offers him twenty pounds a year for the land. His offer is accepted. He is put into possession of the land, but neglects to pay the rent, and finally he is evicted, owing perhaps three years' arrears of rent, which he never pays. He is considered an injured man, the victim of landlord oppres- sion. No questions are asked about the merits of the case. The mere fact that he has been deprived of his farm is suf- ficient to excite the sympathies of the population, who will assist him to take revenge, or to escape, after he has gratified his revenge by murdering the tenant who succeeds, or his land- lord, or his agent, or any member of any of their families. 54 SYSTEMS OF LAND TENURE [LONGFIELD. Others will take -the part of justifying the murderer, or blackening the character of the deceased. They will go through the form of saying that it is not right to commit murder, but they will exaggerate the provocation which the murderer received; they will rake up charges true or false against the deceased, and will at the same time classify as murders of greater enormity many acts of oppression never perpetrated, but which the populace will readily credit. In many cases the landlord is deterred from enforcing his rights; and it is sometimes argued that it is therefore no injustice to deprive him of them by law. The landlord, it is said, will suffer no substantial injury by being deprived of a right which he can never venture to enforce. This is like putting a price upon the landlord's head. It is to announce that everything will be conceded to the tenants, provided they will shoot so many landlords as may keep them for some time in subjection to the Whiteboy code. Success acquired by such means would not produce the expected fruits. Riches acquired by fraud and outrage are not long enjoyed, for the qualities by which they are acquired are inconsistent with the qualities which are necessary to retain them. Anything that would retard the advance of the country in civilisation, and still more, anything that would make it go back, would do an injury to the tenant far beyond the value of anything that he could gain by an alteration in the conditions of his tenure. The fee-simple proprietor of a hundred acres of land two centuries ago was not so well clothed, so well lodged, so well taught, or so well fed, as the tenant of the same lands who at the present time pays a fair rent for his farm. This change is chiefly caused by the greater civilisation of Ireland. A very small part is caused by any improvements placed upon the land by the tenants. Not more than ten per cent, of the present value of the land is owing to such improvements. The general question, How much of the improvements made in the country is due to tenants, and how much to land- lords, or to possessors, whose tenure is substantially equivalent to a fee ? appears to be immaterial. When once the tenant has received possession, his equitable rights depend upon the con- tract which he has made, and upon the condition of the land when he obtained possession. It is no concern of his how IRELAND.] IN VARIOUS COUNTRIES. 55 that condition was caused. It may have been improved by the landlord, or by a previous tenant, who may have received com- pensation from the landlord ; or the previous tenant may have wasted the land, or have run away, owing large arrears of rent, or have had his lease unjustly broken without compensation for his improvements. With all this the new tenant has nothing to do ; he does not inherit the claims or the liabilities of his predecessors. On the whole, it would appear that the tenants would have no just cause of complaint if ist, Such leasing powers should be given to all landlords that no fair lease should be broken ; zndly, That when a tenant by lease has improved his farm, he should be entitled to a fair compensation ; 3rdly, That when a yearly tenant has improved his farm, or purchased the interest of an out-going tenant, he should be entitled to the seven years' purchase tenant-right on terms to be settled by an arbitrator ; 4thly, That when there is no written contract, the tenancy should be deemed to terminate on the ist of November, and the tenant be entitled to a year's notice to quit. As to evictions, the tenant can protect himself by refusing to take a farm without security that he shall enjoy it for a reasonable time. I have made no allusion to a difference in race, as creating any reason for a difference in legislation between England and Ireland. When the Celt becomes the absolute owner of land, he is just as willing as the Saxon to become a landlord, and to insist upon all a landlord's rights, which he then seems to think very reasonable. It is only when he becomes a tenant that his peculiarity is said to appear in a dislike to fulfil his engage- ments, and in a wish to hold his land at a lower rent and for a longer term than he is entitled to by his contract. I suppose the Saxon farmer would have the same desire. It is impossible to frame laws to suit the feelings of people who dislike to pay their debts, or to fulfil their engagements and to respect the rights of property, and in general to act as men are required to do in every civilised community. There is no valid foundation for this charge against the Irish Celt. England had the power of making laws for Ireland at a time when selfishness reigned supreme in the councils of every state; and Ireland, as the weaker country, suffered some injustice from her stronger sister. But times are altered. No man now would think of doing an injustice to Ireland for the sake of any supposed benefit to 56 SYSTEMS OF LAND TENURE [LONGFIELD. England. The two countries are now parts of one united king- dom. All grievances have been swept away, although the memory of them still remains, and will be kept alive by the exertions of those who have an interest in fomenting discontent. But a just policy will eventually bear its fruit ; and if the laws are framed for the good of all, without reference to party interests, and are impartially and firmly administered, it will probably be found that the Celt is as quiet and amenable to law, and as willing to be honest and true to his engagements, as if he belonged to any other race. But even the best laws will be of little service unless the people are disposed to act justly and reasonably. The landlord should not strive to be the master of his tenant. He should set the land at a reasonable rent and on fair conditions, and not hope to keep the tenant in subjection by exacting a rent which he cannot pay, or inserting covenants which he cannot fulfil. Even when leases are granted they are often stuffed with covenants which would ruin the tenant if he obeyed them strictly. But some change is also required in the tenant. He should not enter into any contract which he is unwilling to fulfil. It is no excuse for him to say that he cannot get land on any other terms, and that he must be a farmer, as every other business is overcrowded with competitors. Such an excuse is contradictory to itself, for if he cannot get a farm except by offering more than it is worth, it shows that farming is subject to as keen a competition as other trades. If he cannot get a farm on reasonable terms he should take to some other business, or emigrate. He may think that this is a great hardship, but it is a hardship that is not caused either by the law or by the landlord. If two men desire to get the same farm, one of them must do without it ; and if the competitors are honest, and will not offer too much, the one who succeeds will be better off, and the one who fails will not be worse off, than at present. The same rule that I suggest as to his rent should apply to all the conditions of his tenure. Instead of first taking a farm, and then complaining of the conditions, he should refuse to take any farm except on such terms as he considers just and reasonable. A man who is to have a voice in the government of the country should not make any contract which would make him dependent on the liberality or forbearance of any other man, IKELAND.J IN VARIOUS COUNTRIES. 57 CHAPTER VIII. IT is frequently said that in Ireland the landlord erects no buildings, and makes no improvements on the land; that everything is left to the tenant, who builds and improves at the risk of having the improvements made by his labour and capital seized by the landlord, or made an occasion of raising the rent ; and that this was not a very unusual course for the landlord to take. At no time was it a matter of every-day occurrence for a landlord to seize his tenant's improvements before he had enjoyed them for a remunerative period. Improving tenants without leases would not be so foolish as thus to lay out their capital without a confident expectation, founded on the pre- vailing customs, that the landlord would not take advantage of their confidence in his honour. Cases of inconsiderate and unjust harshness could never have been very frequent, and they are now exceedingly rare. The real grievance was, not that the tenant frequently lost the value of his improvements, but that his liability to this loss generally prevented him from making those improvements which would have been profitable to himself and useful to the country. It is true that if any man searches for cases of grievances suffered by tenants, he will have plenty of stories told to him : many of them will be utterly false, and many of them will have a slight foundation of truth, distorted by the most monstrous exaggerations. When names, dates, and facts are not stated, it is impossible to expose and detect the falsehood. "One story is good until another is told." I am told that a tenant held a farm at a rent of ^40, that he built a house at an expense of ^100, and then was ejected without any compensation as soon as he owed one year's rent. Such a story may lead to the murder of half-a-dozen landlords, or to the robbery of the entire class, when the propagator describes the look of inextinguishable hatred with which the narrator mentioned it to him. I do not believe in the possi- bility of such a case pure and simple. An ejectment is not a 58 SYSTEMS OF LAND TENURE [LONGFIELD. sudden irreversible process. The proceedings take some time to bring them to a termination ; and, even after they are con- cluded, the law allows the tenant six calendar months to pay his rent and redeem the land. This period is reckoned not from the judgment in ejectment, but ' from the actual dispos- session of the tenant by the execution of the habere. The story, therefore, is that the tenant was rich enough to build a house and to cultivate his farm, which generally requires a capital equal to five years' rent, but that he could not get money to pay half a year's rent, and had no friends or credit to enable him to borrow money to pay his rent. A tenant is not evicted for non-payment of rent until after he has become hopelessly insolvent. I should expect that on investigation it would be found, either that the story was totally false, or that it was subject to one or more of the following qualifications. The tenant did not build the house at his own expense ; the landlord supplied the roof and timber-work, and gave other aid. The tenant was in the enjoyment of the house a sufficient length of time to recompense him for the portion of the outlay that he had incurred. The "landlord at various times forgave him large arrears of rent in consideration of his outlay on the house. The tenant ran out and wasted the land, and owed considerably more than a year's rent at the time of the eviction. I suggest those qualifications to show with what reserve such a story should be received until it is fully investigated, especially when it is told by a person evidently anxious to make a case against Irish landlords. I do not deny that, among the infinite number of cases occurring between landlord and tenant, many may be found in which the landlord acted harshly and oppressively to an honest tenant, as well as cases in which the kindness of a generous landlord has met with a very ill requital. But I believe that such cases are exceptions to the general rule, which is, that an honest and industrious tenant will meet with kind and generous treatment, and that a good and liberal landlord will find or make good tenants. But to state all the exceptions to this rule of which one hears on one side, without qualification or investi- gation, is not a good way of forming a correct opinion of the true state of the Irish land question. The cases in which landlords seized upon real improvements made by their tenants, without giving them compensation, are very few, and IRELAND.] IN VARIOUS COUNTRIES. 59 the landlords would suffer nothing by a law which would make such injustice impossible. As to evictions of solvent tenants, I believe them to be more rare in Ireland than in England. To a superficial observer the contrary might at first appear to be the case, for the following reason. In England, if the interest of a tenant is determined by a notice to quit, or by the expiration of his lease, and the refusal of the landlord to permit him to remain in possession, he gives up the farm, and nothing more is said about it. He merely complies with the conditions on which he obtained possession. But in Ireland he generally resists, and puts his landlord to the expense and delay of an ejectment, and has the newspapers filled with abuse of the landlord and articles on landlordism and evictions. Thus in Ireland nearly every case of removal of a tenant makes a noise, and is brought before the public, and therefore they appear to be more numerous than in England, where they pass without notice. While I was writing this, I read in the newspaper a report of an action for a libel brought by a farmer. His complaint was that he was falsely accused of shooting foxes ; and, on account of this false and unproved charge, he was deprived by a noble duke, his landlord, of two farms, one of which he had held for sixteen and the other for twenty-one years. The eviction by the landlord was not made a matter of comment, and would have passed unnoticed, only that it was the special damage for which the action was brought. If a tenant was evicted on such grounds in Ireland, the circumstance would certainly be brought before the public, and probably before Parliament. If there are a hundred men wishing for farms, and there are only fifty farms to be let, then fifty men must do without farms, and take to some other occupation. Whatever adds to the difficulty of evicting a tenant, adds to the difficulty of obtaining a farm, and thus makes the eviction a greater calamity when it occurs. It is very much against the interests of a landlord to eject a good solvent tenant who is willing to pay him a fair rent. He will find it difficult to procure a tenant with skill and capital to take the vacant farm, and to put himself in the power of an oppressive and unreasonable landlord. If a careful inquiry was made into the nature of the pro- vocations which are supposed to have led to the late crop of 60 SYSTEMS OF LAND TENURE [LONGFIELD. agrarian outrages, a judgment might be formed of the fre- quency of landlord oppression. It would not be unreasonable to assume that all the worst instances would be included among those cases which have led to such extremity of revenge. It may be generally said that four circumstances should combine to make a tenant an effectual improver. He must have, first, a sufficient motive ; secondly, skill ; thirdly, energy ; fourthly, capital. And it is not an uncommon mistake, when some obvious improvement is neglected, to attribute the neglect solely to the want of some one of those circumstances, without taking the rest into consideration. The landlord frequently is without the capital that is neces- sary for important improvements on his estate ; for he must pay money for everything (in addition to his family and personal expenses), and the return for his expenditure comes in very slowly. But it is different with the tenant, who seldom wants capital to make some small improvements yielding a quick re- turn. In some cases it might be thought that no capital was necessary, as when a small farmer reclaims land by removing the stones, all the work being done by himself and his family. Some would say that his labour was equivalent to capital, but this would not be strictly correct. The produce of his labour did not support him during the progress of the work. The store of food which he possessed, or the money with which he purchased it, was the capital which he expended in the pro- secution of the work. Without such capital, or credit to supply its place, he must have abandoned the improvement, and supported himself by working for daily wages. Thus the tenant is seldom prevented from making improve- ments by want of capital. He may be prevented from under- taking something grand, but if his land is in a very wild, unimproved state, there must be some reason other than want of capital for his permitting it to remain so. For this neglected state of the land a different reason is given by the landlords and the tenants' friends. One says that the cause is that the tenant has not a sufficient estate in the land, and Arthur Young's exaggerated assertion is quoted as if it was strictly true. But excuses for not doing a thing are always to be viewed with great suspicion, especially when they take the form of requiring some great boon as a preliminary to exertion. I have known many case? in which the occupier held in IRELAND.] IN VARIOUS COUNTRIES. 6 1 perpetuity, or for very long terms, in which the agriculture was as defective and the land as much neglected as if it had been held by tenants-at-will. A good interest given to the tenant is a good thing, but it removes only one impediment to improve- ment, namely, want of motive ; but two impediments may yet remain sloth and ignorance. Bishop Berkeley, indignant at the neglected appearance of the country, the houses full of dirt, and the land covered with weeds, rejected this excuse of want of a sufficiently long estate in the tenant, and remarked that things were left undone which would be remunerative if done by tenants even with the shortest leases, and that the Irish proprietors who occupied land which they held in fee were as slovenly and negligent as any tenants- at-will. He thus arrived unfairly at the conclusion that the cause of the neglected state of the land was Irish sloth. He did not see that there was a third cause which might be the operative one, namely, ignorance. The Irish tenant acted according to his limited knowledge. He had no example to guide him to a better agriculture. Even if a resident gentleman improved his demesne, and made it more productive, the farmer saw clearly that he could not follow the example. The improvement seldom yielded a fair return for the outlay. Works were undertaken with a mixed view to ornament and utility. This was better for the country than if the same money had been spent in idle dissipation ; but they conveyed no useful instruction to the farmer. It may be fairly doubted whether any improvement of land yields the average return that may be expected from invested capital. Thus I do not say that no drainage pays ; but if all the drainage in Ireland was taken with the mistakes made by inadequate or superfluous drains, or drains badly made, or too deep, or too shallow, or too expensively, or works otherwise unskilfully executed, it is probable that half the works do not yield a return of five per cent, on the outlay. But a farmer will not undertake an expensive improvement unless he is reasonably certain, not only that his landlord will not seize upon the fruits, but that there will be some fruits for himself to enjoy. Thus the want of agricultural knowledge is a serious obstacle to improvements. There are some improvements which give a return in com- fort and enjoyment, rather than in profit. A dwelling-house is of this class. In general a man does not willingly live in a 62 SYSTEMS OF LAND TENURE [LONGFIELD. worse house than that to which he has been accustomed ; but he seldom desires one much better. It is very much a matter of habit. The starving occupier of a fetid, squalid hovel would wish for strong drink and tobacco, better and more abundant food, good clothes and less work ; but the last of his desires would be a larger and cleaner house. He would scarcely ac- cept it willingly on the terms of his keeping it clean and in good repair. This has tended to discourage the landlords from building good houses for their tenants. They found that the tenants did not value them, and were often unwilling to keep them in repair, although it was generally found that after some experi- ence they felt and appreciated the advantage of the decency and cleanliness which at first they disliked as cold and trouble- some. Partly by the landlords, and partly by the tenants, comfortable farm-houses have been built, and improvement in this respect is still making progress. In a few instances houses have been built by tenants relying on the honour of their landlords ; and very few would object to a law that would entitle a tenant to compensation who built a house suitable to his farm. In many arguments on the compensation that a tenant should receive for his improvements, a calculation is made of the compensation or enjoyment that would be sufficient if the improvement was made in the most successful manner, and with the greatest skill and economy. This is hardly fair. Every improvement is to a certain extent tentative, and the enjoy- ment or compensation should be such as to remunerate a tenant of average skill and good fortune. It is frequently said that drainage will repay the first outlay with interest in seven years. I do not assert that such a thing never happens, but I am sure that it could not be truly said of one-tenth of the drains that have been made in the United Kingdom. It requires less skill to reclaim than to improve. The former is done either by carrying off surface water or by re- moving stones. These works are done by the cotter and his family. They yield a very moderate return, but the results are obvious to the most unskilful, and hence it happens that they are often executed by tenants with very precarious interests, while more profitable works, requiring more skill and foresight, are left undone by tenants with much longer leases. If sloth IRELAND.] IN VARIOUS COUNTRIES. 63 was very prevalent, the sterile land would not have been re- claimed ; if want of tenure was the only cause, the good land would have been more generally improved. It was want of skill that confined the efforts of the most energetic to those works Vhich required no skill to accomplish or to appreciate them. Arthur Young describes the effects of letting land on profitable leases to persons without skill or energy : " They are, however, sometimes resident on a part of the land they hire, where it is natural to suppose they would work some im- provements ; it is, however, very rarely the case. I have in different parts of the kingdom seen farms fallen in after leases of three lives of the duration of fifty, sixty, and even seventy years, in which the residence of the principal tenant was not to be distinguished from the cottared fields surrounding it." He attributes this to the idle, drunken habits of the small country gentlemen : " Living upon the spot, surrounded by their little under-tenants, they prove the most oppressive species of tyrant that ever lent assistance to the destruction of a country. Not satisfied with screwing up the rent to the uttermost farthing, they are rapacious and relentless in the collection of it." " If long leases at low rents and profit incomes given would have improved it, Ireland had long ago been a garden." Such were the results of long leases given to persons ignorant of agricul- ture, and without efficient covenants to prevent them from subletting. If they had been possessed of sufficient skill, they would have found it more profitable to cultivate than to sublet. CHAPTER IX. MANY think that the wealth of Ireland may be increased by the cultivation of new crops, or the employment of new instruments, which they accordingly recommend with great zeal. They are not aware of the difficulty of introducing improvements in agri- culture, nor how little profit the persons who adopt them should expect. Nevertheless, several improvements in both crops and instruments have made their way in Ireland in the present century. Improved carts and ploughs have almost superseded 64 SYSTEMS OF LAND TENURE [LONGFIELE). the old-fashioned car and plough which were in general use seventy years ago. Through a great part of Ireland the threshing machine is used instead of the flails, and the scythe instead of the sickle. The American rake and the tedding machine are used in making hay, and even reaping and mowing machines may sometimes be seen in use. But the use of new machines proceeds more slowly in agri- culture than in manufactures. It is less necessary to the individual, as it does not diminish the price of agricultural produce, and therefore the farmer may, without loss, continue to cultivate his land in the manner to which he has been accustomed. But the chief impediment is, that the operations of agri- culture are periodic, and not continuous, and the division of labour does not produce a division of trades. The same loom may be employed every day in the year ; and if one loom did its work at half the cost of another, no weaver could hold his ground who used the inferior loom. But a machine of great efficiency in sowing turnip-seed may make its way very slowly. The farmer would have occasion to use it only two or three days in the year, and the advantage of its use during those few days is all that is obtained to pay the interest of the first cost of the machine, and the expense of finding a place to hold it during the long time that it is unemployed. This latter item is not unimportant in the case of a small farm. Besides, sow- ing turnip-seed is only a small part of the business of a farmer, and he may till with profit, although he does not perform this particular operation in the cheapest and most efficient manner. The same observations apply, with greater or less force, to all the operations of the farm. Similar causes impede the introduction of new crops, or new modes of cultivation. The work that is done only at intervals of a year is not easily learned. When once it has taken root this difficulty is diminished, for the difference be- tween the earliest and latest periods of performing any opera- tion extends the time during which the business may be learned by observation or by actual work. Thus, if you introduce the cultivation of flax into a district into which it was not known before, it is necessary to steep it : you superintend this operation, and give the most precise in- structions to your workmen. The work is done, they are employed during the rest of the year on other business, and IRELAND.] IN VARIOUS COUNTRIES. 65 when the season for the same operation comes round again they will be found as ignorant as they were the preceding year. Still some new crops have been introduced with advantage during the present century. Seventy years ago, turnips and mangolds were unknown to the working farmer, and even clover and artificial grasses were seldom sown except by a gentleman farmer. The manner in which the cultivation of flax has been almost confined to one province of Ireland shows very strongly the difficulty of introducing the general cultivation of a new crop. It is not unknown in the other provinces, but it is generally profitable only in Ulster. This is not caused by any peculiarity of soil or climate. The crop is equally good in other parts ; but it is not equally profitable, and missionaries go about in vain recommending its cultivation. Some say that a large profit may be expected ; others say that they have tried it, and found it unprofitable. But if the produce of the soil could be doubled, it would not diminish the discontent of the Irish tenantry. Their com- plaint is, not that the land is unproductive, but that it is not their own. It is a dispute for property, and at present any increase in the productive powers of the land would only embitter the contest by enhancing the value of the prize. As the evils presented themselves to my mind, I could not forbear from considering whether any remedies could be found. I considered that the following principles should be kept in view : i st. There should be no injustice nor confiscation 01 property. 2nd. There should be no interference with freedom of con- tract, and the law should do nothing to encourage those modes of dealing which are at least beneficial to the nation. An appa- rently immaterial law in constant operation may have an important effect in moulding the habits of the people. It is even possible that the relation between landlord and tenant may have been influenced by the fact that a stamp is necessary for a lease, but no stamp is required on a notice to quit. 3rd. The landlord, subject to all express or implied con- tracts, and to all equities arising from past transactions, is entitled to the present value of the land, and to all increase in its value which does not arise from the acts of the tenants. Independent of the injustice, it would be impolitic to deprive F 66 SYSTEMS OP LAND TENURE LOKGFIELD.] the landlord of all interest in his estate, and to remove him from his natural position as the guide and friend and assistant of the tenant in the management of his farm. It would produce extensive absenteeism, by converting the landlords into mere receivers of fixed rents, without any interests in their estates. They would be an idle, useless, unhappy body of men, without any incentive to work, or any special duty or occu- pation. 4th. Although the tenant should not get his landlord's property for nothing, he ought not to be deprived of any- thing for which he paid with the concurrence of the landlord, although he may have trusted to the rules of natural equity, instead of complying with all the formalities required by a highly-artificial state of the law. Lastly, although men cannot be compelled to perform duties of imperfect obligation, they ought not to be permitted by any contract or promises to put the performance of those duties out of their power. Thus no settlement or encumbrance should prevent the landlord, while in the enjoyment of his estate, from dealing in a liberal spirit with his tenantry. Every landlord ought to have it in his power to give either a par- liamentary tenant-right, or a lease of forty-one years at a reasonable rent, and to make an agreement to compensate a tenant for his improvements. It may be thought by many that in suggesting forty-one years I have named too long a term, and that a lease of twenty- one years would give a tenant sufficient enjoyment to compen- sate him for any improvement, except buildings, that he might make on his farm. To this it may be answered that, generally, the Irish tenant is not of this opinion, and that a lease of twenty-one years would not induce him to improve. That a lease for forty-one years is much shorter than a lease for three lives, which is commonly permitted by marriage settlements, and that it is not the length of the lease at its commencement, but the length of the term when the tenant is about to improve that is the operative inducement. A prudent tenant will not make any change immediately on his obtaining possession of his farm. He will wait until experience has made him inti- mately acquainted with its wants and capabilities. If all leases were granted for terms of twenty-one years, the unexpired terms would be of the average length of only ten and a half years, and if they were granted for terms of forty- one years, the IRELAND.] ' IN VARIOUS COUNTRIES. 67 average unexpired terms would be six months less than twenty- one years. With such an extension of leasing powers to the landlord, and with a right to the tenant to get compensation for his im- provements, and a Parliamentary tenant-right whenever he has fairly earned it, the chief grievances would be remedied without any violent interference with the rights of property. But if a man voluntarily enters into a contract to take land with a precarious tenure, he has no right to demand to have it made permanent until he has done something to earn an enlargement of his estate. To accede to such a demand might do a serious injury, not to himself indeed, but to his class. If the rights arising from mere occupation are made too strong, men who have land in their possession will be very careful not to let a new occupier get possession, and the poor will be relegated to densely-packed villages. The owner of land may be disposed to give a labourer the occupation of a com- fortable cottage and garden. This will be a great benefit to the labourer at a very slight loss or inconvenience to the landowner; but it is essential that the occupation should be precarious, so as to prevent the labourer from making that occupation a source of great discomfort to the landlord. If the labourer neglects his work, or has ill- conducted children, or harbours persons of bad character, or even keeps pigs and poultry, frequently trespassing on the landlord's property, it will be necessary to resume possession from him. There may be many other cases, which I need not enumerate here. Call the landlord's conduct capricious, arbitrary, tyrannical, or by any other epithet of abuse, it is necessary that he should have the power of removing the cottier on a reasonable notice, or he will not put any cottier in possession of any land. The option in future will not be between a fixed and a precarious occupa- tion, but between a precarious tenure and nothing. The same loss to the labourer will ensue if the landlord cannot obtain possession without expense at law, or being held up to public odium as a tyrant and oppressor. He will con- sider all the consequences which are likely to result from the reception of a cottier tenant, and if either law or custom makes those consequences grievous to him, he will be so much the less willing to give accommodation to the labourer. F a 68 SYSTEMS OF LAND TENURE CHAPTER X. PROPERTY in land differs in its origin from property in any commodity produced by human labour. The product of labour naturally belongs to the labourer who produced it. If he works for wages, his employer is entitled to the product as assignee of the labourer. The substance of the contract is, that the employer pays a certain present sum as wages in exchange for the future uncertain product of the labour. But the same argument does not apply to land, which is not the product of labour, but is the gift of the Creator of the world to mankind. Every argument used to give an ethical foundation for the exclusive right of property in land has a latent fallacy. It omits a portion of the value which ought not to be left out of consideration. I shall call attention to one or two of them. First comes the argument founded on the rights of labour. Land, it is said, is worthless until it is cleared and cultivated, and it properly belongs to the man who has improved it, or brought it into cultivation. There would be some force in this argument if land was worth nothing beyond the value of the labour laid out upon it ; but if this is not the case, the argument is subject to this objection, that it permits one man to improve another man's estate, and then hold it as his own. This is what is called improving a man out of his property. Here is some land very convenient and suitable as a site for building ; it belongs to no person as private property, and therefore I, as a member of the community, am a part owner of it. Another person takes possession and builds a valuable house on it, and then claims the land as exclusive property on account of his buildings and improvements ; am not I thereby improved out of my estate ? I was a part owner once, and now I have no interest whatever in it. Land of very indifferent quality in the neighbourhood of a town frequently is sold or let for a large sum as a site for building, before a single penny has been laid out in reclaiming it. Although it is of no present use, still its capacity for being built on gives it a present value. In this case the original value can be estimated, and in fact it is often separated from the additional value which the land IRELAND.] IN VARIOUS COUNTRIES. 69 derives from the buildings placed on it. It is the ground-rent which a tenant would be willing to pay on condition of getting a grant of the land in perpetuity. But without any reference to building land, it is easy to find large quantities of land in Ireland of which the value can- not be attributed to any labour expended on them. Indeed, some of the land is probably of less value than if it had been left in a state of nature ; and yet it is private property. It might at first appear as if the argument against the right to property in land, as founded on labour, applied equally to the case of manufactured articles. The raw material did belong to the community, which is deprived of it by the individual who manufactures it, and converts it into his own exclusive property. This objection would be valid if the raw material was in limited quantities ; and if the labourer, for the purpose of the manu- facture, seized upon a greater proportion than his share would be as a member of the general community. But this never happens. As a matter of fact, the value as well as the right of property in a manufactured article is derived from the labour employed in producing it ; and the title could generally be shown through the most important stages. It is equally certain that neither the title to property in land nor the chief part of its value is founded upon labour. It was in general claimed as property before any labour was laid out on it. The right arising from the first discovery is sometimes alluded to as a possible foundation for the right of property in land. But this must refer to the right of the whole community, and not to the right of any private individual. When once a party lands upon an island, the whole island is substantially discovered. They all know the land is there, although they have not actually walked over every foot of it. But suppose the case of a discovery made by an individual. A party of men and women discover an uninhabited island, and take pos- session of it. Good water for drinking is scarce, and different persons go in various directions. One man, either by superior intelligence or better fortune, discovers a well which yields an ample supply. This does not give him a right to exclude the rest of the party. They must possess the same natural right which they had before the discovery, to use the well if they can find it. The right of the first discoverer is merely to keep his secret, or to sell it to the community for the best price which he can obtain for it. 70 SYSTEMS OF LAND TENURE [LONGFIELD The case bears some analogy to the patent laws, and there- ore I may allude to an argument which is sometimes used in their defence. A man invents some process, and it is said that if the public makes use of this process he is deprived of the fruits of his industry and inventive talent But this assumes the very point in dispute : it assumes that one of the natural fruits of a discovery is the right to prohibit every other person from doing t^pe same thing. This is not a well-founded as- sumption. HK- natural right is only to use it himself. The firstj man who^roke a cocoa-nut and found the inside eatable would have a right to eat it himself, but he would have no right to insist-that no other man in the world should ever eat any other cocoa-nut without his permission. The fact of possession is sometimes given as the origin of private property in land. The man who gets first under the shade of a tree has a right to remain there undisturbed. He cannot be removed without a breach of the peace ; and this right seems to be acknowledged by the inferior animals. It is sometimes added that the mere fact of taking possession is of itself an act of labour, and therefore that the right of property thereby conferred is within the general rule, that labour creates a right to property. To this it may be replied, that this right, if it existed, would only last as long as the possession in which it originated. It could not extend over a large estate, nor be transferred to another person. As to the acknowledgment of the right by the lower animals, even if we were disposed to learn ethics from their example, there is great reason to doubt the fact. It probably exists only so far as the beast in possession has suf- ficient strength to make it inconvenient for any other beast to disturb him. When it is said that the mere taking of possession is an act of labour, it should be noticed that even if it deserves the name of labour, it is not of that sort which can confer a title to pro- perty. The only labour which can give a title to property is that labour which has created the value of the property that it claims. The foundation of the right to property in land is not ethical, but political. Its origin is expediency. In order that it may be cultivated to the most advantage, it is necessary that the cultivator should be secured in the enjoyment of the fruits of his intended industry. For this purpose it is necessary that IRELAND.] IN VARIOUS COUNTRIES. 71 the person who is permitted to use the land should be permitted to enjoy it for a certain length of time, to make it his interest to cultivate it in the most productive manner. This period varies with the increase of foresight and agricultural knowledge. It is easy to conceive a state of things in which men did not look beyond the passing year. They sowed and they reaped without any knowledge or care whether the land was left in a better or worse condition. But the inconvenience of a frequent repartition of land is quickly perceived, and this is best avoided by permitting land to be held in absolute ownership, subject to sucn taxes and regulations as the State shall from time to time think it reasonable to impose. It seems just that land should be charged with the duty of maintaining the poor, so that no man should be destitute on account of the existence of private property in land. Those who are able to support themselves owe that power to that general wealth and civilisation which could not have existed without the establishment of private property in land ; and those who are not able to support themselves, receive from the poor-rates a better subsistence than they could extract from their share of the land of the country if undivided and unreclaimed. But the rights of the present owners do not depend upon the truth of any theory respecting the origin of proprietorial rights. It is a rule of natural justice that says, that if I encourage a stranger to buy from a wrongful owner property that is really mine, I cannot justly press my own claims against the purchaser. This is the case with land in every settled country. The present owners either themselves purchased the land, or derive their rights under those who purchased it with the sanction of the community, represented by the authority of the State. In many cases, the State itself received part of the purchase-money from stamp-duties on the purchase deeds. In this manner the title of the landlord appears to be perfect as well against the nation at large as against every member of it. But there is one person in particular who cannot claim the land without the most shameless dishonesty ; and that is the tenant who has obtained a temporary possession of the land by means of a contract with the landlord. I wish for a farm. I see one that suits me. I apply to the person in possession, who claims to be the owner, and I agree 72 SYSTEMS OF LAND TENURE [LONGFIELD. to take a lease of it for twenty-one years, or as tenant from year to year at a rent of 50 a year, and to give him back the farm when the lease expires. Nothing can be clearer than that I can claim no right to that land beyond what is given to me by the lease. It either belongs to the landlord who bought, or to the nation at large, but certainly not to me. If it belongs to the landlord, I can claim nothing but my bargain, viz., possession for twenty-one years. If it belongs to the community at large, my right is still less. It would be strange that I should claim more than my bargain, because I made the bargain with the wrongful owner. I have put the case of a tenant obtaining the possession of land by a contract with the landlord, and on that possession, on that contract, resting his claim to hold the land for a larger period or at a smaller rent. But there are other cases in which the tenant has done something more, and in which he has some equitable rights, which, although they are rather vague, are yet, I think, capable of being ascertained, settled, and conceded by carefully-considered legislation. The two chief cases are first, where the tenant has made such per- manent improvements on the land as were necessary for its efficient cultivation, or for his decent and wholesome habita- tion ; secondly, where the tenant has, to the reasonable know- ledge of the landlord, paid the outgoing tenant money for his interest in the farm. In the former case, it must be supposed that the tenant made the improvements, or erected the buildings, in the belief that he would be permitted to enjoy them. It is incredible that any man should build a house if he was assured that another should enjoy all the benefit, either by turning him out, or by charging him rent for it. The same argument applies to the case of a purchase of a precarious interest. The land- lord who permits the purchase of a mere tenancy-at-will must be considered as encouraging the belief that the purchaser thereby acquires a substantial interest in the land. A third case in which the tenant seems to be entitled to something more than the law gives him, is where he has made a reasonable bargain with the apparent owner of the land. There is a common-sense distinction between a purchaser and a tenant which the law does not sufficiently recognise. The man who buys an estate, and the man who takes a farm in order to earn his bread by its cultivation, are treated by law in IRELAND.] IN VARIOUS COUNTRIES. 73 the same manner, and are subject to the complicated laws of real property. These laws are troublesome and inconvenient so far as they affect purchasers, but are oppressive and unjust where they disturb the title of a tenant. It may be said that it is not easy to distinguish between a tenant and a purchaser. A man takes a lease of land for a thousand years at a rent of a penny an acre. Is he not to be considered a purchaser, although he takes the land for a limited term, and is subject to a rent ? Add a penny to his rent, and take a year away from his term, he is still a purchaser. Con- tinue this process, and you may have him paying a rent of 4 2s. 6d. an acre, and with a term of only ten years. He is then clearly a tenant. At what step in the process did his position change from a purchaser to a tenant ? Such an argument has no practical force. It must be met by drawing an arbitrary line at some reasonable point. Say that a tenant, whose rent is not less than three-fourths of the value, and whose term does not exceed forty-one years, shall not be disturbed in consequence of any settlement or encumbrance affecting his landlord's interest. It is inconsistent with justice that a man should hold land at a certain rent, and for a certain term, without any claim except that he took the land for a different term and for a different rent. A man takes a farm to-day, and demands that a law shall be made which would enable him to sell his lease next day for several hundred pounds. This is to give him a property which he did not purchase or earn, merely because he threatens to commit murder if he is kept to his engagements. However, no demand founded in justice ought to be re- fused, merely on account of the improper manner in which it is demanded. I must not refuse to pay a creditor because he presents his account or demands payment in an uncivil manner. I have made these observations on the origin of property in land to show that the State retains the power of modifying it from time to time in accordance with the general inte- rests of the community. This right of private property in land is a political, not a natural institution. " Nam propriae telluris herum, natura neque ilium, Nee me, nee quenquam statuit." What justice requires is that changes in the law should not be directed against any particular persons, but that all who are in similar circumstances should be treated in the same manner. A land-tax of ten per cent, would not be unjust if it was thought 74 SYSTEMS OF LAND TENURE [LONGFIELD. necessary for the security of the kingdom ; and there would be as little injustice in a law which modified the rights of property for the same object, even although the result should be equiva- lent to a tax by causing some diminution in the value of the property. It is sometimes supposed that a change in the law would be unjust to purchasers under the Landed Estates Court. I see no grounds for that opinion. The Act of Parliament which constituted the Court did not give a guarantee against future legislation. To do that is beyond the power of Parliament. What the conveyance of the judges gives is the perfect right to the land, subject only to the adverse rights mentioned in the deed, and to such obligations as may afterwards be imposed, either by the purchaser or by the authority of Parliament. It may almost be said that the latter comes within the former case, as the House of Commons is the lawful representative of the purchaser. It could hardly be contended that the purchaser with a Parliamentary title should be exempt from all Acts passed for the relief of the poor, or that the area of poor-law taxation should not be altered, and yet such changes might have the effect of giving his poorer tenants a substantial interest in his estate. What the purchaser has a right to insist on is, that no law shall be specially directed against him, and that no rights shall be set up which were in existence at the time of his purchase, but were omitted from the deed of conveyance. But in common with all the subjects of the realm, he must take subject to all regulations that may be made by lawful authority, whether they increase or diminish the value of his property. The purchaser, by the fact of his purchases, places himself in a new relation to a certain number of persons, which imposes on him some very important duties, and it is for the State to determine whether those duties shall be enforced by law or trusted to his own conscience for their fulfilment. The following changes might be made in the law of real property, and they do not violate any natural or political right. First, the Law of Primogeniture should be abolished, and all the children of the same parents, and their descendants should have equal rights to the land of their direct or collateral ancestor. Under the influence of this new law absenteeism would quickly disappear. Some of the children of an IRELAND.] IN VARIOUS COUNTRIES. 75 absentee would sell the estate which descended on them, and for which, not having seen it, they could entertain no special affection. No lease nor agreement between landlord and tenant should be liable to any stamp duty. No settlement or encumbrance should prevent the owner of land in possession from having the following power : First, he may make any lease for any term not exceeding forty-one years at a rent not less than three-fourths of the full value, or competition rent. Second, he may take a fine on granting a lease. Third, he may agree that the tenant shall be entitled to tenant-right as above denned. Fourth, he may agree with his tenant to give him compensation for improvements. If a lease is made for a shorter term than forty-one years, the landlord should not be permitted to distrain for rent. If a lease is made for a shorter term than forty-one years, and without tenant-right, all poor-rate and county-cess should be borne by the landlord. No proceedings should be taken to recover any arrear of rent which accrued more than a year before the commence- ment of the proceedings. In the absence of a written agreement, the tenancy should determine on the first of November, and require a year's notice to quit. The arbitrator should have power to award Parliamentary tenant-right to any tenant who had fairly earned it by his outlay. The tenant should be entitled to the trees he planted, without the necessity of registering them. CHAPTER XI. TEN years have elapsed since I wrote for the Cobden Club an essay on " Land Tenure in Ireland," which I have been lately requested to revise. On reading over the essay, I found so little that required alteration, that I thought it better to let it appear in its original form, and to add a chapter to explain the changes which have been made, or which have become neces- sary or expedient, since the essay was first published. 76 SYSTEMS OF LAND TENURE [LONGFIELD. An important change in the relative position of the land- lord and tenant was made by the Land Act of 1870. It restored and strengthened the feeling which prevailed among the tenants that they, with the landlords, were joint owners of the land, or that the landlord was the owner of the rent, and the tenant the owner of the land. Every mode of recovering rent was considered fair except an ejectment, and an ejectment for non-payment of rent was thought to be an unfair and an unreasonable proceeding. This feeling prevailed more espe- cially in the poorer districts. It is not difficult to understand how such an opinion should gradually arise. Let us view the common case of an estate which for many years had been occupied and cultivated by the same families. For several generations no tenant had ever seen the landlord or any of his family. Everything was left to the agent. The landlord himself did not know the names of his tenants, or the condition of his estate. On the other hand, the agent frequently considered the collection of the rents to be his only duty, and this with a pauper tenantry was no easy task. He had in his employment, in each division of the estate, a man who was popularly called the "driver." His duty was to distrain the cattle of the tenants and to drive them to the pound. Rent was seldom paid, except under a distress or threats of a distress. But with this exception of demanding rent, the agent paid no attention to the condition of the estate. The tenants did whatever they liked. They divided and subdivided their farms, and they improved or wasted them according to their inclina- tion or convenience. It was not wonderful that men should consider themselves at least partly owners of land on which they or their fore- fathers had done everything which made it valuable, and which they had been in the habit of dividing, and even of destroying, as they thought proper. Although a distress for rent was very common, it was not usual to resort to an ejectment for non-payment of rent. ' It would have been of little use. The agent would probably not have known what lands to seize under his habere, and even when he got possession, he would not know what to do with his prize. A plot of eight or ten acres of poor wasted land, surrounded by a few hundred acres of land of the same quality in the occupation of a pauper tenantry, would not offer much IRELAND.] IN VARIOUS COUNTRIES. 77 temptation to a farmer with any capital to come and reside on it. One of the tenants of the estate must therefore get the farm, and as there is little difference between one pauper tenant and another, it was as good to let the original tenant remain in undisturbed possession. Another disadvantage to the landlord of an ejectment was that several gales of rent were thereby irrecoverably lost. They could not be recovered from the insolvent who was put out, and the new tenant who is put in would, by the custom of the estate, be entitled to owe the running gale, or even greater arrears, before he could be called upon to pay any rent. An ejectment was considered a vindictive rather than a remedial proceeding. The tenant admitted that the landlord had a right to the rent, while he considered that he himself had a right to the land. This right of the tenant appears to be inconsistent with the unlimited right of the landlord to raise the rent. This is true in theory, but in practice the tenant did not regard it, as he already owed more than he could pay. The landlord took as much as he could out of him, and he could do no more. The insolvent tenant did not much care if his rent was doubled ten times over. But when a better state of things arose, and the tenants began to have some capital, the inconsistency between the two propositions became practically apparent. Tenants maintained that as they had a property in the land, the landlords could not have an arbitrary power to raise the rent. Landlords asserted that as they had an undoubted right to raise the rent at their discretion, it was clear that the tenant could not have any property in the land. The Legislature appears to have settled this dispute by the Landlord and Tenant Act, 1860, 23 and 24 Vic., cap. 154, s, 3, declaring that " the relation of landlord and tenant shall be deemed to be founded on the expressed or implied contract of the parties, and not upon tenure or service ; " but an Act of Parliament cannot extinguish a sentiment, and the feeling of the tenantry remained the same as if that Act had not been passed. It is to be observed that this feeling was strongest among the poorest tenants. The substantial farmers, who had long leases or large farms, with ample capital, did not share in this feeling. The causes which naturally produced it did not extend to them, but a feeling which is profitable to those who 78 SYSTEMS OF LAND TENURE entertain it has a tendency to spread. The causes which had led to this opinion of ownership had long ceased to exist except in a few spots, but the opinion or feeling still remained. With the growth of intelligence, and increase of capital, a strong opinion grew that the laws relating to land were in- jurious to the prosperity of Ireland, chiefly by not affording the tenant a sufficient inducement to make those improve- ments which the landlord was unable or unwilling to under- take. To remedy this several Acts were passed which were improvements in a small way. About the year 1870 it was perceived that considerable changes in the law must be made, and that those changes would in general be favourable to the tenant as against the landlord. Such changes might be more useful to the tenant than injurious to the landlord. The consequence might be a great increase in the production of wealth, of which some part would go to the landlord, although the greater share would belong to the tenant who produced it. Under these circumstances the Landlord and Tenant Act (Ireland), 1870, was introduced. This Act, in the first place, legalised the Ulster tenant-right custom, and made it binding on the landlords who had allowed their tenants to enjoy it as an indulgence. In the next place, a new principle was intro- duced by section 3, under the name of compensation for dis- turbance. This disturbance did not consist in any unlawful act, but in the mere enforcement by the landlord of the rights secured to him. The landlord was obliged to give the tenant compensation for requiring him to give up the land at the ex- piration of his lease, according to the terms of his contract. This right to compensation for disturbance applied to all tenancies from year to year, and to certain leases made after the passing of the Act. Under this section a landlord, who put a tenant in possession as tenant from year to year, and let him enjoy it for five years, and then took it back from him under a notice to quit, was obliged to pay him seven years' rent as compensation. Thus the tenant held the land rent free for five years and got two years, as compensation for being deprived of it. This provision of the Act certainly gave the tenant a pro- perty in the land beyond, and even contrary to, his contract. Compensation naturally means full compensation. The dis- turbance implies a wrong, and it appears almost a logical IRELAND.] IN VARIOUS COUNTRIES. 79 consequence that instead of permitting the landlord to do this wrong, on condition of his payment of a limited compensation, he should be absolutely deprived of the power of disturbing the tenant except for causes to be approved of by a proper tribunal. This would' introduce fixity of tenure in all the interests coming within the disturbance clauses. An ejectment for non-payment of rent may under the Act be deemed a disturbance in the case of small holdings where the rent is exorbitant, or where the arrears amount to more than three years' rent. It is not easy to understand why a tenant should be entitled to compensation for being deprived of a farm which he held at an exorbitant rent, as he does not appear to have sustained any loss. Although the landlord in this case is not permitted to bring an ejectment with impunity, he may bring an action or distrain from time to time so as to make it impos- sible for the tenant to cultivate his farm. The interference of the Legislature in this case assumes that an ejectment for non-payment of rent is a peculiarly oppressive proceeding. And this is true, if it is admitted that the tenant has a property in the land independent of the terms of his contract. The proper inference, however, should be that ejectments for non-payment of rent ought to be prevented altogether. A short history of the action of ejectment may explain the view which the tenantry take of the proceedings. An eject- ment for non-payment of rent was an action taken to enforce a forfeiture for breach of a condition. Forfeitures were odious at law. But the law, instead of rendering those odious things impossible, merely placed some subtle obstacles in their way, but permitted the injustice to remain when those obstacles could be surmounted. The difficulties of enforcing an eject- ment for non-payment of rent at common law arose chiefly from three causes, i. Certain niceties were required as to the time and place of demanding the rent. 2. No assignee or purchaser could enter for breach of a condition. This remedy was only for the grantor and his heirs. 3. It was necessary that there should have been an express condition of re-entry in the lease. These obstacles were all removed in favour of the landlord by various Acts of Parliament, which enacted that no formal demand of rent should be necessary when a year's rent was in arrear. That the assignee of the landlord might sustain an ejectment, and that an ejectment might be main- 8o SYSTEMS OF LAND TENURE [LONGFIELD. tained even when there was no condition of forfeiture, or re- entry for non-payment of rent in the lease under which the land was held. Thus all the protection which the common law gave the tenant was taken away, but the harsh nature of the forfeiture remained. The tenant lost his property without any compensation for its value. It seems a corollary from the Act of 1870 that the landlord should cease tohave the right to eject for non-payment of rent, but that in lieu of an ejectment he should have the power of selling the tenant's interest without greater delay than occurs in any ordinary action. He can thus obtain either the land or the rent, as he may attend the sale and bid up to any amount not exceeding the rent due to him. The rent and cost should be the first charge on the produce of the sale. In analogy to the statute of 1870 the sum to be thus recovered might be limited to the amount of three years' rent. Indeed, it would be an improvement of the law, to make it impossible to recover by action or otherwise any rent that accrued more than three years before the institution of the proceedings. The Act of 1870 gives the tenant compensation for all improvements made by himself or his predecessors in title on more liberal conditions than are to be found in any former Act. It creates a presumption that all the improvements found upon the land were made by the tenant, unless the land- lord can prove the contrary. This presumption will often work injustice by compelling the landlord to give compensa- tion for improvements which he either made or assisted in making. The Act makes no provision for exhausted improvements, or improvements which must have repaid the tenant for his outlay with ample interest during the period while they were enjoyed. It would be more politic and just to divide the improvements into classes, and to declare that each improve- ment shall be considered as exhausted in a certain number of years, and that each year exhausted a proportional part of the value. Thus, if drainage is placed in a class which is sup- posed to repay its value by twenty years' enjoyment, the tenant who expends ^100 in drainage will be entitled to ;ioo compensation, less by the sum of $ for every year during which he has enjoyed the benefit of the drains. Under the Act as it stands, unless the landlords make very prudent agree- ments, and are careful to preserve evidence of all their dealings IRELAND.] IN VARIOUS COUNTRIES. 8 1 with the land, they will at some future period be subject to a great amount of imposition and injustice. The Act also contains some useful provisions extending the leasing powers of limited owners. Those provisions are good as far as they go, but they do not go far enough. Thus this Parliamentary leasing power is limited to thirty-five years. This is not in Ireland considered a sufficiently long term. It ought to be extended to forty-one years at least ; sixty-one years would be still better. It is reasonable to give the limited owner this power, when the Act gives him the power to let the land in small farms to tenants from year to year, who will either be entitled to a possession in perpetuity, or to a claim of about one-third of the value of the fee-simple from the successor who puts him out. The right of the limited owner to grant long leases seems, as a matter of justice, to follow from the disturbance clauses. The Act prohibits the taking of a fine for the exercise of the Parliamentary leasing powers. It is worthy of considera- tion whether it would not be better to permit a limited owner, under all settlements made after this date, to accept a fine, subject to certain restrictions which may be necessary to prevent abuse. The Act contains some clauses called the Bright Clauses, intended to create a class of peasant proprietors, by enabling and assisting tenants to purchase their landlord's estates when they were sold in the Landed Estates Court. This part of the Act has not been very successful. Some of the causes of failure cannot be avoided ; others are caused by inadvertencies in the Act, and may therefore be removed. In the first place, it is evident that in general the tenant must buy his lot by private contract, not by auction. It will not answer to sell the estate by auction in lots settled to suit the wishes of the tenants. If each holding was made a separate lot to suit the wishes of the tenants, there would probably be only one bidder for each lot. In some cases the sale of a few of the best parts of the land to the tenants might prejudice materially the sale of the rest of the estate. Those difficulties are inherent in the nature of the case, and cannot be removed without injustice to the owner of the estate. But the language of the Act creates an impediment of more frequent operation, which may be removed without injustice to G 82 SYSTEMS OF LAND TENURE [LONGFIELD. any person. By the 48th section, the annuity granted in favour of the Board shall be a first charge on the land in priority to all estates and encumbrances, with certain excep- tions. The consequence is that if there is any encumbrance, however small, which cannot justly or lawfully be extinguished, the tenant can get no assistance from the Board of Works to enable him to complete his purchase. A lady eighty years ot age has a small jointure amply secured by other parts of the estate, on which it is a primary charge. Here the Act makes a dead-lock. The judge cannot convey the estate except subject to the jointure, and the Board cannot lend the money while the land is subject to the jointure. The remedy is to repeal that section, and to permit the Board to lend the proper proportion of the purchase-money on being satisfied that the security is ample, notwithstanding the prior encumbrance. The Act permits the Board to lend only two-thirds purchase- money. It is thought by some that the proportion might be increased to three-fourths, and perhaps the change might induce a few more tenants to purchase their holdings. Advances might be safely made on a still more liberal principle. It is now limited to two-thirds of the price paid for the purchase of the landlord's interest. But before the sale the tenant has often a valuable interest which might be made an additional security. He may have had a valuable tenant-right under the Ulster custom, or by purchase or improvements may have obtained a valuable interest in his farm, but this interest cannot be taken into account when an advance is made by the Board. As the object of the Act is to consolidate the estates of the landlord and tenant into one estate, it is reasonable that the value of both estates should be taken into consideration. The Bright clauses would be much more efficient if they only limited the advance to such an amount as together, with the value of all the prior encumbrances, should not exceed three- fourths of the value of the consolidated estate. Nothing would tend more to the creation of yeomen and peasant proprietors than the abolition of the Law of Primo- geniture and of settlement, by enacting that all children should have equal rights of inheritance, and that every limitation in favour of an unborn person should be void. But this question has been so ably discussed by Mr. Brodrick in his book published by the Cobden Club, that it is not necessary to say anything more on the subject. IRELAND.] IN VARIOUS COUNTRIES. 83 CHAPTER XII. AN essay on Irish land tenures would be nothing if it did not enter into an inquiry about the three F's. These are very closely connected, especially the first two. Fixity of tenure would be of little use to the tenant if the landlord had the right to increase the rents at his pleasure, and a moderation of rents would be of no use if the landlord had a right to turn out the tenant. If the tenant has a valuable and perpetual interest in the land, it seems to follow as a natural consequence that he should have the right of disposing of it. In due order the first consideration is that of fair rents. No one denies that the rent ought to be fair, but what is a fair rent and how to determine it are the points in dispute. The best method of settling it is by a free contract between the landlord and the tenant. Unless there is fraud or imposition, or unless one party has obtained an unfair advantage over the other, the contract ought not to be disturbed. The advocates for a general settlement of rent by valuation seem to admit this, but endeavour to bring every case within the exception by alleging that the landlord has an unfair advantage ; as the tenant who applies for the farm has no other resource against starvation and that there is undue competition, as when one farm is vacant there are six men seeking for it. There is no founda- tion in fact for this argument. It is not pretended that the five men starved who did not succeed in the competition for the farm, or that the successful applicant was in utter destitu- tion when he obtained it. On the contrary, it is probable that he had some capital to stock and cultivate the farm, and to maintain himself and his family until his crops should come to maturity. He takes the farm merely to improve his condition, Even if there was what is called undue competition, there is nothing unfair in any man taking advantage of the fact that many desire the property which he is about to sell. The great c jmpetition is often caused by the fact that the land is to be set at a moderate rent. There is, however, one case in which the Act of 1870 assumes that the landlord may be condemned for charging too G 2 84 SYSTEMS OF LAND TENURE [LONGFIBLD. much rent: that is the case in which compensation may be given for disturbance. When a tenant applies for a vacant farm, he takes into calculation two expenses which he must incur. First, the rent, which is obvious ; secondly, the expense of removing his stock and furniture to his new possession. When he takes the farm with a precarious title, he acts on an understanding or belief that he will not be disturbed while he pays the rent, nor have his rent raised unless some increase is made to the value of the land independent of anything added to it by his own outlay. If the landlord now demands an increase of rent, the tenant is not in the same independent position that he held before he took possession of the farm. He has already incurred the costs of one removal, and probably worked at very little profit while he was testing the capabilities of every field. This expense and loss he must incur again if he gives up his farm, even if he could obtain a farm of equal value on the same terms. On this point the Act of 1870 con- sidered that the tenant was unable to make a fair bargain with the landlord, and it condemned the landlord for depriving the tenant of his farm, by giving the tenant compensation for disturbance. But the Act did not draw the natural consequences from the principles which it assumes. If disturbance is a wrong the Act should prevent it, instead of permitting it and giving what may be an inadequate compensation. The Act seems to admit that the compensation may be inadequate, as it limits the amount to a certain number of years' rent there would be no object in the limit unless cases might occur in which the loss might exceed that amount. The principle of the Act seems, therefore, to require a qualified fixity of tenure and judicial settlement of rents. In all cases in which the Act now gives compensation for dis- turbance, it should not be lawful for the landlord to evict the tenant, or to raise his rent, without the sanction of the Land Tenure Tribunal. This tribunal should be strong, fearless, and impartial, and should have full power to settle all moral and legal claims of either landlord or tenant. This law would be a protection to the good landlord and a restraint upon the bad. The former could not be suspected or accused of tyranny or oppression, when he was acting with the sanction of a respected tribunal, and the latter would not be permitted to commit such acts. IRELAND.] IN VARIOUS COUNTRIES. 85 The landlord should be permitted to convert the tenant's interest into a lease for sixty-one years on terms to be approved of by the tribunal, and if the tenant does not agree to this he should not be entitled to compensation for disturbance, or pro- tection from eviction. When a tenant, by any means, acquires a valuable and permanent interest in his holding, it is only reasonable and just that he should have the power of selling it. This third F free sale is useful and almost necessary to him, and it does no harm to anybody. It appears strange that men who acquiesce in the first two F's are found to make objections to this. Yet when landlords had the fullest power of preventing assign- ments, sub-lettings, and sub-divisions, they generally did not interfere, but permitted such acts, even when they altered the nature of the holding by sub-division. The following argument is sometimes used by supposing such a case as this to occur : A landlord has a farm to let, offers are made, and he selects, on account of his good character, a man who does not offer the highest rent. This man sells his interest to one of the candidates who had made a higher offer, but had been rejected on account of his character. The effect of the landlord's judgment in selecting a tenant is merely to put a certain sum of money into the hands of a person who perhaps carries it off to America. But the statesman will not look only to the possibility of cases which may be suggested by an ingenious advocate ; he will consider what probability there is that such cases will occur. The case suggested is most improbable. This careful landlord would not select a tenant without inquiring whether he intended to remain on the farm. But putting this point aside, all experience shows, as a general rule, with very few exceptions, that when a tenant sells his farm the change is an improvement ; the purchaser is a better tenant than the seller. This is only what might be expected. The tenant sells because he is not thriving. He wants some qualities which are neces- sary for success. On the other hand, that the purchaser is able and willing to purchase is an argument in his favour. If he earned and saved the money himself it is almost conclusive, and if he has inherited the necessary capital, it is a good sign that he wishes to invest it in some industry instead of spending it in idle dissipation or speculation. Many of the best and most improving farmers will be found 86 SYSTEMS OF LAND TENURE [LONGFIELD. among those who have purchased their farms, and some of the worst among those who have become tenants by inheritance. Some of these are often farmers only because they find them- selves in possession of a farm, and have not energy enough to go away. When the tenant has a valuable interest in the farm, the rights reserved to the landlord are well secured, and he need not much care who the tenant is. In this, as in other matters, freedom of sale has a tendency to bring property into the hands of those who can make the best use of it. While the tenant should be permitted to sell his farm, he should not be permitted to sub-let, or settle, or encumber it. If he wants money on loan, his personal credit will be better when it is known that his farm is free from encumbrance, and that there- fore he cannot have borrowed from any stranger. This restric- tion on his dealing is essential to a free and cheap sale. I shall show how cheaply and readily this sale may be made, and probably some one else may suggest a cheaper and better course. There should be a local registry, in which nothing but leases should be registered. When a lease is brought to be registered for the first time, a copy should be entered in the registered books under a title distinguished by certain letters and numbers in rotation. Suppose the lease brought in falls in its turn to the letters and numbers B D 3471, this entry is endorsed on the lease : "This lease was registered on the ist of June, 1881, in the registry of Limerick, under the title B D 347 1. (Signed) "A. B., Registrar of Limerick." At the same time a certificate should be given to this effect : " Registry Office of Limerick. " John Murray, of , is the registered owner of the lease entitled B D 347 1 in this office. (Signed) "A. B., Registrar." On the back of this certificate the following words should be endorsed : " In consideration of I sell the lease entitled B D 347 1 to (Signed) IRELAND.] IN VARIOUS COUNTRIES. 87 " Received the above sum o (Signed) "Dated day of " Witnessed by When the tenant John Murray agrees to sell his farm to Patrick Connor for ^500, they fill up the blanks with the proper sums and names, and have the short conveyance duly signed and witnessed. The document is then brought to the registry office. It is the duty of the registrar to have the docu- ment properly stamped, and, if necessary, to get the money for the purpose from the purchaser. He retains the old certificate and conveyance, and enters in the folio for BD 3471 these words "Assigned on the day of by John Murray to Patrick Connor." He then gives to Patrick Connor a certificate with the draft conveyance endorsed similar, mutatis mutandis, to that which John Murray had. The proceedings are so simple that a very small fee would be sufficient to defray the expenses of the office. A registry adds to the expense of a sale if the owner is permitted to settle or mortgage his property, but it may be made very cheap if nothing but an absolute conveyance is per- mitted. The Land Act seems to lead directly to the establishment of the three F's in certain cases when the tenant is in posses- sion with a short or precarious interest, but when the landlord is in possession, and is willing to accept a tenant and give him a lease of substantial duration, the law ought not to interfere with the amount of rent or the tenure. I assume that the tenure is of sufficient duration, and the law cannot prevent the landlord from getting the fair market value of his land if he chooses. He may let it to a trustee, and the trustee may sell the tenant-right for the largest sum he can obtain. They should permit him to do directly what he cannot be prevented from doing indirectly. The landlords of Ireland do not in general wish to exact high rents ; but an accusation of oppression and extortion has been brought against the class which bought in the Landed Estates Court. It is alleged that they bought land as a profit- able investment, and then charged exorbitant rents in order to 88 SYSTEMS OF LAND TENURE [LONGFIELD. get a good interest on their capital. There may have been a few cases of that description, but taken as a class the new pur- chasers were better landlords than the men whom they suc- ceeded, and by their better management of their estates, and by a liberal outlay, they have added to the wealth of Ireland, and to the comfort of their tenants and labourers. The ancient insolvent owners were often good-natured men, but bad landlords. They did not exact a high rent from poor people. The poverty of a tenant, from whatever cause it proceeded, was thought a proof that his rent was high enough. The prosperous tenant met with less consideration. The old landlord did not oppress the tenants, but too often he neglected them. He did not require them to be punctual in the payment of their rents. He let them sub-divide the land as they thought proper ; he gave them no advice or assistance, but let them fall into habits of laziness, improvidence, and ignorance, that must necessarily keep them poor. The new landlord was a man of a different stamp. He examined his new purchase carefully ; he endeavoured to alter the habits of his tenants ; he condemned their system of cultivation ; and sometimes raised their rent to that amount which he thought a man with moderate skill and industry ought to be able to pay. All this was very unpopular with the tenants. Men do not like to be disturbed in their habits even in their bad habits. They do not like to be told, even when it is true, that their poverty proceeds from their idleness ; and, above all things, they do not like to have their rents increased. To them it seemed that King Stork had succeeded to King Log. But although some of the new landlords were too hasty in their changes, the general condition of the tenantry improved under their management. CHAPTER XIII, THE Act of 1870 gave the tenant the right to enforce the Ulster tenant-right custom, where it had previously been de- pendent upon the good will of the landlord, but the Act did nothing to define the custom or to measure its value. This value sometimes falls and sometimes increases, according as the landlord or the tenant is more capable of making a good IRELAND.] IN VARIOUS COUNTRIES. 89 bargain. It was an essential part of the existing tenant-right that the landlord had the power of raising his rent on any general increase in the value of land in the neighbourhood. Those who contend for the antiquity of tenant-right must admit that rents have been raised considerably during its existence. The landlord had, and often exercised, the right of limiting the price which a tenant should receive on the sale of his hold- ing. If he permitted a very high price, he would lie under a moral obligation to the new tenant not to raise his rent. This limitation of the price was the chief means which the landlord had of increasing the rent on proper occasions. In the sixth chapter of this essay I suggested a plan by which the relative rights of landlord and tenant might be measured and preserved by a self-acting rule. I shall try to answer all the objections that have been made to this plan, as I believe the law concerning the Ulster tenant-right custom cannot be permitted to remain long in its present form. First objection. The plan is unjust to the landlord, as it proposes to take away part of his estate and to give it to the tenant. Answer. I do not propose that this tenant-right should be universal. I only give it where the tenant, under the Ulster custom, has already a tenant-right of equal value, or where he obtains it by contract with his landlord. Second objection. This plan would not satisfy the Ulster tenant, as his interest is frequently worth more than seven years' purchase of the rent. Answer. I put in the word seven to illustrate the plan, but any other number might be used in its place, when justice required it. A tenant whose interest is worth seventeen years' purchase may have his interest valued, denned, and preserved in the same manner. The number seven is no part of the essence of the plan, which is, that the tenant- right shall be valued at a certain number of years' purchase of the holding, and that neither party shall unreasonably disturb the existing state of things. If the tenant demands a reduction of his rent, he must be prepared to accept seven years' purchase of the reduced rent : if the landlord demands an increase, he must be prepared to pay seven years' purchase of the increased rent. What notice should be given, or at what periods the demand might be made, are matters of detail which present no difficulty if once the principle of the plan is accepted. I believe that the effect of the plan would be that changes would be very seldom made. The landlord would generally permit 90 SYSTEMS OF LAND TENURE [LONGFIELD. the market value of the tenant-right to grow beyond its measured legal value. He would have less inducement to seize on an opportunity of raising the rent when he was relieved from the fear that his acquiescence might create a custom which might steal away a good part of his estate. Third objection. What would happen if the tenants should combine to demand a reduction of rents, and thus compel the landlord either to submit to an unreasonable demand, or to raise a large sum of money which might be very inconvenient or perhaps beyond his power. I think the occurrence of such a case impossible. A combination using lawful means can succeed only when all its members are in the same boat, as when a number of workmen enter into a combination that none shall work except on terms to which all agree. But in the case of tenant-right every tenant has a different interest, and may be dealt with separately. John Murray has a farm at the rent of ;i2o a year, for which the legal value of the tenant-right is seven years' purchase, or ^840. The market value would probably be nine years' purchase, or ^1,080. He demands a reduction of the rent to 90 a year, which the landlord may refuse, and the tenant will be obliged to accept ^630 for what he could sell in the market for ^1,080. He will not be likely to expose himself to the risk, I may say to the certainty, of such a loss. Fourth Objection. This plan makes it impossible to give the tenant proper compensation for any improvements by which he may have added to the value of his farm. I see no difficulty in this, except what must exist in every state of the law the difficulty of ascertaining the nature and value of the improvements, the date at which they were made, and the compensation to which the tenant is entitled. When those matters are settled by the proper tribunal, the' rest is easy. The improvement is represented by an annuity; the rent is supposed to consist of the rent actually paid, and the annuity which is retained by the tenant. The landlord must make his proposal for the increase of the part of the rent which is irres- pective of the annuity, and if it is rejected he must pay seven years' purchase of that rent, together with the value, whatsoever it might be, of the unexpired annuity. If the interest of the landlord is protected in this manner, it seems unnecessary to give him the power of placing any restriction on the price to be paid to the tenant on a sale. IRELAND.] IN VARIOUS COUNTRIES. 91 I have shown how necessary it was formerly for the landlord to look to this, as the price permitted on a sale would be used as an argument to prevent him from demanding an increase of rent. This argument will have force as long as the landlord retained any right of interference with the sale. Even when the right of interference is gone, the new tenant will have a feeling as if there was great weight in the argument. When rights are left vague and undefined, any topic may be used as an argument ; but when the tenant-right is fixed as a certain number of years' purchase, the rights of the landlord are pre- served from encroachment, and the tenant may be permitted to have a perfectly free sale. Some persons object to a free sale, on the ground that the in-coming tenant may pay too much, and that he will then, in fact, be liable to a rack-rent for his land. This rack-rent is said to consist of the actual rent payable to his landlord, and of a reasonable interest on the purchase-money which he paid. But to call this a rack-rent is an abuse of language. My neigh- bour, Lord B , has a good estate of ^"10,000 a year all held in fee-simple. I would not say that he held this at a rack- rent because his grandfather bought it at thirty-seven years' purchase. The tenant who has purchased his farm is in quite a different relation to the State from the man who holds at a rack-rent. The latter is steeped in poverty, and has very little hope of improving his condition ; if he works hard it is more for the landlord's benefit. He is open to every revolutionary suggestion, as he feels that he could not lose much by any derangement of the established order of things. But the man who has bought a good interest in a farm can live in comparative comfort. He also lives in hope, as he feels that all his labour adds to his own wealth. He has a stake in the country, which he does not value the less because he has paid a high price for it. The reasons which are said to induce tenants to pay too high rent do not exist in the case of a purchase. The first reason is that the tenant in possession will often submit to the increase of rent rather than incur the loss and inconvenience of a remove, but, in the case of a purchaser, this motive points in the opposite direction. Another reason is that a farmer sometimes offers too high a rent, hoping that if he obtains possession of the land he may 92 SYSTEMS OF LAND TENURE, ETC. [LONGFJELD. obtain a reduction of his rent by petitions or remonstrances to his landlord. But the purchaser of a tenant's interest has not the faintest hope that the seller will ever give him back any part of the purchase-money. Another difference is that a purchase is a ready-money transaction, while the lease is a case in which long credit is given. In order to estimate the annual loss which the purchaser suffers by parting with so much of his capital, we should know what use he was likely to make of it, if he had retained it. If the purchase-money is ^"1,000, we might estimate the loss at ^ i oo a year, if we believed that it was within the capacity and knowledge of the tenant to find a good security, giving him ten per cent, interest. But if he is likely to keep it in an old stocking, or to lend it to a neighbour, he will find it safer, and more profitable, to pay even a high price for a farm. On the whole, therefore, the third F seems to me the F which least requires to be qualified or restricted. II. THE LAW AND CUSTOM OF PRIMOGENITURE. Bv THE HON. GEORGE C. BRODRICK. CHAPTER I. HISTORY OF PRIMOGENITURE. THE right of Primogeniture, the most distinctive feature of the English family system, is partly the creation of law, and partly the growth of custom. It is the growth of custom, so far as it has its origin in the voluntary action of feudal lords in making grants of land to be held by knight-service, and so far as it now depends on the preference given by parents to eldest sons in wills and settlements of property. It is the creation of law, so far as it is the fixed rule of succession to landed estates in case of intestacy ; and so far, moreover, as the custom which prevails in wills and settlements has been determined or favoured by the law. The practice of entailing, which is often associated or confounded with the right of Primogeniture, is theoretically quite independent of that right, since it would be as easy and as consistent with legal principles to entail an estate upon the youngest son as to entail it upon the eldest son. Again, the power of settling is theoretically altogether distinct from the power of entailing, since it extends to per- sonality as well as to land, and might be employed to keep land tied up, though entails should be abolished by law. Practically, however, settlements are the medium through which the entailing power is exercised, and form a powerful bulwark of Primogeniture, inasmuch as they enable successive heads of families owing to it their own position, to secure its mainten- ance far into the lifetime of an unborn generation. The so-called Law of Primogeniture, applicable to in- heritance of land ab intestate, is thus stated in " Blackstone's Commentaries": "That the male issue shall be admitted before the female, and that, when there are two or more males in equal degree, the eldest only shall inherit, but the females altogether." The right of Primogeniture, then, in the descent 94 THE LAW AND CUSTOM [BRODRICK. of land, exclusively belongs to eldest sons, and has no place among daughters. This fact, in itself, has a material bearing on its historical origin. The luminous researches of Sir H. Maine into ancient law tend strongly to support the opinion of Blackstone and other authorities, that we owe this institution to feudal society, not in the earlier, but in the later stage of its development. " Primogeniture did not belong to the customs which the barbarians practised on their first establishment within the Roman Empire." It was, indeed, directly at vari- ance with the principles of equality which appear to have regu- lated all the primitive communities whose organisation, but lately revealed to historical students, furnishes the key to so many social problems otherwise insoluble. Even the patriarch, though lord of the family possessions, " held them as trustee for his children and kindred." The male children were recog- nised both in German and Hindoo jurisprudence as "co-pro- prietors with their father, and the endowment of the family could not be parted with, except by the consent of all its mem- bers." Still less 'had the eldest son any advantage over the rest, either in those primeval family groups which held their domains in joint ownership, or under that more advanced system of land tenure, where partitions took place on the death of a parent, according to rules indicated by Tacitus with his usual pregnant brevity : " Haeredes successoresque sui cuique liberi, et nullum testamentum : si liberi non sunt, proximus gradus in posses- sione, fratres, patrui, avunculi." Sir H. Maine, after summing up the evidence on this part of the subject, concludes that "an absolutely equal division of assets among the male children at death is the practice most usual with society at the period when family dependency is in the first stages of disintegration." This conclusion, mainly founded on the legal history of Germany and India, is further confirmed by the great cus- tomary of Ireland, known as the Brehon Code, which not only adopts the rule of equal division, but extends the right of inheritance to bastard children. It is hardly necessary to state that a like rule, but applying only to legitimate sons, was established by the Anglo-Saxon custom of gavelkind, which still prevails, as of common right, over the greater part of Kent, and in a qualified form, governs the descent of copyhold lands in some other parts of the kingdom. The Athenian law of succession, under the Solonian constitution, was the same in all OF PRIMOGENITURE. 95 essential respects with the Anglo-Saxon. All the sons inherited equally, upon the death of their father, and the only privilege reserved to the eldest was that of exercising the first choice in the division. The right of Primogeniture, as Blackstone observes, seems to have been maintained by the Jews alone, among the oldest races whose laws are known to us ; and even the Mosaic law assigned no more than a double portion to the eldest son, while the " birthright " of pre-Mosaic times, as appears from the case of Reuben, might be set aside by the father. It is equally certain that Primogeniture is not derived from Roman law the real fountain-head of so many institutions and ideas once supposed to be indigenous. According to Roman law, " when the succession was ab intestate, and the group (of co-heirs) consisted of the children of the deceased, they each took an equal share of the property ; nor, though males had at one time some advantages over females, is there the slightest trace of Primogeniture." Intestacy, it is true, was rare among the Romans ; but Sir H. Maine has given cogent reasons for believing that Roman wills, so far from being made for the purpose of accumulating property upon one representative of the family, were usually made for the contrary purpose of dividing the inheritance more equitably among all the children, and defeating the rule which excluded sons already emanci- pated from succession ab intestato. We may assume, then, with as much confidence as is pos- sible in inquiries of this nature, that Primogeniture is essentially a feudal institution. It cannot be traced back to an age pre- ceding feudalism ; it was fully established in those countries, and those only, which are known to have adopted the feudal system, and it has been abandoned, for the most part, by those countries which have undergone a complete de-feudalising pro- cess. Moreover, though we are unable to specify the exact mode whereby this innovation was accomplished in the Dark Ages, we are able to account for it completely by the peculiar circumstances of that warlike and chaotic period. "While land," says Adam Smith, " is considered as the means only of subsistence and enjoyment, the natural law of succession divides it, like them, among all the children of the family ; . . but when land was considered as the means, not of subsistence, merely, but of power and protection, it was thought better that it should descend undivided to one." Such 96 THE LAW AND CUSTOM [BRODRICK. is the true historical explanation, as it is also the sound economical explanation, of the rise of Primogeniture. In ancient Rome, no less than in ancient Athens, the State was everything and the individual nothing ; public rights dwarfed and overshadowed private rights ; and family pride, intense as it was, could not indulge the passion of territorial aggrandise- ment, lest it should encounter the fierce jealousy of the re- publican spirit. In communities of the Oriental and old German type, different causes produced the same effect : land was regarded as " a means of subsistence " for all the members of a primitive family or village, and the idea of vassals or tenants holding under a lord could scarcely have been con- ceived. Even when the German tribes first conquered the Roman Empire, there is reason to believe that equality was the general piinciple of division. Each great chief, however, naturally received a larger share, and, being unable to cultivate the whole of it for himself, granted a part to retainers on conditions of military service. It is from grants of this kind, and from "honorary feuds" to which titles of nobility were attached, that Primogeniture, as a rule of succession, is held by most jurists to have directly sprung. The original grantee of a fief, unlike the owners of " allodial " property, was indebted to no family law for his new possession. He derived it solely from the bounty of his chief, whose interest it was that it should always be held by some person capable of serving in war, as well as of discharging the less definite obligations, in lieu of rent, which afterwards became regular legal incidents of tenure in chivalry. In most instances the eldest son would be the one most capable, on the father's death, of undertaking his feudal liabilities ; but this was not the only reason why Primogeniture gradually superseded joint ownership and equal division. In those vald and unsettled times, it was as necessary for the family as for the lord that it should have one acknow- ledged head to govern it, one standard round which all its members and dependants could rally, one judgment-seat to which all disputes could be referred. The disorganised state of society compelled a recurrence to something like the patri- archal system of family government ; but whereas that system had developed into the rule of equal inheritance, feudalism, under a different order of conditions, became the parent of Primogeniture. The eldest son, therefore, was invested with his exceptional OF PRIMOGENITURE. 97 privileges under the feudal system, not because he was supposed to have any exceptional rights, but rather because he was sup- posed to be the most eligible for the performance of exceptional duties. He was not, however, invariably preferred ; and we know that merit had far more to do with inheritance in the first age of feudalism than it has with succession to estates or titles in our own days. The Crown itself was then, in some degree, elective in every feudal monarchy ; and it is more than probable that fiefs, like the chieftainship of Scotch and Irish clans, some- times descended to younger brothers and sometimes to uncles. When they descended, as they usually did, to eldest sons, they assuredly brought with them far heavier burdens and far more limited rights of proprietorship than we are wont to associate with the position of a landowner. The life of a German baron under the Othos, or of a Norman baron under the Conqueror and his immediate successors, was a life of incessant toil and anxiety, seldom relieved by leisure or enjoyment ; and the younger brother who had entered a monastery, or turned soldier of fortune, had perhaps little cause to envy the lord of several castles, whose revenues, paid in kind, were devoured by hungry and turbulent retainers. It is impossible to fix the precise year, or even the precise reign, in which Primogeniture was substituted for gavelkind in the common law of England. Blackstone regards this feature of mature feudalism as introduced by the Conqueror; yet the Conqueror himself sanctions descent by gavelkind in the charter which he granted to the City of London. Under the so-called Laws of Henry L, the eldest son had no pre-eminence beyond the right of appropriating the " capital fee," held by military tenure ;* and, so late as the reign of Henry III., socage fees, the relic of the old Saxon boc-land, continued to be partible among the male children. Glanville, writing in 1187-9, speaks of Primogeniture as if it were fully established on estates held by knight-service, and were spreading, though only as a local custom, on socage estates. By the year 1200, however, the general presumption was held to be in favour of Primogeniture; and this rule of descent had become almost universal, except in Kent, by the end of the thirteenth century, by which time also the custom of entailing, in its most ancient form, was already established. Entails created in this form * The current interpretation of this passage is disputed by Mr. Kenny. ("Essay on Primogeniture," p. 167.) H 98 THE LAW AND CUSTOM [BRODRICK. conferred no indefeasible right of inheritance. When a fee was granted to a man " and the heirs male of his body," it was held that, upon the birth of a son, the grantee might sell the land, or charge it with encumbrances, or forfeit it by treason, so as to bar the interest of his own issue. If he did none of these acts, however, it would descend according to the express terms of the grant, for he could not devise it by will. It has been doubted whether tenants of the crown ever possessed the full liberty of selling, though others have considered this liberty as characteristic of true feudalism, which denied the son any vested right in the estate so acquired by the father. According to this view, the famous statute De Donis (13 Edward I., cap. i ), by which the succession of the issue, and the ultimate rever- sion of the donor on failure of issue, were secured against the risk of being defeated by alienation, was a legislative encroach- ment on feudal principles, and a part of the same policy which afterwards carried the statute Quid Emptores. The entails made under De Donis created, in fact, a perpetual series of life estates, and are stigmatised in a well-known passage of " Black- stone's Commentaries : " " Children grew disobedient when they knew they could not be set aside ; farmers were ousted of their leases made by tenants-in-tail . . . creditors were de- frauded of their debts . . . innumerable latent entails were produced to deprive purchasers of lands which they had fairly bought . . . and treasons were encouraged, as estates-tail were not liable to forfeiture longer than for the tenant's life." The fact of such consequences having resulted from indefeasible entails has never been disputed. It is significant that, when the absurd technical device of a " common recovery " was in- vented to break them, in the reign of Edward IV., Parliament took no steps to counteract it, and even expressly legalised dis- entailing by " fines."* Nevertheless, there is good reason to doubt whether the greater part of England was ever subject to entails under De Donis, and whether that system ever came into general use before the Civil Wars of the seventeenth cen- * "Taltarum's case," establishing the right of breaking an entail by a collusive action, was decided in 1472. By the statute 4 Henry VII., cap. 24, the alternative method of terminating entails by "fines " was legally sanctioned. By thf; statute 26 Henry VIII., cap. 18, estates-tail were deprived of their immunity from forfeiture, on conviction for treason ; by 32 Henry VIII., cap. 18, tenants for life ware enabled to grant leases, on reasonable terms, which would bind their issue-in-tail ; by 33 Henry VIII., cap. 39, all estates-tail were made liable to Crown-debts, secured by record or special contract. OF PRIMOGENITURE. 99 tury, soon after which the lawyers found means to defeat it. We must remember that wills of land, by which modern entails are often created, were not then permitted by common law, and that even devises of land, by means of " uses," which held good in equity, are believed to date from the early part of the fifteenth century. Entails must, therefore, have been created during the fourteenth century by deed, and, as the device of successive life estates followed by remainders in tail had not been invented, there was no recognised method whereby a landowner could entail an estate, and yet reserve to himself the possession of it. Indeed, the frequency of lawsuits concerning land in the fifteenth century is some proof of its frequently coming into the market. On the other hand, in days when personalty was extremely scarce, wills of land very rare, and settlements unknown, the law of Primogeniture, causing fee- simple estates to descend like entailed estates, must have operated to an extent, and with a severity, which is happily difficult to conceive in the present age. By the end of the Tudor period the practice of breaking entails by means of " common recoveries " had already become well established, and must have brought many estates into the market. The same object was deliberately facilitated by the statute passed in the reign of Henry VII., which authorised a tenant-in-tail to bar his own issue by a simpler proceeding known as a " fine." It has not been sufficiently realised that, during the period between the introduction of these methods for disentailing, and the institution of family settlements in the seventeenth century, the ownership of landed property in this country was practically more absolute and the disposition of it less restricted than it had been for two centuries before, or than it has since become. Each successive tenant-in-tail, by levying a fine or suffering a common recovery, was able to convert his estate into a fee-simple, and, as the use of life- estates in tying up land had not been discovered, the head of a family was usually in this position. It is impossible not to connect the rapid growth and singular independence of the English gentry under the Tudors and Stuarts with the limitation of entails and freedom of alienation which charac- terised this remarkable period. Many of the humbler yeomen may have been crushed out or bought out in the process of forming parks or turning arable into pasture farms, and may ultimately have sunk into the condition of the labourer. H 2 100 THE LAW AND CUSTOM [BRODRICK. But the yeoman class, as a whole, assuredly occupied a very much larger space in country life, as country life was a far more important element in national life than it is easy for the present generation of Englishmen to conceive. In course of time, however, family pride, aided by lawyers, contrived new expedients for checking alienation by sale or subdivision by will, and placing the right of Primogeniture on a secure basis. The first of these expedients in logical, if not in chronological, order, was the mere substitution of such words as " first son " or " eldest son " for " heir of his body " in deeds of settlement. The legal effect of this was, that instead of the father taking an estate-tail under the settlement, which he might have forthwith converted into a fee-simple, he took only a life-estate, and had no control over the remainder (whether for life or in tail) given by the same instrument to his eldest son. This idea was developed by conferring, so far as possible, life-estates instead of estates-tail on the whole first generation of persons included in a family settlement ; so that, whereas a tenant-in- tail once in possession could not be deprived of his power to become master of the property, the acquisition of this power might be deferred to a second, or even to a later generation. But, for reasons known to lawyers, that object could not have been accomplished effectually without a further expedient devised by Sir Orlando Bridgman and Sir Geoffrey Palmer during the Civil Wars, and generally adopted after the Res- toration. This was the notable contrivance of "trustees to preserve contingent remainders," of which it is enough to say that it protected the interests of tenants-in-tail against the risk of being defeated by the wrongful act of preceding life-tenants. From this epoch, rather than from " Chudleigh's case," which is cited by Lord Bacon, must be dated the modern type of settlement. Still, the principle was maintained that an entail might be cut off by a tenant-in-tail of full age, though it was technically necessary for him, unless in possession, to obtain the concurrence of the person (generally his own father) in whom the immediate freehold was vested. This principle was violated by the Legislature for the first time, as Mr. Neate shows, in the great Act of William IV., which created the " protector of the settlement." Since this Act it has been a positive rule of law, and no longer a mere technical necessity, lhat, when a tenant-in-tail under a settlement wishes to bar the OF PRIMOGENITURE. IOI entail completely, he must obtain the consent of the " pro- tector," that is, in legal phrase, of the person who has the first estate of freehold prior to his own estate-tail. CHAPTER II. PREVALENCE AND OPERATION OF PRIMOGENITURE. WE are now in a position to review the actual operation of Primogeniture in this country, whether under the express terms of settlements and wills, or by virtue of the law pre- scribing the course of descent on intestacy. Unfortunately, the statistical materials requisite for such a review are still very imperfect. Among our Anglo-Saxon forefathers, transfers of land were publicly witnessed, after proclamation openly made in the shire-mote, or county-court a primitive but effective substitute for a modern registry of title or assurances. For centuries after the Conquest, the publicity of "feoffments," and the " inquisitiones post-mortem " taken on the death of all tenants holding by knight-service from the Crown, kept alive evidence of conveyances or succession for a very large proportion of English properties, which might have been embodied in periodical revisions of Domesday Book.* It was not until private and unregistered deeds, couched in the jargon of legal pedantry, had finally superseded the old simplicity of land- transfer and land-succession, that " real property " became the stronghold of conveyancing mystery, and transactions relating to land ceased to be the subject of public notoriety or interest. At this moment the statistical materials requisite for a record of English land tenure, as affected by the Law and Custom of Primogeniture, are still very imperfect. No register of settle- ments, conveyances, or mortgages exists as yet for any part of England, except Middlesex and Yorkshire, though such a register has existed in Scotland a century and a half, and is admitted to answer its purpose admirably. Accordingly, very conflicting estimates have been formed of the proportion which settled bears to unsettled estates, though many settlements, and * The compilation of Domesday Book itself is supposed to have been facilitated by reference to the books of the Anglo-Saxon county courts. IO2 THE LAW AND CUSTOM [BRODRICK. those not the least unjust or capricious, are made by will. Wills, it is true, are preserved, but they do not show the extent of land devised by them ; nor is there any means of ascertaining, with any approach to accuracy, how far they are employed to aggravate, and how far to mitigate, the inequality arising from the custom of settling landed estates upon eldest sons. It might have been expected, however, that a complete record of the land devolving annually under the common law rule of descent would be kept for State purposes and public informa- tion. Instead of this, no distinction appears to be drawn between land which passes by will and land which passes by settlement, being equally chargeable with succession duties ; while, for a like reason, no separate account is published of land transmitted to heirs by the law of intestate succession. We are, therefore, thrown back on secondary evidence, such as the facts and professional opinions collected by Royal Commis- sions or Parliamentary Committees, for the means of estimating the dominion of Primogeniture over the land-system and social life of England. It has frequently been asserted, and is widely believed, that a mere fraction of the land which yearly changes hands on death is governed by the law of intestate succession. There are no adequate means of verifying or disproving this assertion, but there are good reasons for distrusting it. There is scarcely a wealthy or noble family of any considerable antiquity in which the estates have not at some time descended to an heir or coparceners by the effect of this law. Such an event, how- ever, is far more likely to happen in families less habitually guided by the advice of solicitors, and accustomed to dispense with marriage-settlements. The savings of shopkeepers in country towns are very often invested in the purchase of villas or small plots of land, and such persons very often omit to make a will, being perfectly satisfied with the distribution of per- sonalty or intestacy, and never having realised the responsi- bilities of a landowner. What is really true is that landowners, conscious of these responsibilities, seldom deliberately intend to die intestate, and that most descents by operation of law are the result of negligence or misadventure. It is not every lay- man who can be expected to know that, whilst most shares in railways and canals are personalty in the eye of the law, New River shares are invested with the character of real property ; or that, while a lease for 999 years is personalty, a lease for life, OF PRIMOGENITURE. 103 though it be the life of another, is realty.* But it is not only through ignorance of the common law rule that land is left to descend upon a single legal " heir." A man, perhaps, makes several contradictory wills, all of which prove to be void for want of proper attestation, or by reason of his incompetence ; or he makes a good will so worded that it does not cover the whole of his real property, including that which he may have contracted to buy ; or, having recently purchased a small free- hold, he is just about to devise it, when he is suddenly cut off. Moreover, intestacies may easily escape public observation, even when they occur in wealthy families. The known wishes of an intestate may be carried into effect by arrangement within the family, or an amicable suit in equity, without the public becoming aware of the fact, especially if those wishes should nearly coincide with the course of descent at common law. Several notable examples of the contrary kind, where the known wishes of the intestate, and the plain requirements of justice, were flagrantly violated by the law of intestate succession, have been cited by Mr. Locke King and others in parliamentary debates.f Upon the whole, then, we may conclude, with Mr. Joshua Williams, J that "the property which descends to heirs under intestacies, though large in the aggregate, is generally small in individual cases," where, however, it often works grievous hard- ships. Those who suffer by it are usually persons for whom no other provision has been made, and members of a class to which the idea of making an eldest son, and beggaring the rest of the family, would be utterly repulsive. The direct effect of the Law of Primogeniture in keeping together great estates, and aggrandising the heads of great families, is probably not very considerable. Its indirect effect on the minds of testators and settlors cannot be measured by any indefinite test, but reason and analogy would certainly lead us to believe that it has been a most powerful agent in moulding the sentiment of the class by which the custom of Primogeniture is maintained. From this point of view, it is certainly a significant fact that no * See Laurence's " Essay on Primogeniture," sect. vi. f- In one of these cases, a man in humble circumstances, having no children, had employed the fortune of his wife, with her full concurrence, to buy the house in which they lived ; after which he died intestate, a nephew claimed and obtained the property, and his widow, left destitute, was reduced to work as a menial servant. I " Personal Property," p. 402. 104 THE LAW AND CUSTOM sooner was the Law of Primogeniture swept away in the United States than equal partibility became the almost universal cus- tom, notwithstanding that American landowners are by no means destitute of family pride, and enjoy very nearly the same liberty of devising or settling their estates as an English proprietor. * It is still more instructive to observe that personal property in this country, being exempt from the Law of Primogeniture, is little affected by the custom, save when it is thought necessary to accumulate the lion's share of it on the eldest son, that he may the better keep up the dignity of a family place. On the contrary, ordinary wills of personalty closely follow the Statutes of Distributions, under which the " next of kin " are placed in the same position as " the heir " under the Law of Primogeni- ture. Rich capitalists, who do not invest in land, or aspire to found a county family, seldom make an eldest son, and of those who do indulge in this ambition, some prefer to buy a moderate estate for each of their sons. Still more habitually is equal division recognised as the dictate of natural equity by the great body of merchants, tradespeople, and professional men, as well as by the labouring classes throughout Great Britain and Ireland ; in short, by the middle and lower orders of society, divorced from the soil in this country, and by the landless members of the upper orders. Nor must it be forgotten that, by English law, ordinary leaseholds, whether they consist of lands or houses, count as personalty, and are distributed as such on intestacy ; whereas money in trust for investment in land counts as realty, and falls under the same rule of inheritance. Vast leasehold interests are constantly included in settlements of personalty; and few of these settlements, whether made on the marriage of a duke's younger son or on the marriage of a shopkeeper, exhibit any bias towards Primogeniture. In most instances, the funds are directed to be invested for the benefit of all the sons and daughters of the marriage equally, though a power is usually reserved to the parents of modifying this distribution by "appointment," at their own discretion. The same course is generally followed by testators possessed of small landed estates purchased with their own earnings, who, for the most part, * See Kenny's ''Essay on Primogeniture," pp. 64-5; and Mr. Ford's " Report on Land Tenure in the United States," presented to Parliament, with similar reports from other countries, in 1869-70. OF PRIMOGENITURE. 105 devise their land to trustees for sale, and direct the proceeds to be divided among their children. In families of the yeoman class, the ordinary practice appears to be that hereditary property should go to the eldest son, but that, in accordance with the Scotch rule of legitim, younger children should be compen- sated, so far as possible, for their disinherison, and that, if burdened with mortgages, the land should be sold for the equal benefit of all. Even the rude wills and settlements drawn up by priests or schoolmasters for Irish peasant-farmers, among whom the instincts of proprietorship are cherished in their intensest form, embody the principle of gavelkind and not of Primogeniture. Though often destitute of any legal validity, and purporting to dispose of an interest which has no existence in law, they' usually disclose a clear intention to place the younger children on a tolerably equal footing with the eldest son, either by the subdivisions of which Irish landlords com- plain so much, or by heavy charges on the tenant-right. It may, therefore, be safely affirmed that Primogeniture, as it prevails in England, has not its root in popular sentiment, or in the sentiment of any large class, except the landed aris- tocracy and those who are struggling to enter its ranks. By the great majority of this class, embracing the whole nobility, the squires of England, the lairds of Scotland, and the Irish gentry of every degree, Primogeniture is accepted almost as a fundamental law of nature, to which the practice of entails only gives a convenient and effectual expression. Adam Smith remarks that " in Scotland more than one-fifth, perhaps more than one-third, part of the whole lands of the country are at present supposed to be under strict entail" that is, entailed under a system, introduced in 1685, which barred alienation far more inexorably than was permitted by the English rule against perpetuities. Mr. McCulloch, writing in 1847, calcu- lated that at least half Scotland was then entailed ; but an Act passed in the following year facilitated disentailing by provisions borrowed from the English law.* In England, * See Laurence's "Essay on Primogeniture," pp. 67-68. By the Act of 1848 (n and 12 Viet., cap. 36) tenants in possession were enabled to bar entails with the consent of all the remaindermen, if less than three, or of the three remaindermen next in succession. Under a subsequent Act (38 and 39 Viet., cap. 6r, sec. 5), on an application to the Scotch Court to disentail an estate held by tailzie, dated prior to August i, 1848, the court may dispense with any consent thus required by the former Act, except that of the immediate heir or first remainderman. But it was provided that the value in money of 106 THE LAW AND CUSTOM [BRODRICK. where so much land is in the hands of corporations or trustees for public objects, and where almost all deeds relating to land are in private custody, we cannot venture to speak with so much confidence on this point. Considering, however, that in most countries large estates predominate over small, and that large estates, by the general testimony of the legal profession, are almost always entailed either by will or settlement, while small estates, if hereditary, are very often entailed, there is no rashness in concluding, in accordance with the evidence given before Mr. Pusey's Committee, that a much larger area is under settlement than at the free disposal of individual landlords.* It is well known that iri families which maintain the practice of entailing, the disparity of fortune between the eldest son and younger children is almost invariably prodigious. The charge for the portions of younger children, when created by a marriage settlement, is created at a time when it is quite uncer- tain how many such children there will be. It is rarely double of the annual rental, and often does not exceed the annual rental ; indeed, in the case of very large estates, it may fall very far short of it. In other words, supposing there to be six children, the income of each younger brother or sister from a family property of ^"5,000 a year will consist of the interest on a sum of ;i,ooo, or, at the utmost, of ^2,000 ; and even if there were but one such younger child, his income from the property would probably not be more than one-twentieth or one-thirtieth of his elder brother's rental. Nor does this represent the whole difference between their respective shares of the family endowment; for the eldest son, who pays no probate duty, finds a residence and a garden at his disposal, which he may either occupy rent-free or let for his own private advantage. Of course, where a father possesses a large amount of personalty, he may partially redress the balance ; and there are exceptionally conscientioris landowners who feel it a duty to save out of their own life incomes for younger children. But it is to be feared that accumulations in the Funds are too often employed, not exclusively nor mainly to increase the pittances allotted for portions, but on the principle of " To him that hath shall be given," to relieve the land of some outstanding incum- their expectancies or interests in the entailed estate should be ascertained, and paid into Court or duly secured. * The estimates given before that Committee represented the estates then under settlement as exceeding two-thirds of the kingdom. Others have stated the proportion at three-fourths and upwards. OF PRIMOGENITURE. 1 07 brance, and to aid the eldest son in conforming to a conven- tional standard of dignity. It is, indeed, wholly delusive to contrast the Law with the Custom of Primogeniture, as if the harsh operation of the former were habitually mitigated by the latter. The contrary tendency is assuredly far more prevalent in the higher ranks of the landed aristocracy ; and the younger members of families in this class would generally have reason to congratulate them- selves if the law alone were allowed free scope, instead of being aggravated by the effects of the custom. For instance, in the case last supposed, if a family estate of .5,000 a year were charged with no portions for younger children, but left to descend under the law of intestate succession, each of five younger children would lose ^1,000, or, at the utmost, ^2,000. But then, if the last owner were possessed of .90,000 in personalty, and this also were left to be divided among the children under the Statute of Distributions, each child would receive a share of ,15,000. Suppose, however and it is no improbable supposition that portions have been charged for younger children, but that one-third of the per- sonalty, or .30,000, is bequeathed to the head of the family to keep up the place, the fortune of each younger child will be reduced to i 2,000, so that he would lose .3,000, and would gain no more than ;i,ooo or .2,000. But it is not very often that a landowner with a rental of ,5,000 a year has .90,000 to leave among his children. The same imaginary obligation to preserve that degree of state and luxury which is expected of country gentlemen with a certain status and acreage offers an obstacle to saving which the majority find insuperable. Besides, nine out of ten men who inherit their estates burdened with charges for their father's widow and younger children would think it Quixotic to lay by out of their available income, as men of business would do, for the benefit of their own younger children. Hence the proverbial slenderness of a younger son's fortune in families which have a "place," and especially in those which have a title, to be kept up. As for the daughters, their rank is apt to be reckoned as a substantive part of their fortunes ; and not only are their marriage portions infinitely smaller than would be considered proper in families of equal affluence in the mercantile class, but it is not un- frequently provided that, unless they have children, their property shall ultimately revert to their eldest brother. I08 THE LAW AND CUSTOM [BRODRicK. We have next to examine the mode whereby the right of Primogeniture is secured in ordinary settlements of landed property, or, less frequently, in the wills of landed proprietors who have enjoyed an absolute power of disposition. This mode is thus explained in the standard work of Mr. Joshua Williams, on the Law of Real Property : " In families where the estates are kept up from one generation to another, settle- ments are made every few years for this purpose ; thus, in the event of a marriage, a life-estate merely is given to the husband ; the wife has an allowance for pin-money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and younger sons of the marriage, the eldest son who may be born of the marriage is made by the settlement tenant-in-tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant-in-tail ; and so on to the others ; and in default of sons, the estate is usually given to the daughters ; not successively, however, but as ' tenants in common in tail,' with ' cross remainders ' in tail. By this means the estate is tied up till some tenant-in-tail attains the age of twenty-one years ; when he is able, with the consent of his father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation ; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the landed gentry of England, is a custom only, and not a right ; though there can be no doubt that the custom has originated in the right which was enjoyed by the eldest son, as heir to his father, in those days when estates-tail could not be barred." To complete this explanation, it should be added that almost all modern settlements contain a power of sale, enabling the trustees, with the consent of the tenant in possession, to sell portions or even the whole of the property, and to re-invest the purchase-money in other land. Under these powers out- lying estates, or estates which may have come into the family collaterally, are very commonly sold off, and the produce is either applied in rounding off the central domain, or held upon trust for the same persons as would have received the income of the land, till it is sooner or later absorbed in paying charges OF PRIMOGENITURE. 109 which must otherwise have been raised upon the entire pro- perty. In default of such powers being inserted in the settle- ment, the Court of Chancery may direct sales, with the consent of the parties interested ; and it may be asserted that with the exception of a very few domains inalienably settled, like Blen- heim, on a particular family, no estate in England is literally unsaleable. It should also be remarked that a settlement of the kind described by Mr. Joshua Williams, implies that full control has been acquired over the land before it is executed. For this purpose, most family properties are disentailed in each generation with a view to re-settlement, by the joint act of the life-owner for the time being as " protector," and of his eldest son as tenant-in-tail in reversion. The former is actuated by a desire to perpetuate the entail by fresh limitations, to a period as distant as the law permits ; and often gains, in the process of re-settlement, the means of discharging his own debts, or making provision for those who have claims upon him. The son, on the other hand, taking a life-estate in lieu of his estate- tail, forfeits the prospect of becoming master of the property on his father's death ; but in consideration of this sacrifice, he usually receives an immediate rent-charge by way of allowance, and is placed in a position to marry early. CHAPTER III. EFFECT OF PRIMOGENITURE ON THE DISTRIBUTION OF LANDED PROPERTY. To say that Primogeniture, thus organised, has a direct ten- dency to prevent the dispersion of land, is only to say that it fulfils the purpose for which it was instituted. It is hardly less evident that it must have the further effect of promoting the aggregation of land in a small and constantly decreasing number of hands. The periodical renewal of entails is in- tended to secure, and does secure, ancestral properties against the risk of being broken up ; and, practically, they very seldom come into the market, except as a consequence of scandalous waste or gambling on the part of successive life-owners. The typical English family estate is that which, like Sir Roger de Coverley's, neither waxes nor wanes in the course of generations , 110 THE LAW AND CUSTOM [BRODRICK. and there are still many such estates in counties remote from London. But there is nothing to check the cumulative aug- mentation of ancestral properties by new purchases of land, which is the darling passion of so many proprietors. There is always some angulus iste to be annexed and brought within the park palings or the ring-fence on the first good opportunity ; and scarcely a day passes without some yeoman of ancient lineage being erased from the roll of landowners by the com- petition of his more powerful neighbour. Not that any tyranny or unfair dealing is involved in this process of aggrandisement, which is the con sequence of economical laws quite as simple as that of natural selection in the animal creation. The yeoman sells his patrimony either because he has ruined himself by drinking or improvidence, or because he finds that by turning it into money he can largely improve his income and the future expectations of his family. The nobleman or squire buys it at a price which is not commercially remunerative, either to prevent its being covered with buildings, or because it lies conveniently for his own agricultural designs, or because he wants to extend his influence in the county ; for one or all of which reasons it is worth more to him than to any one else. It is known in some parts of the country that it is utterly vain to bid against the great territorial lord of the district, whose agent is instructed to buy up all properties for sale, regardless of expense. In other parts of the country, men who have made their fortunes in trade are equally covetous of land, which for them is the one sure passport to social consideration, and equally anxious to keep it together by entails. Thus by the normal operation of supply and demand large estates are per- petually swallowing up small estates, while, by a suspension of that operation through the law and custom of Primogeniture, they are themselves preserved, to a great extent, from dis- solution. On the other hand, it must not be forgotten that a counter-tendency, no less natural and legitimate, partly neutra- lises this gravitation of smaller towards larger aggregates ol land. The enormous rise in the value of all sites within easy reach of great towns sometimes offers to great landowners an inducement to sell which they cannot resist. In this way, under the powers of sale already mentioned, distant and de- tached portions of great estates are frequently passing in large blocks into the hands of new landlords, generally of the mer- cantile class, or are bought up by land-jobbers, and sold, in OF PRIMOGENITURE. Ill petty blocks, to retired tradesmen. At the same time, the acquisition of minute plots by the working classes has been facilitated of late by the agency of freehold land societies, originally established for political objects, and would doubtless prevail to a much greater extent but for the exorbitance of law-charges on small purchases of land. In default of authoritative statistics, the loosest and vaguest conjectures were long current respecting the division of owner- ship caused by these divergent tendencies. It was confidently stated, for instance, that, whereas in the latter part of the last century this country was divided among 200,000 landowners, it had come to be divided among no more than 30,000. No proof was thought necessary to support the former assertion ; the latter was supported by a proof which, on examination, turned out to be perfectly worthless. In the Occupation Returns of the Census for 1861, only 30,766 persons described themselves as land-proprietors, and these figures were most persistently quoted as official evidence on the subject, in the face of the patent fact that above half of the whole number were females. The probable explanation of this circumstance is, that women owning land feel a pride in recording their ownership ; whereas thousands of male landowners returned themselves as peers, members of Parliament, bankers, mer- chants, or private gentlemen. At all events, the mere exis- tence of so palpable a flaw in the return utterly destroyed its value for the purposes of statistical argument. Equally reck- less assertions were made in support of the contrary opinion, and until the year 1876 it was regarded as open to doubt whether the whole body of English landowners, properly so called, amounted to 30,000 or to 300,000. The appearance of the " New Domesday Book," as it was called, was the first step towards a thorough investigation of this question, which it ought to have set finally at rest. It purported to show that England and Wales, exclusive of the metropolis, were divided in 1874-5 among 972,836 proprietors in all, owning 33,013,514 acres, with a " gross estimated rental" f ^99>35 2 >3 01 - Of these proprietors, however, no less than 703,289, owning 151,171 acres, with a gross estimated rental of ^"29,127,679, were returned as possessors of less than one acre each. The aggregate acreage and gross estimated rental of the 269,547 proprietors owning one acre and upwards were stated as follows : 112 THE LAW AND CUSTOM [BRODRICK. No. Extent of Lands. Gross Estimated Rental. Total No. of Owners of A. R. P. s- I acre and under 10 acres 121,983 478,679 2 27 6,438,324 15 10 acres 5 72,640 1,750,079 3 38 6,509,289 1 8 50 IOO 25,839 1,791,605 2 23 4,302,002 12 100 500 32,317 6,827,346 3 ii 13,680,759 1 6 Soo 1,000 4,799 3,317,678 o ii 6,427,552 4 1,000 2,000 2,719 3,799,307 o 28 7,914,371 10 2,000 5,000 1,815 5,529,190 o 13 9,579,3" 13 5,000 10,000 5813,974,724 3 24 5,522,610 6 10,000 20,000 2233,098,674 2 30 4,337,023 4 20,000 50,000 66 1,917,076 I 31 2,331,302 12 50,000 100,000 3 194,938 3 36 188,746 12 100,000 and upwards i I8l,6l6 2 38 161,874 9 No areas 6,448 2,831,452 13 No rentals ... "3 1,423 2 28 This Return, prepared by the Local Government Board, was represented as no more than " proximately accurate," and a very cursory inspection sufficed to disclose errors of detail so numerous and important as to cast suspicion even upon its proximate accuracy. Further analysis of its contents has amply confirmed this suspicion, and although the New Domesday Book contains a mine of precious materials for an exhaustive treatise on the distribution of landed property in England and Wales, the actual figures given in it cannot be accepted, with- out large corrections, as the basis of any sound conclusions on that subject. In the first place, it is evident on the face of the Return itself, and we are expressly informed in the Explanatory State- ment prefixed to it, that it does not include any property except that assessed to rates. Now, at the date of its compila- tion (1874-5) all woods, except saleable underwoods, were exempt from rates, and are therefore excluded from the return. Waste and common lands, being equally exempt from rates, were equally ignored in the rate-books from which these statistics are borrowed, although a very rough and untrust- worthy estimate of the area covered by them was appended in a separate column. The result is, that whereas the whole area of England and Wales amounts to 37,319,221 acres, only 34)538) T S8 acres are recognised at all in the New Domesday OF PRIMOGENITURE. 113 Book. Of these, 33,013,514 acres are assigned to landowners great and small, while the " estimated extent of commons and waste lands" accounts for 1,524,648 acres. The remaining 2,781,063 acres comprehend "waste lands the area of which could not be ascertained, woods other than saleable under- woods, rivers and roads, Crown property not let, and church- yards and other lands not rateable." A very large proportion of these woods and plantations not to speak of manorial rights over commons must belong to great landowners, the real extent of whose estates is therefore very much understated, by virtue of this omission alone. In the second place, the exclusion of the whole metropolis, vast districts of which are owned by wealthy peers and com- moners, makes the rental of such " ground-landlords " appear much smaller than it really is, as compared with that of less fortunate proprietors. The gross estimated rental of the metropolis, according to a Return of 1873, was nearly ^25,000,000, and if to this be added the profits derived by the landlords of England and Wales as a body, from docks, harbours, bridges, and other forms of property ignored in the New Domesday Book, it will easily be understood how largely their gross income exceeds the ^99,352,301 with which they are credited. Again, no distinction is drawn between house property and agricultural land, or between copyholds and free- holds, or even between either of these and property held on lease for terms of above 99 years. The effect of this indis- criminate classification is oif course mainly felt in the illusory multiplication of small estates; the vast majority of persons returned as "owners of less than one acre" were probably the possessors and, most of them, mere leaseholders of house- property in towns or suburbs of towns. If proof were needed of this inference, it is supplied by the fact that whereas the average rental of these petty estates, as stated in the Return, is nearly ^200 per acre, the average rental of all the estates ranging from one acre upwards does not greatly exceed 2 per acre. A very considerable deduction should be made, on this account, even from the 121,983 estates ranging between one and ten acres, among which must be included a large number of business premises, gardens, and pleasure grounds, destitute of any agricultural value or character. The absurdity of reckoning among landowners the purchasers of such little i 114 THE LAW AND CUSTOM [BuoDRtCK. plots is sufficiently manifest, but, as Mr. Kay has shown,* it is scarcely less misleading to dignify the greater leaseholders with such a title. It is not only that leaseholds are ultimately re- turned into the hands of the ground-landlords with all the improvements resulting from the lessee's expenditure, but also that they are subject to an infinite variety of covenants, wholly inconsistent with the sense or reality of proprietorship. No rate-books or parochial returns, however, could effectually distinguish between leaseholds and freeholds. As the over- seers and rate-collectors were often compelled to act on hearsay evidence, and as neither owners nor occupiers of land are apt to be communicative respecting the nature of their interest, the probability is that many lessees are improperly entered as owners, especially in the East of England, where leases are more common. But far graver and more prolific sources of error remain to be considered. We are warned in the official preface that glebe lands and estates known to be the property of corpora- tions or charities are printed in italics; but that names of individuals have often been inserted, by mistake, instead of the public bodies or offices which they represent. Now, there are 14,367 entries of estates belonging to church benefices, charities, and other public authorities in England and Wales, comprising in all 1,449,008, acres. The further deduction to be made from the number of apparent landowners, by reason of the official blunders thus acknowledged, is far greater than might be supposed at first sight. Mr. Arthur Arnold's estimate of 10,000 parcels of glebe land in the 15,000 parishes of England and Wales may probably be excessive, but he certainly quotes very significant facts in support of his con- clusion that parochial clergymen own, virtute officii, a much larger acreage than is indicated in the New Domesday Book. Having selected casually, by way of sample, the Domesday Returns for the counties of Buckingham, Hertford, and Lancaster, he found, in the first, only five parcels of glebe land marked in italics, but 235 " owners " with the prefix of " Reverend ; " in the second, only three parcels of glebe land so marked, but 159 "owners "with that prefix; and in the third, only seven parcels of glebe land, but 186 "owners" with the clerical title. \ The inference is irresistible that most of * " Free Trade in Land," p. 123. ) Arthur Arnold's " Free Land," pp. 8, 9. OF PRIMOGENITURE. 11$ these 680 "reverend" gentlemen should be deducted from the list of individual "owners" as being merely in official possession of Church property. But it is also important to observe that most bearers of a clerical title figure in the Returns as "owners" of small estates, and thus swell the apparent number of yeomen and petty squires, as distinct from great landowners. Let us take, for the sake of illustration, the seven English counties which stand first in alphabetical order. In Bedfordshire there are 15 clergymen returned as " owners " of estates between 300 and 1,000 acres; and 28 clergymen returned as owners of between 100 and 300 acres. In Berkshire there are 19 clergymen returned in the former class, and 21 in the latter ; in Bucking- hamshire 28 and 54, respectively; in Cambridgeshire 23 and 48, respectively ; in Cheshire 1 1 and 1 2, respectively ; in Cornwall 22 and 52, respectively; and in Cumberland 19 and 33, respectively.* It follows that not only the original enume- ration of English landowners, but also the official classification subsequently founded on it,t is vitiated, to a serious extent, by the intrusion of heterogeneous elements. It is at least doubt- ful whether official representatives of the Church, as well as trustees of charities, hospitals, colleges, and railway companies, ought to be included in a list of " owners " at all ; but it is self-evident that, if included, they should be properly identified, and placed in a separate category. The effect of double entries on the apparent number of landed proprietors is still more deceptive. No attempt, indeed, was made to group together all the estates owned by the same proprietor in different counties, and it seems to have depended on the efficiency of the local compilers whether the estates of one proprietor in one county were entered under one name or several. The consequence of this slovenly and haphazard registration is that, instead of being a perfect record of " owners," the New Domesday Book is, at best, an imperfect record of estates, many of which, as we have seen, belong to public bodies, and many others of which are mere fragments of great properties owned by a single individual. It has been ascertained by Mr. Arthur Arnold that twenty-eight dukes own * For these figures I am indebted to the kindness of Mr. John Bateman, F.R.G.S., author of "Great Landowners of Great Britain and Ireland." f "Summary of Returns of Owners of Land in England and Wales," ordered by the House of Commons to be printed, 4th July, 1876. I 2 Il6 THE LAW AND CUSTOM [BRODRICK. 158 separate estates within the United Kingdom, comprehend- ing SjQQ^Sn acres ; that thirty-three marquises own 121 separate estates, comprehending 1,567,227 acres; that 194 earls own 634 separate estates, comprehending 5,862,118 acres; and that 270 viscounts and barons own 680 separate estates, comprehending 3,780,009 acres. In other words, the names of dukes are repeated 5 '6 times, those of marquises 37 times, those of earls 3-3 times, and those of viscounts and barons 2 -5 times. The Duke of Buccleuch alone counts as fourteen landowners, in respect of as many separate estates in England and Scotland, and four other peers are multiplied in like manner by eleven, figuring, perhaps, as small yeomen in counties where they happen to own but a few acres. Altogether, the 525 members of the peerage stand for upwards of 1,500 "owners" in the New Domesday Book. Mr. Arnold calculates that if all the landed gentry have been multiplied in the same ratio, four-fifths of the soil of the whole United Kingdom must be in the possession of less than 4,000 persons. But, allowing for the fact that few of the lesser gentry can have estates scattered over more than one county, he arrives at the conclusion that four-fifths of the United Kingdom belongs to a body of owners numbering about 7,000. Before we can accept this conclusion as a safe guide to the distribution of landed property in England and Wales, we are bound to remember how much greater is the average size of properties in the other parts of the United Kingdom. Even if our present inquiry embraced the whole United Kingdom, it might well be contended that, from an agricultural point ' of view, the vast moors of the Highlands, with the desolate bogs of Ireland, may as legitimately be excluded from the account as the few acres of ornamental ground surrounding a suburban villa. However this may be, we possess sounder, as well as far more instructive, evidence of the proportion in which England and Wales are divided between various classes of landowners, in the Parliamentary Return of 1876, and Mr. Bateman's admir- able analysis of the New Domesday Book. From the former it would appear that 5,408 persons are entered as owning estates of 1,000 acres and upwards in England and Wales, "without reference to the fact that some of such owners hold property in more counties than one." From Mr. Bateman's revised list of English landowners it would appear that the New Domesday OF PRIMOGENITURE. 1 17 Book contains entries of some 1,688 individuals in England and Wales owning estates of 3,000 acres and upwards, with a rental of at least ^3,000 a year ; and of some 2,529 individuals owning between 1,000 and 3,000 acres each, or deriving a rental of less than ,3,000 from estates exceeding 3,000 acres. It follows that the New Domesday Book exaggerates the number of owners above 1,000 acres, at least in the proportion of 5,408 to 4,017. The result of an independent analysis shows that owners of 2,000 acres and upwards are there repeated about 17 times, by reason of their having estates in more counties than one. There is good reason to believe that a further deduction of at least 8 per cent, should be made for the names of persons entered twice in the same English county, and a much larger deduction for the names of persons entered twice in the same Welsh county. At all events, it is certain that not more than 4,000 persons, and probable that considerably less than 4,000 persons, owning estates of 1,000 acres and upwards, possess in the aggregate an extent of nearly 19,000,000 acres, or about four-sevenths of the whole area included in the Domesday Book Returns. If we now abstract the owners of between 1,000 and 2,000 acres, who ostensibly number 2,719, and must really number as much as 1,750, we find that a landed aristocracy consisting of about 2,250 persons own together nearly half the enclosed land in England and Wales.* The residue of owners between one acre and 2,000 ostensibly number 249,996, but may be reduced by a proportionate allowance for double entries to 147,657.^ This would give a net total of about 150,000 owners above one acre in England and Wales, or less than Y^ of the population a result which corresponds some- what closely with Mr. Shaw-Lefevre's conclusion that the whole number of landowners, properly so called, in England and Wales, certainly does not exceed 166,000. But since about 15,000,000 acres out of 33,000,000 are owned by about 2,250 * Mr. Kay, in his "Free Trade in Land" (Letter I.), states that " a body of men which does not probably exceed 4,500 own more than 17,498,000 acres, or more than one-half of all England and Wales." He adds that 710 persons own more than one-fourth, that 523 persons own one-fifth, and that less than 280 persons own nearly one-sixth ; that 100 persons own 3,917,641 acres, and that sixty-six persons own 1,917,076. These estimates probably err on the side of moderation, no allowance being apparently made for double entries. t It is true that comparatively few owners of very small estates would appear as owners in more than one county, but, on the other hand, a greater propor- tion of such owners would probably be entered more than once in the same county. Il8 THE LAW AND CUSTOM [BRODRICK. proprietors, it may be truly affirmed that nearly half the en- closed land in England and Wales belongs to a body numbering but i per cent, of all the landowners, even excluding those below one acre. A close investigation of the returns for single counties fully bears out these inferences, and places the inequalities of landed proprietorship in a still more striking light. Take, for instance, Northumberland and Nottinghamshire, which stand next to each other in alphabetical order, but differ widely from each other both in agricultural features and in the character of their population. According to the official returns, which are subject, as we know, to a large discount, the number of owners below one acre in Northumberland is 10,036 ; but they own no more than 1,424 acres between them, so that each possesses, on an average, less than one-seventh of an acre. In Nottingham- shire 9,891 petty landowners rule over 1,266 acres between them, possessing, on an average, one-eighth of an acre apiece. Little more than a fourth of Northumberland and much less than half of Nottinghamshire is in the hands of owners possess- ing less than 2,000 acres. If we now look at the higher end of the scale the contrast is striking. About three-fifths of North- umberland is in the hands of forty-four proprietors, nearly half is in the hands of twenty-six, and far more than one-seventh is in the hands of one proprietor, the Duke of Northumberland, who has also landed estates in other counties. In Nottingham- shire two-fifths of the whole acreage belongs to fifteen pro- prietors, and one-fourth to five proprietors. If the division of landed property over England and Wales correspond with the division of landed property in Northumberland and Nottingham- shire, one-half of the whole country would be in the hands of about 1,000 proprietors ; and these proprietors, by virtue of their family connections and social ascendancy, would exercise a power far more than commensurate with their acreage. It would be highly interesting, were it possible, to extract from the New Domesday Book the exact amount of land held by the various classes of society, and, in particular, the amount held by the class of yeomen whose gradual extinction is so often deplored. Unfortunately, the returns furnish no adequate material for an exhaustive classification of this kind, and the apparent owner of a " yeoman's " estate may be either a mere leaseholder or the lord of a great territory in some other county. The careful researches of Mr. John Bateman, how- OF PRIMOGENITURE. IIQ ever, enable us to apportion the area of each county, with at least " proximate accuracy," among various orders of land- owners, if not among various classes of society. For this purpose he distributes the landowning hierarchy into eight divisions, the first and last of which Peers and Public Bodies are defined sufficiently by their mere designation, without reference to acreage. The second division consists of " great landowners " owning above 3,000 acres ; the third, of "squires," owning between 1,000 and 3,000 acres ; the fourth, of " greater yeomen," owning between 300 and 1,000 acres ; the fifth, of "lesser yeomen," owning between 100 and 300 acres ; the sixth, of " small proprietors," owning between i and 100 acres ; the seventh, of " cottagers," owning less than one acre. Of course these descriptions must be accepted in the most general sense, and with many qualifications ; but they may serve to denote roughly the several grades of landowner- ship, and to afford an useful basis for a comparison of one county with another. For instance, if we take, as before, the seven counties which stand first alphabetically Bedfordshire, Berkshire, Buckinghamshire, Cambridgeshire, Cheshire, Cornwall, and Cumberland we find very marked differences in the propor- tionate acreage held by the various divisions of landowners. More than one-fourth of Cheshire, and nearly one-fifth of Bed- fordshire, is owned by peers ; whereas only one-ninth of Cam- bridgeshire, and little more than one-tenth of Cornwall, belongs to members of the same class. Less than one-hundredth part of Cornwall, and little more than one-fortieth of Cumberland, is assigned to public bodies, while nearly one-eighth of Cambridge- shire is corporate, and much of this collegiate, property. Coupling together both classes of yeomen, we observe that one- third of all Cumberland, and something like two-fifths of all Cambridgeshire, are in the hands of this class, which, in Cheshire, owns but from one-fifth to one-sixth only of the entire area. Cambridgeshire, again, stands first in the number of its " small proprietors," between one and 100 acres ; but Che- shire far surpasses all the other six counties in the number of its cottagers, who represent nearly three-fourths of its whole proprietory, though possessing less than y^j of its total acre- age. The pre-eminence of Cambridgeshire and Cumberland in the proportion of " yeoman " properties might have been and- 120 THE LAW AND CUSTOM [BRODRICK. cipated, since the former county offered little attraction to great landowners in early times, and the latter, with the bordering districts of Westmoreland and Yorkshire, is well known as the last stronghold of the primitive "statesmen." But it is a signifi- cant fact that even in Cambridgeshire estates of all kinds below 1,000 acres occupy but 59-4 per cent, of the whole returned acreage, and in Cumberland but 5 7 '2. It may be added that in Essex they occupy 55*1 per cent, in Somerset- shire about 53', in Lincolnshire 45*8, and in Cornwall 45 'i. But the most extreme diversity in the percentage of estates below 1,000 acres is presented by the counties of Middlesex (exclusive of the metropolis) and Northumberland. In the former of these counties, no less than 114,439 out f I 43> 01 3 acres are occupied by estates of this class ; in the latter, no more than 196,000 acres out of 1,190,043.* Such figures speak for themselves, and sufficiently indicate the nature of the causes which promote or prevent the multi- plication of small properties in modern times. One of these causes has already been fully considered. It has been shown that Primogeniture, operating for many generations, has directly contributed to reduce the landed aristocracy of England and Wales to a body even smaller than had been commonly supposed, but that in those classes which do not maintain the custom of Primogeniture landed property is naturally broken up into a multitude of small parcels. The owner of such parcels are, for the most part, not yeomen, but shop- keepers and artisans, too humble, and too dependent for their livelihood on urban trade and industry, to fill any perceptible place in the rural economy of this country. That economy is so familiar to all of us that we scarcely recognise the peculiar characteristics of it, which foreigners notice as unique in modern Europe. To an Englishman born and bred in the country, it appears the natural order of things, if not the fixed ordinance of Providence, that in each parish there should be a dominant resident landowner, called a squire, unless he should chance to be a peer, invested with an authority over its in- habitants, which, as Mr. Neate contends, "the Norman lords, in the fulness of their power," never had the right of exercising. This potentate, who, luckily for his dependants, is usually a kind-hearted and tolerably educated gentleman, concentrates * For a fuller discussion of this subject, see Part II. of Brodrick's " English Land and English Landlords." (Messrs. Cassell, Fetter, Galpin& Co., 1881.) OF PRIMOGENITURE. If I in himself a variety of rights and prerogatives, which, in the aggregate, amount to little short of patriarchal sovereignty. The clergyman, who is by far the greatest man in the parish next to himself, is usually his nominee, and often his kinsman. The farmers, who are almost the only employers of labour besides himself, are his tenants-at-will, and, possibly his debtors. The petty tradespeople of the village community rent under him, and, if they did not, might be crushed by his displeasure at any moment. The labourers, of course, live in his cottages, unless, before the Union Chargeability Act, he should have managed to keep them on his neighbour's estate ; but this is by no means his only hold upon them. They are absolutely at his mercy for the privilege of hiring allotments at an " accommodation " rent ; they sometimes work on the home farm, and are glad to get jobs from his bailiff, especially in the winter ; they look to him for advice in worldly matters as they would consult the parson in spiritual matters ; they believe that his good word could procure them any favour or advance- ment for their children on which they may set their hearts, and they know that his frown may bring ruin upon them and theirs. Nothing passes in the parish without being reported to him. If a girl should go wrong, or a young man should consort with poachers, or a stranger of doubtful repute should be admitted as a lodger, the squire is sure to hear of it, and his decree, so far as his labourers and cottage tenants are concerned, is as good as law. He is, in fact, the local representative of the law itself, and, as a magistrate, has often the means of legally enforcing the policy which, as landlord, he may have adopted. Add to all this the influence which he may and ought to acquire as the leading supporter and manager of the parish school, as the most liberal subscriber to parochial charities, as the patron of village games and the dispenser of village treats, not to speak of the motherly services which may be rendered by his wife, or the boyish fellowship which may grow up between the youth of the village and the young gentlemen at the Hall, and it is difficult to imagine a position of greater real power and responsibility. Yet even this does not exhaust the special advantages and prerogatives attached to the position of an English country gentleman. Until very lately, he alone was lawfully eligible to a seat in Parliament, and even now his class, which may be said to engross the Upper House, predominates conspicuously in the Lower. By this class the whole machinery 122 THE LAW AND CUSTOM [BRODRICK. of county taxation, county government, and county judicature is regulated and worked. In those of them who may be magistrates is vested ex officio a right of taking part in poor-law administration ; in their gift is a great variety of lucrative county offices, and the wealthiest magnate of the greatest manufacturing town is " nobody in the county " until he shall have secured their good opinion. That powers so vast and so arbitrary have not been more frequently abused is an honour to our national character ; nor can we reflect without some feeling of pride, on the admirable manner in which the "duties of property "are acknowledged and discharged on thousands of English estates. But this must not lead us to idealise this form of rural economy as our forefathers idealised the British Constitution, to ignore the grave defects and anomalies inherent in it, or lightly to dismiss the experience of other nations as inapplicable to our social condition. CHAPTER IV. FOREIGN LAND LAWS. No survey of Primogeniture in England would be complete which should take no cognisance of the land systems inherited or adopted by other civilised nations. Since the famous inquiry of Arthur Young into the agrarian institutions and agricultural state of France, increasing attention has been paid by English economists to foreign customs of land-tenure and land-tenancy. The reports drawn up for the Foreign Office in the years 1869-70, by Her Majesty's Secretaries of Legation in the principal countries of Europe and the United States of America, contain a mine of precious materials on both these subjects. Though specially directed to points bearing imme- diately on the objects of the Irish Land Bill, they include a large mass of evidence on such questions as the descent of land on intestacy, and the general tendency of various codes to favour the accumulation or dispersion of landed property. Some extracts from the results thus obtained, supplemented by the testimony of independent authorities, may help us to appreciate the unique character of the English Land System, and to forecast the course of its future development. i. In France, as is well known, " the land is chiefly occu- OF PRIMOGENITURE. 123 pied by small proprietors, who form the great majority through- out the country," so that of some 7,500,000 proprietors, about 5,000,000 are estimated to average six acres each, while only 50,000 average 600 acres.* This morcellement is the direct and foreseen consequence of the partible succession enforced by the Code Napoldon, under which all children inherit the bulk of their father's property equally, without distinction of age or sex, a testator with one child being allowed to dispose of half, a testator with two children of one-third only, and a testator with three children of one-quarter, t The dismember- ment of estates thus produced is stated to be progressive. " With some rare exceptions, all the great properties have been gradually broken up, and even the first and second classes " (averaging 600 and 60 acres respectively) " are fast merging into the third."J This statement, however, must be taken with some qualification. In France, as in England, the osten- sible number of very small properties is magnified by the inclusion of little plots surrounding dwelling-houses, of market- gardens, and of fields in which a cow or horse may be kept by persons either mainly supported by wages or engaged in non- agricultural callings. The number of proprietors is certainly not so great as the number of properties, several of which may belong to one owner ; and many of the smaller proprietors are engaged in the cultivation of the vine a very exceptional branch of agricultural industry, requiring minute attention and inces- sant manual labour. After all, only one-third of France, * The distribution of landed property in France is somewhat differently stated by M. Lavergne. Writing before the loss of Alsace and Lorraine, he estimated that 5.000,000 proprietors owned on the average 3 hectares, or 7^ acres, each ; that 500,000 proprietors of a higher class owned on the average 30 hectares, or 75 acres, each ; and that 50,000 great proprietors owned on the average 300 hectares, or 750 acres, each. This classification is followed in the text as the more trustworthy. t Under a salutary provision of the French Code, prodigals can be placed under an interdict, and trustees appointed to manage their estates. I According to Mr. G. Gibson Richardson, " the estates that are disap- pearing are the medium-sized ones, of from 50 to 100 acres ; they are eaten into 'on both sides. A large landowner is glad to add to his estate a small adjoining one ; and small owners will give almost any money to put another small bit to what they already possess." He entirely denies that small French landowners must needs become poorer and poorer in each generation, as con- trary to experience. " The men make money and buy back land which has been divided, or they do so with the dowry of their wives ; the law of succes- sion divides, accumulated wealth unites ; small properties increase a little at the expense of large ones, but very much at the expense of middle-sized ones." ("Corn and Cattle-Producing Districts of France/' pp. 40, 41.) 124 THE LAW AND CUSTOM [BRODRICK. exclusive of State domains and communal property, is owned by peasants, with an average of *i\ acres each, and a very much smaller proportion is cultivated by this class, who appear to let their lands freely. Another third part is owned, and ap- parently cultivated for the most part, by yeomen proprietors averaging some 75 acres each. The remaining third is owned by landlords averaging some 750 acres some, perhaps, des- cended from ancient seigneurs whose estates are chiefly farmed by others, and sometimes approach in extent those of great English noblemen.* The average price of agricultural land in France is no less than forty years' purchase, and small capi- talists on the whole outbid larger capitalists in the competition for it. Indeed, such is the passion for landed property, that French peasant-owners, like English farmers, will often spend capital which they can ill spare, or borrow from usurers, to extend their little domains. Yet the mortgages on the small properties of France, as stated by M. Lavergne, amount to no more than 10 per cent, on their aggregate value. It is a very delusive, though very common, error to inter- pret the statistics which show the distribution of landed pro- perty in France as if they implied that nearly the whole of the soil is cultivated by peasant-owners. This error is appa- rently confirmed by the fact that, out of every hundred farms in France, seventy are cultivated on the " faire-valoir direct " system, against twenty-one on the " fermage " or tenancy system, and eight only on the " metayage " or co-operative sys- tem. But if we look at the acreage over which these systems * These conclusions have lately received a strong confirmation from the exhaustive researches of M. Gimel, Directeur des Contributions Directes, the chief results of which have been ably summarised by Mr. Barham Zincke. According to M. Gimel's estimate, founded on the communal assessment lists, the actual number of proprietors in France including those below one-quarter of an acre was, in the year 1858, no less than 8,264,795 > an< ^ tne increase between 1835 and 1858 had been 20 '37 per cent. A more detailed examination of the statistics relative to four typical departments shows this increase to have been largely contributed by purchasers of sites for houses, with or without gardens, and proves that only one-twentieth of the soil passes into these minute parcels. About one-third of these four departments is possessed by owners of less than 20 acres, one-third by owners of 20 to 100 acres, and one-third by owners of more than 100 acres. It is observed that in one district adapted to cattle-breeding, there is a tendency for peasant -properties to rise to, and stop at, about 25 acres, that being the extent of land most conveniently worked by a single family. It is curious that Arthur Young, so far back as 1787, supposed one-third of France to be occupied by " small properties," which, however, he does not define. OF PRIMOGENITURE, 12$ prevail respectively, we find that 'more than one-third of France is cultivated under the system of tenancy, thirteen per cent, under that of co-operation, and about half on the farmer- proprietary system, which includes cultivation by yeomen as well as cultivation by peasants.* It is interesting to observe that, as might be expected, most of the corn sent to market in France is produced under the system of tenancy, or me'tayage, and not under that of farmer-proprietorship. The late Mr. G. Gibson Richardson, one of the highest authorities on this subject, estimating the entire wheat-growing area of France at about 17,000,000 acres, explained why the acreable produce of this area should appear to be so far below the English standard, and so far below what it really is. This result arises from a strange inaccuracy in the official method of compu- tation, whereby all the 87 departments, whatever their wheat- growing acreage, and whatever their acreable produce, are treated as units of equal value, and the general acreage is very unduly depressed by the shortcomings of districts wholly unsuitable for wheat. For instance, four departments, with 134,000 acres under wheat, yielding only eleven bushels per acre, count the same as four others with 1,213,000 acres, yielding twenty-five bushels per acre ; so that, whereas the average yield of the eight is twenty-three bushels per acre, it is reckoned at only eighteen. Mr. Richardson states that, in the great wheat-growing districts of France Flanders, Artois, Picardy, Beaune, Brie, and Poitou the average produce per acre probably exceeds that for the United Kingdom, and on some farms reaches forty bushels, t There is, however, no doubt that on the whole the acre able produce of wheat in England is greater than in France ; only it must be remembered that France has brought under cultivation a much larger extent of its whole area than England, that of this area it devotes five or six times as large an acreage to wheat-growing as England, and that, if this * Mr. G. Gibson Richardson gives the following statistics of farm occupa- tions in France : " The cultivated land is occupied by 3,225,877 farms, each under separate management; more than half the number, 56 per cent., are under 12^ acres ; a fifth, from I2| to 25 acres ; so that three-fourths of them are less than 25 acres." (''Corn and Cattle-Producing Districts of France," P- 3- ) t See his letters to the Times of September I5th and October 2oth, 1879, elucidating the statistics furnished in Mr. G. Baden Powell's letter of Sep- tember 6th. 126 THE LAW AND CUSTOM [BRODRICK. acreage is less productive than it might be made, the fault lies with French tenant-farmers, and not with French peasant-owners. Volumes of controversy have not exhausted the argu- ments either for or against the French law of inheritance, but it is instructive to remark how entirely its opponents have shifted their ground. Mr. McCulloch, writing in 1823, predicted that, under its operation, France must certainly become, within fifty years, "the greatest pauper warren in the world," and share with Ireland the honour of furnishing hewers of wood and drawers of water to other countries. Arthur Young, writing in 1787, had condemned the volun- tary subdivision of property on the same ground, and it was long a received opinion that compulsory subdivision of property stimulated the increase of population to a frightful extent. The same law is now attacked, with at least equal justice, as directly contributing to keep the population almost stationary. However this may be, it is a very significant fact that neither under the First Empire nor under the restored dynasty of the Bourbons, nor under the Orleanist monarchy, nor under the Second Empire, nor under the new Republic, has any serious attempt been made to repeal this law, bequeathed to France by the authors of the Revolution. For, as we are truly informed in the report of Mr. Sackville West, drawn up shortly before the Franco- German War, "the prevalent public opinion as to the ad- vantages of the tenure of land by small proprietors is that it has been advantageous to the production of the soil, and has tended to the improvement of the material condition of the agricultural population." It is believed, he continues, that subdivision " conduces to political as well as social order, because, the greater number of the proprietors, the greater is the guarantee for the respect of property, and the less likely are the masses to nourish revolutionary and subversive designs." That it conduces to industry and thrift, is too well known to admit of argument; indeed, the proverbial reproach of the French peasantry is that, in their miserly frugality, they sacrifice all that makes life worth having. But, if they starve themselves, they do not starve the land. M. Lavergne, though fully alive to the possible evils of excessive subdivision, bore witness that, on the whole, the best cultivation in Fiance was that of the peasant proprietors, Or PRIMOGENITURE. 127 and assuredly the richest provinces of France are those in which this class of landowners predominates.* 2. The elaborate report on land tenure in Prussia and the North German Confederation, by Mr. Harriss Gastrell, attests the same preponderance of public opinion in favour of small proprietorship, which is encouraged by the law. " In cases of intestacy the law divides all property, including land, in certain proportions, among widow and children ; or equally amongst the children, if there be no widow," and no disposition can deprive the " natural heirs " of their claim to a fixed allotment, sometimes amounting to as much as two-thirds of the whole. Though subject to these limitations, " the custom of making a will is almost universal :" but " the restrictions on land by settlements and the like are much less than in England." Entails are not absolutely prohibited, but the extent of land affected by them in Prussia is said not to exceed one-thirteenth of the whole kingdom, the rest of which is held in absolute ownership, with the amplest facilities of mortgage and sale. The consequence is that in Prussia, exclusive of the Rhine provinces and Westphalia, there were in 1858! 1,300,000 pro- prietors, of whom 1 08 only had estates large enough to be rated over ^1,500, and only about 16,000 had estates of more than 400 acres, while about 350,000 had estates varying from 20 to 400 acres, and the rest, some 925,000 in number, owned less than 20 acres.:}: Of the smallest proprietors, a large pro- portion were day-labourers, working occasionally for wages ; and the minimum extent of land sufficient to support a man and his family was estimated at from 7 to 20 acres or more, according to fertility of soil and other local advantages. Many of these peasant proprietors, living wholly on the fruits of their own soil, have raised themselves from the rank of day-labourers * Much valuable information on the effects of the French land laws has been collected by Mr. Kay, in his "Free Trade in Land," chap. x. See also an article on "La Situation Agricole de la France," in the Revue des Deux Mondes, Jan. 15, 1880, and Mr. James Howard's treatise on "Conti- nental Farming." Mr. Howard's opinion is not favourable to small farms, the owners of which, he says, "work from sunrise to sunset, doing double the work for themselves they would for an employer, and live far harder than the English peasants." He observes that " the size of farm considered necessary to support a family is about four hectares (ten acres)." t The report of Mr. Harriss Gastrell was based on the returns for that year. t Mr. James Howard states that " in Prussia there are 900,000 farms under four acres in extent." Probably this estimate includes the Rhine provinces and Westphalia. 128 THE LAW AND CUSTOM [BRODRick. into the class of yeomanry which, in modern Prussia, as in old England, constitutes the bone and sinew of the nation. Even the greatest proprietors seldom delegate the work of cultivation to mere tenants, but either farm themselves or manage their estates through bailiffs.* In the Rhine provinces and West- phalia, where the French Laws were introduced at the begin- ning of the century, the subdivision of landed property is carried so far that each proprietor has but 10 acres on the average. The result is that, as we are told in the report of Mr. R. D. Morier, " the Palatinate peasant cultivates his land more with the passion of an artist than in the plodding spirit of a mere bread-winner." The Prussian land system, established by a series of legis- lative acts extending over half a century, and expressly designed to favour the elevation of the peasantry into a body of inde- pendent proprietors, has been copied by other States of North Germany. Its effects on the agriculture of Saxony have been graphically described, from personal observation, by Mr. Barham Zincke, whose intimate acquaintance with the agri- culture of Switzerland, Central France, and the Channel Islands, gives an additional weight to his remarks. He found the district west and north of Dresden cultivated, for the most part, by yeomen owning farms of about 50 acres each. According to him, the land is kept infinitely cleaner than it is in England, since there are no hedges or ditches sheltering weeds or har- bouring vermin. No space is wasted, for the heart of the owner is in the soil, tending every plant with parental care, and regarding every weed as an enemy. Comparatively little is expended in hired labour, and such labour is more efficient than in England, because the labourer works side by side with his employer, and is separated from him by no class distinction. The enormous influx of grain from the Western States of America having reduced the demand for German corn in the English market, the Saxon farmer, like the farmer of New England, has adapted himself to circumstances, and raises a far greater variety of produce than English farmers attempt to raise on a far better soil. Potatoes and other vegetables, poultry, milk, and butter, are exported in large quantities from these sandy plains ; where agricultural plants could not live, forest-trees are skilfully planted, and fruit-trees, without the * See Mr. Shaw-Lefevre's "Freedom of Land," chap, vi., and Mr. Kay's " Free Trade in Land," chap. xv. OF PRIMOGENITURE. 129 slightest protection, line the roads and footpaths, as they do in Switzerland and other parts of the Continent in which the ownership of land is widely diffused.* 3. " Wurtemberg is remarkable as the country where sub- division of land is carried to the greatest extreme," containing as it does some 280,000 peasant owners, with less than five acres each, and about 160,000 proprietors of estates above five acres. Upon intestacy, the land is equally divided among all the children, male and female. The father, however, seems to be allowed full liberty of disposition over the property, so long as a certain moderate portion, defined by law {pflicht-theil}, is reserved for each child. On the smaller peasant farms, "when, in accordance with the will of the father, one child becomes owner of all the paternal land, an estimate is formed on a footing rather favourable to him, and he compensates the brothers and sisters by equal sums of money. The daughters, however, are more frequently on their marriage allotted an equal share of land ; and, as the husband is probably the pro- prietor of a piece of land elsewhere in the commune, the inter- section and subdivision of the land goes on increasing." On the largest farms the custom of Primogeniture has encroached still further on that of equal division. Here the eldest son commonly succeeds to the whole property, " often in the father's lifetime. When the parent is incapacitated by age from managing his farm, he retires to a small cottage, generally on the property, and receives from the son in possession con- tributions towards his support both in money and kind. The other children receive a sum of money calculated according to the size of the property and the number of children, but which, in any case, falls far short of the sum which they would receive, if the property were equally divided, or even were the law of pflicht-theil acted on. They have, however, their home there until they establish themselves independently or take service on another property." Mr. Phipps, who gives this account of the Wurtemberg land system, adds that political economists of that country are now " of opinion that small proprietors, who complete their means of livelihood by industrial pursuits, are the most desirable class to encourage, whereas formerly agricul- ture on a large scale was considered the most profitable." Precisely the same opinion is recorded by Mr. Bailie, writing * See an excellent letter on "Agriculture in Germany," by the Rev. F. Barham Zincke, published in the Times of August 27, 1879. J 130 THE LAW AND CUSTOM [BRODRICK. on the " Land System of Baden," where property is much subdivided. He states that owners of small freeholds do not differ from the larger proprietors in respect of dwellings, clothing, mode of living, or education ; that they realise better returns from the same number of acres ; and that, in conse- quence, large estates and large farms are giving place to small estates and holdings. This change, he adds, is there regarded as tending " to promote the greater economical and moral prosperity of the people, to raise the average standard of edu- cation, and to increase the national standard of defence and taxation." 4. In Bavaria, where the land is very much subdivided, Mr. Fenton attests the general prevalence of a custom very similar to that which characterises the larger peasant farmers in Wurtemberg. Except in the Bavarian Palatinate, where the Code Napoldon is in force, the descent and inheritance of land are governed throughout Bavaria by the principles, though not everywhere by the express provisions, of the common law. "A proprietor is bound to bequeath at his death a certain denned portion of his property, to be divided in equal shares among all his legitimate children. That portion must not be less than one-half, if the number of children be five, or more than five ; and not less than one-third, if there be four, or less than four, children." Where the property consists of land, and especially if it be a peasant property, the eldest son may, and usually does, retain the whole, paying the rest a pecuniary indemnity for their shares, if the father has not already installed him in possession, as sometimes happens, during his own life- time. " Amongst that class the almost invariable custom is for the testator to leave the whole of the real property farm- house, farm buildings, and land in the possession of one member of the family, commonly the widow or the eldest son, and that person then becomes responsible to the children for the payment to them of a sum of money corresponding to the value (as ascertained by official appraisement) of their share of the property, the children's share being generally fixed at one- half of the whole, real as well as personal. It is further a universally-understood condition of an arrangement of the nature above described, that the person who remains in pos- session of the property and becomes its owner, is bound during a certain number of years (after the payment of their shares to all the children) to provide any one or all of them with OF PRIMOGENITURE. 131 board and lodging at the homestead, in the event of their falling into distress from sickness, want of employment, &c." In short, the peasant proprietors of Bavaria, who are admitted to be a thriving class, appear to keep up their family estates with as much tenacity as our own landed gentry, but with a jealousy for the rights of younger children which reminds us of the Irish peasant farmers. 5. In the Austrian Empire, on the contrary, the devolution of all property, real and personal, is regulated by the Civil Code of 1869, by which "no preference is accorded to eldest sons," nor have sons any advantage over daughters ; but " an excep- tion exists in the case of family entails (majorats)." Of course, these entails are mainly created on large properties. Whatever be the instrument which constitutes such an entail, Mr. Lytton remarks that it has no legal validity without the special consent of the legislative power. Mr. James Howard notices the existence of a further exception applicable to " peasant-farms," the maximum size of which is 60 acres, and the minimum 15 acres ; which exception, however, is no longer sanctioned by law in the Archduchy of Austria itself, though maintained in other parts of the Empire. " In the case of such farms, when a proprietor dies, his eldest son takes the land ; and an assessor is called in, who fixes the amount to be paid to the other children." The result of Mr. Howard's inquiries showed that in the Austrian dominions " no class of tenant-fanners exists ; all are proprietors, except in a few districts, and rare instances." Nevertheless, a larger amount of agricultural machinery had been exported from England to Austria and Hungary than to any other part of Europe, and it was estimated that in ten years, 1860-70, nearly 2,000 steam threshing-machines had been introduced into the Empire, chiefly for use in Hungary. 6. It is almost superfluous to state that Switzerland is a land of small proprietors, the law of equal division being heartily supported by custom. According to Mr. Mackenzie's report, " the quantity of land usually held by each varies from six to twelve acres, small lots held together, and the larger intersected by other properties;" yet, instead of being pauperised by subdivision, the Swiss are proverbial for successful enterprise in trade both at home and abroad. It is, indeed, difficult to say whether the purely agricultural peasantry of Switzerland, and the operative classes living on their own little freeholds in the manufacturing districts, offer the more remarkable J 2 132 THE LAW AND CUSTOM [BRODRICK. example of industry and thrift, intelligence and comfort, widely diffused through a whole community. The evidence of this is too overwhelming and too patent to escape the attention even of ordinary travellers, and it may safely be affirmed that if Swiss habits and institutions could be transplanted into Eng- land, agricultural distress would almost cease to be possible. 7. In Belgium, morcellement has notoriously been carried, under the Code Napoleon, to a greater extreme than in France itself; so that, according to official statistics and estimates cited in the Foreign Office Reports, the average size of estates, deducting woodlands and wastes, might be stated at seven acres ; and four- fifths of them did not exceed twelve acres. " The dispersion of land is increased by the system which generally prevails at public sales of dividing real estate into small parcels or lots ; " otherwise the properties of small families, sold for the purpose of effecting a more convenient distribution among children, would be constantly passing into the hands of rich families. The works of M. de Laveleye and others have so familiarised the minds of English economists with the effects of the Belgian land system on Belgian agricul- ture, that it would be superfluous to recapitulate them. It is admitted that Belgian tenant-farmers are ground down by rack- rents, and that even the small Belgian proprietors lead a harder life than many an English farm-labourer. Nevertheless, the fact remains that, under this land system, one of the poorest soils in Europe, fertilised by ten centuries of laborious hus- bandry, fetches a higher price, acre for acre, if it does not yield a larger produce in grain, vegetables, and meat, than any but the most favoured districts of Great Britain.* 8. In Holland, as we learn from the same. Reports, ''the law of succession requires the division in equal portions, amongst the children or next of kin, of a major part of every * See M. de Laveleye's Essay on the Land System of Belgium and Hol- land, in " Systems of Land Tenure," 1876 ; Mr. Kay's " Free Trade in Land," Mr. Shaw-Lefevre's ''Freedom of Land,' 7 and Mr. Thornton's "Peasant Proprietors." See also the Report of Dr. Augustus Voelcker and Mr. H. M. Jenkins on Belgian agriculture, in which its alleged superiority in productive- ness is combated. Mr. James Howard, in his treatise on " Continental Farm- ing," adopts the same view. He observes that, in comparing the English with the Belgian stock of cattle, it is often forgotten that many of the Belgian oxen are employed for draught purposes, instead of horses, and that most of the rest are inferior in weight and size to English oxen. Even if draught-oxen be included, he reckons the total quantity of meat raised per acre to be only 98 Ibs. in Belgium, against 148 Ibs. in England and Wales. OF PRIMOGENITURE. 133 inheritance without regard to its nature or origin, and this is naturally calculated to favour to a great extent the division of landed property. But, on the other hand, there exists a very prevalent desire with individuals to avoid unnecessarily splitting up the paternal estates. It is a common thing for a farmer, whether proprietor or tenant, to have accumulated before his death sufficient movable property, frequently in the funds, to enable him to assign a portion therefrom to one or another ot his children." The policy of the law, however, is rather against family arrangements whereby the eldest son may retain all the land and the younger children may be compensated in money, since it imposes an increased tax on successions thus modified by agreement. A very attractive picture of rural life under the Dutch land system is drawn by M. de Laveleye : "The farmers of Holland lead a comfortable, well-to-do, and cheerful life. They are well housed and excellently clothed. They have china-ware and plate on their sideboards, tons of gold at their notaries', public securities in their safes, and in their stables excellent horses. Their wives are bedecked with splendid corals and gold. They do not work themselves to death. On the ice in winter, at the Kermesses in summer, they enjoy themselves with the zest of men whose minds are free from care." The chief reason assigned by M. de Laveleye for the superior prosperity of Dutch, as compared with Belgian, farmers, is that in Holland landed property has remained almost entirely in the hands of peasants, the savings of towns- people being invested in public securities ; whereas in Belgium there is an eager competition of capitalists for estates, forcing up the price and rent of land to an abnormal extent. But M. de Laveleye's ideal of agricultural felicity in Holland is to be found in the province of Groningen, where much of the land is cultivated under a species of hereditary lease, known as Beklem-regt, at a moderate and invariable rent. " This system," he says, " derived from the Middle Ages, has created a class of semi-proprietors, independent, proud, simple, but withal eager for enlightenment, appreciating the advantages of education, practising husbandry not by blind routine and as a mean occupation, but as a noble profession by which they may acquire wealth, influence, and the consideration of their fellow- men." This description of Dutch rural economy cannot be accepted without some qualification. No doubt the national habit of 134 THE LAW AND CUSTOM [BRODEICK. accumulation, with the aid of lucrative marriages, enables peasant-owners in Holland to keep their properties together. But the competition of capitalists is not wanting, and the passion for proprietorship often tempts the peasant-owner to invest on new purchases of land, at a ruinous price, capital which might be far more profitably invested in improving that which he already possesses. The leaseholders under the Beklem-regt system are practically owners, subject to a quit-rent, and, though usually excellent farmers, do not appear to enjoy any special advantage, in respect of tenure, over semi-proprietors, holding at fee-farm rents, in various parts of the United Kingdom, and especially in Scotland. 9. The same de-feudalising movement, dating from the French Revolution, and deriving a fresh impulse from the democratic revival of 1848, has profoundly modified the land systems of most other European countries. In Sweden and Denmark the creation of new entails has been prohibited, though some old entails survive, as in Prussia. In Norway the French law prevails, being in harmony with the ancient custom of the country. Yet subdivision has not yet been carried to extremes, very few estates being under 40 acres, and very many above 300 acres, besides a large tract of mountain pasture.* In the Hanse towns, as well as in Schleswig-Holstein, Primo- geniture is more countenanced by law ; but even where, as in Bremen, the real estate goes to the eldest son on intestacy, the " co-heirs," or younger children, are entitled to be portioned out of it. " In Italy," says Mr. Bonham, " the laws in force tend in every way to favour the dispersion of land," and equal division, without distinction of sex, is the rule of inheritance on intestacy; but a landowner, having children, may leave one- half of his property by will ; the other half hgitima portio "cannot be burdened with any conditions by the testator." But the political union of Italy has not yet brought about an assimilation of its various provincial land systems, and it will probably be long before the peasant-ownership of Lombardy displaces the old territorial economy of Sicily. In Greece and Portugal the law of intestacy and the restrictions on testamen- tary disposition are, in all essential respects, the same as in Italy, producing in both countries a large and increasing subdivision of landed property. Mr. Finlay, speaking of the * Mr. Thornton's " Peasant Proprietors," second edition, p, 82; quoted by Mr. Kay, " Free Trade in Land," chap. xi. OF PRIMOGENITURE. 135 stationary condition of Greek agriculture, observes " It is the almost universal rule that each small proprietor possesses a zevgari " (or plot requiring two pair of oxen to plough it), " and that each cultivator of national land occupies no more." Mr. Merlin, in his report on Greece, mentions the curious fact that " it is extremely rare for the sons to marry till their sisters are provided for ; and this feeling pervades all classes." The active jealousy of Primogeniture and partiality for subdivision ex- hibited in the recent legislation of Portugal contrasts strangely with the survival of great ancestral properties in Spain. It has, indeed, been carried further than even M. de Laveleye approves in the abolition of a father's right to designate one child as his heir, under the ancient form of Portuguese land-tenure known as the Aforamento, which resembles the Beklem-regt of Gro- ningen. In Russia, where the land system has been complicated by political and social distinctions between classes, by serfdom, and by the communal organisation, Mr. Michell reports that local usage regulates the descent of peasant properties. The law of intestacy for the rest of the community is based on equal division, giving males a preference over females. "There is no general law of Primogeniture, although, in a few great families, estates have been entailed under a special law passed in the reign of the Emperor Nicholas. In 1713 Peter the Great attempted to introduce a general inheritance in fee of the eldest son ; but this was so much opposed to the spirit of the Russian landowners, that one of the first acts of Peter II. was to cancel the Ukase of 1713." 10. Under the land-laws of most States in the American Union, an owner in fee-simple has nearly the same power of disposition as he would possess in this country, but the rule of equal division prevails in case of intestacy. The results of this system, and the reason why they differ so widely from those produced by our own, are succinctly described in the following passages of Mr. Ford's report : "The system of land occupation in the United States of America may be generally described as by small proprietors. The proprietary class throughout the country is, moreover, rapidly on the increase, whilst that of the tenancy is diminish- ing, and is principally supplied by immigration. The theory and practice of the country is for every man to own land as soon as possible. The term of landlord is an obnoxious one. The American people are very averse to being tenants, and are 136 THE LAW AND CUSTOM [BRODRICK. more anxious to be masters of the soil, and are content to own, if nothing else, a small homestead, a mechanic's home, a com- fortable dwelling-house in compact towns, with a lot of land of from 50 feet by 100 feet about it. In the sparsely-peopled portions of the country, a tenancy for a term of years may be said to exist only in exceptional cases. Land is so cheap there that every provident man may own land in fee. The possession of land of itself does not bestow on a man, as it does in Europe, a title to consideration ; indeed, its possession in large quantities frequently reacts prejudicially to his interests, as attaching to him a taint of aristocracy, which is distasteful to the masses of the American people. " The landowner in the United States has entire freedom to devise his property at will. He can leave it to one or more of his children, or he may leave it to a perfect stranger. In the event of his dying intestate, his real estate is equally divided amongst his children without distinction as to sex, subject, however, to a right of dower to his widow, should there be one. If there are no children or lineal descendants, the property goes to other relatives of the deceased. If the intestate leaves no kindred, his estate escheats to the State in which it is situated. The laws of the different States of the Union regu- lating the descent and division of landed property on death of owner harmonise to a great extent with each other. " It may be asserted that the system of land-tenure by small proprietors is regarded in this country with great favour, and that the prevailing public opinion is that the possession of land should be within the reach of the most modest means. A proprietor of land, however small, acquires a stake in the country, and assumes responsibilities which guarantee his dis- charging faithfully his duties as a citizen. Whilst practically any one man may acquire as much land as he can pay for, yet the whole tendency and effect of the laws of this country are conducive to dispersion and multitudinous ownership of land. The several States and the Government of the United States grant their lands in limited quantities ; and under the laws of descent lands descend to the children, irrespective of sex, in equal shares ; and the laws of partition provide for a division of the lands into as many parts as there are interests, where it can be done without prejudice. In many European countries the sale and transfer of land are so hampered by legal compli- cations, and entail such heavy expenses, as frequently to OF PRIMOGENITURE. 137 discourage such operations. In the United States, on the con- trary, the sale and transfer of land are conducted with about the same ease as would be the sale of a watch. Very large quantities of land are seldom held in this country, undivided, by one family for more than one or two generations. It is worthy of remark that in this country the same reluctance is not felt, as in Europe, to parting with family land?." n. No foreign land system, however, is so interesting or instructive to an English economist as the land system of the Channel Islands.* This land system, founded on ancient custom, is the same as that of France in its essential features, but modified by certain reservations in favour of Primogeniture. In Jersey, upon the death of a landowner, leaving a widow and children, the widow has an indefeasible right to one-third of the income during her life, while the eldest son is entitled to the dwelling-house and curtilage, with about two English acres of his own selection, and one-tenth of the remaining land. Where the estate is less than one acre and a half, the eldest son inherits the whole. In other cases, the residue is divided among all the children, including the eldest, the sons taking equal shares of two-thirds, and the daughters equal shares of one-third, but so that no daughter shall take a greater share than a younger son. In Guernsey the eldest son's right is more restricted, but the other rules of division are similar. Entails were unknown in Jersey, until they were partially legalized by the Crown in 1635, and the practice of entailing has ceased for the last thirty years. Devises of land are only permitted where there are no children. In fact, subdivision is generally prevented by the eldest son buying out the rest, who go into business, sometimes retaining a rent-charge on the family estate. The total area of all the Channel Islands is about 50,000 acres, but the area capable of cultivation scarcely exceeds 37,000 acres, of which more than one-half is in Jersey. The population of all the islands is about 90,000, and of Jersey about 56,000, being nearly thrice as dense, relatively to acreage, as that of England and Wales. The proportion of the popula- tion employed in agriculture is still larger, being estimated at * See the Report of the Commissioners appointed to inquire into the laws of Jersey, 1861 ; Mr. Kay's "Free Trade in Land," chapter xii. ; Mr. A. Arnold's " Free Land," chapter xvii.; and Mr. Shaw-Lefevre's article on the Channel Islands in the Fortnightly Review of Oct., 1879. j 138 THE LAW AND CUSTOM [BRODRICK. one cultivator to every four acres in Jersey and Guernsey. The number of landowners in Jersey has been variously stated at 2,500 and 2,300, and the average size of properties is eight or nine acres, but many of the smallest, as in France and England, are market-gardens, or belonging to persons having other means of livelihood. The largest properties rarely exceed one hundred acres in Jersey and fifty acres in Guernsey. Most farms are cultivated by their owners, with an industry and skill which owes less than is supposed to special advantages of soil or climate. Whatever test be applied to it, the agriculture of the Channel Islands must rank above that of almost any country in Europe. If we take the price of land as a measure of its agricultural value, we find that 200 an acre is as commonly given in Jersey as ,50 an acre in England not for residential sites, but for ordinary farms. If we refer to average rent, we find that it ranges from ^4 per acre for poor land to -10 or 12 for good land, being four times as high as in England. If we look to expenditure of capital in manure, we find that Jersey farmers do not grudge 20 or ^30, or even ^40, per acre, in preparing their little plots for crops of early potatoes, some ^300,000 worth of which have been exported to London from this island alone in one year. If we judge of success in culti- vation by the produce, we find that a much larger quantity of human food is raised in Jersey than is raised on an equal area, by the same number of cultivators, in any part of the United Kingdom. Not only does it support its own crowded popula- tion in much greater comfort than is enjoyed by the mass of Englishmen, but it supplies the London market, out of its surplus production, with shiploads of vegetables, fruit, butter, and cattle for breeding. Even wheat, for the growth of which the climate is not very suitable, is so cultivated that it yields much heavier crops per acre than in England ; and the number of live stock kept on a given area astonishes travellers accus- tomed only to English farming. Nor are these only the results of spade husbandry, for machinery is largely employed by the yeomen and peasant-proprietors of the Channel Islands, who have no difficulty in arranging among themselves to hire it by turns. Considering all these facts, and the absence of any special conditions, such as the close proximity of lucrative markets, to account for the marvellous agricultural prosperity of these islands, we cannot greatly err in attributing it mainly to their OF PRIMOGENITURE. 139 cherished land system. The price of land is three or four times as high as in England, not because it is a " luxury," for the possession of which the great nobleman or capitalist will outbid all competitors, but, on the contrary, because it is more valuable agriculturally to small proprietors than it could be to any other class of purchasers, because there are many such bidders for every lot that is sold, and because the cost of transfer is small. It pays a rent at least four times as high as English land, because those who hire it are themselves small proprietors, cultivate it with their own hands, and apply to it a much larger capital per acre than an English tenant-farmer would think remunerative. It yields an amount and variety of produce which seems fabulous to persons conversant only with tenant-farming on the grand scale, not merely because it is more liberally manured, but also because it is studded with orchards, vineries, and other profitable Jwrs d'csuvres of agri- culture, which nothing but the magic of property will call into existence. The same lesson is taught by the abundance of the markets, the substantial character of the dwellings even down to the humblest cottages, the magnitude of the public works, the dress and diet of the labouring class, the comparative rarity of pauperism, and other signs which betoken a happy and thriving community. It would be interesting, were it possible, to compare the 37,000 cultivated acres of the Channel Islands with the best specimen that could be selected of an equal area owned by a single proprietor in Great Britain. If the advan- tage should prove to be on the side of the former, morally and socially as well as economically, it would be for the advocates of the English land system to reconcile this result with their belief in a threefold agricultural hierarchy of landlords, tenant- farmers, and labourers. Perhaps it might come to be perceived that whatever benefit is thus derived from a division of duties is more than compensated by a separation of interests ; that a farmer who is his own landlord and his own labourer can dispense with the incessant trouble of supervision and fear of an increased rent ; that, upon the whole, three profits fructify most abundantly in one pocket ; and that freedom of agricul- ture, like freedom of trade, must needs promote the greatest happiness of the greatest number. The conclusions to be drawn from a comprehensive review of foreign land systems may be expressed in a few sentences. No other nation has adopted in its entirety the English right of 140 THE LAW AND CUSTOM [BRODRICK. Primogeniture a right which could only have grown up in a thoroughly feudalised society, and which could only have been perpetuated in a country where the feudal structure of society has never undergone any violent disturbance. In those States which have remodelled their jurisprudence on the principles of the Code Napoleon, the eldest son is effectually debarred from engrossing the whole landed property of the family. In other States, which have developed their law of succession indepen- dently, parents are allowed to "make eldest sons," under greater or less restrictions. In no considerable State but our own does the law itself, in default of a will or settlement, consti- tute the eldest son the sole heir to all the realty, and in no other is the exclusive preference of the first-born, thus conse- crated by law, carried to such extreme lengths in family govern- ment. No highly civilised people but the English tolerate the dominion of a bygone generation over the greater part of the national soil, under settlements and entails designed to limit the ownership and control the action of living owners. In no other part of Europe, nor in the United States of America, nor in the British colonies, is the division of, landed property so unequal, or the predominance of a landed aristocracy so firmly rooted. In no other is the fiee transfer of land, or the power of mortgaging, obstructed by so many legal impediments, by so great a risk of delay, or by the certainty of so exorbitant a cost. Nownere else is the land habitually occupied by a class of tenants who hold only from year to year, and cultivated by a class of labourers divorced from the soil and working for weekly wages. It is hardly too much to say that the rural economy of Norway and that of Italy, that of Germany and that of the United States, that of France and that of Australia or New Zealand, differ less from each other than any one of them differs from the rural economy of Great Britain. For every one of these countries however diverse in respect of their soil, their climate, their history, their population, or their political constitution has cast off the old shell of feudal land laws, has adopted the principles of Free Trade in Land, and has practi- cally fostered the creation of a farmer-proprietary superseding, more or less, the relation of landlord and tenant. Bearing these facts in mind, we are brought face to face with the question, whether the group of institutions and customs which form the unique land system of England deserve to be upheld by English statesmen and economists, either by virtue of their intrinsic OF PRIMOGENITURE. 141 merits, or by reason of their having become incorporated into our national character ; and, if not, in what manner it may be proper to modify them by legislative enactment. CHAPTER V. THE ARGUMENTS FOR AND AGAINST PRIMOGENITURE. IN approaching this part of the subject, we must resolutely put aside two lines of reasoning which have done much to obscure it. The first of these is that which starts from the idea that younger sons have certain natural rights, of which they are deprived by the law and custom of Primogeniture. Now, it is impossible to form any definite conception of rights in this sense, except as arising from the personal exertions of those who claim them ; or, at least, from expectations fostered by the law, or the parent, as the case may be. If the Code Napole'on had been introduced into England, and if the existing rule of descent by Primogeniture were afterwards substituted for it, the generation of younger sons affected by the change would have good cause for complaint, unless their interests were expressly reserved. Again, if a father had led his children to count upon an equal division of his property, and were then to accumulate all upon the eldest son, a palpable wrong would be done to all the rest. But the supposed grievance of existing younger sons who receive the small fortunes to which they were born, and have always looked forward, will not bear a moment's investigation. It is in no respect more real than the grievance of those who are born to no fortune at all, and look wistfully at the inherited wealth of the richer classes. Indeed, the cadets of territorial families who are disposed to regard them- selves as the victims of injustice may well reflect that, but for the institution of Primogeniture, those families might perhaps have little or no territory in their possession, but might long since have been merged in the mass of the community. Ex- cept where the law steps in, on intestacy, to defeat the known intentions of a father, or a father disappoints the hopes en- couraged by himself to aggrandise an eldest son, it can hardly be said that Primogeniture involves injustice to younger children. Whatever injustice it may involve is sustained by 142 THE LAW AND CUSTOM [BRODRICK. society at large, and though society consists of individual members, those of its members who ultimately suffer most by the operation of Primogeniture are certainly not to be found in families which owe their existence to it. Still more irrelevant are the attacks which have recently been made on Primogeniture from a communistic point of view. Communistic theories of property, if valid at all, are valid not against any particular rule of succession, but against individual proprietorship as such, or against the ample and peculiar rights of English landlords rights of which no pro- prietary class is more tenacious than new purchasers. No doubt it is a perfectly intelligible proposition that all the land in the kingdom ought to be " nationalised " and placed under public management, because individual owners cannot be trusted with full dominion over that part of the earth's surface by which and upon which all natives of England must live, unless they choose to emigrate. It is evident that, apart from all other objections, this doctrine is the very negation of the belief in peasant-proprietorship and " the magic of property," being, in fact, an essentially urban sentiment, and inevitably destructive to all independence of rural life. Nor can it be said that our experience of corporate administration, in the case of lands held by collegiate, ecclesiastical, and municipal bodies, as well as by trustees of charities, is such as to re- commend the substitution of public for private ownership on a much grander scale. At the same time, it is incontestable that land has actually been treated by all governments, not excluding our own, as more within State control, for many purposes, than other kinds of property ; and it is possible to conceive circumstances under which it might be expedient to extend State control much further over the soil of these islands. But what has all this to do with the right of Primogeniture? and what consistency is there in a programme which couples the abolition of that right, and the adoption of free trade in land, with provisions designed to withdraw from the market and consolidate into larger municipal domains more and more of the properties which are already supposed to be too few ? This is not the place to discuss the moral or economical aspects of these provisions ; suffice it to point out that, except so far as they are aimed at overgrown private estates, they have nothing in common with the policy of reforming the law and custom of Primogeniture. This policy assumes the maintenance of OF PRIMOGENITURE. 143 private property, and is directed to its more equitable dis- tribution among individuals, without contemplating a return to a communal system of ownership, which, if accepted, would supersede all laws of inheritance and powers of disposition. It is the more necessary to insist on this point, because the cause of Primogeniture has been strengthened, and the efforts of its opponents weakened, by the unfounded impression that it cannot be touched without reconstructing our whole law of property, whereas no more is demanded or required than an amendment of one single chapter. The most familiar, as well as the strongest, arguments in favour of Primogeniture as it exists in England are derived from considerations which must be called, in the largest sense, political. It was as a powerful bulwark of our landed aristo- cracy that Burke defended it in his "Appeal from the New to the Old Whigs/' emphatically declaring that " without question it has a tendency (I think a most happy tendency) to preserve a character of consequence, weight, and prevalent influence over others, in the whole body of the landed interest." The Real Property Commissioners appointed in 1828 fully endorsed this opinion in their first Report, which contains a laudation of the settlements then in use as the best means of "preserving families," and as investing the ostensible lord of the soil " with exactly the dominion and power of disposition over it required for the public good." The English law of intestacy is regarded by the Commissioners with equal approbation, since it " appears far better adapted to the constitution and habits of this king- dom than the opposite law of equal partibility, which, in a few generations, would break down the aristocracy of the country, and, by the endless subdivision of the soil, must ultimately be unfavourable to agriculture, and injurious to the best interests of the State." Very similar opinions are expressed by Mr. McCulloch in combating the well-known dictum of Adam Smith, that " nothing can be more contrary to the real interest of a numerous family than a right which, in order to enrich one, beggars all the rest of the family." Mr. McCulloch, indeed, though he condemns the old indestructible Scotch entails, since abolished by law, treats it as a characteristic merit of English Primogeniture that it sustains a high standard of luxury among country gentlemen of which the example is not lost upon the mercantile classes. If we analyse this plea for Primogeniture somewhat more 144 THE LAW AND CUSTOM [BRODRICK. closely, it will be found to resolve itself into several distinct lines of reasoning. In the first place, it is alleged, or rather suggested, that without Primogeniture it would be impossible to maintain an hereditary peerage. The sufficient reply to any such allegation is that an hereditary peerage may be kept up, and is kept up in some Continental states, either by means of majorats specially created, or by making certain estates " run " with the titles derived from them, without any general law or custom of Primogeniture. Moreover, unless Primogeniture be defensible on other grounds, as beneficial to the whole com- munity, it would surely be monstrous that it should be imposed on the families of some hundred thousand freeholders not to speak of those who may be rendered landless by its indirect operation for the sake of the few hundred families composing the hereditary nobility. In fact, Burke himself, with all his aristocratic bias, was careful not to rest the case on so narrow a ground ; and few admirers of Primogeniture would now venture to advocate it in the interest of the Upper House, as distinct from that of the nation at large. But, secondly, it is urged, and not without great force, that Primogeniture is actually productive of greater benefits, political and social, to English society as a whole than could be ex- pected from a system of more equal partibility. It is better, we are told, for rural England at least, to be paternally governed by a comparatively limited hierarchy of eldest sons, whose successors are usually designated long beforehand, than for estates to become subject to division once in each genera- tion, with the risk of passing into the hands of new purchasers having no ancestral connection with land. It is contended that an heir born to a great position and trained from his earliest years to make himself worthy of it, acquires habits, and is fortified by motives, which are powerful securities for his future virtue and capacity. This ideal landowner, having been thoroughly instructed in all the manifold duties of property during his father's lifetime, and conscious that a large body of tenants and dependants look to him for guidance and example, enters upon the management of his estate in a spirit altogether superior to commercial self-interest, prepared to do for it what no mere land-speculator would think of doing, and no small proprietor could afford to do. If he is a religious man, he builds churches in neglected hamlets ; if he is an agriculturist, he sinks more in drainage and farm buildings than he will ever OF PRIMOGENITURE. 145 live to receive back in rent ; if he is a social reformer, he erects model cottages, carries out sanitary improvements, patronises schools, or devotes himself to bringing forward the most promising youths in the parishes of which he is lord. In all these enterprises, as well as in the unpaid services which he renders on the magisterial bench, on local boards, and in the varied spheres of influence open to resident landlords, he is actuated by no hope of pecuniary reward or even of personal gratification, but rather by that peculiar sense of honour, com- pounded of public spirit and family pride, which has played so large a part in the history of England. His character, thus developed, exhibits a marked individuality, but it is by no means a one-sided individuality. With education enough to understand the economical and legal questions which he is daily called upon to settle in practice ; with leisure enough to follow the course of affairs both at home and abroad ; with refinement enough to appreciate art and literature ; with energy enough to enjoy a life of constant activity in which " county business " is relieved by field sports and a laborious summer holiday ; with independence enough to smile at official favours or displeasure ; the model English country gentleman repre- sents a species which has never been developed in any other country, and the absence of which goes far to account for the failure of local self-government in France. Is it, we are asked, a legitimate object of state policy to promote the gradual extinction of this class, and meanwhile to disorganise the whole structure of family life within it, for the sake of any doubtful advantage that may be gained by a wider distribution of pro- prietary rights ? Such a landlord as has been described may be taken as the embodiment of the English landed aristocracy, as it should be, from the political and social point of view. Possibly an equally attractive and not less faithful picture might be drawn of a landed democracy, as it should be, illustrated by Swiss and American experience. We have not, however, to deal with ideals, but with realities ; not with exceptions, however numerous, but with general tendencies. Let it be granted, once more, that a high standard of political and social responsibility is recognised by a very large number of English country gentle- men the special products, ex hypothesi, of Primogeniture; and, further, that an institution so bound up with much that is admirable should not be lightly disturbed. Still, we are bound K 146 THi: LAW ANt> CUSTOM to inquire whether these results have not been purchased too dear ; whether the continued maintenance of Primogeniture in its integrity involves no countervailing evils, and whether a nearer approximation to ancient usage and foreign codes of land-tenure might not conduce to greater stability and greater unity in our body politic. It is certainly impossible to ignore the grave political danger involved in the simple fact that nearly all the soil of Great Britain, the value of which is so incalculable, and progressively advancing, should belong to a section of the population rela- tively small, and progressively dwindling. More than twenty years ago, Mr. Porter, a very high authority on economical statistics, arrived at the conclusion that "with scarcely any exception, the revenue drawn in the form of rent has been at least doubled in every part of Great Britain since 1790." In the period which has since elapsed the same causes have con- tinued to operate with still greater activity. It was stated in a report issued by Mr. Goschen, as President of the Poor-Law Board, that the annual value of lands, houses, railways, and other property in the United Kingdom assessed to the income tax, under Schedule A, rose from ^53,495.375 to ji43i 8 7 2 5 8 8 between 1814 and 1868 ; and this must be exclusive of the immense sums (estimated by Mr. A. Arnold at ;i 00,000,000) received by the landed interest from railway companies, over and above the market price of the land thus sold. From a later Report of the Inland Revenue Office it appears that the assessment of the United Kingdom, under Schedule A, amounted to more than ;i 50,000,000, and that of England and Wales alone to ^122,599,255, in the year 1873-4, and the Commissioners give reasons for believing the real advance in the value of landed property to have been much greater. But it is the less needful to enter minutely into any such calculations, inasmuch as it is not disputed that for many years past the rental of England has been constantly on the increase ; while the fact that persons are willing to invest in land at a low present rate of interest is the best proof either that a further increase in its annual value is expected, or that its annual value is no measure of its real worth to a purchaser. In short, the man who buys land buys not only what may pay him so much per cent., but what may give him social position,