REESE LIBRAR 
 
 APR 17 
 
HISTORICAL SKETCH 
 
 OF T1IK 
 
 DISTRIBUTION OF LAND IN ENGLAND. 
 
HISTORICAL SKETCH 
 
 OF THE 
 
 DISTRIBUTION OF LAND 
 IN ENGLAND 
 
 WITH 
 
 Sxrggestbns four same Jfmpnrbenurtt in 
 
 WILLIAM LLOYD BIRKBECK, M.A. 
 
 MASTER OF DOWNING COLLEGE, AND 
 DOAVNING PROFESSOR OF THE LAWS OF ENGLAND IN THE UNIVERSITY OF CAMBRIDGE 
 
 ITonbon 
 MACMILLAN AND CO. 
 
 1885 
 
 {The Right of Translation and Reproduction is Rcscrrtd] 
 
oo 
 
 RICHARD CLAY ANP SONS, 
 
 BREAD PTKEKT HILL, LONDON, K.P. 
 
 and Bungay, Stiff oil. 
 
C N TENT S. 
 
 PART I. 
 
 l'A(!E 
 
 I. ANGLO-SAXON AGRICULTURE GENEATS AND GEBURS 
 
 VILLANI 1 
 
 II. AGRICULTURE AFTER THE CONQUEST VILLENAGE 
 
 COPYHOLDERS CONTINENTAL SERFS 5 
 
 III. ORIGIN OF LARGE PROPERTIES ESTATES OF ANGLO- 
 
 SAXON NOBILITY -EVIDENCE OF DOMESDAY . . 8 
 
 IV. THE SOKE SOCAGE TENURE 14 
 
 V. AGRICULTURAL COMMUNITIES IN NASSE 17 
 
 VI. MR. SEEBOHM 22 
 
 VII. THE FIRST TAXATION OF LAND THE HIDE ... 25 
 VIII. SAXON LAW OF SUCCESSION TO LAND 29 
 
 IX. EFFECT OF THE NORMAN CONQUEST ON THE DIS- 
 TRIBUTION OF LAND 33 
 
 X. NORMAN LAW OF SUCCESSION 38 
 
 XI. STRICT ENTAILS THE STATUTE "DE DONIS CON- 
 
 DiTIONALLBUS 
 
 43 
 
CONTEXTS. 
 
 PA UK 
 
 'XII. EFFECTS OF STRICT ENTAILS SCOTCH ENTAILS . . 48 
 XIII. RELAXATION OF STRICT ENTAILS COMMON RE- 
 
 COVERIES . 54 
 
 XIV. HENRY VII. AND HIS NOBLES THE STATUTE OF 
 
 FINES 58 
 
 XV. STRICT SETTLEMENTS 61 
 
 XVI. EFFECT OF STRICT SETTLEMENTS OF LAND MR. 
 
 TlIOROLD EOGERS 6C 
 
 XVII. TRUSTEES TO PRESERVE CONTINGENT REMAINDERS 70 
 
 XVIII. POWERS OF SALE 74 
 
 XIX. INCLOSURE OF WASTE LANDS MR. JOHN WALTER 
 
 FORMATION OF A PEASANT PROPRIETARY . . 77 
 
 PART II. 
 
 I. AMENDMENT OF LAW OF PRIMOGENITURE ... 82 
 
 II. PROPOSED SY&TEM OF REGISTRATION 85 
 
 III. MODERN REGISTRATION ACTS 90 
 
 IV. THE PRESENT GENERAL REGISTRATION ACT ... 92 
 
PART I. 
 
HISTOEICAL SKETCH 
 
 OF THE 
 
 DISTRIBUTION OF LAND IN ENGLAND, 
 
 I. 
 
 ANGLO-SAXON AGRICULTURE. GENEATS AND GEBURS. 
 VILLANI. 
 
 THE changes that take place in the terms on 
 which land is held, and the manner in which it is 
 cultivated, are usually so gradual that they escape 
 the notice of contemporaries. The causes of such 
 changes thus become at a subsequent period matters 
 of conjecture, giving rise not unfrequently, as we 
 shall have occasion to point out, to most extravagant 
 theories. 
 
 The first period at which we obtain any detailed 
 account of the agricultural condition of England is 
 that which succeeded, at no great interval, the 
 Norman Conquest. The admirable survey made 
 
 B 
 
HISTORICAL SKETCH OF THE [r. 
 
 by order of William I., the record of which is pre- 
 served in the two volumes known by the popular 
 name of Domesday Book, stands unrivalled (so far 
 as I am aware) by any memorial respecting the 
 material and social condition of this or any other 
 country. 
 
 Before adverting to the conclusions which may be 
 drawn from the great survey, it will be convenient 
 to refer shortly to the scanty information we possess 
 respecting earlier times, so far as it throws light 
 upon the terms and statements of Domesday. 
 
 In the Rectitudines Singularum Personaruru 
 (Ancient Laws and Institutes of England, 1840. Vol. 
 i. 431), a short treatise in Saxon and Latin, of un- 
 certain date, but which from internal evidence we 
 may safely conclude was composed in Saxon times, 
 we find described the duties of the various classes 
 of owners and occupiers of land. 
 
 Thus the thegn, or landowner, is obliged to serve 
 the king in war, and to assist in making or repair- 
 ing fortified places and bridges. This is the tri- 
 noda necessitas, so often a subject of complaint with 
 Anglo-Saxon proprietors. 
 
 The duties of the geneats are to till, to sow, and 
 reap the land of their lord, to go on errands far and 
 near for him, to provide a horse, to fell wood for his 
 deer park, to perform other servile works, and to 
 make certain small payments in money or kind. 
 
 The gebur, when he enters on his "yard of land,'' 
 
i.] DISTRIBUTION OF LAND IN ENGLAND. 3 
 
 is to be supplied with two oxen, one cow, and six 
 sheep, and seven acres of his land are to be sown 
 for him. After the first year he must perform the 
 duties attached to his condition. In some places he 
 must work two days in each week, in harvest (rendered 
 in the Latin text Augustus) three days. He is to 
 plough one acre a week from the time when plough- 
 ing begins till Martinmas. He also makes small 
 payments in money and kind. If he departs (dies), 
 all that he has belongs to his lord. 
 
 These general rules were subject (as appears by 
 the same document) to some variation, dependent 
 on the custom of the district in which the lands 
 were situate. 
 
 There can, I think, be no question that the 
 cultivation of the soil, when the JRectitudines were 
 written, was mainly carried on by the geneats and 
 geburs. They were evidently not slaves whose 
 duties depended absolutely on the will of their lord. 
 Their work was defined by the general custom, as 
 described in the Rectitudines, subject to variation 
 by the local custom of the district. Of these two 
 classes the geneats were legally unfree ; and the 
 geburs, by their poverty, must have been practically 
 in a servile condition, even if not unfree according 
 to law. 
 
 If we turn now to the Great Record, we shall, I 
 think, find that the course of husbandry had suffered 
 little alteration from the change in regard to the 
 
 B 2 
 
HISTORICAL SKETCH OF THE [i. 
 
 ownership of land which, in many cases, had taken 
 place during the interval of twenty years between 
 the Conquest and the completion of Domesday. 
 
 The properties mentioned in Domesday are gene- 
 rally styled villoe or maneria, and had usually, before 
 the Conquest, been the property of Saxon nobles, or 
 were then, and still remained, the property of eccle- 
 siastics, or of the Crown ; and "almost invariably 
 attached to the villa are a certain number of villani. 
 Now the word villanus occurs in the Latin text of the 
 Rectitudines as the equivalent of the Saxon geneat. 
 In Domesday it probably included the gebur also, the 
 distinction between the two in the Rectitudincs not 
 being very apparent. 
 
 The villani, afterwards called the villeins by the 
 Norman lawyers, were men allowed, like the geburs 
 of the Rectitudines, to occupy small allotments, or 
 " yards," of land for the support of themselves and 
 their families, and who, in return, were required to 
 plough, sow, and reap the land which their lord 
 kept in his own hands his demesne, as it was 
 called. 
 
ii.] DISTRIBUTION OF LAND IN ENGLAND. 
 
 II. 
 
 AGRICULTURE AFTER THE CONQUEST. VILLENAGE. 
 COPYHOLDERS. CONTINENTAL SERFS. 
 
 IT appears from the authorities to which I have 
 referred, that both before and after the Conquest, at 
 least a large portion of the agricultural population 
 of England, was organised in the same manner, as 
 that which prevailed over the greatest part of the 
 Western European Continent, during the middle 
 ages, and in some countries, as in Prussia, Poland 
 and Hungary, almost to the present day; whilst in 
 England, on the other hand, all traces of villenage 
 have disappeared for centuries. 
 
 The main cause which occasioned the discontinuance 
 of villenage in England, at a much earlier period than 
 that at which it ceased to exist in foreign countries 
 was probably economical. 
 
 The services due to the lord from the villein, peasant, 
 bauer, or serf, as he was usually termed on the Con- 
 tinent, often a source of vexation to both parties, 
 were, in England, at an early period, for the most 
 
HISTORICAL SKETCH OF THE [IT. 
 
 part, commuted for an annual money payment ; and 
 so powerful was the influence of custom, that it came 
 to be established law, that the villein, if he rendered 
 his accustomed rent and other services, if any, in 
 respect of his holding, could not be ejected from it, 
 nor could his rent or services be increased. He 
 obtained, by custom, fixity of rent and fixity of 
 tenure. 
 
 A list was kept of these tenants on the estate and 
 their holdings by the steward of the owner, and at 
 every change of a tenant, the fact was notified at a 
 court or assembly of tenants held under the presi- 
 dency of the steward, and an entry on this list or roll 
 became evidence of the right of the tenant to hold 
 his land. A copy of the entry was given to him, and 
 he was said to hold his land by copy of court- roll ; 
 but tolerably conclusive evidence of the original 
 infirmity of his title, was preserved in his legal 
 designation, which was, and still is, "tenant at the 
 will of the lord) by copy of court roll, according to 
 the custom of the manor." 
 
 The disappearance of the class which in England 
 corresponded to the peasantry of the Continent has 
 been much deplored by some politicians. I will not 
 stop to inquire whether it was a desirable state of 
 things, that the agricultural proprietors should be 
 sharply divided into two classes, having distinct 
 customs, interests and opinions, as has been usually, 
 if not invariably, the case, wherever peasant 
 
n.] DISTRIBUTION OF LAND IN ENGLAND. 
 
 proprietors, properly so called, have existed. But I 
 would remark that the disappearance of the English 
 peasantry, "the divorce of the labourer from the 
 soil," as it has been termed, is not due to oppression, 
 but to prosperity. By the great fall in the value of 
 silver, which commenced in the fifteenth century, the 
 copyholder, who enjoyed by custom fixity of rent and 
 tenure, became, in fact, a proprietor of his allotment, 
 subject to some moderate burdens; and he therefore 
 generally ceased to be a tiller of the soil. Cultivation 
 came to be carried on universally by hired labourers, 
 employed by copyholders as well as by free- 
 holders. If injustice has been done in the course of 
 this great change, it has certainly not been exercised 
 by the owners of land on the peasantry, since a vast 
 part of the best lands, to which the former were 
 legally entitled, have become the property of the 
 latter, without any equivalent being given by them, 
 through the gradual operation of the causes to which 
 I have alluded. Without revolution, and almost im- 
 perceptibly, landlordism was virtually abolished over 
 at least one-fourth of the arable land of England. 
 The burdens and restrictions to which copyhold 
 lands remained subject, render them, no doubt, 
 somewhat less valuable than freeholds of the same 
 extent, but the difference is not generally of great 
 importance. 
 
HISTORICAL SKETCH OF THE [in. 
 
 III. 
 
 ORIGIN OF LARGE PROPERTIES. ESTATES OF ANGLO- 
 SAXON NOBILITY. EVIDENCE OF DOMESDAY. 
 
 IT is a commonly received opinion, that the present 
 distribution of land in England differs greatly from 
 that which prevailed in ancient, and particularly in 
 Saxon times; and that the change is due to the 
 operation of the law of primogeniture, or entail, 
 or the practice of making settlements of land. I 
 propose to consider in the first place, how far this 
 opinion, that a great change in the distribution of 
 land has occurred is well founded, before inquiring 
 into the causes alleged to have produced it. 
 
 In order to arrive at a sound conclusion on the 
 subject, we must extend the investigation into 
 centuries long anterior to the Norman Conquest. 
 
 According to all historical accounts, the Saxon 
 Conquest of England was effected by a body of 
 men, about as insignificant in point of numbers, as 
 the Spanish invaders of Mexico. A few long boats 
 are 'said to have conveyed Hengist and his com- 
 panions conquerors of England. They were, no 
 
in.] DISTRIBUTION OF LAND IN ENGLAND. 9 
 
 doubt, reinforced, and supported by a large immi- 
 gration of their countrymen ; but still after 
 deducting those who fell in the struggle with the 
 Romanised Britons, the residue must have formed 
 a scanty band, when considered in connection with 
 the extent of territory which lay at their disposal. 
 They, however, were the ancestors of the kings and 
 Saxon nobility of England. Is it to be supposed 
 that these conquerors first ravaged the open country, 
 and then began to cultivate it, in small properties, 
 with their own hands ? Is it not more probable, that 
 the principal men among them took possession of the 
 Roman villas, with which the country was studded, 
 and cultivated the land like their immediate pre- 
 decessors, by means of forced labour ? I find no 
 reason for holding, that the Saxon invaders of England 
 differed greatly from the Germans as described by 
 Tacitus strenuous in war, slothful in peace. " Nee 
 arare terram, aut expectare annonam, tarn facile 
 persuaseris, quam vocare hostes et vulnera mereri : 
 pigrum quinimmo et iners videtur sudore adquirere 
 quod possis sanguine parare." Germania, cap. 14. 
 
 All conquerors and colonists bring with them 
 their own laws and customs. Now, in Germany, the 
 land was cultivated, according to the same testimony 
 of Tacitus, by men who were not free, though not, 
 like the Roman slaves, in a state of absolute bondage ; 
 the German serfs having separate dwellings and 
 occupying portions of land, whilst rendering a return 
 
10 HISTORICAL SKETCH OF THE [in. 
 
 in kind to their lords. He says (after speaking of 
 those who become slaves by staking their liberty in 
 gambling), " Caeteris servis, non in nostrum morem, 
 descriptis per familias, utuntur : suam quisque sedem, 
 suos penates regit. Frumenti modum dominius, aut 
 pecoris, aut vestis, ut colono injungit: et servi 
 hactenus parent. . . . Verberare servum ac vinculis 
 et opere coercere rarum." TACITUS, Germ. cap. 25. 
 
 Why should we suppose that a people so tenacious 
 of ancient habits as the Germans, introduced into 
 England a system of cultivation unknown in Ger- 
 many ? We find serfdom existing in England, soon 
 after the Norman Conquest, under the name of 
 villenage ; we find serfs in Saxon times under the 
 designation of geneats or geburs ; we find serfdom 
 forming part of the German agricultural system in 
 the days of Tacitus. Is there not, at least, a strong 
 probability that the first-mentioned custom was 
 derived from the last ? Would the German warriors 
 become more inclined to follow the plough, when 
 they had the larger part of England at their disposal, 
 than they were in their native country ? 
 
 What then was there to prevent the Anglo-Saxon 
 invaders, few in numbers as they were, from appro- 
 priating large tracts of country and cultivating them, 
 however imperfectly, by serfs brought from Germany, 
 or drawn from the inhabitants of the conquered 
 lands ? Bondage in one form or other was, we know, 
 rife among the Anglo-Saxons. 
 
in.] DISTRIBUTION OF LAND IN ENGLAND. 11 
 
 Again, the quantity of land held sufficient for an 
 Anglo-Saxon family was called a hide. Now the 
 average hide cannot be estimated at less than 200 
 acres a quantity obviously greater than that which 
 could be cultivated by the owner and his family 
 alone. The work was, in all probability, done by 
 geneat or gebur labour. There is no reason to 
 suppose that the Anglo-Saxons were less inclined to 
 employ forced labour, than the Dutch were a few 
 years ago (if not at present) in the Transvaal. 
 
 But whilst the hide appears to have been the 
 minimum allotment, we meet with constant allusions 
 in Anglo-Saxon laws and documents, to proprietors 
 of five, of twenty, and even a much greater number 
 of hides. 
 
 There is therefore, strong reason for believing that 
 in the earliest Saxon period, there were proprietors 
 of very large estates; and, as soon as the light of 
 history breaks upon us, it reveals their existence. 
 Etheldreda, an Anglian princess, in the seventh 
 century, gave, it is said, the Isle of Ely to the abbey 
 which she established. The Ealdorman Edric, in the 
 days of Ethelred the Unready, could turn the scale 
 in the struggle for supremacy between the Danes 
 and the English. The manors of Earl Godwin are 
 said to have stretched almost continuously through 
 the county of Sussex. Domesday Book shows that 
 the Earls Morcar, Edwin and Tosti (the brother of 
 Harold) had vast possessions. In Cambridgeshire 
 
12 HISTORICAL SKETCH OF THE [m. 
 
 " (Ediva Pulchra" held many manors at the 
 Conquest. In Dorsetshire, as Mr. Eyton, in his 
 admirable introduction to the Domesday of the 
 County?- observes, Marlswayn was ubiquitous. The 
 manor of Tewkesbury was held by Brictric and 
 was estimated at ninety-five hides, not less pro- 
 bably than 20,000 acres. The Manor of Helston, in 
 Cornwall, which belonged to Harold as Earl of the 
 county, was of yet greater extent. 
 
 It is, therefore, I think, sufficiently obvious that 
 vast estates existed in England from the earliest to 
 the latest Anglo-Saxon days. 
 
 Extensive as were these possessions, it is not to 
 be supposed that their owners were wealthy, in the 
 modern acceptation of the word. The rent of land 
 at the date of Domesday is estimated by Mr. Eyton 
 at a penny an acre, a hide at a pound of silver, 
 about 2 10s. Od. of our present money, per annum. 
 
 On the other hand, the instruments of agriculture 
 were dear, when compared with the rent of land. In 
 Magna Carta, Cap. 21 (1225), the hire " limited of 
 old " of a cart with two horses is ~LQd. a day, of a 
 cart with three horses Is. 2d. 
 
 Taking these facts into consideration, and re- 
 membering that the whole burden of the military 
 establishment, of repairing fortified places, bridges 
 and roads, was thrown upon the land, whilst the 
 
 1 Analysis of the Dorset Survey, by the Rev. R. }Y. Eyton, 1S77. 
 See pp. 5n, 10. 
 
in.] DISTRIBUTION OF LAND IN ENGLAND. 13 
 
 means of communication were very imperfect, it is 
 clear that few laymen, however extensive their 
 manors might be, could have enjoyed a considerable 
 surplus income, although they might command the 
 necessaries of life in abundance a condition in 
 which many great landowners on the Continent still 
 find themselves at the present day. 
 
 With the ecclesiastics the case was different. 
 Their personal expenses were comparatively small, 
 and when their possessions were considerable, they 
 could devote large sums, not only to building stately 
 monasteries and cathedrals, but also to increasing 
 their revenues by bringing waste land into cultivation. 
 
 The lavish grants made to ecclesiastics may be 
 explained, in part, by the fact that, in the hands of 
 their donors, they were, through want of capital, 
 comparatively worthless ; and a landowner might, by 
 means of a small sacrifice, become a great bene- 
 factor. Some persons appear to imagine that the 
 early occupiers of land obtained, at once, a very 
 valuable possession, forgetful that some of the best 
 land in the world may, even at this day, be pur- 
 chased in fee simple, for the cost of surveying it. 
 But land is an insatiable devourer of capital. The 
 amount annually expended on it may be small, but 
 it becomes immense in the course of ages ; and it is 
 probable that few increments of value are better 
 earned, than that which accrues to agricultural land 
 in the course of many generations. 
 
14 HISTORICAL SKETCH OF THE [TV. 
 
 IV. 
 
 THE SOKE. SOCAGE TENURE. 
 
 ALTHOUGH the properties mentioned in Domesday 
 are generally considerable, and often very large, 
 notices of smaller possessions, held by freemen, are 
 not infrequent. The owners are usually said to be 
 the men, homines, of some Saxon or Norman noble, 
 and are termed socmanni, sokemen. The word soke 
 at this time signified jurisdiction, and a landowner 
 who, by prescription, or grant from the sovereign, was 
 entitled to hold a court of justice, was said to have a 
 soke. His men, that is the freemen who acknow- 
 ledged that he was their lord for he of whom 
 another was man, was styled his lord were legally 
 bound to attend the Court of Justice held in the 
 hall of the lord's residence, and, if not themselves 
 parties, plaintiffs or defendants, to decide on matters 
 arising within the limits of the soke. 
 
 The existence of these private jurisdictions was a 
 matter almost of necessity, since without them, re- 
 mote districts, from the feebleness of the state 
 judicial institutions, and the difficulties of commu- 
 
iv. 1 DISTRIBUTION OF LAND IN ENGLAND. 15 
 
 ni cation, would have been left without effectual 
 legal supervision. Free landowners, who did not 
 belong to a soke, were obliged to attend the Court 
 of the Hundred ; the hundred being a division of 
 the county, generally of considerable extent. Such 
 owners were styled simply freemen, liberi homines, 
 or liberi tenentes ; but their position differed from 
 that of the sokemen merely as regarded the tribunal 
 which they were bound to attend, and their being or 
 not being under the protection of a lord. Hence, 
 when a new free tenure, the military, was introduced, 
 and it became necessary to discriminate the new 
 from the old free tenures, the term socage tenure 
 seems to have been extended to the freemen who 
 owed service to the hundred court, although a 
 public court, and was no longer confined, as in 
 Domesday, to those who attended the court of a 
 private person. The socmen are frequently men- 
 tioned in Domesday as bound to furnish inward 
 that is, to perform the duty of a local guard or 
 watch. They probably formed the rank and file 
 of the Saxon armies. 
 
 It is also probable that the smaller sokemen and 
 free tenants, cultivated their lands themselves ; but, 
 judging from the Domesday record, I think we must 
 conclude, that the total extent of land in the hands 
 of small free proprietors, was insignificant, when 
 compared with that which was cultivated by means 
 of serf labour. 
 
 ^c 
 '$& 
 
 T! 
 
16 HISTORICAL SKETCH OF THE [iv. 
 
 The terms on which the sokemen held their lands, 
 as appears by Domesday, were various. Some could 
 alienate their land without the license of their lord ; 
 others were unable to do so. If they possessed the 
 right of alienation, in some instances, upon aliena- 
 tion, the jurisdiction over the land, the soke, re- 
 mained with the lord ; in other cases the tenants 
 were free to dispose not only of the land, but of 
 the soke also. 
 
 This variety seems to indicate that the relation 
 of lord and sokeman often had its origin in contract. 
 The liberated serf also must frequently have passed 
 into the ranks of the sokemen. The latter gene- 
 rally paid a rent to his lord in money or in kind, 
 as well in return for the protection he could claim, 
 as for the use of his land. There are still freehold 
 lands held of the lords of some manors, at ancient 
 rents of small amount generally called quit-rents. 
 
 When we consider the extraordinary deference 
 which the Anglo-Saxon laws paid to wealth, esti- 
 mating not only the value of a man's life, but the 
 value of his testimony aJso, by the number of his 
 hides, it is not difficult to account for the readiness, 
 with which small free proprietors commended them- 
 selves to a great noble or prelate, and became his 
 sokemen, in order to obtain his advocacy. 
 
 
v.] DISTRIBUTION OF LAND IN ENGLAND. 17 
 
 Y. 
 
 AGKICULTURAL COMMUNITIES. 
 
 NOTWITHSTANDING that the facts I have men- 
 tioned are well known and rest, for the most part, on 
 unquestionable authority, there is, I think, a current 
 opinion that, during Anglo-Saxon times, land in 
 England was, generally speaking, in the hands of 
 free peasant proprietors men who cultivated the 
 soil with their own hands, for their own profit and 
 were not subject to any master. 
 
 This opinion has received confirmation from a 
 work on the Agricultural Communities of the Middle 
 Ages in England, by E. Nasse, a German writer of 
 considerable learning. The author maintains that 
 communities of free peasant proprietors prevailed in 
 England during the Anglo-Saxon period. 
 
 The author has, however, fallen into some im- 
 portant errors with regard to facts, and the con- 
 clusions which he draws from facts are not always 
 incontrovertible. 
 
 His theory is founded, in a great measure, on the 
 
 G 
 
18 HISTORICAL SKETCH OF THE [v. 
 
 continued existence of certain common rights in 
 England up to recent times : the nature of these 
 rights being recorded in the " Report of the Select 
 Committee on Commons Inclosures appointed by the 
 House of Commons in 1844," and the descriptions of 
 Agriculture in the several counties of England 
 published by the then Board of Agriculture, under 
 the control of Sir John Sinclair, at the close of 
 the last and commencement of the present century. 
 
 Thus he says at p. 3 of the translation made under 
 the auspices of the Cobden Club : 
 
 " The professional experts who were examined 
 before the Committee in 1844 agreed in their in- 
 formation that, in many parts of the country, plots of 
 arable land in the same township lay intermixed and 
 uninclosed, so that the lands of a rural property 
 consisted of narrow parcels lying scattered in a dis- 
 connected manner all over the extent of the village 
 district (Dorfflur). These arable parcels were for 
 the separate use of individual possessors from seed- 
 time to harvest, after which they were open and 
 common to all for pasturage. They were designated 
 ' open commonable intermixed fields,' and also 
 ' lammas lands,' because ' lammas ' is the festival 
 ' Petri ad vincula' on the 1st of August or, accord- 
 ing to the old calendar by which the reckoning was 
 then taken, the 13th of August which was the 
 period at which the common rights of pasture 
 commenced." (Nasse on the Agricultural Com- 
 
v.] DISTRIBUTION OF LAND IN ENGLAND. 19 
 
 munity of the Middle Ages, translated by Colonel 
 H. A. Ouvry, p. 3.) 
 
 Now the period from "seed-time to harvest" 
 never can have terminated in England, as a general 
 rule, so early as the 13th of August. August is 
 mentioned as harvest-time in ancient records (as in 
 the Rectitudincs Singularum Personarum, see above 
 p. 3), and is still the harvest month in England. If 
 the cattle had been turned upon the cultivated lands 
 on the 13th of that month (as Nasse imagines they 
 were), the destruction of the wheat- and other grain- 
 crops must, in ordinary years, have been the con- 
 sequence. Besides, in Anglo-Saxon times the error 
 in the length of the Julian year had not occasioned 
 (as Nasse seems to suppose) a difference of twelve 
 days between the solar year and the calendar. If 
 we take A.D. 750 as the mean year of the Saxon 
 period, the difference would be only four days. So 
 that the Saxon 1st of August would then correspond 
 not with our present 13th, but our 5th of August a 
 date when the cutting of wheat- and other grain- 
 crops has not commenced, in ordinary years, through 
 a great part of England. In point of fact, the lands 
 subject to this custom described by Nasse were not 
 arable, but meadow; and they were inclosed not 
 from " seed-time to harvest," but until the second 
 hay-crop had been mown. The lands known as 
 Lammas Lands at the present day are, I believe, 
 invariably meadow. 
 
 c 2 
 
20 HISTORICAL SKETCH OF THE [v. 
 
 If any confirmation of the fact be wanting, it may 
 be found in the circumstance, that the only probable 
 derivation of Lammas is Late-Math, late mowing. 
 Hence " Latter Lammas," a later math than Lammas, 
 became proverbial, as an equivalent to the Greek 
 Calends. 
 
 Then the hypothesis that the cultivators of inter- 
 mixed patches of land were free proprietors to whom, 
 as a community, the land belonged, seems to rest 
 upon two circumstances first, that they all culti- 
 vated the land according to the same course of 
 husbandry ; and secondly, that they were entitled 
 in common to depasture their cattle upon the land, 
 after the crop had been removed. 
 
 Now, where land is held in small portions, and 
 cultivated by the plough, the course of husbandry 
 cannot, it is obvious, conveniently vary from one plot 
 to another. The Anglo-Saxon plough was a cum- 
 brous and costly instrument. It was drawn by eight 
 oxen. The ancient measures of land owe their 
 origin to this plough. It is mentioned in Co. Lit. 5a, 
 that a bovate or oxgang is as much land as an ox 
 can cultivate, and a plough-land as much as one 
 plough can cultivate ; and it was said that eight 
 oxgangs make a plough-land (see Co. Lit. 69a). 
 
 Now a gebur, according to the Bectitudines, was to 
 have his yard-land ; and a yard, or virgata terra;, 
 varied, according to Lord Coke (Co. Lit. 5 a) from 
 ten to twenty, twenty-five or thirty acres, on an 
 
v.] DISTRIBUTION OF LAND IN ENGLAND. 21 
 
 average about one-fourth of the extent which a 
 plough could cultivate in a year, and therefore about 
 equal to two oxgangs. Hence the gebur could not 
 afford to keep a plough of his own. Several, there- 
 fore, must unite in order to maintain a plough, and 
 the gebur was, accordingly, to be supplied with two 
 oxen, so that four geburs could have a plough among 
 them, and employ it in cultivating the land which 
 they held in severalty. 
 
 The fact that the land was thus cultivated in com- 
 mon by no means proves that it was owned in 
 common. I can therefore see, in the circumstance of 
 a common cultivation, no sufficient reason for holdino- 
 that these intermixed fields were not, in numerous 
 instances, the holdings of villeins which, in process of 
 time, were converted into copyholds. 
 
 The second fact, that these intermixed fields were 
 subject to a common right of pasture, after the crop 
 had been removed, appears to be equally insufficient 
 for the purpose of establishing Mr. Nasse's conclusion. 
 Depasturing of cattle and sheep, upon small portions 
 of uninclosed land, held by several occupiers, must be 
 enjoyed, if at all, by them in common ; and the 
 exigencies of cultivation by a common plough for- 
 bade inclosures. It was for the general benefit that 
 the stubble and other pasturage should not be 
 wasted ; and the fact of a common enjoyment by 
 no means proves that the land itself was common 
 property. 
 
22 HISTORICAL SKETCH OF THE [vi. 
 
 VI. 
 
 MR. SEEBOHM. 
 
 THE preceding chapters, as well as nearly all the 
 subsequent parts of this book, were written before 
 Mr. Seebohm's work on Village Communities and the 
 English Manor appeared, and I congratulate myself 
 on the fact, that the opinions I have expressed in 
 the foregoing chapters are verified by Mr. Seebohm's 
 accurate and laborious researches. He has, besides, 
 thrown much new light on the economy of the 
 English Manor in the centuries succeeding the 
 Conquest. 
 
 He has traced with minute and extended inquiry 
 the mode in which the arable land of England was 
 then cultivated shown that the villeins ploughed 
 the land in parallel strips a furlong in length, with 
 a space or balk between adjacent strips that the 
 strips belonging to one villein, and forming with 
 their appurtenances his virgate or yard of land, were 
 scattered over the open fields, that they were held 
 not in common but separately, were indivisible, 
 
vi.] DISTRIBUTION OF LAND IN ENGLAND. 23 
 
 and descended from father to son by a species of 
 customary entail. 
 
 I do not find, however, that Mr. Seebohm has 
 attempted to answer the question, why the land was 
 cultivated in these strips. The practice can scarcely 
 have arisen through any requirement of tenure. 
 The strips generally contained half an acre. Why 
 was not the virgate of the peasant divided into 
 allotments, say of ten acres each, situate in each of 
 the three great fields, supposing the land to be 
 cultivated on the three field system ? 
 
 I venture to suggest that the answer may be 
 found in a custom, traces of which may still be 
 observed in Cambridgeshire, and which prevailed, 
 I believe, in other parts of the country. 
 
 The land, by skilful management of the plough, 
 was thrown into ridges rising gradually from the 
 sides to the middle, and having deep furrows between 
 the ridges. The traces of these ridges are still called 
 "high backs/' 
 
 Now the land was brought into this form, as it is 
 supposed on very probable grounds, with a view to 
 drainage, at a period when tile drainage did not 
 exist. Such distance as might be found by experi- 
 ence most suitable for this purpose would, of course, 
 be left between the deep furrows. 
 
 The term acre was probably applied to as much 
 land as the Saxon team of eight oxen could plough 
 in a day, and this was found to be two high backs of 
 
24 HISTORICAL SKETCH OF THE [vi. 
 
 a furlong in length. This block of land, therefore, 
 became the normal acre. The width of the one 
 strip, including the furrow was about eleven yards, 
 of the two, twenty-two yards, one-tenth of a furlong. 
 
 Mr. Eyton has pointed out that the acre was a 
 lineal, as well as a superficial measure, and equal to 
 four poles or twenty-two yards, the width of an acre 
 when its sides were, according to usual custom, a 
 furlong in length. 
 
 This remark may throw some further light on 
 Edward the Confessor's dream, of which Mr. See- 
 bohm has given an interesting account and 
 explanation. 
 
 The division of the land into strips would also, no 
 doubt, be convenient in determining the amount of 
 labour due from each ox. 
 
VIL] DISTRIBUTION OF LAND IN ENGLAND. 25 
 
 VII 
 
 THE FIRST TAXATION OF LAND. THE HIDE. 
 
 I HAVE already mentioned that the hide of land 
 appears to have been the quantity held sufficient to 
 support a freeman and his family. Familia in 
 Bede is rendered Nida. 1 An estate consisting of a 
 hide must have comprised a residence for the owner 
 and the buildings required for the cultivation of the 
 land. It is also clear, from numerous authorities, 
 that a hide contained as much arable as a plough 
 could conveniently cultivate in a year, the Saxons 
 being familiar with the greatest of all the inventions 
 which have been made in agriculture, the applica- 
 tion of animal labour to the tillage of the soil. The 
 hide contained also a small quantity of meadow, to 
 provide hay for the oxen of the plough, and it com- 
 prised sufficient pasture for the cattle and sheep, 
 which seem always to have formed an important 
 adjunct in English husbandry. Pastura ad pecu- 
 niam villce pasture for the animals of the villa 
 1 Bed. Hist. Ecc. 3, 24 ; 4, 13, 16, 19. 
 
26 HISTORICAL SKETCH OF THE [vii. 
 
 or manor is the unfailing accompaniment of the 
 arable land or terra registered in Domesday. There 
 was also, in many cases, pannage, or feeding for the 
 swine in the oak woods : the pastures and pannage 
 by no means necessarily adjoining the arable. 
 
 The extent of the hide probably varied, in some 
 degree, from one part of the country to another. 
 Mr. Eyton, after a very careful examination, esti- 
 mates the average hide in the county of Dorset at 
 240 acres. Now the virgate, or yard land, contained 
 on an average about twenty-four acres, and was esti- 
 mated, as I have mentioned, to be as much land as 
 two oxen could plough in a year. The eight oxen of 
 the Saxon plough would therefore suffice for about 
 ninety-six acres. We may suppose, then, that the 
 hide was originally divided, not very unequally, into 
 arable and pasture, the latter tending to predominate. 
 If an estate consisted of many hides, the same pro- 
 portion of arable to pasture was probably preserved. 
 
 We may describe the original hide as a"n allotment 
 containing arable for one plough, with the appropriate 
 quantity of pasture and meadow. 
 
 The first taxation of land in England took place 
 under Ethelred about the year 994, and the land was 
 assessed by the hide. The reason for adopting this 
 system is obvious. The assessors could readily 
 ascertain how many ploughs were employed in culti- 
 vating each estate, and they appear to have usually 
 assessed it accordingly. 
 
VIL] DISTRIBUTION OF LAND IN ENGLAND. 27 
 
 It would be unnecessary in most instances to take 
 the pasture into account, because its value might be 
 assumed to be much less than that of the plough 
 land, besides being generally proportionate to it in 
 extent. If the estate did not contain an exact 
 number of hides, the fractions were estimated in 
 virgates and in acres ; the virgate, no doubt, like the 
 hide, comprising, not merely the arable, but the 
 appurtenant right of pasture also. There were, as I 
 have mentioned, four virgates of arable to the plough 
 land, each virgate contributing two oxen to the 
 plough. So there were to the hide four complete 
 virgates, comprising arable land and rights of 
 pasture. It is mentioned in the Rectltudines that 
 the gebur was provided with six sheep and a cow 
 as well as two oxen. 
 
 It was usual for the owner of land to hold a 
 portion generally about one-half in hand, or in 
 dominio, the remainder being occupied by the vil- 
 leins, and cottagers with gardens and orchards. As 
 a villein generally occupied a yard of land, we may 
 conclude that there would be regularly two villeins 
 to each hide of land. In such a case, each villein 
 would contribute his two oxen to the plough, while 
 the owner would provide the remaining four. 
 
 Some confusion has arisen from the hide being 
 occasionally spoken of as equivalent to the plough- 
 land a mode of expression which was, I have no 
 doubt, adopted, in consequence of the plough-land 
 
28- HISTORICAL SKETCH OF THE [vit. 
 
 being the more valuable part of the hide, and the 
 rest of the hide being regarded merely as an 
 accessory to the plough-land or carucata. 
 
 Domesday gives the number of hides at which each 
 property was assessed at the death of King Edward 
 the Confessor, and at the date of the survey. It 
 gives also the number of carucates or ploughlands, 
 and these often exceed in number the number of 
 hides. It would appear that the extent of land under 
 the plough at the date of the original valuation had 
 been subsequently increased; and the remark is 
 sometimes added that one or two more carucates 
 could be made. 
 
 After the hide had been taken as the unit of taxa- 
 tion, it came to signify a property which was rated at 
 the value of an average hide ; and, accordingly, as Mr. 
 Eyton has shown, the assessment, in many instances, 
 was not based entirely on the extent of the land 
 assessed, but that advantages or disadvantages of 
 situation were also taken into account. A hide at 
 the date of the Domesday survey meant, therefore, 
 land assessed at the value of an average ploughland 
 with its appurtenances of pasture, &c. 
 
viii.] DISTRIBUTION OF LAND IN ENGLAND. 29 
 
 VIII. 
 
 SAXON LAW OF SUCCESSION TO LAND. 
 
 THERE is not, as far as I am aware, any distinct 
 authority respecting the law of succession to land 
 of free tenure among the Anglo-Saxons, in case 
 of intestacy. 
 
 It has been conjectured that the custom of 
 Gavelkind, which still subsists in a large part of 
 Kent, was once general throughout the kingdom. 
 
 The 7 1st and 79th laws of Cnut I are sometimes 
 quoted in support of this opinion. Now the 7 1st 
 law merely directs that the " aeht " shall be 
 divided. This word signifies cattle and swine. That 
 it does not include land appears from the 78th law, 
 which provides that he who flees from the enemy 
 shall forfeit land and aehtan. 
 
 It is true that the 79th law directs that, "if 
 a man fall before his lord," then the heirs shall 
 " shift " to the land and aehtan ; but the loose and 
 
 1 Ancient Laws and Institutes of England, edited by Thorpe, 
 vol. i. pp. 412, 420. 
 
30 HISTORICAL SKETCH OF THE [VITI. 
 
 general terms in which, the law is expressed would 
 be satisfied, by holding that the aeht are to be 
 divided among the heirs of the movables, the next 
 of kin, the land passing to the heir of the land, 
 whoever he or they might be. 
 
 Neither is the theory, that equal succession among 
 sons was the general rule, easily reconcilable with 
 the fact that, in many towns and manors, the youngest 
 son succeeded to the exclusion of his brothers. This 
 custom still exists in a country inhabited by Saxons, 
 in the northern part of Germany, Westphalia. 
 I have before me a project of a law for regulating 
 this course of descent. The custom was besides 
 emphatically termed Borough English, showing that 
 it must have existed in England before the 
 Norman Conquest. 
 
 Again, on the vast manor of West Derby, the 
 country between the Kibble and the Mersey (com- 
 prising many small manors) which belonged to 
 Edward the Confessor, there were many free tenants, 
 and the customs according to which they held their 
 lands are recorded in Domesday. It is said, " Si quis 
 terram patris mortui habere volebat XL. solidos 
 relevabat : qui nolebat et terram et omnem pecuniam 
 patris mortui rex habebat," Domesday, vol. ii., 269 b. 
 " If any one wished to have the land of his deceased 
 father he paid 40s. relief," but there is no mention 
 of more than one son succeeding. The holdings 
 were apparently indivisible. 
 
VIIL] DISTKIBUTTON OF LAND IN ENGLAND. 31 
 
 There can be little doubt that the manor, both of 
 the Norman and Saxon days, was not simply a house 
 where the landowner resided, or might reside, but a 
 homestead as well, with the buildings necessary for 
 storing agricultural produce. 
 
 The same remark will apply to the owner of a 
 single hide of some 240 acres. 
 
 The villein also must have had accommodation for 
 his two beasts of the plough and provisions during 
 the winter, as well as a house or cottage for 
 residence. 
 
 Each of these holdings, the manor, the hide, and 
 the virgate, was an agricultural unit, which could not 
 be actually divided without considerable difficulty. 
 
 At the present day, the owner of an estate will 
 not readily divide a farm of ordinary extent, as he 
 will hesitate, even if it be too large for a single 
 tenant, in view of the expense which must be 
 incurred in providing another farm-house and other 
 farm-buildings. Now the ancient manor could not 
 be divided without even greater difficulty than a 
 modern farm, and the succession of several children, 
 however equitable, would in numerous instances be 
 highly inconvenient. The difficulty of actually 
 dividing the land, might, it is true, be avoided by a 
 sale and division of the proceeds : but in the times 
 we are considering, few persons would have saved 
 money enough to purchase any considerable property. 
 In the absence of any other plausible theory to 
 
32 HISTORICAL SKETCH OF THE [vm. 
 
 account for the prevalence in Kent of the custom 
 which gave the land to all the sons equally, perhaps 
 I may be permitted to conjecture that it may have 
 proceeded from the superior wealth of this county, 
 produced by the stream of foreign commerce which 
 passed through it from purchasers of land being 
 readily found, and actual division therefore generally 
 unnecessary. 
 
 I am disposed to think, therefore, that in Saxon 
 times, actual division was the exception rather than 
 the rule that if there were sons, one would generally 
 succeed to the exclusion of the others ; the choice 
 of the successor depending, partly on fitness to 
 perform the duties attached to the land, partly on 
 the will of the superior lord : and this opinion is, 
 I think, confirmed, by the most ancient exposition of 
 the English law of succession which we possess, 
 and which is found in the treatise of Glanville ; since 
 from his statement it appears, that the rule of 
 descent of non-military lands was, in his time, 
 dependent on ancient custom. 1 
 
 1 Glanville, vii. 3. 
 
ix.] DISTRIBUTION OF LAND IN ENGLAND. 33 
 
 IX. 
 
 EFFECT OF THE NORMAN CONQUEST ON THE 
 DISTRIBUTION OF LAND. 
 
 THE statements contained in Domesday Book do 
 not, I think, lead us to believe, that the Norman 
 Conquest occasioned any very material effect on the 
 magnitude of landed estates in England. The grants 
 made to the immediate vassals of the Crown were, 
 it is true, in many instances very extensive, but 
 probably did not comprise more manors than were 
 held by the Earls or Ealdormen and other great 
 landowners previously to the battle of Hastings. 
 Mr. Furley in his interesting and learned work on 
 the Weald of Kent, vol. i., p. 233, points out that 
 before the Conquest, there were in that county 
 eleven immediate tenants of the Crown, and after 
 the Conquest there remained the same number, 
 notwithstanding the substitution of Normans for 
 Saxons in the lay fees. 
 
 But whether the Norman tenants in cainte held 
 greater possessions than the Saxon magnates or not, 
 
 D 
 
34 HISTOEICAL SKETCH OF THE [ix. 
 
 there can be little doubt that the burdens imposed 
 on the great estates were increased after the 
 Conquest. 
 
 To insure the safety of the kingdom, for which 
 such scant and unsystematic provision was made by 
 the weak Saxon executive, castles were erected at 
 important strategical points, such as Rochester, 
 Tonbridge, Reigate, Bramber, Clare, &c., as well as 
 on the borders towards Scotland and Wales ; castles 
 which became the residences and were probably 
 built at the expense of the great feudal tenants, 
 aided by forced labour ; and were garrisoned by 
 their retainers. 
 
 Not only was the defence of the kingdom 
 strengthened, and its possession assured, by the 
 erection of fortresses, but the grants made by the 
 Crown were burdened by an obligation on the 
 grantee to furnish, when called upon, a certain 
 number of knights that is, of armed horsemen, with 
 sufficient attendants and provisions for forty days, 
 during which they were bound to serve. According 
 to the number of knights for whose service the grant 
 was made, it was said to consist of so many knights' 
 fees, and to be held by knight-service. 
 
 Those who received grants comprising many 
 manors, retained some of the principal in their own 
 hands, while the rest were granted by them to their 
 followers, or remained in possession of the Saxon 
 owners. These grants also were generally subject 
 
ix.] DISTRIBUTION OF LAND IN ENGLAND. 35 
 
 to the services of knights, proportionate in number 
 to the magnitude of the grant. Some manors were 
 estimated at several knights' fees, some at one 
 knight's fee, and some at a portion of a fee. The 
 Saxon proprietor who retained his land would 
 probably not raise objections to the change of 
 tenure as regarded military service, the principal 
 difference between new and old being that he 
 now held his property on condition of yielding such 
 service to a subject, instead of directly to the state 
 as formerly. 
 
 The burdens on landed property independent of 
 military service were also increased. If the land 
 descended to an infant heir, the lord was entitled to 
 the profits during the minority of his tenant, while 
 providing for his maintenance and education, and 
 subject to the right of the widow to one-third of the 
 land for her life. And the lord was also held entitled 
 to dispose of the hand of his ward, whether male or 
 female, in marriage, and to receive any amount which 
 the relations of the other party to the match were 
 willing to pay, in order to secure it. If the ward 
 married without the lord's consent, the lord might 
 obtain, out of the ward's property, the value of the 
 marriage the amount which it was estimated might 
 have been secured by the lord as the price of his 
 consent. 
 
 It seems probable, that these fruits of the feudal 
 tenure were grasped with a strict and vigorous hand 
 
 D 2 
 
36 HISTORICAL SKETCH OF THE [ix. 
 
 from the greater vassals alone. At least the great 
 vassals do not appear to have considered, that the 
 burdens to which they were subjected, received suffi- 
 cient compensation, through their corresponding rights 
 against those who held of themselves by military 
 service. The establishment of the Court of Wards 
 and Liveries, at the Reformation, must have rendered 
 the collection of the feudal dues of the Crown, 
 from the tenants in capite, more certain and rigorous 
 than before. 
 
 We may therefore, I think, conclude that the 
 feudal system, as it existed in England, did not 
 favour the growth of the great estates, although the 
 eifect of the heavy burdens to which they were 
 regularly subject, may have been, in some cases, 
 compensated through the escheats and forfeitures by 
 which they were occasionally augmented. 
 
 In some of the larger manors, there were probably 
 tenants who held of the lord by military service 
 but this second sub-infeudation was, I think, rare. 
 The socmen, though it may be, reduced in numbers, 
 remained as tenants of the manor: they were, of 
 course, still free, and still held by some certain 
 service or payments in money or kind, and by the 
 obligation or service of attending the manor court, 
 at stated intervals. These courts do not seem to 
 have been materially interfered with at the Conquest 
 The possession of such a court continued to be held 
 in estimation, as affording an accession of dignity, as 
 
ix.] DISTRIBUTION OF LAND IN ENGLAND. 37 
 
 well as a source of profit. And an estate, on which 
 a court could not be held, either through want of 
 free tenants, or absence of prescriptive right, was 
 not considered worthy to be dignified with the name 
 of Manor. In order that an estate might be entitled 
 to the appellation, it must have "sac and soc/' words 
 which clearly indicate the Saxon origin of the juris- 
 diction. The court, however, obtained a Norman 
 name that of Court Baron the court of the lord's 
 men or free tenants. 
 
 I am not aware of any reason for supposing that 
 the condition of the peasant class, the actual tillers 
 of the soil, was affected in any sensible degree, by 
 the introduction of feudalism. That system moved 
 above their heads. To intrust serfs with arms was 
 no more a part of the Norman, than of the Saxon 
 constitution. 
 
 Among the current errors of political writers and 
 speakers respecting the ancient tenures of land, there 
 is none more common than to represent serfage as a 
 feudal institution ; although serfage has notoriously 
 existed in Russia, Egypt, and other countries where 
 feudalism was never established ; and although, in 
 countries which became feudal, the introduction of 
 feudalism had been preceded for centuries by the 
 custom of serfage. Serfage was, in fact, a purely 
 agricultural, and [feudalism, a purely military 
 institution. 
 
38 HISTORICAL SKETCH OF THE [x. 
 
 X. 
 
 NORMAN LAW OF SUCCESSION. 
 
 WHATEVER may have been the general law of the 
 country on the subject of succession to land in Saxon 
 times, the rule that the eldest son should succeed to 
 land held by military service, had speedily been 
 settled after the Norman Conquest. 
 
 During at least the first century after the Conquest, 
 feudalism in England was a reality. The vassal 
 followed his lord in war. The relation between 
 the two was so intimate, that it could not be dis- 
 solved without the consent of both. It originated in 
 the act of homage, constituting a contract, by which 
 the one expressly became the man of the other, of 
 "life and limb and worldly honour;" and which 
 carried with it an implied obligation, on the part of 
 the lord, to protect his man. Hence the vassal could 
 not alienate the land, which was the reward and 
 ictainer for his personal services, and enabled him 
 to perform them, without his lord's approval. 
 
 The vassal might, however, make a sub-infeuda- 
 
x.] DISTRIBUTION OF LAND IN ENGLAND. 39 
 
 tion of part, at least, of his land, and the sub-vassal 
 did not become the vassal of the superior lord ; he 
 did homage not to the superior lord, but to the vassal, 
 by whom the land was granted to him. It was a 
 maxim of feudal law, " vassallus mei vassalli non cst 
 mcus vassallus." 
 
 As the vassal could not transfer his land to 
 another, without his lord's consent, so neither could 
 the lord transfer his vassal's services to another, 
 without the consent of the vassal. 
 
 It is not surprising that, when the relation between 
 lord and vassal was thus strictly regulated, the right 
 of giving lands by will, which was certainly per- 
 mitted, as regards some freehold lands, by Saxon 
 law, should have been lost with respect to land held 
 by knight service. The vassal could not be per- 
 mitted to replace his own services by those of 
 a stranger, who might, possibly, be a personal enemy 
 of the lord : and the reciprocal attachment of lord and 
 vassal would also tend to give the descendants of the 
 vassal an incontestable title to succession. 
 
 These considerations do not entirely explain the 
 fact that, if the vassal left several sons, he was suc- 
 ceeded by the eldest alone. 
 
 That primogeniture was not a necessary conse- 
 quence of feudalism, we find from one of the earliest 
 treatises on feudal law, the first of the Libri fev do- 
 rum (Titles I. and VIII.) generally annexed to the 
 Corpus Juris Civilis, which expressly provides that, 
 
40 HISTORICAL SKETCH OF THE [x. 
 
 on the death of a vassal, the feud shall be divided 
 equally among his sons. 
 
 With regard to the origin of primogeniture in 
 England, it should not be forgotten that, as Eng- 
 land received the feudal institutions from the Nor- 
 mans, so the Normans had previously adopted them 
 in imitation of the French ; who had established 
 feudalism, throughout the greater part of France, in 
 the latter half of the ninth century, not long before 
 the permanent settlement of Normandy under Hollo. 
 Now in France primogeniture has prevailed in the 
 succession of feudal grants, and it is probable there- 
 fore, that in the history of that country there are to 
 be found the main causes from which the custom pro- 
 ceeded, and it appears, to have been adopted with 
 other feudal institutions by the Normans from the 
 French, and by the English after the Norman inva- 
 sion, as a part of the body of laws which they accepted 
 almost in its entirety. 1 In like manner, at rather a 
 later period, Scotland voluntarily embraced feudalism 
 in imitation of England, and also established the rule 
 of primogeniture, and with slight modifications, the 
 other English rules of succession to land. 
 
 The inconveniences always attending an actual 
 division of the land would be enhanced, when it was 
 
 1 We find that according to the fitablisscmcnts de VEclciqni<'r tl<'. 
 Normandie (Paris, 1839), p. 9, the eldest son succeeded to the 
 "fief of the hauberk" to the exclusion of his brothers but the 
 date of this rule is uncertain. 
 
x.] DISTRIBUTION OF LAND IN ENGLAND. 41 
 
 held as a retainer for military services, because the 
 services also would have to be apportioned ; and we 
 may conjecture that these difficulties assisted in 
 establishing the custom, which gave to one son the 
 land of his father; and, although the eldest might 
 be by no means the fittest to fulfil the duties of a 
 vassal, yet the advantage of having a fixed rule, the 
 probability that when the father died in youth or 
 middle age, the eldest son would be most capable of 
 bearing arms, and the prestige which has always 
 attended primogeniture seem to have been suffi- 
 cient to recommend that rule in England, as in 
 Normandy and in France, which favoured the eldest 
 son, with respect to land held by knight service. 
 
 Two centuries after the Conquest we find the law 
 of primogeniture applied to freehold lands, as well 
 those held by socage as by military tenure, with 
 scarcely any exception beyond the bounds of Kent, 
 and certain boroughs, in which equal division and 
 succession of the youngest prevailed respectively. 
 The latter tenure also remained, as regarded the 
 lands of villeins, in many manors, particularly in those 
 of Sussex. Although, however, the actual division of 
 land and services must have always been attended 
 with difficulty, especially in early times, this incon- 
 venience did not prevent, in England, the succession 
 of daughters equally. The succession of females 
 probably formed no part of the most ancient 
 form of feudalism, but was introduced when the 
 
42 HISTORICAL SKETCH OF THE [x. 
 
 fee was ceasing to be a retainer, and becoming simply 
 the property of the vassal, subject to certain financial 
 rights of his lord ; whilst at this time, the death of a 
 vassal leaving male issue being an event much more 
 usual, than the death of a vassal leaving only several 
 daughters, the succession of the eldest son had been 
 too firmly established, by custom, to be altered by 
 considerations of equity, when the rule with regard 
 to daughters was settled. 
 
 It appears, I think, from these considerations, that 
 the introduction of the feudal system must have had 
 a tendency to preserve large estates, by discouraging 
 alienation inter vivos, forbidding alienation by will, 
 and, in some instances, giving to one son lands 
 which, by custom, might have been divisible 
 among several. 
 
 Much interesting information on the subject of 
 primogeniture may be found in two essays by C. S. 
 Kenny and P. M. Laurence, Cambridge, 1878, which 
 divided the Yorke prize. 
 
XT.] DISTEIBUTION OF LAND IN ENGLAND. 43 
 
 XL 
 
 STRICT ENTAILS THE STATUTE " DE DONIS 
 CONDITIONALIBUS." 
 
 No very remarkable change was made in laws 
 directly affecting land in England, during the 
 two centuries immediately succeeding the Norman 
 Conquest. Magna Carta defined and regulated, 
 without materially altering, the feudal tenure, and 
 promised to freemen, without distinction, the pro- 
 tection of the law against arbitrary proceedings by 
 the Crown. Nor were the villeins passed over with 
 complete neglect ; a clause, the 20th chapter of John's 
 charter, provided that if the villein were amerced, 
 his wainage should be saved. The Provisions of 
 Merton, twenty years later than Magna Carta, 
 empowered the owners of manors to appropriate a 
 portion of their waste lands, provided that enough 
 pasture was left for the use of their freehold tenants, 
 but the statute is silent respecting the villeins, though 
 now rising into copyholders. 
 
 Great changes however, were in course of prepara- 
 
44 HISTORICAL SKETCH OF THE [xr. 
 
 tion. During the long reign of Henry III. the 
 country, on the whole, was prosperous, and increased 
 in wealth. Notwithstanding the loud complaints 
 respecting the exactions of Rome, stately cathedrals 
 of exquisite beauty arose throughout England; and, 
 in her social condition, a new order of men was in 
 course of formation, destined to become a power in 
 the state. Since the seat of the great court for 
 determining private suits, Common Pleas, had been 
 rendered stationary by Magna Carta, and had been 
 established in the hall of the Palace at Westminster, 
 many practitioners in that court had become learned 
 in the customs of the realm, and, to a certain extent, 
 acquainted with the laws of Rome. The servientes 
 ad legem began to rival in credit the servientes ad 
 arma. The tendency to place greater reliance upon 
 law, and to favour those who were engaged in 
 administering it, became manifest in England, and, 
 we may add, about the same time, in France also. 
 
 It was in the year 1285, the 13th of Edward I. that 
 the famous statute DC Donis Conditionalibus, which 
 gave to all owners of freehold land in England, the 
 power of strictly entailing it, was passed. It was by 
 no means a solitary enactment like Magna Carta, or 
 the Provisions of Merton, but formed part of the 
 great body of remedial laws passed in the reign of 
 Edward I., which obtained for himself the not 
 wholly inappropriate designation of the English 
 Justinian. No one, I think, can peruse this body 
 
XL] 'DISTRIBUTION OF LAND IN ENGLAND. 45 
 
 of legislation, without being convinced that it was 
 the work of men well versed in the laws as they 
 then existed : not the result of a sudden effort, but 
 of continuous labour and mature deliberation, and 
 that these laws had for their authors the learned 
 Serjeants of Westminster Hall. 
 
 There is a class of writers on law, especially on 
 laws relating to land, who attribute various legislative 
 acts to profound political designs, now of the nobles, 
 now of the sovereign ; and accordingly allege that 
 the statute De Donis was the work of the nobility, 
 intent on increasing the power of their order. But 
 even without recalling the just maxim of Napoleon, 
 that in politics the present alone is regarded, the 
 notion that the law of entail was framed by the 
 peers, with such a political purpose as I have 
 mentioned, is singularly wanting in probability. The 
 barons had not only been discredited, by the failure 
 of their attempt to govern the country, by means of 
 a ministry or committee selected by themselves from 
 their own order, but their power had been crushed, 
 for the time, by Prince Edward at Evesham, where 
 their great military and political leader Simon de 
 Montfort was slain. On the demise of Henry Til. 
 seven years afterwards, Prince Edward, a cautious 
 man, felt his power so assured, that he did not hasten 
 to England in order to take possession of the Crown, 
 but spent two years in Italy and France, on his 
 homeward journey from the Holy Land. After his 
 
46 HISTORICAL SKETCH OF THE [XL 
 
 return, and before the thirteenth year of his reign, 
 when the statute De Donis was passed, he had subdued 
 Llewellyn, and permanently annexed North Wales 
 to the English Crown. Yet it was by this monarch 
 and at this time, according to the opinion I have 
 mentioned, that the statute De JJonis was passed at 
 the instance of the nobility, in order to depress the 
 power of the Crown; and we are asked to believe 
 that the King, a man of wide experience and un- 
 doubted sagacity, was outwitted or overawed by an 
 illiterate and disheartened body of barons. 
 
 If we look at the preamble of the statute, and the 
 preamble of a statute is generally the best key to 
 the intention of its authors, we shall see it stated 
 that their object was to prevent what must, I think, 
 be admitted to have been a grievance. 
 
 Suppose that a man, on the marriage of his 
 daughter, gave a portion of his land to her husband 
 and the heirs of his body by the wife. Then if the 
 wife had issue, the husband might as the law stood 
 before the statute was passed, alienate the land 
 leaving the issue unprovided for. 
 
 If no alienation took place, the land on the death 
 of the donee would descend to the issue of the 
 marriage like an ordinary estate in fee simple. But, 
 if the donee died without leaving issue, or if, after 
 his decease, his issue failed, and the land had not 
 been alienated, the donor or his heir would have 
 the land again. 
 
 
XL] DISTRIBUTION OF LAND IN ENGLAND. 47 
 
 If, on the other hand, after issue born the donee 
 alienated the land, he, as we have seen, disinherited 
 his heirs, and also deprived the donor of his chance 
 of reversion. This as the statute says, "to the 
 giver seemeth hard," and it therefore enacted that, 
 for the future, the will of the giver should be 
 observed according to the form of the gift, and that 
 they, to whom the land was given, should have 
 no power to alienate it. It seems to me that the 
 hardship thus referred to in the preamble of the 
 statute De Donis, was sufficiently real to account for 
 its enactment, without attributing any deep political 
 designs to its authors. 
 
4S HISTORICAL SKETCH OF THE [xrr. 
 
 XII. 
 EFFECTS OF STRICT ENTAILS. 
 
 THE evils arising from strict entails, vividly 
 depicted by modern writers, appear to have escaped 
 the observation of contemporaries. They do not 
 allege that agriculture retrograded, or that the con- 
 dition of the rural population deteriorated, under 
 the operation of the statute De Donis. 
 
 It was during the period in which the statute was 
 in full force, that, in the great forest of the Weald 
 ("according to Mr. Furley, the historian of the Weald 
 of Kent) extensive clearings were made, and an 
 industrious agricultural population took the place 
 of the herds of swine which, from the most remote 
 ages, had been the principal inhabitants. 
 
 Serfdom was rapidly disappearing before the 
 advance of wealth and prosperity. The labourers 
 began to claim freedom as a right, and strove, not 
 always without success, to break the antiquated 
 links, which still bound some of their number to 
 the soil. 
 
xii.] DISTRIBUTION OF LAND IN ENGLAND. 4 .9 
 
 With reference to the general state of England 
 in the fourteenth century, during the whole of which 
 the statute De Donis remained in almost entirely 
 unimpaired force, Lord Macaulay says : 
 
 " Every yeoman from Kent to Northumberland 
 valued himself as one of a race born to victory and 
 dominion, and looked down with scorn on the nation 
 before which his ancestors had trembled. . . . France 
 had no infantry that could face the English bows 
 and bills. . . . Nor were the arts of peace neglected 
 by our fathers during this stirring period. While 
 France was wasted by war, until she at length found 
 in her own desolation a miserable defence against 
 invaders, the English gathered in their harvests, 
 adorned their cities, pleaded, traded, and studied in 
 security." Macaulay's History of England, i. p. 18. 
 
 The effects of the statute De Donis upon the 
 distribution of land, have> I think, been greatly 
 exaggerated. That very large estates existed in 
 England long before the statute was passed has, in 
 the preceding pages, been abundantly demonstrated. 
 Its effects in preventing division have been dwelt 
 upon, whilst its operation in checking accumulation 
 has been almost wholly overlooked. The main 
 causes of accumulation in ancient, as in modern 
 times, will be found in the marriage of heirs with 
 heiresses, and the investment in land of fortunes 
 
 E 
 
50 HISTORICAL SKETCH OF THE [xii. 
 
 amassed by commerce : the mere landowner, whether 
 his estate was entailed or not, being rarely in a 
 condition to become a purchaser. 
 
 Now the statute in many instances opposed an 
 effectual bar to accumulation by either of these 
 modes. If land on being entailed were given, as it 
 often, perhaps generally, was given, to a man and the 
 heirs male of his body, it could not pass, so long as 
 a male descendant existed, to any female, and so 
 long therefore, the union by marriage of such an 
 estate with another also entailed on male issue 
 became, while such issue survived, impossible. Just 
 as two kingdoms, in which the Salic Law prevails, 
 can never become consolidated by marriage. In the 
 same way the rich citizen of London, of Hull, or 
 Bristol, bent upon purchasing land enough for the 
 founder of a county family, must often have been 
 checked in the attempt, by coming upon some 
 Naboth's vineyard, protected from annexation by the 
 statute De Donis. 
 
 For the origin of large estate we must therefore, 
 as has already been shown, look to a period long 
 anterior to this statute. 
 
 That the statute did produce evils and incon- 
 veniences cannot be doubted, since, otherwise, the 
 judges of the Common Pleas would not have sanc- 
 tioned the transparent collusion, by which the heir 
 in tail was deprived of his legal right. What these 
 
x:i.] DISTRIBUTION OF LAND IN ENGLAND. 51 
 
 evils and inconveniences were, we may learn from 
 Lord Coke, whose statements rest upon recorded 
 facts, and not like the assertions of many modern 
 writers, on preconceived opinions. 
 
 Lord Coke observes, " When all estates were fee 
 simple, then were purchasers sure of their purchases, 
 farmers of their leases, creditors of their debts, the 
 king and lords had their escheats, forfeitures, ward- 
 ships and other profits of their seignories : and for 
 this and other like cases, by the wisdom of the 
 Common Law, all estates of inheritance were fee 
 simple ; and what contentions and mischiefs have 
 crept into the quiet of the law by these fettered 
 inheritances, daily experience teaches us." Co. 
 Lit. 19&. 
 
 The danger to purchasers with which Lord Coke 
 heads his indictment against entails, appears to have 
 arisen in manner such as this. The descent even of 
 an unentailed estate from father to son, for some 
 generations, was, in his day, of no rare occurrence. 
 The purchaser of an estate which had so descended, 
 might believe that he was buying a fee simple, while 
 in fact, an ancient deed entailing the land in the 
 course of descent, which had alread}^ taken place, 
 had been executed and forgotten. On the existence 
 of the deed being discovered, the heir in tail of the 
 vendor might insist, that in compliance with the 
 statute, the will of the donors " according to the form 
 
52 HISTORICAL SKETCH OF THE [xii. 
 
 of the gift/' should be observed, and the purchaser 
 would be without remedy, except perhaps under 
 a clause of " warranty." Creditors by securities 
 binding the heir might be defeated in the same 
 manner, and the Crown and other lords might be 
 disappointed, in rare cases, of forfeiture and escheats 
 for treason or felony. 
 
 That these were the real evils which arose from the 
 statute, and that it did not produce the pernicious 
 consequences either to the nobility, the esquires or 
 the other freeholders of England which are fre- 
 quently attributed to it, we have thus given reason 
 to believe by the testimony of Lord Coke and Lord 
 Macaulay. 
 
 Scotland had no statute corresponding to our 
 statute De Donis, but attempts were made in that 
 country to establish strict entails by clauses of 
 " irritancy and resolution," purporting to make void 
 alienation, but the validity of such clauses had by 
 no means been admitted before the act of 1685, 
 c. 22, which expressly recognises -their authority, and 
 the absolute right of heirs to succeed according to 
 the disposition of the entailer, Erskine Inst., Book 
 iii. Tit. viii. 25, and this law with no very important 
 modifications remained in force until 1848, when by 
 11 and 12 Vic., c. 36 1, tenant in tail in possession 
 was empowered to acquire the fee simple, if born 
 after the deed of entail was executed, at his own 
 
xii.] DISTRIBUTION OF LAND IN ENGLAND. 53 
 
 discretion, or if born before the execution, with the 
 consent of the next heir of entail. 
 
 It is worthy of note, that the period during 
 which the law permitted the establishment of strict 
 entails in Scotland, coincides with that during 
 which Scottish agriculture underwent the greatest 
 improvements. 
 
54 HISTORICAL SKETCH OF THE [xm. 
 
 XIII. 
 
 RELAXATION OF STRICT ENTAILS COMMON 
 RECOVERIES. 
 
 I HAVE already stated that the statute De Donis 
 remained in nearly unimpaired force during the 
 fourteenth century. Even if the owner of entailed 
 land sold it, with a warranty that he held in fee 
 simple, his heir in tail might claim the land by 
 force of the entail, notwithstanding that the obliga- 
 tion of the warranty would, according to the ordinary 
 rules of law, by descending upon him, preclude him 
 from asserting his right. This was the case of a lineal 
 warranty ; but if the warranty were collateral, if the 
 warranty did not, and could not, descend from or 
 through the ancestor from whom the entailed land 
 descended, then the heir in tail was barred. 
 
 The cases in which a collateral warranty existed 
 must, however, have been rare, and owners of entail ml 
 lands, with the view of obtaining complete control 
 over them, had recourse to this expedient. The owner 
 
XTII.] DISTRIBUTION OF LAND IN ENGLAND. 55 
 
 instructed a friend to bring an action against himself, 
 in due form, in the Court of Common Pleas, seeking 
 that the right to the land might be adjudged to the 
 complainant. Simply to have allowed judgment to 
 go by default, a mere cessio in jure, would not have 
 bound the heir of the owner. The owner therefore 
 alleged that some other person had warranted the 
 title of the land to him (the owner), and that person 
 was admitted to defend the action in place of the 
 owner, according to the usual course of law, as the 
 person on whom the loss would ultimately fall, if the 
 plaintiff succeeded in bis suit. At the hearing the 
 alleged warrantor made default, and judgment was 
 given that the plaintiff should recover the land in 
 dispute, and the original defendant should have an 
 equivalent out of the lands of the warrantor. 
 
 If the defendant in the collusive action died, and 
 his heir brought his action founded on the gift in tail, 
 he was met by the objection, that his ancestor had 
 received an equivalent for the land entailed, which 
 equivalent must have descended to the present 
 claimant, as heir to his ancestor. 
 
 It is most probable that this decision first took 
 place in a hostile suit, in which the heir in tail was 
 really in possession of the equivalent ; and that some 
 astute lawyer, seeing that the court assumed, with- 
 out proof, that the heir had inherited the equivalent 
 for which his ancestor had obtained judgment, per- 
 ceived that a door was open for escaping from the 
 
56 HISTORICAL SKETCH OF THE [XTTT. 
 
 trammels of an entail, by means of a pretended 
 warranty and judgment thereupon. 
 
 Taltarum's Case, decided by the Court of Common 
 Pleas, in the 12 Ed. IV., 1472, is considered to have 
 established the efficiency of such a proceeding in 
 barring an estate tail against the heir. The language 
 of the pleadings, 1 however, leads me to believe that 
 the experiment was not a novel one, and that the 
 defendant, claiming under the entail, relied on some 
 facts which distinguished his case from the simple 
 one I have described, rather than on the fact of the 
 recovery being feigned and collusive. 
 
 As, however, this latter defence was raised by the 
 pleadings, the judgment in favour of the plaintiff 
 showed that the defence was untenable, and thus 
 established the validity of a recovery of entailed land, 
 where the ancestor of the plaintiff had also obtained 
 a judgment for recovery of an equivalent against a 
 warrantor, notwithstanding that the whole proceeding 
 was notoriously feigned and collusive. It is probable 
 that the Court was influenced, among other considera- 
 tions, by the fear of shaking titles, which depended 
 on admitting the validity of such recoveries. 
 
 The Court was also in all probability willing to 
 favour a proceeding for converting an estate tail into 
 an estate in fee simple, for the sake of diminishing 
 the evils which were attendant on the former, and 
 
 1 See Digby's History of the Law of Real Property, p. 220, for a 
 translation of the pleadings. 
 
XTTI.] DISTRIBUTION OF LAND IN ENGLAND. 57 
 
 were afterwards pointed out by Lord Coke, as I 
 have already mentioned. 
 
 A purchaser for a valuable consideration is said to 
 be a favourite in a Court of Equity : he is in fact a 
 favourite in every Court of Justice. That a man, who 
 has given convincing proof of his good faith by paying 
 his money, in order to obtain some stipulated advan- 
 tage, has a strong claim to be protected in his pur- 
 chases is unquestionable, and every court would lean 
 in his favour, when the contest lies between him and 
 a person claiming under an ancient gift, of which the 
 purchaser has had no notice. 
 
 I do not, however, discover any ground, for attri- 
 buting to the judges of the Common Pleas, the 
 opinions expressed by modern writers, with regard to 
 the injurious effects of entails on the cultivation of 
 the soil, and the well-being of the people. 
 
58 HISTOEICAL SKETCH OF THE [XTV. 
 
 XIV. 
 
 HENRY VII. AND HIS NOBLES THE STATUTE OF 
 FINES. 
 
 THE Statute of Fines, 4 Henry VII., c. 24 (1487), 
 was made about fifteen years after Taltarum's case 
 had established the right of the tenant in possession 
 of entailed land to dispose of it absolutely. 
 
 This statute has afforded occasion of comment to 
 those who discover deep political designs in the 
 authors of every change in the law relating to land. 
 
 They allege that Henry VII., being a politic and 
 sagacious prince, obtained the enactment with the 
 view of depressing the power of his nobility ; 
 although the objections to such a theory are neither 
 few nor inconsiderable. 
 
 The first objection is that the statute was really 
 not the work of Henry VII. or his advisers, but of 
 his predecessor Richard III., a prince whose hands 
 were too full of pressing business, during his short 
 reign, to leave him leisure for plans which could 
 ripen, if at all, only in the distant future. The 
 
xiv.] DISTRIBUTION OF LAND IN ENGLAND. 59 
 
 statute of Henry VII. differs in no essential particu- 
 lar from that of 1 Richard III., c. 7. The statute 
 of Henry VII. merely relaxes the provisions for 
 ensuring the publicity of a fine contained in the 
 earlier statute. 
 
 There is another objection scarcely less fatal than 
 the last to the assumption of a deep political design 
 in the framers of the statute, that the design, if it 
 existed, was so clumsily carried into effect by the 
 words of the statute, that it became necessary about 
 fifty years afterwards to pass another statute, the 
 32 Henry VIIL, c. 36 (1540), to declare that the 
 4 Henry VII. applied to entailed estates at all. The 
 4th of Henry VII. was a general statute intended 
 to restore (with modifications) the ancient rule of 
 law, which made a fine or compromise of a suit con- 
 cerning land in the King's Court, a bar to the suit 
 of any one who did not claim the land comprised in 
 the fine, within a certain period after the fine taking 
 place. There was a saving clause in the statute of 
 Henry VII., and most persons now reading it would, 
 I think, conclude that the right of an heir in tail 
 was within the saving clause, and therefore not 
 intended to be affected by the general enactment. 
 
 There is also the third objection, that the law had 
 already admitted the right of the tenant in tail in 
 possession to acquire an absolute right to his land, by 
 means of a common recovery, and further, that the 
 common recovery was more effectual than the fine, 
 
GO HISTORICAL SKETCH OF THE [xiv. 
 
 because the former barred not merely the issue in 
 tail, but all subsequent estates also, including that of 
 the reversioner ; whilst the Statute of Fines, 4 Henry 
 VII., even after it had been explained by the statute 
 of Henry VIII., barred the issue only, and left 
 claimants whose estates were to take effect, after 
 failure of issue of the tenant in tail, to assert their 
 rights whenever they might accrue. It is true that 
 a fine might be resorted to by tenant in tail in 
 remainder, whilst a recovery could be effectively 
 suffered by tenant in tail in possession only. 
 
xv.] DISTRIBUTION OF LAND IN ENGLAND. 61 
 
 XV. 
 
 STRICT SETTLEMENTS. 
 
 THE decision of the Court of Common Pleas in the 
 year 1472, established, as I have pointed out, that 
 any person entitled to the possession of entailed land 
 could become, at his pleasure, the absolute owner, 
 by means of a friendly suit. The decision applied 
 no less to the lands of peers than to those of com- 
 moners. Indeed, notwithstanding the rooted popular 
 belief that estates of peers are, in some manner, 
 connected with their titles, in order that their dignity 
 may be maintained, the law has recognised no such 
 distinction. Where, however, the reversion of landed 
 property after the extinction of issue on whom the 
 land was entailed, belonged to the Crown, the entail 
 could not be barred by a common recovery, 34 & 35 
 Hen. VIII. c. 20, s. 2. Estates so circumstanced 
 were and are not numerous; and as to the great mass 
 of landed property in England, the power of strictly 
 entailing it, conferred by the Statute de Donis, 
 
62 HISTOEICAL SKETCH OF THE fxv. 
 
 ceased in the fifteenth century, and has never since 
 been revived. A few estates given for eminent public 
 services, such as "Woodstock and Strathfieldsaye, 
 have, it is true, been strictly entailed, but this has 
 been effected by special Acts of Parliament, in 
 contravention of the general law of the land. 
 
 Soon after strict entails had thus been virtually 
 abolished, the practice of settling lands, for the 
 limited period which the rules of law permitted, 
 was introduced. The owner of an estate desirous, 
 for example, of making provision, on his son's 
 marriage, for the son and his family, instead of 
 granting the land to the son and the heirs male of 
 the son's body, would give it to the son for his life 
 only, in order to obviate the possibility of the son 
 obtaining the power, through a recovery, of alienating 
 the land absolutely. And the donor would provide 
 by the settlement that, after the son's decease, the 
 land should go to the son's eldest son and the heirs 
 of his body. And in case of failure of the eldest 
 son's issue, that the land should pass to the second 
 son and the heirs of his body, with similar provisions 
 for other sons according to seniority, or in any other 
 order, and with any omissions which the settler might 
 think proper to make. The security obtained by 
 such a settlement that the land would long remain 
 in the same family, fell far short of that which could 
 be gained before the validity of recoveries to bar 
 an estate tail had been established ; for if the son to 
 
xv.] DISTRIBUTION OF LAND IN ENGLAND. 63 
 
 whom the first estate in tail had been given 
 (generally, of course, the eldest) attained twenty- 
 one, then with the consent of his father, or of his 
 own authority supposing the father to have died, a 
 recovery might be suffered, the estate sold, and the 
 other subsequent interests given by the settlement 
 entirely defeated. As a son is usually born within 
 three or four years after a marriage, a settlement on 
 marriage generally becomes liable to be set aside 
 within some five-and-twenty years after its execution. 
 In the rare case of the eldest son marrying and dying 
 in infancy, and leaving an infant heir, the liability 
 would, no doubt, be deferred till that heir attained 
 twenty-one. Marriage settlements of land have 
 remained subject to the liabilities I have men- 
 tioned ever since their introduction, and so remain 
 at the present day. 
 
 We sometimes hear it said that the "law of 
 settlement" should be abolished, asif there were some 
 law in existence which favoured settlements of land. 
 No such law can, however, be pointed out, although 
 there are rules of law, by which the power of making 
 settlements is restrained within the narrow limits 
 which I have mentioned, and which will be more 
 fully stated below. 
 
 It cannot have been long after the liability of 
 estates tail to alienation had been established, 
 when settlements, nearly in the form I have ex- 
 plained and now in use, were introduced. The 
 
64 HISTORICAL SKETCH OF THE [xv. 
 
 settlement, the provisions of which were the subject 
 of litigation in Chudleigh's case (1 Co. Rep. 113) 
 was made in the 3rd and 4th Ph. and Mary 
 (1556), and contained limitations of the nature I 
 have explained, and there is no reason for holding 
 that this was by any means the first settlement of 
 the kind. A little research would, I believe, bring 
 earlier instances to light. Settlements of land such 
 as I have described, strict settlements as they are 
 called, possessed manifest advantages over the grants 
 of estates tail which they had superseded. No pro- 
 vision for younger children was compatible with the 
 estate tail, unless we admit that the right of a widow 
 to dower, the right, that is, to one-third of the land for 
 her life, frequently, no doubt, applied to their support, 
 could be so considered. In addition to provision for 
 younger children a settlement can be moulded entirely 
 at the pleasure of the settler ; it may prefer a younger 
 son to an elder, a daughter to a son, it may give 
 to younger children any part or the whole of the 
 estate. In short, the law, in accordance with the 
 genius of the English people, leaves the settler 
 absolutely unfettered with regard to the disposition 
 of his property ; restraining him only by forbidding 
 provisions, which would give an interest in the pro- 
 erty to an unborn person, if that person would 
 not necessarily take the interest during the life of a 
 person in existence at the time of the settlement, or 
 within a period of twenty-one years and a few months 
 
XY.] DISTRIBUTION OF LAND IN ENGLAND. 65 
 
 from the death of such person. This is " the rule 
 against perpetuities" to which the Courts have 
 strictly adhered, and which applies equally to land 
 and to personal property. The ordinary strict 
 settlement of land, as will be seen from the example 
 I have given, by no means takes advantage of the 
 utmost limits of the law. 
 
66 HISTORICAL SKETCH OF THE [xvi. 
 
 XVI. 
 
 EFFECT OF STRICT SETTLEMENTS OF LAND 
 MR. THOROLD ROGERS. 
 
 IN a valuable work on agriculture and prices in 
 the middle ages, the following impassioned and 
 eloquent passage occurs : " No English labourer in 
 his most sanguine dreams has the vista of occupying, 
 still less of possessing, land. He cannot rise in his 
 calling. He cannot cherish any ambition, and he is, 
 in consequence, dull and brutish, reckless and stupid. 
 
 " We owe the fact that the great English nation 
 is tenant at will to a few thousand landowners to 
 that device of evil times, a strict settlement. We 
 are informed that the machinery which has gradually 
 changed the whole character of the rural population 
 of England, was invented by the subtlety of two 
 lawyers of the Restoration, Palmer and Bridgman. 
 As there have been men whose genius has bestowed 
 lasting benefits on mankind, so there have been, 
 from time to time, exhibitions of perverse intellectual 
 
xvi.] DISTRIBUTION OF LAND IN ENGLAND 67 
 
 activity, whose malignant influence has inflicted per- 
 manent evils. It may be that the mischief is too 
 widespread for remedial measures. But no English- 
 man who has the courage to forecast the destinies of 
 his country can doubt that its greatest danger lies in 
 the present alienation of the people from the soil, 
 and in the future exodus of a discontented peasantry." l 
 
 Although well accustomed to the somewhat ex- 
 aggerated terms which often characterise attacks on 
 the English law of real property, I had considerable 
 difficulty in discovering the particular mischief 
 floating in the mind of the author, against which 
 the above pathetic passage was directed. 
 
 It is well known that strict settlements of land 
 were, as I have shown above, introduced more than 
 a century before the Restoration, and could not, 
 therefore, have been, as supposed by the writer, the 
 invention of lawyers of that period ; and as the evil 
 results which moved his indignation manifested 
 themselves, according to his statement, only through 
 the malignant influence of such lawyers, it can- 
 not be supposed that strict settlements produced 
 these evils. As to the mode in which strict settle- 
 ments prevented the labourer from obtaining land 
 (the effect which the author attributes to them), he is 
 entirely silent. He simply assumes the fact. Does 
 he wish it to be understood that the labourer could 
 
 1 History of Agriculture and Prices in England, by James 
 E. Thorold Kogers, M.A. Oxford, vol. i. p. 693. 
 
 F 2 
 
68 HISTORICAL SKETCH OF THE [xvi. 
 
 not obtain land, because there was no land in the 
 market in consequence of the introduction of settle- 
 ments ? But settlements still exist, and yet it is 
 notorious that abundance of land is always to be 
 purchased, at a price which does not exceed what 
 may be called the natural level, the price of Govern- 
 ment securities yielding the same annual income. 
 Nor can it, I believe, be shown that it was formerly 
 more difficult to purchase land than it is at present. 
 The delusion that " the English nation is tenant at 
 will to a few thousand landowners " was dispelled by 
 Lord Derby's Domesday HooJc, showing that their 
 number is about a million. 
 
 The key to the passage I have quoted will, I 
 think, be found in the second volume of Blackstone's 
 Commentaries, p. 165, in Kerr, third edition. 
 
 Speaking of strict settlements of land in the 
 form which they first assumed, Blackstone says: 
 " In these cases, therefore, it was necessary to have 
 trustees appointed to preserve the contingent 
 remainders " (the estates granted to the first and 
 other sons in the example I have given), " in whom 
 there was vested an estate in remainder for the life 
 of the tenant for life, to commence when his estate 
 determined. If, therefore, his estate for life deter- 
 mined otherwise than by his death, the estate of the 
 trustees for the term of his natural life took effect, 
 and became a particular estate in possession, sufficient 
 to support the remainders depending in contingency. 
 
xvi.] DISTRIBUTION OF LAND IN ENGLAND. 69 
 
 This method is said to have been invented by Sir 
 Orlando Bridgman, Sir Geoffrey Palmer, and other 
 eminent counsel, who betook themselves to con- 
 veyancing during the time of the civil wars, in order 
 to secure in family settlements a provision for the 
 future children of an intended marriage, who, before, 
 were usually left to the mercy of a particular tenant 
 for life ; and when, after the Restoration, those gen- 
 tlemen came to fill the first offices of the law, they 
 supported their invention within reasonable and 
 proper bounds, and introduced it into general use." 
 
 It appears, therefore, that Bridgman and Palmer 
 merely introduced a clause into some strict settle- 
 ments, making them somewhat more strict than they 
 otherwise would have been, and that these perversely 
 intellectual lawyers were far removed from being the 
 inventors of strict settlements. 
 
 I propose to consider in the next chapter whether 
 the invention of trustees to preserve contingent 
 remainders can have produced the disastrous effects 
 attributed to the perverse ingenuity of Palmer and 
 Bridgman by Professor Rogers. 
 
70 HISTORICAL SKETCH OF THE [XVIL 
 
 XVII. 
 
 TRUSTEES TO PRESERVE CONTINGENT REMAINDERS. 
 
 EVERY one conversant with the working of settle- 
 ments is aware, that the introduction of trustees to 
 preserve contingent remainders can have had any 
 effect in rare and exceptional instances only. But 
 the vast importance attached by so able and learned 
 a writer as Mr. Rogers to the change in the practice 
 of conveyances, which took place at the Restoration, 
 makes it desirable, that the nature of this change 
 and the extent of its operation should be clearly 
 and explicitly stated. 
 
 When land was given to one for life, with 
 remainder after his decease to his sons and their 
 issue successively in the usual form, the interests 
 given to the sons were, previously to the birth of a 
 son, said to be contingent, because they could have 
 no immediate effect, in consequence of there then 
 being no one to take them. In such circumstances 
 it was possible, that the father, who had the life 
 interest, might acquire, by purchase or descent, 
 
xvii.] DISTRIBUTION OF LAND IN ENGLAND. 71 
 
 the absolute reversionary right to the land, or rever- 
 sion in fee simple, as it is termed, expectant on the 
 determination or failure of the intermediate interests 
 given to his children and the heirs of their bodies. 
 In such a case, if no son had been born or was living, 
 there would be no actual or vested interest, no inter- 
 est which had an existing owner, intervening between 
 the life interest given by the settlement and the 
 ultimate reversion afterwards acquired by the owner 
 of the life interest. And it is a rule of law, adopted 
 with a view to simplification, that if the same person 
 has two interests in the same land, one to commence 
 when the other terminates, and the second in time 
 is of a nature as high as the first or superior to it, 
 then the two will coalesce, the first being merged or 
 drowned in the second, the commencement of which 
 will of course be accelerated. The unborn children 
 of a marriage, upon the celebration of which a strict 
 settlement of land had been made, were therefore 
 liable to be deprived of the benefit intended for 
 them, if no issue entitled under the settlement were 
 in existence, and the husband, the tenant for life, 
 acquired the ultimate property, the reversion or 
 remainder in fee of the land, when the life estate 
 would be merged in the fee ; and although a child 
 might afterwards come into existence, who would 
 have been entitled to an intermediate interest under 
 the settlement if no merger had taken place, the 
 law would not undo, on his account, what it had 
 
72 HISTORICAL SKETCH OF THE [xvn. 
 
 already done, but would treat the interest of the 
 child as non-existent. This is the main, if not the 
 only chance of a settled estate becoming alienable, 
 which is guarded against by the invention of Palmer 
 and Bridgman. 
 
 Now in the first place the cases would be few in 
 which the husband could acquire, before there was a 
 son issue of the marriage, the remainder expectant on 
 the determination of the provision for his children 
 and their descendants ; and the cases must have 
 been fewer still in which an English gentleman, 
 while any hope of issue remained, would take advan- 
 tage of a legal technicality, for the sake of depriving 
 his own progeny of the benefits provided for them by 
 a solemn compact to which he had, as was usually 
 the case, been himself a party, or under which, if not 
 a party to it, he had taken a substantial benefit. 
 
 But not only did these difficulties stand in the 
 way of defeating a strict settlement, but the danger 
 of its being thus set aside might be guarded against, 
 even before the days of Bridgman and Palmer, by 
 placing the property in the hands of trustees. To 
 suppose, therefore, that the introduction of a device 
 to prevent contingent remainders from the danger of 
 being thus defeated a danger which, as we have 
 seen, could exist in rare instances only produced the 
 deterioration in the position of the English labourer 
 alleged to have taken place by Mr. Rogers, appears 
 to me a conclusion for which even a show of proba- 
 
XVIL] DISTRIBUTION OF LAND JN ENGLAND. 73 
 
 bility is entirely wanting ; and that if the English 
 labourer has indeed, since the Kestoration, as Pro- 
 fessor Rogers asserts, become " brutish, reckless, and 
 stupid," an assertion, however, which I venture to 
 controvert the cause must be sought elsewhere 
 than in the invention of strict settlements of land, 
 or of trustees to preserve contingent remainders. 
 
74 HISTORICAL SKETCH OF THE [xvm. 
 
 XVIII. 
 
 POWERS OF SALE. 
 
 THE invention of trustees to preserve contingent 
 remainders was followed by the introduction into 
 settlements of provisions, which enabled trustees to 
 sell the estate (subject generally to the consent of 
 the tenant for life), and to invest the moneys arising 
 from the sale in the purchase of other lands, to be 
 settled with limitations the same as those with which 
 the estate sold had been settled. Such powers were 
 found convenient, especially where some circumstance 
 had occurred rendering a settled estate less eligible 
 for residence, or had increased its value as a site 
 for building. These powers, however, occasionally 
 favoured accumulation. Before they were employed, 
 the settlement of an estate offered a barrier, for some 
 time at least, against its annexation to a neighbour- 
 ing property, although, of course, not so durable a 
 barrier as a strict entail. If settled estates could be 
 sold under a power, a rich neighbour, by a tempting 
 offer, might induce the trustees to sell, with the 
 
XVIIL] DISTRIBUTION OF LAND IN ENGLAND. 75 
 
 view of investing the purchase-money in another 
 property producing perhaps a larger income. 
 
 The legislature has by various statutes, and par- 
 ticularly by Lord Cairns's Act (Settled Lands 
 Act, 1882), 45 and 46 Vic. c. 38, much increased the 
 facility for selling settled estates. The tenant for 
 life can now himself, without the consent of trustees, 
 absolutely dispose of the property, with the exception 
 of the principal mansion and its demesne, which 
 cannot be sold without the consent of the trustees 
 of the settlement, or order of the court. It is 
 provided that the moneys to arise from a sale of 
 settled land shall be paid into court, or to the 
 trustees of the settlement, and invested in land, 
 government stock, or other securities in which 
 trustees are authorised to invest moneys, or railway 
 debentures, upon the trusts and provisions of the 
 settlement. 
 
 Provision is made for the application of capital 
 moneys arising from the sale of part of the settled 
 lands in improvements sanctioned by the Land 
 Commissioners ; and the tenant for life is empowered 
 to grant agricultural leases for twenty-one years, 
 mining leases for sixty, and building leases for 
 ninety-nine years. 
 
 An objection often urged against settlements of 
 land, that a settled estate cannot be dealt with 
 advantageously, through the interest of the possessor 
 being limited in duration, appe* 
 
76 HISTORICAL SKETCH OF THE [xvm. 
 
 removed by these provisions, and it is difficult to see 
 how they could be extended, without abolishing 
 settlements of land altogether, and forbidding land- 
 owners to exercise the right of being prudent and 
 making provision for their families a right which 
 is conceded to all other classes of society. 
 
DISTRIBUTION OF LAND IN ENGLAND. 77 
 
 XIX. 
 
 INCLOSURE OF WASTE LANDS. MR. JOHN WALTER 
 FORMATION OF A PEASANT PROPRIETARY. 
 
 A NOT inconsiderable alteration in the distribu- 
 tion of land in England took place at the end of the 
 last and commencement of the present century, 
 through the operation of inclosures. Under the 
 sanction of Parliament, waste lands were divided 
 among those who had rights of common over them, 
 in proportion to the estimated value of those rights, 
 and the area of cultivated land was thus consider- 
 ably increased. 
 
 Some interesting statistics respecting inclosures 
 are given in a pamphlet, entitled " A Letter to the 
 Electors of Berkshire, by John Walter, Esq., 1839," 
 from which it appears that, while the average 
 number of Inclosure Acts from 1783 to 1793 was 
 about thirty annually, the annual average rose to 
 ninety from 1793 to the close of the war in 1815. 
 
 The inclosure of waste lands does not appear to 
 have produced the improvement in the condition of 
 
78 HISTORICAL SKETCH OF THE [xix. 
 
 the agricultural labourers which some economists 
 expected as the consequence of the measure. On 
 the contrary, as Mr. Walter states on the authority 
 of Parliamentary Returns, the amounts annually 
 expended on the relief of the poor rose from about 
 two millions sterling in 1793, to four millions in 
 1803, and more than six millions at the end of the 
 war in 1815. 
 
 The conclusion drawn by Mr. Walter from these 
 statistics, that the inclosure of waste lands was 
 injurious to the poorer commoners, is confirmed by 
 the instance of at least one proposed inclosure, that 
 of Bucklebury, by figures which show that a 
 cottager benefited from uninclosed common land, 
 in the article of fuel, to the value of 21. 12s. 
 annually, and in pasturage of a cow and other 
 advantages, to the amount of more than SI. a year ; 
 while the value of the allotment, which he was to 
 receive in exchange, amounted to 21. per annum 
 only. It is not surprising that, with these facts 
 before them, the House of Commons threw out the 
 Bucklebury Inclosure Bill. 
 
 It is, however, plain that a large part of the 
 increase in the amount expended on the poor is 
 attributable to the same cause as that which 
 occasioned the increase in inclosures, namely, the 
 advance in the price of wheat which took place dur- 
 ing the war. The poor-rates were swelled because 
 wheaten bread entered largely into the consumption 
 
xix.] DISTRIBUTION OF LAND IN ENGLAND. 79 
 
 of the poor, and the high price of wheat stimulated 
 in closure, because when wheat was at from 50s. to 
 100s. and upwards a quarter, it could be cultivated 
 with profit even on inferior lands. 
 
 It may well be doubted, however, whether this 
 conversion of pasturage into tillage has been of 
 permanent advantage to the country, and whether, 
 independently of the interests of the poor, it would 
 not have been well that the wastes should have 
 remained in their original condition of pasture land. 
 
 One of the disadvantages attending inclosures was, 
 according to Mr. Walter, that the recipients of small 
 allotments were sometimes obliged to sell them, in 
 order to meet their quotas of the expense attendant 
 on procuring the Act. And this brings us in face of 
 the great difficulty which besets small proprietors 
 of land. Bad seasons inevitably come, when the 
 produce is insufficient for the maintenance of the 
 owner. He is compelled to seek an advance on the 
 security of his land, and obtains it, not infrequently, 
 on exorbitant terms. Favourable seasons seldom 
 enable him to. do more than pay the interest on the 
 debt he has contracted ; and one, two, or three suc- 
 cessive bad harvests may produce foreclosure and 
 ruin. The same cry comes from the Ganges and the 
 Nile ; the ryot and the fellah are in the grasp of 
 the usurer. Legislation may mitigate, but cannot 
 extirpate, the evil : for it lies in the very nature of 
 things. 
 
80 HISTORICAL SKETCH OF THE [xix. 
 
 Even the French peasantry, economical as they are 
 and inured to hardship, suffer grievously from the 
 same cause : its effects in their case being, no doubt 
 exaggerated by the law of succession, which tends to 
 the perpetual subdivision of the land, and throws 
 ever-increasing difficulties in the way of profitable 
 cultivation. Meanwhile, agriculture in France shows 
 little, if any, sign of improvement, there is no emi- 
 gration, and yet the population, if not diminishing, 
 is almost stationary. 
 
 The difficulties, which beset schemes for the 
 establishment of permanent peasant proprietors, 
 render it desirable to consider attentively those 
 measures which have been found, in practice, bene- 
 ficial to the agricultural labourers. 
 
 Experience has shown that small allotments, let 
 at moderate rents, can be cultivated by agricultural 
 labourers with advantage to themselves, and without 
 interfering materially with their ordinary vocation. 
 If this system were generally adopted, and in excep- 
 tionally bad years, attended with a reduction or 
 remission of rent, the condition of the labourer 
 would be raised, and the owner or farmer of the land 
 would probably find, that the sacrifices, which he 
 might occasionally be called upon to make, would be 
 compensated, by a reduction of poor-rates, and an 
 improvement in the moral qualities of his labourers. 
 
 This plan might be supplemented on considerable 
 estates, by the formation of small farms, for the 
 
xix.] DISTRIBUTION OF LAND IN ENGLAND. 81 
 
 occupation of the labourers who showed most intel- 
 ligence and energy in the cultivation of their allot- 
 ments. Their rise in the social scale might be slow, 
 but it would probably be more lasting than the 
 sudden elevation of a labourer converted, without 
 previous preparation, into a proprietor, who would be 
 exposed to the strong temptation of mortgaging or 
 selling his land. 
 
82 HISTORICAL SKETCH OF THE fr 
 
 PAET II. 
 I. 
 
 AMENDMENT OF LAW OF PRIMOGENITURE. 
 
 IT will be evident, I tliink, from the preceding- 
 statements, that the English " Land Laws " are not 
 justly chargeable with the faults usually urged 
 against them by advanced politicians, whose opinions 
 upon the subject appear to be grounded, for the most 
 part, on hasty assumptions. It cannot however be 
 denied, that, in two respects at least, the English 
 system of land tenure loudly demands amendment. 
 
 The Law of Primogeniture, although it operates 
 but rarely, contravenes, in many instances, the wish 
 of an intestate. The owner of a landed. estate is, no 
 doubt, usually desirous that it shall continue in his 
 name and family. This may be condemned as a 
 weakness by philosophers ; but, like the desire of 
 posthumous fame, it is frequently attended with 
 beneficial results. Now, the owner, although opposed 
 
i.] DISTRIBUTION OF LAND IN ENGLAND. 83 
 
 to the sale or division of his real estate, would, for 
 the most part, deprecate no less strongly than sale or 
 division, the exclusion of all members of his family 
 except an eldest son, from any interest in his free- 
 hold property. In old times the widow could not be 
 deprived of her dower, a life interest in ooe-third of 
 the lands, held in fee-simple or fee-tail, of her 
 husband, without her own consent, and the cum- 
 brous procedure in the Court of Common Pleas 
 called a fine ; but as this state of the law was found 
 inconvenient, in case it became desirable to sell the 
 land during the joint lives of the husband and wife, 
 conveyancers introduced a provision into purchase 
 deeds, which had the effect of depriving the wife of 
 her right to dower out of the purchased land ; and 
 they appear to have continued a similar practice, 
 although the Dower Act of 1834 rendered it wholly 
 unnecessary, because the sale of the land by the 
 husband was, by virtue of the Act, sufficient to dis- 
 place the right of the wife ; and thus the provision 
 which the law made for the widow, and which, of 
 course, often became a temporary provision for 
 younger children also, was needlessly swept away. 
 So that, on an intestacy taking place, the eldest son 
 generally excludes, not only the other children, but 
 the widow also, from all interest whatever in the 
 freehold property of his father, if the father has been 
 the purchaser; although if he has inherited it, only 
 the younger children are entirely excluded. 
 
 G 2 
 
84 HISTORICAL SKETCH OF THE [i. 
 
 The present state of things is, therefore, even more 
 objectionable than that which existed under the 
 feudal law, when, as I have before mentioned, the 
 third part of the land, which the widow enjoyed for 
 her life, often must have afforded some support for 
 younger children, as well as for herself. 
 
 It has often been pointed out as an excellence of 
 the Statute for the Distribution of Intestates' 
 Estates, that it makes for an intestate such a dis- 
 position of his personal property, as, in ordinary 
 cases, a reasonable man would make for himself. 
 Does it transcend the wisdom of Parliament to do 
 the like with regard to freehold property ? Why 
 should it not preserve the right of the eldest son to 
 take the land as heir to his father, and, at the same 
 time, charge the land with a sum of money to be 
 divisible, like the personal estate of the father, 
 between the widow and the younger children or 
 their issue ; the proportion of the amount so distri- 
 butable to the value of the land, varying according 
 to the number of claimants ? Such a law would 
 give the eldest son a fair opportunity of retaining 
 the land, without doing manifest injustice to other 
 members of the family. It would remove a palpable 
 grievance, with as little alteration as possible in the 
 existing law, while avoiding the risk of encountering 
 the evils which result from the constant subdivision 
 of land. 
 
IL] DISTRIBUTION OF LAND IN ENGLAND. 85 
 
 II. 
 
 PROPOSED SYSTEM OF REGISTRATION. 
 
 THERE is another improvement in our land system 
 which is much more urgently required than the 
 amendment of the Law of Primogeniture. I refer 
 to the establishment of Registers of deeds and wills 
 relating to land. 
 
 The efforts of the legislature in this direction have 
 been singularly unsuccessful more unsuccessful, per- 
 haps, than its other attempts to improve the laws 
 relating to land. 
 
 Registers were established in the earlier part of 
 the last century for Yorkshire and Middlesex, and 
 two Acts for introducing a General Register have been 
 passed in the present reign. The earlier attempts 
 produced but slight advantage through doing too 
 little, the later still slighter through endeavouring to 
 do too much. 
 
 It is essential to a good system of registration that 
 an intending purchaser or mortgagee should be able 
 
86 HISTOEICAL SKETCH OF THE [n. 
 
 to ascertain, from an inspection of the register, what 
 documents there are in existence which affect the 
 title to the land. Now Lord Hard wick decided 1 that 
 a purchaser of land in Middlesex, having notice of a 
 document affecting the land, was bound by it, 
 although the document had not been registered 
 according to the Middlesex Register Act ; and a 
 purchaser was thus rendered liable to be deprived of 
 his purchase, through forgetfulness or some slight 
 inadvertence on the part of himself or his agent. 
 Lord Hardwick has been blamed for this decision, 
 which went far to destroy the utility of the registers 
 of Middlesex and Yorkshire. 2 The censure was, how- 
 ever, undeserved, as the decision was in accordance 
 with the intention of the Act, as disclosed by the 
 preamble. 
 
 As these Acts are acknowledged to be defective in 
 allowing a purchaser to be affected by an unregistered 
 document, I suggest that the defect should be re- 
 moved, and an efficient system of registration made 
 general throughout England. 
 
 I venture to propose that any one in possession of 
 land, for a freehold estate, or leasehold estate of 
 twenty-one years or upwards, should be entitled to 
 have the land entered on the Register, upon paying 
 the expense of surveying the boundaries, by an 
 official surveyor ; that the boundaries should be 
 
 1 In Le Neve v. Le Neve, Arab. 436. 
 
 2 The Yorkshire Acts have been amended by 47 & 48 Viet. c. 54. 
 
ii.] DISTRIBUTION OF LAND IN ENGLAND. 87 
 
 marked on a copy of the ordnance map, so that by 
 inspection, it might at once be ascertained whether 
 a property had been registered or not. 
 
 When land had thus been registered, no purchaser 
 or mortgagee should be affected by any dealing with 
 the land, subsequent to the registration, which did 
 not appear on the register ; and further, every one 
 dealing with the land should be considered as having 
 notice of all that appeared on the register, whether 
 he took the trouble of inspecting it or not. 
 
 For the purpose of registration a book might be 
 appropriated to each registered property, so that by 
 turning to that book, it might at once be known, 
 with certainty, who had obtained any right in the 
 property since the registration took place. 
 
 A claim as heir should be entered on the register, 
 and after a certain period from the death of the 
 owner, a land fide purchaser, from one whose claim 
 as heir has been so entered on the register, should 
 not be affected by the claim of any person as 
 heir or as devisee not registered previously to the 
 purchase. 
 
 A will affecting the land should be entered on the 
 register, and after a certain period from the decease 
 of the testator, a ~bona fide purchaser from a devisee 
 under such will, should not be affected by any will or 
 claim as heir not previously registered. 
 
 The registration of any document or claim would 
 not give to the document or claim itself any greater 
 
88 HISTORICAL SKETCH OF THE [n 
 
 validity than it possessed before registration; the 
 registration would simply prevent the validity of 
 the document or claim (supposing a purchase or 
 mortgage to have taken place on the faith of it) 
 from being affected by documents or claims not 
 previously registered, or by subsequent transactions. 
 
 If a registered property were divided, a new book 
 referring to the old one should be appropriated to 
 each portion. If several registered properties were 
 consolidated, only one new book would be required 
 for the whole, the new one referring to the books 
 relating to the separate properties. 
 
 The map on which the registered properties were 
 delineated would form the key and index to the 
 volumes of registration ; each property would receive 
 a number, and this number would constitute a 
 sufficient description of the property in conveyances, 
 mortgages, &c. 
 
 It seems to me clear, that after the lapse of a few 
 years, through the operation of the Statute of Limi- 
 tations, an indefeasible title would be obtained 
 under such a system of registration, without the 
 expense and danger of an official investigation of 
 titles, and that equitable rights would, as well as 
 legal rights, be perfectly protected. 
 
 In order to preserve the facilities which land- 
 owners now enjoy, of creating a security by the 
 deposit of title-deeds, I would propose that any one, 
 who appears by the register to be entitled to an 
 
ii.] DISTRIBUTION OF LAND IN ENGLAND. 89 
 
 interest in the land, should, on application, be 
 furnished with a certificate that he appears by the 
 register to be entitled to such interest, and the fact 
 of the certificate being granted should be entered on 
 the register. After this, any one dealing with the 
 same interest should be held bound by any right 
 secured by the deposit of the certificate. It would, 
 therefore, in order to deal safely with the interest, 
 be necessary that the certificate should be produced 
 and handed over to a purchaser or mortgagee, or 
 entered on the register as surrendered. 
 
 In the subsequent chapters will be found a short 
 examination of the two modern Registration Acts. 
 
90 HISTORICAL SKETCH OF THE [in. 
 
 III. 
 
 MODERN REGISTRATION ACTS. 
 
 25 & 26 Viet. c. 53. 
 
 As REGARDS the two modern attempts to establish 
 a system of registration, it appears to have been the 
 principal object of the first, the 25 & 26 Viet. c. 53 
 (1862), that the owner of land should be enabled to 
 obtain an absolutely indefeasible title to his property. 
 Now, desirable as is this object, it is one which cannot 
 be attained without a minute investigation into the 
 actual title. In order not to commit injustice by 
 destroying the right of an absent and, it may be, an 
 unknown person, it is absolutely necessary to ascer- 
 tain that the applicant, who requires the grant of 
 an indefeasible title, is the true and sole owner ; and 
 this cannot be effected without a rigid examination 
 of documents, and public advertisements limiting a 
 time for adverse claimants to come in precautions 
 which necessarily occasion considerable delay and 
 expense. Owners, therefore, who feel satisfied with 
 
in.] DISTRIBUTION OF LAND IN ENGLAND. 91 
 
 their titles, as practically, if nob theoretically, 
 sufficient, have been unwilling to apply, at this cost, 
 for an indefeasible title ; while in cases where some 
 doubts existed respecting the perfection of the title, 
 the owner has been fearful of submitting it to the 
 strict preliminary scrutiny. Hence the Act had little 
 practical value, except in cases where a considerable 
 property was to be disposed of by dividing it into 
 numerous lots. In such a case registration under 
 this Act might effect a saving of expense, besides 
 giving an indefeasible title to the purchasers. 
 
 Criticism would, however, be wasted on the 
 provisions of this Statute, since the registration 
 under it was closed (after a trial of thirteen years) 
 by the 38 & 39 Viet. c. 87, the Registration Act at 
 present in force. 
 
92 HISTORICAL SKETCH OF THE ("iv. 
 
 IV. 
 
 THE PRESENT GENERAL REGISTRATION ACT. 
 
 THE objections which I pointed out, as having 
 been fatal to the usefulness of the former Act, apply 
 also to the present (the Land Transfer Act, 1875. 
 38 & 39 Viet. c. 87), viz., the expense and possible 
 danger which must be incurred in order to obtain 
 registration. An indisputable title, subject or not 
 subject to specified qualifications, cannot be granted 
 without the rigid investigation requisite to prove 
 that there exist no valid latent claims. 
 
 Nor is it clear that the advantages to be derived 
 from the possession of an indisputable title under 
 the Act are such as to counterbalance these objec- 
 tions. 
 
 The object of the Act appears to be the assimila- 
 tion, as far as practicable, of the method of convey- 
 ing land to that which is in force for transferring 
 Government stock. 
 
 If stock is entered in the books kept by the Bank 
 of England in the name of one or more persons, the 
 
iv.] DISTRIBUTION OF LAND IN ENGLAND. 93 
 
 stock becomes, at law, the absolute property of those 
 persons or person, so far as the books convey infor- 
 mation. You are not allowed to enter in these 
 books the name of a person as having merely a 
 limited interest, for example an interest for life, in 
 a sum of stock. 
 
 So under the present Land Act (putting leaseholds 
 out of the question), a person can be registered as 
 owner of an absolute estate or fee-simple only. If 
 a life interest is to be conferred, it must be given by 
 way of trust ; the person registered as owner in fee 
 must execute an instrument declaring that he holds 
 the land in trust for the person designated, for his 
 life the Act not making any provision for the 
 registration of trusts. 
 
 As the Bank of England will not take notice of 
 any trust of stock, the new register, like the Bank 
 books, is a register of absolute owners. The Act, 
 however, permits the registration of money charges 
 on registered land. 
 
 Hitherto a provision (say for infant children) out 
 of land, has been considered more secure than a 
 provision out of stock. The la,tter is at the mercy 
 of a trustee. The purchaser of stock from a trustee, 
 in whose name the stock stands, is safe, in the 
 absence of notice of the trust, and the person bene- 
 ficially entitled has no remedy except against the 
 trustee personally. A trust estate in land could not 
 without difficulty be defeated by a sale, because a 
 
94 HISTORICAL SKETCH OF THE [iv. 
 
 purchaser of the land would, almost necessarily, have 
 notice of the trust the trustee in establishing his 
 own title would disclose the trust also. Even if the 
 land were vested in trustees for sale, the almost 
 necessary notoriety of the sale of unregistered land 
 affords practical protection to the beneficial owner. 
 
 As regards land registered under this Act the 
 case will be different. The person who is registered 
 owner can convey the land discharged of all trusts, 
 except registered money charges, by a transaction 
 no more notorious than a transfer of Government 
 stock. 
 
 It is true that the Act provides for the entry of 
 " cautions " on the register, and when a caution has 
 been entered, the land is not to be dealt with, until 
 notice of the intended transfer has been given per- 
 sonally, or by post, to the cautioners a proceeding 
 analogous to placing a distringas on stock at the 
 Bank of England. But, although the notice is not 
 duly given, the sale is still absolute and in many 
 instances beneficial owners, especially if they are 
 infants, will omit to enter a caution. 
 
 It is, perhaps, unnecessary to remark, that the 
 security at present enjoyed by partial owners of land 
 as, for example, tenants for life, entitled at law 
 will be much diminished if the land is registered 
 under this Act, because the interest of such nn 
 owner will be necessarily converted into an equitable 
 interest. 
 
iv.] DISTRIBUTION OF LAND IN ENGLAND. 95 
 
 Nor is this all ; by the 41st Section if a person 
 registered as sole owner of freehold land (or the 
 survivor of several registered owners) dies, the land 
 which he held will not pass to his heir, or to his 
 personal representatives, but to a person nominated 
 by the Registrar, at his discretion, regard being had 
 to the rights of persons interested in the land. So 
 that if the deceased was the beneficial owner, his 
 heir, widow, or the devisees under his \vill, may find 
 their interests in the land at the mercy of a person, 
 whom neither they nor the deceased had any poten- 
 tial voice in selecting, and who may defeat their 
 rights by a sale and transfer on the register to a 
 purchaser, whether that person had or had not notice 
 of the trusts. (See Section 30.) 
 
 It may well be asked with what view are these 
 provisions with regard to Registration introduced ? 
 They will clearly have the effect of rendering less 
 secure the interests of many persons in landed pro- 
 perty, supposing the land to be registered under the 
 Act. What then are the countervailing advantages 
 which the authors of the Act expect that it will 
 confer ? 
 
 I have heard it stated by a high authority that 
 the late Mr. Cobden declared, after having attained 
 free trade in corn, that the next most important 
 object was, in his opinion, to establish free trade in 
 land. I do not feel sure as to the meaning which he 
 attached to this expression ; but I presume that 
 
96 HISTORICAL SKETCH OF THE [rv. 
 
 " establishing free trade in land " means providing for 
 its purchase and sale in the same manner as Govern- 
 ment and other stocks and securities are purchased 
 and sold in the market. 
 
 The authors of the Act under consideration appear 
 to have had this object in view. The persons in whose 
 names land is registered are to be the absolute owners 
 (not owners for life or in remainder), in the same 
 sense that proprietors of Government stock are 
 absolute owners. The directors of the Bank of 
 England, who have charge of the national stocks, as 
 well as of their own, refuse to take notice of trusts 
 the Registrar of land is to do the same. The cautions 
 which may be entered on the register are apparently 
 devised in imitation of the distringas which may be 
 placed upon Government stocks. 
 
 To a landowner engaged in commercial specula- 
 tions, it may be advantageous to register his land 
 under the Act. The registration might render it 
 more easy for him to raise money on the security of 
 his estate, or to sell it with despatch, on an emergency. 
 He might, perhaps, have his land quoted like so much 
 stock, and make it a subject of speculation in the 
 market. If many estates were thus offered for public 
 sale, there might be called into existence a body of 
 land-brokers and land-jobbers, who would benefit by 
 land speculations ; but I see no reason to suppose that, 
 by such transactions, the cultivation of the soil would 
 be improved. How could free trade in land prodm-o 
 
jv.] DISTRIBUTION OF LAND IN ENGLAND. 
 
 effects at all analogous to the results of free trade in 
 corn ? Suppose that Bowood or Belvoir was registered 
 by their proprietor, and thereby rendered more 
 marketable, would a purchaser for a rise of one-eighth 
 per cent, be likely to lay out capital in improving land 
 which he intended to retain as his property only, it 
 may be, till next settling day, or until he closed his 
 speculation ? Would he make a drain, or plant a 
 tree 
 
 " Seris 
 Umbram factura nepotibus ? " 
 
 If it was not the object of the Act to encourage 
 speculation in land, by assimilating land to Govern- 
 ment stock, it is difficult to understand why the 
 assimilation was attempted at all. Merely to facilitate 
 lond fide investments in land, desirable as such an 
 object is in itself, would not justify the introduction 
 of a system of registration which diminishes the 
 security of equitable interests, and prevents the 
 creation of many legal estates which can be created 
 in non-registered lands. 
 
 I will conclude this chapter by quoting an instance 
 of the mode in which the antiquated system of land 
 tenure, favouring the continuance of land in the same 
 family for several generations, not unfrequently 
 worked. The following statement is extracted from 
 the Times of the 6th March, 1882, and relates to the 
 Swinton estate in the North Riding of Yorkshire : 
 
 " The rental is very considerable, amounting to 
 
 H 
 
98 HISTORICAL SKETCH OF THE [iv. 
 
 over 12,00(K, exclusive of the mansion, the park, and 
 the grouse-shooting; yet relatively the superficial 
 area is much in excess of the rent-roll. 
 
 " The bounds of Swinton are almost identical with 
 those of the famous old inanor of Mashamshire. 
 Besides the thriving little market town of Masham, 
 they include, either entirely or in part, several 
 parishes, with sundry villages. And Mashamshire 
 recalls a long train of historical associations, going 
 back to Saxon times. It was owned at the Conquest 
 by Earl Edwin, twin brother of Morcar, grandson of 
 the great Leofric of Mercia and the Lady Godiva, 
 and brother-in-law of the unfortunate Harold. The 
 Conqueror confiscated it for the benefit of his nephew, 
 the Earl of Bretagne and Richmond. In the reign 
 of the first Edward it had passed to the Scropes, who 
 were ennobled as Lords Scrope of Masham; and 
 from the Scropes it came by marriage to the old 
 Yorkshire family of the Danbys, whose descendants 
 held it down to the present day. 
 
 " Swinton is emphatically an ' old ' property, as one 
 of the people with whom I conversed on the estate 
 remarked very suggestively. He meant that for 
 generations it had been the pride of its owners ; that 
 they had lavished their money freely on it; and, 
 
iv.] DISTRIBUTION OF LAND IN ENGLAND. ,99 
 
 indeed, everywhere you see signs that nothing has 
 been stinted either in ornamental outlay or for 
 remunerative improvements. The Danbys seem 
 always to have resided at home, spending a large and 
 unencumbered income in their parishes ; they have 
 been liberal landlords to an industrious tenantry, and 
 I believe that in the last fifty years the rents have 
 hardly been altered. Considering the rugged 
 character of the country, there was ample scope for 
 extending cultivation. 
 
 " Swinton may be supposed to have taken its name 
 from the wild swine that, in the olden time, found 
 inaccessible retreats in its woods and swampy wastes, 
 and in the recesses of the precipitous ravines that 
 everywhere intersect them. 
 
 " The father of the late Mr. Danby was a famous 
 improver ; so much so, that Arthur Young was 
 induced to pay Swinton a visit on his ' Northern 
 Tour/ Young, who was much gratified by what he 
 saw, remarks that 'Mr. Danby possessed several 
 thousands of contiguous acres, which did not yield him 
 a tenth part as many farthings a year/ Those barren 
 acres, where they have not been reclaimed, are now let 
 to the sheep farmers ; while as well-stocked grouse 
 shootings, they, of course, have a value which was not 
 dreamed of in 1 768. That Mr. Danby' s son, during his 
 long occupation, seems to have improved almost as 
 indefatigably as his father : he made many excellent 
 roads, and built sundry substantial bridges, while he 
 
100 DISTRIBUTION OF LAND IN ENGLAND. [iv. 
 
 showed his admirable taste by judiciously beautifying 
 the home domains." 
 
 The Danbys were clearly not traders in land. Is 
 there any reason to believe that, had they been 
 such, the lands of Masham would have been better 
 cultivated, the plantations more extensive, or the 
 inhabitants more prosperous and contented than they 
 have become under the old system of land tenure ? 
 
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