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 SYSTEMS OF LAND TENURE 
 
 VARIOUS COUNTRIES 
 
 A SERIES OF ESSAYS PUBLISHED UNDER THE 
 
 SANCTION OF THE -^DDEN CLUB. 
 
 Edited by J. W. PROBYN. ^^ 
 
 LOXDOX : 
 
 CASSELL FETTER & GAL PIN. 
 
 LA bellp: sauvage yard, ludgate hill, e.c. 
 
 [All Rights Reserved.]
 
 CON TE N TS. 
 
 I. — The Tenure of Land in Ireland. By the Rt. 
 
 Hon. M. Longfield i 
 
 Late Judge of the Landed Estates Court in Ireland. 
 
 II.— The Land Laws of England. By C. Wren 
 
 HosKYNS, Esq 8i 
 
 III. — The Tenure of Land in India. By Sir George 
 
 Campbell, K.C.S.I., M.P 125 
 
 Chief Commissioner of the Central Provinces of India. 
 
 IV. — The Land System of Belgium and Holland, By 
 
 M. Emile de Laveleye 197 
 
 v.— The Agrarian Legislation of Prussia during the 
 
 Present Century. By R. B. D. Morier, Esq. C.B. 243 
 
 VI. — The Land .System ok Fr.a.nce. By T. E. Cliffe 
 
 Leslie, Esq. 287 
 
 VIT.- The Russian Agrarian 1,egisl.a.tion of 1861. By 
 
 Dr. Julius Faucher 309 
 
 Member of the Prussian Landtag. 
 
 VIII. — Farm Land and Land Laws of the United States. 
 
 By C. M. Fisher, Esq 347 
 
 Coiinsellor-at-Law, United States if America. 
 
 IX. — The Law and Custom of Primogenitl'ri:. By the 
 
 Hon. George C. Brodrick , • • 367
 
 PREFACE. 
 
 Both the first and second editions of the Cobden 
 Club Volume, entitled " Systems of Land Tenure 
 in Various Countries " (1870), having been exhausted, 
 the Committee of the Club now issue this new edition 
 of the Work in a less expensive form. It is hoped 
 by this means to satisfy more completely the demand 
 which has arisen for the Volume, and to place it, as 
 much as possible, within the reach of all classes. Each 
 Essay has been revised by the original writer, with 
 the exception of that on the " Farm Land and Land 
 Laws of the United States," the author of which has 
 died since the preceding editions of the Work were 
 published. The present Volume also contains an 
 Essay on the " Law and Custom of Primogeniture," 
 by the Hon. George C. Brodrick, which originally 
 appeared in the Second Series (1871-1872) of the 
 Cobden Club Essays. 
 
 All these Papers having been written by men
 
 VIU PREFACE. 
 
 thoroughly acquainted with the Land Laws of the diffe- 
 rent countries of which they treat, the Committee of the 
 Cobden Club feels sure that it is doing good service in 
 re-publishing, in a more popular form, a volume which 
 throws light on the important questions of Land Laws 
 and Land Tenure. 
 
 J. W. PROBYN. 
 
 April, 1876.
 
 SYSTEMS OF LAND TENURE 
 
 IV 
 
 VARIOUS COUNTRIES. 
 
 I. 
 
 THE TENURE OF LAND IN IRELAND. 
 By the Rt. Hon. M. Longfield. 
 
 Chapter I. 
 
 The laws which govern the relation between landlord and 
 tenant are not very different in England and Ireland ; but 
 there are some differences in their pedigrees, and in some col- 
 lateral circumstances, which have made them produce very 
 different effects. I shall mention a few of those circumstances.. 
 
 In both countries the law is based upon the feudal system, . 
 which gave the landlord a certain superiority over his tenants. 
 But the feudal relation, with its reciprocal rights and duties, 
 never existed in Ireland. Here the landlord never led his 
 tenants to battle ; if they fought in the same field, it was on 
 different sides. They had no traditions of common victories 
 or common defeats. The relations that existed between them 
 were hostile. According to the old feudal law, the lordship 
 could not be transferred without the consent of the tenant, 
 lest an enemy might be made his feudal superior : but in a 
 great part of Ireland a sudden and violent transfer of the 
 lordship was made to persons whom the tenants only knew 
 as their victorious enemies. 
 
 The feudal law of distress was increased in force, to make 
 it a more powerful instrument for extracting rent from a 
 reluctant or impoverished tenantry. The old laws, which 
 were unduly favourable to the landlord, were generally 
 retained, as if they had been unalterable laws of nature ; 
 but they were at once altered when they appeared to afford 
 a temporary protection to the tenant. 
 
 B
 
 2 SYSTEMS OF LAND TENURE [Longfield. 
 
 Take the case of a disputed account between the landlord 
 and tenant. The former maintains that a year's rent is due 
 to him ; the latter insists that he owes nothing. Do they 
 come before a court of justice on equal terms, to have this 
 question tried ? On the contrary, the landlord, as the feudal 
 superior, takes the law into his own hands, and without 
 making any proof of his demand, he sends his bailiffs to 
 seize the goods of the tenant. The landlord was not obliged 
 to apply to any officer of the law, or to give any security 
 to pay damages if his demand should prove to be unfounded. 
 But it was otherwise with the tenant ; if he saw his goods 
 distrained by this summary process, he could not get them 
 back without a troublesome replevin, which he could only 
 get by giving security to pay the sum demanded. To dis- 
 courage him from contesting the landlord's rights, he was 
 compelled by an Act of Parliament to pay double costs if he 
 failed. Still, at common law the distress, or goods distrained, 
 could not be sold ; and a tenant, ruined and driven to despair, 
 might submit to the loss, and still refuse to pay ; but an Act 
 of Parliament was passed to enable the landlord to sell the 
 goods, and pay himself. 
 
 Still, he could not seize the tenant's crops while they were 
 growing, as by the common law crops while they were grow- 
 ing were considered as a part of the soil and freehold, and 
 could not be diste"ained. But here Parliament again intervened, 
 and passed a law to enable the landlord to distrain the crops 
 while they were still growing, so that as soon as the corn 
 appeared above the ground he might send his keepers to take 
 possession, and cut and carry it away when it was rij^e. 
 
 If the tenant removed his goods to avoid a distress, an 
 Act of Parhament intervened to visit liim and the friends who 
 assisted him with a penalty, although the landlord himself may 
 liave been at the same moment hiding his own goods to evade 
 an execution. 
 
 In the same manner Acts of Parliament were passed to 
 give the landlord the power of evicting his tenant for non-pay- 
 ment of rent, and of recovering possession of the land in cases 
 in which he was not entitled to this remedy either by the terms 
 of his contract or by the rules of the common law. 
 
 Those laws were injurious by leading the landlord to rely 
 more on the extraordinary i)owers given to him by law, than on 
 the character of the tenant or the liberal terms on which he set
 
 IKELAND.] IN VARIOUS COTNTRIKS. 3 
 
 his land ; but I refer to them now as co-operatmg with other 
 circumstances to lead the poor Irish farmer to the opinion that 
 the laws were framed entirely in the interests of the landlord 
 class. 
 
 Here one important difterencc between English and Irish 
 law must be noticed. In Ireland there were no poor laws. 
 The poor man, reduced to destitution by sickness or want 
 of employment, had no legal claim to a maintenance out of the 
 property of the country. I allude elsewhere to other effects of 
 the poor laws ; but the point which I now notice is, that, 
 notwithstanding all the abuses attending on the administration 
 of the poor laws in England, they had this effect, that the poor 
 man could not shut his eyes to the fact that the laws were 
 m some part framed in his interests, and that for the relief 
 of his class a large sum was levied every year from the wealth 
 and successful industry of the community- 
 
 Another circumstance tended to diminish the respect of the 
 people for the law of the land. Religion did not, and could 
 not, lend its aid to the authority of the law. The great mass 
 of the agricultural population was Roman Catholic ; and the 
 Roman Catholic priest, their minister and instructor, was in 
 some respects under the ban of the law. He could scarcely be 
 an effectual teacher of the doctrine that it is a moral duty to 
 obey the law of the land, when he himself was obliged to 
 violate it almost daily in the discharge of his most sacred 
 functions. 
 
 Of all laws, those which are framed for the protection 
 of property are the most likely to be disregarded by the poor 
 man. The man who never possessed any property can scarcely 
 feel the duty of respecting it. He must be taught that duty, 
 either by arguments, which do not bring conviction to all men, 
 or by some authority which he respects. But the Roman 
 Catholic priest had no property of his own, and he generally 
 belonged to a family which did not possess much property. 
 He had therefore no sympathy with the landlords, who, in 
 general, did not belong to his flock. Religion, which ought 
 to be the great bond of union between men of every race and 
 every class, was in Ireland an additional source of disunion. 
 
 Under such circumstances, it was not surprising that the 
 Irish farmer was generally discontented with his position, 
 although the landlords did not give him much cause of com- 
 plaint. As a class, the Irish landlords were not greedy nor
 
 4 SYSTEMS OF LAND TENURE [Longfield. 
 
 oppressive. They did not plunder their tenants, but they 
 neglected them. 
 
 For some time after the Act of Settlement, leases were 
 granted more readily and for longer terms in Ireland than in 
 England. Fee-farm grants, leases for lives renewable for ever, 
 and leases for terms exceeding one hundred years in duration, 
 covered no small portion of the soil of Ireland. But those 
 long leases, at moderate rents, did not produce a contented 
 tenantry ; they only created a race of middlemen. The 
 descendants of the men who granted those long leases had 
 the mortification of finding that they were deriving a very 
 small income from their estates in proportion to the value 
 of the land, and yet that the occupying tenants were as poor 
 as if they had rigidly demanded the utmost penny that the 
 land could yield. It was felt to be bad management to grant 
 such leases ; and leases for three lives, or twenty-one years, 
 or thirty-one years, were more usually granted in the latter 
 half of the eighteenth century. The leases for lives were in 
 some measure caused by the law which existed up to the 
 Reform Bill. Freeholders alone could vote at an election for 
 Members of Parliament ; and this state of the law was inju- 
 rious to agriculture by leading to a very inconvenient tenure. 
 It was almost absurd that the duration of a farmer's interest 
 should be made to depend upon such an accident as the 
 longer or shorter duration of a stranger's life. 
 
 Although leases for lives were very common, their duration 
 appears not to have been understood. It was very common 
 in settlements to insert powers of granting leases for three 
 lives, or thirty-one years, as if those leases were of about equal 
 average duration ; although in reality the average duration of 
 the freehold was about double that of the chattel interest. In 
 computing the compensation due to a landlord tor renewal 
 fines, it was assumed that a life to be named by the tenant 
 would expire in seven years ; and this gave the landlord, as 
 compensation, more than five times what he had lost by the 
 tenant's neglect. 
 
 In the early part of this century a great rise took place 
 in the value of land, as the French war and the depreciation 
 of the currency raised the price of agricultural produce. The 
 tenants who had previously obtained leases became rich. The 
 landlords who had not granted leases obtained a great acces- 
 sion to their income. The landlords who had granted leases
 
 Ireland.] IN VARIOUS COUNTRIES. 5 
 
 found themselves poorer, inasmuch as their nominal income 
 remained the same, while its purchasing power was diminished. 
 This increased the desire of the tenantry to obtain leases, while 
 it made the landlords less disposed to grant long leases. 
 
 In i8i6, and the three following years, land fell again in 
 value ; and the tenants who had got leases or farms during 
 the high times were unable to pay their rents. In many cases 
 they ran away and abandoned their farms ; in other cases they 
 put their landlords to the delay and costs of an ejectment ; 
 in other cases they were permitted to remain in occupation 
 at a reduced rent. The landlords then perceived that a lease 
 was a one-sided agreement. It prevented the landlord from 
 obtaining the benefit of a rise in prices ; but it did not prevent 
 him from suffering if they fell. 
 
 Still, leases were frequently granted from political motives. 
 The tenants, as a matter of course, voted as their landlords 
 directed them ; and the landlord increased his political influ- 
 ence by granting freehold leases to a numerous tenantry. 
 
 This condition of affairs was changed by the agitation 
 that preceded the Act for granting Catholic emancipation ; and 
 first in the county of Waterford, and afterwards in a still more 
 remarkable instance in Clare, the tenants voted against their 
 landlords' wishes ; and the latter had no longer any political 
 inducement to grant leases to their tenantry ; indeed, political 
 motives rather acted in the opposite direction. 
 
 Although it became less usual to grant leases, the tenant 
 was generally left undisturbed in possession at the old rent. 
 Nothing was more common than to find a yearly tenant 
 holding land at a rent fixed by a lease which had long since 
 expired. No general change in the value of land took place 
 of sufficient magnitude to cause a readjustment of rents. 
 
 But in the year 1846 the potato crop throughout Ireland 
 generally failed ; a foil greater than had ever taken place on 
 any former occasion took place in the value of land. The 
 tenant found that the possession of a farm could not secure 
 him against starvation. Landlords were compelled to submit 
 to a considerable temporary abatement. In 1851 the reaction 
 commenced ; landlords added to the rent by degrees the 
 sums that had been taken oft" during the famine ; and in .some 
 cases they added a little more. Frequent small additions to 
 the rent are very annoying to the tenant, who on each occa- 
 sion has to calculate whether it is more prudent to submit
 
 6 SYSTEMS OF LAND TENURE [Longfield. 
 
 to this increase, or to incur the inconvenience and expense 
 of giving up his farm and looking out for another. 
 
 Another circumstance occurred about this time. The En- 
 cumbered Estates Court was estabhshed in 1849, and many 
 estates were sold subject only to existing leases and legal 
 rights. The new landlords were more active, and effected 
 more improvements in the land than their encumbered pre- 
 decessors ; but they were less indulgent to their tenants ; old 
 traditions of liberality were disregarded, and the new landlords 
 were more disposed to exact the full value of the land. They 
 also sometimes introduced changes which, although to the 
 advantage of the country and of the tenantry, were looked 
 upon with suspicion, on account of their evident advantage to 
 the landlords. The tenants did not like any interference with 
 their customs, even when it was obviously for their interests. 
 
 On the whole, however, the condition of the Irish farmers 
 steadily improved. The value of land increased faster than the 
 rents. Never were they more prosperous than at the present 
 moment. The marketable value of the interests ^^hich the 
 occupying tenants have in their farms is about fifty millions 
 sterling, exclusive of their stock in cattle, machinery, and 
 agricultural produce, which is worth as much more. 
 
 But at the same time they never were more discontented. 
 The reason of this is partly that they fear that their present 
 prosperity is insecure, and partly that they hope to seize upon 
 something more. Their wealth is as safe as that of any other 
 class, so far as it depends upon their capital, or their skill and 
 industry ; but it depends upon the will of the landlords, so far 
 as it is a consequence of their holding land at less than the 
 competition value. They are too dependent upon their land- 
 lords. It is not convenient that the prosperity of one class of 
 men should depend upon the liberality of another class. 
 
 Besides, in many cases the tenants hope by agitation and 
 outrage to acquire more than they at present possess. They 
 have great political power, and are able to reward the agi- 
 tators who inflame their passions or their cupidity. They are 
 taught to believe that it is in their power to acquire the absolute 
 ownership of the land which they have hired for a limited 
 period. Their well-founded complaints are mixed up with 
 the most unreasonable demands ; and by skilful sophistry and 
 metaphorical language they are almost led to believe that 
 murder may be justified when it is committed from motives of
 
 iKiu.ANu.i IN VARIOUS i;()UN JRIl.S. 7 
 
 avarkx' or revenge. ]]efore we endeavour to draw a distinction 
 between the just and unjust demands of those who call them- 
 selves the tenants' friends, a (juestion may be asked, " Will 
 outrages against life and jiroperty cease when everything that 
 justice requires shall be conceded?'' I do not think the question 
 very important, because the claims of justice should be allowed, 
 even if no beneficial results were expected. But the question 
 itself cannot be answered by a direct " Yes " or " No." When- 
 ever any just measure is passed, all discontent is not at once 
 allayed. All that ought to be expected is to reduce the number 
 of the malcontents, and to diminish the vehemence of those 
 who remain dissatisfied. The friends of law and order are 
 strengthened by an increase of their numbers, and by the 
 removal of many of the topics on which their adversaries are 
 accustomed to rely. In this manner a succession of just 
 measures may produce such an overwhelming majority in favour 
 of the law as to reduce the discontented to silence. 
 
 I do not expect such a result in Ireland to follow imme- 
 diately from any legislation, until the people are taught to look 
 upon murder with horror. If all the land in Ireland was 
 divided in fee-simple among the peasantry, the number of 
 murders would not be diminished. The difference would 
 only be in the heading of the sensation paragraphs in news- 
 papers. Instead of an " agrarian outrage," it would be called 
 a '' domestic tragedy." The same feeling that prompts a 
 man to murder his landlord, to ])revent or revenge some 
 real or imaginary wrong, would lead him to resort to the 
 same remedy against a sister who claimed her fortune at an 
 inconvenient time, or a brother who did iiot agree with his 
 views respecting the partition of the estate. 
 
 Good consequences may be confidently expected from 
 just legislation, although those consequences may not appear 
 so quickly as sanguine people often expect. 
 
 It is not certain that the discontented farmer thinks that 
 all his demands are just and reasonable, or that he expects 
 them to be conceded. A farmer is generally disposed to 
 make a bargain, and to begin l)y asking for a good deal 
 more than he expects to get.
 
 SYSTEMS OF LAND TENURE [Longfield. 
 
 CHAPTER II. 
 
 The opinions Of English and Irish economists generally are 
 different on the subject of absenteeism. The Irish, who feel 
 it, think it a great evil. The English, who do not feel it, 
 think that it does no harm to the countr}'. It does not, how- 
 ever, follow that the Irish are right, for they may perhaps have 
 fallen into the mistake of attributing to absenteeism evils which 
 co-exist with it, but are not caused by it. 
 
 For a short time the defenders of absenteeism had the 
 arguments of logic on their side. The complainants made a 
 mistake in the form of their complaint. The mercantile 
 system was in full vogue. Money was thought to be sjnony- 
 mous with wealth. Ever)*- transaction which brought money 
 into the country was supposed to increase its wealth, and every 
 cause that led to the exportation of money was held to 
 impoverish it. With this belief, nothing was more natural than 
 to complain of the rents remitted to England to absentee land- 
 lords, and to calculate how much it amounted to in the course 
 of half a century. It was no matter to be surprised at that 
 Ireland was poor, when so much money was annually sent 
 away without any return. The kingdom was in the same 
 condition as if it paid a tribute to England equal to the 
 amount of rent paid to the absentees. 
 
 The answer made to such complaints was, that no money 
 was sent out of Ireland to the absentees. Commodities, chiefly 
 cattle and corn, were exported ; these were paid for by bills, 
 and the produce of those bills applied to the payment of rent 
 to the absentees. Even if money was sent here to pay for the 
 cattle, and that money paid to the absentees, it would come to 
 the same thing in the end. The rent is still substantially paid, 
 not in money, but in that agricultural produce by means of 
 which the money was procured. As to the wealth sent out 
 without return, that is treated as a matter of no consequence. 
 No one has any cause of complaint. A hundred pounds worth 
 of corn is sent to E.ngland, the produce of that corn is paid to 
 the landlord. He buys a hogsliead of French wine, which is 
 consumed by himself and his family. How arc the Irish
 
 Irelano.] in various countriks. 9 
 
 people worse off than if that hogshead of wine was consumed 
 by the same persons in Ireland ? 
 
 It might perhaps be admitted that Ireland would not suffer 
 much by the absence of any landlord who, if he was present, 
 would do nothing with his income except buying French wine. 
 But in fact a landlord does not in general spend so much as 
 half his income in the purchase of foreign goods. The greater 
 part of his income is employed either in paying for services, or 
 in the purchase of goods produced in the immediate neighbour- 
 hood. It makes a great difference to the producer whether his 
 market is close at hand, or whether he must send his goods to 
 a distance to seek for a customer ; and this difference will be 
 the greatest when the goods which he produces are bulky in 
 proportion to their value, and when the roads and other means 
 of communication are bad. 
 
 It may perhaps be said, " Let him produce such goods as 
 may be readily exported, as he ought to know that he must 
 seek a distant market." But in a poor and ignorant agricultural 
 community the producer has no choice. He can produce 
 certain things, and nothing else ; and it would be a dull 
 mockery to tell the family of a poor peasant, who can find no 
 convenient market for his eggs, and butter, and poultry, and 
 honey, and the services of his children, that he ought to employ 
 himself in making clocks and watches, or brushes, or gloves, or 
 cloth, or paper. He earns his bread from day to day by the 
 only business that he understands, however imperfectly, and he 
 never saw any one employed in any other pursuit, and he has 
 no means of getting into any other industry. 
 
 Let us abandon the argument derived from the balance of 
 trade, and examine the effect of absenteeism upon the small 
 village of C. All the property in tlie neighbourhood, to the 
 amount of ^20,000 a year, belongs to absentees. There is not 
 a gentleman's house or garden near it. There is very little 
 traffic, and the roads are bad. The post arrives and departs 
 at inconvenient hours, as there is not sufficient correspondence 
 to induce the Post-Office authorities to incur any expense in 
 improving the postal service. There are no public conveyances, 
 as there is not traffic enough to support them. The shops are 
 few and ill-supplied, goods are sold at a high price, and yet for 
 want of sufficient custom the i)rofit of the shopkeepers is very 
 small. The district cannot support a market, and the people 
 are obliged to travel a considerable distance for their supplies.
 
 lO SYSTEMS OK LAND TENURK [Longfield. 
 
 The peasant finds it impossible to obtain any price for butter, 
 eggs, poultry, and other small rural produce. They cannot be 
 sold in the neighbourhood, and the expense of carriage to a 
 distance consumes nearly the entire value. There are no means 
 of education. One medical practitioner, with very little skill, 
 has the monoply of an immense territory, from which he obtains 
 a scanty subsistance, as the gentry who are alile to give him 
 fees are absentees. Agriculture is in a very backward state. 
 The implements are of the worst kind. The cattle are of the 
 most unprofitable breeds. No improvements in either cattle 
 or implements have been introduced within living memory. 
 There are no gentlemen of wealth and education to know what 
 is done in other countries, to make experiments, to instruct the 
 people, and to introduce improvements. I am writing about 
 the state of things in the beginning of this centuiy. 
 
 The following extracts are taken from a report on the state 
 of the King's County, presented by Sir C. Coote to the Royal 
 Dublin Society, in the year 1801 : — 
 
 '•' Baro.w or (iKSHir.L. 
 
 " Every acre of this barony being the estate of Lord D., it 
 is almost entirely inhabited by farmers. They use the old Irish 
 plough and harrow, and none of the improved kind are yet 
 amongst them." " In this barony there is not a single town, 
 and only two villages, those of Killagh and Gcshill, but no 
 market held in either, though each has a patent for one." " The 
 roads throughout this barony are shamefully bad, and at times 
 almost impassable. Deprived of a resident gentry, this district 
 is in a lamentable state of neglect." " Farms run from fifty to 
 three hundred acres ; farm-houses have only the appearance of 
 warmth ; and if we except Dean D.'s, Mr. V.'s, and Mr. W.'s, 
 they have nothing of neatness to recommend them. The 
 tenent is obliged to repair : the old leases were for thirty-one 
 years, or three lives, few of which now exist ; those of later date 
 do not exceed twenty-one years, and non-alienation is insisted 
 on." " There is no want of bidders to every farm out of lease ; 
 and the highest gets the preference." '* Where such short leases 
 only are granted, little real improvement can be expected ; the 
 tenent is discouraged from it, lest he should have his rent raised 
 in his next tenure to the value of his improvements, which he
 
 Ireland.] IN VARIOUS t'OUNTRlKS. 11 
 
 is fairly apprised of, the highest bidder having ahvays the 
 preference. When the peasantry become more civiHsed, 
 perhaps this rigorous mode will be abandoned, and real solvent 
 tenants may be granted encouragement proportionate to their 
 abilities and industry." 
 
 I may add that the owner of this estate was not an encum- 
 bered proprietor. He died without issue, and worth nearly 
 a million sterling, and some of the leases which he granted 
 were impeached by his successor. 
 
 .Sir C. Coote's account of the Barony of Geshill is the natural 
 description of a large jiroperty owned by absentees. The object 
 was to give an account of the agriculture of the county ; and 
 he did not refer to those inconveniences which a resident only 
 can feel. 
 
 Let us suppose that some of the proprietors return to reside 
 in the district which I have described ; and consider the results 
 which are likely to follow. A better description of agricultural 
 implements is introduced. The common cart of the country, 
 with its wheels of solid wood without spokes, which only turn 
 with the axle, gradually disappears. It draws only two hundred- 
 weight, and is replaced by a cart with spoke wheels, which will 
 draw from ten to twenty hundred. The improvement is intro- 
 duced by a resident gentleman who is acquainted with the 
 superior vehicle. He employs carpenters to make them; and 
 these men and their apprentices are again employed by the 
 farmers in the neighbourhood, who quickly perceive the benefit 
 of an improvement which they see in actual operation, at the 
 same time that the means of making the improvement are 
 ])laced within their reach. The same thing occurs with respect 
 to ploughs and other agricultural implements. The farmer is 
 generally unwilling to alter his practice in submission to any 
 theory or to any arguments. He will not adopt an improve- 
 ment unless he sees it in actual successful operation. 
 
 In the same manner the resident landlord is the means of 
 introducing an improved breed of cattle, a better rotation of 
 crops, and that improved cultivation which he has witnessed in 
 other parts of the country. He is the living mode of communi- 
 cation between the ignorant backward district and the more 
 improved and more civilised i)arts of the kingdom. The 
 resident gentlemen attend to the state of the roads, and insist 
 that they shall be well made and duly repaired. They support 
 by their advice and subscriptions schools, dispensaries, and
 
 12 SYSTEMS OF LAND TEXURK [Loncfield, 
 
 various institutions of utility or charity. They assist in the 
 preservation of the peace and the local administration ot justice. 
 The increase of correspondence caused by a number of wealthy 
 residents leads to imnroved postal communication. The traffic 
 and travelling of themselves and their families, their friends and 
 their tradesmen, lead to the establishment of public conveyances, 
 which formerly could not have been run without a loss. All the 
 residents enjoy the advantages of these conveyances. The 
 custom of the resident landlords is a great assistance to the 
 shopkeepers in the neighbourhood, and enables them to keep 
 a better selection of goods, and to sell them at a lower price, 
 and yet a greater profit to themselves. The resident gentry 
 must have houses, offices, and gardens, which become part of 
 the wealth of the country, and require masons, carpenters, and 
 workmen of a superior description to make them and keep them 
 in repair. I need not proceed further to enumerate the 
 advantages which may be confidently expected from the 
 residence of the landed gentry on their estates. They are 
 certainly not met by the argument that the rents of absentees 
 are not remitted in gold and silver, but in bills purchased by 
 the sale of Irish commodities. 
 
 We are not to consider merely the effects of absenteeism in 
 the abstract, but its effects upon a poor ignorant country such 
 as Ireland was. It can hardly be doubted that the whole social 
 system must suffer from the absence of one important class. A 
 great gap is made by the want of men with knowledge, wealth, 
 or leisure for anything more than the supply of their immediate 
 pressing wants. The cases I have supposed of the utility of a 
 resident gentry, and the inconvenience of their absence, could 
 readily be supported by reference to facts. 
 
 The causes of absenteeism are partly the superior advantages 
 which England by nature possesses over Ireland. Its civilisation 
 is older and more advanced. It is a larger country, with a finer 
 climate, much richer in its mineral productions, and is more 
 conveniently and centrally situated. The most convenient way 
 for an Irishman to go to any part of Europe is to pass through 
 England. Ireland will always bear to England a relation like 
 that of a provincial town to the metropolis. But this does not 
 entirely at count for the extent to which absenteeism existed. 
 
 The chief cause is to be found in the confiscations and grants 
 which took place in the time of Cromwell, and confirmed by 
 the settlement made in the reign of Charles II. 13y those
 
 Ireland] IN VARIOUS COUNTRIES. 13 
 
 grants large estates fell into tlie hands of Englishmen who 
 would not, for ten times their value, have left their native 
 country to dwell in such a barbarous and disturbed country as 
 Ireland was. Accordingly they remained in England, and set 
 their newly-acquired estates in large tracts to tenants who 
 undertook to manage the land and pay the rent. The leases 
 were generally made at moderate rents, and sometimes for very 
 long interests. The laws relating to land made it easier for 
 men to set than to sell their estates ; and from this cause the 
 estates remained in the same families, and absenteeism con- 
 tinued to prevail. 
 
 It is, however, diminishing. In his Political Anatomy of 
 Ireland, Sir William Petty computed the absenteeism of Ireland 
 to extend to one-fourth of the real and personal property of 
 the kingdom. Lists of absentees, with their names and the 
 value of their estates, were published in 1729, and again in 
 1769. Many of the estates mentioned there have since been 
 sold, and purchased by men who reside in Ireland ; and in 
 many other cases where the estates remained in the same 
 families, the present representatives reside in Ireland for a con- 
 siderable portion of the year. It may be answered that, 
 although those particular estates are no longer held by absen- 
 tees, there may be other estates now possessed by absentees, 
 which were then held by residents. I do not, however, believe 
 that this has occurred to any considerable extent. Especially 
 it rarely happens that the purchaser of an Irish estate becomes 
 an absentee. Of the estates sold in the Encumbered Estates 
 Court, a very small proportion was bought by Englishmen or 
 Scotchmen, and even in those cases the purchasers frequently 
 came to reside in Ireland. 
 
 But not only has absenteeism diminished, but even when it 
 exists it is less injurious now than it was formerly. This is the 
 result of several causes. The roads are no longer dependent 
 upon the great proprietors for their existence or repairs. The 
 ratepayers now are permitted to take an active share in this 
 part of the county business, and county surveyors are officially 
 appointed to see that all contracts for the formation and repairs 
 of roads and bridges are duly performed. The poor laws now 
 compel the absentees to contribute their fair proportion to the 
 support of the destitute poor. The dispensaries are supported 
 by a compulsory rate, and no longer depend upon tlie casual 
 subscripions of the resident gentr)-. A large Parliamentary
 
 14 SYSTEMS OF LAND TEXURK [Longfield. 
 
 grant gives equal independence to the education of the poor. 
 The appointment of stipendiary magistrates gives assistance to 
 the residents, and suppHes the places of the absentees. The 
 penny postage and the cheap newspaper press bring informa- 
 tion to every part of Ireland. Steam has almost made a bridge 
 across the channel, and railways are now made to places that 
 were formerly inaccessible. Thus in the Barony of Geshill, in 
 which there was such a want of good roads in the beginning of 
 this century, there is now a railway station ; and it is easier 
 now for a man to travel from Geshill to Dublin than it was then 
 to go from one part of the barony to another. 
 
 Besides the changes just mentioned, another cause tends to 
 mitigate the mischievous eftects of absenteeism. The wealth 
 of Ireland not derived from the rents of land has considerably 
 increased. Taking round numbers, we may say that in the 
 course of two centuries the population has increased five-fold, 
 the rental has increased fifteen-fold, and the general wealth of 
 the country has increased fifty-fold. It is probable that the 
 marketable value of the interests which the occupying tenants 
 have in their farms is about fifty millions sterling. 
 
 But absenteeism is still an evil, although not so great as it 
 was ; and it may be asked, " Can anything be done to mitigate 
 or prevent it ? '' Legislation is slowly moving in this direction. 
 One great truth is gradually dawning on the public mind, that 
 every matter of public importance (not of private interest) 
 should be undertaken by the state, and not be permitted to 
 depend upon the casual contributions of benevolent individuals. 
 Whatever ought to be given to the poor, beyond what they can 
 obtain by their own exertions, ought not to depend upon the 
 accident of their living in a rich and liberal neighbourhood. 
 Several of the changes which I have noticed in our legislation 
 follow at once from this principle. 
 
 Nothing would more tend to diminish absenteeism than 
 free trade in land, and the absence of all restrictions that im- 
 pede its transfer. There is a natural tendency in propert}' to 
 move towards its owner, or in the owner to move towards his 
 property. Thus, in the case of a great Irish railway, it was 
 thought expedient, soon after it was formed, to compare the 
 interests of the Isnglish and Irish proprietors. It was then 
 found that, although the two classes were equal in number, the 
 English ])roi)rictors held two-thirds of the stock. Some years 
 afterwards the same comparison was made, and it was found
 
 Ireland.] IX VARIOUS COUNTKIKS. 1 5 
 
 that the proportions in the meantime liad been reversed, and 
 that the Irish i)roprietors held twice as much stock as tlie 
 P^nglish. l"he change has since gradually gone on in the same 
 direction. 
 
 But there is a much greater tendency in land than in railway 
 shares to belong to the residents of the country in which the 
 property is situated. A railway share is merely a right to 
 receive a certain proportion of the profits made by the company. 
 What those profits are can only be known from the accounts, 
 which are equally accessible to the nearest and the most distant 
 proprietors. But land is something different ; it is more than 
 a mere income, and an intimate acquaintance with it is neces- 
 sary in order to know its value, present and prospective. No 
 person has any special desire for a particular railway share ; 
 but when any land is to be sold, it frequently happens that 
 there are several persons who know its value well, and to 
 whom that land is more desiralile than any property of ecjual 
 value in any part of the kingdom. Such persons must be 
 residents in the neighbourhood, or at no very great distance, 
 and they are therefore the most likely to purchase it. 
 
 The principal laws that prevent that frequent transfer of 
 land which would })ut an end to absenteeism, are the law of 
 ])rimogeniture, the heavy stamp duties on conveyance, the law 
 which permits proi)erty to be settled on unborn persons, and 
 the general comi)lications permitted in the titles to real pro- 
 perty. Something has been done to facilitate the transfer of 
 land by the creation of the Landed Estates Court ; but it is an 
 inconvenient anomaly, and exhibits the imperfection of the 
 law, that a lawsuit shoukl be thought the best and the most 
 expeditious mode of selling an estate. The Record of 'I'iUe 
 ■Act has been passed to facilitate further the transfer of' land ; 
 but it has not been very effective, and as long as settlements 
 are permitted, the transfer of land cannot be free from 
 difficulty.
 
 l6 SYSTEMS OF LAND TENURE [Longfield. 
 
 CHAPTER III. 
 
 A VERY injurious custom prevalent in Ireland, and encouraged 
 by the law, was the permitting an accumulation of arrears of 
 rent to remain due by the tenantry. In many districts in the 
 south and west, every tenant was in the condition of an uncer- 
 tificated bankrupt, whose debts amount to more than he can 
 ever hope to pay. 
 
 It is difficult to conceive anything more calculated to destroy 
 the energies of a tenant than the consciousness that no amount 
 of skill, industry, or economy can improve his position, while 
 idleness and prodigality can hardly make it worse. This is the 
 state of a tenant who holds his land at a rent rather higher than 
 he can afford to pay, and who finds that each year adds to the 
 amount of arrears due to his landlord. If any lucky accident 
 should increase his fortune, or add to the value of his farm, it 
 is a gain to his landlord, but no benefit to himself; while a bad 
 crop, whatever be the cause of it, only makes an addition to the 
 bad debts due to his landlord, but is no concern to himself. 
 As long as he owes more than he can pay, he is equally in his 
 landlord's power, whether the arrears amount to fifty or to five 
 hundred i)ounds. The landlord, if he wishes it, may seize all 
 his goods, and evict him from his farm. His only hope lies in 
 the forbearance of his landlord, //'<?;;/ 7i<hatei'er motive that for- 
 bearance may proceea. 
 
 A tenant in this position will never make any payment until 
 he has made every effort in his power to evade it. When he 
 pays a portion of his rent, he feels himself so much the poorer; 
 his property is less by the amount he has paid; but he does not 
 obtain in exchange that independence and freedom from debt 
 which in ordinary cases are the results or the motives of the 
 payment. It is a most unsatisfactory thing to pay money, and 
 yet to remain hopelessly insolvent. 
 
 Why, then, docs he pay anything? He does it in order to 
 avoid a distress, or an action, or an ejectment. He knows 
 that he cannot expect to retain possession of his farm without 
 paying something; he must only feel his way, and try to pay as 
 little as possible. Hence a perpetual effort to avoid payment,
 
 Ireland.] IN VARIOUS COUNTRIES. 17 
 
 by pleas of distress and poverty, and a contest between the 
 landlord and the tenant. The former is uncertain whether 
 the latter's pleas of poverty are true; the tenant is uncertain 
 wliether the landlord is serious in his threats of taking legal 
 proceedings. The contract is disregarded, and the parties have 
 no guide to direct them how much they may demand and how 
 much they ought to concede. 
 
 When a single tenant succeeds in reducing his rent by 
 pleading inability, every tenant will endeavour to do the same. 
 A man will almost think it a hardship to be compelled to 
 observe his contract, when he sees that his neighbour is 
 permitted to evade it. The feeling of independent honesty is 
 gone. The insolvent tenant is not looked upon in the same 
 light as an ordinary debtor who is unable or unwilling to pay 
 his creditors, but is considered as a man who has made a 
 skilful bargain ; for the payment of each gale of rent is made 
 the subject of a separate bargain. I could narrate many 
 instances in which tenants succeeded in their plea of poverty, 
 and were afterwards by accident discovered to have been in 
 possession of money far more than sufficient to pay their rent 
 twice over. 
 
 I have known many estates in which no account was ever 
 settled between the landlord and the tenant. Payments were 
 made from time to time, but the tenant cared very little 
 whether they were placed to his credit or not. 
 
 This vicious custom often led to the offer of rents which 
 the farmer knew he could not pay. The solvent farmer, 
 who hoped to cultivate the land skilfully, and to derive a profit 
 from his industry, and skill, and capital, and to pay his rent 
 punctually, had no chance of getting a vacant farm against 
 the competition of a man who did not intend to fulfil his 
 engagements. 
 
 Thus the system tended to throw the lands into the hands 
 of dishonest or insolvent tenants. Such men began by pro- 
 mising to pay more than the land was worth, and ended by 
 paying less than its fair value. Those tenants were not only 
 unable from want of capital to make the land productive, but it 
 was also their interest to avoid high and efficient cultivation. 
 Their apparent poverty was the staff on which they relied 
 in lieu of payment of their rent ; and to preserve this ap- 
 pearance it was necessary that they should carefully avoid such 
 things as a sufficient stock, or a good breed of cattle, improved 
 c
 
 1 8 SYSTEMS OF LAND TENURE [Longfield. 
 
 agricultural implements, or any outlay on their farm, either for 
 ornament or utility. Their object was, with the least possible 
 expense, to raise a scanty crop, which would prove that they 
 were unable to pay the rent. 
 
 By this proceeding the landlord, the country, and even the 
 tenant himself, were sufferers. The landlord had his land 
 deteriorated by bad cultivation, and received less than its fair 
 value, and far less than his nominal income. In many cases it 
 did him a further injury, by enabling him to excuse to himself 
 his own extravagance. He owes a good deal to his creditors, 
 but his tenants owe a considerable sum to him; and in this 
 manner, without going into details, he is able to present a 
 rough balance of accounts to his conscience if it accuses him of 
 exceeding his income.* 
 
 The country obviously suffers by anything that diminishes 
 the produce of the soil. The tenant hides his money instead 
 of employing it in reproductive works. The fund for the sub- 
 sistence of the labourer disappears, and there is no profitable 
 employment for the peasant and the artisan. A number of ill- 
 paid labourers are employed to do badly a work which a few 
 well-paid men could perform efficiently with proper capital and 
 under skilful direction. Every man who observes the agricul- 
 ture of England and Ireland, even with a careless eye, is struck 
 by the contrast between the' produce of the land and the 
 number of men employed on it. To the Irish traveller in 
 England it seems as if the work was done vrithout hands. He 
 sees the work finished, but nobody doing it. The pjiglishman 
 wonders at the multitude of men whom he sees with agricul- 
 tural implements in their hands, and nothing done to account 
 for their appearance. It was often found that the land was 
 most wretchedly cultivated in districts where labour in abun- 
 dance could be had for sixpence a day, or even less. There is 
 no profit to be made by employing ill-paid labourers. And 
 without skill, and capital, and freedom, and security, the 
 employer cannot afford to pay fair wages. 
 
 * This may appear fanciful and far-fetched ; but it is certain that many do 
 deceive liiemselves by comparintj llieir expenditure with their nominal incomes. 
 The observation is not new. ' ' So when they have raised their rents they 
 spend their fortunes l)y living up to a nominal rent-roll, which is frequently 
 the reason we sec so many families mined and often extinct, "<S:c. "Landlords 
 would have a certain and well-paid rent, and would know exactly what they 
 could depend upon. This would make them less lavish and extravagant than 
 they are."— .Akthur Uoubs, 1729.
 
 Jkki.and.] in various COUNTRIES. 1 9 
 
 It may be said that, even for a tenant owing more rent 
 than he could pay, it would be on the whole more prudent to 
 cultivate his land skilfully and carefully. This may be the 
 case, but men are naturally disposed to indolence, and a slight 
 argument will often turn the scale. A man is often not indus- 
 trious even when he knows that the produce of his industry 
 will be his own; how much less will his industry be when he 
 has good reason to fear that another will seize the fruits? 
 
 This complaint of high rents has been made without ceasing 
 for more than three hundred years. There was never less 
 ground for it than at the present day, although in some in- 
 stances the rent demanded is still too high; but this chiefly 
 occurs where the landlords are middlemen, or where the 
 property is very small. 
 
 Several circumstances concurred in former times to make 
 the competition for land keener, and the demand for high rent 
 more inconsiderate then than now. One great difference 
 between English and Irish law, the importance of which it is 
 difficult to estimate, was that in Ireland there were no poor 
 laws. The poorer tenant, of the class that in England would 
 look to the parish for support, saw no resource in Ireland but 
 to obtain on any terms possession of a sufficient quantity of 
 land to produce as much potatoes as his family could consume, 
 with, if possible, after the potatoes, on the following year, as 
 much corn as with his pig would be sufficient to pay the rent. 
 The general poverty and ignorance of the people increased the 
 competition. There was not much difference among the people 
 who applied for a vacant farm. No man had such capital or 
 skill as to enable him to make a greater profit than his com- 
 petitors, and the most obvious distinction was the willingness 
 to offer the highest rent. For such tenants the landlord could 
 not erect suitable buildings for residences or farm offices. 
 The tenant, if he got them, would not keep them in repair. 
 
 The law gave some encouragement to this mode of dealing 
 on the part of the landlord by the absence of poor laws, by the 
 law of distress, which enabled the landlord to help himself 
 without the expense of litigation with an insolvent tenant, and 
 by the want practically of any law of limitations to affect the 
 landlord's claims against his tenants. The law has been 
 altered in this respect, although scarcely to a suflicient extent. 
 
 The imprudence of setting land at high rents to insolvent 
 tenants was becoming apparent to many, and the events con-
 
 20 SYSTEMS OF LAND TENURE [Longfield. 
 
 nected with the famine of 1847 made it manifest to all. It is 
 comparatively a rare thing now for a landlord to set land at a 
 rent which he does not believe the tenant ought to be able to 
 pay ; and rents are now generally paid with reasonable punc- 
 tuality. Notwithstanding the outrages that occur in some 
 parts of the country, I believe there never was a time in which 
 the occupying tenants owed so little rent. 
 
 It is still, however, not unusual to insert in leases many 
 clauses and covenants which are inconvenient to the tenant 
 and useless to the landlord. They are not observed ; but they 
 have the mischievous effect of giving the landlord too much 
 power over his tenant. This is not pecuHar to Ireland. I 
 have seen copies of English leases which would make it very 
 difficult for a tenant to manage his farm with profit, if he did 
 everything which by the terms of his lease he was bound to do. 
 
 The allowance of half a year's rent in arrear, under the 
 name of the running gale, is almost a settled institution in 
 some parts of the country. This is so much the case, 
 that a tenant who had not paid his landlord the rent that 
 fell due on the ist of November, would in the following month 
 of jNIarch describe himself as owing no rent to his landlord, 
 and in a year after he would describe himself as owing only a 
 year's rent. He would not count the rent that fell due the 
 preceding November. 
 
 This custom is mischievous, as leading to accumulation of 
 arrears; it keeps the tenant in the landlord's power; it prevents 
 the tenant from looking to his lease as the measure of his 
 obligations. In this, as in other cases, the prospect of long 
 credit induces him to offer too high a price. 
 
 The institution of a running gale often compels the land- 
 lord to plunge into debt, from which he never extricates him- 
 self. A man dies in December possessed of a good estate. 
 The eldest son gets possession, subject to a jointure and por- 
 tion. Thus he has a smaller income than his father had, while 
 he is naturally disposed to live in the same style. He has also 
 to be at some expense in buying furniture and other matters, 
 when he takes possession of the family mansion. But all his 
 diflkullies are crowned by the running gale, which adds nearly 
 si.\ months to the period that intervenes before he receives any 
 rent from his tenants. He receives very little before he is ten 
 months in the possession of his estate ; and in the meantime 
 he often contracts inveterate habits of nmning into debt.
 
 Ireland.] IN VARIOUS COUNTRIES. 21 
 
 Arthur Young, in the interests of the tenantry, strongly 
 recommended the enforcement of punctual payment of rent in 
 his advice to Irish landlords. "The first object is a settled 
 determination, never to be departed from, to let his farms only 
 to the immediate occupiers of the land, and to avoid deceit ; 
 not to let a cotter, herdsman, or steward, have more than three 
 or four acres on any of his farms. By no means to reject the 
 little occupier of a few acres from being a tenant to himself, 
 rather than annex his land to a larger spot. Having by this 
 previous step eased these inferior tenantry of the burden of the 
 interaiediate man, let him give out, and steadily adhere to it, 
 that he shall insist on the regular and punctual payment of his 
 rent, but shall take no personal service whatever. The meanest 
 occupier to have a lease, and none shorter than twenty-one 
 years, which I am inclined also to think is long enough for his 
 advantage. There will arise, in spite of his tenderness, a 
 necessity of securing a regular payment of rent. I would 
 advise him to distrain without favour or affection at a certain 
 period of deficiency. This will appear harsh only upon a 
 superficial consideration. The object is to establish the sy.s- 
 tem; but it will fall before it is on its legs if it is founded on a 
 landlord forgiving arrears or permitting them to increase." 
 " Such a steady regular conduct would infallibly have its effect 
 in animating all the tenantry on the estate to exert every nerve 
 to be punctual ; whereas favour shown now and then would 
 make every one, the least inclined to remissness, hope for its 
 exertion towards himself; and every partial good would be 
 attended with a diffusive evil ; exceptions, however, to be 
 made for very great and unavoidable misfortunes, clearly and 
 undoubtedly proved." 
 
 CHAPTER IV. 
 
 The subletting and subdivision of farms are not necessarily 
 connected with each other. A farm may be sublet without being 
 divided. But they partly produce the same effects, and pro- 
 ceed from the same causes ; and, in many cases, subletting 
 leads to subdivision. The common cause is the poverty of 
 the country. This, when there are long leases, leads to sub-
 
 2 2 SYSTEMS OF LAND TENURE [Longfield. 
 
 letting ; when the leases are short and unprofitable, it leads to 
 a subdivision of farms. 
 
 When a man holds land at a rent less than the full value of 
 the land, whether the lowness of the rent is caused by the 
 liberality of the landlord, or by the improvements which the 
 tenant has made on his farm, or by a general rise in the value 
 of land through the country, he has a property which he may 
 enjoy in person, or transfer to another. If his inclination or 
 any other circumstance leads him to any pursuit except the 
 occupation of that particular farm, he will endeavour to dispose 
 of his lease to the best advantage. In the wealthy districts of 
 the north of Ireland he will readily find a purchaser. There 
 are many men anxious to get a fami, and possessed of money 
 suftlcient not only to cultivate the land, but also to pay a fair 
 price for the interest of the selling tenant. 
 
 After this transaction, the new tenant now in occupation of 
 the land has gained nothing by the liberality of the landlord, 
 or the general rise in the value of land, or the improvements 
 made by the tenant. Whatever the land (from any cause) is 
 worth above the rent, he has paid for in the purchase-money 
 which he has given to the preceding tenant. To him it is the 
 same thing as if he had paid a fine to the landlord on getting 
 possession of the farm. The sum thus paid depends more on 
 the means of the purchaser than on a nice calculation of the 
 value of the farm, or of the interest which the tenant has in it, 
 although of course the greater the interest the greater will be 
 the price paid for it. 
 
 There is nothing in a transaction of this kind injurious to 
 any ])erson. On the contrary, like the ordinary operations of 
 free trade, it appears beneficial to all parties concerned. This 
 is obvious with respect to the immediate parties to the bargain. 
 It is a voluntary transaction, into which neither party would 
 enter if he did not consider it to be for his benefit. The 
 outgoing tenant prefers the money to the land, the incoming 
 tenant prefers the land to the money. The country gains by 
 the change, as the incoming tenant is probably a better farmer 
 or possessed of more capital than his predecessor. The land- 
 lord is secured of his rent, and of the performance of the 
 covenants in his leases. It is not likely that any man would 
 pay a large sum for a farm, and then expose himself to ruin, 
 or put himself in the landlord's power by neglecting to pay 
 his rent, or by breaking the covenants in the lease.
 
 Ireland.] IN VARIOUS COUNTRIES. 23 
 
 In one case, however, the change is not always to the 
 landlord's taste. If he conferred an obligation on the out- 
 going tenant by granting him a lease on liberal terms, he 
 may not be pleased by the change which puts the farm into 
 the hands of a person who is under no obligation to him. 
 But this is a very slight matter. The sense of obligation is 
 seldom very durable unless it is kept up by continual kindness, 
 and such conduct on the part of the landlord would excite the 
 same feeling in the new tenant. 
 
 But there are parts of Ireland, chiefly in the south and 
 west, which are so poor, that a tenant who wished to dispose 
 of a valuable interest in a farm might find it difficult, if not 
 impossible, to procure a purchaser. Many people might wish 
 to get his farm, but none have the money to pay for it. The 
 outgoing tenant therefore sublets the land instead of selling 
 it, and thus receives an annual profit rent instead of a gross 
 sum in hand. The new tenant hopes to pay the profit rent 
 out of the proceeds of the form. He is in the same position 
 with respect to annual payments as if he had borrowed money 
 to buy the tenant's farm, paying as interest a sum equivalent 
 to the profit rent. He could not, however, borrow the money, 
 because there are few who have any sum to lend, and because 
 he has no security to offer. The middleman trusts him with 
 the land, relying upon the extraordinary powers which the law 
 gives the landlord for the recovery of his rent. It is probable 
 that the under tenant will engage to pay a very high rent, to 
 compensate for the indifferent security which he offers to his 
 immediate landlord. 
 
 In many cases this subletting was a profession or calling. 
 The chief landlords thought it impossible, or at least very 
 unpleasant, to collect rent from the very poor persons who 
 were the occupying tenants of the country. They gave leases 
 for their lives, or longer, and on reasonable terms as to rent, 
 to men whom they considered good marks for the rent, and 
 who sometimes promised that they would make some improve- 
 ments in order to enable them to sublet at a profit. Thus 
 subletting became very general, and there were large districts 
 in which scarcely a single occupying tenant held directly from 
 the owner of the fee. 
 
 This system was useful to noliody but the middleman. He 
 had a good income with very little risk or trouble ; and in 
 the earlier part of this century, during the French revolutionary
 
 24 SYSTEMS OF LAND TENURE [Lon'cf)eld. 
 
 war, and the depreciation of the currency caused by the sus- 
 pension of cash payments by the Bank of England, rent of 
 land rose so much that in many cases the middleman had as 
 much profit from the land as the head landlord himself. Some- 
 times land rose so much in value, that the tenant of the 
 middleman was able to sublet his farm at a profit, and thus 
 to become a middleman himself. 
 
 The peasantry under this system were reduced to a 
 wretched state. The traditions of liberality which belong to 
 men who inherit large estates did not exist among men who 
 took farms for the purpose of subletting them at the highest 
 rent they could obtain. They were not expected to deal like 
 gentlemen with their tenantry. They belonged nearly to the 
 same class as the farmers, and made as hard a bargain in 
 setting a fiirm as they would in selling a horse. They could 
 scarcely afford to be liberal. If a gentleman whose estate 
 is set for fifteen hundred a year makes a reduction of his rent 
 at any time to the extent of twenty per cent., he loses one- 
 fifth of his income ; but if he was a middleman, paying a rent 
 of twelve hundred a year, he could not make such a reduction 
 without losing his entire income. The same principle extends 
 to every case. Every act of liberality by the middleman would 
 cost him a much larger proportion of his income. His trade 
 was to extract as much as possible from the wretched occupiers 
 of the land. The increase of population was so rapid, and 
 the general poverty of the country was such, that men were 
 found willing to engage to pay him anything that he demanded. 
 The wages of labour were so low, and the difficulty of getting 
 employment was so great, that it was better to get possession 
 of land on any terms than to trust to casual employment for a 
 subsistence. 
 
 The middleman, not having a permanen interest, did not 
 care for the improvement or deterioration of the estate. A 
 thought upon the subject never crossed his mind. 
 
 Two circumstances were of material assistance to the 
 middlemen, and to those who acted like middlemen in their 
 treatment of the tenantry. Eirst, there were no poor laws. 
 They were therefore enabled to cover the land with a starving 
 population, without the possibility of being called upon by 
 law to contribute anything to their support. Secondly, the 
 law of distress Avas more severe than it is now, and enabled 
 the landlord to distrain growing crops. At common law, the
 
 Ireland.] IN VARIOUS COUNTRIES. 25 
 
 crop, until it was severed from the soil, was part of the soil, 
 and could not be seized by distress or execution ; but this 
 was altered by Act of Parliament, to enable the landlord to 
 seize the crops before they were ripe, to put keepers in pos- 
 session to watch them, and to carry them away when they 
 were ripe, leaving the starving tenant and his family in pos- 
 session of the naked land. Thus the landlord frequently 
 thought it for his interest to encourage the subdivision of 
 farms. I remember, many years ago, hearing an extensive 
 land agent laying down the principle in a very authoritative 
 manner, that it was better for the landlord that there should be 
 as many occupiers as possible on the land, since the more 
 occupiers, the more tillage was necessary to support the 
 tenants, and the landlord was able to help himself to the 
 produce of the soil before they got anything. 
 
 But although some landlords may have thought that sub- 
 division was for their benefit, they could not long have retained 
 that opinion of subletting. They soon saw that the middle- 
 man was no use to them, but was merely intercepting a portion 
 of their natural income ; and when the great fall of land took 
 place after the year 1815, many middlemen were broken, and 
 left the chief landlords to deal with the land itself or with 
 the immediate occupiers. Many landlords resolved to grant 
 renewals of leases to none but the tenants in actual occupa- 
 tion. Acts of Parliament were passed to prevent or discourage 
 subletting, and the system of middlemen gradually died away. 
 They exist now chiefly where the land is held under bishops' 
 leases, or under leases for lives renewable for ever. 
 
 Although I have referred to the subletting Acts, I do not 
 believe that they had much influence in preventing subletting. 
 The law was always sufticient, if the landlords inserted cove- 
 nants against subletting in their leases, and took a little trouble 
 to enforce them. What really caused the change was that the 
 landlords became alive to their interests on this point. 
 
 However mischievous the old custom of subletting may 
 have been, it is guiltless of one charge that has been sometimes 
 made against it. The landlord had a right to distrain for his 
 rent, even when the land was in the hands of an under tenant, 
 who had paid his own rent to the middleman. It has been 
 frequently stated as a grievance of no unusual occurrence, that 
 owing to this state of the law, the tenant in occupation was 
 obliged to pay his rent twice over, once to his own immediate
 
 26 SYSTEMS OF LAND TENURE [Longfield. 
 
 landlord, and again to the head landlord. I have seen this 
 stated in tales written to illustrate the state of Ireland, and 
 even in evidence given before commissioners to inquire into 
 the state of Ireland. But the statement is untrue. Such 
 statements could not obtain credence among any men who 
 knew what the real grievance was under which the peasantry- 
 laboured from the middleman system. The real grievance 
 was that the rent was so high as to reduce the tenant to 
 indolent apathetic despair. His habitual state was one of 
 hopeless insolvency, and the middleman secured him against 
 being obliged to pay two rents, by charging him with one 
 rent so high as to exceed his means of paying it. 
 
 The foundation of the charge is this : a man gets a farm 
 for a long term at the moderate rent of ^i an acre ; he sub- 
 lets it to a farmer at the higher rent of ^2 an acre, and, to save 
 himself trouble, he accepts his profit rent of ^i from the tenanty 
 and lets the tenant settle the balance with the head landlord. 
 The tenant does not dislike this arrangement, as the head 
 landlord is usually more indulgent than the middleman. He 
 is apt, however, to describe himself as paying two rents 
 (although he is in reality only paying one rent, divided 
 between two persons), and to complain of it as a grievance 
 that after he has paid his own landlord, another landlord 
 should demand more from him. 
 
 The system of subletting, at once the cause and the effect 
 of Irish poverty, has nearly disappeared, and the middleman 
 by i)rofession no longer exists. In general, the immediate 
 landlord of the occupying tenant is either the actual lord of 
 the fee, or he has an interest in the land equivalent for all 
 practical ])urposes to that of a fee-simple proprietor. 
 
 The subdivision of farms arises from different causes ; one 
 cause is subletting. The middleman who sublets looks for 
 the highest price which he can procure. The highest offers 
 will be generally made by the poorest farmers or labourers. 
 These generally would not have the means to cultivate more 
 than a small patch of land, and they would not be a mark for 
 the rent of even a middle-sized farm. In many cases the 
 middleman held a farm in his own hands, and received a con- 
 siderable part of the rent of the small holdings under him in 
 labour, or in such agricultural produce as the cotter tenant 
 could produce, and as his j)Osition as a farmer enabled him to 
 consume or utilise. His account with his tenant would be
 
 Ireland.] IN VARIOUS COUNTRIES. 27 
 
 something of this kind : on the one side would be the rent, 
 the per contra would be two shillings and fourpence cash, 
 forty days' labour, seven days' work of a horse and cart, a 
 young pig, two geese, five pair of chickens, six dozen of eggs, 
 and two loads of turf. The accounts, however, were never 
 settled ; receipts were neither given nor demanded ; the tenant 
 knew that he owed more than he could pay, and he had very 
 little curiosity to know the exact amount. But the race ot 
 middlemen has now nearly died away, and subdivision from 
 this cause rarely takes place. 
 
 A more fertile cause of subdivision of land is the custom 
 which prevailed among farmers of dividing their farms among 
 their children. In this manner a farm belonging to a man 
 with several children would be divided into five or six smaller 
 farms ; and these in their turn might be further subdivided in 
 the following generation. The landlord found it impossible to 
 stop this proceeding. There were no formal acts which he 
 could notice; the children who were born on the land remained- 
 on it, and by mere verbal agreement each enjoyed some par- 
 ticular part instead of all enjoying the whole in common. 
 Sometimes they remained for a time in the same house, and 
 then the labour of a few days would erect a separate cabin, 
 which might appear to be intended as a dwelling for a labourer, 
 or as a pigsty, or as a residence for some offset of the family. 
 
 The chief causes of this custom were the absence of proper 
 buildings on the land, and the ignorance and poverty of the 
 farmers. The son who built a wretched cabin was as ^vell 
 lodged as he had been in his father's house ; he had never 
 known anything better. As there were no farm buildings nor 
 any capital on the chief farm, he did not want any for the plot 
 assigned to him for his support. In fact, the want of capital 
 and farm buildings made a small farm more convenient and 
 more profitable than one of larger size. If the large farm had 
 been supplied with a suitable dwelling-house and other build- 
 ings useful for the cultivation of the farm, it could not have 
 been divided without inconvenience and probable loss. 
 
 Thus the condition of the country made this subdivision a 
 matter of convenience ; but the poverty and ignorance of the 
 people made it a matter of necessity and justice. The farmer 
 possessed nothing but his farm, and, therefore, could not pro- 
 vide for a child in any manner except by giving him part of it. 
 He and his children appeared not to know that any mode of
 
 28 SYSTEMS OF LAND TENURE [Longfield. 
 
 livelihood was open to them except the cultivation of the par- 
 ticular farm on which they had hitherto lived. In many cases 
 they could only speak Irish, which put successful emigration 
 out of the question. 
 
 Those causes of subdivison of farms are gradually losing 
 their force. Many farms are so Avell provided with suitable 
 dwelling-houses and convenient offices, that they could not be 
 subdivided without considerable loss. Tenants have more 
 money, and are able to push forward their children in various 
 occupations. There are more sources of employment open to 
 them, and their better education enables them to emigrate with 
 success. The spread of education has been a great cause of 
 the increase of emigration. A very small proportion of that 
 increase has been caused by insecurity of tenure. 
 
 I do not believe that at present there is much tendency to 
 an inconvenient subdivision of land in the greater part of 
 Ireland ; things may be safely left to find their own level, and 
 under a system of freedom land will naturally fall into those 
 parcels which will make it most productive and useful to the 
 entire community. There are physical causes in the land itself 
 which in some cases will produce small, and in others large 
 farms. 
 
 CHAPTER V. 
 
 It h?.s been supposed by many that a l)eneficial change might 
 be produced in the condition of Ireland by creating and keep- 
 ing up a large body of peasant proprietors — that is to say, of 
 men holding small farms in fee-simple. I .shall not enter into 
 much discussion respecting the utility of such proprietors, 
 because I believe it would be very difficult to create them, and 
 impossible to keep them up in such a country as Ireland. 
 Where they have long existed, they may continue for a little 
 longer and be sustained by habits and feelings traditionary in 
 the families. IJut such habits and feelings cannot be created 
 by any law, and they are inconsistent with the mental activity 
 of Irishmen. They are inconsistent with railways, penny 
 postage, a cheaj) newspaper press, and national education.
 
 Ireland.] IN VARIOUS COUNTRIES. 29 
 
 Men will follow where their interests lead them, and in general 
 // is 7iot for a /nan's interest to be a peasant proprietor ! 
 
 This may appear a paradox to some who would lay it down 
 as incontrovertible truth that every peasant would desire to 
 become a proprietor. I do not deny that, but I say that in 
 general the proprietor would not wish to remain a peasant. 
 Take, for example, the case of a man who is the owner in fee 
 of thirty acres of land, worth thirty shillings an acre. The 
 value of this, together with the capital necessary for its cultiva- 
 tion, and the furniture of his house, &c., cannot be less than 
 fifteen hundred pounds, and it is not to be supposed that a man 
 who has received a fair education, and has so much capital at 
 his command, would consider his intellect and time and capital 
 sufficiently employed in the cultivation of five small fields. A 
 farmer with the same capital and holding a hundred and fifty 
 acres at a full rent would be much better off. He could live in 
 greater comfort, give his children a better education, and leave 
 them a larger provision at his decease. The small proprietor 
 might improve his position by selling his land, and engaging in 
 trade ; or he might set his land, and enter into a profession, or 
 some industrious calling with a salary, or he might emigrate 
 and become the owner of five hundred acres of land instead 
 of thirty, and have boundless prospects for his family instead 
 of giving them the paltry provision of five or six acres each. 
 In short, he can scarcely make a more unprofitable use of his 
 estate than by occupying it himself as a peasant proprietor. 
 
 Of course, if you take a peasant of forty years of age, and 
 make him suddenly a proprietor, although he may emigrate, he 
 cannot readily betake himself to any other pursuit. But his 
 sons will not remain on that farm. The latest agrarian crime 
 that I saw mentioned in the newspapers was the murder of a 
 man with a Celtic name. He was stated to have been the 
 owner in fee of forty acres of land, which he set to four or five 
 tenants, and went away to earn his bread elsewhere. He 
 returned, having become entitled on his discharge from some 
 public employment to a pension of about ^^14 a year. He 
 took back some of the land from the tenants to reside on it 
 himself, forgiving them a year and a halfs rent in exchange. 
 He was brutally murdered. 
 
 In the sales in the Landed Estates Court it may be 
 observed as a matter of constant occurrence that a man with 
 an estate that would be the size of a single small farm does
 
 30 SYSTEMS OF LAND TENURE [Longfield. 
 
 not hold it all in his own hands, but sets the greater part of it 
 to several small tenants, not keeping more in his own hands 
 than is necessary for the supply of his house. 
 
 The possession of a small fee-simple estate can have little 
 tendency to prevent emigration. The price would furnish 
 the means of a prosperous emigration. The owner of an estate 
 of forty acres in Ireland may become the owner of several 
 hundred acres in Australia or America. 
 
 In those countries where there are many very small here- 
 ditary estates, the inhabitants are ignorant, unambitious, selfish, 
 frugal, and laborious. The whole concerns of the family are 
 centred in one care — how to preserve the patrimonial field. 
 With this view, only one son may marry, and the occupations 
 of all are settled beforehand with this one object. The peasant 
 proprietor has the virtues which the Irish farmer wants, and the 
 vices from which the Irishman is free. 
 
 I should not expect much advantage from the sudden 
 creation of peasant proprietors ; but the law ought not to do 
 anything to prevent their existence, as it now does by the law 
 of primogeniture, the law of settlement, and every law that makes 
 the transfer of land tedious, difficult, uncertain, or expensive. 
 
 The question of large and small farms is sometimes dis- 
 cussed as if it was intimately connected with the prosperity of 
 Ireland. Some think that the country would be more pros- 
 perous if it was divided into large farms, held by men of 
 capital, cultivating the land by means of well-paid labourers, 
 assisted by the most approved machinery. They wish to 
 assimilate the agriculture of Ireland to the manufactures of 
 P^ngland. Others are for the division into small farms, where 
 the farmer would be his own labourer and overseer. 
 
 A great deal may be said on both sides ; but the nature of 
 the land itself generally determines whether the farms should 
 be large or small. Rich plains, well fitted for jmsture, will be 
 held in large tracts. Uneven, rocky, rough, light, arable land, 
 will generally be divided into small farms. 
 
 "I'lie grazier, who buys and sells and fattens cattle for the 
 market, letiuires far more skill than the village farmer. He 
 has far more opportunities of gaining money by skill, or of 
 losing it by ignorance. Hence the unskilful grazier breaks, the 
 skilful enlarges his territory. This he may safely do, as it is 
 not necessary for him, as it is for the tillage farmer, to watch 
 his labourers all day. He may even have several farms not
 
 Ikkland.] in various COUNTRIES. 3 1 
 
 adjacent to each other. The more extensive his operations 
 are, the more opportunities he has of using and even of im- 
 proving his skill in the selection, purchase, sale, and manage- 
 ment of cattle. For these reasons there is a tendency for 
 fattening pastures to be held in large tracts. 
 
 The case is different with rough tillage farms. The expense 
 of locomotion and of carriage from one part of the farm to 
 another, and the impossibility of adequate inspection if the 
 farm is large, naturally lead to the creation of small farms. 
 
 The nature of the soil also determines to a great extent 
 whether the land should be employed in pasturage or tillage. 
 There is a rich stiff clay that is excellent for pasture, and while 
 under pasture improves every year, but is not profitable for 
 tillage, as it requires so m.uch labour as to consume the value 
 of the crop. Old pasture land, if broken up, takes a long time to 
 recover its fattening qualities, although it will yield hay or be fit 
 for dairy produce. On the other hand, there is a light soil 
 which yields a fair crop without much expense of cultivation, 
 and will not improve by being kept long in pasture, but has a 
 tendency to run into unprofitable moss. This land is necessarily 
 employed in tillage, and divided into .small farms. If a farmer 
 makes money, he cannot conveniently extend his operations, 
 which are limited by the size of his farm. His success depends 
 more upon thrift and industry than upon superior skill. The 
 chief difference is that the good farmer is able to live in 
 greater comfort than the bad one. Agricultural skill has not 
 made such progress as to decide the contest between high and 
 low farming. The one makes much, but the other spends 
 little, and runs no risk. 
 
 I have given instances of land which must be held in large 
 pasture farms, and of land which must be held in small tillage 
 farms ; but these shade into each other by imperceptible grada- 
 tions, and there is much debatable ground, in which sometimes 
 the one and sometimes the other system prevailed. 
 
 At present I think the system of pasture and large farms 
 has a tendency to extend itself, for the following reasons : — 
 
 In the first place, the price of meat has risen, while the 
 price of corn has not advanced. This is an addition to the 
 grazier's profit. 
 
 In the second place, the wages of labour have risen in a 
 greater degree than the efficiency of the labourer, and this, 
 by increasing the expense, reduces the profits of tillage.
 
 32 SYSTEMS OF LAND TENURE [Longfield. 
 
 Thirdly, the invention of machines for threshing, reaping, 
 and mowing enables the farmer on a large scale to perform 
 those important operations with less expense and greater 
 rapidity. It would be unprofitable to a small farmer to possess 
 those machines, for which his farm could not furnish more than 
 one or two days' work in the year. It is true that they may be 
 hired, and, in fact, this is often done with threshing machines. 
 But with mowing and reaping machines this is more difficult. 
 The farmer cannot so readily make an appointment some time 
 beforehand, irrespective of the weather ; and when his crop is 
 ready he cannot wait for the reaping machine without some 
 loss. The land also must be properly prepared, or the 
 machinery will suffer damage. 
 
 These circumstances throw some difficulty in the way of 
 hiring reaping and mowing machines ; but it is not impossible, 
 and is sometimes done. 
 
 Another circumstance, which tends to keep up large farms 
 when once they have been consolidated, is the larger capital 
 now expended in the erection of farm-buildings. It is obvious 
 that when a farm of two hundred acres is supplied with a 
 suitable dwelling, a barn, houses for cattle, and other offices, 
 it cannot be divided into two farms without loss. 
 
 The best remedy against too great an extension of the 
 large farm system, without an injurious interference with the 
 free course of industry, is to be found in a good agricultural 
 education for the poor. It is a sad sight to see a holding of 
 four acres, of which only one is in a state of cultivation, and 
 that often a cultivation of a wretched kind. The remaining 
 three acres are taking a long rest, after having been over- 
 cropped, and the entire is full of weeds. Meantime, the 
 peasant is looking idly on, and between the time of planting 
 his potatoes and digging them, spends only a few days' labour 
 on his farm in earthing them. 
 
 His short or long tenure has nothing to do with the matter. 
 The work which he neglects is precisely that work which would 
 yield him an immediate return. 
 
 It is not always the sloth of the owner which is the cause of 
 the wretched state of his little farm. He is often ready to 
 work for any employer at very small wages. It has not been 
 an uncommon thing for a man to look for work at sixpence a 
 day when he might earn more than double that amount by 
 working for himself on his own little farm.
 
 Ireland.] IN VARIOUS COUXTKIKS. ;^;^ 
 
 Ignorance is the chief cause of his idleness and mismanage- 
 ment. The peasant farmer knows only how to raise potatoes 
 according to the routine of the slovenly farmers around him. 
 While he imitates them, he is inferior to them, for he works 
 Avith less capital and worse tools ; but he is unaware of the 
 advantages which he might possess by deviating from their 
 practice, and treating his little plot as a garden, not as a farm. 
 He thus might find employment for himself and all his family, 
 and treble the produce of his land when they spent that time in 
 profitable work which they from ignorance often spend in worse 
 than unprofitable idleness. To enable him to act thus he must 
 be taught, for at present he has no opportunity of learning the 
 cultivation of a garden farm by experience or observation of 
 what is going on around him. 
 
 He has the advantages on his side that the personal ex- 
 penses are inconsiderable. Being himself the labourer, he 
 requires no stcAvard or overseer, and he saves many of the 
 expenses incident to a larger farm. Those advantages are 
 lost as soon as he possesses more land than he can cultivate 
 without a horse. It then ceases to be a garden farm. 
 
 The small farmer in Ireland has never sufficiently considered 
 the necessity of keeping up the fertility of the land. Ireland 
 has been mercilessly over-cropped. Notwithstanding the in- 
 crease of pasture since 1848, the land has not yet recovered 
 from the exhaustion caused by the over-tillage of a century. 
 
 Formerly the course of husbandry was of this kind : — ist. 
 Potatoes, with manure. 2nd. Wheat. 3rd and successive 
 years. Oats and barley until the land was so barren as to be 
 incapable of yielding another corn crop. It was then permitted 
 to rest in dirt and weeds until it got a green skin or sole, and 
 then the same exhausting process recommences. 
 
 This was the case in Arthur Young's time, 1777. Thus he 
 describes the courses of Newtown Stewart : — i. Oats on lay. 
 2. Wheat. 3. Oats. 4. Barley. 5. Oats. 6. Barley. 7. Oats. 
 8. Left for lay. A few sow clover or r}'e-grass for two years. 
 
 His account of the courses of Courtown are — i. Potatoes. 
 2. Barley. 3. Oats : then more crops of oats, or barley and 
 oats, till the soil is exhausted, when they leave it to turf itself, 
 which it will not do under ten or fifteen years. This system 
 continued until the middle of this century on many estates in 
 which the agents seemed to consider that their only duty was 
 to collect the rents.
 
 34 SYSTEMS OF LAND TENURE [Longfield. 
 
 Even with careful management, it would not have been 
 easy to preserve the fertility of the soil unimpaired when the 
 chief exports were provisions, and no artificial manures were 
 imported. 
 
 CHAPTER VI. 
 
 ULSTER TENANT RIGHT. 
 
 The phrase " tenant right " is not unknown in England, and 
 is sometimes found in wills and other legal documents. It 
 signifies not merely the actual estate and right of the tenant, 
 but also the good-will, and the expectation which the tenant 
 has that he will be permitted to remain in possession of the land 
 on reasonable terms. The phrase is used in many parts of 
 Ireland besides Ulster ; and in every part of Ireland, any 
 tenant-at-will, under a liberal landlord, could obtain a good 
 price for his interest in the land if he were permitted to sell it. 
 The peculiarity of the Ulster tenant right is, that it has been 
 reduced into a kind of system, with the consent or acquiescence 
 of the landlords. It has several qualities which may be found 
 separately elsewhere. 
 
 In the first place, when land is set for agricultural purposes, 
 the rent demanded is not a competition rent : it is not the 
 utmost rent which a good and solvent tenant would be willing 
 to pay. If there is a permanent increase in the value of land, 
 either from the general improvement of the country or from the 
 increased price of agricultural produce, the landlord may raise 
 the rent at his discretion in the same manner as any other 
 landlord may raise the rent of his yearly tenants. It is, 
 however, expected that this discretion will be guided by the 
 same generous feeling which the landlord showed in the 
 original letting. 
 
 Secondly, it is expected that as long as the tenant pays 
 his rent, the landlord will not use his legal power of putting an 
 end to the tenancy. 
 
 Thirdly, if a tenant finds it necessary or convenient to leave 
 his farm, he may sell his tenant right, with the approbation of 
 his landlord. This api)robation is not to be capriciously 
 refused ; but, on tlie other hand, the tenant is not at liberty to
 
 Ireland.] IN VARIOUS COUNTRIES. 35 
 
 select any substitute that he thinks proper, irrespective of his 
 character and possession of sufficient means for the efficient 
 cultivation of the land. ' 
 
 He is not always permitted even to accept the utmost that 
 an eligible successor would be willing to pay for the tenant-right. 
 The landlord has an obvious interest in preventing this price 
 from being too high. Too high a price might deprive the 
 incoming tenant of the means of doing justice to the farm. 
 Moreover, it might impose a moral obligation on the landlord 
 not to raise the rent so high as he might otherwise do without 
 prejudice to the customary tenant right allowed on his estate. 
 Thus, suppose the customary value of the tenant right on an 
 estate has been j[^i an acre, but since the last settlement 
 fixing the rate of rent the country has improved, or the price of 
 agricultural produce has risen, so that it would be reasonable 
 in a short time to make a new agreement with the tenants 
 respecting the rents. In this case, if an incoming tenant, with 
 the consent of the landlord, paid for the tenant right a price 
 based on the calculation that the present amount of rent 
 would not be altered for a considerable period, he would have 
 a just cause of complaint if the landlord, by raising his rent, 
 sliould disturb the arrangements, on the faitli of which he had 
 paid his money. If the selling tenant should say. Have not I a 
 right to sell my interest for the highest price I can get? the 
 landlord might reply. Have not I the same right ? The selling 
 tenant has no right to complain, if, when he sells his farm, he 
 gets back the price which he originally paid, together with the 
 value of all the improvements which he may have made in the 
 meantime. 
 
 Fourthly, all arrears of rent must be paid before the transfer 
 is completed. In a large and well-managed estate, the trans- 
 action proceeds in this manner : — John M'Garry holds a farm 
 at the yearly rent of ;^3o. He owes a year and a half's rent, 
 and he wishes to sell his farm, in order to emigrate, or to set 
 up a shop, or to pay his debts, or for any other purpose. 
 Charles O'Neil agrees to give him ^500 for it. He asks the 
 agent's consent, which is granted. They call on the agent at 
 his office ; all arrears of rent are paid, probably out of the ^500. 
 An entry is made in the books, and the name of Charles 
 O'Neil is entered as tenant in place of John M'Garry. The 
 transaction is then complete, without any law expenses or any 
 risk of bad title. It is true that as against the landlord it rests
 
 36 SYSTEMS OF LAND TENURE [Longfield, 
 
 upon his honour and upon pubhc opinion ; but as against the 
 rest of the world the title is perfect. No creditor, purchaser, 
 mortgagee, or claimant under any former tenant can disturb 
 the purchaser. A notice to quit by the landlord will protect 
 him against every other claimant. It is no small advantage 
 to be emancipated from all the complicated laws of landed 
 property. 
 
 Thus in Ulster, free trade in land, as far as the right of 
 occupation is concerned, prevails in the most perfect manner. 
 Thus important property, to the value of several millions, may 
 be bought and sold without risk, or trouble, or expense in 
 reference to the title or conveyance as readily as a horse or a 
 cow. Find a person in possession willing to sell, agree upon, 
 the value, and pay the price, and the thing is done — the pro- 
 perty is yours. It is true that this free trade affects only the 
 permanent right of occupation, and does not extend to the 
 absolute property in the soil ; but this is enough, for it is the 
 industry and capital of the occupier that makes the land the 
 source of wealth. 
 
 I have alluded to the entry in the agent's books where the 
 estate is large ; but where the estate is small, and managed 
 with less regularity, the same transaction is accomphshed, 
 without any formal entries in books, by a conversation with 
 the landlord or his agent on the road, or at a fair or market, or 
 any place where the parties meet each other. 
 
 There are some advantages attending the Ulster tenant 
 right independent of the free trade in land which it creates : 
 under this system the tenantry cannot be very poor. However, 
 it may be said that this result is attained, not by giving pro- 
 perty to the tenant, but by preventing any poor man from 
 becoming a tenant. You cannot become a farmer unless you 
 have capital sufficient not only to cultivate the land, but also to 
 buy at a high price the interest of the tenant who is already in 
 occupation. 
 
 To the manager of an estate the system is very agreeable. 
 The rents are moderate, and paid with punctuality, and the 
 agent is not subjected to the harassing labour and danger which 
 attend the enforcement of rent in many parts of Ireland. 
 There are no evictions by process of law ; but if the tenant is 
 not thriving, and finds it difficult to pay his rent, he is warned 
 by the agent or by his own prudence that he ought to sell his 
 tenant right, and retire from his farm with a good sum in hand
 
 Treai.AND.l IN VARIOUS COUNTRIES. 37 
 
 to emigrate or support him in some other pursuit, before he is 
 totally ruined by remaining in a farm that he is unable to cul- 
 tivate with profit. He is succeeded by a wealthier or more 
 skilful tenant, and the landlord and the country at large gain 
 by the change. 
 
 Under the Ulster system, the landlord appears to receive 
 a smaller rent than he might reasonably demand, but I doubt 
 if he is injured by it. He is less apt to live beyond his real 
 income. His rent-roll does not present him with an extrava- 
 gant view of his means. Owing to the quietness and industry 
 of the people, the value of land improves rapidly. It is better 
 to receive two-thirds of the value of an estate worth ;i^6,ooo a 
 year than the entire value of an estate worth only ^3,000, and 
 this is often the difference between an Ulster landlord and a 
 landlord in those parts of Ireland where the system does not 
 prevail. It is doubtful whether an Ulster landlord does not 
 receive as much rent as a Connaught landlord would receive 
 for an estate of the same natural productive powers. 
 
 But the system is not without its disadvantages. The 
 tenant is too dependent on his landlord for the property for 
 which he has paid the full value. Not only are his rights 
 against the landlord not recognised by law, but even while 
 dependent upon usage and honour, they are incapable of being 
 exactly defined. The important question, what ought to be 
 the proportion between the value of the tenant's and the 
 landlord's interest, is not ascertained. It varies on different 
 estates according to the wealth and liberality of the landlord, 
 and even on the same estate it is liable to fluctuation. 
 
 When the value of land remains stationary, the matter is 
 easily settled by letting the rent remain as it is ; but when an 
 improvement takes place gradually, a ditticulty arises. It is 
 not easy for some time to determine whether the change is 
 temporary or is likely to be permanent. Every small increase 
 in value, even if it is likely to be permanent, cannot be met by 
 an immediate increase of rent. To make frequent although 
 small additions to the rent would be a very unpopular course 
 for the landlord to take. It would lead to frequent disputes, 
 while it would alarm the tenantry, and diminish their confidence 
 in the tenant right. 
 
 Thus, while an increase in the value of land is always 
 gradual, and scarcely seen while it is going on, a rise in rent 
 is a sharp change, and is immediately and unpleasantly felt.
 
 38 SYSTEMS OF LAND TENURE [Longfield. 
 
 Take the case of a farmer who holds eighty acres at a rent 
 of ^120 a year. The fair marketable value of the land is 
 j[^\ 17s. an acre, so that he has a profit of seven shillings an 
 acre in addition to the ordinary profits of his capital. For 
 this tenant right he could readily get a price of £^1 an acre, 
 ;^56o or more, if the people in the neighbourhood are pros- 
 pering either in trade or agriculture. The country is im- 
 proving, so that each year on an average adds threepence an 
 acre to the value of the land. This goes on for twelve years, 
 when the landlord thinks it right to make a new settlement of 
 the rent, by adding three shillings an acre, leaving the cus- 
 tomary seven shillings an acre tenant right. The tenant will 
 certainly complain loudly. He will see that this increase of 
 rent makes him worse off than he has been for several years 
 past, and that nothing has occurred during the last three or 
 four years to justify such an addition to his rent. He cannot 
 remember accurately what was the general value of land twelve 
 years ago, while he has a very precise recollection of any im- 
 provements which he himself may have made in the meantime, 
 and to such improvements, whether real or imaginary, he will 
 attribute the increase of rent that has been imposed on him. 
 He will complain all the more loudly, and feel a deeper sense 
 of injury, because the justice of his complaint cannot be legally 
 investigated. The legal power of the landlord to increase the 
 rent is altogether independent of the circumstances by which 
 his conduct may be justified. 
 
 Thus, whether by a gradual process or by starts at long 
 intervals, the landlord finds it equally unpopular and disagree- 
 able to increase the rents in proportion to the improvements, 
 and in this manner the tenant right on large and liberally- 
 managed estates has a constant tendency to increase in value. 
 I believe it never was more valuable than it is now. 
 
 The right which the landlord has on the sale of a tenant 
 right, to object to the purcliaser or the price, is very rarely exer- 
 cised. The ability to pay the purchase money may be taken 
 as a fair proof that the incoming tenant will be able to cultivate 
 the land and meet his engagements. As to the price, when 
 the rent is all paid up, the incoming and otitgoing tenant may 
 make what bargain they like without the knowledge of the 
 landlord, so that there is seldom an opportunity of objecting on 
 this score. 
 
 So far everything seems to be in favour of the tenant. But
 
 Ireland.] IN VARIOUS COUNTRIES. 39 
 
 if the value of land falls, the loss falls entirely upon him ; and 
 when the great depreciation of land took place in 1848, the 
 state of parts of the counties of Armagh and Monahan was 
 nearly as bad as in King's County or Tipperary. To those 
 who wanted to part with their farms, the tenant right was 
 valueless, as there were no purchasers. The tenants were 
 unable to sell what they had bought at a very high price. 
 They expected that good times would return if they could 
 hold out for a short time, and were inclined, in defiance of the 
 law, to resist every attempt to deprive them of their holdings, 
 or to make them pay their rents. 
 
 The value of the tenant right on an estate is not subject to 
 any fixed principle. It does not depend on any improvements 
 made by the tenant. If the landlord is a just man, he will, in 
 all his deahngs with the tenant, value the land as if those 
 improvements had never been made. But beyond those 
 improvements, and even in cases where it cannot be pretended 
 that any improvement was made, the tenant right exists, and 
 is often bought and sold for large sums of money. The price 
 is often so high that the interest of the purchase money, 
 together with the rent, is much more than the fair value of 
 the land. 
 
 It seems essential to the existence of tenant right that 
 land should be owned in large masses by the landlords. The 
 owner of an estate of ^^20,000 a year may act with great 
 liberality, and set the land for less than it is really worth. 
 But if the same estate was divided among forty men, each 
 with ;£s°° ^ year, it is not likely that they would all act so 
 liberally without any regard to the ordinary commercial prin- 
 ciple of getting as much as they reasonably could. There 
 would be a chance that some at least among the number 
 would take every opportunity of making small but frequent 
 additions to the rent, so small that the tenant would not 
 on any one occasion feel it worth his while to make a desperate 
 resistance, but so frequent that the value of the tenant right 
 would gradually dwindle away. 
 
 It is sometimes asked. Would the tenants prefer leases to 
 their present position as yearly tenants ? This, of course, 
 must depend upon the length of the lease. A very long lease 
 would undoubtedly improve their position. A short lease 
 might have a contrary effect by leading to an earlier readjust- 
 ment of the terms of their tenures. They would sometimes
 
 40 SYSTEMS OK LAND TENURE [Longfield. 
 
 hope that the present system might operate as an adjournment 
 sine die of this readjustment. Time passes away, and it 
 appears as far off as ever, as there is no reason why it should 
 be required in one year rather than another. But if a lease 
 was made, the time would be growing shorter e\ery day. On 
 the whole, however, I believe that most of the tenants would 
 gladly accept a lease for thirty-one years at some increase of 
 rent, rather than remain in their present somewhat dependent 
 and precarious position. 
 
 It is not to be supposed that this system prevails univer- 
 .sally through Ulster, or that any man could make a map to 
 include only the parts in which it prevails. It is more usual 
 to grant leases in towns, and in the neighbourhood of towns. 
 There are also many scattered estates on which leases are 
 granted, and there the leases are often sold, or the land sublet 
 as in other parts of the country. 
 
 But although there would be no difficulty in the way to 
 prevent the introduction of leases into Ulster, it would not be 
 found so easy to introduce the Ulster system of tenant right 
 iaito other parts of Ireland. It is too vague to be capable of 
 £xact definition, or of being enforced by law. It depends 
 upon confidence on one side, and honour on the other — upon 
 a mutual understanding and public opinion — and these feelings 
 cannot be created by law or agreement ; they can only grow 
 up gradually and slowly. 
 
 No one would wish to break up a system as long as it is 
 supposed to work well, and when no complaints are made by 
 the persons affected by it. But even if it were possible, I 
 should not wish to see it extended to the whole of Ireland. 
 The tenant is dependent on the liberality of his landlord to a 
 degree inconsistent with a democratic constitution. A land- 
 lord who would not venture altogether to destroy the tenant 
 right has still the power to make a very great reduction in its 
 value. The tenant holds a valuable jjroperty at the mercy of 
 another who has an interest in taking it from him. 
 
 Another evil of the system is, that no man can take a fanii 
 unless he has double the capital that would otherwise have 
 been necessary. The purchase of the tenant right takes as 
 much capital as the stocking of the farm. Thus a barrier is 
 placed against the ac()uisition of a farm by a poor man. The 
 advantage of the landlord and tenant system, as distinguished 
 from the proprietary .system, is that it enables the farmer to
 
 Ireland.] IN VARIOUS COUNTRIES. 41 
 
 apply his capital more efficiently to the cultivation of the soil, 
 when the land itself is only paid for while he is using it. For 
 the use of the land, the tenant pays a rent that would only be 
 a moderate interest on the sum necessary to buy it. In Ulster, 
 the saving in the amount of rent gives the tenant a very low 
 interest on the sum that he is required to pay for the tenant 
 right. A man with skill and energy and a moderate capital 
 would scarcely think it prudent to set up as a farmer in 
 Ulster. 
 
 The wealth obtained by the cultivation and manufacture of 
 fla.x in Ulster is the cause that when a farm is to be sold there 
 is always at hand some person able and willing to pay for the 
 tenant right. In the other provinces the case would be 
 different. None of the neighbours would have money to buy 
 the tenant right, and the purchaser would be obliged to borrow 
 the purchase money at a high rate of interest, as the security 
 for payment would be of an inferior character. We should 
 therefore look for some source of improvement in Munster and 
 Connaught, other than the introduction of Ulster tenant right. 
 
 Something, however, like the Ulster tenant right in all its 
 useful characters, but without its vagueness and uncertainty, 
 might be created by an agreement or a law to the following 
 effect : — Landlord demises land to tenant on the following 
 terms — Tenant shall hold as yearly tenant at the rent of ;!^4o, 
 payable on the ist of May and ist of November, and subject 
 to the covenants in the lease contained for the proper cultiva- 
 tion of the land. Landlord shall not be at liberty to evict the 
 tenant for any cause except breach of covenant or non-payment 
 of rent. On the first eviction for any breach, the tenant shall 
 be entitled to redeem within three months on payment of 
 damages, to be settled by the court. The tenant rights shall 
 be considered as of the value of seven years' purchase. The 
 landlord shall be at liberty to raise the rent by giving notice 
 ■one year at least before the ist of November. If the tenant is 
 not satisfied to pay such increase of rent, he may at any time 
 before the ist of March give notice to the landlord that he will 
 .surrender his holding on the ist of November next, upon which 
 the landlord must pay him seven years of such increased rent 
 as compensation for his tenant right. If the tenant considers 
 his rent to be too high, he may, one year before the ist of No- 
 vember, serve notice on his landlord to have it reduced to such 
 rent as he may choose to name. In this case the landlord,
 
 42 SYSTEMS OF LAND TENURE [Longfield. 
 
 at any time before the ist of March, may serve notice on 
 the tenant that he will not consent to the reduction, and will 
 take up the land and pay him seven years' value of such 
 reduced rent, and upon tender of this sum on the ist of 
 November, the tenancy shall be at an end. The money is not 
 to be paid until the land is given up. In all cases of eviction 
 the tenant shall be entitled to seven years' rent from the land- 
 lord, deducting therefrom all money due for arrears of rent or 
 breach of covenant. The tenant shall not be permitted to 
 divide or sublet his farm, but he may sell his tenant right, with 
 the consent of the landlord, on giving two months' notice. If 
 the landlord refuses to give his consent, he must purchase the 
 tenant right himself, paying seven years' purchase, but deduct- 
 ing all money due for arrears of rent or breaches of covenant. 
 The tenant shall not be permitted to charge or incumber his 
 holding. Every contract or engagement that he makes shall 
 be considered as a merely personal contract, binding himself, 
 but not affecting the land until the landlord shall have given 
 his consent. 
 
 If the tenant finds it necessary to make any improvement 
 on his farm, he shall serve notice on the landlord, specifying 
 the improvement and the estimated expense. If the landlord 
 objects, the tenant may refer it to the Land Tribunal to deter- 
 mine whether the objection is reasonable. If the landlord does 
 not object, or if the Land Tribunal decides that the objection 
 is not reasonable, the tenant may proceed with the improve- 
 ment, and when it is completed the tenant shall be entitled to 
 compensation in the following manner : — He shall receive for 
 the term of forty years an annuity at the rate of ;£y los. per 
 cent, payable half-yearly. As long as he remains in possession, 
 his enjoyment of the land shall be deemed a payment of the 
 annuity. If he sells his tenant right, the purchaser shall be 
 entitled to the residue of the annuity on the same terms. If 
 the landlord shall increase his rent with the consent of the 
 tenant, the latter shall be entitled to deduct the annuity, during 
 his term, from the increased rent. If the tenant objects to the 
 increase of rent, the landlord shall pay, as compensation for 
 the tenant right, seven years of the increased rent, plus the 
 estimated value of the residue of the annuity, minus seven 
 years of the annuity, or, at the option of the tenant, shall pay 
 seven years of the increased rent. 
 
 To prevent frecjuent alterations of the rent, it might be
 
 Ireland.] IN VARIOUS COUNTRIES. 43 
 
 provided that no increase shall be less than ten per cent, on 
 the rent, and that no increase shall be made at a shorter 
 interval than seven years from the last increase. The above 
 may be called the parliamentary tenant right, which every 
 landlord should have power to grant, notwithstanding any 
 incumbrance dr settlement affecting his estate. 
 
 CHAPTER VII. 
 
 A FEELING almost universal prevails in Ireland, that the 
 relation between landlord and tenant is not in a satisfactory 
 condition, and that some concessions are required from land- 
 lords, and it is thought by many that such concessions might 
 be made without detriment to their real interests. 
 
 I shall mention some of the chief complaints, and shall 
 endeavour to draw a distinction between those complaints 
 Avhich appear to have some foundation in real grievances, and 
 those claims which arise from a greedy desire to obtain by 
 political changes that wealth which ought to be the reward of 
 thrift and industry. 
 
 The first complaint is, that landlords are frequently pre- 
 vented by settlements from granting beneficial leases, or entering 
 into reasonable agreements with their tenants. If a farmer 
 obtains a beneficial lease or a fair agreement, and expends 
 money upon the faith of such lease or agreement, he is liable 
 to utter ruin. The landlord's successor, often his eldest son, 
 may evict him without compensation, relying upon some 
 settlement of which the tenant never could have suspected the 
 existence. 
 
 The second grievance is, that the tenant gets possession of 
 a farm in such a condition that he<:annot cultivate it efficiently, 
 or dwell on it with decency, without making a large outlay on 
 buildings or other permanent improvements. But when he 
 has made those necessary improvements, he is Uable to be 
 dispossessed before he has enjoyed the farm long enough to 
 obtain a fair remuneration for his risk and outlay. He loses 
 the money which he expended in the reasonable belief that 
 the landlord who permitted the expenditure would also permit 
 him to reap the benefit of it.
 
 44 SYSTEMS OF LAND TENURE [Longfield. 
 
 The third grievance is, that a tenant often purchases the 
 interest of a tenant from year to year with the express or 
 impHed sanction of the landlord. Sometimes part of the pur- 
 chase money is paid to the landlord in discharge of arrears of 
 rent due by the outgoing tenant. Notwithstanding this, the 
 tenant who paid the money is liable to be dispossessed by 
 the landlord who received it. The landlord must have knowTi 
 that the tenant paid the money in the belief that he would be 
 permitted to enjoy the land for a reasonable period. 
 
 In those three cases the tenant has expended money, or 
 money's worth, on the faith of a contract, expressed or implied, 
 that he should be permitted to enjoy the fruits of his expendi- 
 ture. These three grievances could be completely remedied 
 without any revolutionar}^ changes. The first grievance would 
 cease to exist if every limited owner was empowered to grant 
 a. lease for a term of forty-one years, at a rent not less than 
 three-fourths of the value. This would completely protect the 
 tenant farmer ; and if any man seeks to obtain a greater interest 
 in land, there is nothing unreasonable in requiring him to 
 investigate the title like any other prudent purchaser. A line 
 must be drawn somewhere to distinguish the tenant from the 
 purchaser. 
 
 The two latter grievances might be remedied by an enact- 
 ment that any tenant from year to year who has purchased the 
 interest of an outgoing tenant, or any tenant who has improved 
 his farm with the consent of the landlord expressed or implied, 
 may apply for a recognition of his legal tenant right. If the 
 landlord refuses this recognition, an arbitrator appointed by 
 Government should have authority to investigate the case, and 
 •determine whether the tenant has niade out his claim for tenant 
 right. If the claim is established, the arbitrator should in his 
 award set forth what improvements, if any, the tenant has 
 made, and the date and value of those improvements. Until 
 those improvements are exhausted, the tenant should be en- 
 titled to enjoy them without paying any increased rent on their 
 account ; and if he is obliged to leave the farm in the mean- 
 time, he should receive a fair compensation, in addition to the 
 value of his tenant right, for his improvements. 
 
 But the claims made by many on behalf of the tenants go 
 far beyond the cases that I have mentioned. They claim 
 rents determined by arbitration, not by contract ; and fixity of 
 tenure, irrespective of .any custom of tenant right, or money
 
 Ikelanu.] in various COUNTRIES. 45 
 
 paid to an outgoing tenant, or any improvement made upon 
 the land. They claim in eftect that a man who has taken 
 a lease of a farm for twenty-one years, at a rent of ^.S° ^ year, 
 shall have it changed to a lease for ever at a rent of ^25, 
 although every farmer in the neighbourhood may be willing ta 
 pay ;!^5o rent for the farm. 
 
 It is scarcely necessary to use argument to prove the in- 
 justice of a claim which is made in contradiction to an express 
 contract. If the contract is unequal or unjust, the utmost that 
 can be demanded by the complaining party is, that it should 
 be rescinded. But except in the claims made on behalf of 
 Irish tenants, it was never known that a man who had made 
 a contract beneficial to himself, the benefit of which he could 
 sell at a considerable profit, and which he would be exceed- 
 ingly unwilling to rescind, should set up a public cry to have 
 that contract altered. What would be thought of such a 
 case as this ? — A man sells for ^^ 1 00 a horse, for which, if 
 he set it up to auction, he could probably get ^^130. The 
 following conversation takes place the next day between the 
 buyer and the seller. Buyer : " You have charged me too 
 much for that horse." Seller : " I am sorry you think so. 
 However, I am ready to take it off your hands, and to return 
 the price, or I can find a person who will pay you twenty" 
 pounds to stand in your shoes." Buyer : " I thank you ; but 
 that will not suit me. I am detennined to keep the horse, and 
 the price must be left to arbitration ; and if I am satisfied with 
 the price which the arbitrators award, I shall pay it, otherwise 
 not." But such a conversation would not give an adequate 
 idea of the claims of the Irish tenant. He demands not only 
 to pay less, but to get more than he contracted for. His 
 bargain is to get the land for twenty-one years, and his claim 
 is to hold it for ever, although he has not a shadow of right to 
 the land, except under that contract. I am confining myself 
 to the case where the tenant has no claim, except that he is 
 a tenant ; for if he has any other ground for his demand, it 
 ought to be fairly and liberally considered. 
 
 It is not difficult to prove that a . law establishing fixity of 
 tenure would be as impolitic as it would be unjust. It would 
 utterly fail in its professed object. It would be a mere violent 
 and wrongful transfer of property from a certain number of 
 individuals who are no\Y called landlords to another set of 
 individuals who are now called tenants, and who would then
 
 46 SYSTEMS OF LAND TENURE [Longfield. 
 
 become landlords. The men now in possession would be 
 enabled to violate their engagements, but no future tenants 
 would gain anything by the change. It may be taken as an 
 undoubted axiom in political economy, that if a man is 
 permitted to sell or retain his own property, and to select the 
 purchaser, he cannot be prevented from getting the utmost 
 price that another person will be ready to pay for it. The only 
 test of value is the price which the public is willing to pay. 
 
 Apply this axiom to the case of land. Suppose fixity of 
 tenure and the settlement of rents by a Government arbitrator 
 to be the established law of the land. I am in possession as 
 owner in fee-simple of a farm of one hundred acres, worth two 
 pounds an acre. A farmer would be willing to pay that rent, 
 hoping to get a fair return for his capital and labour according 
 to the ordinary rate of agricultural profit. If I set it to a 
 tenant, he will have the rent settled by an arbitrator, who will 
 probably award a rent of jQt-oo a year as the fair value. But I 
 may set it to a trustee, who then becomes entitled to the land 
 for ever at the fee-farm rent of ;^ioo a year. He sets up the 
 tenant right for sale, which will sell for between two or three 
 thousand pounds. The purchaser will probably be obliged to 
 raise the greatest part of this by mortgage. In the end it will 
 be found that between rent and interest the new tenant will 
 have to pay more than ^200 a year, the rent at which he could 
 have obtained it if the law had permitted me to set it to him at 
 that rent. Moreover, he will have paid away a large portion of 
 his capital, which would have been more profitably employed in 
 the cultivation of the land. 
 
 The tenant will lie under another disadvantage, in being 
 obliged to deal with two persons, from neither of whom can he 
 expect any forbearance, instead of a single landlord, from w^hom 
 he might get some assistance or abatement in a bad season. 
 He cannot ask an abatement from the landlord to whom he is 
 paying only half the value of the land as rent. He need not 
 expect any reduction of interest from the mortgagee, for a 
 money-lender is more apt to increase than to reduce the rate of 
 interest in a season of hardship and scarcity. 
 
 The only mode in which any person could get a fanii would 
 be by paying a high price for the interest of some farmer who 
 might be willing to sell his tenant right. The price would 
 generally be as much as three times the capital that would be 
 sufficient to till the land. A great obstacle would be opposed
 
 Ireland.] IN VARIOUS COUNTRIES. 47 
 
 to agricultural improvement by this impediment to free trade in 
 land. No man could become a farmer unless he had much 
 more capital than would otherwise be found necessary ; for he 
 would not be able to borrow the entire sum necessary to 
 purchase the tenant right ; and without purchasing a tenant 
 right, he could not obtain a farm. It is not to be supposed 
 that the present tenants, when they had obtained a permanent 
 title to the land, would part with their farms on the basis of 
 the valuation on which they had obtained them. They would 
 certainly require the highest price that could be obtained by 
 free competition. 
 
 Thus, after the first confiscation of the landlord's estates, 
 the law of valuation would become a dead letter. It would 
 not be used to regulate future contracts, as men would find a 
 way of settling the terms of their own contracts by mutual 
 agreement. 
 
 As to fixity of tenure, it would soon be found intolerable, 
 and would be repealed as soon as it had done its work of 
 depriving the present owners of their estates. The public 
 would not long bear >a law which prevented two men from 
 making a bargain just in itself, useful to the public, and pro- 
 fitable to both parties. I hold some land in fee. I am too 
 old and infirm to cultivate it. In a few years my son will be 
 old enough to undertake the management of it. I wish to set 
 it for a term of seven years ; and, on account of the shortness 
 of the lease, to accept a lower rent than if I were granting a 
 longer term. This exactly suits my neighbour, to whom a 
 moderate rent is a greater object than a long lease; but the 
 law of fixity of tenure would step in, and say that I must either 
 hold on my land at a loss, or part with the possession for ever, 
 and that he must either do without a farm, or pay a sum for a 
 fee-farm tenure beyond v.-hat he could afford. The result would 
 probably be, that he would be obliged to remain idle for want 
 of a farm, and that my farm would remain nearly unprofitable 
 for want of a tenant, and the wealth of the country would be 
 proportionally diminished. 
 
 In general there is no mode of getting land so convenient 
 to a good farmer with a competent capital as getting his land 
 for a moderate term at a rent settled by mutual agreement. 
 The term should not be too long, as the landlord would naturally 
 and reasonably require a higher rent. A belief prevails very 
 generally that land has a tendency to rise in value, irrespective
 
 48 SYSTEMS OF LAND TENURE [Longfield. 
 
 of any improvements made upon it, or that money will fall 
 in value, so that in the next century land will be worth a higher 
 rent. The advantage of that rise will belong to the person 
 who will then have the disposition of the land. This at present 
 belongs to the owner in fee simple in possession, and if he is 
 asked to part Avith it, he will require an increase of rent, or 
 some present payment as an equivalent. This would be incon- 
 venient to the tenant, who expects to make ten per cent, 
 compound interest on his capital. To him it would be a loss 
 to expend any of this profitable capital in the purchase of an 
 expectation to be realised at the end of a century. 
 
 It is not material whether this belief in the probability of a 
 rise in the value of land be well founded Or not, it is sufficient 
 that it exists and must have its influence upon all contracts. It 
 certainly cannot be disproved, and it has the experience of 
 several centuries to support it. 
 
 I have assumed that fixity of tenure is to be founded on a 
 valuation, because I see no other mode in which it can be 
 established. If the landlord and tenant can fix the rent by 
 agreement, there would be danger that the land would be set in 
 many instances at far more than its real. value, with an under- 
 standing (not supported by any promise, and not capable of 
 being enforced by law) that the entire rent would never be 
 demanded. This, as far as the public is concerned, is the 
 worst tenure by which a tenant can hold his land. If the 
 fixity of tenure is to be on the existing rents, it in many cases 
 would be unjust to liberal landlords who often set their lands 
 at less than the fair value ; and also in the case of land held by 
 leases still unexpired and made in the last century or earlier ; 
 while to the harsh landlord, who sets his land for the highest 
 rent that is offered, it would be no injury, but it would be no 
 boon to his tenantry. 
 
 But the settlement of rent by valuation appears just only 
 to persons who do not know what a valuation of land is, and 
 always must be. The value certainly is, that rent which a 
 solvent tenant will be ready to offer for the farm on a lease of 
 moderate duration. When a landlord wishes to set his land, 
 the jjroposals made by persons willing to become tenants settle 
 the value of the land beyond the possibility of dispute. The 
 solvent tenant will take care not to offer a rent which the 
 profits of the land will not enable him to pay. He is under 
 the strongest inducements to discover the real value of the
 
 Ireland] IN VARIOUS COUNTRIES. 49 
 
 land. He may consult an experienced valuator if he thinks 
 proper ; but he rarely takes this step, as he generally knows the 
 value of the land better than any one whom he could consult. 
 He often talks the matter over with his friends, to know their 
 opinions, and then to form his own judgment. The profes- 
 sional valuator forms a more rapid judgment ; and unless he 
 is living in the immediate neighbourhood of the land, his 
 judgment is not worth much, A serious difference of value 
 between two fields is often caused by circumstances which the 
 most careful examination would fail to detect. 
 
 The tenant does not merely look to the soil, and to the 
 condition of the roads, the fences, and the buildings : he knows 
 what treatment the land has received for several years — the 
 nature and quality of the crops — whether cattle appeared to 
 thrive well on the land — what rent was usually paid for that 
 and other similar land in the neighbourhood — and whether the 
 tenants who paid such rents were prosperous or the reverse. 
 Many other inquiries, which I need not enumerate, he makes 
 before he determines what rent he will bind himself to pay. 
 
 When men are competent to make their own bargain, it 
 is unjust to compel them to submit to the opinion of a third 
 person. 
 
 In the year 1865, I made the following observations, and I 
 have seen no reason to alter my opinion since I made them : — 
 " Many other things are to be considered, but I have said 
 enough to show how utterly inadequate to the occasion is the 
 cursory inspection that is made by a professional valuator. All 
 that he often does is to find out what is the rent actually paid 
 for the adjacent farms, and whether the farm he is valuing is 
 better or worse than those ; and then to make an abatement or 
 increase on the result so obtained, according to the purpose for 
 which the valuation was made. If the valuation is made for 
 the purpose of taxation, it is generally made low, for then there 
 is less likelihood of an appeal. If the owner gets it valued 
 for the purpose of a sale, the valuation is apt to be high — as 
 more likely to suit the interests or wishes or feelings of the 
 employer. 
 
 "The following cases are fair specimens of the discrepancies 
 which are to be found in different valuations made of the same 
 property." 
 
 "Since I wrote the above, the estate of John Campbell 
 Jones was offered for sale ; and the following are the differences
 
 50 SYSTEMS OF LAND TENURE [Longfield. 
 
 between the valuations made by a civil engineer and by the 
 Ordnance valuation of the same lots : — 
 
 Killiewingan. 
 
 Engineer 120 o o 
 
 Tenement valuation . . . 5700 
 
 No. 5. 
 
 Valuator . . . . . 8 10 o 
 Tenement valuation ... 250 
 
 Ratheline. 
 
 Valuator " 29 17 7 
 
 Tenement valuation ... 800 
 
 Fox and Calf Ibland. 
 
 Valuator 40 o o 
 
 Tenement valuation ... 300 
 
 Lot 9. 
 
 Valuator 10 o o 
 
 Tenement valuation ... 160 
 
 Lot 10. 
 
 Valuator 843 
 
 Tenement valuation ... 140 
 
 " In the estate of Rutledge the following are two of the 
 valuations : — 
 
 Cregganrae. 
 
 Valuator . . . . . 53 i 7 
 Tenement valuation . . . 17 10 o 
 
 Ballykit. 
 
 Valuator 226 13 7 
 
 Tenement valuation . . . 131 12 o" 
 
 I have given those examples, not as the most remarkable 
 that could be found, but because they were the most striking 
 cases that came before me within a few days after I had made
 
 Ireland.] IN VARIOUS COUNTRIES. 5 1 
 
 the above remarks. I believe that, in those cases, both the 
 valuations which I have contrasted were intended to be fair, 
 and were made by skilful valuators. 
 
 It may be asked, " Is there no mode of valuing a farm ? 
 must the tenant make a mere guess at what he is to offer?" 
 No-; the landlord and the intending tenant have means of 
 knowing the value of the land which no other person is likely 
 to possess and to employ. They both know the past history of 
 the farm, and of all the farms in the neighbourhood ; what rent 
 was paid for them ; in what manner they were cultivated ; and 
 whether the tenants appeared to thrive on them, or the con- 
 trary. No man has such an interest in discovering the exact 
 value as the person who proposes to become a tenant, and as 
 his object is to make a profit by his occupation as farmer, it 
 is not to be supposed that he will give more for the land than 
 he can pay, reserving a reasonable profit to himself 
 
 The injustice of setting aside a voluntary contract, and sub- 
 stituting a valuation, is not manifest at first sight, for the words 
 appear fair. Why, it is said, should any tenant be required to 
 pay more than the fair value for his farm ? But every one who 
 has any experience knows that nothing can be more uncertain 
 and undetermined than the valuation of land. It is not un- 
 common to see two valuators differing enormously in their 
 estimates, and yet neither suffering in reputation as if he had 
 made a discreditable mistake. It is probable the value as fixed 
 by any tenant-right measure would be less than half the rent 
 which a solvent tenant would be willing to pay. 
 
 All future valuations would be still more uncertain ; for as 
 soon as the possession of land ceased to be a subject of con- 
 tract by mutual agreement, the valuators would have no average 
 market-value to refer to, and would forrn their estimates on the 
 wildest principles.* This, however, would not be a matter of 
 much importance, as I have shown that between rent and pur^ 
 chase of tenant right every new tenant will be obliged to pay 
 the full value of the land, no matter what changes may be made 
 in the law. 
 
 In the form of tenant right, which I have ventured to 
 suggest as possible to be introduced and maintained in Ireland^ • 
 
 * It is highly probable that, in the excited state of feeling that would 
 be raised by an alteration of the law, no valuator would venture to express an. 
 opinion of the value of the land that was not in accordance with the tenant's 
 wishes.
 
 52 SYSTEMS OF LAND TENURE [Longfield. 
 
 I have therefore taken care that it should be self-working, and 
 not depend upon any valuation of the land to be made by any 
 third person. 
 
 Some reason should be given for making land an exception 
 to the ordinary rules of commerce, and fixing the price by law, 
 instead of letting it be arranged by mutual agreement between 
 the buyer and the seller, the landlord and the tenant. The 
 reason formerly assigned was, that the possession of land was a 
 question of life or death to the tenant ; that he had no other 
 resource to preserve himself and his family from starvation, and 
 that therefore he was obliged to submit to any terms which an 
 avaricious landlord might impose. That the parties to the 
 contract stood on such unequal ground as to make it necessary 
 for the law to interfere to protect the weaker party. It could 
 not be pretended that this argument was ever applicable 
 except to the case of small pauper tenants, and now the 
 introduction of poor laws, and the increased demand for 
 labour, put it out of any man's power to say that he is obliged 
 to offer an exorbitant rent for a farm in order to save himself 
 from destitution. 
 
 The argument never had any bearing on the case of those 
 tenants who hold the greatest part of Ireland, who have capitals 
 of two or three hundred pounds and upwards, and who are 
 farmers, not from necessity, but from choice, because they find 
 the occupation of a farmer more profitable or more suitable to 
 their taste or education than any other employment. Cn the 
 profits to be expected from their industry and capital it maybe 
 necessary to make this remark. It is often said that agricul- 
 ture is the most honourable, the most healthy, and the most 
 delightful of all occupations. If this be the case, it follows 
 from an elementary law of political economy that it must also 
 be the least profitable. It will require greater profits to induce 
 men to enter into any business that is less wholesome, less 
 creditable, or less agreeable. 
 
 It should ever be remembered that it is a dishonest act for 
 a man to make a contract which he does not believe that he 
 can fulfil. The man who has obtained possession of a farm by 
 promising a rent which he cannot afford to pay has committed 
 a dishonest act. He has done wrong to the landlord, from 
 whom he has obtained possession of the land on false pretences, 
 and he has done wrong to the competitors for the farm whom 
 he has outbid, and he has no just claim to have a law made to
 
 IRKLANU.] IN VARIOL'S COUNTRIES. 53 
 
 reduce his rent, and give him an advantage over his more 
 honest competitors. 
 
 I should not have thought it necessary to point out the 
 unreasonable injustice of the claim made for fixity of tenure on 
 a rent to be settled by valuators, were it not for the mischief 
 that is caused by the expectation of the measure. It not only 
 iliverts attention from more practicable means of improving the 
 condition of the people, but it increases the desire (already too 
 strong) to obtain, and to retain, possession of land, no matter 
 how incapable the possessor may be of cultivating the property. 
 There is a hope that the interest, which is now worth little or 
 nothing, will be converted by law into a valuable estate. This 
 hope vanishes if possession is transferred to another. The 
 eviction from a farm is felt not as a loss of the interest which 
 the tenant had, but as a loss of the interest which he hoped to 
 acquire by a change in the law. In many cases a failing 
 farmer, who could dispose of his farni for a sum that would 
 enable him to emigrate or to set up himself or his family in 
 some profitable business, is tempted to hold on to his farm, by 
 the belief that the approaching law of tenant right will give him 
 an interest that he can dispose of for a much larger sum. 
 
 In some districts the agitation on the subject has fixed it 
 like an axiom not to be controverted in the peasant's mind, 
 that the possession of land, on whatever terms it is acquired, is 
 a property which it is unjust to take from him without paying 
 him large compensation. The relation between landlord and 
 tenant is made the constant subject of violent declamation. 
 His imaginary rights are assumed as if they were too clear for 
 argument ; and indeed this is necessary, for they will not bear 
 argument. 
 
 A landlord has twenty acres of land in his possession. A 
 peasant offers him twenty pounds a year for the land. His 
 offer is accepted. He is put into possession of the land, but 
 neglects to pay the rent, and finally he is evicted, owing 
 perhaps three years' arrears of rent, which he never pays. He 
 is considered an injured man, the victim of landlord oppres- 
 sion. No questions are asked about the merits of the case. 
 The mere fact that he has been deprived of his farm is suf- 
 ficient to excite the sympathies of the population, who will assist 
 him to take revenge, or to escape, after he has gratified his 
 revenge by murdering the tenant who succeeds, or his land- 
 lord, or his agent, or any member of any of their families.
 
 54 SYSTEMS OF LAND TENURE [Longfielo. 
 
 Others will take the part of justifying the murderer, or 
 blackening the character of the deceased. They will go 
 through the form of saying that it is not right to commit 
 murder, but they will exaggerate the provocation which the 
 murderer received; they Avill rake up charges true or false 
 against the deceased, and will at the same time classify as 
 murders of greater enormity many acts of oppression never 
 perpetrated, but which the populace will readily credit. 
 
 In many cases the landlord is deterred from enforcing his 
 rights; and it is sometimes argued that it is therefore no 
 injustice to deprive him of them by law. The landlord, it is 
 said, will suffer no substantial injury by being deprived of a 
 right which he can never venture to enforce. 
 
 This is like putting a price upon the landlord's head. It is 
 to announce that everything will be conceded to the tenants, 
 provided they will shoot so many landlords as may keep them 
 for some time in subjection to the Whiteboy code. 
 
 Success acquired by such means would not produce the 
 expected fruits. Riches acquired by fraud and outrage are 
 not long enjoyed, for the qualities by which they are acquired 
 are inconsistent with the qualities which are necessary to retain 
 them. 
 
 Anything that would retard the advance of the country in 
 civilisation, and still more, anything that would make it go 
 l)ack, would do an injury to the tenant far beyond the value of 
 anything that he could gain by an alteration in the conditions 
 of his tenure. The fee-simple proprietor of a hundred acres of 
 land two centuries ago was not so well clothed, so well lodged, 
 so well taught, or so well fed, as the tenant of the same lands 
 who at the present time pays a fair rent for his farm. 
 
 This change is chiefly caused by the greater civilisation of 
 Ireland. A very small part is caused by any improvements 
 placed upon the land by the tenants. Not more than ten 
 per cent, of the present value of the land is OAving to such 
 improvements. 
 
 TTie general question, how much of the improvements 
 made in the country is due to tenants, and how much to land- 
 lords, or to possessors, whose tenure is substantially equivalent 
 to a fee? appears to be immaterial. When once the tenant has 
 received possession, his ecjuitable rights depend upon the con- 
 tract which he has made, and u])on the condition of the land 
 when he obtained possession. It is no concern of his how
 
 Ireland.] IN VARIOUS COUNTRIES. 55 
 
 that condition was caused. It may have been improved by 
 the landlord, or by a previous tenant, who may have received 
 compensation from the landlord; or the previous tenant may 
 have wasted the land, or have run away owing large arrears of 
 rent, or have had his lease unjustly broken without compensa- 
 tion for his improvements. With all this the new tenant has 
 nothing to do; he does not inherit the claims or the liabilities 
 of his predecessors. 
 
 On the whole, it would appear that the tenants would have 
 no just cause of complaint if, ist, Such leasing powers should 
 be given to all landlords that no fair lease should be broken ; 
 2ndly, That when a tenant by lease has improved his farm, he 
 should be entitled to a fair compensation ; 3rdly, That when a 
 yearly tenant has improved his farm, or purchased the interest 
 of an out-going tenant, he should be entitled to the seven years' 
 purchase tenant right on terms to be settled by an arbitrator ; 
 4thly, That when there is no written contract, the tenancy 
 should be deemed to terminate on the ist of November, and 
 the tenant be entitled to a year's notice to quit. 
 
 As to evictions, the tenant can protect himself by refusing 
 to take a farm without security that he shall enjoy it for a 
 reasonable time. 
 
 I have made no allusion to a difference in race, as creating 
 any reason for a difference in legislation between England and 
 Ireland. When the Celt becomes the absolute owner of land, 
 he is just as willing as the Saxon to become a landlord, and to 
 insist upon all a landlord's rights, which he then seems to think 
 very reasonable. It is only when he becomes a tenant that his 
 peculiarity is said to appear in a dislike to fulfil his engage- 
 ments, and in a wish to hold his land at a lower rent and for a 
 longer temi than he is entitled to by his contract. I suppose 
 the Saxon farmer would have the same desire. It is impossible 
 to frame laws to suit the feelings of people who dislike to pa 
 their debts, or to fulfil their engagements and to respect the 
 rights of property, and in general to act as men are required to 
 do in every civilised conmiunity. There is no valid foundation 
 for this charge against the Irish Celt. England had the power 
 of making laws for Ireland at a time when selfishness reigned 
 supreme in the councils of every state; and Ireland, as the 
 weaker country, suffered some injustice from her stronger 
 sister. But times are altered. No man now would think of 
 doing an injustice to Ireland for the sake of any supposed
 
 56 SYSTEMS OF LAND TENURE [LoxJcrrELD. 
 
 benefit to England. The two countries are now parts of one 
 united kingdom. All grievances have been swept away, 
 although the memory of them still remains, and will be kept 
 alive by the exertions of those who have an interest in fo- 
 menting discontent. But a just policy will eventually bear its 
 fruit; and if the laws are framed for the good of all without 
 reference to party interests, and are impartially and firmly 
 administered, it will probably be found that the Celt is as quiet 
 and amenable to law, and as willing to be honest and true to 
 his engagements, as if he belonged to any other race. 
 
 But even the best laws will be of little service unless the 
 people are disposed to act justly and reasonably. The landlord 
 should not strive to be the master of his tenant. He should 
 set the land at a reasonable rent and on fair conditions, and 
 not hope to keep the tenant in subjection, by exacting a rent 
 which he cannot pay, or inserting covenants which he cannot 
 fulfil. Even when leases are granted they are often stufted mth 
 covenants which would ruin the tenant if he obeyed them 
 strictly. 
 
 But some change is also required in the tenant. He should 
 not enter into any contract which he is unwilling to fulfil. 
 It is no excuse for him to say that he cannot get land on any 
 other terms, and that he must be a farmer as every other 
 business is overcrowded with competitors. Such an excuse is 
 contradictory to itself, for if he cannot get a farm except by 
 offering more than it is worth, it shows that farming is subject 
 to as keen a competition as other trades. If he cannot get a 
 farm on reasonable terms he should take to some other business, 
 or emigrate. He may think that this is a great hardship, but it 
 is a hardship that is not caused either by the law or by the 
 landlord. If two men desire to get the same farm, one of them 
 must do without it ; and if the competitors are honest, and will 
 not offer too much, the one who succeeds will be better off, 
 and the one who fails will not be worse off, than at present. 
 The same rule that I suggest as to his rent should apply to all 
 the conditions of his tenure. 
 
 Instead of first taking a farm and then complaining of the 
 conditions, he should refuse to take any farm except on such 
 terms as he considers just and reasonable. 
 
 A man who is to have a voice in the government of the 
 country should not make any contract which would make him 
 dependent on the liberality or forbearance of any other man.
 
 Ireland.] IN VARIOUS COUNTRIES. 57 
 
 CHAPTER VIII. 
 
 It is frequently said that in Ireland the landlord erects no 
 buildings, and makes no improvements on the land ; that 
 everything is left to the tenant, who builds and improves at 
 the risk of having the improvements made by his labour and 
 capital seized by the landlord, or made an occasion of raising 
 the rent ; and that this was not a very unusual course for the 
 landlord to take. 
 
 At no time was it a matter of every-day occurrence for a 
 landlord to seize his tenant's improvements before he had 
 enjoyed them for a remunerative period. Improving tenants 
 without leases would not be so foolish as thus to lay out their 
 capital without a confident expectation, founded on the pre- 
 vailing customs, that the landlord would not take advantage of 
 their confidence in his honour. Cases of inconsiderate and 
 unjust harshness could never have been very frequent, and they 
 are now exceedingly rare. 
 
 The real grievance was, not that the tenant frequently lost 
 the value of his improvements, but that his liability to this 
 loss generally prevented him from making those improvements 
 which would have been profitable to himself and useful to the 
 country. 
 
 It is true that if any man searches for cases of grievances 
 suffered by tenants, he will have plenty of stories told to him : 
 many of them will be utterly false, and many of them will have 
 a slight foundation of truth, distorted by the most monstrous 
 exaggerations. When names, dates, and facts are not stated, 
 it is impossible to expose and detect the falsehood. " One 
 story is good until another is told." 
 
 I am told that a tenant held a farm at a rent of ;^40, that 
 he built a house at an expense of ;!^ioo, and then was ejected 
 without any compensation as soon as he owed one year's rent. 
 Such a story may lead to the murder of half-a-dozen landlords, 
 or to the robbery of the entire class, when the propagator 
 describes the look of inextinguishable hatred with which the 
 narrator mentioned it to him. I do not believe in the possi- 
 bility of such a case pure and simple. An ejectment is not a
 
 58 SYSTEMS OF LAND TENURE [Longfikld. 
 
 sudden irreversible process. The proceedings take some time 
 to bring them to a termination ; and, even after they are con- 
 cluded, the law allows the tenant six calendar months to pay 
 his rent and redeem the land. This period is reckoned not 
 from the judgment in ejectment, but from the actual dispos- 
 session of the tenant by the execution of the Jiahere. The story, 
 therefore, is that the tenant was rich enough to build a house 
 and to cultivate his farm, which generally requires a capital 
 equal to five years' rent, but that he could not get money to pay 
 half a year's rent, and had no friends or credit to enable him 
 to borrow money to pay his rent. A tenant is not evicted for 
 non-payment of rent until after he has become hopelessly 
 insolvent. 
 
 I should expect that on investigation it would be found, 
 ■either that the story was totally false, or that it was subject to 
 one or more of the following qualifications. The tenant did 
 not build the house at his own expense ; the landlord supplied 
 the roof and timber-work, and gave other aid. The tenant was 
 in the enjoyment of the house a sufficient length of time to 
 recompense liim for the portion of the outlay that he had 
 incurred. The landlord at various times forgave him large 
 arrears of rent in consideration of his outlay on the house. The 
 tenant ran out and wasted the land, and owed considerably 
 more than a year's rent at the time of the eviction. I suggest 
 those ([ualifications to show with what reserve such a story 
 should be received until it is fully investigated, especially when 
 it is told by a person evidently anxious to make a case against 
 Irish landlords. 
 
 I do not deny that, among the infinite number of cases 
 occurring between landlord and tenant, many may be found in 
 which the landlord acted harshly and oppressively to an honest 
 tenant, as well as cases in which the kindness of a generous 
 landlord has met with a very ill-requital. But I believe that 
 such cases are exceptions to the general rule, which is, that an 
 honest and industrious tenant will meet witlVkind and generous 
 treatment, and that a good and liberal landlord will find or 
 make good tenants. But to state all the exceptions to this rule 
 of which one hears on one side, without qualification or investi- 
 gation, is not a good way of forming a correct opinion of the 
 true state of the Irish land question. The cases in which 
 landlords seized u])on real improvements made by their 
 tenants, without giving them compensation, are very few, and
 
 Ireland.] IN VARIOUS COUNTRIES. 59 
 
 the landlords would sufter nothing by a law which would make 
 such injustice impossible. 
 
 As to evictions of solvent tenants, I believe them to be 
 more rare in Ireland than in England. To a superficial observer, 
 the contrar)' might at first appear to be the case, for the 
 following reason. In England, if the interest of a tenant is 
 determined by a notice to quit, or by the expiration of his lease, 
 and the refusal of the landlord to permit him to remain in 
 possession, he gives up the farm, and nothing more is said 
 about it. He merely complies with the conditions on which he 
 obtained possession. But in Ireland he generally resists, and 
 puts his landlord to the expense and delay of an ejectment, and 
 has the newspapers filled with abuse of the landlord and articles 
 on landlordism and evictions. Thus in Ireland nearly every 
 case of removal of a tenant makes a noise, and is brought 
 before the public, and therefore they appear to be more 
 numerous than in England, where they pass without notice. 
 
 'While I was writing this, I read in the newspaper a report of 
 an action for a libel brought by a farmer. • His complaint was 
 that he was falsely accused of shooting foxes ; and, on account 
 of this false and unproved charge, he Avas deprived by a 
 noble duke, his landlord, of two farms, one of which he had 
 held for sixteen and the other for twenty-one years. The 
 eviction by the landlord was not made a matter of comment, 
 and would have passed unnoticed, only that it was the special 
 damage for which the action was brought. If a tenant was 
 evicted on such grounds in Ireland, the circumstance would 
 certainly be brought before the public, and probably before 
 Parliament. 
 
 If there are a hundred men wishing for farms, and there 
 are only fifty farms to be let, then fifty men must do without 
 farms, and take to some other occupation. Whatever adds 
 to the dithculty of evicting a tenant, adds to the difticulty 
 of obtaining a farm, and thus makes the eviction a greater 
 calamity when it occurs. 
 
 It is very much against the interests of a landlord to eject 
 a good solvent tenant who is willing to pay him a fair rent. He 
 will find it difficult to procure a tenant with skill and capital to 
 take the vacant farm, and to put himself in the power of an 
 oppressive and unreasonable landlord. 
 
 If a careful inquiry was made into the nature of the pro- 
 vocations which are supposed to have led to the late crop of
 
 6o SYSTEMS OF LAND TENURE [Lonci ielu. 
 
 agrarian outrages, a judgment might be formed of the fre- 
 quency of landlord oppression. It would not be unreasonable 
 to assume that all the worst instances would be included among 
 those cases which have led to such extremity of revenge. 
 
 It may be generally said that four circumstances should 
 combine to make a tenant an effectual improver. He must 
 have, first, a sufficient motive ; secondly, skill ; thirdly, energy ; 
 fourthly, capital. And it is not an uncommon mistake, when 
 some obvious improvement is neglected, to attribute the neglect 
 solely to the want of some one of those circumstances, without 
 taking the rest into consideration. 
 
 The landlord frequently is without the capital that is neces- 
 sary for important improvements on his estate ; for he must pay 
 money for everything (in addition to his family and personal 
 expenses), and the return for his expenditure comes in very 
 slowly. But it is different with the tenant, who seldom wants 
 capital to make some small improvements yielding a quick re- 
 turn. In some cases it might be thought that no capital was 
 necessary, as when a small farmer reclaims land by removing 
 the stones, all the work being done by himself and his family. 
 Some would say that his labour was equivalent to capital, but 
 this would not be strictly correct. The produce of his labour 
 did not support him during the progress of the work. The 
 store of food which he possessed, or the money with which he 
 purchased it, was the capital which he expended in the pro- 
 secution of the work. Without such capital, or credit to 
 supply its place, he must have abandoned the improvement, 
 and supported himself by working for daily wages. 
 
 Thus the tenant is seldom prevented from making im- 
 provements by want of caj)ital. He may be j)revented from 
 undertaking something grand, but if his land is in a very wild, 
 unimproved state, there must be some reason other than 
 want of capiial for his permitting it to remain so. 
 
 For this neglected state of the land a different reason is 
 given by the landlords and the tenants' friends. One says that 
 the cause is that the tenant has not a sufficient estate in the 
 land, and Arthur Young's exaggerated assertion is quoted as if 
 it was strictly true. But excuses for not doing a thing are 
 always to be viewed with great suspicion, especially when they 
 take the form of requiring some great boon as a preliminary to 
 exertion . 
 
 I have known many cases in which the occupier held in
 
 Ireland.] IN VARIOUS COUXTRIKS. 6l 
 
 l^erpetuity or for very long terms, in which the agriculture was 
 as defective and the land as much neglected as if it had been 
 held by tenants-at-\vill. A good interest given to the tenant is 
 a good thing, but it removes only one impediment to improve- 
 ment, namely, want of motive ; but two impediments may yet 
 remain — sloth and ignorance. 
 
 Bishop Berkeley, indignant at the neglected appearance of 
 the country, the houses full of dirt, and the land covered with 
 weeds, rejected this excuse of want of a sufficiently long estate 
 in the tenant, and remarked that things were left undone which 
 would be remunerative if done by tenants even with the shortest 
 leases, and that the Irish proprietors who occupied land which 
 they held in fee were as slovenly and negligent as any tenants- 
 at-will. He thus arrived unfairly at the conclusion that the 
 cause of the neglected state of the land was Irish sloth. He 
 did not see that there was a third cause which might be the 
 operative one, namely, ignorance. 
 
 The Irish tenant acted according to his limited knowledge. 
 He had no example to guide him to a better agriculture. Even 
 if a resident gentleman improved his demesne, and made it 
 more productive, the farmer saw clearly that he could not 
 follow the example. The improvement seldom yielded a fair 
 return for the outlay. Works were undertaken with a mixed 
 view to ornament and utility. This was better for the country 
 than if the same money had been spent in idle dissipation ; 
 but they conveyed no useful instruction to the farmer. It may 
 be fairly doubted whether any improvement of land yields the 
 average return that may be expected from invested capital. 
 Thus I do not say that no drainage pays ; but if all the drainage 
 in Ireland was taken with the mistakes made by inadequate or 
 superfluous drains, or drains badly made, or too deep, or too 
 shallow, or two expensively, or works otherwise unskilfully 
 executed, it is probable that half the works do not yield a 
 return of five per cent, on the outlay. But a farmer will not 
 undertake an expensive improvement unless he is reasonably 
 certain, not only that his landlord will not seize upon the 
 fruits, but that there will be some fruits for himself to enjoy. 
 Thus the want of agricultural knowledge is a serious obstacle 
 to improvements. 
 
 There are some improvements which give a return in com- 
 fort and enjoyment, rather than in profit. A dwelling-house is 
 of this class. In general a man does not willingly live in a
 
 62 SYSTEMS OF LAND TENURE [Longfield 
 
 worse house than that to which he has been accustomed ; but 
 he seldom desires one much better. It is very much a matter 
 of habit. The starving occupier of a fetid, squaUd hovel would 
 wish for strong drink and tobacco, better and more abundant 
 food, good clothes and less work ; but the last of his desires 
 would be a larger and cleaner house. He would scarcely 
 accept it willingly on the terms of his keeping it clean and in 
 good repair. 
 
 This has tended to discourage the landlords from building 
 good houses for their tenants. They found that the tenants 
 did not value them, and were often unwilling to keep them in 
 repair, although it was generally found that after some experi- 
 ence they felt and appreciated the advantage of the decency 
 and cleanliness which at first they disliked as cold and trouble- 
 some. Partly by the landlords, and partly by the teriants, 
 comfortable farm-houses have been built, and improvement 
 in this respect is still making progress. In a few instances, 
 houses have been built by tenants relying on the honour of 
 their landlords; and very few would object to a law that would 
 entitle a tenant to compensation who built a house suitable to 
 his farm. 
 
 In many arguments on the compensation that a tenant 
 should receive for his improvements, a calculation is made of 
 the compensation or enjoyment that would be sufficient if the 
 improvement was made in the most successful manner, and 
 with the greatest skill and economy. This is hardly fair. Every 
 improvement is to a certain extent tentative, and the enjoyment 
 or compensation should be such as to remunerate a tenant of 
 average skill and good fortune. 
 
 It is frequently said that drainage will repay the first outlay 
 with interest in seven years. I do not assert that such a thing 
 never happens, but I am sure that it could not be truly said of 
 one-tenth of the drains that have been made in the United 
 Kingdom. 
 
 It requires less skill to reclaim than to improve. The 
 former is done either by carrying off surface water or by re- 
 moving stones. These works are done by the cotter and his 
 family. They yield a very moderate return, but the results are 
 obvious to the most unskilful, and hence it happens that they 
 are often executed by tenants with very precarious interests, 
 while more profitable works, requiring more skill and foresight, 
 are left undone by tenants with much longer leases. If sloth
 
 Ireland.] JN VARIOUS COUNTRIES. 63 
 
 was very prevalent, the sterile land would not have been re- 
 claimed ; if want of tenure was the only cause, the good land 
 would have been more generally improved. It was want of 
 skill that confined the efforts of the most ■ energetic to those 
 works which required no skill to accomplish or to appreciate 
 them. 
 
 Arthur Young describes the effects of letting land on 
 profitable leases to persons without skill or energy : They 
 are, however, sometimes resident on a part of the land they 
 hire, where it is natural to suppose they would w'ork some im- 
 provements ; it is, however, very rarely the case. I have in 
 different parts of the kingdom seen farms fallen in after leases 
 of three lives of the duration of fifty, sixty, and even seventy 
 years, in which the residence of the principal tenant was not to 
 be distinguished from the cottared fields surrounding it." He 
 attributes this to the idle, drunken habits of the small country 
 gentlemen : " Living upon the spot, surrounded by their little 
 under-tenants, they prove the most oppressive species of tyrant 
 that ever lent assistance to the destruction of a country. Not 
 satisfied with screwing up the rent to the uttermost farthing, 
 they are rapacious and relentless in the collection of it." " If 
 long leases at low rents and profit incomes given would have 
 improved it, Ireland had long ago been a garden." Such were 
 the results of long leases given to persons ignorant of agricul- 
 ture, and without efficient covenants to prevent them from 
 subletting. If they had been possessed of sufficient skill, they 
 would have found it more profitable to cultivate than to 
 sublet. 
 
 CHAPTER IX. 
 
 Many think that the wealth of Ireland may be increased by the 
 cultivation of new crops, or the employment of new instruments, 
 which they accordingly recommend with great zeal. They are 
 not aware of the difficulty of introducing improvements in agri- 
 culture, nor how little profit the persons who adopt them should 
 expect. Nevertheless, several improvements in both crops and 
 instruments have made their way in Ireland in the present 
 century. Improved carts and ploughs have almost superseded
 
 64 SYSTEMS OF LAND TENURE [Longfield. 
 
 the old-fashioned car and plough which were in general use 
 seventy years ago. Through a great part of Ireland the 
 threshing machine is used instead of the flails, and the scythe 
 instead of the sickle. The American rake and the tedding 
 machine are used in making hay, and even reaping and mowing 
 machines may sometimes be seen in use. 
 
 But the use of new machines proceeds more slowly in 
 agriculture than in manufactures. It is less necessary to the 
 individual, as it does not diminish the price of agricultural 
 produce, and therefore the farmer may, without loss, continue 
 to cultivate his land in the manner to which he has been 
 accustomed. 
 
 But the chief impediment is, that the operations of agri- 
 culture are periodic, and not continuous, and the division of 
 labour does not produce a division of trades. The same loom 
 may be employed every day in the year ; and if one loom did 
 its work at half the cost of another, no weaver could hold his 
 ground who used the inferior loom. But a machine of great 
 efficiency in sowing turnip seed may make its way very slowly. 
 
 The farmer would have occasion to use it only two or three 
 days in the year, and the advantage of its use during those few 
 days is all that is obtained to pay the interest of the first cost 
 of the machine, and the expense of finding a place to hold it 
 during the long time that it is unemployed. This latter item 
 is not unimportant in the case of a small farm. Besides, sow- 
 ing turnip seed is only a small part of the business of a farmer, 
 and he may till with profit, although he does not perform this 
 particular operation in the cheapest and most efficient manner. 
 The same observations apply, with greater or less force, to all 
 the operations of the farm. 
 
 Similar causes impede the introduction of new crops, or 
 new modes of cultivation. The work that is done only at 
 intervals of a year is not easily learned. When once it has 
 taken root this difficulty is diminished, for the difference be- 
 tween the earliest and latest periods of performing any opera- 
 tion extends the time during which the business may be learned 
 by observation or by actual work. 
 
 Thus, if you introduce the cultivation of flax into a district 
 into which it was not known before : it is necessary to steep it : 
 you superintend this operation, and give the most precise in- 
 structions to your workmen. The work is done, they are 
 employed during the rest of the year on other business, and
 
 Irkland.] IX VARIOUS COUNTRIES. 65 
 
 wlien the season for the same operation comes round again 
 they will be found as ignorant as they were the preceding year. 
 
 Still some new crops have been introduced with advantage 
 during the present century. Seventy years ago, turnips and 
 mangolds were unknown to the working farmer, and even 
 clover and artificial grasses were seldom sown except by a 
 gentleman farmer. 
 
 The manner in which the cultivation of flax has been almost 
 confined to one province of Ireland shows very strongly the 
 difficulty of introducing the general cultivation of a new crop. 
 It is not unknown in the other provinces, but it is generally 
 profitable only in Ulster. This is not caused by any peculiarity 
 of soil or climate. The crop is equally good in other parts ; 
 but it is not ecjually profitable, and missionaries go about in 
 vain recommending its cultivation. Some say that a large 
 profit may be expected ; others say that they have tried it, 
 and found it unprofitable. A short sketch of flax culture may 
 show the cause of this disagreement, and how the true state of 
 the case may be discovered. 
 
 I give an account of the culture as it existed at the begin- 
 ning of this century, and of some of the changes that have since 
 been made : — 
 
 1. Having prepared the land as if for oats, but with a finer 
 tilth, the seed is sown rather thickly in order that the flax may 
 be drawn up without sending out side branches. 
 
 2. When the flax is fit, which is generally before the seeds 
 are ripe, it is pulled up instead of being cut like corn. This is 
 not an operation of much difllculty. 
 
 3. It is then carried to a dub, or flax-pond, to be steeped. 
 This is necessary to detach the outside fibre, which is the 
 valuable product of the flax, from the inside woody part, which 
 is worthless. This is an operation of some nicety. If it is 
 overdone, the tiuality of the flax may be injured. If it is under- 
 done, the fibre will be wasted in the subsequent operations. 
 The duration of the steeping must depend upon the tempera- 
 ture. _ The experienced tlax cultivator forms his judgment by 
 the sight, and smell, and taste. 
 
 _ 4. It is then taken out of the dub. and carted to a field, where 
 it is spread and dried. The spreading may be done by men, 
 women, or children. The taking out of the dub and spreading are 
 not operations of much difliculty; but a practised hand will do 
 the work better and more cheapl}- tlian a novice. 
 
 F
 
 66 SYSTEMS OF LAND TENURE [Loncfield. 
 
 5. When the flax is sufficiently dried, it is gathered, and 
 bound in sheaves, and put into stocks, and sometimes into 
 stacks or ricks, Hke corn. 
 
 6. The next operation is scutching, or beating the flax with 
 a heavy wooden mallet. The steeping dissolved and destroyed 
 the glutinous matter w^hich fastened the wood to the fibre ; but 
 it is still enclosed by the fibre, and the scutching is necessary 
 to break into small parts the wood, which has been made very 
 brittle by the steeping and drying, in order that it may more 
 readily escape between the threads of the fibre. The scutching 
 should break the wood as much as it can be done without 
 injury to the fibre. 
 
 7. The next operation is cloving. The cloves are made of 
 two small boards, or a board and piece of iron ; they move on 
 a hinge or pivot, and meet each other edgeways. The operator 
 takes a handful of flax, and places the part near his right 
 hand between the cloves ; he then presses the upper clove on 
 the flax with his left hand, and with his right pulls the flax 
 through. This operation, repeated several times, forces the 
 broken wood between the fibres, and rubs it away from the 
 flax, which remains in the clover's hands. Some of the fibre 
 is necessarily broken in this operation, and is detached along 
 with the broken wood. This is called tow, which is an inferior 
 product. The quantity of waste depends upon the skill of the 
 clover, and the efiiciency of the preceding operations, as well 
 as upon the quality of the flax. Cloving is often performed 
 with great skill by women. 
 
 8. The next operation is hackling. This requires more 
 skill and more expensive instruments than any of the preceding 
 operations. It is frequently performed by women. The 
 hackle is a board about six inches by four inches. On one'of 
 the longer sides there is a handle. One face of the board is 
 covered with a numljer of sharp steel spikes from three to five 
 inches long, according to the fineness of the hackle. The 
 hackler takes a bunch of the fibre in hand and swings it gently 
 on the spikes of the hackle, and draws it through the spikes. 
 This is repeated several times to disentangle the fibres, and 
 to reduce them to parallel threads, and to remove the small 
 particles of wood which, after the cloving, still remain adhering 
 to the fibre. An awkward person may seriously injure his 
 hand on the spikes, or by injudicious force may break the 
 fibre, and tear some of it away, producing worthless tow instead
 
 Ireland.] IN VARIOUS COUNTRIES. 67 
 
 of valuable thread. Sometimes it is passed through several 
 hackles increasing successively in fineness. It is then made 
 up into suitable hanks or parcels. 
 
 9. The next operation is spinning, which I need not 
 describe. After being spun on the spinning-wheel (in the 
 last century the distaff and spindle were often used), it is 
 reeled off, and made into hanks of thread or yarn. 
 
 10. The next operation is weaving, which I need not 
 describe. 
 
 11. The next operation is bleaching, which formerly con- 
 sisted in washing the linen well, and spreading it on the grass, 
 frequently watering it until it became white under the influence 
 of the sun and air. 
 
 The Ulster small farmer performed all these operations 
 with the aid of his f^imily. This domestic manufacture was 
 carried on during the spare hours for which the farm found no 
 employment. As generally happens in such cases, the pro- 
 duce was sold at a price which gave the workers a very small 
 remuneration. The work cost them nothing, I may say less 
 than nothing, as it saved the femily from those evil habits 
 which idleness seldom fails to engender. 
 
 The above short sketch may give an idea of the difficulties 
 which prevented the introduction of the culture and manu- 
 facture into the other provinces. It could only be extended 
 from neighbour to neighbour, and when the continuity was 
 broken by mountains, and by the fertile plains of Leinster, 
 in which flax could not be profitably cultivated, the rest of 
 the island was deprived of the best means of acquiring the 
 necessary skill. 
 
 .Some changes have been made in the manufacture which 
 may facilitate the extension of flax culture. The manufacture 
 and the agriculture are becoming more distinct. In the first 
 place, the process of bleaching is no longer carried on by 
 the farmer. Mere grass bleaching has disappeared, and the 
 chemical processes can be more cheaply conducted in large 
 estabUshments. Still, on this point, Ulster has some advan- 
 tages in the possession of bleach greens, in which, in conse- 
 quence of the scale in which their business is done, linen can 
 be bleached more cheaply than in the other provinces. 
 
 Flax is now almost always sent to scutch-mills instead of 
 being scutched at home by the farmers. The spinning has 
 also become a separate manufacture, and only a small portion
 
 68 SYSTEMS OF LAND TENURE [Longfield. 
 
 is spun in the cottage of the grower. The power-loom has 
 reduced the profits of the hand-loom weaver; and even when 
 the hand-loom is used, the trade is carried on under a new 
 system. Intermediate men, called drapers, purchase yarn, and 
 give it out to weavers, who work for wages. The draper, by his 
 capital and skill in buying yarn and selling linen, can undersell 
 the wea\-er who Avorks on his own account. The customer gets 
 his goods cheaper, although an additional profit is received. 
 The manufacture has outrun the agriculture. There is not 
 enough of flax grown in Ulster to supply the manufacturers. 
 
 It will not be easy to introduce the hand-loom to extensive 
 use in the other provinces. The wages of the weaver are low; 
 in some parts of the year they are less than those of the ordi- 
 nary agricultural labourer. In Ulster, where the business is 
 learned in the family, he remains in the trade from habit, not- 
 Avithstanding the competition of the power-loom; but in the 
 other provinces there is little inducement to go out of the way 
 to learn a business in which the wages are so low. The same 
 friction that prevents its departure from Ulster tends to prevent 
 its establishment in Munster. 
 
 On the whole, the changes are favourable to the other pro- 
 vinces, but Ulster retains some advantage in the skill acquired 
 by long experience, and in the possession of those establish- 
 ments in which flax is prepared or manufactured. It remains 
 to be seen whether flax can be successfully cultivated in the 
 south and west of Ireland. Some say that it can, others say 
 that it cannot; and the accounts are usually furnished in such 
 a manner as not to give the information that might settle the 
 dispute. 
 
 They ought to state the extent and value of the land, the 
 quantity and price of the seed, the number of men, women, 
 and children employed on each operation, and for Avhat number 
 of days, and the wages paid to each. The quantity of flax at 
 the commencement and end of each operation should be stated, 
 and the quantity in the final state in which it is sold, and the 
 price received for it. If this is done, it will be seen at once 
 why one loses and another gains. It will be seen what pro- 
 cesses are carried on at too great expense or too much waste of 
 material. 
 
 Flax is an exhausting crop, and does not enter conveniently 
 into any course of rotation. It is most suitable for small 
 farmers, as it finds employment for their families. Any person
 
 Ireland.] IN VARIOUS COUNTRIES, 69 
 
 who watches the operations before the scutching, that is, before 
 it becomes a manuflicturc, will probably come to the conclusion 
 that if he paid even moderate wages to the workers, he would 
 not find it easy to make any profit out of a field of flax. 
 
 The cultivation of madder, and of sugar-beet, has been 
 recommended, and they may be tried by any one who can 
 afford the experiment; but it is easier to learn how to improve 
 the cultivation of the known crops than how to raise a new 
 crop profitabl}'. 
 
 If the produce of the soil could be doubled, it would not 
 diminish the discontent of the Irish tenantry. Their complaint 
 is, not that the land is unproductive, but that it is not theirs. 
 It is a dispute for property, and at present any increase in the 
 productive powers of the land would only embitter the contest 
 by enhancing the value of the prize. 
 
 As the evils presented themselves to my mind, I could not 
 forbear from considering whether any remedies could be found. 
 I considered that the following principles should be kept in 
 view: — 
 
 I St. There should be no injustice nor confiscation of 
 property. 
 
 2nd. There should be no interference with freedom of con- 
 tract, and the law should do nothing to encourage those modes 
 of dealing which are least beneficial to the nation. An appa- 
 rently immaterial law in constant operation may have an 
 important effect in moulding the habits of the people. It is 
 even possible that the relation between landlord and tenant 
 may have been influenced by the fact that a stamp is necessary 
 for a lease, but no stamp is required on a notice to quit. 
 
 3rd. The landlord, subject to all express or implied con- 
 tracts, and to all equities arising from past transactions, is 
 entitled to the present value of the land, and to all increase in 
 its value which does not arise from the acts of the tenants. 
 Independent of the injustice, it would be impolitic to deprive 
 the landlord of all interest in his estate, and to remove him 
 from his natural ])osition as the guide and friend and assistant 
 of the tenant in the management of his farm. It would produce 
 extensive absenteeism, by converting the landlords into mere 
 receivers of fixed rents, without any interests in their estates. 
 They would be an idle, useless, unhappy body of men, without 
 any incentive to work, or any special duty or occupation. 
 
 4th. Although the tenant should not get his landlord's
 
 yo SYSTEMS OF LAND TENURE [Loncfield. 
 
 property for nothing, he ought not to be deprived of any- 
 thing for which he paid with the concurrence of the landlord, 
 although he may have trusted to the rules of natural equity, 
 instead of complying with all the formalities required by a 
 highly artificial state of the law. 
 
 Lastly, although men aannot be compelled to perform 
 duties of imperfect obligation, they ought not to be permitted 
 by any contract or promises to put the performance of those 
 duties out of their power. Thus no settlement or incumbrance 
 should prevent the landlord while in the enjoyment of his 
 estate from dealing in a liberal spirit with his tenantry. Every 
 landlord ought to have it in his power to give either a par- 
 liamentary tenant right, or a lease of forty-one years at a 
 reasonable rent, and to make an agreement to compensate a 
 tenant for his improvements. 
 
 It may be thought by many that in suggesting forty-one 
 years I have named too long a term, and that a lease of twenty- 
 one years would give a tenant sufficient enjoyment to compen- 
 sate him for any improvement, except buildings, that he might 
 make on his farm. To this it may be answered that, generally, 
 the Irish tenant is not of this opinion, and that a lease of 
 twenty-one years would not induce him to improve. That a 
 lease for forty-one years is much shorter than a lease for three 
 lives, which is commonly permitted by marriage settlements, 
 and that it is not the length of the lease at its commencement, 
 but the length of the term when the tenant is about to improve 
 that is the operative inducement. A prudent tenant will not 
 make any change immediately on his obtaining possession of 
 his farm. He will wait until experience has made him inti- 
 mately acquainted with its wants and capabilities. If all leases 
 were granted for terms of twenty-one years, the unexpired 
 terms would be of the average length of only ten and a half 
 years, and if they were granted for terms of forty-one years, the 
 average unexpired terms would be six months less than twenty- 
 one years. 
 
 With such an extension of leasing powers to the landlord, 
 and with a right to the tenant to get compensation for his im- 
 provements, and a parliamentary tenant right whenever he has 
 fairly earned it, the cliief grievances would be remedied without 
 any violent interference with the rights of property. 
 
 But if a man voluntarily enters into a contract to take land 
 with a precarious tenure, he has no right to demand to have it
 
 IiiHi.ANi).] IX VARIOUS COUNTRIES, "JX 
 
 made permanent until he has done something to earn an 
 enlargement of his estate. To accede to such a demand might 
 do a serious injur}^, not to himself indeed, but to his class. If 
 the rights arising from mere occupation are made too strong, 
 men who have land in their possession will be very careful 
 not to let a new occupier get possession, and the poor will be 
 relegated to densely-packed villages. The owner of land may 
 be disposed to give a labourer the occupation of a com- 
 fortable cottage and garden. This will be a great benefit 
 to the labourer at a very slight loss or inconveinence to the 
 landowner ; but it is essential that the occupation should be 
 precarious, so as to prevent the labourer from making that 
 occupation a source of great discomfort to the landlord. If 
 the labourer neglects his work, or has ill-conducted children, or 
 liarbours persons of bad character, or even keeps pigs and 
 j)oultry, frequently trespassing on the landlord's property, it 
 will be necessary to resume possession from him. There may 
 be many other cases, which I need not enumerate here. Call 
 the landlord's conduct capricious, arbitrar\', tyrannical, or by 
 any other epithet of abuse, it is necessary that he should have 
 the power of removing the cottier on a reasonable notice, or he 
 will not put any cottier in possession of any land. The option 
 in future will not be between a fixed and a precarious occupa- 
 tion, but between a precarious tenure and nothing. 
 
 The same loss to the labourer will ensue if the landlord 
 cannot obtain possession without expense at law, or being held 
 up to })ublic odium as a tyrant and oppressor. He will con- 
 sider all the consecjuences which are likely to result from the 
 reception of a cottier tenant, and if eithei' law or custom makes 
 those consequences grievous to him, he will be so much the 
 less willing to give accommodation to the labourer.
 
 72 SYSTEMS OF LAND TENURE [Longfield. 
 
 CHAPTER X. 
 
 Property in land (lifters in its origin from property in any 
 commodity produced by human labour. The product of 
 labour naturally belongs to the labourer who produced it. If 
 he works for wages, his emplo3'er is entitled to the product as 
 assignee of the labourer. The substance of the contract is, 
 that the employer pays a certain present sum as wages in 
 exchange for the future uncertain product of the labour. 
 
 But the same argument does not apply to land, which is 
 not the product of labour, but is the gift of the Creator of the 
 world to mankind. Every argument used to give an ethical 
 foundation for the exclusive right of property in land has a 
 latent fallacy. It omits a portion of the value which ought not 
 to be left out of consideration. I shall call attention to one or 
 two of them. 
 
 First comes the argument founded on the rights of labour. 
 Land, it is said, is worthless until it is cleared and cultivated, 
 and it properly belongs to the man who has improved it, or 
 brought it into cultivation. There would be some force in this 
 argument if land was worth nothing beyond the value of the 
 labour laid out upon it ; but if this is not the case, the argument 
 is subject to this objection, that it permits one man to improve 
 another man's estate, and then hold it as his own. This is 
 what is called improving a man out of his property. Here is 
 some land very convenient and suitable as a site for building ; 
 it belongs to no person as private property, and therefore I, as 
 a member of the community, am a part owner of it. Another 
 person takes possession and builds a valuable house on it, and 
 then claims the land as exclusive property on account of his 
 buildings and improvements ; am not I thereby improved out 
 of my estate ? I was a part owner once, and now I have no 
 interest whatever in it. Land of very indifferent quality in the 
 neighbourhood of a tOAvn frequently is sold or let for a large 
 sum as a site for building, before a single penny has been laid 
 out in reclaiming it. Although it is of no present use, still its 
 capacity for being built on gives it a present value. 
 
 In this case the original value can be estimated, and in fact 
 it is often separated from the additional value which the land
 
 Ireland.] IN VARIOUS COUNTRIES. 73 
 
 derives from the buildings placed on it. It is the ground-rent 
 which a tenant would be willing to pay on condition of getting 
 a grant of the land in perpetuity. 
 
 But without any reference to building-land, it is easy to 
 find large quantities of land in Ireland of which the value can- 
 not be attributed to any labour expended on them. Indeed, 
 some of the land is probably of less value than if it had been 
 left in a state of nature ; and yet it is private property. 
 
 It might at first appear as if the argument against the right 
 to property in land, as founded on labour, applied equally to the 
 case of manufactured articles. The raw material did belong to 
 the community, which is deprived of it by the individual who 
 manufactures it, and converts it into his own exclusive property. 
 This objection would be valid if the raw material was in limited 
 (luantities ; and if the labourer, for the purpose of the manu- 
 facture, seized upon a greater proportion than his share would 
 be as a member of the general community. But this never 
 happens. As a matter of fact, the value as well as the right of 
 property in a manufactured article is derived from the labour 
 employed in producing it ; and the title could generally be 
 shown through the most important stages. It is equally certain 
 that neither the title to property in land nor the chief part of 
 its value is founded upon labour. It was in general claimed as 
 property before any labour was laid out on it. 
 
 The right arising from the first discovery is sometimes 
 alluded to as a possible foundation for the right of property in 
 land. But this must refer to the right of the whole community, 
 and not to the right of any private individual. When once a 
 party lands upon an island, the whole island is substantially 
 discovered. They all know the land is there, although they 
 have not actually walked over every foot of it. But suppose 
 the case of a discovery made by an individual. A party of 
 men and women discover an uninhabited island, and take pos- 
 session of it. Good water for drinking is scarce, and different 
 I)ersons go in various directions. One man, either by superior 
 intelligence or better fortune, discovers a well which yields an 
 am])le supply. This does not give him a right to exclude the 
 rest of the party. They must possess the same natural right 
 which they had before the discovery, to use the well if they can 
 find it. The right of the first discoverer is merely to keep his 
 secret, or to sell it to the community for the best price which 
 he can obtain for it.
 
 74 SYSTEMS OF LAND TENURE [Longfield. 
 
 The case bears some analogy to the patent laws, and there- 
 fore I may allude to an argument which is sometimes used in 
 their defence. A man invents some process, and it is said that 
 if the public makes use of this process he is deprived of the 
 fruits of his industry and inventive talent. But this assumes 
 the very point in dispute : it assumes that one of the natural 
 fruits of a discovery is the right to prohibit every other person 
 from doing the same thing. This is not a well-founded as- 
 sumption. His natural right is only to use it himself The 
 first man who broke a cocoa-nut and found the inside eatable 
 would have a right to eat it himself, but he would have no right 
 to insist that no other man in" the world should ever eat any 
 other cocoa-nut without his permission. 
 
 The fact of possession is sometimes given as the origin of 
 private property in land. The man who gets first under the 
 shade of a tree has a right to remain there undisturbed. He 
 cannot be removed without a breach of the peace ; and this 
 right seems to be acknowledged by the inferior animals. It is 
 sometimes added, that the mere fact of taking possession is of 
 itself an act of labour, and therefore that the right of property 
 thereby conferred is within the general rule, that labour creates 
 a right to property. 
 
 To this it may be replied, that this right, if it existed, would 
 only last as long as the possession in which it originated. It 
 could not extend over a large estate, nor be transferred to 
 another person. As to the acknowledgment of the right by 
 the lower animals, even if we were disposed to learn ethics 
 from their example, there is great reason to doubt the fact. It 
 probably exists only so far as the beast in possession has suf- 
 ficient strength to make it inconvenient for any other beast to 
 disturb him. 
 
 When it is said that the mere taking of possession is an act 
 of labour, it should be noticed that even if it deserves the name 
 of labour, it is not of that sort which can confer a title to pro- 
 perty. The only labour which can give a title to property 
 is that labour which has created the value of the property that 
 it claims. 
 
 The foundation of the right to pro])crty in land is not 
 ethical but political. Its origin is expediency. In order that 
 it may be cultivated to the most advantage, it is necessary that 
 the cultivator should be secured in the enjoyment of the fruits 
 of his intended industry. For this purpose it is necessary that
 
 Ireland.] IN VARIOUS COUNTRIES. 75 
 
 the person who is permitted to use the land should be permitted 
 to enjoy it for a certain length of time, to make it his interest to 
 cultivate it in the most productive manner. This period varies 
 with the increase of foresight and agricultural knowledge. 
 
 It is easy to conceive a state of things in which men did not 
 look beyond the passing year. They sowed and they reaped 
 without any knowledge or care whether the land is left in a 
 better or worse condition. 
 
 But the inconvenience of a frequent repartition of land 
 is quickly perceived, and this is best avoided by permitting 
 land to be held in absolute ownership, subject to such taxes 
 and regulations as the State shall from time to time think it 
 reasonable to impose. 
 
 It seems just that land should be charged Avith the duty of 
 maintaining the poor, so that no man should be destitute on 
 account of the existence of private property in land. Those 
 who are able to support themselves owe that power to that 
 general wealth and civilisation which could not have existed 
 without the establishment of private property in land ; and 
 those who are not able to support themselves, receive from 
 the poor-rates a better subsistence than they could extract 
 from their share of the land of the couritry if undivided and 
 unreclaimed. 
 
 But the rights of the present owners do not depend upon 
 the truth of any theory respecting the origin of proprietorial 
 rights. It is a rule of natural justice that says that, if I 
 encourage a stranger to buy from a wrongful owner property 
 that is really mine, I cannot justly press my own claims against 
 the purchaser. This is the case with land in every settled 
 country. The present owners either themselves j^urchased the 
 land, or derive their rights under those who purchased it with 
 the sanction of the community, represented by the authority of 
 the State. In many cases, the State itself received part of the 
 purchase money from stamp-duties on the purchase deeds. 
 
 In this manner, the title of the landlord appears to be 
 perfect as well against the nation at large as against everv 
 member of it. But there is one person in particular who 
 cannot claim the land without the most shameless dishonesty ; 
 and that is the tenant who has obtained a temporary possession 
 of the land by means of a contract with the landlord. 
 
 I wish for a farm. I see one that suits me. I apply to the 
 person in possession, who claims to be the owner, and I agree
 
 76 SYSTEMS OF LAND TENURE [Longfield. 
 
 to take a lease of it for twenty-one years, or as tenant from year 
 to year at a rent of ^50 a year, and to give him back the farm 
 when the lease expires. Nothing can be clearer than that I can 
 claim no right to that land beyond what is given to me by the 
 lease. It either belongs to the landlord who bought, or to the 
 nation at large, but certainly not to me. If it belongs to the 
 landlord, I can claim nothing but my bargain, viz., possession 
 for twenty-one years. If it belongs to the community at large, 
 my right is still less. It would be strange that I should claim 
 more than my bargain, because I made the bargain with the 
 wrongful owner. 
 
 I have put the case of a tenant obtaining the possession of 
 land by a contract with the landlord, and on that possession, 
 on that contract, resting his claim to hold the land for a 
 larger period or at a smaller rent. But there are other cases 
 in which the tenant has done something more, and in which 
 he has some equitable rights, which, although they are rather 
 vague, are yet, I think, capable of being ascertained, settled, 
 and conceded by carefully-considered legislation. The two 
 chief cases are — first, where the tenant has made such per- 
 manent improvements on the land as were necessary for its 
 efficient cultivation, or for his decent and wholesome habita- 
 tion ; secondly, where the tenant has to the reasonable know- 
 ledge of the landlord paid the outgoing tenant money for his 
 interest in the farm. 
 
 In the former case, it must be supposed that the tenant 
 made the improvements, or erected the buildings, in the belief 
 that he would be ])ermitted to enjoy them. It is incredible 
 that any man should build a house if he was assured that 
 another should enjoy all the benefit, either by turning him out, 
 or by charging him rent for it. The same argument applies 
 to the case of a purchase of a precarious interest. The land- 
 lord who permits the purchase of a mere tenancy-at-will must 
 be considered as encouraging the belief that the purchaser 
 thereby acquires a substantial interest in the land. 
 
 A third case in which the tenant seems to be entitled to 
 something more than the law gives him, is where he has made 
 a reasonable bargain with the apparent owner of the land. 
 There is a common-sense distinction between a purchaser and 
 a tenant which the law does not sufiiciently recognise. The 
 man who buys an estate, and the man who takes a farm in 
 order to earn his bread by its cultivation, are treated by law in
 
 Ireland.] IN VARIOUS COUNTRIES. 77 
 
 the same manner, and are subject to the complicated laws of 
 real property. These laws are troublesome and inconvenient 
 so far as they affect purchasers, but are oppressive and unjust 
 where they disturb the title of a tenant. 
 
 It may be said that it is not easy to distinguish between a 
 tenant and a purchaser. A man takes a lease of land for a 
 thousand years at a rent of a penny an acre. Is he not to be 
 considered a purchaser, although he takes the land for a limited 
 term and is subject to a rent ? Add a penny to his rent, and 
 take a year away from his term, he is still a purchaser. Con- 
 tinue this process, and you may have him paying a rent of 
 ^4 2S. 6d. an acre, and with a term of only ten years. He is 
 then clearly a tenant. At what step in the process did his 
 position change from a purchaser to a tenant ? 
 
 Such an argument has no practical force. It must be met 
 by drawing an arbitrary line at some reasonable point. Say that 
 a tenant, whose rent is not less than three-fourths of the value, 
 and whose term does not exceed forty-one years, shall not be 
 disturbed in consequence of any settlement or incumbrance 
 affecting his landlord's interest. 
 
 It is inconsistent with justice that a man should hold land 
 at a certain rent, and for a certain term, without any claim 
 e.xcept that he took the land for a different term and for a 
 different rent. A man takes a farm to-day, and demands that 
 a law shall be made which would enable him to sell his lease 
 next day for several hundred pounds. This is to give him a 
 property which he did not purchase or earn, merely because he 
 threatens to commit murder if he is kept to his engagements. 
 
 However, no demand founded in justice ought to be re- 
 fused, merely on account of the improper manner in which it 
 is demanded. I must not refuse to pay a creditor because he 
 I)resents his account or demands payment in an uncivil manner. 
 I have made these observations on the origin of property 
 in land in order to show that the State retains the power of 
 modifying it from time in accordance -with the general interests 
 of the community. This right of private i)roperty in land is a 
 political not a natural institution. "Ncun propria: telluris 
 herum, natura neque ilium. Nee me, nee quenquam statuit.'' 
 
 What justice reciuires is that changes in the law should not 
 be directed against any particular persons, but that all who are 
 in similar circumstances should be treated in the same manner. 
 A land-tax of ten per cent, would not be unjust if it was thought
 
 78 SYSTEMS OF LAND TENURE [Longfield, 
 
 necessary for the security of the kingdom ; and there would be 
 as little injustice in a law which modified the rights of property 
 for the same object, even although the result should be equiva- 
 lent to a tax by causing some diminution in the value of the 
 property. 
 
 It is sometimes supposed that a change in the law would 
 be unjust to purchasers under the Landed Estates Court. I 
 see no grounds for that opinion. The Act of Parliament which 
 constituted the Court did not give a guarantee against future 
 legislation. To do that is beyond the power of Parliament. 
 What the conveyance of the judges gives is the perfect right to 
 the land, subject only to the adverse rights mentioned in the 
 deed, and to such obligations as may afterwards be imposed, 
 either by the purchaser or by the authority of Parliament. It 
 may almost be said that the latter comes within the former 
 case, as the House of Commons is the lawful representative of 
 the purchaser. 
 
 It could hardly be contended that the purchaser with 
 a parliamentary title should be exempt from all Acts passed 
 for the relief of the poor, or that the area of poor-law taxation 
 should not be altered, and yet such changes might have the 
 effect of giving his poorer tenants a substantial interest in his 
 estate. 
 
 What the purchaser has a right to insist on is, that no law 
 shall be specially directed against him, and that no rights shall 
 be set up which were in existence at the time of his purchase, 
 but were omitted from the deed of conveyance. But in 
 common with all the subjects of the realm, he must take 
 subject to all regulations that may be made by lawful authority, 
 whether they increase or diminish the value of his property. 
 The purchaser, by the fact of his })urchases, places himself in a 
 new relation to a certain number of persons, which imposes on 
 him some very important duties, and it is for the State to 
 determine whether those duties shall be enforced by law or 
 trusted to his own conscience for their fulfilment. 
 
 The following changes might be made in the law of real 
 property, and they do not violate any natural or political right. 
 
 First, the law of primogeniture should be abolished, and all 
 the children of the same parents, and their descendants should 
 have equal rights to the land of their direct or collateral 
 ancestor. Under the influence of this new law absenteeism 
 would quickly disappear. Some of the children of an
 
 Ireland.] IN VARIOUS COUNTRIES. 79 
 
 absentee -woukl sell the estate which descended on them, 
 and for which, not having seen it, they could entertain no 
 special afifection. 
 
 No lease nor agreement between landlord and tenant 
 should be liable to any stamp duty. 
 
 No settlement or encumbrance should prevent the owner 
 of land in possession from having the following power : — 
 First, he may make any lease for any term not exceeding 
 forty-one years at a rent not less than three-fourths of the 
 full value, or competition rent. Second, he may take a fine 
 on granting a lease. Third, he may agree that the tenant 
 shall be entitled to tenant right as above defined. Fourth, 
 he may agree with his tenant to give him compensation for 
 improvements. 
 
 If a lease is made for a shorter term than forty-one years, 
 the landlord should not be permitted to distrain for rent. 
 
 If a lease is made for a shorter term than forty-one years, 
 and without tenant right, all poor-rate and county-cess should 
 be borne by the landlord. 
 
 No proceedings should be taken to recover any arrear 
 of rent which accrued more than a year before the commence- 
 ment of the proceeding. 
 
 In the absence of a written agreement, the tenancy should 
 determine on the first of November, and require a year's notice 
 to quit. 
 
 The arbitrator should have power to award parliamentary 
 tenant right to any tenant who had fairly earned it by his 
 outlay. 
 
 The tenant should be entitled to the trees he planted, 
 without the necessity of rttgistering them.
 
 II. 
 
 THE LAND-LAWS OF Ex\GLAND. 
 
 Ey C. Wren Hoskyns, Esq. 
 
 More than a generation has passed away since a late Professor 
 of Geology, in addressing the Royal Agricultural Society at 
 their first country-meeting held at Oxford, arrested the atten- 
 tion of his landed and farming auditory by the remark, that the 
 perfect model of a plough, and of a ship, still furnished to the 
 world of science matter of unsatisfied inquiry and speculation. 
 The speaker cited these familiar instances — and he could 
 hardly have made a more skilful choice — to illustrate the pro- 
 position that some of the deepest scientific problems underlie 
 our commonest uses, problems that seem never to wear out or 
 to grow old by time, but reappear from age to age, linking the 
 old world and the new, by questions that equally defy the 
 decision of authority and the conquest of-science. 
 
 In the interval that has elapsed since the words were 
 uttered, in all the confidence of knowledge that continues to 
 mark each " ignorant present time " of the world's history, it 
 will be admitted that the advances made by the " audax lapeti 
 genus " in the forms that plough both land and ocean, have 
 given to them a force little intended, or even dreamt of, by the 
 speaker ; yet the challenge still remains, that seemed almost 
 antiquated then, and perhaps the words conveying it are but 
 the formula for an equally pregnant future. Why it is that the 
 most enduring questions should seem to link themselves often 
 Avith what is most familiar to our daily practice, is a matter of 
 inquiry beyond the present purpose ; but there are few ex- 
 perienced minds whose thoughts do not bear testimony to 
 the existence of what may be termed standing difficulties in 
 common things, 
 
 G
 
 82 SYSTEMS OF LAND TENURE [Hoskyxs. 
 
 One of these, holding a place anterior to most — if not in 
 point of time, yet certainly in importance — connected as it is 
 with the history of our common inheritance, is that of the Laws 
 of the Soil, the individual right to use, to hold, to dispose of it, 
 by gift or sale, to others — to transmit it by descent or will to 
 the next generation — and, resulting out of all these, its general 
 distribution amongst the various classes and members of the 
 community. 
 
 Old as the subject is — for it must be nearly coeval with 
 man's social existence — and worn as much by modem treat- 
 ment as by mere age, yet it can hardly be denied that it comes 
 to us little simplified, if not rather complicated by time and the 
 usage it has found among the various families of our race, who 
 have, in truth, exhibited few differences more characteristic, 
 more ethnologically marked, than those arising out of national 
 habits in reference to the soil. 
 
 The grazier, the sportsman, even that picturesque terror 
 of our childhood, now rarely seen — the encamped gipsy — has 
 each his ancient prototype in tribes and races having this 
 feature in common, that to each of them the earth presented 
 simply so much space to move in, and to use as suited their 
 temporary wants or convenience. ' No law of meinn and 
 tuum was 'written upon the waste, or grew out of it, for those to 
 whom not even a fixed habitation had yet suggested the idea of 
 " j)roperty " in the land. 
 
 But as soon as tillage comes upon the scene, even in its 
 earliest and rudest form, a very different claim to that implied 
 in the mere surface use begins to develop itself. It needs no 
 abstract description : we have it in the familiar shape before 
 our eyes in the settlements of our own race in America and 
 Australasia, v/here, in the dealings with some of the non- 
 cultivating native races, the idea of purchase — as a contract of 
 permanent and exclusive right, of irredeemable alienation — was 
 almost as unintelligible on one side as its violation was on the 
 other. 
 
 It can hardly with reason be doubted that the laws of the 
 soil, including the first idea of permanent proprietary right (for 
 even the hunter of the prairie claims a temporary sole posses- 
 sion), owed their very birth to tillage. Land docs not become 
 soil till cultivation has made it so : the process, when accom- 
 plished, is as much a manuflicture as the implement that 
 efiected it — as the plough-beam shaped from the timber, or the
 
 England.] IN VARIOUS COUNTRIES. S^ 
 
 coulter from the smelted iron. If it could only be carried 
 away after the conver.sion, it would have spared the world 
 some ingenious arguments on both sides of the question of 
 exclusive property. Had the agricultural fact been kept in 
 view, that a seed-bed (always excepting the one primeval 
 example on the banks of Father Nile) is as strictly an artificial 
 production of labour as any that is wrought by man's hand 
 upon Nature's materials, the political economist might perhaps 
 have had a lighter task. The claim of him who before he can 
 reap any return must invest a long expenditure in time, and 
 seed, and labour, and tools, might vindicate a year's possession, 
 and a freshly-earned one year by year (and the four or six- 
 course farmer perhaps could urge a still more protracted suit), 
 against that ideal claim of his brother man which has been 
 quaintly described as " the right that belongs to all to take that 
 which belongs to none.'""^ But the more complicated question 
 lies waiting for us yet one stage further, namely, when the 
 phenomenon begins to be witnessed of the severance of owner- 
 ship from occupation ; when the fact stands patent of a process 
 having taken place which has enabled the occupier to transfer 
 the right he held to another^ either wholly — by sale or gift, and 
 the still more potential act of transmission by heritage, or by 
 will — or partially, by lease, or other temporary assignment. In 
 every fully-peopled country a long unwritten history has been 
 acted out, of the gradual acquisition of such rights over the 
 soil ; and in most of them there has come, in the natural 
 course of events, a time when the unlanded portion of the 
 growing community have begun to inquire into the cause of 
 their own exclusion, and the " title " of those who have been 
 before them in the race and have got possession. 
 
 The student of early Roman history is struck by the 
 reiterated occurrence of those mysterious struggles between the 
 
 * The words of Locke are as follow : — ' ' Though the earth, and all inferior 
 creatures, be common to all men, yet every man hath a property in his own 
 person ; this nobody has a right to but himself. The labour of his body and 
 the work of his hands, we may say, are properly his. Whatever, then, he re- 
 moves out of the state that Nature hath provided and left it in, he hath mixed 
 his labour with and joined to it sometliing that is his own, and thereby makes 
 it Ills property. It being by him removed from the common state Nature hath 
 placed it in, it hath by this labour something annexed to it that excludes the 
 common right of other men. For, this labour being the unquestionable pro- 
 perty of tlie labourer, no man but he can have a right to what that is once 
 joined to ; at least, when there is enough and as good left in common for 
 others."
 
 84 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 richer and poorer citizens, which appear never to reach final 
 settlement; marking the growth and predominating power of a 
 landed caste, whose domains — extending around the city for 
 miles — gave, in a population so dense and concentrated as 
 that of Rome, a special severity to the Agrarian question, by 
 leaving for the increasing numbers of the State only the more 
 distant and worthless portions of the unappropriated " public 
 land." So, in the Greek States, " every accession to the 
 number of citizens was followed by a call for a fresh division of 
 the public land; and as this involved the sacrifice of many 
 encroachments that had grown into vested interests, it was 
 regarded with horror by the old citizens as an act of revolu- 
 tionary violence. For though the land was the undoubted 
 property of the State, and although the occupiers of it were to 
 the State mere tenants at will, yet it is in human nature that a 
 long possession should give a feeling of ownership, the more 
 so, as while the State's claim lay dormant, the possessor was 
 to all appearance the proprietor ; and the land would thus 
 be repeatedly passing by regular sale from one occupier to 
 another."* 
 
 The same tale which finds such fiiltering expression in those 
 nations that had historians, has worked out its silent but not 
 less actual history in every culti\-ating nation of the world. 
 Increase of population ; decrease of public land ; the vehe- 
 ment claim of participation on the one hand, the fierce and 
 jealous tenacity of prescriptive rights on the other. 
 
 Probably in no other country of Europe so much as in our 
 own — partly owing to its island character, and partly to the 
 succession of distinct races that has gone to form its people and 
 its laws — have the incidents of the land and the institutions 
 connected with it been more truly, in every sense, a history. 
 The forced introduction by the Norman kings of the most 
 oppressive incidents of feudalism, without its better features, 
 broke in upon an ancient landed system which had been 
 growing up for centuries, disjointedly but steadily, in Saxon 
 England, having its roots in the imperishable ijrinciples of 
 Roman jurisprudence, that had prevailed here for nearly four 
 centuries, and of which it has been truly said that it " was 
 
 * Arnold, " Hist, of Rome,'' vol, i. Dr. Arnold shows lh;it the law of real 
 property in] Rome was more advanced than the feudal system in many im- 
 portant features. The propriet(;r of land was the absolute owner during his 
 life-time, and could bestow it absolutely at his death.
 
 E.n<;land.] in various COUNTRIES. 85 
 
 never permanently lost in any country in which it was once 
 established." * Under the subsequent rule of such men as 
 Egbert, Alfred, Athelstan, and Cnute, there are surviving 
 proofs that the laws and distribution of land had reached a 
 stage of advancement that embodied, with the remains of that 
 Roman polity which " had graven itself in our land," t some 
 of the most sterling elements of the Old Saxon character and 
 institutions. 
 
 We must not forget that it is from the pens of Norman 
 writers that most of the ideas we entertain of our native 
 English forefathers at the time of the Conquest have been 
 derived ; but ample traces that have escaped the distorting 
 profile of the historian, tend to show that whatever the com- 
 parison may seem to us between the personal habits of the 
 conquering and of the conquered race in other points, it would 
 be far from the truth to suppose that the English of the eleventh 
 century had much, if anything, to learn from their Norman 
 invaders, in the laws of the soil. '•' Norman literature before 
 the Conquest is worthless ; their law-courts have nothing to 
 match the splendid series of Anglo-Saxon charters.":}: There 
 is much that is primitive and simple to be met with, but (apart 
 from the personal habits of the age) nothing of barbarism in 
 the land institutions of Saxon England, unless, indeed, an 
 excessive love for it, and an almost exaggerated deference for 
 its possession may be so classed. In an age when freedom 
 was the exceptional condition, the ownership of land was the 
 mark of a free man, and ample territory the inseparable appa- 
 nage of rank. The modern Conveyancer's broad separation 
 between "real " and "personal'' estate was strongly marked 
 in the practices of Saxon life, but with far better reason, when 
 the rareness and insignificance of other forms of property gave 
 
 * Creasy, " History of England." During the intervening centuries, from 
 A.l). 82, when .^gricola reduced tlie island, to A.n. 463, when the Legions were 
 withdrawn, the judicial tribunals of the Province of Hritain were fashioned on 
 the Roman models. The corporations invented by Roman Jurists were the 
 origin of our municipal institutions by which England has always been dis- 
 tinguished. Papinian, the celebrated Roman jurist under Septimius Severus, 
 presided in the Forum Eboraci (York) ; Ulpian and Paulus are considered by 
 Selden to have occupied the functions of " Assessores " in the tribunals of 
 Roman Britain. 
 
 t Pearson, "England in the Early and Middle Ages," vol. i., chap. ii. 
 " It is scarcely too much to say," writes Mr. Pearson (p. 51), " that we owe a 
 vantage-ground of si.\ centuries of inherited Law and Culture to our Roman 
 conquerors." 
 
 t I'earson. Vol. i., p. 401.
 
 86 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 truth and meaning to the distmction. No amount of gold or 
 "chattel" property conferred the franchise: land alone was 
 recognised as the source of all personal privilege, and the 
 basis of civil rank. " There is no trace of such a qualifica- 
 tion as constituted citizenship at Athens or Rome ; among our 
 Saxon forefathers the exclusive idea of the city had no sway." * 
 In this they only inherited the national character of their Con- 
 tinental ancestors pictured by the Roman annalist with such 
 expressive brevity. "It is well known that the German race 
 inhabit not cities, nor care even to join house to house. They 
 dwell independently and apart, as the stream, the meadow, 
 or the grove may guide their choice." t Centuries have not 
 obliterated these features in their descendants to this day ; the 
 love of land, its estimation above all other forms of property, 
 and its political preponderance. It long held, and still in a 
 measure holds, with us, the dangerous prerogative of being 
 its own lawgiver, a power hardly to be trusted to any human 
 hands, without check or counterweight ; for even just and 
 conscientious purpose is not always gifted with that reflex 
 capacity which can see in the claims of others the exact 
 portraiture of the same " rights " it defends as a natural duty 
 for itself. 
 
 The characteristics of the English land system before the 
 Conquest are worth careful notice, not only as being the 
 earliest contributions to the history of the land in this country, 
 but as embracing original types of national law and custom, 
 from which it would be difficult to say how large a share of 
 that unwritten code known to our familiar use as " Common 
 Law" is deri\-ed. If the materials are not as abundant as 
 those of later time, they are yet so hand-marked as to make 
 up for want of detail by the significance of a few broad out- 
 lines. In the first place, it embraced (though with some 
 variations in different parts of the country) those three im- 
 ])ortant rights which together may be said to form the very 
 test of land freedom, i. The right of alienation, or transfer 
 ])y sale or gift. 2. The power of disposal by will. 3. That 
 of transmission by inheritance. This is the more observable, 
 at that early period of our national life, because under the 
 Feudal rule which succeeded the Conquest, the two first were 
 
 * Kemble, " Saxons in England." 
 
 t Tacitus, " De Mor. Germ.," c. .\vi. The passage is as characteristic of the 
 writer as of the people lie describes.
 
 England.] IN VARIOUS COUNTRIES. 87 
 
 virtually abrogated, and the third completely changed from 
 its original character, so as to subserve only the feudal rule 
 of succession. 
 
 In the next place, there existed in a very distinct form 
 that remarkable reservation of public right which found ex- 
 l)ression in the word " Folc-land," or land of the people, and 
 embodied "the principle of a direct ownership by the com- 
 munity, not in theory only, but to some extent in practice : 
 l)rivate property in its more perfect form obtained only over 
 those portions which were granted to individuals by charter, 
 and hence were called ' boc-land ' " * (book-land). This dis- 
 tinction seems almost identical with the "publica terra" and 
 " privatus ager" of the Romans, and marks, with other evidence, 
 the extent to which the principles of Roman law still sub- 
 sisted. " It was only with the consent of his Witan that 
 the king could make grants of the public domains of the 
 Folc-land. The theory that the sovereign is the paramount 
 proprietor of all land, was utterly alien to Saxon ideas and. 
 institutions. Such state domains, like the ager publicus of the 
 Romans, might be held by individuals as tenants of the 
 Commonwealth, till it was formally made over as private pro- 
 perty." t But still, after such appropriation, and accompany- 
 ing every private estate, all land remained subject to three 
 inevitable public charges (" Trinoda necessitas") — i. Military 
 service in (but not always confined to) defensive war. 2. The 
 repair of bridges, and 3, of royal fortresses. 
 
 The land-owning class consisted of the Eorls, or larger 
 owners, who held under the crown, and the Ceorls, a much 
 more numerous but independent class. | " They are the root," 
 says Hallam, " of a noble plant ; the free socage tenants, or 
 English yeomanry, whose independence stamped with peculiar 
 features both our constitution and our national character." § 
 The limits of land were defined with scrupulous accuracy, and 
 
 * See Mr. C. Neate's " Lecture on the History and Conditions of Landed 
 Property," p. 19. 
 
 ■j- Creasy, "Hist, of England." "The feebleness of the resistance of so 
 brave a people as the English at the Rattle of Hastings is attributed by Mr. 
 Kemble to the discontent and depression of the middle class at the gradual 
 absorption of all the public lands by the great owners of that day." 
 
 X The Eorl and Ccorl (words whose terminal sound often coupled them in a 
 sort of civil apposition) nearly corresponded to the Squire and Yeoman of a 
 later day. The Thegnes were of a higher order, equivalent to our landed 
 nobility. 
 
 § ''Middle Ages," ii. 386.
 
 88 SYSTEMS OF LAND TENURE THoskyns. 
 
 a Register of deeds and decisions, including mortgages, was 
 kept in the superior courts.* The form of alienation, or 
 transfer, was very simple ; but its efficacy was secured by 
 publicity. " Before the Conquest, grants of land were enrolled 
 in the Shire-book, after proclamation made, in public Shire- 
 mote, for any to come in that could claim the lands conveyed; 
 and this was as irreversible as the modern Fine with pro- 
 clamations, or Recovery." t It might almost shame a reader 
 of our Blue-books on " Sale and Transfer of Land," to find a 
 "Registry of Title," and, what was then almost its equivalent, 
 a " Register of Assurances " existing in the ancient English 
 county courts, while the age of Christendom was yet written in 
 three figures. 
 
 The power of disposition by Will appears to have been 
 unrestricted, extending even to oral declaration if formally 
 made in the presence of a sufficient number of witnesses, t of 
 whom eight or ten were usually required ; and all wills had to 
 
 * Kelham's " Domesday Book," p. 242, note i. 
 
 f Gurdon on "Courts Baron." 
 
 + Hallam's "Middle Ages," ii., p. 393. He gives a very ancient and 
 characteristic Saxon instrument, published by Hickes, recording a suit in a 
 county court. 
 
 " It is made known by this writing that in the Shire-gemot (county court), 
 held at Agelnothestane (Aylston, :n Herefordshire), in the reign of Cnute, there 
 sat Athelstan the bishop, and Ranig the alderman, and Edwin his son, and 
 Leofwin, Wulfig's son ; and Thurkil the White, and Tofig, came there on the 
 king's lousiness ; and there were Bryning the sheriff, and Athelweard of Frome, 
 and Leofwin of Frome, and Goodric of Stoke, and all the Thegns of Hereford- 
 shire. Then came to the mote I'klwin, son of Enneawne, and sued his mother 
 for some lands, called Weolintun and Cyrdeslca. Then the bishop asked, who 
 would answer for his mother. Then answered Thurkil the White, and said 
 that he would, if he knew the facts, which he did not. Then were seen in the 
 mote three Thegns, that belonged to I'Vligly (Fawley, five miles from Aylston), 
 Leofwin of Frome, /Egelwig the Red, and Thinsig .Sta'gthman : and they went 
 to her, and inquired what she had to say about the lands which her son 
 claimed. Slie said that she had no land that belonged to him, and fell into a 
 noble passion against her son, and calling for Leofleda her kinswoman, the wife 
 of Thurkil, thus spake to her before them: ' This is Leofleda my kinswoman, 
 to whom I give my lands, money, clotlies, and whatever I possess after tity life •' 
 and this said, she then s]5ake to the Thegns : ' Behave like Thegns, and bear 
 my message to all the good men in the mote, and tell them to whom I have 
 given my lands, and all my possessions, and nothing to my son ; ' and bade 
 them to be witnesses to this. And thus they did, rode to the moie, and told all 
 the good men what she had enjoined them. Then Thurkil the White addressed 
 the mote, and requested all the Thegns to let his wife have the lands which her 
 kinswoman had given lier ; anil thus they did, and Thurkil rode to the church 
 of St. Ethelbert, with the leave and witness of all the people, and had this 
 inserted in a bonk in the church^ 
 
 A Nuncujjative Will i.i recorded also in the Domesday of Worcestershire. 
 Consuetudines, Gale, vol. iii., p. 768.
 
 England.] IN VARIOUS COUNTRIES. 89 
 
 be established in the county court. The right of hereditary 
 succession extended — in accordance with the custom of Gavel- 
 kind — to all the children,* differing in this respect from that 
 introduced after the Concjucst, which has ever since prevailed 
 in this countr}-. To the ante-Norman Englishman the claim of 
 primogeniture seems to have been unknown. t A jjractice 
 curiously the converse of it existed, however, in some districts, 
 under the name of " Borough-English," by which the youngest 
 son succeeded to the inheritance ; + the reason assigned for 
 this preference being that the elder sons would be more surely 
 provided for during the father's lifetime ; a ground that may 
 stand comparison with some of the arguments used for our law 
 of succession of the eldest. 
 
 It may also be noticed that, upon the death of the son with- 
 out issue, the father inherited. " liy our common law he is 
 absolutely and in every case excluded,'' writes Mr. Hallam, in 
 the year 1829, just before this principle was restored to our 
 law, after an interval of eight centuries, thus leaving only one 
 of the ancient English land-institutions unredeemed from feudal 
 change. § 
 
 Several features of the Saxon land laws, the relation of 
 lord and " vassal," || the obligation of military service, and the 
 reverting of some lands to the State on the failure of male heirs, 
 have led to the belief that an inchoate form of feudalism 
 existed in England before the Norman invasion ; and the 
 question has been contested by high authority on both sides. 
 Some negative evidence for the assertion is found in the fact 
 that no new Code of LaAV appears to have ever been pro- 
 mulgated by the Conqueror, who had sworn at his coronation 
 to observe the laws of his new subjects. But the question is 
 chiefly of antiquarian interest. A sovereign who not only 
 employed his own justiciaries, using a foreign language not 
 understood by the people, but provided the land itself with 
 
 * Females were sometimes excluded. 
 
 t Willuim the Conqueror's charter to London provides (as for a point on 
 Nvhich there might be apprehension) that tlie children of an Intestate sliall 
 inherit equally. As late as Hen. I. the eldest son only inherited tlie principal 
 Fief ; Boc-land went to the family equally. 
 
 X This practice has lasted down to historical times in this country ; and 
 seems to have been transplanted from England to Brittany. 
 
 S iiee Freeman's " Conquest," vol. i., p. 597 ; note, on the use of the word 
 " English." 
 
 11 This word is used by Asserius, a contemporary of Alfred. "Middle 
 Ages," vol. ii., p. 413.
 
 90 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 nav occmers, could afford — and would be not unlikely — to omit 
 the ceremony of a new code. But the opposite opinion seems 
 to be now generally received; and it is strongly supported by the 
 facts of the land having been transferable inter vivos, devisable 
 by will, and the inheritance equally shared by the children, 
 features all so opposed to the principles of feudal tenure, that 
 they render tlie question, for the present purpose, unimportant. 
 
 These and most other free and distinctive features of the 
 native land laws were swept away and entirely abolished at the 
 Conquest. "William's grants made no distinction of public and 
 private land, and were all made by his own sole will as absolute 
 sovereign, unshared by any Council, and to be held directly 
 and solely of himself as feudal lord. "He formally established 
 the doctrine of the universal supremacy of the Crown, and he 
 exacted the solemn acknowledgment of it by all the land- 
 owiiers of England, at the great assembly which he convened 
 at Salisbury in 1086."'* 
 
 But he did much more than this. The same system which 
 on the Continent formed a kind of social network of alternate 
 sub-infeudation, shared by the nobles, took the shape in 
 England of an oppressive tyranny of one sole monarch, felt 
 chiefly in the exasperating incidents of "relief" and "ward- 
 ship" which the Norman kings in succession inflicted upon 
 their English subjects t in place of the free and systematised 
 land-institutions which they had before enjoyed from the time 
 of the great Alfred, and which found their attestation, with 
 their death-blow, in the terrible record of " Domesday Book." 
 That extraordinary work, which, as it sprang from the fiat of 
 the Conqueror, has been attributed to his genius and power, 
 seems, however, to have owed the possibility of its production 
 — accomplished as it was in the course of a few months by the 
 commissioners who compiled it X — to the organisation which 
 they found ready to their hand in every county and hundred 
 of the kingdom ; an organisation framed upon the accurate 
 
 * Creasy, " Hist, of England." Freeman's " Conquest of England." 
 t Hallam seems to be of opinion that several of the most oppressive 
 incidents formed no parts of the system, but were invented as well as introduced 
 by the " rapacious Norman tyrants." (" Mid. Ages," ii., 415.) 
 
 J The orders for it were given by the court held at (Gloucester, Christmas, 
 A.ii. 1085, and the returns were brought to the court at Winchester, at Easter 
 following. The same commissioners did not act for all ICngland. They pro- 
 ceeded by summoning before them the sheriffs, lords of manors, parish priests, 
 bailiffs, &c., to give an exact account of the land, whether wood, pasture, or 
 tillage, &c. In some cases the live-stock were enumerated.
 
 England.] IN VARIOUS COUNTRIES. 9 1 
 
 definitions of land in Anglo-Saxon charters, and county court 
 Registries, both based on ancient principles of public right and 
 record (of which the county court was the local centre), and 
 justifying the bitter regrets with which the nation, after it had 
 bowed to the exactions of its Norman rulers for a hundred and 
 fifty years, down to the reign of Henry III., still looked back 
 to its ancient land freedom, under the never-forgotten title of 
 " The Laws of Ed\v-ard the Confessor." 
 
 " It is remarkable," says Hallam, " that although the feudal 
 system established in England upon the Conquest broke in 
 very much upon our ancient Saxon liberties, though it was 
 attended with harsher servitude than in any other country, yet 
 it has been treated with more favour by English than French 
 writers." The explanation of the paradox is to be found in the 
 concurrent histoiy of two things that would seem incompatible : 
 one, the grandest code of personal and civil liberty ; the other, 
 the most complicate and technical system of real property law 
 ever exemplified in one and the same country. 
 
 As the Conqueror had constituted himself sole lord of the 
 land, and denied to his nobles all that participation which on 
 the Continent made each lord a petty sovereign and tyrant, the 
 barons of F.ngland were gradually drawn into sympathy with 
 the demands of the people, as Magna Charta soon nobly 
 attested ; and from that time the real sting of feudalism ceased 
 to be personally felt by the English commonalty. But as all 
 law proceedings, and all clerkly learning, were in a foreign 
 tongue — the Norman-French — none of the learned class was 
 willing, and no layman was able, to draw comparisons in favour 
 of the ancient landed liberties, against the system in which they 
 were now taught, and to which all their learning and all their 
 prejudices leaned.' And thus, while in matters affecting the 
 general liberty of the realm, the commonalty profited by the 
 power, and shared many of the privileges, of the nobles — wrung 
 from William's successors, and strengthened by repeated con- 
 firmations of the Great Charter — the evil seed of landed 
 feudalism planted by his hand, and screened by its language 
 from popular intelligence, produced its evil fruit ; and the 
 tyranny of "relief" and "wardship" continued, through suc- 
 cessive centuries, to generate a systematic growth of "legal 
 legerdemain " to escape their burdens — a complete science of 
 fiction and evasion — which still, unhappily, characterises the 
 laws that govern real property in this country.
 
 92 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 But as " virtue cannot so inoculate our old stock but we 
 shall relish of it," the vestiges of English liberty and the perse- 
 verance of English resistance contrived to retain a large portion 
 of the land under the modified and freer tenure called " com- 
 mon socage," in which, though the feudal bond existed, its 
 exactions were pecuniary, instead of personal and military. 
 This form of tenure was preferable in so far as it altered the 
 character, though without getting rid of that feudal de]:)endence 
 whose essential element was an aiduring personal relation wJiicJi 
 no time released or affected as bet^vecn the lord and his heirs on 
 the one side, and the tenant and his successors on the other. The 
 power of alienation was, however, withheld, and the primo- 
 genitary succession substituted, though not so universally, for 
 that of equal inheritance. Indeed, that mode of land-succession 
 was the keystone of feudal tenure ; for the power of alienation 
 during life by the tenant in tail, though nominally forbidden, 
 was in the smaller fiefs connived at, on the condition that the 
 lord was not deprived of his rights. Provided there was an 
 eldest son to succeed to the duties antl services of the fief, it 
 did not greatly matter whose eldest son it was ; and the practice 
 grew up of bespeaking the acceptance by the lord of the new 
 tenant, during the life of the old one who wished to retire. 
 
 This practice did not extend to the tenants of the crown (/// 
 capite), but it became sufficiently general to lead to the enact- 
 ment of two important and well-known statutes passed in the 
 reign of Edward I. : one [de Donis eonditionalibus) which pro- 
 hibited the collusive alienation of " estates tail," by which the 
 lords had been deprived of their forfeitures on the failure of 
 heirs; the other [Quia Emptores), passed five years after- 
 wards, which, while appearing to legalise alienation, reclaimed 
 the right of the superior lord against the attempts of the tenant 
 to substitute himself as lord to the new ])urchascr, and re- 
 imposcd on the land the same rights of lordship to which it had 
 been subject in the hands of the vendor. 
 
 These two statutes for nearly two centuries crushed the 
 growing effort to emancipate land from its feudal fetters, at 
 least by open alienation ; and had the further mischievous 
 effect of making the position of the unfortunate tenant in 
 agriculture more insecure than ever, as no leasing power of one 
 tenant-in-tail was binding on liis successor. Thence, all good 
 farming betook itself to the monastic houses, whose Mortmain 
 lands became the fixed asvlum of agricultural knowledge and
 
 England.] IN VARIOUS COUNTRIES. 93 
 
 improvement. Certainty of tenure out of doors, and the 
 classical writers on husbandry studied and transcribed within, 
 told powerfully upon the soil, and were draining and redeeming 
 into cultivation the fens and marshes of Lincoln, and Somerset, 
 and Sussex, while elsewhere the pressure of feudal exaction 
 upon the fee-simple proprietor, and the insecurity of the farm- 
 ing tenant, even under lease, reduced cultivation to its most 
 precarious and servile condition, and dwarfed the agricultural 
 growth of the kingdom. The remedy for the effects of these 
 statutes was gradually found in a practice which drew from the 
 machinery of the law the instrument of its own evasion by 
 means of what was called a "Common Recovery." 
 
 This ingenious but surreptitious mode of transfer seems to 
 have owed its invention to the churchmen, in order to evade 
 the statute against Mortmain appended to the re-issue of the 
 Ch-eat Charter in the ninth year of Henry III., and consisted 
 in the artifice of inducing liberal or superstitious landowners 
 to become defendants in collusive lawsuits, in which the 
 ecclesiastical plaintiffs sued for and recovered the lands as 
 their own, no defence being made to their claim ; and these 
 mockeries of law, as well as justice, received the sanction 
 of the courts, equally to the disgrace of the clergy who 
 instituted and the judges who allowed them. 
 
 But of all the manifold inventions which grew up under the 
 pressure of feudalism, the most fertile of ambiguity was that by 
 which the ownership of land, while nominally vested in the 
 hands of several proprietors, was secretly transferred to the 
 "use" of another person, who was thus enabled to enjoy the 
 beneficiary ownership without being liable to forfeiture, or the 
 onerous charges of relief and wardship. Down to the time of 
 Henry VHI. this practice had so increased that, by its means, 
 a considerable part of the kingdom had contrived to get rid of 
 some of the worst inconveniences of feudal tenure.* 
 
 One evasion generates another ; and the adoption of 
 " Uses " was out-manoeuvred in its turn by a statute passed in 
 the twenty-seventh year of that reign, by which the beneficiary 
 owner of the " use " was drawn from his retreat, by the two 
 
 * In the courts of Common Law the "use" was a nonentity ; and so it 
 escaped the Mortmain Statutes. But the Chancellors (wlx) were almost in- 
 variably ecclesiastics), acting upon the fiduciary principle introduced into 
 Roman jurisprudence (to escape the harshness of the \'oconian law v.c. 584), 
 gave it validity, as binding on the conscience (" fidei commissa ''); and on the 
 same principle, ''■ Ccstuique Trust''' afterwards succeeded to " Ccstinque Use."
 
 94 SYSTEMS OF LAND TENURE [Hoskyns. ' 
 
 estates being thrown into one, that is, by investing the owner 
 of the Use with the " legal estate." And henceforward the 
 machinery that had been employed in the creation of the Use 
 was adopted for the transfer of land by Deed 7i<ifhoitt publicity or 
 regisiration. Thus our whole present system of unregistered 
 conveyances is derived from an original fraudulent evasion of the 
 law; "an objection of no great weight," observes Mr. Neate, 
 "as so much of the law of real property rests on no better 
 foundation."* 
 
 Nominally, this solidification of the Use into a tangible 
 "legal estate" again subjected the land to its old feudal 
 liabilities. But that iron grasp which, rising out of the decay 
 of Roman power, had reached over the greater part of Europe, 
 holding the minds and liberties of nations with a force so won- 
 derfully concentrated — wonderful even when looked at from the 
 advanced social organisation of our own day — had begun to 
 relax its hold. No better proof of this can be seen than in the 
 fact that only five years after the Statute of Uses, the Act was 
 passed (32 Hen. VIII.) which is commonly said to have given, 
 but in truth restored^ the power to devise lands by Will. As 
 this power, which had freely existed before the Norman rule, 
 was extinguished by the pi^actice of primogenitary descent — 
 with which it was of course incompatible — it would have been 
 right that, on its restoration, the ancient P'nglish rule of equal 
 division in case of Intestacy should be also restored ; as the 
 system of exclusive heredity, though no longer required for 
 feudal objects, could now be created at pleasure by Will. 
 This, however, will be more fully considered j^resently. After 
 an attempt to, resuscitate the feudal claim of the sovereign 
 by Charles I. in his struggle with the Parliament, military 
 tenure was finally abolished in the first year (legally the 
 twelfth) of Charles II. 
 
 Wliat, then, was the actual condition in which the formal ex- 
 tinction of feudal tenures left those laws that govern Land in 
 all that is implied in its modern relation to the uses of society ? 
 This is the anxious cjuestion, above all others, of the agricul- 
 tural owner and occujner, whose interests are so fundamentally, 
 yet often obscurely, affected by the silent operation of the 
 principles which regulate the distribution of tlie Soil. And, first 
 of all, what was the condition of the law especially in the three 
 * "History and Conditions of Landed Property."
 
 ENiiLANU.] IN VARIOUS COUNTRIES. 95 
 
 points before named — the power of Alienation, of disposal by 
 Will, and of Inheritance ? 
 
 \\'ith regard to the first, the early simplicity of transfer 
 accompanied by public registry, and even the later forms of 
 Seisin and Enfeoffment, had become substituted by secret con- 
 veyance, through the instrumentality of private deeds, whose 
 language was cast in the forms and phraseology derived from 
 the reiterated struggles of ecclesiastical and legal ingenuity 
 against feudal and statutory restrictions. 
 
 "Fine and recoveiy," "conveyance to uses," "lease and 
 release," all the circuitous forms that evasion had been com- 
 pelled to assume, survived, together with the whole storehouse 
 of factitious science that had grown up around them. Once 
 launched into existence, the system of private and unregistered 
 conveyance had generated a science and vocabulary applicable 
 to the numberless " estates " created in land, which made every 
 " title " a matter of intricate personal history ; hence arose the 
 necessity of investigations requiring the most practised and 
 recondite knowledge of the old body of statute law, which 
 feudalism, though extinct, had left behind it ; and demanding a 
 long train of evidence, traced in • full upon the instrument of 
 conveyance, of all the "dealings" that had occurred to the 
 " estate " of the vendor, for, at least, the period of human life ; 
 indeed, the right of bringing " real actions " (suits for the 
 recovery of land) far exceeded this limit. 
 
 It would be a hopeless and presumptuous task to attempt to 
 present, in a popular essay, even a sketch of the history of all 
 the various " estates " upon which land VN^as held, each a study 
 in itself, and which necessarily entered into the question of 
 title, when once that was divorced from the public evidence 
 which had guarded its simplicity and security. The mere 
 epitome of all the various doctrines of legal and equitable 
 estates, of seisins, of uses, of trusts executed and executory, 
 of powers at common law, and in equity, of terms of years 
 outstanding and assigned, of mortgages, of all the complex 
 interests, often fictitious, and even contradictory — by which 
 " the same person may be at one side of Westminster Hall the 
 owner, and at the other a trespasser'' — which form the Real 
 Property Law of this country, would awaken in the mind of the 
 reader a kind of despair that might well take the form of 
 Rasselas's exclamation after hearing Imlac's catalogue of the 
 requisites to make a Poet. "Enough! no man can be a
 
 96 SYSTE.AIS OF LAND TENURE [Hoskyns. 
 
 Vendor, or a Purchaser ; or a Conveyancer ! proceed with thy 
 narrative." Those who are most deeply versed in the intricate 
 science that grew out of so many centuries of conflict between 
 land in its feudal sense, and land in its modern development 
 as the basis of all industry, the source of all wealth, will, 
 perhaps, least wonder at the slow and partial emancipation, 
 witnessed even to our own day, from that state in which the 
 extinction of military tenures left it two centuries ago. 
 
 Five bulky volumes of blue-books, reaching from 1S29 
 to nearly the present date, record the labours of the Real 
 Property Commissioners, who from time to time have entered 
 upon this Herculean task. The hmitation of " Real actions," 
 the earliest result of their inquiry, and which held out the 
 promise of a title by twenty years' possession,* reserving the 
 five exempted cases of infancy, coverture, idiotcy, lunacy, and 
 " beyond seas," proved, for practical purposes, a failure. No 
 conveyancing skill or human foresight could insure a purchaser 
 against the eventualities that might be lurking in the ten years' 
 reservation accorded to this formidable list of excepted claims. 
 Capital is proverbially timid; and the fear suggested by the 
 self-interested alarmist, is more easily awakened than allayed. 
 The abolition of Fines and Recoveries,t of the assignment of 
 Outstanding Terms, J and of the Lease and release,§ have done 
 something to simplify the form and language of the deed of 
 conveyance, but not much towards the shortening of " titles," 
 from which conveyancing practice abates little if any of its 
 claim for the exhibition of a title on the part of a Vendor, 
 or Mortgagor, for a period equivalent to the life of two 
 generations. 
 
 So early as at the time of the Restoration this uncertainty 
 of the titles to estates was stated as " one cause of the decay of 
 rents and value of lands," || and at the date of the report of the 
 Commissioners on the Registration of Title (1857), upwards of 
 twenty bills had within twenty years been brought into Parlia- 
 ment in order to establish a system of Registration ; and a 
 Select Committee of the House of Lords appointed to inquire 
 into the bm-thens upon land, attributed the diminution of its 
 marketable value to the tedious and expensive process attending 
 its transfer, and asked for a " tliorough revision of the whole 
 
 *3 and 4 Wm. IV. c. 27. + Ibid. c. 74. 
 
 J 8 and 9 Vict. c. 106. S "'itl- t-"- 112. 
 
 II 1669, Lords' Journ lis, vol. ;ii., 273.
 
 England.] IN VARIOUS COUNTRIES. 97 
 
 subject of conveyancing, and the disuse of the present prolix 
 and vexatious system." 
 
 The problem has not been suffered to sleep, and has been 
 taken up by Chancellor after Chancellor, as if the highest 
 station of the legal profession had come to recognise the task 
 as a challenge to its corporate conscience ; and the names of 
 Cairns, of Westbury, and of Hatherley are each associated 
 with the noblest efforts to remove an evil, of which neither the 
 existing Land Register in England, nor the Landed Estates 
 Court in Ireland, have furnished any permanent abatement. 
 Individual practice defeats in detail the permissive operation, 
 in the former case, of an Act which was soon found to offer a 
 remedy that, like Inoculation, has too much of the original 
 disease for safe or profitable use ; and titles gather again the 
 parasitic evils from which they were temporarily freed (once 
 for all as it was vainly hoped) in the latter. The same dispro- 
 portionate cost, delay, and repeated investigation for every 
 fresh transaction of sale or mortgage remain practically as they 
 were ; impressing the public mind with the feeling that he who 
 enters upon the sale or purchase of land must do so under the 
 warning that he is indulging in something that has many of the 
 features of a Law-siiit, of uncertain cost, duration, and result, 
 through the operation of a system as opposed to the simple 
 forms of antiquity, as it is to the broad stream of modern 
 thought and procedure in all the transactions of business and 
 of social life. 
 
 It would be incredible, if it were not true, that at a time 
 when personal property changes hands at the Banker's clearing- 
 house in London at the rate of four Billions sterling in the 
 twelvemonth, the title to land, which of all things on the face 
 of the earth — being itself a definite portion of that face — ought 
 to be capable of the most clear and patent evidence, is locked 
 up in private boxes and stowed away in uninsured offices, to 
 be doubtfully educed from the perishable evidence of MS. 
 deeds, \vritten (in the fifth century since the invention of 
 printing) in language requiring sometimes the translation, 
 sometimes the deciphering, but always the interpretation of 
 an expert. 
 
 But the transfer of land is beset by a class of difficulties 
 more deep-rooted in obstructive power than those presented 
 by prolixity of deeds, or the fossil forms of an extinct system 
 and vocabulary, or even the growing canker of unregistered 
 
 H
 
 gS SYSTEMS OF LAND TENURE [Hoskyns. 
 
 title. The early histoty of Entail, as it insidiously grew under 
 f.io pressure of feudal exactions and forfeitures, though checked 
 ])y the device of Recoveries, and shattered for a season by 
 Renry the Eighth's Statute of Fines, stood forth when feudal 
 tenure had disappeared, in the form of a perfected plan and 
 science, around which had gathered an elaborate network of 
 factitious rules and principles, woven by the subtle machinery 
 of evasion. The scaffolding fell away only to reveal an edifice 
 that had been growing up within, shaped for the accomplishment 
 of a self-renewing perpetuity by means of what has been called 
 "a dualism of proprietorship." By this system the property in 
 land was divided out to several persons with estates "for life," 
 and in "remainder," so as to prevent the possibility of alienation 
 until not only the whole of the lives existing at the time of 
 making the settlement, or will, had dropped, but until the 
 u7iborn child of one who was then an infant had attained twenty- 
 one years of age ; so, in fact, as to extend the entail ordinarily 
 for fifty, but possibly for eighty or even ninety years. In 
 common parlance — for the practice is that now in force — 
 estates in land may be settled upon any number of lives in 
 being, and twenty-one years aftcrtvards. 
 
 It is needless to say that this posthumous power of entail, 
 which is now peculiar to this country, is looked upon with as 
 many differences of opinion as there are points of view from 
 which it may be regarded. Lord St. Leonards, describing 
 it from the lawyer's standpoint, says, "The present plan 
 of a strict settlement, within reasonable limit, enables the 
 owner to transmit his land to all his posterity^ and from its very 
 nature leads to successive settlements ; " in another passage he 
 remarks that " our law admits no dispositions which tend to 
 perpciuityy The apparent contradiction resolves itself into the 
 meaning of a word. That which is tied up to all posterity 
 from within, is a perpetuity as against all except the settlor 
 (or testator) and his successors. 
 
 "One would suppose," writes Mr. Fowler, "that the law of England, 
 instead of 'abhorring perpetuities' — to quote its quaint language — really 
 cherished them with a peculiar veneration, ... in so far as the law 
 permits a man, by his will, or by deed made in his life, to direct how his 
 property shall be held when he is resting in his grave. Viewed in the 
 abstract, the existence of such a power is a strange thing. . . . But those 
 who most highly approve of giving an owner this jiower must admit that it 
 should have a limit, and tliat it would be intolerable that the dead man 
 should speak for ever. ... In practice the usual custom is to settle an
 
 England.] IN VARIOUS COUNTRIES. 99 
 
 estate on the father for life, then on the son for life, with remainder in tail 
 to the unborn child of the son. When the grandson comes of age the land 
 can be again settled, and his interest changed to a tenancy for life, with 
 remainder to liis unborn child, as before. By this system of settlement and 
 re-settlement it is obvious that a property can be retained in the same famdy 
 generation after generation, the owner in possession being, in general, only 
 tenant for life, with no power of disposing of the family estate." * 
 
 Another writer, referring to this family settlement and 
 re-settlement as a " solemn appeal from one generation to the 
 next," complains that " the common interest of the nation 
 should be unrepresented in the more than diplomatic privacy 
 of this negotiation between father and son. But, on closer 
 examination, the supposed solemn appeal to each generation 
 dwindles to a hasty compact dictated by somewhat sordid con- 
 siderations of a momentary interest, to which the law lends the 
 sanction of irrevocability." f 
 
 The ground of chief complaint, however, is not tliat the 
 law should sanction the settled transmission of wealth within 
 the statutory limits, but that the medium of the posthumous 
 settlement should be an article of limited supply, upon which 
 the nation has a just claim that its capabilities should not be 
 dwarfed by that contraction of living power which settlement 
 usually iniplies. 
 
 The important question which the demands of agricultural 
 progress, since the great expansion given to it by the changes 
 that have followed upon free trade have of late years brought 
 into prominent discussion, is how far this system is beneficial 
 to all the parties interested in the soil, including the Land- 
 owner himself, the agricultural Tenant, the Labourer, and 
 lastly, the Community at large, to whom none will deny an 
 interest in the productiveness of the land, as well as a reason- 
 able claim in respect of its freedom of purchase. 
 
 It will be convenient to consider these under their separate 
 heads. 
 
 With regard to the first — that of tlie Landowner — the act of 
 re-settlement is thus described by Lord St. Leonards : — 
 
 ' Where there are younger children, the father is always anxious to have 
 the estate re-settled on them and their issue, in case of failure of issue of the 
 fust son. This he cannot accomplish without the concuiTence of the son ; 
 and as the son, upon his establishment in life in his father's lifetime, requires 
 an immediate provision, the father generally secures to him a provision 
 
 * "Thoughts on Free Trade in Land," bv William Fowler, LL.D., M.P. 
 t "The Land Laws," by W. L. Newman, Esq.
 
 lOO SYSTEMS OK LAND TENURE [Hoskvns. 
 
 during their joint lives, as a consideration for the re-settlement of the estate 
 in remainder upon the younger sons. Thus are estates quickly re-settled." 
 
 This is the abstract view of the matter, as it appears to the 
 eye of the lawyer, and, in point of form, commonly occurs. It 
 is right, however, in the interest of those most nearly con- 
 cerned, that the practical operation of the system should be 
 viewed from all sides. 
 
 "Take the case," writes Mr. Cliffe Leslie, "of an ante-nuptial settle- 
 ment in which the son joins with the father. It is commonly supposed 
 that the son acts with his eyes open, and with a special eye to the contin- 
 gencies of the future, and of family life. But what are the real facts of the 
 case? Before the future owner of the land has come into possession — 
 before he has any experience of his property, or of what is best to do, or 
 what he can do, in regard of it — before the exigencies of the future, or his 
 own real position, are known to him — before the character, number, and 
 wants of his children are learned, or the claims of parental affection and 
 duty can make themselves felt, and while still very much at the mercy of a 
 predecessor desirous of posthumous greatness and power, he enters into an 
 irrevocable disposition, by which he parts with the rights of a proprietor 
 over his future property for ever, and settles its devolution, burdened with 
 charges, upon an unborn heir."* 
 
 The same features have been thus described by another 
 writer : — 
 
 "No sooner does a Tenant in tail come of age, than in numerous 
 instances he is urged, by those whose influence is irresistible, to cut oiT the 
 entail, to re-settle the estate, and to fasten upon it the debts of his ancestors. 
 In fact, he is invited to pay for the extravagance of a father or grandfather, 
 who has often done worse than nothing for the condition of the family 
 property. ... It may be fairly made a question, whether so young a 
 person should be by law capable of binding himself in so imjjortant a trans- 
 action. This law is open to two serious objections : one, that a young 
 man executes a solemn act, deeply compromising his fortune, when as yet 
 he cannot understand its consequences ; the other, that the weight of 
 hereditary debts, which he tlius fixes upon himself, may crush all his efforts 
 and disappoint all his intentions to improve tlie cultivation of his estate." f 
 
 The words of one more writer shall be quoted, who has 
 had Ijetter opportunity than most men of forming a practical 
 judgment from eye-witness experience throughout the length 
 and breadth of the land, as to the effects of long entail upon 
 the proprietary classes of this country. 
 
 " Much of the land of England," says Mr. Caird, writing 
 just after the conclusion of his survey through the agricultural 
 districts in 1851 — "a far greater proportion of it than is 
 
 * Frascr's Magazine, February, 1867. 
 
 ■\ Letter to the Right lion. !Sir Charles Wood, Bart., by Frederick 
 Calvert, Esq., Q.C.
 
 EnslanuJ in various COUNTRIES. lOI 
 
 generally believed " (by the evidence before Mr. Pusey's 
 committee the estates under settlement were estimated as 
 exceeding two-thirds of the kingdom) — "is in the possession of 
 tenants for life so heavily burthened with settlement encum- 
 brances that they have not the means of improving the land 
 which they are obliged to hold. It would be a waste of space 
 to dilate on the public and private disadvantages thus occa- 
 sioned ; for they are acknowledged by all who have studied the 
 subject, and seriously felt by those who are affected by it. 
 A neglected property in this country, the nominal oivner of 
 which is incapable from his embarrassments of improving it, 
 will not be looked at by tenants of capital ; and tenants of 
 limited means on such a property must be overborne in 
 unrestricted com.petition with farmers of capital, cultivating 
 land where every convenience and accommodation which an 
 unencumbered landlord finds it his interest to give has been 
 supplied." 
 
 The reactive and life-like nature of the soil makes it a tell- 
 tale, in the long run, of the laws under which it is placed, and 
 by which it is governed. And it cannot be made the subject 
 of unwise legislation in the hands of the Owner, any more than 
 of bad husbandry in those of the Tenant, without developing 
 results which reach, unhappily, beyond these classes, to the 
 injury of all connected with or employed upon it, though 
 innocent (as in the case of the labourer) and even ignorant of 
 the originating cause of the mischief The trust which its 
 ownership brings, as well as its occupation (if these are divided), 
 is enforced by penalties as inexorable as those of natural law. 
 The pressure of the responsibility increases with every step 
 in agricultural advancement, till the rights of one age become 
 the wrongs of another. Modes of settlement, carving out the 
 proprietary interest into a series of limited estates " for life," 
 and " in remainder,'' each in succession barren of power and of 
 motive to meet the wants, the improvements, the discoveries of 
 the time, present a very different aspect now to the same thing 
 before the rivalry of the farm was a world struggle. The 
 increased energy and activity of the tenant demand the outlay 
 of capital by the landlord before his own can be safely thrown 
 into the partnership ; for such the relation practically is in 
 England, and such it must become wherever the English system 
 prevails. The " expenses " of land are the familiar theme of 
 every man of business. Nothing is more common than to hear
 
 id2 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 the wealthy and unfettered fee-simple owner complain of the 
 voracious demands of his landed property, for buildings, drain- 
 ing, cottages, and other necessary improvements exacted by 
 the time; and those who give most attention to the debtor and 
 creditor history of their estates are best alive to the fact that 
 landed property has become more like a Business than a mere 
 Income. It is so : and, in a certain sense, it ought to be so. 
 The soil was not meant for idle enjoyment even by its unoccu- 
 pying owner. The dilemma of land without the capital to 
 meet its claims exactly opposes the original object of "the 
 Settlement," for it harnesses the fettered with the free, and 
 endangers a catastrophe by the very links that were forged to 
 prevent it. Yet this must inevitably be the case under a 
 system where entail, extending to the unborn, permits, and 
 may even be said to encourage, the inconsistent practice of at 
 once burthening the estate with all the charges of "the family,'' 
 " the creditor," and its own expenses, and tying up the hand 
 of the heir upon whom the whole administration must 
 devolve. 
 
 It is difficult under such circumstances to resist the con- 
 clusion which declares itself against that part of the practice of 
 entail which assumes the impossible foresight of the unborn. 
 "Any number of lives in being" is a phrase that suggests the 
 obvious limit of human prudence ; and, in the settlement of 
 land, has the advantage of presenting the principle of a natural 
 term, where the responsibility, and with it the right, of each 
 generation ends. 
 
 That the practice of family settlement should be reconciled 
 with the fullest development of the estate is of the utmost 
 importance, if only because it constitutes the modern substitute 
 for the feudal nile which devolved the inheritance of land upon 
 the eldest male. This law has survived the system to which it 
 owed its introduction into this country; operating, indeed, now 
 only in cases of intestacy or disputed claim, but exercising a 
 mischievous influence in pro[)ping up the barrier which the 
 great innovator Time renders every day more artificial and 
 absurd between "real" and "personal" estate, and dishonour- 
 ing an old and favoured national custom by the retention of an 
 exclusive and invidious imv in the case of land, in the face of 
 equal division in every other form of property. 
 
 So long as land, in its feudal relations, was a thing out of 
 commerce altogether — when Commerce itself had scarcely an
 
 England.] IN VARIOUS COUNTRIES. 1 03 
 
 existence — no special inconvenience resulted from laws re- 
 stricting its alienation or its succession ; but when, in the 
 progress of national wealth, it has lost its speciality as the only 
 " property," and has become simply one of the forms of invested 
 wealth, the incoherence of two principles of succession, one of 
 which recognises no difference of sex or order of birth, like our 
 law of personal intestacy, while the other devolves the whole 
 inheritance upon the iirst-born male, produces endless litigation, 
 intricacy of legal distinction,* and even uncertainty of decision, 
 that will hereafter be looked upon as one of the most curious 
 episodes in the juridical history of this country. " No human 
 laws," says Blackstone, "are of any validity if contrary to the 
 law of nature ; and such of them as are valid derive all their 
 authority mediately or immediately from this original." But 
 next to a law based on no principle at all, the worst conceivable 
 is one that attempts to embody two conflicting principles into 
 one code, confusing the public sense of right ; for what is law, 
 if it be not a Rule of Right, its index-finger clear for all to 
 read, and not pointing two ways ? 
 
 Volumes have been \\Titten, the highest authorities in 
 political economy appealed to, proposals made Session after 
 Session in the House of Commons, the practice of every 
 civilised country in the world cited, in order to remove this 
 straggling relic of an extinct system from our law. The 
 prevailing influence which has deferred its removal, has been 
 
 * See the case of Ackroyd and Smithson, Brown's Chancery Cases, vol. i., 
 p. 505. See also Jarman's Powell, 77, 78, et seq. 
 
 The following is Lord Eldon's own account of the judgment in the cele- 
 brated case which has governed so many nice questions of ' ' real/' and ' ' per- 
 sonal" property. 
 
 "Might I ask you, Lord Eldon," says Mr. Farrer, "whether Ackroyd and 
 Smithson was not the first case in which you distinguished yourself?"—'' Did 
 I never tell you the history of that case? You must know (he replied) that the 
 testator had directed his real estates to be sold, and the residue to be divided 
 into fifteen parts, which he gave to fifteen persons named in his Will. One died 
 in the testator's lifetime. A bill was filed by the next of kin, claiming the 
 lapsed share. A brief was gi\en me to consent for the heir-at-law. * * * 
 So I went into Court, and when Lord Thurlow asked who was to appear for 
 the heir-at-law, I rose and said modestly that I was ; and as I could not but 
 think that my client had the right to the property, if his Lordship would give 
 me leave I would argue it. And I argued that the testator had ordered this 
 fifteenth share to be converted \nio personal property, for the benefit of one par- 
 ticular individual, and that therefore he never contemplated its coming into 
 possession of either the next of kin, or the residuary legatee ; but being land 
 at the death of the individual, it came to the heir-at-law. Well, Thurlow took 
 three days to consider, and then delivered his judgment in accordance with my 
 speech."— Twiss's Life of Lord Eldon, I., iig.
 
 104 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 the fear of the subdivision of land by the breaking up of 
 estates. As things suggest their extreme opposites by a well- 
 known natural law, this fear has been intensified, by that 
 portion of the Code Napole'on which, on the other side of the 
 English Channel, has parcelled out French soil by a law which 
 subjects the testamentary power of the parent to the number of 
 his children, dividing his estate accordingly. This arbitrary 
 moneUaneJit is pictured as the inevitable alternative ; as though 
 the interspace of freedom and true principle which lies, broad 
 as the channel itself, between the two, were lost to sight or 
 had no existence. Hasty and unfounded assumptions of evil 
 results from " peasant proprietaries " are readily accepted, 
 which, if true, would be immaterial to the question of the 
 removal of a law which, anomalous itself, can only come into 
 operation by intestacies, which its abrogation would render still 
 more rare ; a law which, when it does operate, " makes a will 
 for a man which any one of its supporters would deem it an 
 insult to be accused of making for himself"* They who really 
 value the custom of primogeniture — a practice in this country 
 centuries older than that law, and likely long to survive it — 
 should, in true consistency, banish from public view its hideous 
 effigy, which presents the hard lineaments of exclusive here- 
 dity in the most revolting form — that of disinheritance to all 
 l:>ut one, leaving the widow, the helpless daughters, and the 
 other sons destitute. Its condemnation is pronounced by 
 nothing more strikingly than by the practice of the primogeni- 
 tary class, for no well-drawn settlement ever omits to make 
 provision for the widow and the younger children. 
 
 It is the unfortunate peculiarity of laws governing the dis- 
 tribution of land, that their effect upon the life and welfare of 
 the community, unlike those causes which directly touch the 
 personal freedom or convenience of individuals, is often 
 obscure, lying remote from their consequences ; like that class 
 of poisons wliich, received into the circulation, enter the tissues 
 of the body without detection, to be recognised only in the 
 concrete form of diseased structure. The evils are slow of 
 cure that reacli men thus indirectly, and have to wait upon 
 opinion. Such is the character of this law. It passes innocu- 
 ously through the upper stratum of large proprietors, where the 
 absence of family entail — its almost universal substitute — is 
 extremely rare ; where it alights, when it does so, is generally 
 
 * Mr. W. I.. Newman on the I^and Laws.
 
 Knglanu.J in various COUNTRIES. 105 
 
 upon those small and unpretending acreages, whose owners 
 have found it possible to marry without a settlement and die 
 without a will, a class of proprietors upon whose surviving 
 families it works the greatest hardship, and who are often as 
 ignorant of its existence as they are innocent of primogenitary 
 intention. The instances of singular hardship among such 
 intestates cited by Mr. Locke'.King in his repeated introduction 
 of the Bill to the House of Commons, have been sometimes 
 met by the trite reply that " extreme cases make bad law." 
 The converse is the truth here ; it is the bad law, and only the 
 law, that makes the extreme cases ; and its extinction would 
 obviate a scandal to our landed system which rarely, if ever, 
 arises under the operation of the custom of primogeniture as 
 arising by deed or will. 
 
 It may be hoped that the majority ultimately obtained in 
 the House of Commons, in favour of the Bill which Mr. Locke 
 King has so consistently kept before the Legislature indicates a 
 change of view not confined to the mere narrow issue involved 
 in the clauses of the Bill. The popular arguments which enter 
 into the debate have often obscured the far more important 
 question that is involved, forming, as this law does, the basis of 
 the obsolete distinction expressed in the words " real " and 
 " personal," a distinction more correctly indicated by the terms 
 movable and immovable, which have passed from the Roman 
 law into other European systems. 
 
 But if the " limited ownership " resulting from our system 
 of entail be unfavourable to the investment of capital by the 
 proprietor, it is yet commonly thought that under the security 
 of a Lease there is nothing to prevent it on -the part of the 
 occupying Tenant. Most well-drawn settlements contain leasing 
 powers extending to twenty-one years ; and it is often said that 
 the freedom of contract between the owner and occupier leaves 
 the parties at liberty to make what arrangements they please. 
 But even here one of the worst vestiges of feudal law meets us 
 again. By the statute of Gloucester (6 Edw. L) the maxim 
 was established, Quicquid plantatiir solo, solo cedit, which took 
 away all claim of the tenant over every addition he had 
 annexed to or incorporated with the land the moment that his 
 interest, whether yearly or by lease, expired. Under the mis- 
 applied name of " Waste," he was even forbidden to erect any 
 building upon land where there was none before, or to convert
 
 Io6 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 one kind of edifice into another, even of improved value to the 
 estate. Exceptions were soon made, after the passing of the 
 statute, in favour of Trade, and Lord Holt is reported to have 
 said that trade fixtures were even recoverable by Common 
 Law.* But the statute has always operated with full severity 
 against the tenant in agriculture, whose property is thus confis- 
 cated in any engine or machine annexed to the soil, though 
 for the express puq^oses of the farm, and without which it could 
 not be profitably occupied. It would be difficult to conceive a 
 law more injurious to the very party in whose favour it was 
 made ; and probably there is none in the whole range of land 
 legislation by which Ihe proprietor has suffered more loss than 
 by this. The temptation to outlay upon land by the occupier, 
 even under short leases, is always disproportionately great — far 
 beyond what the tenure seems to justify ; and, generally 
 speaking, no one knows so well as himself what is required. 
 A law the very opposite to that above referred to, and en- 
 couraging a regular system of valuation for addition and im- 
 provement by the tenant, would be the most salutary for the 
 interests of all parties, and would have added millions sterling 
 to the landed wealth of the country. It would hardly be too 
 much to say of this statute that it has lain like a cankerworm at 
 the root of the whole question of landlord and tenant, where- 
 ever that question indicates adverse instead of united interests. 
 It is obvious almost to a truism that, next to the occupation of 
 the owner himself, the occupation that most rcsanhlcs oivnership 
 must, by the imperative laws of the soil, and equally of human 
 instinct, be the most profitable to both parties by the un- 
 interrupted progress of improvement and addition to the land. 
 The expense of keeping up a high state of cultivation is small, 
 compared with that of restoring it ; and the national loss is 
 almost incalculable which the "beggaring out" of farms has 
 occasioned under the influence of the motives brought into 
 action by this law. No tenant, even under lease, would lay 
 out money in improvements which he must leave behind him, 
 on the estate of another, unless he felt sure of such increased 
 profits during his term as would repay him ; anil therefore it is 
 that under short leases and yearly tenancies the land is rarely 
 cultivated to its full extent. Moderation of charge in case of 
 
 * Elwes V. M:iwe, 2 Smith L. C. and Notes. See also the Judgment of 
 I-ord Hardwicke in Lawton v. Lawton, and of Lord Kcnyon in Ponton v. 
 Kobart, 2 East 90.
 
 England.] IN VARIOUS COUNTRIKS. 107 
 
 actual change of tenancy would be generally insured by the 
 fact that every addition made by the occupier is far more 
 valuable /;/ siiu than after removal. The recommendation 
 of the Real Property Committee of the Law Amendment 
 Society was strongly in favour of an alteration of the law in 
 this particular. The words of their report on this point 
 state : — 
 
 " That the law with respect to things affixed to the freehold 
 is different, and more beneficial to the tenant as regards the 
 annexations made for the purposes of trade, than those made 
 for the purposes of agriculture ; an outgoing tenant being per- 
 mitted in many cases to remove the former when erected by 
 himself, but not the latter." 
 
 The practical eftect of what may be called the feudal law of 
 Fixtures, as still subsisting, is that the parties to the supposed 
 contract meet each other scarcely upon fair and equal terms. 
 A lease even for twenty-one years underlain by a law that con- 
 fiscates to the lessor whatever is left unremoved or (to adopt 
 the infelicitous expression of common use) unexhausted upon 
 the land by the lessee is somewhat deceptive in operation, be- 
 cause it includes in the term those years near its effluxion 
 during which productive outlay has to be withdrawn, and the 
 " mill works half time ;" and of necessity restricts all invest- 
 ment to that which can be withdrawn widiin the term. The 
 evidence of one of the witnesses (Mr. Owen, a Berkshire land 
 agent) given before Mr. Pusey's committee on Agricultural 
 Customs put this matter in a true light : — • 
 
 "I am convinced of this, that wlicre landlords cannot make improve- 
 ments, there are so many cases where the tenant has the means of making 
 them, that he could make them very much to his advantage, and very much 
 to the landlord's advantage ; because I consider that, under the present 
 system in our country of letting farms, farms are what we call ' beggared 
 out.' There is not a farm that I have re-let, but every tenant who his 
 quitted has taken everything out of the farm that he possibly could. If a 
 system could be laid downi where that never could be allowed to be done, 
 and any outlay that the tenant had made upon that property, whether they 
 were improvements by building or manure, he should have the certainty of 
 being repaid for them, I think the benefit would be immense, both to the 
 landlord, and the tenant, and the public." 
 
 Under the existing system operating over the greater part of 
 the land in this kingdom, it is a difficult matter to say who there 
 really is possessing such an interest in the soil as to enable or even 
 justify the full amount of profitable investment. The ostensible
 
 Io8 SYSTEMS OF LAND TENURE [Hoskvns. 
 
 owner, usually a tenant for life, cannot make it for the reasons 
 before noticed ; the remainder-man cannot make it, because 
 he is not in possession. The " tenant-farmer " cannot do it, 
 because he, at best, is only a holder for a term of years, which 
 every year brings nearer to its conclusion. The whole system 
 of landed settlement is founded upon laws and habits uncon- 
 nected with the needs of modern agriculture. 
 
 To an occupier, whether of lands or tenements, life-tenure 
 is the one which offers the highest inducement to make every 
 necessary outlay and improvement. The uncertainty of life 
 is one which each individual construes favourably to himself, 
 under the influence of that useful feeling, which has been said, 
 with as much truth as poetry, to make " all men think all men 
 mortal but themselves." But to the owner who is not the 
 occupier, the case is exactly reversed : here the calculation of 
 life operates for the avoidance of all that diminishes the aimual 
 return; and even necessary repairs are apt to be postponed. 
 On the other hand, a lease for years, even though the term 
 may exceed the probable duration of the life of the lessee, is 
 always looked upon in reference to its effluxion ; the average 
 "expectation" (to use a technical expression) of a 21 years' 
 lease is only \o\ years. 
 
 Now, by the system procured in agricultural tenure both 
 these principles of action are violated. The occupier, holding 
 for a period which the law recognises only as a chattel interest, 
 is dissociated from that desire of improvement common in the 
 case of a life interest ; and the \\it-oivner, uninterested in the 
 vccupation, fmds his account to lie in a direction equally 
 negative to permanent investment. 
 
 Such is the formal position of the parties. The varieties of 
 circumstance and locality modify it greatly ; and the ordinary 
 amount of capital employed in farming, where drainage and 
 other improvements are not required, enables the system to work 
 smoothly enough to hide the defects of the machinery. But 
 where heavy outlay is required — as where embankments, arterial 
 and other drainage, inclosure, expensive irrigation, road-making, 
 and other permanent additions are needed — the want of a 
 capitalist soon discloses itself It would be impossible, under 
 such circumstances, to undertake any work of heavy and pro- 
 tracted outlay where the annual returns did not, as in a farm, 
 meet, if not far exceed, the current outlay. Government 
 drainage-grants and land-improvement companies thus rose
 
 England.] IN VARIOUS COUNTRIES. IO9 
 
 up in evidence that life-tenure forbids the employment of 
 capital upon settled estates. 
 
 The immediate benefit conferred by the machinery of these 
 grants is no proof of the political wisdom of the system. The 
 work is done ; but the relief, like that known to medical 
 science under the name of local remedy, is followed by a 
 recurring " local liability." The power to follow up the en- 
 larged business growing out of the loaned investment will, in 
 most cases, devolve upon the tenant. That a public company, 
 itself borrowing public money, should have to be invoked to 
 help a landowner to carry on the business of his own estate 
 offers a singular commentary upon the state of English land- 
 law to a person uninformed of the cause. Wherever a series of 
 supplementary devices is needed to meet a law at variance with 
 the time, it indicates the under-current of another law struggling 
 against worn-out barriers that will not long be able to with- 
 stand it. 
 
 In no other country is there known to exist any parallel to 
 the system of land tenancy prevailing so commonly in England, 
 by which the relations between the owner and occupier are 
 comprehended in the expressive phrase, " a good understand- 
 ing." It has been construed severely by some as a compact of 
 selfish interests ; politics and game on one side, undisturbed 
 tenure and rent on the other, and stigmatised as a sorry 
 substitute for Leases. More favourable critics have seen and 
 eulogised in it the evidence of a mutual trust rarely exampled, 
 and equally honourable to both parties in the unwritten contract. 
 It scarcely merits either the blame or the praise. Leases were 
 common upon most Englisli estates down to the period of the 
 War at the close of the last century, when tlie extraordinary 
 and rapid rise in the prices of produce and value of land took 
 place, and continued to advance throughout the war, causing a 
 complete disruption of all previous calculations. The collapse 
 that occurred at the close of the war in 1815, followed by the 
 extreme uncertainty which marked the Corn Law period of the 
 next thirty years, sustained the interruption, though from an 
 opposite cause. Yearly tenancy thus became, for more than 
 half a century, the almost inevitable alternative of a period 
 when agricultural prices, and political apprehensions, alike 
 uncertain, scarcely allowed of any but provisional terms ; and 
 tenants as well as o\vners were willing to stand loose from 
 permanent engagements, not knowing what a year might bring
 
 no SYSTEMS OF LAND TENURE [Hoskyns. 
 
 forth ; believing that no skill or foresight could reduce future 
 prospects to calculation, for the fixed and unelastic terms of a 
 Lease. The Com Law question is gone; but the "good under- 
 standing " survives the causes that gave it origin. It has, 
 however, this defect, that as it offers no banking security, it 
 increases the dependence of the English as compared with the 
 Scotch tenant, and the analogy which in this respect exists 
 between his own holding and that of the owner who has to 
 play the banker's part. In both, the nature of the tenure 
 discourages the outlay of private capital by those who possess 
 it, and prevents the employment of loaned capital by those 
 who would borrow it. The effect of this upon the condition of 
 the Labourer will be presently noticed. 
 
 In Scotland, the predominance of leases, though not of 
 earlier date, has been more systematic, and was preserved with 
 less interruption during the period affected by the circumstances 
 above named than in England. Several distinct causes have 
 conduced to this : the difference resulting from a climate less 
 favourable to speculative excess in the growth of grain, and less 
 influenced therefore by a system of legislation based on the 
 market value of that produce ; a more diffused education, 
 giving clearer views of the practical value of leases, coupled 
 with their available use, and recognition by bankers, as security 
 for advances of capital to the leaseholder ; the power to heirs 
 of entail (under the Montgomery Act) to charge ^^the estates for 
 their own improvement — all these causes combined have pro- 
 duced a very characteristic difference in the land system of our 
 northern neighbours, and a more commercial and business-like 
 independence in the general economy of landed and farm 
 management. 
 
 In Ireland the land (question has a history of its own — a 
 history that presents the most deplorable and, in some respects, 
 the strangest issues tliat ever in any country have darkened 
 the ];)roblem of the vicarial occui)ation of land. 
 
 It is too much forgotten that this relation of man with man 
 is one for which nature has made no provision. No appeal 
 lies to any innate sense, as in that of the parental, filial, or 
 fraternal instinct, in aid of the tie, conjunctive or disjunctive, 
 as the case may prove, that unites — or confronts — the interests 
 of men under the factitious relation of proprietor and occupier. 
 It is one that bows to no sentiment, nor tolerates even the 
 unsound ring of a faulty metaphor. "We pull in the same
 
 England.] IX VARIOUS COUNTRIES. Ill 
 
 boat," said an English landlord to his tenant, when rents hung 
 quivering upon the Corn Law Debates. *' Yes, but in opposite 
 directions," was the cynical retort. There was a vein of truth 
 in the reply that is ever at hand to show itself on the surface 
 when occasion calls. " The land laws of Ireland," it is often 
 remarked, " are the same as those of England ; " where large 
 estates have made large farms, and large farms have in their 
 turn produced a gigantic manufacture of machines and labour- 
 saving implements, unknown to former times or other countries, 
 itself reacting upon a system whose broad-scale cultivation is 
 finally quoted, perhaps too exclusively, as the perfection of 
 agriculture. 
 
 It is true that the laws are the same. But there is an old 
 adage of authority, that "indifferent laws well administered are 
 better than good laws badly administered." If England has 
 exemplified the first category, in the sister island has been seen 
 the worst of both. 
 
 By the presence of the wealthy English proprietor amongst 
 his tenants ; by the example — sometimes the warning — of his 
 own experimental farm ; by the introduction of the last "new and 
 improved" machine, and the best blood ; by the intelligent and 
 kindly intercourse (not confined to the " stumpy courtesies of 
 males ") pervading the estate as from a central focus ; by his 
 heavy bills for farm repairs, constantly occasioning some visita- 
 tion of his own, be the mason and carpenter never so alert, or 
 the steward never so ubiquitous : by these mere commonplaces 
 of an English landlord's life, what laws, however awkward and 
 rusty, could fail to move lightly on well-oiled hinges ? What 
 does the tenant, in such a case, think or care about the '' land 
 laws ? " What are they to him more than the night-wind that 
 whistles through the keyhole of his well-warmed dwelling erected 
 • — like everything else upon the farm, except the very corn-ricks 
 — by his landlord, and at a cost whose yearly interest, exclusive 
 of repairs, is a running item, " written off" by the hand of Time, 
 in the silent partnership that meets his own investment in 
 the soil. 
 
 Now take away all this ; substitute, one cannot say its 
 " opposite," but the picture of its mere abse?ice, in every 
 particular ; open the Pandora's box, and let out all the ills that 
 iollow the " curse of absenteeism " — the rack-rent, the often 
 unfurnished farm, with its lean kine, and fossil implements, the 
 dismal dirty cabin — and let the same wind blow upon the scene,
 
 112 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 upon "this picture and on that." Would it be possible, out 
 of the same bare elements, to create a greater contrast ? under 
 the " same laws " to produce more opposite effects ? 
 
 But a contrast no less striking lies in this, that whilst in 
 England the aggregation of land under the influence of entails 
 has tended to create large farms ; on the other hand, it has 
 been under these very laws that the worst evils that have ever 
 been associated with small holdings of land, as seen in the 
 cottier system of Ireland, have grown up, and led to results 
 that reached their climax in the Encumbered Estates Courts 
 and the Potato Famine : whilst no such results have been ever 
 exemplified or heard of in those countries, and they are many, 
 whose laws are favourable instead of adverse to the distribution 
 of the soil. Yet that which looks so like a paradox, is as due 
 to the simple laws of cause and eftect as anything can be 
 which the history of land teaches. 
 
 The solution lies in the well-known fact that men treat what 
 is their own in one way, and what is another man's in another 
 way ; that what is a man's own teaches him care and econofny, 
 while in dealing with that which is another's he learns indif- 
 ference and waste. 
 
 Let Ireland, on the one hand, and Belgium (or Prussia, 
 since the introduction of Stein's system), on the other, be taken 
 as illustrations. In the former were to be seen immense 
 estates held, and let at second-hand, by " middle men ; " and 
 let and sublet again, like a sporadic growth generating its 
 kind, till it reached, if it ^/c/ reach, its unit in the potato-patch. 
 In the latter, the law which facilitates and cheapens purchase, 
 to the small equally with the large buyer, beginning at the small 
 end, so to speak, sets at work the self-interest, and care, and 
 prudence of every individual who can buy, no matter what the 
 quantity. The result shows itself in the conduct and character 
 of a whole people. In each case, the land reflects like a 
 mirror the motives set to work upon it. Take away the indi- 
 vidual sense of property, and the opposite result is seen, 
 Arthur Young's often-quoted words underlie the whole ques- 
 tion. Those who attribute the results experienced in Ireland 
 to national character, find in Ireland examples which contra- 
 dict the judgment, even were it not nullified by the impos- 
 sibility of distinguishing between cause and effect. In his 
 speech on the second reading of the Irish Church Bill, the 
 Bishop of Lichfield (late Bishop of New Zealand) said
 
 England.] FN VARIOUS COUNTRIIiS. II3 
 
 "In New Zealand, Englishmen, Scotchmen, and Irishmen live together 
 upon the best terms. The qualities of each particular class become blended 
 with each other to the improvement of all. No dissension as to tenant 
 right can arise, because c^^cry tenant has the right of purchasing the land he 
 holds at a fixed price. Under these circumstances the tenants, instead of 
 l)eing lazy and drunken, strain every nerve in order to save the money 
 which will enable them to become the proprietors of the land they occupy. 
 In this way it happens that the most irregular people of the Irish race 
 become steady and industrious, acquiring property, and losing all their 
 wandering habits, until it becomes almost impossible to distinguish between 
 the comparative value of the character of Irish and Scotch elements. 
 
 "Of their loyalty to the Crown I can speak from my own observation, 
 for the only regiment that is employed in keeping order in New Zealand is 
 Her Majesty's Koyal Irish." 
 
 But if this be true in New Zealand, it is not less exemplified 
 at home, where the impartial pen of the Times' correspondent 
 in Ireland has exhibited instances of estates as well managed 
 by resident proprietors, and in some cases by intelligent agents, 
 and a tenantry as satisfied, prosperous, and attached as in any 
 part of England. The description given of the Bessborough 
 tenantry might be taken as an exemplar of small farming. 
 Where the same ameliorating causes are present the same 
 results are found to follow ; but these are exceptions, and will 
 continue to be so wherever the English land laws prevail 
 unmodified by the hand of the resident proprietor, and the 
 resources presented in a wealthy manufacturing country where 
 the displaced agricultural population can find employment in 
 the towns. It is not under such modifying conditions that our 
 land laws work out their natural consequences. What we have 
 to consider when examining a system are its absolute elements 
 and structure, not the dress it may be made to wear under 
 special circumstances, or in the lap of customs invented and 
 adapted to relieve its pressure. Ireland has furnished the test 
 and criterion of the naked action of laws, writing of which 
 Lord St. Leonards, the most professional, not to say technical, 
 apologist they have ever had, acknowledges that "no young 
 state ought ever to be entangled in the complication of our 
 law of real property." Such an acknowledgment from -such 
 a quarter leaves little unsaid ; it would be difficult to frame 
 a heavier indictment. Our colonies have, one and all, 
 wisely shrunk from their imposition; the United States rejected 
 and repealed them as soon as they were free to choose, and 
 there is now not a country of the civilised world in which they 
 survive. Ireland alone — not a colony, not a dependency, but 
 I
 
 114 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 an integral part of the United Kingdom — is involved in the 
 unwelcome partnership of laws which we inflict upon ourselves 
 in the teeth of our own Commissioners' Reports and the 
 testimony of our greatest lawyers and economists. 
 
 "Committees and commissions," writes Mr. Booth, in answer to the 
 Real Property Commissioners,* "composed of men of capacity and expe- 
 rience of all parties, have, over and over and over again, patiently and ably 
 investigated the causes of the distresses, difficulties, and misfortunes peculiar 
 to Ireland, and there has been an almost general concurrence of opinion in 
 their numerous reports, as also in the writings of other able men, including 
 those in the periodical press of the whole kingdom, that the system of 
 Transfer of Land requires simplification and amendment. The whole 
 subject has, in short, been so exhausted in these publications, that it is 
 scarcely possible to suggest an idea upon it which has not been clearly 
 expressed before. 
 
 " Simple absolute ownership of land is the condition most favourable to 
 its improvement ; but, nearly up to the present time, such ownership has 
 been very limited in Ireland. The land has been almost wholly held by 
 tenants for life, often liable to the payment of heavy annual charges for 
 incumbrances, or by men holding under such circumstances of tenure as 
 deprived them of that stimulus to the expenditure of labour and capital 
 which accompanies a full ownership of land. The personal interest of the 
 absolute owner is, that his land shall become as valuable in every respect 
 as he can make it ; that of the mere life annuitant, or of the man having 
 any other limited interest in it, is merely that his own rent shall be as high 
 as can be obtained. l\Ii!lions of the public money have been lavishly squan- 
 dered in the vai/i endeavour to put down evils which would have had no 
 existence under a better state of the lazvs of property ; disturbances and insur- 
 rections, with all their attendant misfortunes and crimes, have, until very 
 recently, for a century past existed in Ireland as a chronic disease, clearly 
 traceable to the anomalous state of ownership and tenure of land. 
 
 " So many difficulties beset the man who has any dealings with land, 
 that some persons erroneously believe they were contrived expressly to deter 
 men from becoming the owners of real property. There could not have 
 arisen such universal dissatisfaction witli the existing laws, or such general 
 appnjbation of tliat most salutary measure, the Encumbered Estates Act, 
 unless the evils of the ordinary system had become almost intolerable. 
 
 "The people of Ireland of the inferior classes are very shrewd and intel- 
 ligent. I have often heard men of that class make use of a common saying, 
 'A pennyworth of land, a pound's worth of law.' Since the passing of 
 the I'.ncumbered Estates Act, another expression has become common : 
 ' It was the best thing ever done for Ireland.' 
 
 "There can be no doubt that Ireland, by means of its existing Registry 
 of deeds, its complete Ordnance survey, and uniform public valuation, and 
 thj machinery formed under the Encumbered Estates Act, possesses 
 obvious facilities for the introduction of some permanent system to facilitate 
 the sale and transfer of land." 
 
 The Encumbered Estates Act did all that a temporary 
 
 * "Report of the Commissioners for Registration of Title," p, 411. Coin< 
 munication from Mr. W. Booth, C.B. (Ordnance Office), Dublin.
 
 England.] IN VARIOUS COUNTRIES. II5 
 
 remedy could do for a permanent disease ; but it " scotched 
 the snake, not killed it." It probed the wound and showed 
 where the mischief lay. It even created wealth in Ireland, and 
 a taste of prosperity which has flushed the cry for a constitu- 
 tional cure, for land laws that shall not drift the country again 
 into the renewed need of such a measure. 
 
 The treatment of the Irish land disease will hardly be 
 found out by ignoring its cause, lest the discovery should 
 present us with the home motto, " Physician, cure thyself." 
 Nor will the cure be hastened by indulging the selfish nation- 
 ality that expects from another people the race-cliaracteristics 
 that do not belong to them. It may be startling to the English 
 experience that prefers tenancy to ownership, or to the Scotch 
 intelligence that has brought leasehold to a science, to find 
 their panacea imperfectly appreciated by a people whose native 
 attachment is to the land more than to forms of tenure, or even 
 length of lease. 
 
 But statesmanship embraces all nationalities ; and if the 
 utmost freedom of land purchase — which all authorities on the 
 Avealth of nations have pronounced to be one of the first of 
 national benefits — contain, as proved in other countries, the 
 permanent cure for agrarian difficulty, the day may be nearer 
 than it is thought ; and near it is, if there be truth in the 
 maxim that a complete diagnosis is half a cure — when the long- 
 running issue of Ireland's greatest trouble shall be dried up. 
 But the malady of centuries' growth is not cured in a year. 
 
 Hitherto the points of view from which the history of our 
 land laws has been considered have comprehended only the 
 interests of the Owner and the Occupier, whose individual and 
 relative positions it has been attempted to trace. 
 
 The two classes that remain — the Labourer, and that large 
 portion of the public who have no direct participation in the 
 ownership or tenancy of land — seem to fall under a different 
 field of inquiry. It is true, we commonly hear our agricultural 
 system spoken of as comprehending the Landlord, the Tenant, 
 and the Labourer, and so in a certain sense it does ; but no 
 one who considers the position of the labourer in English agri- 
 culture will assert that he has any fixed personal tie within the 
 structure — that he stands to it in any relation but that of an 
 auxiliary, more or less in demand at different seasons of the 
 year, subject to the precarious vicissitudes of that demand, no
 
 n6 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 longer indeed, as in former times, adscripfus glebce — free to go 
 and come as he pleases, but without part or parcel in the land 
 he helps to cultivate, or any certain abode upon it, near it, or 
 in connection with it, for himself or for his family. 
 
 This is no overdrawn picture : neither are the facts stated 
 due to any surviving hardship of feudal habits which modern 
 legislation has forgotten to correct. On the contrary, the 
 labourer Avas, till recent times, the recognised inmate of the 
 farmer's house ; and still farther back than this, the bond that 
 tied him to the soil, the badge of his servitude, was yet the 
 link which connected his life and social state with that of his 
 employer, who was usually the Owner of the land he tilled. 
 Time has changed all this; and, for most other classes, for the 
 better. But the same English reign that awarded to the 
 labourer his freedom, marks the origin of our Poor Law system 
 — an ominous association ; and his present disconnection from 
 all that is known as the " progress of society," constitutes not 
 only the reproach of our agricultural advancement, but an 
 acknowledged blot upon our social system. 
 
 It would be a libel upon any class of the generation to 
 which we belong to charge upon it the isolated phenomenon 
 which the agricultural labourer presents in the midst of the 
 growing wealth, and the growing poverty, that are separating 
 the modern life of this country into the problem of two 
 gigantic masses widening from each other, and both rapidly 
 augmenting : " Constantly increasing rates, constantly increas- 
 ing pauperism, millions of money spent, yet without satisfaction, 
 and — infinitely worse — millions of human beings whose very 
 name implies a degradation even in their own eyes as recipients 
 of parochial relief," * on the one side ; and on the other, on a 
 scale never before exemplified, " the most conclusive evidence 
 that the production of wealth in this country is so vast and so 
 rapidly augmenting, that it is idle to say poverty exists because 
 enough wealth is not produced."! 
 
 An anomaly within this wider anomaly is presented in the 
 farm labourer; for while in every other feature of i)rogress — in 
 machinery, in skill, in ajiplied science, and in scale of profit — 
 the business to which his labour belongs has advanced at a 
 ratio never before witnessed, his position has been, except in a 
 few favoured districts, nearly stationary. Mr. Caird's tour, in 
 
 * Speech of the President of the Poor Law Roard, December 20, 1868. 
 t Fawcett, " Economic Position of the British Labourer," p. 6.
 
 England.] IN VARIOUS COUNTRItS. 1 17 
 
 1850, through the counties of England, established that "while 
 in the purely agricultural counties the rent of land and the 
 rent of a labourer's cottage had risen, since the tour of Arthur 
 Young, 100 per cent., the price of butter loo per cent., and of 
 meat, 70 per cent., the rise in the labourer's wages was but 14 
 per cent." Over the south and west of England, the descrip- 
 tion given by Mr. Fawcett of those whose daily toil is on the 
 land, is still applicable. " Theirs is a life of incessant toil for 
 wages too scanty to give them a sufficient supply even of the 
 first necessaries of life. No hope cheers their monotonous 
 career : a life of constant labour brings them no other prospect 
 than that when their strength is exhausted they must crave as 
 suppliant mendicants a pittance from parish relief. Many 
 classes of labourers have still to work as long, and for as little 
 remuneration as they received in past times ; and one out of 
 every twenty inhabitants of England is sunk so deep in pauper- 
 ism, that he has to be supported by parochial relief"* 
 
 Comparisons are sometimes drawn between the agricultural 
 labourer in England and in other countries ; but little reliance 
 can be placed upon parallels made by travellers from hasty 
 generalisation, mostly in accordance with foregone conclusions, 
 and which contradict each other : the true and honest com- 
 parison in all countries is that which arises in measuring the 
 relative advance of class with class at home. And here the 
 state of the agricultural labourer presents itself as that of one 
 thrown out of participation by the very system which his toil 
 helps to build. The manual labour of an arable farm forms at 
 least a third of the entire cost of production ; nothing is more 
 common than to hear the complaint of the great costliness of 
 this element in the year's accounts. In his useful little essay 
 Mr. Bailey Denton remarks, " The only way to justify an 
 increase of the labourer's wages will be by rendering the value 
 of the labour greater than it now is."t Yet its energy and 
 power are wasted, almost without a thought, even in the mere 
 element of distance — which has been aptly compared to the 
 day's march of a soldier — between the toiler and his work ; 
 coupled with a neglect of his comfort, of his spirit, and of his 
 intelligence, that diminishes its value as much as the waste of 
 physical power. 
 
 But effects do not arise without causes, and the condition 
 
 • Fawcett, "Economic Position of the British Labourer," p. 6. 
 t " The Agricultural labourer," by J. Bailey Denton, Esq.
 
 Il8 SYSTEMS OF LAND TENURE [Hoskyns. 
 
 of the labourer will derive no permanent change from the mere 
 suggestions of philanthropy. It must be studied in conjunc- 
 tion with the system of which it is a part. The law of Parish 
 Settlement swept away cottages, and the Union Chargeability 
 Act has done nothing to restore them. Whose interest is it, 
 under our universal system of tenancy, to provide the labourer 
 with a home that may connect him with his work ? The farm- 
 ing tenant cannot do so ; the land is not his to build on, nor 
 the permanent interest his, to care to sprinkle the land with 
 dwellings that might furnish hands for acres to those who come 
 after, or even, it may be, for next year ; for who can tell what 
 change to himself a year may bring forth ? And the landlord 
 cannot do it ; for what, under our system, is his interest ? He 
 lets his land for the return that another man's capital and skill 
 can make of it, by any means not forbidden in the agreement 
 or lease. It is the tenant's natural endeavour— it is his 
 business — to make the most he can, and within a certain time ; 
 and if he could cultivate his farm entirely by machinery, with- 
 out employing a single labourer upon it, it would be worth his 
 while to purchase a saving so economical to himself, placed as 
 he is in the position of an occupier to whose point of view each 
 cottage is a standing threat upon the rates, subject to the whole 
 of which he rents his farm. Under our land-tenure system — 
 that of the life owner under settlement, and the yearly tenant 
 farming the land for the largest profit that can be made from it, 
 by the most compendious machinery, with the least outlay of 
 manual labour — the interest of the labourer in the soil, his rela- 
 tion to it, or to either of the other parties, is one of strange 
 definition. He is not his landlord's workman, and he is not his 
 employer's tenant ; the man who employs cannot house, and 
 the man who could house does not employ him. Dependence 
 has its advantages, and independence its charms ; but his lot is 
 so cast as to derive the minimum of benefit from either. 
 
 The improvement of his i)resent condition by education 
 belongs to a great and solemn question of the day : but educa- 
 tion which quickens the sense of hardship, also happily tends 
 to emancij)ate the subject of it ; and an educated farm-labourer 
 becomes, in too many cases, a farm-labourer no longer. When 
 we are considering how to improve the nest, it hardly helps the 
 inquiry to show how the birds may learn to fly out of it. The 
 question as to his cottage accommodation becomes, under our 
 system, one of those detached problems that fall into the waste-
 
 England.] JN VARIOUS COUNTRIES. lig 
 
 basket of pure philanthropy. Whence he comes in the 
 morning to his work, or whither he goes in the evening when 
 he has done it, provided he has done it, his employer, who has 
 no cottage to give him nor means of building one, may vainly 
 inquire ; and if it presses lightly upon him, still more remotely 
 does it touch the landlord, who is ill prepared to spend the 
 portions of his younger children in making questionable 
 additions to the inheritance of his eldest, by erecting a class of 
 buildings that have the worst reputation of all as an invest- 
 ment ; thereupon the Government is invoked to lend the 
 public money — through "land improvement companies" em- 
 powered by Act of Parliament to furnish gentlemen's estates 
 with Cottages, and to help " Tenant for life '' out of the 
 dilemma between younger children and philanthropy ; and 
 public capital is invited to join an indirect scheme for keeping 
 public capital out of the land-market. 
 
 Dr. Hunter, the medical officer of the Privy Council, 
 inquires, " whether all land which requires labour ought not to 
 be held liable to the obligation of containing a certain 'pro- 
 portion of labourers' dwellings ; " * and so we go on putting 
 legislative props under this decaying branch, and under that ; 
 the last thought that occurs being that of examining what it is 
 that ails the circulation — what is the matter at the root — 
 whether the defect be not in the system itself, which has been 
 instrumental in bringing the condition of the farm labourer to 
 be preached at as a standing subject for charity, philanthropy, 
 state grants, and emigration, as if it was an isolated effect 
 without a cause } The question has been brought so frequently 
 of late before the public, the facts have been so fully and 
 forcibly stated, of the housing, and condition, and prospects, of 
 the agricultural labourer, that it is useless to repeat the de- 
 scription. The point we have here to consider is its connection 
 with the landed system of which it forms a part, a part thrown 
 out, indeed, like the slag from the working of the furnace, and 
 yet a part. 
 
 The striking defect of the system is that of his entire 
 separation from all interest and share in the results of his own 
 labour. "The worst-paid workmen in this country," says Mr. 
 Fawcett, "are so thoroughly reckless that they seldom show 
 any foresight for the future ; and even higher wages effect no 
 permanent improvement in the condition of the poor. They 
 
 * Seventh Report.
 
 I20 SYSTEMS OF LAND TINURE [Hoskvns. 
 
 do not save their increased earnings, but spend their money 
 either in drink or luxurious living. That this should be the 
 case can be a matter of no surprise whatever. There is no 
 effect of ignorance more certain than an almost entire absence 
 of foresight ; and the life of a hired labourer can exert no 
 influence whatever towards cultivating any of the habits of 
 prudence. . . . How much more powerfully would pru- 
 dence be stimulated, if a definite prospect were held out, that a 
 labourer might, in the course of time, by means of his saving, 
 secure a small landed property ! The value of such an acqui- 
 sition is not to be estimated by the amount of Avealth with 
 which it enriches him. It makes him, in fact, a different man ; 
 it raises him from the position of a mere labourer, and calls 
 forth all those active qualities of mind which are sure to be 
 exerted when a man has the consciousness that he is working 
 on his own account." 
 
 The last point, and the most important of all, is the effect 
 of our land laws on the whole of that class who have no parti- 
 cipation in the soil, who look upon its ownership from a dis- 
 tance as a thing that has long grown out of the reach of the 
 great bulk of the community by its costliness of purchase, and 
 the still more discouraging prospect of its continuing costliness 
 /o hold; who see it gathering year by year into larger territorial 
 acreages, beyond the reach, as beyond the prudence of moderate 
 or small investments, and are jauntily assured that henceforward 
 in this country land is to be regarded as the " pleasure-ground " 
 of the rich, and that whatever political economy may say 
 about the " distribution of wealth," it is neither profitable nor 
 desirable that land, at least, should be owned in any but the 
 largest quantities— estates that will support their lawyer and 
 their land-agent without sensible diminution of the rental. Of 
 the actual inducement offered by our present system of transfer 
 to buy small quantities of land, the two following Tables will 
 furnish some idea.*' The first is that of purchases over, and 
 the second of purchases at or under ;j^i,ooo, during a period 
 of four years : — ■ 
 
 * "List of Purchaser's Expenses, furnislied by Mr. George Sweet, Barrister 
 (Conveyancer) to the Commission for Registration of Title," p. 381.
 
 England] IN VARIOUS COUNTRIES. 
 
 Table I. 
 
 Purchase 
 
 Purchaser's Expenses, Table II. 
 
 Money. irrespective of 
 
 -' btamp Duty, &c. 
 
 £ jC ^- (i- Purchase 
 
 i,8oo 24 o lo ^^^"^y- 
 
 4,667 54 5 4 £ 
 
 2,300 52 o 4 1,000 
 
 1,260 17 2 8 956 
 
 2,662 39 o o 746 
 
 1,340 40 9 2 600 
 
 1,695 21 10 o 500 
 
 1,835 32 o 10 230 
 
 1,248 46 12 2 225 
 
 1,895 54 8 o TOO 
 
 2,274 72 4 6 
 
 ;^22,976 ^453 13 10 
 
 ^4,357 
 
 irchaser's Expenses, 
 
 irrespective of 
 Stamp Duty, &c. 
 
 £ s. d. 
 46 12 
 
 23 
 
 48 
 
 19 
 12 6 
 
 31 
 
 10 
 
 15 
 
 6 8 
 
 39 
 
 13 3 
 
 15 
 
 7 
 
 23 
 
 14 3 
 
 ^244 
 
 14 8 
 
 These Tables show an average of 2\ per cent., or five times 
 the ad valorem stamp duty, which alone is a heavy tax. But an 
 average gives no evidence of the burthen in individual cases. 
 Thus in Table 2, taken alone, the average expense of the 
 purchaser is nearly 6, and in the last case 2-}^ per cent. ! The 
 vendor's expenses would be in every case much higher. 
 
 It is not to be wondered at that under such discourage- 
 ment attending the mere initiatory step, and irrespective of 
 all the after circumstances attending the ownership of land, 
 it should gradually cease to enter into the thoughts of the 
 great bulk of small investors, and come to be looked upon as 
 the expensive plaything only of the largest fortunes. It is 
 beyond the power of calculation to estimate the effect, upon 
 a saving and industrious community, of this denial of the most 
 natural and preferred of all forms of investment — the purchase 
 of land. We see the alternative, in speculations of the wildest 
 and most wasteful character entered upon by the public, 
 where thousands of small capitals which, employed upon the 
 land under the influence of the auri sacra fames that vents 
 itself upon useless or deceptive schemes, would set to work 
 tens of thousands of agricultural labourers. It would be
 
 122 SYSTEMS OF 'LAND TENURE £Hoskyks- 
 
 difficult to paint a folly more cruel and ; suicidal than that 
 which, by home-made obstruction, intercepts the inward flow 
 of capital, and drives it from our shores in pursuit of objects 
 far more illusory and worthless than the conversion of the most 
 impracticable moor that ever was turned into arable land. 
 
 Even in the wildest home investment there lies that which 
 belongs to the birthright of the labourer. To him first, and 
 to the home consumer secondly, there arises benefit upon 
 schemes of land restoration and improvement that might 
 have remained for centuries neglected, if the returns of the 
 capitalist had been the only point of calculation. Every 
 cause that interferes with the transfer — with the free circulation 
 -^of land is laden with this heavy responsibility, one that 
 operates in the same or a like degree upon no other form that 
 wealth can take. 
 
 The mischief of artificial laws lies not only in the evil they 
 set up, but in the good they prevent, by interfering with those 
 primary natural laws whose salutary action they intercept. It 
 ought to be superfluous to say that what is best for every 
 country, is that wealth, whatever form it takes, should exist 
 in both large and small, and every intermediate proportion 
 without hindrance from factitious rules and theories. It is 
 not true that a preponderance of small or of large estates is 
 an evil ; but it is true that exceptional laws directed to produce 
 either extreme, are an evil, not only by their direct operation, 
 but by their collateral and resulting disturbance. There is not 
 a class of society unaffected by the laws that govern the land. 
 It is the original Source of all wealth, and of the whole 
 machinery of human action. An error in the laws that govern it 
 involves consequences that interpenetrate the social action of 
 the whole community : to indulge theories in favour of small 
 estates or large estates in land is mere folly ; when the trodden 
 experience of life ought sufficiently to demonstrate that the 
 mere tendency of a " law " to produce either extreme is its 
 condemnation. 
 
 The comparison of large and small holdings in land may 
 be useful in so far as it brings into practical view their relative 
 advantages, and limits, both in mode of culture and speciality 
 of produce, their adaptation to peculiarities of soil and climate, 
 and to the varying genius of race (for the difference of national 
 aptitude and bent are evident and unquestionable) ; but, as a 
 matter of contro.versy, it is unpractical and inconclusive, since
 
 England.] IN VARIOUS COUNTRIES. 1 23 
 
 no result of argument can bring it within the proper sphere of 
 legislation, or under any human tribunal. The laws have no 
 such office, and custom will take care of itself. All that 
 legislation can do is to remove every obstruction to the whole- 
 some operation of that spontaneous action which regulates its 
 distribution by laws as inflexible as those that govern the tides. 
 The Anglo- Danish monarch might have reversed the throne set 
 for him on the sea-shore, and with equal wisdom have apostro- 
 phised the littleness of human power when it attempts to govern 
 the laws that govern the land. 
 
 The real property laws of this country, from the period 
 immediately succeeding the Conquest down to the present 
 time, presents a history consistent with itself in one particular, 
 that of a perpetual struggle of rival interests. The parties to 
 the conflict have differed in successive periods ; the feudal 
 sovereign, the baron, the churchman, the lawyer, and the land- 
 owner have each entered into the strife in turn, each as the 
 pressure of adverse power or of selfish interest impelled them. 
 The result of all these struggles was the system bequeathed 
 two centuries ago, and under which, with but slight modifica- 
 tion, the business of the country is still carried on. But in 
 those struggles there are two voices that were never heard — 
 two interests little thought of — those of the PoHtical Economist 
 and the Agriculturist. Can it be wondered at, if the state of 
 those laws be found productive of results injurious to the best 
 practices of the one, and violating the first principles of the 
 other ? There is in the history of this country no instance to 
 be found in which the ripened and intelligent desire of the 
 community, clearly and repeatedly expressed through the most 
 public, the most able, the most learned channels, upon a 
 subject which has received prolonged and exhaustive investi- 
 gation by a succession of Royal Commissions — has waited so 
 long and so patiently upon the hand of legislation as that which 
 has asked for the reform of our law of Real Property, especially 
 as affecting the acquisition and transfer of land. Whether the 
 subject be looked at from the point of view of the Jurist as a 
 question of law-reform, in the restoration of simple and inex- 
 pensive, instead of complicated and costly procedure, or from 
 that of the Agriculturist in respect of the influence that this 
 branch of the law exercises over our most important home- 
 industry, or from that of the Political Economist pleading for
 
 124 SYSTEMS OF LAND TENURE [Hoskvns. 
 
 the rights of the community in the distribution of pubUc 
 wealth — the cry is still the same, " Free the land ; " release 
 it from the shackles in which time, and custom, and interests — 
 long passed away — have entangled it, obstructing its adaptation 
 to the uses of modern life, and presenting it as an anachronism 
 upon the face of our institutions. 
 
 It is almost idle to expect — from those whose professional 
 education and whose daily practice have been engaged upon 
 the traditional forms and technical framework of a system 
 which comes to their hands sanctioned by the usages and 
 stamped by the learning of centuries — from them to expect 
 the initiative of that emancipation of land which the necessities 
 of modern life, agricultural and commercial, demand, from 
 restrictions imposed during historical periods, when those 
 interests had no representative in the State. 
 
 The land has parted with protection in the disposal of its 
 produce, and confronts the rivalry of the world. In that rivalry 
 it encounters the laws which govern the productive powers of 
 other States, laws resting upon the diffusion, not the concentra- 
 tion of land, or the contraction of its resources. 
 
 The testimony of a host of witnesses who have communi- 
 cated their views, personally or by writing, to the Royal Com- 
 missions that have sat from time to time during the last/^r/y 
 years, and of writers, professional and otherwise, whose very 
 pamphlets, if collected, would form an encyclopsedia of real- 
 property law reform, might be cited to show that the rendering 
 effectual the Registry of title, based upon an authorised map on 
 the approved cadastral scale, and free of stamp-duty for the 
 first five years — restriction of Entail to lives in being at the 
 date of the Settlement, or death of the Testator — the assimila- 
 tion of the law of landed Intestacy to that applying to 
 personalty, the fusion of Legal and Equitable estates, and the 
 assimilation of the law of agricultural to that of trade Fixtures, 
 would do more to advance the interests of those concerned in 
 the land, and those dependent on them, than all the cumbrous 
 mechanism which the law now lavishes upon forms that operate 
 by withdrawing from each present owner in turn that fertilising 
 power and action which experience has shown to be the best 
 protection of the Future.
 
 125 
 
 III. 
 
 THE TENURE OF LAND IN INDIA. 
 By Sir George Campbell, K.C.S. I., M.P. 
 
 CONTENTS. PAGE 
 
 Tenures previous to British Rule 125 
 
 Property in land— Feudalism — Revenue-free holdings — The land 
 revenue — The village community — The cultivators — -The 
 middlemen — -The transfer of land. 
 
 The Bengal System 144 
 
 Early management — The settlement of 1793 — Subsequent history 
 — The result of the system. 
 
 The System of the North-West Provinces .... 155 
 Acquisition and management — Regulation VII. of 1822 — The 
 thirty years' settlement — The result of the system. 
 
 The Punjab 165 
 
 Tenures — Peculiarities of management — The result. 
 The Ryotwar Systems of Madras and Bombay . . . 167 
 The Madras system — The Bombay system — Recent measures in 
 Madras. 
 
 Recent Legislation and Settlements 175 
 
 Difficulties to be adjusted — Act X. of 1859 — The landlord and 
 tenant question — The great Rent Case — Revision of settlement 
 in the North- West Provinces — The tenant question in the 
 Punjab. 
 
 The Land Question in Oude 184 
 
 The Central Provinces 190 
 
 Summary of Tenures 194 
 
 Grants of Waste Lands in Fee-simple 194 
 
 TENURES PREVIOUS TO BRITISH RULE. 
 It is sometimes said that India is composed of so many dif- 
 ferent countries that we can never speak of it as a whole. I 
 do not think that is the case in the full sense in which the 
 statement is made. Probably, six or eight hundred years 
 ago, in the European countries which had been conquered
 
 126 SYSTEMS OF LAND TENURE LCampbell. 
 
 and ruled first by the Romans and then by the Germanic 
 peoples, there was a greater similarity of institutions and 
 manners than in modern days. Similarly it has happened 
 that, however different may have been the aborigines of 
 different provinces of India, they have been covered by 
 successive waves, first of Hindoo populations, and then of 
 Mahommedan conquerors, and so have been assimilated in 
 perhaps a greater degree than ever were European countries. 
 
 We have no historical record of the advances of the Hindoo 
 peoples, but more still remains, in the ethnography and institu- 
 tions of the country, to show that they may be divided into at 
 least two classes, the earlier Brahminical Hindoos, and the later 
 tribes of more democratic character and more nearly allied to 
 the Germans, who preceded the Mahommedans in the rule of 
 the country. After all that has passed, the institutions of these 
 Hindoo races still survive in almost every Indian village. 
 
 The Mahommedan conquest and dominion was more com- 
 plete and more centralised than that of any power which has 
 ruled in Europe since the Romans. Twice have Mahommedan 
 empires ruled over the whole of India, with little exception. 
 In the interval between these two universal empires the country 
 was not lost to the Mahommedans, but was for the most part 
 divided among several Mahommedan dynasties, very similar 
 to one another in character. The last great Mahommedan 
 empire, which welded all India into one country, was in its 
 zenith no longer ago than the beginning of the last century. 
 Its rule was highly centralised, and from Peshawar to Cape 
 Comorin on the one side, and to Chittagong on the other, 
 much of its official system, and almost all its official language, 
 survive to the present day. 
 
 My view, then, is that, although the present circumstances 
 of the various provinces of India infinitely vary, their institu- 
 tions may be traced to very similar sources. We may say that 
 very varied forms have been built up on various plans, but 
 that the materials are in the main the same. I would first try 
 to explain the conditions of landed tenures which we found 
 in existence, and then would exhibit the different phases 
 which they have assumed in different provinces under British 
 administration. 
 
 The long-disputed question, whether private property in 
 land existed in India before the British rule, is one which can 
 never be satisfactorily settled, because it is, like many disputed
 
 India.] IN VARIOUS COUNTRIES.' ' 1 27 
 
 matters, principally a question of the meaning to be applied to 
 words. Those who deny the existence of this property mean 
 property in one sense ; those who affirm its existence mean 
 property in another sense. We are too apt to forget that pro- 
 perty in land, as a transferable mercantile commodity absolutely 
 owned and passing from hand to hand like any chattel, is not 
 an ancient institution, but a modern development, reached only 
 in a few very advanced countries. In the greater part of the 
 world the right of cultivating particular portions of the earth is 
 rather a privilege than a property ; a privilege first of a whole 
 people, then of a particular tribe or a particular village com- 
 munity, and, finally, of particular individuals of the community. 
 In this last stage the land is partitioned off to these individuals 
 as a matter of mutual convenience, but not in unconditional 
 property; it long remains subject to certain conditions and 
 to reversionary interests of- the community, which prevent its 
 uncontrolled alienation, and attach to it certain common rights 
 and common burdens. 
 
 A still more important distinction is this, that in countries 
 which have been conquered by immigrant races from prede- 
 cessors who had already cultivated the soil (that is, in almost 
 all the countries of the old world), the dominant arms-bearers 
 generally cannot cultivate the whole of the land themselves, 
 and do not attempt to cultivate through others on the modern 
 capitalist farmer and labourer system; they willingly leave in 
 actual possession of the greater part of the soil the people who 
 cultivated it and who are attached to it by many bonds. Hence 
 we have a very widely-prevailing distinction between the privi- 
 lege of levying the customary rent and the privilege of occupy- 
 ing the soil. In India the rent was generally levied by the 
 State or the immediate assignees and representatives of the 
 State ; but, nevertheless, there was frequently to be found in 
 the village communities a privilege or property in the occu- 
 pation and management of the soil, which constituted as strong 
 a form of property as can anywhere be found short of our 
 modern form of landed property. I do not here refer to the 
 disputed question of the right of occupancy as between land- 
 lord and ryot, which is the latest phase of Indian land ques- 
 tions, but to the rights of some of those whom we now put 
 in the proprietory class. I cannot imagine a more distinct 
 privilege-property than that of some of the strong Jat villages 
 in the Punjab territories, many^of which were rather tributary
 
 128 SYSTEMS OF LAND TENURE [Campbell. 
 
 republics than subjects or tenants. In the sense, then, of the 
 right of holding the land subject to the payment of customary 
 rents, I think that private property in land has existed in many 
 parts of India from time immemorial. 
 
 The feudal system I believe to be no invention of the 
 middle ages, but the almost necessary result of the hereditary 
 character of Indo-Germanic institutions, when the tribes take 
 the position of dominant conquerors. They form, in fact, a 
 hereditary army, with that gradation of fealty from the com- 
 mander-in-chief to the private soldier, which is essential to 
 military operations. Accordingly we find that among all the 
 tribes of Indo-Germanic blood Avhich have conquered and ruled 
 Indian provinces, the tendency is to estabHsh a feudal system 
 extremely similar to that which prevailed in Europe. In 
 Rajpootana the system is still in full force. The Mahrattas 
 and Sikhs had both established a similar system. In my early 
 days it existed in great perfection in some parts of the Cis- 
 Sutlej Sikh States. But the Mahommedan system is quite non- 
 hereditary — I may say, anti-hereditary. The genius of their 
 centralised government was entirely opposed to the feudal 
 system ; and wherever they have completely ruled, they have 
 swept it away. Hence it has only survived in those Rajpoot 
 States which were indulgently permitted to retain a self-governed 
 position as tributaries, and among some border tribes never 
 thoroughly subdued. It had been but partially redeveloped in 
 the Hindoo States which had a brief independent existence 
 between the fall of the Mahommedan and the rise of British 
 power. Rajpootana then not being British territory, and the 
 surviving Mahratta and Sikh Jaghardeers being in most instances 
 rather rulers than subjects, it may be said that, notwithstanding 
 the feudal genius of the people, the feudal system does not 
 prevail in our territories. There are a good many tributary 
 chiefs and sub-holders under them in the wilder parts of the 
 country, and several gradations of tenure may still be found in 
 some provinces; but no great province is organised on a regular 
 feudal system. 
 
 There are, however, numerous grants of the revenue due 
 from particular tracts or plots of land, and to these revenue- 
 free holdings only do tlie Mahommedans apply the term 
 " milk," or property. They are very frequently granted by the 
 ruler for the time being in terms importing perpetuity; but 
 being almost always assigned for some particular purpose —
 
 India] IN VARIOUS COUNTRIES. I 29 
 
 the support of a particular religious institution — for a par- 
 ticular service of some kind — or for the livelihood of a 
 particular family — they may be considered as being proi)erty 
 entailed and inalienable. In practice they were always re- 
 sumable at the pleasure of the ruler of the day ; and under 
 native rule there was a continual process of resuming old 
 grants and granting new ones. In the confusion attend- 
 ing the downfall of dynasties, many grants of this kind 
 were made by subordinates of insufficient authority ; many 
 were set up l)y fraud and usurpation ; and the known tender- 
 ness of British rule for anything bearing the appearance of 
 property, as well as our foreign ignorance, greatly encouraged 
 such claims and usurpations in the provinces which first came 
 into our hands. The sifting of these grants, and distinguishing 
 the good from the bad, and those made for purposes still sub- 
 sisting from those for services no longer rendered, is a process 
 which always requires early attention. We have treated them 
 under very liberal lules. Renouncing the arbitrary de facto 
 powers of native princes, we have recognised, as valid and 
 binding, all grants made by any authority which was at the 
 time competent to make them, and have given the grantees a 
 complete and certain tenure, instead of the precarious tenure 
 at the pleasure of the prince for the time being. All incom- 
 plete tenures having some show of long possession or other 
 equitable claim, we have treated very tenderly, either maintain- 
 ing them, or giving them terms of very easy compromise. We 
 have not only professed this indulgent treatment, but we have 
 embodied these lenient rules in public laws, and have opened 
 the courts of justice to all who wish to appeal to them from the 
 decisions of the executive officers. Altogether, so far, nothing 
 could be more equitable and indulgent than the treatment of 
 the whole subject. But it unfortunately happened that in some 
 of our older provinces, the investigations necessary to apply 
 the rules were long delayed — the most fraudulent and un- 
 founded tenures acquired a certain prescription of possession— 
 and when the incj^uiry was at last made, there was a good deal 
 of bitterness and outcry, which led to still more indulgent 
 compromises. 1 believe that these investigations have now 
 been entirely or almost completed in every province, and that 
 the whole matter is finally set at rest. 
 
 The permanent revenue-free holdings thus created, though 
 large in the aggregate, are in most districts very inferior in 
 J
 
 130 SYSTEMS OF LAND TENURE [Campbell. 
 
 extent to the lands which remain subject to the pubUc revenue, 
 and may therefore be put aside as exceptional. 
 
 In the course of the general investigation of titles, which 
 forms part of what we call a settlement, it is determined 
 whether the grant-holders have a complete title to the land, or 
 are only entitled to the public rent or revenue. In very many 
 cases — in almost all the larger holdings — they are but revenue 
 receivers, while the land is actually held by others whose 
 privileges are similar to those held under Government. In 
 other cases, especially in the smaller holdings, the grantee 
 either held the land before it was made revenue-free, or has in 
 some manner obtained possession of it. In that case he is 
 the complete owner, A large proportion of the grants are, as 
 I have said, held for specific trusts ; but many (too many, in 
 my opinion) have evaded such obligations. These latter are 
 now freely alienable, and they constitute the only complete 
 landed property in the English sense which exists in India. 
 
 Having disposed of the revenue-free tenures once for all, I 
 return to the normal condition of land in India; that is, when 
 it pays rent or revenue to the State, but is occupied and man- 
 aged by individuals. The whole question whether we consider 
 the State to have been the superior proprietor, may be nar- 
 rowed to the question whether we are to call the State receipts 
 revenue or rent ; and that again may be got over by showing 
 what the dues of the State really are, and leaving it to every 
 man to give them what name he chooses. 
 
 The original form of the due received by the State from the 
 land was certainly a share of the produce, A\'hen the crop is 
 reaped the State is entitled to a proportion of the grain, regu- 
 lated according to the custom of the locality. That is a very 
 old institution. In very ancient times the proportions were 
 less than in modern times — one-tenth or one-eight — and I am 
 unable to say whether the subsetiuent enhancement of the 
 State share is chiefly owing to greater demand for land to feed 
 a larger population, and consequent natural increase of rent, or 
 whether it is rather owing to enhancement of taxation on the part 
 of successive contjuerors. But this is certain, that in modern 
 times, and indeed for centuries past, the share taken has been 
 so large as to be no mere tax, but substantially to absorb the 
 rent. It has amounted, in fact, to a customary rent raised to 
 the highest point to which it can be raised without causing the 
 people to emigrate or rebel, and so defeating its own end. It
 
 India.] IN VARIOUS COUNTRIES. 131 
 
 seems to me that the distinction between a tax and a rent is 
 merely a matter of amount ; and that if a land tax is so high as 
 to absorb the rent, it becomes in fact rent. In this view the 
 State in India may be considered to have been the superior 
 proprietor, in the same sense as any other proprietor who is 
 entitled to receive customary rents, but does not cultivate or 
 manage the land. 
 
 In no part of India, and under no form of government, 
 did the vState undertake these latter functions, or any others 
 analogous to those of an English landlord. Except in the 
 assignment of waste land to be cultivated on the customary 
 tenure, there never was any system of interference with the 
 immediate possession of the soil ; no letting it by competition 
 to the highest bidder, or anything of that kind. Those in 
 possession of the village area were left in possession, and were 
 allowed to manage their own affairs, subject only to the State 
 right to receive its dues before the crops were carried from 
 the ground. 
 
 The State, then, generally took very nearly if not quite a 
 full rent; but, so far as my knowledge goes, there was seldom 
 in India any systematic attempt on a large scale to go beyond 
 this point, by chaining the people to the soil, and so exacting 
 from them a customary rent larger than the real rent, as was 
 the case in Europe when free trade in tenants was put a stop 
 to by the system of serfage. The people have never been 
 adscripti glebcB. I cannot say whether this is due to the large 
 population and cheap labour, rendering anything like agricul- 
 tural slavery unprofitable, or to equitable laws. The Hindoo 
 system was one of small States, or when there have been large 
 feudal organisations the territory was divided among different 
 chiefs. I should judge that in a country abounding in great 
 open plains, and where personal property is in small compass 
 and light, it would have been scarcely possible to prevent the 
 escape of a dissatisfied ryot to another jurisdiction. To the 
 present day we have sometimes complaints that a tenant has 
 decamped in the night without paying his rent, and carried his 
 house with him. Under the more centralised Mahommedan 
 rule, the equitable Mahommedan laws did not permit any 
 excessive tyranny of the great and rich over the poor. And so 
 it has happened that under all governments, notwithstanding 
 many hardships, the people have always in India enjoyed a 
 great amount of individual freedom.
 
 132 SYSTEMS OF LAND TENURE [Cam 1 deli,. 
 
 To this extent only it may be said that, in the times imme- 
 diately preceding our rule, the Government rent was not un- 
 frequently driven beyond a full rent — viz., that the settled ryots, 
 the ancient inhabitants attached to the soil by the bonds of 
 affection, habit, and property, were sometimes made to pay 
 heavier rates than the mere temporary sojourners who were 
 induced to come from elsewhere, and to take up, on excep- 
 tionally favourable terms, the lands left uncultivated for want of 
 hands, at times when the country had been depopulated by 
 wars and famines. The old inhabitants no doubt had the 
 first choice of the best land, but still I believe that the result 
 of the system was, that in hard times grasping rulers took from 
 them both the fullest rent, and anything more that they could 
 be induced to pay, rather than abandon their household gods, 
 and the wells and other improvements which they had made. 
 
 It must not be supposed that the customary rent consisted 
 of a uniform share of the produce levied equally on all crops 
 and under all circumstances. On the contrary, the system was 
 to a remarkable degree adapted to the circumstances, with 
 much regard to principles which we should call political 
 economy. Not only did the share taken vary in different parts 
 of the country, but it also varied in respect of different kinds 
 of crops, and different modes of cultivation. For instance, 
 crops raised by artificial irrigation (not supplied from Govern- 
 ment works), usually rendered a smaller proportion than those 
 raised without irrigation, because in the former case a larger 
 proportion was due to the labour and capital of the cultivator. 
 The more valuable products, as sugar-cane, cotton, vegetables, 
 &c., paid money rates according to the measurement of the land 
 — the produce not being divided. The proportion of grain 
 crops taken as rent or revenue may be said in modern times to 
 have varied from one-fourth to one-half, one-fourth being a 
 decidedly light assessment- — one-half the heaviest. One-third 
 and two-fifths were, I should say, the most common rates. 
 The grain only was divided, the cultivator usually retaining 
 the straw. In ordinary agricultural villages he also had free 
 grazing for his cattle on the village common, but in parts of the 
 country where a large proportion of the land was given to 
 grazing, a cess per head was levied on the cattle. 
 
 I am not aware that the rent was in any ])art of India paid 
 in labour as in Europe ; but, in addition to the proper rent, it 
 was a common arrangement that the villagers furnished a
 
 India.] IN VARIOUS COUNTRIES. 133 
 
 regulated number of unpaid labourers for the service of the 
 rajah. These labourers were men of the servile classes, who 
 received a small but exactly regulated proportion of the grain 
 from the threshing-floor as their remuneration for this and 
 other labour. When the labour was not exacted, its value 
 was charged to the village, and formed a regular item in the 
 accounts. 
 
 Most frequently the grain is not actually taken in kind, 
 but, being weighed at the threshing-floor, the value of the 
 Government share is charged at the market rate, and paid in 
 cash. ., 
 
 Another mode is to estimate the produce of the crops on 
 the ground before they are cut, and to charge the value of the 
 proportions derived from the estimate ; but in this case, allow- 
 ance being made for over-estimate and the risk which the 
 farmer runs, the proportion is calculated at a lower rate than 
 when the grain is actually divided ; for instance, if the division 
 rate is one-third, the estimate rate will be one-fourth. 
 
 In each locality, then, there is a regular and exact scale of 
 rates and charges established by long practice. I know no 
 mode by which these rates can be altered in a constitutional 
 manner : to made a radical alteration of this kind would be 
 a revolutionary measure such as would only be effected by a 
 very strong Government ; perhaps by a conqueror making new 
 arrangements for the first time. But in another way native 
 governments generally contrive to squeeze their subjects a little 
 more — viz., by the system of cesses, dues, and benevolences so 
 well known in Europe. These are generally not taken in an 
 altogether uncertain manner ; there is much system in all these 
 arrangements, and the various cesses are, for the most part, 
 regularly entered in the revenue accounts and uniformly 
 levied ; the peculiarity, however, being that a rate once made 
 for a temporary purpose very soon acquires, in the ruler's eyes, 
 the sanction of custom, and is continued long after the necessity 
 for it has ceased. Thus, then, a native revenue account ex- 
 hibits, besides the main rent, a succession of small charges — 
 perquisites of various officials — perquisites of the rajah's wife 
 — contributions to the marriage expenses of the rajah's son — 
 and so on. 
 
 Previous to our rule the Government share of the crop had 
 been in some parts of the country commuted into money rates, 
 classified according to the most prominent descriptions of soil.
 
 134 SYSTEMS OF LAND TENURE [Campbell. 
 
 and the nature of the crops grown. These money rates were 
 equally subject to the extra cesses which I have mentioned. 
 
 Besides the Government dues made up of the aggregate 
 of the assessment on each individual, there were frequently 
 charges upon the whole village, such as the value of forced labour 
 already mentioned — benevolences levied in the lump — fines 
 and compensations for value of property plundered in the 
 village limits — and such like ; and these charges were par- 
 titioned among the individual members of the community,, 
 according to fractional shares or other form of account, repre- 
 senting the interests of each. 
 
 The village is the well-known unit of all revenue arrange- 
 ments, and it may be said of all landed tenures, in India. I 
 use the word not to signify a village in our sense, but rather 
 the area of land occupied by a community who generally reside 
 together in a village. In the plain and thickly-populated 
 country it may be said that all the land cultivated and unculti- 
 vated iDclongs to one village or another. The country is, in 
 fact, partitioned off into villages ; the village boundaries are 
 known (if they are not the subject of feuds), and where one 
 village ends another begins. 
 
 When I speak of a village " community," I use this latter 
 word in our ordinary English sense, and not to signify the 
 actual holding of property in common. Nothing can be a 
 greater mistake than to attribute to the Indian village system 
 any of the features of communism. It is true that in early 
 times, before communities have settled down to fixed cultiva- 
 tion, the land is held to a great degree in common for grazing 
 purposes, private property being in cattle, not in land ; and 
 even after it has been distributed for the purposes of culti- 
 vation, the custom of periodically adjusting inequalities by 
 redistribution has not unfrequently subsisted to a much later 
 time. But even in this latter case the land was never equally 
 distributed, but was only re-parted according to the recognised 
 ancestral shares, casual inequalities and usurpations being re- 
 dressed. As communities became more and more fixed and 
 settled, this practice of redistribution dies out ; and it may be 
 said that in modern communities, in civilised parts of the 
 country, it no longer exists. Encroachments may, of course, be 
 resisted and redressed, but inccjualities founded on possession 
 of long standing are redressed by redistribution of the burdens, 
 not by redistribution of the land.
 
 India.] IN VARIOUS COUNTRIES. f35 
 
 The bond which keeps together a village community is, 
 then, rather municipal than a community of property. The 
 cultivated land is held by individuals, and the common in- 
 terest in common property is scarcely greater than that wliich 
 exists among the commoners of an English manor. The 
 waste land and grazing ground is held in common, certain 
 common receipts are brought to a common fund, certain 
 common charges are charged against the same fund, and dis- 
 tributed in a cess on individuals according to their holdings. 
 There is a system of municipal management, and the com- 
 munity claims to exercise a certain limited control over its 
 members, and to have a reversionary right to the land of 
 members who cease to cultivate or fail to pay ; but beyond this 
 there is complete individual freedom. 
 
 The Indian village is best known in England by the 
 descriptions which have been given by Elphinstone and others 
 of the Deccan village ; but, in my view, that is a somewhat 
 decayed form of the true village of the stronger Hindoo tribes, 
 and we must look for the strongest and most perfect village 
 form in the more complete and more democratic communities, 
 such as we find in the Punjab territory. It is these which I 
 have cited as exhibiting the strongest form of Peasant property. 
 
 A Jat village community consists of a body of freemen of 
 one caste, and who traditionally derive from a common ancestor 
 — clansmen, in fact. A village may be divided into two or 
 three parts, held by different castes or tribes, but I describe a 
 simple village. Every man has his share, which is generally in 
 the Punjab expressed in plough lands. A plough land is not a 
 uniform quantity of land, but a share in the particular village. 
 There may be sixty-four or a hundred and twenty-eight, or any 
 other number of shares ; one man has two ploughs, another a 
 plough and a half, another half a plough, and each holds land 
 representing his share. 
 
 The community is managed by a council of elders, who rule 
 it so long as they retain the confidence of the people, and who 
 conduct all negotiations with the Government. In such a 
 village, then, the body of the cultivators consider themselves 
 to be proprietors. They are united, and very strong ; they 
 certainly exercise rights of property ; and no one would dream 
 of attempting to disturb them. 
 
 Most republics have been in some degree served by some 
 inferior race, and in these Indian communities a smaller body
 
 136 SYSTEMS OF LAND TENURE [Campbell. 
 
 of the servile tribes is almost invariably attached to the village ; 
 not slaves, but servile labourers. They may cultivate small 
 portions of Icind, but they have no part in the village manage- 
 ment, and would not, I think, be considered to have rights of 
 property. Again, persons of better condition, but not members 
 of the proprietary tribe, may have settled in the village and 
 obtained land. The Government dues being such as to leave 
 scarcely any margin between rent and revenue, we almost 
 always find that all these people pay the same rates as the 
 original proprietors. It may be that they are not admitted to 
 a voice in the management, or to share in certain common 
 receipts or perquisites levied by the headmen ; but the distinc- 
 tion between an original proprietor and a cultivator long settled 
 in the community, and in a great degree adopted into it, 
 frequently became very shadowy in native times.* 
 
 Where we have strong communities, there is little difficulty 
 in dealing with the community. But more frequently we have 
 phases of land tenure which are much more doubtful. In some 
 provinces, where the Indo-German tribes have not fully pene- 
 trated, the village constitutions perhaps never were so complete 
 as those which I have described. Aly impression is that the 
 ancient Brahminical institutions were by no means so demo- 
 cratic. Both in Lower Bengal and in Cashmere the villages 
 have much less cohesion. 
 
 Again, in great parts of the country, war, desolation, and 
 famine have, during the last century, obliterated many com- 
 munities, and their place on the land has been taken by casual 
 cultivators, hanging loosely together, and who can claim no 
 ancient rights in the soil. 
 
 A still more common phase is the following : — The older 
 proprietary tribes have been exhausted by prosperity, promo- 
 tion, military service, misfortune, and the many vicissitudes of 
 Indian history ; they have ceased to hold their original position. 
 But a small remnant partially occupies the place where once 
 they were dominant ; and the land which they have ceased to 
 till has been occupied by others. This has frequently happened 
 to Rajpoot communities in the north-west provinces, and to 
 other tribes in the south of India. The reduced rej)resentatives 
 of the old tribe will generally be found to assert claims which 
 
 * For fiicility of reference, I give in this Paper a short account of the in- 
 difjenous village communities, &c. ; but some years ago I published details on 
 the subject. Modern India, chap. iii. — (J. C.
 
 India.] IN VARIOUS C0UMK1K.S. 137 
 
 the Others do not always admit. The Government officers take 
 their dues from the old inhabitants and new comers indifferently, 
 and looking to revenue will not permit the former to keep 
 others out of that which they cannot cultivate themselves. The 
 old families may or may not furnish the headman through whom 
 the Government collects its dues ; they may or may not receive 
 some of the old perquisites for duties which they may or may 
 not perform. But I think I may say that the relation l)etwecn 
 the old and the new occupants never, under native rule, takes 
 the form of landlord and tenant. There is no such thing as an 
 old family letting the lands to tenants at its pleasure, and 
 making its profit of the rents. Wherever they have the 
 management, it is as headmen accounting to the Government 
 for their collections. And wherever they have certain dues, it 
 is in the shape of perquisites, not of rent. 
 
 In all cases in which there was not a democratic body 
 electing their own headmen, there was a headman whose func- 
 tions were pardy those of a Government officer, and i)artly 
 those of the head of a quasi-municipality. This headman was 
 called the Mokaddum in the more northern and eastern pro- 
 vinces ; Potail in western and central India and in the Maratta 
 Deccan ; and Gauda in some other parts of the south. The 
 office was semi-hereditary, as almost all Hindoo offices are — 
 that is, the fittest member of the late official's family succeeds, 
 with the sanction of the ruling power, some preference being 
 given to seniority combined with approvetl litness. The Potail 
 accounted for the revenue collections, receiving the perquisites 
 and percentages which were the accustomed dues of the office. 
 Then there was an accountant, who held on a similar tenure, 
 and sometimes combined with it the functions of village 
 banker ; and there were other officers, each jjaid by the 
 established perquisites. The whole constitute the form of 
 community described by authors who have written of the 
 Deccan and other provinces similarly situated. 
 
 What, if any, were the rights of the cultivators of compara- 
 tively recent settlement who do not come within the category 
 of village proprietors, is a question which has been raised into 
 great importance of recent years, since there has been discus- 
 sion of the relative rights of landlords and tenants, but to 
 which no definite answer can be given. It is and must remain 
 a mere matter of opinion whether the facts establish a claim to 
 consideration or not. There was no law to determine such
 
 138 SYSTEMS OF LAND TENURE [Campbell. 
 
 rights, and no standard by which they could be measured. It 
 is certain that, as a rule, such cultivators were not dispossessed 
 so long as they wished to hold their fields ; but it may equally 
 be asserted that if any individual for any reason were dispos- 
 sessed, there was little chance of any remedy available to him. 
 We have no details of the social arrangements of any former 
 period when India was so settled and so w^ell cultivated that 
 cultivators had difficulty in obtaining land in one place or 
 other. During the prosperous period of the Mahommedan 
 empire the cultivators were no doubt in some sort protected. 
 All the Mahommedan Regulations aim at that object. But 
 during the century of anarchy which preceded our settled 
 dominion, there was for them only the protection which cir- 
 cumstances afforded. In fact, the depopulation and reduction 
 of cultivated area, resulting from a long anarchy, had almost 
 everywhere occasioned a demand for cultivators, which, as 
 soon as peace was restored in any province, rendered the 
 position of the ryot in some respects favourable. Instead of 
 being obliged to compete for land, he found that there was a 
 competition for ryots. A ruler's strength and wealth, under a 
 system of customary rents, depended on the number of his 
 r}'ots and the extent of their cultivation ; and a man not embar- 
 rassed by local ties could generally make favourable terms. 
 
 As no one was evicted, the question of compensation for 
 improvements never arose. It is not, however, altogether lost 
 to sight. Wherever there is a question between the represen- 
 tatives of a declining body still claiming to be owners of the 
 land, but not fully occupying it, and strangers holding it on 
 terms not yet admitted to be permanent, the making of an 
 improvement which cannot be removed — the building of a 
 well, or even the planting of a tree — is always regarded with 
 jealousy, as an act involving ownership, or, at least, permanent 
 occupancy. The Indian law does not, as with us, give to the 
 proprietor everything that is put upon the land ; it remains the 
 property of the man who put it there. An Indian proprietor, 
 therefore, does not claim a right to benefit by another man's 
 improvement; he objects to his making the improvement, as 
 involving a property inseparable from the soil. I have had 
 such complaints in modem days. If an improvement of a 
 solid immovable kind be made, I think the right of occupancy 
 would be admitted. Pnil unless a well be built or a grove 
 planted, the ordinary agricultural recjuirements are so few as to
 
 India.] IN VARIOUS COUNTRIES. 1 39 
 
 give rise to little question of compensation. The house is built 
 of mud, which is of no value, and the wood used for the roof is 
 taken away by an outgoing ryot. The principal expenditure in 
 the way of improvement is in bringing jungle into cultivation, 
 and many of the recently-settled ryots had established that 
 claim to permanency. 
 
 The general result seems to be that there was no definite 
 law giving a right of occupancy to non-proprietary cultivators, 
 and that the equitable claims of these men varied infinitely in 
 degree. But there was in the general language of the country 
 a distinction between ryots settled as permanent inhabitants of 
 and cultivators in a village who had given pledges by building 
 and clearing and establishing themselves, and had accepted a 
 share of common obligations, and those other ryots who were 
 avowedly mere temporary sojourners, or who, without sojourning 
 at all, came from some other village to cultivate patches of land. 
 The former were called " Khoodkasht," or " own cultivating," 
 "Chapper bund," or "house tied, "and sometimes "Mooroossee," 
 or " hereditary ;" while the latter were called " Pye-kasht," a 
 term implying that they come and go at pleasure. The sentiment 
 and feeling of the country was certainly in favour of the moral 
 claim of the former class to hold the land as long as they 
 cultivated and paid their rent. Some think that our Govern- 
 ment might be justified in treating these men as tenants-at-will, 
 and turning them over to landlords in that character ; some 
 think that they could not with justice be so treated. The latter 
 was the view taken in the early days of our rule ; the other is 
 that held by those who in these days favour the idea of capitalist 
 landlords. But either party would, I think, admit that in most 
 parts of the country there was nothing to prevent the Govern- 
 ment from recognising the position of the ryots and improving 
 their status, if it was minded so to do, at the time of the first 
 settlementof rights, and before incompatible rights were conferred 
 on others. 
 
 In small native states the ruler very fretjuently collects his 
 dues direct from the cultivators, with the assistance of the 
 established headmen and accountants. The alternative mode 
 of management is to farm out the right of receiving the State 
 dues to mercantile speculators. In disturbed times, again, 
 when it was not easy to collect dues in detail, it sometimes 
 happened that the ruling power for the time being compromised 
 with the villagers by agreeing to take from them a lump sum in
 
 140 SYSTEMS OF LAND TENURE [Campbell. 
 
 lieu of all claims, and the villagers themselves allocated the 
 burden according to holdings. 
 
 In these various ways were the land revenues collected by 
 native rulers. But it is well known that, in some of the greater 
 dominions, persons were found intermediate between the 
 villagers and the Government, whose position had become 
 more or less hereditary, and whose claims and treatment have 
 given rise to much discussion. We must, then, examine the 
 origin of these hereditary middlemen. First, however, we 
 should be clear about the meaning in which we use the words 
 " zemeendar," and " ryot." 
 
 ''Zemeendar" is a Persian word, signifying literally " land- 
 holder."' It has been, however, variously applied to different 
 classes connected with the land. The Mahommedans seem 
 originally to have used it very much as we use the term 
 " native," applying it to the people of the land. But eventually 
 they applied it to the holders of the tributary tenures not 
 brought under complete subjection. Under the Moguls the 
 semi-independent territories are always called the Zemeendarees. 
 Great Rajpoot chiefs and others were known as " Zemeendars." 
 In Bengal and other districts the term came to be applied to 
 the great middlemen, who rose to power in the decline of the 
 empire ; and the name may have had some weight in bringing 
 about the policy which made them proprietors. But a little 
 farther north we find the same name applied to the small village 
 proprietors ; and farther north again, in the Punjab, the term is 
 universally applied to simple peasants. I have often asked a 
 man on the road-side, " Who are you ? " and got for answer, 
 ^' Oh, a poor man — a Zemeendar !" And as the Jats are the 
 great cultivating tribe in the Punjab, the terms have come to be 
 used as synonymous ; and a man will often tell you he is a 
 Zemeendar by Caste, meaning a Jat. 
 
 I shall try to use the word as much as possible in its 
 ordinary English acceptation of a holder between the State and 
 the actual cultivator. 
 
 "Ryot" is a word which is much more misused. It is 
 Arabic, but no doubt comes through the Persian. It means 
 " jjrotected one," "subject," or "commoner," as distinguished 
 from "Races," or "noble." In a native mouth, to the present 
 day, it is used in this sense, and not in that of " tenant." Not 
 only all classes of cultivators, those who claim the strongest 
 rights equally with those who claim none, but also weavers,
 
 India.] IN VARIOUS COUNTRIES. I4I 
 
 carpenters, and labourers, call themselves ryots. To simplify 
 matters I shall apply tlie term to cultivators of the land, pro- 
 prietary or non-proprietary, as distinguished from the holder 
 intermediate between the ryot and the State. It is very 
 important to note the meaning of this word, because the persons 
 on whom very strong rights are conferred by the early regu- 
 lations or by subsequent laws, are officially called " ryots," and 
 by merely translating the word " tenants," it is assumed that 
 rights were arbitrarily bestowed on persons holding the position 
 of English tenants. 
 
 In the ancient Braminical accounts of Hindoo institutions 
 as they ought to be, we find mention of district officers who 
 seem to have filled much the same position in larger areas 
 which the village headmen fill in villages. They were lords 
 of one thousand, of one hundred, or of ten villages, and were 
 apparently hereditary officers. I do not know whether the 
 Marattas derive similar offices direct from earlier times, or 
 whether they have been re-invented by the Maratta Bramins, 
 but we certainly found in Maratta countries an established 
 system of " Deshmooks " — officers exercising a jurisdiction 
 in considerable tracts — and " Deshpandyas" — district ac- 
 countants for similar areas. A proprietary character has^ 
 however, never been attributed to these men, and they have 
 been for the most part pensioned oft". 
 
 In the days when the Mahommedan rule was vigorous, 
 there Avas little intermediate tenure between the State and 
 the people ; but in proportion as the central power declined, 
 smaller authorities rose. In the long period of anarchy there 
 was, under a nominal imperial rule, a partial return in many 
 parts of the country to native rule and to the Hindoo system of 
 petty chiefship. Out of these it may be said that the larger 
 modern Zemeendarees have sprung. 
 
 I would trace them to the following principal origins : — 
 
 First. Old tributary rajas, who have been gradually reduced 
 to the position of subjects, but have never lost the management 
 of their ancient territories, which they hold rather as native 
 rulers than as proprietors. These are chiefly found in outlying 
 border districts and jungly semi-civilised countries. 
 
 Second. Native leaders, sometimes leading men of Hindoo 
 clans, sometimes mere adventurers, who have risen to power as 
 guerilla plunderers, levying black mail, and eventually coming 
 to terms with the Government, have established themselves^
 
 142 SYSTEMS OF LAND TENURE [Campbell. 
 
 under the titles of Zemeendars, Polygars, Sec, in the control 
 of tracts of country for which they pay a revenue or tribute, 
 uncertain under a weak power, but which becomes a regular 
 land revenue when a strong power is established. This is a 
 very common origin of many of the most considerable modeiTi 
 families, both in the north and in the south. To our ideas 
 there is a wide gulf between a robber and a landlord, but not 
 so in native view. It is wonderful how much, in times such as 
 those of the last century, the robber, the raja, and the Zemeendar 
 run into one another. 
 
 Third. The officers whose business it is to collect and 
 account for the revenue have frequently, in disturbed times, 
 gained such a footing that their rendering of an account 
 becomes almost nominal, and practically they pay the sum 
 which the ruling power is willing to accept, and make the 
 most of their charges. 
 
 Fourth. I have alluded to mercantile contracts for the dues 
 payable by the ryots, held by persons in the position of 
 farmers-general. To a weak Government this system is very 
 tempting, and in the decadence of the Mogul empire enter- 
 prising bankers and otherspeculators, taking contracts of this kind, 
 exercised great authority, and handed it down to their successors. 
 
 There are infinite varieties of the phases which the matter 
 may assume, one of these characters passing into the other, so 
 that a Zemeendar may have sprung partly from one and partly 
 from another of these sources. 
 
 The tendency of everything Hindoo is to become here- 
 ditary. The son becomes, by the mere fact of his birth, the 
 partner of his father, and so a family interest is established in 
 everything. Thus contracts and other holdings passed from 
 father to son, and when we found them well established, the 
 holders have passed into the category of Zemeendars. 
 
 Where there is a recognised chiefship or office, it is under- 
 stood that, as it cannot be divided, one man must hold it. 
 Great Zemeendarees have therefore generally descended to that 
 member of the family who was best fitted, and of whom the 
 superior power api)roved. There was something corresi)onding 
 to primogeniture, modified by circumstances. 
 
 With the usual tendency of Hindoo institutions to a feudal 
 character, we constantly find that, under great Zemeendars, 
 sub-holders have si)rung up, sub-chiefs of the original raja, or 
 the original robber ; inferior officers, sub-contractors ; and
 
 India.] IN VARIOUS COUNTRIES. 1 43 
 
 these, acquiring permanence in a manner similar to their chiefs, 
 have sometimes survived when the chief has fallen, or are 
 sometimes found holding under him. 
 
 Whatever the character of these various classes of here- 
 ditary or semi-hereditary middlemen, one thing may broadly be 
 said of them all, that they were the representatives of the 
 governing powers, the delegates of the Government, receiving 
 the dues of Government. The status of the cultivators was 
 not altered. \\'liere there were strong village proprietors they 
 held the same position under the Zemeendar; where their 
 position was not so strong the Zemeendar exercised the 
 functions which the Government officers would have exercised. 
 This only may be said, that a small ruler may exercise a more 
 minute interference than a great ruler. But still the relation 
 was between governor and governed, or at most between payer 
 and payee of the customary rent ; there was nothing like our 
 relation of landlord and tenant. 
 
 Under native rule the rights in the land, whatever they may 
 be, are not bought and sold in the market. As regards the 
 occupancy of the peasants, the rent which gives the real value 
 going to the Government, and the claim of the peasant being 
 rather a privilege, deriving its value from sentiment, affection, 
 and habit, than a property capable of being estimated in money, 
 there was little room for mercantile dealings. Nor was there 
 any margin of profit which admitted of systematic sub-letting. 
 Transfer from one hand to another did occur, but the com- 
 munities claimed a right of veto, and would not permit the 
 entrance by purchase of a stranger disagreeable to them. The 
 general feeling prevented a man from alienating his land for 
 ever. Hence, if the occupant was unable to cultivate his land 
 or to pay the revenue, when he did not simply run away, the 
 ordinary form of alienation was, not by selling or letting, but 
 by mortgaging, if the term can properly be applied to the 
 transaction. The mortgagee, or depositary, undertook to dis- 
 charge what was due upon the land, and obtained the use of it, 
 while the original owner retained an almost indefinite right of 
 reclaiming it on repaying the mortgagee. Nothing has been 
 more difficult to settle than the' adverse claims of persons long 
 in possession, and of others claiming to be very ancient mort- 
 gagors. As respects the superior tenures, they were so entirely 
 of a personal and official character that they were in no degree 
 transferable by ordinary sale.
 
 144 SYSTEMS OF LAND TENURE [Campbell. 
 
 It may be said, then, of all landed tenures in India previous 
 to our rule, that they were practically not transferable by sale ; 
 and that only certain classes of the better-defined claims were 
 to some extent transferable by mortgage. The seizure and 
 sale of land for private debt was wholly and utterly unknown 
 — such an idea had never entered into the native imagination. 
 
 thp: bengal system. 
 
 Bengal proper was the first considerable province which 
 came under British Administration. The later northern tribes 
 had scarcely penetrated into that countrj^, and the village 
 institutions were not of that democratic, independent, self- 
 supporting character which gives facilities for dealing direct 
 with the people. The servants of the East India Company 
 were then quite without experience of civil administration. 
 Middlemen, more or less hereditary, Zemeendars, Choudrees, 
 Talookdars, &c., were found in existence, and it was natural 
 that foreigners attempting so new a task should avail them- 
 selves of the services of these men. No proprietary character 
 was then attributed to them. It was quite understood that 
 they were liable to be displaced for inefficiency or mis- 
 conduct, and, in fact, they frequently were displaced. There 
 was no well-estabhshed rule of inheritance. But still if a man 
 did well, another of the family was generally permitted to 
 succeed him. In the course of the various experiments which 
 were made, these men may sometimes have had contracts for 
 the revenue ; but their recognised position was that of men 
 bound to account to the British Government for their col- 
 lections; and, in the Regulations of 1793, it is stated that up 
 to that time their right was to take a perquisite of ten per cent, 
 on the revenue ; or, as it is expressed, they were bound to pay 
 into the Treasury ten-elevenths of their collections. 
 
 It would be foreign to the purpose of this paper to attempt 
 to trace the various systems of land administration which were 
 tried from the assumption of the Deewanee of Bengal and 
 Bahar * to the time of the Permanent Settlement. All our 
 modem history dates from the Regulations of 1793, establishing 
 
 * The imperial grant was of the Deewanee of Fiengal, Bahar, and Orissa ; 
 but Orissa was in the possession of the Nagporc Marattas, and we only 
 acquired it from them in the beginning of the present century.
 
 India.] IN VARIOUS COUNTRIES. I45 
 
 the latter measure and the code of laws which accompanied it. 
 The circumstances and character of the Permanent Settlement 
 of Bengal have been a good deal misapprehended.* It has 
 been supposed that we were very new to and ignorant of 
 Indian administration ; that the British administrators mistook 
 tax-collectors for landed proprietors, and by the laws then 
 passed conferred upon them absolute property in the soil to 
 the entire exclusion of the rights and claims of the inferior 
 holders. Such views of the matter are very wide of the truth. 
 British officers had administered Bengal for a whole generation. 
 Circumstances make men, and in the papers of a much earlier 
 period I have been greatly struck by the breadth of view and 
 public spirit of many of the local administrators of those early 
 days. At the time of the Permanent Settlement Lord Corn- 
 wallis was surrounded by men of ripe experience and knowledge. 
 The preambles to the Bengal Regulations sufficiently attest 
 that these men quite understood and did not over-estimate the 
 real position of the Zemeendars, who were made proprietors, 
 not in recognition of a right, but in pursuance of a deliberate 
 policy. The unsatisfactory result of the systems of administra- 
 tion already tried had led to the belief that what was most 
 wanted was permanence and security of tenure, and a grand 
 experiment was made in that direction. I pass over here the 
 sin against posterity (and so far I think that there was a 
 financial mistake) which was committed in fixing the revenue 
 demand for ever, instead of for a long period. As respects the 
 tenure of the land, it seems to me that there was not so much 
 error as is generally supposed. The Government having found 
 the uncertainty of tenure of the Zemeendars and others to be 
 attended with much evil, made the Zemeendars in one sense 
 proprietors. As between the Government and the Zemeendars 
 the claims of the former were strictly limited, and the Ze- 
 meendars became proprietors, instead of mere revenue officers ; 
 but they were by no means made sole and absolute proprietors. 
 As one of the English lawyers on the bench of the High Court 
 at Calcutta said of the original enactment in his judgment on 
 the great Rent Case (decided in 1865), "This Regulation 
 
 I must confess to have been under a misapprehension myself, and to have 
 to some extent taken part in misleading others on this point, when I published 
 " Modem India." At that time I had no official connection with Bengal proper, 
 and adopted the popular view. I have since spent some years of my life in 
 dealing officially and judicially with the land tenures of Bengal, and give the 
 present statement in correction of that which I previously made. — G. C. 
 K
 
 146 SYSTEMS OF LAND TENURE [Campbell. 
 
 teems with provisions quite incompatible with any notion of 
 the Zemeendar being absolute proprietor." These provisions 
 may be said in brief to have given, so far as the theory of the 
 law goes, to all under-holders down to the ryots, the same 
 security of tenure as against the Zemeendar, which the Zemeen- 
 dar had as against the Government. Sub-holders of Talookas 
 and other divisions, under the Zemeendars, were recognised 
 and protected in their holding, subject to the payment of 
 the established dues. As respects the ryots, the main pro- 
 visions were these : All extra cesses and exactions were 
 abolished, and the Zemeendars were required to specify, in 
 writing, the original rent payable by each ryot at the per- 
 gunnah, or established rates. If any dispute arose regarding 
 the rates to be so entered, the question was to be " determined 
 in the Dewany-Adawhit {Civil Court) of the Zillah in which 
 the lands were situated, according to the rates established in the 
 pergumiah for lands of the same description and quality as those 
 respecting 7vhich the dispute arose." It was farther provided 
 that no Zemeendar should have power to cancel the pottahs. 
 (or specifications of rent) except on the ground that they had 
 been obtained by collusion, at rates below the established 
 rates ; and that the resident ryots should always be entitled to 
 renewed pottahs at those rates. Even on a sale for arrear of 
 revenue (which cancelled all superior rights), the purchaser 
 was to have no power to evict any resident ryot unless he 
 refused a pottah at the established pergunnah rate. Thus, in 
 fact, fixity of tenure and fixity of rent rates were secured to the 
 ryots by law. In Bengal proper, the proportion of the produce 
 had very generally been converted into money rates, and thus 
 these fixed rates were, in fact, fixed rents. Provision was at 
 the same time made for the maintenance both of the Canoon- 
 goes, or district registrars, and of Patwarees, or official village 
 accountants, an object of whose appointment was declared to 
 be " to prevent oppression of the persons paying rent." 
 
 In addition to these specific provisions there was the 
 general provision, often (quoted, reserving a power of future 
 interference in behalf of the inferior holders. "The Governor- 
 General in Council will, whenever he may deem it proper, 
 enact such regulations as he may think necessary for the pro- 
 tection of the dependent talookdars, ryots, and other cultivators 
 of the soil." 
 
 As the early Regulations were construed by the judicial
 
 India.] IN VARIOUS COUNTRIES. I47 
 
 tribunals, the law was settled to be that, under the general 
 provisions in favour of sub-holders, every man, whether ryot 
 or of any other class, who had held for twelve years before the 
 permanent settlement (that being the Indian term of prescrip- 
 tion) at a uniform rent, was entitled to hold for ever at that 
 rent, whether it was or was not below the established rates ; 
 other, resident ryots were entitled to hold at the established 
 rates, but if holding below the customary rate, could be enhanced 
 up to that point. 
 
 The Zemeendars were authorised to appropriate to their 
 own use the difference between the sum which they engaged to 
 pay the (iovernment and the established rates, "which formed 
 the unalterable due of the Government according to the ancient 
 and established usage of the country." They were, more- 
 over, encouraged to exert themselves to bring the waste lands 
 into cultivation, and to induce the ryots to cultivate more 
 valuable articles of produce, by the assurance that all that was 
 thus added to the rent-roll should be their own. The whole of 
 the waste lands were thrown into the holdings of the Zemeendars 
 without additional charge, except in the case of some remote 
 parts of the country, uncultivated and unpopulated, where there 
 were none to claim the land or pay revenue for it. 
 
 So far as I can judge, I should say that the recognition of 
 the position of the Bengal Zemeendars was not more than would 
 have been to some extent done in modern days in any part of 
 India in which the Ryotwar system, pure and simple, was not 
 adopted. There was a time when their claims might have 
 been more rigorously scrutinised, and in Bahar (which, though 
 attached to Bengal, is quite a Hindostanee province) the claims 
 of the chiefs prevailed over those of village holders to a much 
 greater degree than would have been the case when the present 
 north-west provinces were settled. But in Bengal proper, 
 where the village system had so little cohesion, I doubt whether 
 at any period of our administration we should have quite set 
 aside the Zemeendars. They not only had a certain position 
 and certain claims when we assumed the administration, but 
 we had ourselves dealt with them and used them for ui)wards 
 of a generation. To set them aside altogether would have 
 been a very strong measure. 
 
 In fact, the settlement was by no means made with the great 
 Zemeendars exclusively : when holders of smaller degree were 
 thought to have stronger claims, it was made with them. There
 
 148 SYSTEMS OF LAND TENURE [Campbell. 
 
 were many such small holders ; and in one or two of the 
 eastern districts of Bengal the mere cultivators were found to 
 have the best claim, and the settlement is, for the most part, 
 to all intents and purposes ryotwar. 
 
 As respects revenue, the Zemeendars were subjected to 
 immediate terms very much harder than those which are now 
 accorded. The Government demand was fixed at ten-elevenths 
 of the then rent-roll. 
 
 On the whole, my impression is that (perpetuity of revenue 
 apart) the principles of the permanent settlement of Bengal 
 •were in the main good and sound, and that the ground for 
 ^subsequent complaints is to be found not so much in those 
 4)rinciples as in the failure properly to carry them out, and in 
 the ideas which afterwards arose from a misinterpretation of 
 ■them. 
 
 The original intention of the framers of the Permanent 
 Settlement was to record all rights. The Canoongoes and 
 Patwarees were to register all holdings, all transfers, all rent- 
 rolls, and all receipts and payments ; and every five years 
 there was to be filed in the public oflices a complete register 
 of all land tenures. But the task was a difticult one : there was 
 delay in carrying it out. English ideas of the rights of a land- 
 lord, and of the advantage of non-interference, began more 
 and more to prevail in Bengal. The executive more and more 
 abnegated the functions of recording rights and protecting the 
 inferior holders, and left everything to the judicial tribunals. 
 The Patwarees fell into disuse, or became the mere servants 
 of the Zemeendars : the Canoongoes were abolished. No 
 record of the rights of the ryots and inferior holders was ever 
 made, and even the quinquennial register of superior rights, 
 which was maintained for a time, fell into disuse, \Vhen a 
 regular police was established, the Zemeendars were in practice 
 freed from any effective responsibility for tlie suppression of 
 crime or other administrative functions. They became in every 
 .sense mere rent-receivers. The Bengal principle of non-inter- 
 ference on the part of Government was pushed to the })oint 
 which may be said to have culminated in the recent famine, 
 when the authorities so long refused to interfere, not because 
 the Zemeendars did anything for the people, but because, 
 according to the Bengal theory, they ought to do so. 
 
 At the same time that j}roperty in land was recognised by 
 the Regulations of 1793, it was made freely transferable by sale,
 
 India.] IN VARtOl'S COUNTRIES. 1 49 
 
 and in every respect put on the footing of property. The 
 original code declared the custom of descent to a single heir, 
 existing in certain large estates, to have been an invention of 
 the Mahommedans for revenue purposes, and abolished it, 
 laying down that the descent of all estates was to be regulated 
 by the ordinary Hindoo and Mahommedan laws, applicable to 
 any other property. But a subsequent regulation modified this 
 provision, and permitted the rule of primogeniture in some 
 jungle and other districts, where it was well established. To 
 this day I believe that it is not very clear what estates do and 
 what do not descend to a single heir ; but the matter is not so 
 important, because the courts have recognised the power of 
 Hindoos to make wills. The Hindoo laws say nothing of 
 wills, and it is very doubtful whether they should have been 
 admitted ; but the courts, acting on English precedents, 
 having once admitted them, this curious result has followed, 
 that, in the absence of any provisions to limit them, the power 
 of a Hindoo in Bengal to tie up his property by will seems to 
 be almost unlimited. 
 
 A creditor has the most summary power of selling all the 
 landefl rights of his debtor in satisfaction of debts of any kind. 
 And it was part of the system that, permanent rights of property 
 being once recognised, and the revenue being so fixed that the 
 (iovernment could no longer demand any increase, the reserved 
 rent of Government must be paid with unfailing regularity. 
 Failing payment on the appointed day, the estate is put up to 
 auction, and knocked down to the highest bidder, with a clear 
 and complete title against all comers. In the first years after 
 the settlement this i)rovision was very operative, and a large 
 proportion of the newly-created proprietors were sold out. 
 Subsecjuently the Zemeendars have learned punctuality ; but 
 .sales for debt are always constant. It may be said, tlien, that 
 from the very first an encumbered estates court has been 
 sitting in permanence in every district. 
 
 It has been epigrammatically said that Lord Cornwallis 
 designed to make Knglish landlords in Bengal, and only 
 succeeded in making Irish landlords. This, however, hardly 
 expresses the truth. He certainly sanguinely hoped that 
 security of tenure would induce the Zemeendars to perform 
 duties in the way of improvements in which they have entirely 
 failed ; but it has been shown that nothing was farther from 
 the thoughts of Lord Cornwallis and his advisers than to create
 
 150 SYSTEMS OF LAND TENURK [Camj'bell. 
 
 absolute landlords after the English pattern. The design was 
 rather to create something like what model Irish landlords 
 ought to be. The theory and intention of the Cornwallis 
 administration was to do for Bengal exactly what James I. did 
 for Ireland — to secure all parties, great landholders and culti- 
 vators alike, in their rights according to their degree. The 
 subsequent sales of the rights conferred on the Zemeendars, 
 and the failure to record the inferior rights, produced in 
 practice in Bengal something of the same state of things which 
 resulted in Ireland from Cromwell's confiscation of the rights 
 conferred by James, followed as it was by the de facto restora- 
 tion of the Irish cultivators to their holdings. In Bengal, as 
 in Ireland, the cultivators were protected by custom and public 
 opinion rather than by an efficient administration of the law. 
 The landholders were men who did nothing for the land, but 
 only received (generally through middlemen) the customary 
 rents from the cultivators who tilled old fields or cleared new 
 ones. Still there were not in Bengal the differences of race 
 and i)olitics which have embittered the social state in Ireland ; 
 and religious differences do not lead to the same bad blood. 
 Hindoo and Mahommedan generally live in an amity which 
 Roman Catholic and Protestant may well imitate. So far, 
 then, Bengal has been in a much better state than Ireland. 
 
 The margin of profit left to the Zemeendars was at first so 
 narrow, and habits were still so native, that it is scarcely sur- 
 prising that for many years there were complaints of the illegal 
 levy of the cesses and imposts so universal under native rule, 
 and of exactions from the ryots, still poor and abject. But as, 
 with peace and prosperity and the rise of prices, the condition 
 of the ryots has improved, the rates levied by the Zemeendars 
 have scarcely increased in an equal degree. The Bengallee 
 was not a very pushing landlord ; he was generally content to 
 take what he can claim according to the custom, with such 
 additions as his agents can (juietly manage ; and for the rest 
 he was satisfied with the enormous increase of income which 
 the, as it were si)ontaneous, increase of cultivation had given 
 him. On the whole, then, the relation of Zemeendar and ryot 
 had not been unfriendly till English ideas were brought into 
 play. The Zemeendar scarcely ever sought to take into his 
 own hands more land than his old "seer" or demesne. Popu- 
 lation had not yet reached the point when there is a severe 
 struggle among cultivators for land ; and there was no such
 
 India.] IN VARIOUS COUNTRIES. 151 
 
 thing as any desire to evict tenants. Many of the ryots in 
 Bengal proper came at last to be tolerably well off, sitting at 
 pretty easy rents, which gave them some margin of profit and 
 attached a certain value to their holdings. 
 
 In order to prevent the fraudulent or improvident disposal 
 of the assets from which the revenue was to be paid, the 
 Zemeendars were at first prohibited from giving leases of any 
 parts of their estates for terms exceeding ten years ; but some 
 years later this restriction was withdrawn. In Bahar, where 
 there are many large estates which descend undivided, they are 
 let in portions for short terms of years to mercantile specu- 
 lators, who make the most of the ryot — an arrangement almost 
 imiversal under such circumstances. The mercantile class of 
 those parts are a pushing set of men, but having no permanent 
 interest in the soil, the practice has all the disadvantages of the 
 middleman system. The ryots have not even the advantage of 
 a landlord who has some interest in keeping them alive ; and 
 in that part of the country they are much more rack-rented 
 than in Lower Bengal. 
 
 In Bengal proper, where there is less of the mercantile 
 spirit, the custom has sprung up of giving sub-leases in per- 
 petuity for a consideration. The great estates have thus been 
 split up by a system of sub-infeudation ; and it may be said 
 that practically most of the land in Bengal is now in the hands 
 of permanent landowners of moderate calibre. Many ryots 
 and other small holders, even when they cannot prove a title 
 from the permanent settlement, have obtained perpetuities by 
 payment of a fine. And so it happens that, under the shadow 
 of the permanent settlement, a very widespread system of per- 
 petuities of all grades has sprung up. 
 
 Perpetuities are always transferable, and the inferior like 
 the superior tenures can be summarily sold for arrears of rent. 
 Where there is a mere right of occupancy at the customary 
 rates, the sanction of the superior holder is ordinarily required 
 to a transfer by sale ; but in some districts the Zemeendars 
 interfered so little, and were so glad to have the security for 
 their rents aftbrded by saleable tenures, that the ryots' tenures 
 have become by custom entirely transferable, and the state 
 of things is very similar to that prevailing in the north of 
 Ireland. 
 
 The Hindoo laws and customs divide property among all 
 the sons or other agnates. Failing sons, a widow succeeds on
 
 152 SYSTEMS OF l.AND TENURK [Camibell. 
 
 a veiy limited tenure ; and, in Bengal, daughters and other 
 female relations also succeed after the widow, when there are 
 no sons. The Mahommedan law of inheritance is extremely 
 complicated, and creates a great complication of shares. The 
 result of the operation of these laws for several generations has 
 been the creation of a very large number of interests, present 
 and contingent, in almost every estate. The law gives to every 
 shareholder the right of partitioning off his share ; but where 
 there is no survey and no record, and no machinery in the 
 hands of the executive Government, the attempt to divide 
 through the courts an estate not in possession of the parties, 
 but held by ryots, and of which the parties themselves scarcely 
 know more than the rent-roll, is in practice attended Avith 
 enormous difficulties. The process is seldom attempted in 
 Bengal, and still seldomer brought to a successful issue. Thus, 
 then, almost all estates are held in undivided shares by several 
 or many people — and many others have reversionary rights. 
 It is very singular how many of the higher classes of Hindoos 
 die childless, and how many widows' life tenures result. The 
 tenure of Hindoo widows is peculiar in the extreme. They 
 have no power to administer for useful purposes, so as to give 
 leases, &c., beyond their own lives, but under Bramin-made 
 laws they can do many things in favour of Bramins, and for 
 superstitious purposes. They are constantly in the hands of 
 Bramins, and constantly trying to make away witli the estates 
 for the benefit of their own relations, or of their Bramin friends, 
 to the prejudice of the husbands' heirs. Altogether the tenure 
 is a most noxious one, and gives rise to half the litigation iri 
 Bengal. 
 
 When we have, then, concurrently, a system of inheritance 
 leading to constant subdivision of rights, without division of 
 tenures ; a vast system of sub-infeudation in every form and 
 degree, and'on every condition, at the unrestrained pleasure of 
 the parties ; and then perplexing and injurious widow holdings- 
 coming as constant faults to disturb the c-ourse of every tenure ; 
 all this overlaid on a system originally complicated and un- 
 recorded, it may be supposed that there is an ample field for 
 litigation in the courts. To this it must be added that our 
 judicial system has encouraged to the utmost the worst techni- 
 calities of law, and a i)ractice under which witnesses have been 
 numbered rather than weighed. To such an extent has the 
 habit of playing at law been carried, that it has become the
 
 India.] IN VARIOUS COUNTRIES. 1 55 
 
 common practice to purchase and hold land in any fictitious 
 name rather than a man's own. The most respectable man 
 feels that if he has not need to cheat any one at present, 
 he may some day have occasion to do so, and it is the custom 
 of the country ; so he puts his estate in the name of his wife's 
 grandmother under a secret tmst. If he is pressed by creditors 
 or opposing suitors, it is not his ; if his wife's grandmother 
 plays him false, he brings a suit to declare the trust. To any 
 one who should follow any land suit, taken at random from the 
 files of our courts, in its inception, origin, and progress through 
 many appeals to a final decree, and then should observe how 
 the attempt to carry out the decree breeds half a dozen new 
 suits, the wonder must be how any people can tolerate such a 
 state of things. It is, however, remarkable how the world 
 adapts itself to circumstances. The apparent evils are miti- 
 gated by two considerations ; first, the litigation of nearly a 
 century has produced a certain record of rights in the shape of 
 recorded decisions, which give a certain solid basis for future 
 proceedings ; and second, litigation is to a Bengallee what 
 alcohol and stock-jobbing together are to our countrymen, 
 and opium and the opium trade to the Chinese — it is his 
 stimulant, and his form of gambling ; and in some sense he 
 likes it. Every Bengallee, high and low, treasures as his Lares 
 and Penates an endless assortment of decrees of court and 
 other processes, which he unfolds to every one who will listen 
 to him. 
 
 The grand difficulty in purchasing land in Bengal is to 
 make a title. A purchaser can never be sure that some one 
 will not start up and declare the seller to have been a mere 
 man of straw. In truth, too often a litigious person buys from 
 a man of straw a nominal property which is not in his pos- 
 session. The only safe title is a purchase under a sale for 
 arrear of revenue. 
 
 Notwithstanding all drawbacks, the desire to possess landed 
 rights is so great, and so much money has accumulated during 
 a hundred years of peace, for which there is great want of 
 means of safe investment, that land has come to bear a very 
 high price indeed. The profits of the superior holders are now 
 very high, and the prices paid are such as to yield but a small 
 rate of interest on the money invested. 
 
 It would be sufficient subject for a separate treatise to 
 discover why it is that evils attending joint holdings much
 
 154 SYSTEMS OF LAND TENURE [Campbell. 
 
 subdivided (without corresponding facility of partition and 
 transfer), which are so evident in all tenures above those of 
 the cultivators, are not so marked as respects the holdings 
 of the cultivating ryots. Their tenure is simpler ; being at the 
 bottom, there are seldom complications under them ; they are 
 on better terms with one another, and less skilled in law. 
 They, too, have generally had a good deal of litigation ; but if 
 they can only settle their rights, as between them and their 
 landlords, they sometimes settle their own family affairs out of 
 court. Up to this time the process of absorbing the waste has 
 been going on, and there has not been complaint of the too 
 minute division of farms, and the impossibility, of supporting 
 life upon them. A large proportion of the holdings are cer- 
 tainly very small ; but, except in time of general failure of crops 
 and universal famine, the people support themselves without 
 poor laws, and do not trouble us. We really know w^onderfully 
 little of the social arrangements of the lower classes. They are 
 independent, and that is enough for us. I think I may say, 
 once for all, that the Irish form of difficulty — over population 
 and insufficiency of land — has not yet troubled us. But the 
 population is certainly much increasing, and this phase of the 
 question may not be far off. 
 
 I have alluded to the failure of the Bengal Zemeendars 
 to perform the duties of landlords. In fact, to expect of them 
 the duties of an English landlord, to build, and plant, and 
 introduce improved agriculture and improved machinery, if it 
 ever was expected, was a mere chimera, and not reasonably to 
 be looked for under the circumstances. Those are not the 
 functions of a native landlord. If a man encourages and pro- 
 tects the ryots who break up his waste and till his lands, 
 and deals faithfully and equitably by them, he is considered 
 to do his duty. If he further acts the part of a capitalist 
 money-lender, and advances money and seed, to be repaid 
 with interest at harvest time, he does something more ; and if 
 the interest exacted is not too exorbitant, he is a model land- 
 lord. In the very large estates the intervention of middlemen 
 renders it impossible for the landlord to perform these func- 
 tions, and he does not do so. In moderate estates he might do 
 so, but in Bengal the complications of existing and contingent 
 titles are so great that few have the power, if they have the will, 
 and they are generally little disposed to do much. The virtues 
 of a Bengallee landlord are rather negative than positive.,
 
 India.] IiN VARIOUS COUNTRIES. 1 55 
 
 Perhaps the ryots might fare worse than under the King Log 
 sort of rule which prevailed till we taught the Zemeendars the 
 rights of property. 
 
 In India, as in Ireland and many other countries, the tenure 
 of land affects the happiness and determines the content or 
 discontent of the people more than all other laws and adminis- 
 trative acts put together, and a main test of the success of the. 
 land system is to be found in the political feelings of the people. 
 The advocates of the Bengal system of management are wont 
 to quote the quiet and loyalty of the people of Bengal during 
 the mutiny as a proof of the excellence of their system. It 
 is impossible to compare a country far from the scene of 
 the military outbreak, and inhabited by an unwarlike people 
 utterly alien to the Sepoys (whom they personally detest), with 
 countries which were the immediate scenes of the mutiny and 
 the home of the Sepoys ; but still, no doubt, those days, when 
 the British power seemed to be for a time almost in abeyance, 
 afforded great opportunity for the outbreak of discontent in any 
 part of India. The population of Eastern Bengal is chiefly 
 Mahommedan, and there are many of those reformed Mahom- 
 medans whom a little persistent persecution may make our 
 enemies. Although Bahar was much disturbed, Bengal cer- 
 tainly remained perfectly quiet throughout the mutiny; and 
 when, towards the end of the crisis, a Sepoy party stationed 
 in . Eastern Bengal threw off their allegiance, they were even 
 actively opposed by the people. Without, then, admitting that 
 the system is in all respects good, I think it may be said 
 that the people were not, at that time, seriously discontented 
 with our rule. 
 
 I reserve to a subsequent part of this paper a notice of 
 recent legislation affecting the tenure of the land. 
 
 THE SYSTEM OF THE NORTH-WEST PROVINCES. 
 
 For some years subsequent to 1793 the views which had 
 led to the permanent settlement of Bengal still prevailed. A 
 part of the Madras presidency was permanently settled with 
 great Zemeendars. Under that administration, however, ryot- 
 war principles having eventually prevailed, the rights of the 
 ryots under these Zemeendars were secured by record and 
 the active intervention of the Government. The permanent
 
 156 SYSTEMS OF LAND TENURE [Cami-beu.. 
 
 settlement was also extended to the Benares province, but 
 there, too, in consequence of its being attached to the north- 
 west provinces, where a different system prevailed, a record of 
 inferior rights has been made. 
 
 In the early years of the present century the obligations 
 towards us of our ally, the Nawab of Oude, were settled by 
 a partition of his country, half being retained by the Nawab, 
 and half made over to the British Government. About the 
 same time a considerable territory in the same part of India, 
 which had been overrun by the Marattas, was acquired by 
 their repulse. We thus obtained the command of the upper 
 Gangetic valley, or rather plain — the proper Hindoostan ; and 
 the territories so acquired are those known as the north-west 
 provinces. 
 
 Soon after their acquisition the Government proclaimed its 
 intention of making a permanent settlement on the Bengal 
 pattern — a declaration which is still referred to as an embarrass- 
 ing pledge. But other counsels soon prevailed. Great doubts 
 were thrown on the advantage of the permanent settlement 
 system ; the settlement of the north-west provinces on the same 
 system was first postponed, and then altogether abandoned. 
 Thus it has happened that, while in the lower provinces of 
 Bengal and Bahar the system has been, as I have explained, 
 exaggerated and intensified in one direction, the northern pro- 
 vinces have fallen into a different groove, and the land policy 
 has taken quite another direction. 
 
 The doubts and differences of opinion which prevailed led 
 to a succession of short temporary and provisional settlements 
 of the new territories, without any minute investigation of 
 rights. Short leases were given to the parties most easily 
 accessible ; and where there seemed to be none possessed of any 
 hereditary or quasi-proprietary claims, the villages were let to 
 farmers. Wherever there was any appearance of rights they 
 were ruthlessly sold when the revenue fell into arrears, and 
 great abuses resulted, to the \nof\t of our subordinate oflficials 
 and their confederates, who acquired much of the land which 
 they brought to sale. A special commission subsequently 
 inquired into and partially redressed these abuses, but it was 
 felt that some more settled system was necessary. This state 
 of things led to the famous Regulation VII. of 1822, which is 
 the basis of all subsequent land arrangements in all parts of 
 Northern India. The .system of fixing the land revenue in
 
 Lnuia.] in various COUNTRIES. 157 
 
 perpetuity was abandoned, settlements for long periods being 
 substituted ; but private property in the land was none the less 
 to be as fully acknowledged as in Bengal. The landowners 
 were, in fact, to have long leases, with a right of renewal at a 
 revaluation at the end of the leases. Their rights were to be 
 freely transferable, and completely regulated by law. No class 
 was to be arbitrarily invested with these rights, but an exact 
 survey and complete inquiry was to be made ; the parties best 
 entitled to proprietary rights were to be ascertained, and with 
 them the Government revenue was to be settled ; while at the 
 same time all inferior rights of every description were also to 
 be fully ascertained, described, and recorded. A very im- 
 portant provision was this, that where two or more parties, 
 superior and inferior, were found to be possessed of concurrent 
 rights in the same land, the Government ofticers were em- 
 powered either to settle directly with the superior, and to make 
 a sub-settlement between the superior and inferior holders, or 
 to pension off one party with a percentage (in compensation 
 for the rights which he had heretofore exercised), and to make 
 the settlement with the other. 
 
 The ryots were to be divided into old setded ryots having 
 a right of occupancy so long as they paid a fair rent, and ryots 
 who had acquired no such rights ; but the tests by which this 
 right was to be determined, and the standards by which the 
 rent was to be fixed from time to time, were not defined with 
 such accuracy as might have been desired. 
 
 There was, however, to be a general record of tiie rules and 
 customs of every village available for future reference. 
 
 Minute calculations were to be made of the value of 
 agricultural produce, and of the share of that produce to which 
 Government was entitled, and from these calculations money 
 rates were to be deduced, from which, after due allowance for 
 the expenses and profits of the proprietors, the Government 
 revenue was to be calculated and fixed. 
 
 I think that one error to some extent pervades these ex- 
 cellent provisions, and has embarrassed all the operations 
 founded on them — I mean the assumption that distinct pro- 
 prietary rights everywhere exist, which we have only to ascer- 
 tain and record. The fact is, that, as I have before tried to 
 ^how, such rights exist in a strong form only in certain parts 
 of the country ; in others they are but inchoate and rudimen- 
 tary ; in others they have fallen into decay and almost into
 
 158 SYSTEMS OF LAND TENURE [Campbell. 
 
 abeyance ; in some they hardly exist at all. The consequence 
 was that the function of the settlement officers has been to a 
 great degree not only to ascertain rights, but also to create a 
 class of rights which did not exist before, or, at any rate, to give 
 them a form and substance which they did not before possess. 
 Great scope was thus left for individual discretion ; and in the 
 absence of distinct provision for the cases in which that which 
 did not exist could not be ascertained, individual prejudices 
 were carried a long way in one direction or other. Much 
 difference of opinion, and many official battles have resulted. 
 I think it would have been better if the Government had 
 boldly recognised the fact that to arrive at complete private 
 property a great creation of rights was indispensable, and had 
 distinctly determined on whom and in what degree those 
 rights were to be conferred, what was to be given to great 
 Zemeendars, what to village headmen, and what to the ryots, 
 instead of leaving those questions to be fought out by the local 
 officers in every case. As it is, there has generally been (as 
 in most matters in which Englishmen are concerned) an 
 aristocratic party and a party of the people ; a party which 
 would give as much as possible to the rich and gentlemanlike 
 natives, the descendants of ancient rajas or sons of modern 
 farmers-general, and trust to them to rule the people ; another, 
 which, considering that it is our function to protect the people 
 from the tyranny of native rulers, would give as much as 
 possible to the people, and restrict the aristocracy to their 
 actual rights. Either course is possible under the law, for by 
 putting the people to the proof, and giving them no more than 
 they can prove a right to, all the rest falls to the aristocrats ; by 
 putting the aristocrats to the proof, and giving them no more 
 than they can prove a title to, there is ample room to give the 
 people very large rights. 
 
 On one point all administrators in all the provinces which 
 have been administered by the Bengal Civil Service (the name 
 is applied to the whole service, which comprises the separate 
 Bengal and north-Avestern branches), or by officers associated 
 with them under the Government of India, have agreed — 
 viz., that under no circumstances whatever will the Govern- 
 ment deal direct with the individual ryots, as in Madras and 
 Bombay. If there is no intermediate proprietor or office holder 
 of some kind who can be taken as such, and the villagers have 
 not a complete constitution enabling them to deal with the
 
 India.] IN VARIOUS COUNTRIES. 159 
 
 Government in a body through their representatives for a lump 
 sum to be paid jointly, a proprietor must be found or created. 
 To this day in Bengal the estates which have in any way 
 lapsed as Government property are sold to the highest bidder, 
 rather than settled with the ryots under a system which Bengal 
 officers do not accept as admissible. They cannot get rid of 
 the small tenures of Eastern Bengal, but will allow no others 
 where they can help it. 
 
 In the north-west provinces every village is settled in the 
 lump with some one. 
 
 For some years the proceedings under Reg. VII. of 1822 
 did not progress satisfactorily. It turned out that the ma- 
 chinery at the disposal of Government was quite inadequate to 
 the vastness of the work which had been undertaken ; and the 
 attempt to obtain reliable revenue rates by a calculation of the 
 value of produce and cost of production was found to be 
 fallacious and impossible. In 1833 the requisite machinery 
 was supplied by the employment of natives in posts hitherto 
 confined to Europeans ; and it was determined to calculate 
 the revenue of each village in the gross, with reference to 
 actual past receipts, and to allow the parties interested to dis- 
 tribute it under the superintendence of the settlement officers. 
 An energetic settlement school sprung up ; and in the course of 
 the following eight or nine years the whole of the north-west 
 provinces, yielding an annual revenue of some ^4,000,000, 
 was settled, and all rights and holdings of every kind were 
 voluminously recorded in great detail. 
 
 This settlement was mainly carried out under the superin- 
 tendence of Mr. Robert Mertins Bird, Mr. Thomason being one 
 of his most active subordinates ; but as it afterwards fell to Mr. 
 Thomason, during a long incumbency as Lieutenant-Governor, 
 to administer the system, it is popularly associated with his 
 name. 
 
 The battle between the officers who supported the claims 
 of the aristocracy and those who took the more popular view- 
 raged with intensity in the course of the settlement. Neither 
 one nor the other entirely prevailed ; but it is not to be denied 
 that the party which looked with disfavour on aristocratic 
 claims had eventually more support of authority than the other. 
 Many large Zemeendars were maintained in their })osition ; but 
 in many cases, where they had hitherto held from Government, 
 village proprietors were found to have claims to a sub-settlement
 
 l6o SYSTEMS OF LAND TENURE [Campbell. 
 
 under them ; and in some instances they were altogether set 
 aside with an allowance, and the settlement was made with the 
 sub-proprietors, under the provision for such cases which I have 
 mentioned. 
 
 The supporters of the aristocracy assert that in some places 
 village claims which had been long ago overridden and trodden 
 out, during the troublous times which preceded our rule, were 
 arbitrarily revived, to the prejudice of the great landlords, who 
 had exercised complete authority. 
 
 On the whole subject of this settlement it must, however, 
 be understood that the settlement officers and the Government 
 under Avhom they acted had no arbitrary powers ; the civil 
 courts were open to all, to contest and bring to a judicial 
 decision the justice of their awards ; and by the higher classes 
 especially that remedy was freely resorted to. 
 
 The proprietary rights having been determined, the principle 
 followed was to take two thirds of the then rental as Govern- 
 ment revenue, leaving to the proprietors the remaining third 
 and all future increase during the term of the settlement, which 
 was fixed at thirty years. A proprietor objecting to the assess- 
 ment fixed may decline the engagement, in which case the 
 village is let to a farmer, and he has a small percentage — a 
 good check on over assessment. The waste lands were demar- 
 cated with the village boundaries, and included in the settle- 
 ment. The survey was most minute. Every field, however 
 small, was measured and mapped, with the name of the 
 occupant and the rent. 
 
 Perhaps the part of the settlement which was least guided 
 by any uniform rules was that which distinguished between 
 hereditary occupancy ryots and tenants-at-will. The fact is 
 that there was no contest on the point. The ryots hardly un- 
 derstood the distinction, the (juestion of eviction never having 
 been raised ; and the Zemeenders did not press any claim to 
 evict so long as they got their rents. It was thus left to the 
 settlement officers to do very much as they liked on this point. 
 A practice sprang up — it is not clear how — to consider that all 
 cultivating ryots who had been in uninterrupted possession for 
 twelve years, without special contract, should be taken to have 
 a right of occupancy ; and in most districts that rule was fol- 
 lowed. No doubt, as matter of prescription, the holding of a 
 tenant-at-will or from year to year is not averse to his landlord, 
 and so far there was no legal justification for the rule. But in
 
 India.] IN VARIOUS COUNTRIES 1 61 
 
 the absence of any other rule, and in the absence of contest, 
 the rule was probably as good as any other which could have 
 l)een suggested, and had some support from the analogy of 
 judicial decisions in the case of the Bengal ryots. If the 
 ( "lOvernment, when conferring such great benefits upon those 
 who were made proprietors, had in so many words established 
 by law this rule in favour of the ryots, there would have been 
 no complaint ; but since the rights of the proprietors have been 
 established, and are taken for granted, it has in recent days 
 been said that the settlement officers gave occupancy rights to 
 ryots who had no sufficient title. 
 
 Nothing was declared as to the power of the Zemeendars 
 to raise the rents of occupancy ryots for any cause during the 
 term of the settlement. The power to realise rent by sum- 
 mary proceedings before the collector was restricted to the 
 recorded rent heretofore payable ; but it was eventually 
 decided in the civil courts that a Zemeendar was entitled, on 
 showing that causes independent of the exertions of the ryot 
 had raised the value of the land, to obtain by regular suit an 
 increase of rent. The course of procedure was, however, 
 difficult, the right hardly known ; and I think it may be said 
 that in practice the occupancy ryots held at unvaried rents, till 
 the introduction of the new rent law, to which I shall come 
 presently. 
 
 The result of the settlement of proprietary rights in the 
 north-west provinces was to create a great variety of land 
 holders of many different classes. I have said that many 
 large Zemeendars retained great estates. In some parts of 
 the country the settlement was made with cultivating village 
 communities ; but as the proper villages of this class are prin- 
 cipally in the territory about Delhi, since transferred to the 
 Punjab, I may leave them till I come to that province. In the 
 greater part of the north-west provinces the settlement was 
 most frequently made with small landholders and village pro- 
 prietors, a class intermediate between the great Zemeendars 
 and the true cultivating communities. The countr)' is chiefly 
 that in which the Rajpoots were at one time predominant; 
 and a large proportion of the villages were of that class, to 
 which I have before referred, where the original Rajpoot com- 
 munity or other similar body was considerably reduced in 
 numbers, and did not cultivate the whole village, but still 
 maintained a position of greater or less superiority over the 
 
 L
 
 1 62 SYSTEMS OF LAND TENURE [Campbell. 
 
 ordinary ryots by whom they were surrounded. The proprie- 
 tary rights of these families or groups of famihes were very 
 generally recognised. The system is that they cultivate the 
 lands in their own possession, and collect on common account 
 the rents payable by the other ryots. The common receipts 
 are applied to the payment of the revenue, and any deficiency 
 is supplied by a rate on the lands of the proprietors. Where 
 a small family holds, and the rents of the ryots exceed the 
 revenue and expenses, the surplus is similarly divided according 
 to shares. 
 
 In the many villages where neither great Zemeendars nor 
 old proprietary families established claims, it being necessary 
 to find some proprietors, a good headman or solvent farmer, or 
 some other person of some sort, was established as proprietor. 
 
 The facility of sale and transfer afforded by the establish- 
 ment of saleable property and authentic register of rights, vnth 
 the frequency of compulsor}' sales through the civil courts, have 
 brought into possession of many landed properties men of the 
 mercantile and capitalist classes. These men are in Northern 
 India very enterprising, and some of them have really done 
 much to plant ryots and develop the resources of the country 
 in the native way. 
 
 The normal tenure of the north-west provinces may be 
 said, then, to be that of moderate proprietors, of fair position 
 and character, with many ryots under them who possess a right 
 of occupancy at a fair rent. The security of tenure resulting 
 from the settlement gave a great impulse to agriculture ; there 
 was peace and prosperity ; the country flourished ; property in 
 land acquired a high value ; and for a long period the settle- 
 ment of the north-west provinces was held out as the perfection 
 of Indian management. 
 
 In a great degree these praises were well deser\'ed ; yet 
 there are some drawbacks. The immense records, pushed on 
 rapidly to comjiletion, were sometimes found to contain a good 
 many errors, and required some revision and correction. Con- 
 siderable inequalities no doubt occurred in the assessment of 
 the revenue. The main drawbacks are, however, I think, the 
 following : — 
 
 The establishment of ])roperty gave facility for obtaining 
 credit, while the facility of resort to sale of landed rights in 
 satisfaction of debts, and the strictness of the collectors' 
 demands, rendered alienations very frequent. Those who
 
 India.] IN VARIOUS COUNTRIES. 1 63 
 
 most suffered in this way were the somewhat imprcvidert 
 classes — the old Rajpoot and such-like families — who vve'e 
 constantly sold out. If there was often economic gain in this 
 process, there was political weakness, for the old proprietors — 
 the most martial class in the country — remained on the land 
 in great numbers, reduced to the position of needy and dis- 
 contented cultivators, holding under those whom they con- 
 temned as mere shopkeepers, and who were only kept in their 
 position by the strength of British power. 
 
 Then, as the old headmen and others, who had been made 
 proprietors of so many villages on account of their merits and 
 prominence, died out, their properties often fell to people who 
 had not their capacity ; and they have been much subdivided 
 under the laws of inheritance. The tendency in many of the 
 small estates which at first seemed all that could be desired 
 is, 1 think, to the gradual creation of a small proprietary class, 
 above cultivating themselves, and not efficient as landlords. 
 
 Finally, as land became valuable and competition arose, it 
 was found that the position of the ryots had not been suffi- 
 ciendy defined. 
 
 The north-west provinces were the principal scene of the 
 mutiny. The Sepoys were almost all Hindostanees. For 
 several months the British power was, it may be said, absolutely 
 and wholly extinct throughout the length and breadth of these 
 provinces. Anarchy, of course, resulted ; it could not have 
 been otherwise. To expect that a grateful people would keep 
 the country for us under such circumstances, when they had 
 seen their British masters slaughtered and driven away, would 
 be too much. The old robber tribes resorted again to robbery; 
 the strong took advantage of the weak ; old feuds were fought 
 out ; eveiy man's hand was against his neighbour. The judicial 
 records containing obnoxious decrees were in some instances 
 burnt. Yet I can speak with some authority when I say that there 
 was nothing like a general popular war against ourselves ; for I 
 marched the whole length of the provinces as civil commis- 
 sioner with the first column which came down after the fall of 
 Delhi, and can say that there was not a symptom of popular 
 resistance or hostility. With the exception of opposition from 
 one or two considerable chiefs and Zemeendars, we everywhere 
 walked into the villages and met the people as if nothing had 
 happened. The moment our military power was re-established, 
 they quieted down as a matter of course. While, then, thi
 
 164 SYSTEMS OF LAND TENURE [Campbell. 
 
 paper is designed rather to state facts than to offer opinions, 
 I cannot but testify, as matter of fact, to the want of foun- 
 dation for the suggestion at one time put forward in some 
 quarters, that the events of the mutiny showed the unsound- 
 ness of the settlement system of Northern India. On every 
 occasion of great calamity there is a disposition to say that 
 whatever is, is wrong, and it was so on this occasion. It has 
 been sometimes said in the public prints that the people took 
 the opportunity of rushing back to allegiance to their old 
 masters, the great Zemeendars ; but no particulars of places 
 or circumstances are given, and the statement is quite without 
 foundation. Putting aside Oude, which had only been a 
 few months annexed, and to which I shall presently come, 
 I venture to say that great Zemeendars, who had long 
 ceased to exercise their functions, nowhere regained authority. 
 It is true that, in this time of anarchy, good Zemeendars 
 of large means and considerable power were able to main- 
 tain a nearer approach to order than existed elsewhere ; 
 but, on the other hand, several men of that class took the 
 opportunity ol rebelling. What did very generally happen 
 was this, that the ousted village Zemeendars, the families 
 and communities of the arm-bearing castes, who had been 
 recognised at the settlement but had been sold out (prin- 
 cipally by the civil courts), took the opportunity of driving 
 away the unmilitary purchasers, and resuming what they still 
 considered to be theirs. This it was which was mistaken for 
 a voluntary return of the people to the dominion of their 
 ancient chiefs. 
 
 While, then, I have said that the north-west settlement is 
 not, in all respects, the piece of absolute perfection which it 
 was at one time represented to be, on the other hand I say 
 that nothing occurred in the mutiny to give the slightest 
 ground for suggesting that it had failed or was founded on 
 wrong principles. It was only made apparent that the sub- 
 sequent action of the courts, in too summarily alienating. the 
 rights of the village proprietors who had been properly recog- 
 nised at the settlement, was a source of political weakness ; 
 and that lesson is one which has been borne in mind.
 
 ltiDiA.2 IN VARIOUS COUNTRIES. 1 65 
 
 THE PUNJAB. 
 
 Much of the Cis-Sutlej Sikh country, and the Jullunder 
 Doab, were annexed in 1846, and the Punjab became British 
 tenitory in 1849. To these were added the Delhi territory, 
 and the whole form the present Punjab Government. The 
 Punjab was settled on precisely the same principles as the 
 north-west provinces. Lord Lawrence was bred a settlement 
 officer under Mr. Bird, and the system was fully introduced. 
 The differences caused by local circumstances are chiefly the 
 following : — 
 
 Although tliere are found in the Punjab, as in all pro- 
 vinces settled under Reg. VI L of 1822, a considerable variety 
 of tenures, the majority are the complete village communities 
 which I have described in the first part of this paper. These, 
 then, may be taken as the normal Punjab type, on which 
 the Punjab system is founded. The proprietary rights of the 
 communities are fully acknowledged, and the settlement is 
 made with them, each village undertaking the payment, 
 through its re[)resentative council of elders, of the revenue 
 assessed upon it, which again is distributed upon the indivi- 
 dual members, in proportion to the land held and cultivated 
 by them. Thus we recognise the i)roprietary right of the 
 mass of the freemen — constituting, 1 should say, in most cases 
 an actual majority of the population, and certainly almost the 
 whole strength of the country. Practically, the settlement 
 made with a community is very nearly ryotwar, with the 
 difference that (iovernment deals with the united body, and 
 not directly with each individual separately. 
 
 Most of the Punjab people are far better cultivators and 
 much more provident than the Rajpoots and similar tribes, 
 and the Government officers have been more considerate ; 
 hence the sale of rights, in consequence of the non-payment 
 of revenue, is almost unknown. The revenue is i)aid with 
 extreme punctuality. 
 
 Another most important distinction, as compared with the 
 north-west provinces, is this, that in the first instance the 
 unlimited interference of civil courts administering technical law 
 on the principle of "fiat justitia ruat ccelum " was not per- 
 mitted. In those days it was considered tliat in the new 
 countries, called non-regulation, the ruling authorities had, in
 
 1 66 SYSTEMS OF LAND TENURE [Campbell. 
 
 the absence of specific law restraining them, something of the 
 old despotic power of the rulers to whom they succeeded. 
 There were no independent judicial tribunals. The executive 
 officers were vested with judicial powers ; and there was at 
 most only an appeal from Philip drunk to Philip sober. It 
 was distinctly laid down as the rule of the country that landed 
 property was not liable, as a matter of course, to summary 
 sale in satisfaction of simple debts, such sales being only 
 permitted with the special sanction of the higher authorities ; 
 and that was only accorded on a full consideration of the 
 circumstances of the tenure andiof the case, v/hen it was con- 
 sidered that the course was both just and expedient. These 
 conditions being made fully known, no injustice was done to 
 those who chose to lend money on such security as they 
 could get. There was also in all cases of sale of individual 
 rights, a right of pre-emption in the other members of the 
 same village community. 
 
 A large Sepoy army was quartered in the Punjab in 1857 ; 
 and all the regiments which were not disarmed in time and 
 guarded almost as prisoners broke into mutiny and rebellion. 
 It may be admitted that the Punjab people had no love for 
 the Sepoys. But still most of the European troops having 
 marched to Delhi, an almost complete opportunity was afforded 
 to a warlike and independent people only a few years con- 
 quered. It is impossible to suppose that if there had been 
 discontent it must not have then burst forth. Yet it is well 
 known that the people not only did not rebel, but gave us the 
 most active assistance. We put arms in their hands ; they 
 fought the rebel Sepoys ; the villagers hunted them down ; 
 troops hastily organised in the Punjab largely contributed to 
 take Delhi. It may then very confidently be asserted that the 
 system j^ursued in the Punjab had given satisfaction to the 
 people. 
 
 It is constantly said, as matter of theory, by those who 
 follow other systems, that the joint responsibility which the 
 system of joint engagements involves must be bad ; that it is 
 a system which makes the good pay for the bad, the provident 
 for the improvident. But, in fact, this is not so. The assess- 
 ments are calculated to give, and do in fact give, much value 
 to the land ; if a man breaks down, others are always found 
 most ready to take his land and pay up his arrears ; it is 
 generally not even necessary absolutely to transfer the land of
 
 India.] IN VARIOUS COUNTRIES. 1 67 
 
 the defaulter (although this may be done) ; the feeling of the 
 country is rather in favour of transfer in the way of native 
 mortgage, which gives the defaulter a sufficient period to 
 recover his inheritance, on paying the amount advanced, if he 
 can obtain the means by military service or otherwise. The 
 theory of the northern settlement system gives every share- 
 holder the right to have his land and his liabilities partitioned, 
 if he likes to incur the necessarj' expense ; but the privileges 
 and advantages of membership of these communities are such 
 that the shaieholders seldom seek to carry the division farther 
 than the partition of cultivated lands, which is the;essence of 
 the system. In course of time we shall probably come to 
 entirely sepaiate properties ; but there is no need to hurry the 
 process.* 
 
 Even if it be conceded that there might be some economical 
 objection to the system of joint tenure, the main point is this, 
 that by the indigenous system of joint engagements the Govern- 
 ment is enabled at once to deal with the body of the cultivators, 
 and to acknowledge and enlarge their rights, to the satisfaction 
 of the people and advantage of the administration. It can do 
 this without incurring the much more serious evils and draw- 
 backs which have always been found to attend the attempt of 
 a great foreign Government to deal separately with each petty 
 holder, till, at least, many years and much experience have 
 enabled it to do so in a way which is impossible in the first 
 generation under our rule. 
 
 I will not delay to enter into farther details ; but I believe . 
 it must be admitted on all hands that in practice the Punjab 
 system has been eminently successful. No one can have 
 passed through the country without feeling that. 
 
 THE RYOTWAR SYSTEMS OF MADRAS AND BOMBAY. 
 
 The system known as the " ryotwar " is that of dealing 
 separately with each ryot without joint responsibihty. It has 
 been mentioned that a part of the Madras territory was per- 
 
 * The most curious proof that the natives do] not necessarily prefer the 
 separate to the joint system is found in the fact, pubUshed in some of the 
 official papers of the Madras Presidency, that in that country villages were 
 found which for half a century had submitted to the farce of a Government 
 assessment on each individual, but had year by year lumped the individual 
 assessments together, and redivided the total in their own way among the 
 members of the community.
 
 l68 .SYSTEMS OF LAND TENURE [Campbell. 
 
 maneiitly settled with the great Zemeendars. In another part, 
 on the western coast, there are peculiar tenures nearly amount- 
 ing to complete property; but my space will not admit of 
 going into details ; and, in treating of Madras, I shall keep to 
 the normal system of the greater part of the Madras territory, 
 the ryotwar. 
 
 As soon as the orders for adopting the Bengal system were 
 relaxed, the Madras authorities returned to their own system 
 of management. They considered the Zemeendars and 
 Polygars to be no better than robbers and tyrants, from whom 
 we had delivered the people. Most of these men had been 
 swept away in the wars of our early days, and those who 
 remained were put aside. The Madras authorities not only 
 dealt direct with the people, but, insisting on strict economic 
 justice in every individual case, they rejected the old system of 
 joint village responsibility. 
 
 It is singular how much Englishmen, educated in the same 
 way, and dealing with very similar institutions, have fallen into 
 different grooves when separated in different localities in a 
 foreign country. Perhaps no two sets of men bred in different 
 planets could have diverged more widely than Bengal and 
 Madras civilians on the land question. The fact seems to be 
 that the country to which the rule of India has fallen is that of 
 all the countries of Europe in which there is least that is 
 analogous to Oriental institutions. And Enghshmen, set down 
 amid scenes entirely new to them, are very amenable to local 
 influences. Local schools being once established, men isolated, 
 and coming little into personal contact with those following 
 other systems, maintain their own views with a persistence and 
 intolerance which we do not find when men are brought more 
 together. 
 
 It has been said that the different schools of Bengal civilians 
 agree in this, that under no circumstances shall the Government 
 (leal direct with the individual ryots. The Madras civilians, 
 on the other hand, have made it the root and foundation ot 
 their faith that under no circumstances shall the Government 
 deal with the land in any other way. Much of the country 
 was really in that state which suggested the ryotwar system, 
 there being none who could claim the character of proprietors, 
 unless they had been created, as would have been the case in 
 Bengal or the north-west. But it is abundantly clear, from 
 the descriptions of the early administrators, that in some parts
 
 India. J I X VARIOUS COUN'IRIKS. I 69 
 
 of the south there were village communities just as completely 
 constituted as those of the Punjab, and well accustomed to 
 pay the revenue in the lump, and manage their own affairs. 
 The system was rejected as unjust and inexpedient ; and, by 
 the force of the Government, the communities were generally 
 dissolved into the individual units, each man being separately 
 assessed for the land which he held; although in some instances 
 the villages maintained their system in spite of the Government. 
 
 In the early years of vigorous ryotwar management, a 
 measurement and classification was made, in native fashion, of 
 the whole lands of the country ; every field was recorded, with 
 the Government dues payable for it. Every ryot in possession 
 is secured so long as he pays the revenue so assessed. He 
 may give up any field if he likes, and may take any unoccupied 
 field. For long, a certain distinction was drawn between the 
 meerasdars or hereditary and proprietary ryots, who had more 
 fixed and positive rights, and the simple ryots, whose tenure 
 was rather one of permission to hold than an acknowledged 
 property ; but, by a system of levelling up, this distinction may 
 be said to have been eventually effaced in the ryotwar countries, 
 and the ryots' holdings have become complete property so long 
 as the revenue is paid. 
 
 A very important difference between a ryotwar system and 
 the others which have been desciibed is this, that in the ryotwar 
 provinces all the waste and unoccupied lands are considered 
 to be Government property, and, being separately assessed in 
 fields or survey plots, are available to the first comer, native of 
 the village or stranger, who chooses to take them upon the 
 prescribed teniis. Whether the settlement be made with the 
 Bengal Zemeendar or with the Punjab village community, the 
 lump sum assessed includes all the lands of each village area, 
 cultivated and uncultivated; andthe proprietors may make their 
 own arrangements for cultivating the waste without increase of 
 revenue, except when there is a new settlement. In Madras 
 and Bombay it is not so ; there for every new field cultivated 
 the Government has an additional revenue. Where, as is still 
 the case in some i)arts of Madras, the revenue is payable in the 
 old native fashion (a proportion of the grain crop, varying rates tor 
 different kinds of crops, and so on), the Government also benefits 
 by the increase of jjrices and spread of valuable products. 
 
 The advantages and disadvantages of the ryotwar system 
 have been made very apparent in Madras. There is no tyranny
 
 17° SYSTEMS OF LAND TENURE [Campbell. 
 
 of grasping proprietors over poor r^'ots. The revenue is 
 adjusted according to circumstances. When peace brought 
 down war prices, it somewhat fell oft"; since the expenditure of 
 British capital, and other recent circumstances, have enhanced 
 prices and increased resources, it has greatly risen. But too 
 much was attempted in the first instance. The survey was 
 very rough, and the rates were certainly too high ; so that there 
 has not, till quite recently, been any sufficient margin to enable 
 the ryots generally to attain an easy and independent position. 
 
 The survey and assessment have not been revised, as was 
 necessary. In the greater part of the presidency there is still 
 nothing more recent than the days of Sir Thomas Monro. The 
 assessment once fixed was never altered ; and it has frequently 
 happened that the best fields remained uncultivated, as being 
 too highly assessed. The chief evil is this, that it is impossible 
 to work a most complicated system, and to collect from many 
 hundreds of thousands of ryots a revenue, expressed in a mul- 
 titude of items, withuot the intervention of a host of native 
 subordinates. The revenue could never be exactly collected ; 
 the grant of remissions to individuals who can show some excuse 
 for non-payment is still a recognised part of the system ; and 
 as it is totally impossible that the collector can really master 
 every such case, many abuses necessarily result. 
 
 In Bombay, when the territoiy was acquired from the 
 Marattas, Mountstuart Elphinstone was altogether in favoiu: of 
 the village system ; but eventually the Madras pattern of ryotwar 
 management was that more generally adopted. Subsequently, 
 when the successful settlement of the north-western provinces 
 liad called attention to these matters, a knot of able and 
 energetic Bombay ofiicers devised an improved ryotwar system, 
 which has been very successfully carried out. A new and 
 exact survey and valuation is made by much improved methods. 
 The land is permanently marked out by substantial boundary 
 marks in convenient fields or small blocks, and the revenue is 
 systematically assessed on each in money, and fixed for a period 
 of thirty years. The rates are extremely low — many people say 
 too low — but that is now generally considered to be a fault on 
 the right side ; and although there was at first a disposition to 
 rush from old lands to lightly-assessed new ones, and to take up 
 more than a man could properly cultivate, I believe that, the 
 great demand for cotton and consequent flow of money largely 
 aiding, there has been a very great increase of substantial and
 
 India.J IX VARIOUS COUNTRIES. 171 
 
 pemianent cultivation and a great development of agricultural 
 enterprise. A man may still give up each field at his pleasure, 
 or take any new one that is unoccupied ; but all land in 
 possession is declared to be complete and absolute property, 
 and has acquired such a value that it is now seldom surrendered. 
 The rates being so low, the revenue is punctually exacted, and 
 the tenures are held liable for its payment. 
 
 I believe that, sufficient pains being taken, and a sufficient 
 machinery employed, and circumstances favouring, the ryotwar 
 system has really been worked out to a very successful issue in 
 Bombay, and that the revenue has been benefited as well as the 
 people.* 
 
 The mode of assessment was originally too artificial and 
 minute; but I suppose that in practice the great object has 
 been to make a reasonable assessment in some way, at rates so 
 low that minor inequalities are comparatively immaterial. The 
 Bombay territory is small : the officers employed were zealous 
 and energetic ; and the object aimed at has been eff'ected. It 
 must, however, be understood that the thing has not been done 
 without something of the same lump system to which objection 
 is taken as regards the practice of Northern India. The unit 
 is not the village, but a smaller unit ; still that unit is to some 
 degree arbitrary and artificial. The assessment is not imposed 
 on each actual petty field, but on an artificial field, often ten or 
 twelve acres or more. When there are several holders in this 
 block, a certain joint responsibility is imposed. If one culti- 
 vator surrenders his portion, he who remains must take the 
 whole or give up the whole. And he is not permitted to 
 subdivide it again for revenue purposes. 
 
 Subject to the undivided responsibility for each revenue 
 block, there is no prohibition of subdivision by inheritance, &c., 
 as among the people themselves ; but there being much facility 
 for taking up new land on the one hand, and great demand for 
 labour for railways, manufactories, &c., on the other, I under- 
 stand that the tendency has been rather to consolidation, and 
 not to subdivision of farms, taking the countrj' generally. I am 
 told that there has not been much sub-letting, and that the 
 evils sometimes said to attend small properties have not yet 
 been largely experienced in Bombay. 
 
 * I am compelled to be brief as regards Bombay and Madras, but I 
 have given fuller details of the systems there followed in " Modern India," 
 chap. vii. — G. C.
 
 172 SYSTEMS OF LAND TENURF. [Camit.ki.i.. 
 
 My visits to Bombay districts have impressed me very 
 favourably. I can say that all that we can hear from the people 
 of the adjoining villages of the central provinces goes to show 
 that the Bombay system is extremely popular. And the highest 
 authorities connected with the Bombay Administration assure 
 me that the social results are so far altogether good. 
 
 The success of the Bombay system led to measures for a 
 similar revision and reconstruction of the ryotwar system in 
 Madras ; but the same successful result has not yet been 
 obtained. The reasons of this failure are not clear ; this only 
 is certain, that the territory is larger, and the task heavier than 
 in Bombay. Madras men used to say that it would be very 
 easy to give as much satisfaction if the revenue were as com- 
 pletely sacrificed as it had been in Bombay ; but since the 
 Bombay revenue has been recouped, that argument can hardly 
 hold. I suspect that a dislike servilely to follow the Bombay, 
 or any other pattern, has something to do with it. And I 
 should rather think, from the papers I have seen, that the 
 Madras officers have fallen into the same error which at first 
 rendered Reg. VII. of 1822 inoperative, that is, they attempt 
 too minute calculations of produce, and too scientific deductions 
 of rates, as the basis of their settlements, instead of cutting the 
 knot by a rough and ready assessment at rates so low as to be 
 safe, some inequalities notwithstanding. I have not been in 
 the Madras territories since 1864, and Madras revenue affairs 
 have always been a kind of sacred mystery to the outside world, 
 the whole system is so full of native complications, and all the 
 reports so bristle with hopelessly unintelligible technicalities. 
 The popularised settlement reports which have been elsewhere 
 so much in vogue, have not been generally imitated in Madras. 
 The official documents are such that I, an expert of many pro- 
 vinces, shrink from them : an ordinary Englishman might as 
 well attempt to read an arrow-headed inscription. 
 
 The Madras authorities used to be loud in praise of their 
 own system, but of late years they seem to have run to the other 
 extreme of pessimism. 
 
 After years of discussing and minuting, a resolution intended 
 to inaugurate a new survey and settlement was recorded by the 
 Madras Government, on 14th August, 1855. According to 
 this document everything was bad. With little exception, no 
 part of the presidency had been in British possession for less 
 than half a century, yet it stood alone among British provinces,
 
 India.] IN VARIOUS COUNTRIES. 1 73 
 
 as that in which there had been no proper survey and settlement. 
 The old survey was wholly detective, a mere measurement and 
 valuation ^ made in haste by ])ersons wholly ignorant of any 
 correct methods of measuring, and under no effective control. 
 There were no maps and no permanent boundaries. The 
 records, such as they were, had been imperfectly preserved, and 
 in many instances had been grossly tampered with. There 
 were many districts in which there had been no pretence of 
 measurement, and where at that day " the land revenue demand 
 is based merely on the unchecked statement of the Curnum, 
 who has thus vast opportunity both of making exactions on the 
 ryots, and in collusion with them of defrauding Government." 
 
 The general result of the system was stated to be that not 
 only was the revenue injuriously affected, but the poorer and 
 less influential classes suffered for the benefit of the wealthy ; 
 to all, both rich and poor, property was rendered uncertain, and 
 they were placed in dependence on grasping and unscrupulous 
 men, and diverted from the pursuits of honest industry. 
 
 The moral of this dreadfully black picture was that the 
 Supreme Government must give the money necessary for a new 
 survey and settlement ; but still there was too much truth in it ; 
 and the new settlement was resolved on. Elaborate details 
 regarding the system to be followed are to be found in the papers. 
 
 The Madras Government wished to settle the revenue at 
 money rates, calculated on the average prices of produce, 
 which were to be revised every seven or ten years ; but the 
 Government at home decided that it would be better to fix 
 low money rates once for all, and to make the settlement at 
 these rates for thirty years. 
 
 When I visited the Madras presidency in 1S59, Sir C. 
 Trevelyan being Governor, the settlement was being actively 
 discussed, and it was apparently in train to be fully carried out. 
 In 1864 I could not find that anything substantial had been 
 done, and since that time I had been unable to learn any- 
 thing tangible regarding the progress of the settlement. On 
 applying for information, I have now received, as the latest 
 intelligence, a paper which seems to put things in a very un- 
 favourable light. It is a report made in the present year, 1869, 
 to the Board of Revenue by an officer specially deputed to 
 inquire into the matter, and himself formerly deputy director ot 
 settlements. The Board simply request the director of settle- 
 ments to favour them with his views, and I suppose that it is a
 
 174 SYSTEMS OF LAND TENURE [Campbell. 
 
 tolerably reliable document. It appears that, excepting the 
 districts where a new system of irrigation rendered a resettle- 
 ment indispensable, scarcely any settlements have yet been 
 completed. A conference, it is stated, was held on settlement 
 subjects in Sir Charles Trevelyan's time, in 1859, but, says the 
 report, "The result of the conference was never officially 
 notified ; for Sir Charles Trevelyan soon after left the country, 
 and from that day to this the Settlement Department has 
 continued to work without any specific instructions, on a sort of 
 semi-organised footing, doing a little here and there,- in an 
 uncertain and unconnected manner." That is a very extraor- 
 dinary statement. The report goes on to say, that as things 
 are managed the system still works badly, " The bulk of the 
 people are paupers. They can just pay their cess in a good 
 year, and fail altogether when the season is bad. Remissions 
 have to be made perhaps every third year in most districts. 
 There is a bad year in some one district or group of districts 
 every year." 
 
 It is stated that the Government have gradually abolished 
 a vast number of vexatious and petty native items of assess- 
 ment, but that there are still nineteen different systems in the 
 nineteen districts, and many anomalies ; e.g., " A man grows 
 tobacco in his garden, and is charged eighteen rupees an acre ; 
 while his neighbour grows millet, and is charged three rupees 
 an acre. Single crop lands are charged double crop rates, and 
 double crop lands single crop rates. Two or more rates of 
 assessment are imposed on different parts of the same field. 
 Certain lands in this village are charged eight rupees, and pre- 
 cisely similar lands in a neighbouring village, four rupees an 
 acre." These and many other anomalies are said to exist ; 
 but it is asked. Are the advantages of a new settlement worth 
 the outlay of a million sterling on establishment and working 
 expenses, and a certain loss of revenue which it will take time 
 to recoup ? In fact, says the reporter, two millions must be 
 spared to carry out the settlement, or the system must be 
 abandoned. 
 
 I believe that, notwithstanding the pessimism of the reports 
 which I have quoted, there has been of late years a considerable 
 increase of prosperity and wealth in Madras. Still the failure 
 to put the great interests connected with the land on a proper 
 footing seems very bad. That is no consequence of the ryot- 
 war system ; on the contrary, the adoption of that system is
 
 India.] IN VARIOUS COUNTRIES. 175 
 
 just what renders a minute survey and valuation much more 
 indispensably necessary than in provinces where we deal with 
 the people in a body, or through intermediate proprietors, 
 and leave them to settle their own affairs. The omission to 
 carry out a proper system can only be considered to be an 
 administrative failure. 
 
 RECENT LEGISLATION AND SETTLEMENTS. 
 
 I have explained the very good footing on which the 
 Bengal ryots of the time of the permanent settlement were put 
 by the laws of that day, record only being wanting ; but I have 
 scarcely alluded to the ryots who came into land subsequent 
 to the settlement. In truth, till recent legislation dealt with 
 the whole subject, their position was very obscure and doubtful. 
 The Regulations giving the Zemeendars power to deal with the 
 waste land would have enabled them to introduce, in so much 
 of their estates, an English contract system ; to have retained 
 the complete and absolute property in their own hands — to 
 have built and improved, and let the improved lands to 
 tenants. But, in fact, they did nothing of the sort. Exactly 
 the same thing happened which has happened in Ireland — that 
 is to say, the Zemeendars and those holding under them per- 
 mitted ryots to reclaim the land, settle themselves, put up 
 houses, and do all that was required for agricultural purposes, 
 on the understanding that when it was reclaimed they were to 
 pay the usual rents. 
 
 There was, however, this material difference from the state 
 of things in Ireland, that no circumstances arose leading the 
 Zemeendars to think of attempting to evict tenants. And the 
 mass of the old tenants not being liable to eviction, those who 
 came in subsequently, on similar customary terms, probably 
 considered that they also were not to be evicted so long as they 
 paid their rents. In course of time, indeed, the distinction 
 between the old and new ryots would necessarily become very 
 difficult to trace ; it became hard to say who had held from 
 before the settlement, and who had come in subsequently, the 
 apparent tenure being precisely the same. At any rate, the 
 question of occupancy rights was not raised between the 
 Zemeendars and ryots, both parties being content that things 
 should remain as they were. Under a legal system where 
 the greatest force is given to custom, it was at least doubtful
 
 176 SYSTEMS OF LAND TENURE [Campbell. 
 
 whether it might not be held that, according to the custom and 
 understanding of the country, any man who occupied land as a 
 resident ryot, and invested his labour and money in it, ipso 
 facto acquired a right of occupancy subject to the customary 
 rent. 
 
 The old Regulations, in fact, seem hardly to contemplate 
 any other than the ordinary native method of managing these 
 things ; and there are in them expressions which would seem 
 to imply that no more is to be taken from any class of ryots, 
 old or new, than the customary rates of the neighbourhood. 
 Special contracts would probably override these general pro- 
 visions ; but it is certain that in the whole course of litigation, 
 from 1793 to 1859, there was no case in which any ryot's rent 
 had been raised by the agency of the courts, on any other 
 ground than that it was below the customary rates of the 
 neighbourhood, and should be raised to that standard. The 
 logical inference would be that as there was no mode ot 
 raising the general established rates of a locality all round, and 
 individual holdings could not be raised beyond those rates, 
 they must have remained unaltered all along. The fact, 
 however, is not exactly so. Zemeendars, like other native 
 rulers, have a good deal of irregular power ; as prices rose and 
 expenses increased, they had some equitable claim to an in- 
 crease of rent. Cesses and extra items were added to the rent- 
 roll : then on special ocovsions new measurements were made, 
 and claims of one kind and another were sometimes compro- 
 mised by an agreement to add something to the previous rates. 
 Thus in an irregular way, but more or less by mutual consent, 
 the old Pergunnah rates were changed into very various local 
 rates, and the tendency was always towards increase ; there 
 being in this respect little distinction between ancient and 
 modern ryots, except in the case of the formally acknowledged 
 holders of perpetuities at a quit rent. Once the body of the 
 ryots had submitted to any increase, individuals could be made 
 to pay the local rates thus established. Still there was no 
 general system of rapid enhancement, and, as I have already 
 said, the increase of rents did not keep pace with the increased 
 value of the land. 
 
 A few years ago it was found that the increase of knowledge 
 and of the mercantile spirit were bringing about a state of 
 things when it would be no longer safe to rely on the undefined 
 customs which were daily becoming more varied and indistinct,
 
 India.] IN VARIOUS COUNTRIES. 1 77 
 
 and that a revision of the Bengal rent laws was necessary'. In 
 the north-west provinces, also, it was felt that the settlement 
 proceedings had left the rights and liabilities of the ryots in a 
 somewhat inaccurate state. And it was determined to pass a 
 new law applicable to both provinces. This was the famous 
 Act X. of 1859, by which the respective rights of landlords and 
 ryots are now regulated. 
 
 The first provisions are applicable to the permanently settled 
 provinces only, and do little more than confirm the rights of 
 tlie old ryots conferred on them by the original laws. Ryots 
 who have held from the time of the permanent settlement at 
 fixed rates of rent which had never been changed are entitled 
 to hold at those rents for ever. The effect is that those of the 
 ancient ryots who have clung to their rights and submitted to 
 no increase keep them still ; but those who have, as matter of 
 fact, submitted to any increase, just or unjust, fall down into a 
 lower class, to be presently mentioned. 
 
 Then, to get over the want of record and the difficulty ot 
 impossibility of proving an ancient invariable holding, it was 
 provided that when any ryot can prove that his rent has not 
 been changed for twenty years, it shall be presumed that the 
 land has been held at the same rate from the time of the per- 
 manent settlement, unless the Zemeendar shows to the contrary. 
 This is by no means giving perpetuity to all ryots of twenty years' 
 standing, but is a mere adjustment of the burden of proof.. 
 There has been a great disposition to be very strict in the 
 proof required of the twenty years' holding at a fixed rent. It 
 has not been thought enough that some sort of proof should be 
 given, and it should be accepted if uncontradicted by evidence 
 on the other side. Very specific and exact proof has been 
 required, which is not always forthcoming, the provision not 
 having been anticipated, and there being no official record. 
 This deficiency has often been met in native method by forging 
 the receipts which were wanting. The result, I fear, is that it 
 very much depends on the idiosyncrasy of the individual judge, 
 whether claims to hold at a fixed rent are admitted wholesale 
 or rejected wholesale ; and there is a painful uncertainty as to 
 every tenure which has not passed the ordeal of the courts. 
 
 These, however, are judicial difficulties ; the general equity 
 of the law is so far not disputed. The provision which has 
 since led to much discussion, and to a cry that the rights of 
 landlQ ds have been confiscated, is the next, which declares a
 
 178 SYSTEMS OF LAND TENURE [Campbell. 
 
 right of occupancy at a fair rent (subject to enhancement from 
 time to time) to belong to every ryot who has held land for 
 a period of twelve years and upwards, with two important 
 exceptions. First, the law is not to alfect the terms of any 
 wTitten contract, so that a man holding a terminable lease, 
 which reserves a right of re-entr}-, does not benefit by the pro- 
 vision. And second, it does not apply to the "seer" or 
 demesne lands of the proprietors. Lands which have once 
 borne that character, although let for the time, can be resumed 
 at any time. 
 
 Tenants having a right of occupancy are liable to enhance- 
 ment of rent on the following grounds, and on these only : — 
 
 That the land is found by measurement to be in excess of 
 the quantity paid for. 
 
 That the rate of rent is below the prevailing rates paid by 
 the same class of rj'ots for similar lands in the places adjacent. 
 
 That the value of the produce or the productive powers of 
 the land have been increased otherwise than by the agency or 
 at the expense of the ryot. 
 
 Facilities were given to the Zemeendars to put in force 
 claims under these provisions in special revenue courts of easy 
 access. 
 
 The following incidents of the occupancy tenures are 
 established by law or by judicial decisions. So long as the 
 ryot pays the rent he may do what he likes with the land (pro- 
 vided he does not absolutely destroy it) ; and may sublet it 
 temporarily. It also descends by inheritance, and there is no 
 actual restriction upon subdivision as regards the rights of the 
 heirs among themselves. But the Zemeendar is not bound 
 to recognise any subdivision; so long as he does not accept 
 separate tenants he is entitled to hold the whole tenure liable 
 for the whole rent, and can sell the tenure or eject the ryots 
 when any part of the rent is in arreai\ The question whether 
 the tenures are or are not saleable is left to be deteiinined by 
 the custom of each district or locality. 
 
 The right of occupancy having been secured to so large a 
 body of the tenants, there is no provision for compensation for 
 improvements ; but an outgoing tenant is entitled to carry 
 away everything which he has placed on the land if he can 
 remove it, and generally either sells or removes the woodwork 
 in his house, and anything else not actually sunk in the soil. 
 
 It has been asserted that the twelve years' rule of occupancy
 
 India.] IN VARIOUS COUNTRIES. 1 79 
 
 is an arbitrary rule, borne out by no native law or custom ; and 
 there is some truth in that statement. But then very much 
 was to be said for the still wider rule which would have given 
 every resident ryot a right of occupancy, as his due under the 
 custom and an implied contract. In fact, the law, as originally 
 drawn for Bengal, gave all resident ryots the right to hold at 
 the prevailing rates. It was, however, pointed out by the 
 authorities of the north-west provinces, that in modern times, 
 since the cessation of the external pressure which in troubled 
 times made every man necessarily reside in a village as a 
 member of a community united for many purposes, the distinc- 
 tion between resident and non-resident ryots could hardly be 
 maintained, and they suggested their own twelve years' rule, which 
 was adopted accordingly, as a compromise of a doubtful question. 
 Be the abstract merits of the occupancy question what they 
 may, the consideration which I think takes away all ground of 
 complaint is that the law declaring the occupancy right of the 
 mass of ryots was passed without the slightest opposition on 
 the part of the Zemeendars ; it may almost be said, with their 
 tacit consent. Modern Indian laws are not passed as mere 
 edicts ; they are published and fully discussed in an open 
 legislative council, the proceedings of which are reported day 
 by day. The Bengallee Zemeendars are a highly educated 
 class, with English newspapers and abundant organs ; they 
 are the last people to submit without complaint to any infringe- 
 ment of their rights. But on this occasion they did not com- 
 plain. It is true that the twelve years' limit was, I believe, 
 put in somewhat hurriedly towards the latter stages of the bill ; 
 but then it was, as I have said, substituted for a much wider rule, 
 which had been long published. The fact is, that to native 
 ideas the rule was one to which it did not occur to them to 
 object. Native Zemeendars generally prefer fixed ryots to 
 those who may run away any day. 
 
 At the same time that the twelve years' rule was introduced, 
 there was also inserted the third of the grounds for enhance- 
 ment of rent which I have mentioned ; one previously unknown 
 in Bengal, and not practically operative in the north-west pro- 
 vinces, which gave the Zemeendars a right to enhance on the 
 ground of increase in the value of the produce or in the produc- 
 tive powers of the land. That was a great gain to them. In the 
 north-west provinces, where no class of r\ots have a right to 
 hold at fixed rents, and the right of occupancy was already
 
 l8o SYSTEMS OF LAND TENURE [Campbell. 
 
 secured, the result of this provision is that the Rent Act, taken 
 as a whole, benefits the Zemeendars, and renders the rj-ots 
 much more subject to enhancement of rent than before. In 
 Bengal, the settlement in favour of the ryots of a doubtful right 
 of occupancy is counterbalanced by the new rule of enhance- 
 ment. But the Zemeendars did not show a disposition to press 
 it much ; and so far as the natives, superior and inferior, were 
 concerned, the new law might have worked quietly enough in 
 Bengal. A storm, however, soon after arose from an unexpected 
 quarter. 
 
 The oldest and perhaps the most successful European 
 industrial enterprise in India is that of the Bengal indigo 
 planters. They used generally to buy the indigo plant from 
 the ryots, and to manufacture the indigo themselves. For 
 facility of obtaining indigo, they had acquired possession of 
 considerable estates, generally as sub-holders or middlemen, 
 under the Zemeendars. Holding thus towards the ryots a 
 double relation as landlords and merchants, the landlord in- 
 fluence was brought to bear on the cultivation and delivery of 
 the plant. And, as so often happens in India, the matter came 
 to be regulated rather by custom than by proper mercantile 
 principles. The planters did not attempt to make profit by 
 the rents ; the ryots were allowed to sit at the old easy rents ; 
 but they were required to deliver a tale of indigo plant, and 
 the price paid was fixed by custom and not by competition. 
 As was shown when a Commission investigated the matter, the 
 planters had adopted some high-handed ways, in the absence of 
 sufficient Government authority in the interior of Bengal ; but, 
 after all, natives will bear a great deal in that way, so long as 
 they are in the main tolerably well off; and through the 
 planters much European money circulated among them. It 
 was when the increase of prices of all produce and general rise 
 of values made it apparent that the old customary prices paid 
 for the indigo plant were very unprofitable, that there arose 
 serious discontent, terminating in a sort of rebellion against the 
 indigo planters. 'J'he whole matter was inquired into by a 
 Commission, and it was made evident that the old state of 
 things could not continue, and that if the planters wanted 
 indigo, they must pay market value for the plant. 
 
 They then said, " We have let you sit at easy rents because 
 you gave us indigo ; but since you object to give indigo on the 
 old terms, we will raise your rents.'' So far the planters had
 
 India.] I\ VARIOUS COUNTRIES. iSl 
 
 entirely right on their side ; and if they had on the one hand 
 offered a reasonably increased price for the indigo plant, and 
 on the other claimed a reasonable increase of rent, the matter 
 might probably have been settled. In fact, however, the 
 planters who tried the question did not at first take this mode- 
 rate course. They rather sought to conquer the ryots and to 
 bring them to their own terms with respect to indigo, by 
 demanding an extravagant and penal increase of rent. They 
 proposed to treble and quadruple the rents all round at one 
 blow. The case came before the Chief Justice, Sir Barnes 
 Peacock, who decided that the ryots were bound to pay a fair 
 rent in the sense of the highest rent obtainable, and that, an 
 increase of the value of produce being shown, there was no 
 limit to the increase demandable but the net profit of the 
 cultivator or rack-rent. Entering into a calculation of the value 
 of produce and costs of production, and deducting the one 
 from the other, he found that the difference left a profit greater 
 than the rent claimed by the planter, and accordingly decreed 
 the full claim. 
 
 The ryots, however, still declined either to grow indigo on 
 the old terms or to pay the rents so greatly increased, and the 
 case eventually came before the full High Court of fifteen 
 judges, who decided by fourteen to one (the Chief Justice still 
 maintaining his opinion) that as the landlord could only 
 enhance for a certain cause, he could only enhance in the same 
 degree or in the same proportion in which the cause operated. 
 It being shown that the value of agricultural produce has 
 increased in a certain proportion since the last adjustment of 
 rent, the rent will be increased in the same proportion ; e.g., 
 if prices have risen fifty per cent, the rent will also be raised 
 fifty per cent. That is the final decision in what is called the 
 Great Rent Case. 
 
 I believe that under this decision things have settled down 
 quietly enough. The planters are enabled considerably to 
 raise their rents, they have been obliged to pay higher 
 for the indigo plant, and things go on upon a better 
 footing than before. The native Zemeendars have to some 
 extent followed the example of claiming enhanced rents ; but 
 I do not think that in Bengal they have yet done so to an 
 excessive degree. 
 
 The thirty years' settlement of the north-western provinces 
 having expired, a new settlement has been for some time
 
 1 82 SYSTEMS OF LAND TENURE [Campbell. 
 
 in progress. It has been determined to follow in all new 
 settlements a more moderate rule of assessment than in former 
 days. Instead of taking two-thirds of the rent, the Government 
 is now to take only half of the present rents, leaving the other 
 half to the landholder for his expenses and profits, besides 
 future increase. There are several cesses for roads, schools, 
 &:c., to be paid out of the landholders' portion ; but still the 
 profit left to him is very large. The increase of rental since 
 the last settlement being counterbalanced by the lower rate of 
 assessment, I believe that the Government will not profit very 
 largely by the revision. 
 
 Of late years there had been a re-action of opinion in favour 
 of permanent settlement of the land revenue, and orders were 
 sent out by the Secretary of State that in every estate where 
 the land might be considered to be sufficiently cultivated (the 
 proportion of untilled land not being in excess of that required 
 for grazing and other reasonable purposes) the assessment should 
 be declared to be perpetual. 
 
 It is evident, however, that a permanent assessment on the 
 basis of half present assets is a much more liberal arrangement 
 than any hitherto made, and that as the land revenue forms in 
 India so large a proportion of the total revenue of the country, 
 if it is stereotyped we must seek for other sources of income. 
 There is much reason to suppose that the value of money and 
 produce are rapidly altering, and that great changes are likely 
 to occur in the next few years. An opinion has also spnmg 
 up that the resources of the country are as yet insufticiently 
 developed, and that it is for the Government, as superior land- 
 lord, to do much in the way of irrigation works and similar 
 improvements, about which there will be difficulty if it is debarred 
 from increase of land revenue. Hence I think there has again 
 been some re-action of feeling. Orders have been issued that 
 where there is a probability of irrigation works being under- 
 taken we are not to commit ourselves to jjermanency of the 
 land revenue. Altogether the question seems to be still in an 
 msettled state. 
 
 It is to be noted that the recent orders for permanent settle- 
 ments in the north-western provinces contain no provisions for 
 extending the benefit of permanency to the inferior class pos- 
 sessed of acknowledged rights in the land (the old occupancy 
 ryots) such as were contained in Lord Cornwallis's Regula- 
 tions, and are repeated (as regards the old permanently settled
 
 India.] IN VARIOUS COUNTRIES. 183 
 
 provinces) in Act X. of 1859. As matters now stand they 
 would still remain subject to constant increase of rent. 
 
 The first settlements in the Punjab were made for shorter 
 terms than those adopted in older provinces, and a revised 
 setdement has been for some time in progress here. The 
 proceedings have led to one of those lamentable official battles 
 which so much interfere with progess. 
 
 I have mentioned that the normal tenure of the Punjab 
 is that under which the same persons, as members of village 
 communities, are proprietors and cultivators at the same time. 
 Still there are also in parts a good many non-cultivating land- 
 holders of the same classes as those of the north-west provinces, 
 and many cultivators holding under them. The distinction 
 between hereditary or occupancy ryots and tenants-at-will had 
 certainly been very loosely made in the first settlements (as was 
 also the case in the north-west provinces), there being little or 
 no contest at a time when the distinction between revenue and 
 rent rates were hardly known to the people ; and the land- 
 holders were sometimes ready enough to let others share the 
 burden of the fixed money revenue then for the first time 
 imposed on them. Some settlement officers had followed the 
 old north-west practice of considering all who had held for 
 twelve years to have a right of occupancy ; but the more 
 correct rule afterwards laid down by Sir J. Lawrence was " to 
 consider the nature quite as much as the length of occupancy, 
 and to pay entire regard to local customs and the opinions of 
 the agriculturists." In the original settlement very large numbers 
 of inferior holders were recorded as having right of occupancy. 
 
 Act X. of 1S59 has never been extended to the Punjab, so 
 that its provisions do not settle the matter. 
 
 Soon after the commencement of the new settlement opera- 
 tions the officer at the head of the department represented that 
 the old setdement was very frequently wrong in attributing 
 occupancy rights to mere tenants-at-will ; that many of these 
 men themselves admitted this to be so ; and he asked if he 
 might re-open the matter and correct the erroneous entries. 
 
 Beyond an order enjoining on him extreme caution in his 
 inquiries, no definite instructions were issued. Unhappily this 
 question of the rights of the cultivators was then the subject of 
 hot controversy in several parts of India, and the dispute was 
 taken up by opposing parties among the Punjab officials. The 
 highest authorities differed, and nothing was settled.
 
 184 SYSTEMS OF LAND TENURE [CAMmsLL. 
 
 Meantime the settlement conimissioner, being liimself very 
 strongly of the party which denied the rights of ryots, went on 
 in his own way, and very many thousands of the occupancy 
 ryots of the old settlement were put down as tenants-at-will 
 under the new settlement. 
 
 An independent chief court has now been established in 
 the Punjab, and some of the proceedings of the settlement 
 commissioner coming before the court were declared to be 
 not warranted by law. All parties were then agreed as to the 
 necessity of legislation of some sort. After much discussion 
 a new Land Act was passed for the Punjab last year, the 
 provisions of which, as regards the disputed point, are these : — 
 
 Every person entered in the records of settlements previously 
 completed and sanctioned, as having a right of occupancy, shall 
 be presumed to have such right, unless it shall be proved by 
 regular suit brought by the landlord — 
 
 1. That he has admitted before a settlement officer that he 
 
 has no such right ; or, 
 
 2. That within thirty years tenants of the same class, in the 
 
 same or adjacent villages, have ordinarily been ejected 
 at the will of the landlord. 
 Revised rent-laws have also been passed in Madras and 
 Bombay, settling all doubts which had there arisen. 
 
 During recent years much attention has been paid to the 
 land affairs of new provinces, which I shall separately notice. 
 
 THE LAND QUESTION IN OUDE. 
 
 The partition of the Oude territory at the beginning of the 
 century has been mentioned. The division, in a plain country 
 with no natural boundaries, was purely political. The people 
 of the country left to the Nawab-Vizier were almost absolutely 
 identical with those of the districts taken by the British, in race, 
 language, and institutions, being Hindoostanees of the regular 
 Hindoostanee type. 
 
 The first use made by the Nawab of the power which a 
 strong British contingent gave him was to bring to complete 
 obedience the subjects who were left to him, and to put down 
 most of the Jagheerdars and 'J'alookdars. But under his suc- 
 cessors, the interference of P>ritish forces in their internal affairs 
 being no longer jK^rmitted, a very different state of things 
 grew up. A great degree of anarchy prevailed ; local chiefs
 
 India.j in \aric)Ls countries. 185 
 
 constantly set the Government at defiance, and from the death 
 of Nawab Saabat Allee to the time of the annexation of Oude, 
 these men acquired more and more power. This is the period 
 of the rise of the modern Talookdars. Some of them are 
 members of old leading families, and a few of these are in some 
 sense chiefs of clans; many others are mere modem revenue 
 collectors or contractors who have obtained a hold over the 
 districts entrusted to them. In all cases the power has gone 
 to the strongest or most astute in each family, not to the man 
 who had the most legitimate claims by seniority. 
 
 Take as an example the family of the present leader of the 
 Talookdars, known to the English public as " chief of the 
 barons of Oude," Maharajah Sir Man Sing, K.S.I. They are 
 not Oude men at all. The uncle of the present Maharajah, a 
 native of the old British province of Bahar, and a Bramin by 
 caste, was a trooper in one of the Company's regiments of 
 regular cavalry. Being quartered at Lucknow, he entered the 
 Oude service, and rose to high office. He introduced his 
 brother, the father of the Maharajah. Up to the time of an- 
 nexation the family rose higher and higher in the Oude ad- 
 ministration, and acquired a great estate. The eldest son has 
 held great places, but is notorious for having almost ruined by 
 tyranny the districts beyond the Gogra, and has been prudently 
 kept in the background since British rule. Another son is a 
 man of literary tastes, who does not care for politics ; and the 
 family is now represented by the youngest son, the present 
 Maharajah, an extremely clever person, thoroughly versed in 
 political affairs. 
 
 I have no doubt that the example of the British districts by 
 which they were surrounded had much to do with the disposi- 
 tion shown by the Talookdars to acquire, by fair means or foul, 
 not only the rule over, but something like proprietary right in 
 as many villages as possible. Certain it is that a continual pro- 
 cess of absorption of the independent villages into the Talookas, 
 and suppression of those men who would have been con- 
 sidered village proprietors under the north-west system, went on 
 up to the time of annexation ; so that at last the greater part of 
 Oude was held by the large Talookdars, corresponding to the 
 Zemeendars of Bengal. 
 
 Not only were the Talookdars constantly in arms against the 
 Government, but the Talookas were also torn by intestine 
 feuds. If we look to the succession of the great chiefships, we
 
 1 86 SYSTEMS OF LAND TENURE [Campbell. 
 
 shall generally find that the ruler for the time had murdered his 
 uncle and supplanted his cousins, and that the cousins or 
 cousins' sons formed an opposition, ready to supplant him on 
 the first opportunity. The outs constantly harassed the ins by 
 predatory attacks. When I was magistrate of a British border 
 district, I had repeated remonstrances, through the British resi- 
 dent, regarding the atrocities of a man who was represented as 
 a common robber and dacoit of the vilest description, sheltered 
 by British subjects ; and after some blood had been spilt in an 
 attempt of my police to capture him, I was quietly told that I 
 need not trouble myself any longer, as he had made terms v/ith 
 his Government, and was installed as Talookdar. 
 
 The rj'ots, too, were often almost necessarily involved on the 
 side of one faction or other, and were plundered and oppressed 
 when the opposite faction triumphed. The British border was 
 sometimes full of them. Yet they seemed seldom to care to 
 settle there : they only encamped, and were generally ready 
 to return on a favourable opportunity. The fact is that the 
 system had its compensations for them ; the exercise of des- 
 potic power by the superior implies the possession of the 
 sacred right of rebellion by the inferior; and if they were ill- 
 used by one man they generally soon found the means of 
 paying him off by adhering to some opposition chief ; so that 
 either party would at last make some sort of terms with them. 
 
 The general result, however, of the state of anarchy which 
 prevailed was that all tenures and all rights had been very 
 much shaken and shuffled in the generation preceding our 
 rule ; and under a nominal Government at Lucknow the 
 country was in a great degree held by semi-independent 
 Talookdars, rather tributary than subject. 
 
 Both the official reports and the Anglo-Indian newspapers 
 were constantly full of the tyrannies and oppressions of the 
 Talookdars. Colonel Sleeman, the British resident, made an 
 official tour through the country, and wrote a book full of their 
 misdeeds. It was solely and wholly on the ground of the 
 inability of the native Government to control them and protect 
 the people that, in the year 1856, under orders issued contrary 
 to the opinion of Lord Dalhousie, we dethroned the represen- 
 tative of the family who had been our oldest allies, and for 
 a hundred years thoroughly faithful to us, and annexed the 
 country. 
 
 Under these circumstances, it is scarcely surprising that the
 
 India.] IN VARIOUS COUNTRIES. 187 
 
 first orders issued on the annexation gave somewhat scant 
 justice to the Talookdars, who had caused all the mischief. 
 They amounted in brief to this : that our officers should deal 
 primarily with the village communities, leaving the Talookdars 
 to prove their right to superior tenures, if they had any. 
 
 In practice, however, these orders could not be fully carried 
 out. The Talookdars had too complete a hold of much of 
 their possessions to leave it possible to ignore them altogether. 
 Many of their more recent acquisitions were taken from them 
 and restored to village proprietors; but they still remained 
 possessed of great estates, and had not been deprived of their 
 forts, guns, and followers when the mutiny broke out, in the 
 year immediately following the annexation. Oude was, as is 
 well known, one of the chief scenes of the mutiny. It was 
 almost exclusively held by Sepoy troops, very many of whom 
 were natives of the country ; and when they rose the small 
 British force was besieged in the Residency. The Talookdars 
 did not behave excessively ill. Some of them assisted our 
 fugitive officers to escape, and for a time they generally 
 temporised, and did not take a very decided part. From the 
 time, however, when the attempted relief by Havelock and 
 Outram failed, and the relievers were shut up along with the 
 original besieged, the great body of the Talookdars identified 
 themselves with the Sepoy cause, went into full rebellion, and 
 took part in the siege of the Residency. 
 
 As soon as the military strength of the rebellion was 
 completely broken. Lord Canning came out with his famous 
 proclamation, confiscating all the lands of Oude. As there has 
 been so much discussion on this subject, I may state that, 
 being then in immediate communication with Lord Canning, 
 he showed me the original draft of the proclamation in his own 
 handwriting, and I then had it from his own lips (before the 
 proclamation was published) that his object was not really to 
 confiscate finally the rights of the Talookdars, but to get rid of 
 all the engagements into which we had entered after annexa- 
 tion, and to obtain a "tabula rasa"' which would enable him to 
 restore the great landowners, and redress the injustice which he 
 thought they had suffered, on condition -of their full and com- 
 plete allegiance. In fact, the step was taken m pursuance of a 
 policy the opposite of that which had before prevailed, and in 
 order to clear the ground for the new system. 
 
 The ad\ice which I ventured to tender to Lord Canning
 
 1 88 SYSTEMS OF I.AXD TENURE [CAMrnELL. 
 
 was, that it v/ould be better to avoid the appearance of extreme 
 seventy on the one hand, and the extreme of concession to 
 those who had rebelled on the other ; that it would be enough 
 to assure the Talookdars that bygones should be bygones — 
 that their property and reasonable claims should be respected 
 — that the whole question of landed rights should be again 
 gone into, and that any injustice of which they could fairly 
 complain should be redressed. But the Governor-General had 
 taken his course. The proclamation was accordingly issued, 
 and the Talookdars were immediately informed that on their 
 submission they should have re-grants of all that they had 
 held before the annexation. They were at first very suspicious 
 and incredulous about the extreme goodness of the terms 
 offered ; but they had no choice but to come in or go off to 
 the hills as fugitives ; they almost all came in, and received 
 English grants of all the villages which they had in any shape 
 or in any way brought under their dominion before the annexa- 
 tion of the country. 
 
 Thus Lord Canning did in Oude precisely what Queen 
 Elizabeth did in Ireland, when the surrender of the Irish 
 chiefs was accepted and their possessions were re-granted on 
 English titles. 
 
 Soon after the pacification of the country, a revenue settle- 
 ment was undertaken, and then there arose the question 
 whether any inferior rights were to be recognised in subordina- 
 tion to those of the Talookdars, just as the same question 
 arose when a settlement of Ireland was made under James I. 
 The advocates of the extreme landlord theory at first said that 
 the confiscation swept away everything, and that the Talook- 
 dars had now complete and absolute titles, to the exclusion of 
 every one else. But it was shown that Lord Canning had 
 reserved subordinate rights, i)roved to have been in active 
 existence at the time of annexation, and any such which can 
 be made out are maintained. 
 
 Views unfavourable to rights of ryots were then held by 
 many, and Sir Barnes Peacock's decision in favour of the land- 
 lord had just come out. As respects the ryots, then, it was at 
 first said that the old hereditary ryots had a bare right of 
 occupancy, but that there was no limit to the rent which might 
 be demanded, save the highest rack-rent of the day. A little 
 later, the Chief Commissioner declared that he had been 
 misled by the prejudices of his education in the north-west
 
 India.J in various COUNTRIES. 189 
 
 provinces, and that, correcting himself, he now said that there 
 was no such thing as a right of occupancy ; he therefore 
 directed that no distinction should be made in the records 
 between tenants-at-will and any other class of ryots, except 
 in case of leases under voluntary contract. 
 
 Of these orders the Governor-General, Sir John Lawrence, 
 disapproved, and there was a special inquiry on the subject. 
 
 It turned out that most of the ryots did not care to claim 
 fixity of tenure. Even the grant of proprietary rights under 
 our system, accompanied by fixed burdens punctually exacted, 
 are scarcely ever appreciated in the earliest years of our rule ; 
 and perhaps, seeing how often the first possessors of such dan- 
 gerous rights have been sold out and reduced far below their 
 original position, the natives are not so far wrong as we 
 suppose. It is, then, hardly surprising that most of the Oude 
 ryots, who had so long looked on the free right of rebelling 
 and running away as their best safeguard, did not much like 
 anything which seemed to bind them down, and wholly re- 
 jected the leases which it was sometimes attempted to thrust 
 upon them. There was also no standard of law and right ; and 
 though the ryots said that a Talookdar ought not to turn them 
 out, when asked whether he formerly had the power to do so. 
 they said, "Of course he had — the man in power could do any- 
 thing." The general result of the inquiry was that neither the 
 rj'ots proved a right to stay in, nor did the Talookdars prove 
 a right to turn them out ; but the Talookdars being taken as 
 prima facie owners under the grants, and the onus of proof 
 being thrown upon the ryots, it may be said that the ryots 
 generally failed of the proof necessary to give them any legal 
 status. All depends on the way the burden of proof is i)ut. 
 
 Eventually a compromise was effected, under which a coni- 
 paratively small number of the highest class of ryots, the 
 descendants of old proprietors and dominant families, have 
 been admitted to a right of occupancy at rates (to be fixed 
 from time to time) slightly below the full rack-rents of the day, 
 while all the other ryots become tenants-at-will. 
 
 Thus the Oude Talookdars are much more complete 
 owners of the soil than any superior landholders in any other 
 province — infinitely more so than those of Bengal ever were. 
 
 Since the Oude inquiry it has been said that the result 
 conclusively proves the whole system of ryots' rights hitherto 
 obtaining in so many provinces to have been a mistake — that
 
 1 90 SYSTEMS OF LAND TENURE [Campbell. 
 
 ryots' rights are a fiction of the British imagination, and that 
 the less they are fostered the better. 
 
 It may, I think, be admitted that wherever the strong com- 
 munities of the Punjab type are not found, if the burden of 
 proving a legal title be thrown wholly on the ryots, in countries 
 where there are no laws, and before custom has had time to 
 crystallise into shape under British rule, most of them would 
 fail to prove any titles. Even putting out of view the disturb- 
 ance of all titles in Oude in the half-century between our 
 annexation of the first half and that of the second half of the 
 territory, I believe that if, in the first years of our rule, the ryots 
 of the districts of the north-west provinces had been subjected 
 to the same ordeal as the Oude ryots, the result would not 
 have been \ery different. But it by no means follows, that 
 when landed rights are to be created or enlarged, it may not 
 be equitable to give some share of that which is to be given to 
 the ryots ; or that, if time be allowed before the question is raised, 
 it will not be found that native feeling and custom have given 
 them a position which ought to be recognised. It may be, in 
 fact, that without any formal declaration they would crystallise 
 into copyholders, as did English villeins. 
 
 The Oude system is still on its trial. The Talookdars 
 were taken under the special protection of Lord Canning. 
 They have had a remarkably light assessment of the revenue, 
 and every advantage. English newspapers have been started 
 as their organs with every sort of enlightened ideas. As many 
 virtues have been attributed to them as fonnerly were vices. 
 As usual, the truth will probably be found to be somewhere 
 midway. But already we hear of their free use of the power of 
 raising rents without restriction which has been conferred on 
 them, and even of the service of notices of ejectment in large 
 numbers ; and, on the other hand, of combinations of ryots to 
 resist these proceedings. Class questions seem to be prema- 
 turely arising which have not been reached in other provinces 
 in several generations. And it has been necessary for the 
 Government to come to the assistance of the aristocratic 
 system, by lending the Talookdars money, not to improve their 
 estates, but to stave off their creditors. 
 
 THE CENTRAL PROVINCES. 
 Till a recent period, the British territories in India have
 
 India.] IN VARIO'vJS COUXTRIliS. 191 
 
 been completely separated from one another, the mass of 
 native States in the centre dividing them into very unequal 
 portions. The great sub-Himalayan plain, running upwards of 
 fifteen hundred miles from the Bay of Bengal to the Affghan 
 hills, contains one hundred and twenty millions of British 
 subjects, and comprises the four administrations of Bengal, the 
 north-west provinces, Oude, and the Punjab. Madras occupies 
 the south of the Peninsula, with thirty millions of inhabitants, 
 and Bombay, the west, with fifteen millions. The annexation 
 of the Nagpore territories, in the very centre of India, and the 
 assignment to British use of the Nizam's Berar territory, gave 
 us a link uniting the different British provinces, and taking 
 a little here and a little there, the centre provinces were formed. 
 
 The oldest portion of these provinces is what was called 
 the Saugor and Nerbudda territory, a large country on either 
 side of the Nerbudda, and extending from Bundlecund and the 
 north-west provinces on one side, to the Nagpore limits on the 
 other. This territory, taken from the Marattas in the last great 
 Maratta war, but not in population a Maratta country, had been 
 long under a separate commissioner, but was for a time attached 
 to the north-west provinces. Then there was the Nagpore 
 territory, principally occupied by a Maratta-speaking popula- 
 tion. And there were thrown in, on the west, some minor 
 districts adjoining the Bombay territory, on the east some out- 
 lying districts of Bengal, the river Godavery transferred from 
 Madras, and the great wild semi-independent territory between 
 the Godavery and the Bengal frontiers. 
 
 Contrasts of administration heretofore veiled by distance have 
 been brought into prominence by this arrangement of a territory 
 uniting all the others. It seemed strange that salt coming to 
 the central provinces from one quarter should be charged one 
 rate of duty, and from another quarter three times that rate. 
 And the Bombay officers, who had been unable to see any trace 
 of proprietary rights above those of the ryots, in the lands of 
 Candeish and similar districts, looked with wonder on a system 
 which, in adjacent villages, inhabited by the same races, under 
 the same native institutions, found or created proprietors of 
 a higher degree. Yet in respect of land tenure the system of 
 the central provinces is in some sense intermediate. 
 
 The Saugor and Nerbudda territories contained some trace 
 of the north-west form of village proprietary, and something of 
 more southern institutions. The system followed had been to
 
 192 SYSTEMS OF LAND TENURE [CAMrBELU 
 
 acknowledge no proprietary rights, but to farm out the villages 
 for terms to farmers, who were as much as possible selected 
 from the local headmen or from persons having local claims 
 and influence. The holdings of the farmers were allowed to 
 descend in the semi-hereditary manner of Indian offices, a good 
 and efficient member of a deceased farmer's family being put in 
 his place ; and it was understood that good farmers would have 
 a renewal of lease on resettlement. Still, property not being 
 admitted, the Civil Courts could not interfere. Private trans- 
 fers were occasionally sanctioned ; but if a man broke down, 
 the tenure was not sold ; the Government officer selected some 
 other good man to put in his place ; and the subdivision 
 of interests in the farms, or other dealings with them in a way 
 Avhich might be prejudicial to efficient management, or 
 dangerous to the security of the revenue, was not permitted. 
 
 The rents to be paid by the ryots were adjusted by the 
 Government officers, and the farmers had no power to raise 
 them or to turn out the ryots, although they benefited by the 
 increase of cultivation during the terms of their leases. 
 
 This system had its advantages. The ryots were com- 
 pletely protected, and the Government officers were able to 
 secure efficient men in the grade between themselves and the 
 ryots, instead of being subject to the inconveniences resulting 
 from the introduction of inefficient or grasping men, and 
 divided, limited, or complicated tenures, by the action of the 
 laws of inheritance and the Civil Courts ; while at the same 
 time a confidence in the regular and considerate action of the 
 Government as superior landlord gave a substantial security 
 of tenure, which was an incitement to improvement in the 
 native fashion. The result was that the north-west authorities 
 found the villages in possession of semi-hereditary farmers, 
 a, few of whom were really of the same class who had been 
 recognised as village proprietors in the north-west ; while 
 many more, with no original claims to the character of pro- 
 prietors, had old hereditary connection with the villages ; 
 and a good many, owing to failures and changes, were farmers 
 of more recent introduction. 
 
 The north-west authorities, in ])ursuance of the ideas pre- 
 vailing in that part of India, considered that full property must 
 be established ; but in consideration of the peculiar circum- 
 stances of this territory, and the exceptionally favourable 
 position which had been enjoyed by the ryots for upwards
 
 India.] IN VARIOUS COUNTRIES. I93 
 
 of forty years, a reasonable compromise was made in the 
 orders issued for a regular settlement. 
 
 The rules to be followed were these : — Wherever a real 
 proprietary right could be shown by any of the persons hitherto 
 called farmers, they were to be recognised as proprietors, and 
 the ryots were to be treated exactly as in the north-west 
 provinces. But in other cases the old hereditary ryots were 
 to be maintained in their former position, being treated as 
 a sort of sub-proprietors of their holdings, subject to rent-rates 
 somewhat in excess of revenue rates, which could not be 
 altered during the term of settlement ; while the farmers were 
 made village proprietors with the right of collecting from 
 the ryots, and having as their profit both the difference between 
 the rent-rates of the old ryots and the revenue-rates, and all 
 that they could make by raising the rent of recent ryots, and 
 promoting the cultivation of the was'.e lands attached to the 
 village areas. 
 
 It may be mentioned, too, that in this settlement a com- 
 promise has been made between the northern system ot 
 including all waste in the settled areas, and the Madras- 
 Bombay system, of charging additional revenue for all waste 
 brought into cultivation. There is a great excess of uncul- 
 tivated land in all this country. Liberal areas of waste have 
 been assigned to each village, and included in the settlement, 
 so as to give room for the extension of the cultivation, and 
 by way of compromise of indefinite claims to grazing, wood,. 
 and water; while all beyond these areas has been reserved 
 as Government property to be afterwards dealt with. The 
 best forest lands are preserved for the growth and supply- 
 of timber. 
 
 It was found that in none of the districts received from 
 different quarters had the Government made pledges which 
 precluded the adoption of a similar system ; and the rules 
 above mentioned as originally laid down for the Nerbudda 
 territories were applied to the whole of the central pro- 
 vinces. 
 
 It may be mentioned that in Orissa (which was ceded by 
 the Marattas in the beginning of the present century, and most 
 of which has never been permanently settled) the tenure is 
 almost identical with that which has been described in the 
 central provinces. The ancient " Thanee " ryots were secured 
 by tides held direct from Government, under an old thirty 
 
 N
 
 194 SYSTEMS OF LAND TENURE [Campbell. 
 
 year settlement ; while they paid through hereditary farmers 
 called " Surberakers," or managers. The Bengal revenue 
 authorities made a strong effort to break down the ryots on the 
 expiry of the settlement, and to reduce them to the level of 
 ordinary ryots under the farmers turned into proprietors — but 
 the matter was brought to the notice of the .Government, and 
 they have been confirmed at the old rent for another thirty 
 years. 
 
 SUMMARY OF TENURES. 
 
 The present distribution of tenures in the different provinces 
 may then be stated to be (speaking generally) as follows : — 
 Oude being at one extreme with an aristocratic system, which 
 gives the land to nobles ; Madras and Bombay at the other, 
 with a system which gives the land to the people. 
 
 Oude. — Great Zemeendars, almost complete owners, Avith 
 few subordinate rights. 
 
 North-west Provinces. — Moderate proprietors ; the old ryots 
 have fixity of tenure at a fair rent. 
 
 Punjab. — Very small and very numerous proprietors ; old 
 ryots have also a measure of fixity of tenure at fair rent. 
 
 Bengal. — Great Zemeendars, whose rights are limited. Nu- 
 merous sub-proprietors of several grades under them. Ancient 
 ryots who have both fixity of tenure and fixity of rent. Other 
 old ryots who have fixity of tenure at fair rent, variable from 
 time to time. 
 
 Central Provinces. — -Moderate proprietors. Ancient ryots 
 who are sub-proprietors of their holdings at rents fixed for the 
 term of each settlement. Other old ryots have fixity of tenure 
 at a fair rent. 
 
 Madras and Bojnbay. — The ryots are complete proprietors 
 of the soil, subject only to payment of revenue. 
 
 GRANTS OF WASTE LANDS IN FEE-SIMPLE. 
 
 An account of Indian land tenures would not be complete 
 without noticing the system of granting waste lands in fee- 
 simple at a low ])rice, which has been recently adopted. 
 
 There was formerly a liberal system of clearance leases, 
 under which jungle tracts were freely given to enterprising 
 individuals, on condition of clearance ; nothing being paid the 
 first few years — then very light rates — and finally, ordinary
 
 India.] IN VARIOUS COUNTRIES. 195 
 
 revenue rates. Thus the progress of the country and the 
 progress of the revenue is secured at the same time, and in 
 dealing with natives and native products, the system is probably 
 the best that can be adopted. 
 
 But when there seemed to be a prospect that some of the 
 tracts of country and ranges of hills, hitherto almost waste, 
 might be turned to account for the cultivation of new and 
 valuable products introduced by Europeans, and possibly might 
 be made to some degree the seats of European colonies, it was 
 felt that these objects were amply sufficient to outweigh the 
 remote prospect of deriving any considerable land revenue 
 from such lands ; and it was deemed that a fee-simple tenure 
 cheaply accessible would be more suitable to European settlers, 
 and more agreeable to them than conditional grants, the terms 
 of which it might be difficult to enforce. It was, therefore, 
 decided that all the uncultivated and unassessed lands in the 
 Himalayas, in the tea districts of Assam and Cachar, in the 
 coffee districts of the Neilgherries and the south-western ghats 
 in Central India, and elsewhere, should be offered to all who 
 chose to take them at a low upset price, ranging from two 
 shillings an acre in most districts to sixpence an acre in some 
 parts of Central India. 
 
 The original orders were loosely drawn, and left a door to 
 some abuse. Most of the waste land in India has been waste 
 because, owing to inaccessibility, want of population, or 
 unhealthiness, it has hitherto been unprofitable to cultivate it. 
 But there were a few valuable small tracts in the settled country, 
 or in the immediate neighbourhood of Hill Stations, which 
 were rather untilled than waste, having been reserved for 
 •grazing, or firewood, or because nothing had been settled as to 
 the disposal of the land. The original orders contained a 
 proviso that when there were more than two applicants for the 
 same land, it should be put up to auction ; but some of the 
 local authorities seem to have considered that such applications 
 must be made at the identically same time, and that once an 
 application had been received, the door might be shut to all 
 others. Hence, in some few instances, easily accessible lands 
 were given to the first comers at the upset price, when they 
 would have fetched many times that price in an open market. 
 Lord Halifax, therefore, ordered that all land applied for 
 should be put up to the highest bidder at or above the upset 
 price, and some lands, given away without compliance with the
 
 196 SYSTEMS OF LAND TENURE. [Campbell. 
 
 terms of the original rules, were resumed and sold for vastly 
 larger prices. 
 
 The legality of this last proceeding has been unsuccessfully 
 contested in the courts. And there has been a good deal of 
 complaint, not without some show of reason, that it is hard that 
 the industry of the man who has discovered a good plot of land 
 should be lost by permitting a richer man to outbid him. On 
 the other hand, it must be remembered that the really valuable 
 waste lands are for the most part very limited. And the facili- 
 ties offered have been such as to lead to some symptoms of 
 the practice of land-jobbing so well known in the colonies. 
 Low as is the upset price, purchasers have been allowed to take 
 possession on payment of a small percentage, leaving the rest 
 secured on the land, to be paid up afterwards. In some in- 
 stances great tracts, which the purchasers had never seen, have 
 been secured on a mere deposit of a nominal sum towards 
 expenses of measurement. People have been said to get into 
 the way in order to be paid for getting out of it. And more 
 frequently the object has been to get up one of the tea, or 
 other companies, lately so much in vogue, and to sell, at a 
 great price, the land taken up on a very trifling payment. 
 Since the company mania has collapsed, much of the land has 
 been thrown back on the hands of Government, by parties wlio 
 are unable to fulfil the terms of the purchase. 
 
 On the whole, then, I do not think it can be fairly said 
 that the Indian Government has failed to offer the waste lands 
 to European settlers on sufficiently favourable terms. The 
 boTia fide tea and coffee estates are held in fee-simple on 
 payment of a very small price.
 
 197 
 
 IV. 
 
 THE LAND SYSTEM OF BELGIUM AND 
 HOLLAND. 
 
 By Emile de Laveleye. 
 
 CONTENTS. 
 
 § I. The question stated. 
 
 § 2. On the natural disadvantages under which Flanders labours, and the 
 remedies devised by its inhabitants. 
 
 § 3. Improved husbandry of very ancient date in Flanders. 
 
 § 4. The cultivators themselves the best market for the produce of agricul- 
 ture. 
 
 § 5. The morcellement of land in Belgium. 
 
 § 6. Peasant property raises loans on better terms than large property in 
 Belgium. 
 
 § 7. La petite culture in Flanders creates its own capital. 
 
 § 8. Peasant property does not exclude the employment of machinery, even 
 of the most costly description. 
 
 § 9. Peasant property only capable of putting the worst soils into culti- 
 vation. 
 
 § 10. Peasant property favours the increase of all the elements of agricul- 
 tural wealth. 
 
 § II. Distinctive features of Flemish husbandry. 
 
 § 12. On the labour employed in farming in Belgium. 
 
 § 13. The subdivision of land in Flanders not attended with any excessive 
 increase of population. 
 
 § 14. A true proposition and false conclusion by Arthur Young. 
 
 § 15. Spade i*. Plough. 
 
 § 16. Leases in Belgium. 
 
 § 17. The Bekleni-regt oi Groningen and the Aforamento of Portugal. 
 
 § 18. The Flemish tenant right [Pachters-regt). 
 
 § 19. The condition of the cultivators of the soil in Belgium. 
 
 § 20. The obstacle to the well-being of the peasantry of Belgium is not the 
 number of small proprietors, but the number of small tenants. 
 
 § ax. The farmers of Holland better off than those of Belgium. 
 
 4 22. Latifundia perdidere Italiam. 
 
 § 23. Free-trade in Land.
 
 198 SYSTEMS OF LAND TENURE [Laveleve. 
 
 § 24. If the subdivision of property is favourable to the production of 
 
 wealth, it is much more so to the maintenance of social order. 
 § 25. The inevitable progress of ideas of equality must put property in peril 
 in countries in which it is held by a small number of families. 
 Appendix on the Afcraynento in Portugal. 
 
 § I. I DO not propose to give here an account of the state of 
 agriculture in Belgium and Holland, having done so else- 
 where;* what I seek is to point out facts relative to both 
 countries, calculated to throw some light upon the following 
 question : What is the agrarian constitution (/>., the system of 
 ownership and tenure of land) most conducive to the progress 
 of agriculture and to the welfare of mankind ? 
 
 A preliminary observation is requisite. Thirty years ago 
 economists were in the habit of considering only the production 
 of wealth, paying hardly any attention to its distribution, which 
 they thought to be regulated by inexorable natural laws ; the 
 system which yielded the largest produce being, of course, 
 thought the best. But modern improvements in machinery- 
 having doubled, nay, trebled, the production without adding to 
 the welfare of all those who seemed to be entitled to it by their 
 industry, endeavours are now made to devise means of better 
 distributing the produce ; and there are tliose who think that of 
 two systems of agrarian organisation, the one which leads to 
 the more equitable distribution of the produce is the one to be 
 preferred. 
 
 For example, let us suppose a certain area of land to yield 
 a produce of 1,000, distributed thus : — 
 
 I landlord . . , . . 200 parts. 
 I tenant ..... 100 „ 
 
 14 labourers, at the rate of 50 . 700 „ 
 
 1,000 parts. 
 
 Suppose, on the other hand, the same area of land, worked 
 by 16 small owners, to yield Init 960, and so give 60 to each of 
 them. I should, for my part, consider this second organisation 
 superior to the first. 
 
 Neither extreme poverty nor extreme opulence is the thing 
 to be desired. Pauperism and divitism alike are the parents of 
 vice in private and revolution in public life. 
 
 • .See my books, " L'Economic Rurale de la Belgique," and " L'Economie 
 Ruralc de la Nderlandc. '
 
 Belgium.] IN VARIOUS COUNTRIES. 1 99 
 
 § 2. In England, a contrast is often drawn between Flanders 
 and Ireland, and the former is said to enjoy agricultural ad- 
 vantages not possessed by Ireland, such as great markets, 
 a better climate, abundance of manure, more manufactures. 
 This is a point on which some light should be thrown. 
 
 Flanders does enjoy certain advantages, but they are 
 equally accessible to the Irish, derived, as they are, from human 
 industry; whereas the advantages possessed by Ireland, coming, 
 as they do, from nature, are not within the reach of the Flemish. 
 
 Let us look, first, at climate and soil. The climate of 
 Ireland is damper and less warm in summer, but less cold in 
 winter. In Flanders, it rains 175 days in a year; in Ireland, 
 220 days. On this account, the Irish climate is more favour- 
 able to the growth of grass, forage, and roots, but less so to the 
 ripening of cereals ; yet the Fleming would be but too happy 
 had he such a climate, cereals being but of secondary import- 
 ance with him, and often used as food for his cattle. He seeks 
 only abundance of food for his cows, knowing that the value of 
 live stock goes on increasing, while that of cereals remains 
 stationary. Butter, flax, colza, and chicory are the staple 
 articles of his wealth, and the climate of Ireland is at least as 
 well suited to the production of these as that of Flanders. 
 
 As for the soil of Ireland, it produces excellent pasture 
 spontaneously, whilst that of Flanders hardly permits of the 
 natural growth of heather and furze. It is the worst soil in all 
 Europe ; sterile sand, like that of La Campine and of Branden- 
 burg. A few miles from Antwerp, land sells for 20 francs 
 (i6s.) an acre, and those who buy it for the purpose of culti- 
 vation get ruined. Having been fertilised by ten centuries 
 of laborious husbandry, the soil of Flanders does not yield a 
 single crop without being manured, a fact unique in Europe. 
 
 If in a Flemish farm of twenty-five acres there were but 
 five or six acres of Irish soil, forming good natural pasture, it 
 would be worth one-third more. Not a blade of grass grows 
 in Flanders without manure. Irish soil might be bought to 
 fertilise the soil of the Fleming. The ideal, the dream of the 
 Flemish farmer — is a few acres of good grass. In Ireland, 
 nature supplies grass in abundance. 
 
 But it may be said that Flanders is well supplied with 
 manure. Doubtless it is ; but it is got only by returning to the 
 earth all that has been taken from it. The Flemish farmer 
 scrupulously collects every atom of sewage from the towns ; he
 
 200 SYSTEMS OF LAND TENURE [I-aveleve. 
 
 guards liis manure like a treasure, putting a roof over it to 
 prevent the rain and sunshine from spoihng it. He gathers 
 mud from rivers and canals, the excretions of animals along the 
 high roads, and their bones for conversion into phosphate. 
 With cows' urine gathered in tanks he waters turnips which 
 would not come up without it ; and he spends incredible 
 sums in the purchase of guano and artificial manures. 
 
 True, it may be said, he must have money for that, and the 
 Irishman has none. But where does the Fleming's money come 
 from ? From his flax, col/a, hops, and chicory ; crops which he 
 sells at the rate of from 600 to 1,500 francs (;^24 to jQdo) per 
 hectare ; and why cannot the Irishman go and do likewise ? 
 The Irishman, it may be answered, must grow food for himself. 
 But so does the Fleming ; for, in fact, apart from the special 
 crops referred to, he grows enough to support a population 
 relatively twice as large as that of Ireland. It has indeed been 
 argued that the special crops for which Flanders is famous 
 would be out of the question save for access to markets which 
 are not within the reach of the Irishman.* But this argument 
 seems to me to have small validity. Tlie chief market for the 
 agricultural produce of Belgium is England. And is London 
 nearer to Ostend and Antwerp than Dublin and Cork are to 
 Liverpool and Manchester? Friesland and Holland send cattle 
 and butter to England, and Galicia ships oxen by way of Vigo, 
 across that dangerous Bay of Biscay ; why cannot Ireland do 
 the same? 
 
 Flanders exports prepared chicory to Germany, to Holland, 
 to all parts of the world, and chicory roots as far as Warsaw ; 
 hops to Paris, London, and Scotland ; flax to France, England, 
 and even to Ireland itself; tobacco to America; colza and 
 poppy-seed oils to the very south of France ; while, on the other 
 hand, it imports corn from Hungary by land, and from Iowa or 
 Wisconsin by lake, canal, railway, and ocean shi[)ping. It is 
 plain, therefore, that jjroduce worth three or four times as much 
 might well be exported from Ireland to England. But there 
 are manufacturers in Flanders, it is said, and none in Ireland, 
 or only in Ulster. Now, on this point it is important to draw a 
 distinction. Flanders possesses undoubtedly a number of small 
 local industries, but they are the consequences, not the cause, of 
 her good husbandry ; and any country possessing the latter 
 would be in possession of the former. The great industries of 
 
 * See Lord Dufferin on " Irisli Tenure," p. 167,
 
 Belgium.] IN VARIOUS COUNTRIES. 20I 
 
 Belgium are situated in the Walloon country, not in Flanders, 
 Complete proof of this is afforded by the following table :— 
 
 Stationary Engines. 
 
 Horse-power. 
 
 West Flanders 
 East Flanders 
 
 Hainaut 
 Liege 
 
 16,094 
 
 n\ ■.■■3{ 
 
 3. "4] 
 
 12,984 ) 
 
 Thus the two industrial provinces of the Walloon country have 
 seven times as much steam-power as Flanders. Then, again, 
 Flanders has but one great centre of manufacture. Ghent, 
 with 120,000 inhabitants; whilst Belfast has a population of 
 over 150,000, and is increasing much more rapidly than the 
 capital of Flanders. 
 
 On the whole, for carrying farming to a high pitch of per- 
 fection, Ireland enjoys far greater advantages than Flanders, 
 the land being much superior, the climate equally favourable to 
 the growth of valuable crops, and the same markets being at 
 hand. Unfortunately, the Irish farmer has not the same agri- 
 cultural traditions as the Fleming. And, of course, these 
 wholesome traditions, being the work of centuries, cannot be 
 acquired in a day. In every country, the progress of husbandry 
 is slow at first, on the one hand, because the peasant has 
 received little education ; and on the other, because the pro- 
 cesses resorted to elsewhere cannot be simply copied in 
 agriculture as they are in manufactures ; they must be modified 
 in accordance with the nature of the soil and the climate, and 
 that is an ar/. The knowledge and practice of that art in 
 Flanders is of very ancient date, and it may not be thought out 
 of place to say something of its early history. 
 
 § 3. The most ancient historical records tend to show that 
 the cultivation of the soil was always in a high state of perfec- 
 tion in Flanders. As far back as the time of the Romans, 
 inscriptions on tumuli prove that the inhabitants of the borders 
 of the Scheldt used to resort to England for marl to improve 
 their infertile soil. From one of Eginhard's letters, it appears 
 that in the ninth century flax and vines were grown at the same 
 time that cloth was manufactured in the environs of Ghent.
 
 202 SYSTEMS OF LAND TENURE [Laveleve. 
 
 Numerous documents in the Middle Ages, such as registers of 
 monasteries, donations, and leases, reveal the existence of 
 processes of farming almost as elaborate as those in use at the 
 present day ; manure in abundance, fields carefully enclosed 
 with magnificent hedgerows, alternate crops, forage and roots 
 for cattle.* Rural manufactures arose from the progress of 
 husbandry ; linen and woollen fabrics were woven, which ere 
 long became famous. The weavers first lived in the open 
 country, and subsequently flocked into towns ; and exportation 
 led to the development of urban manufactures and the growth 
 of a great urban population. It was wealth originating in the 
 good cultivation of the country which created cities, such as 
 Ghent, Bruges, Ypre's, Louvain, Brussels, and Antwerp. In 
 turn, the wealth of the cities fostered the progress of agriculture 
 and rural civilisation. 
 
 One fact alone is sufficient to show the degree of advance- 
 ment the Flemish villages of the Middle Ages had reached. 
 As far back as the year 1400, dramatic performances took place 
 in the villages, the pieces being written, got up, and performed 
 exclusively by persons belonging to the country.t Most of the 
 villages had their Socict'es dc Rhetoriqiic, forming so many 
 focuses of intellectual life. In the sixteenth century, these 
 societies adopted most of the ideas of the Reformation, and on 
 this account were suppressed by the Spaniards. Industry was 
 killed by war and persecution ; and agriculture and civilisation 
 were arrested and even thrown back. Happily, the traditions 
 of the past were too deep to be extirpated, and to them 
 Flanders is indebted for her present wealth. 
 
 The question arises, can arts of such ancient birth in 
 Flanders be diffused throughout such a country without the 
 same early traditions and training? It is a problem fraught 
 with difficulties. Something, doubtless, might be done in the 
 way of agTicultural instruction, were all persons in an influential 
 position, such as magistrates, landowners, clergymen, to exert 
 themselves for its diffusion, and themselves to supi)ly i)ractical 
 examples of it. But examples of more weight with small 
 farmers would be the spectacle of some of the latter class 
 enriching themselves by an improved system of husbandry. 
 
 * Vide the Author's " I-xonomie Riiralc de la Belgique," chap. i. and 
 Appendix No. i. 
 
 + Vide Mr. Vanderstraeten's Essay in the "Annales de la .SociCtd historique 
 d'Yprfcs," vol. iv.
 
 Belgium.] IN' VARIOUS COUNTRIES. 20$ 
 
 Were two or three intelligent farmers in each district in Ireland, 
 having become landowners or hereditary tenants, to borrow 
 from Flemish agriculture such processes as are applicable to 
 the soil and climate of Ireland, a complete transformation of 
 Irish farming might ensue. In the Belgian province of 
 Hainaut, the example of a single farmer adopting the Flemish 
 rotation was sufficient to bring about the suppression of the 
 fallow throughout the whole region.* Could nothing be done 
 to produce agricultural progress in the same way in Ireland ?t 
 
 § 4. One most important fact in considering land systems, 
 is that the country itself and not the town is naturally the chief 
 market for agricultural produce. It is a great eiTor to suppose 
 that agriculture, in order to thrive, must have a market in great 
 cities for its productions. The cultivators, on the contrary, 
 may constitute a market for themselves. Let them produce 
 plenty of corn, animals of various kinds, milk, butter, cheese, 
 and vegetables, and interchange their produce, and they will 
 be well kd, to begin. But furthermore, they will have the 
 means of supporting a number of artificers ; they may thus be 
 well housed, furnished, and clothed, without any external 
 market. For this, however, they must be proprietors of the 
 soil they cultivate, and have all its fruits for themselves. If 
 they are but tenants who have a rent to pay and no permanent 
 interest in the soil, they certainly require a market to make 
 money. In a country whose cultivators are all tenants, an 
 external market for their produce is indispensable ; it is not so 
 in a country of freeholders : all the latter requires is that 
 agriculture should be carried on with the energy and intelli- 
 gence which the diffusion of property is sure to arouse in a 
 people. 
 
 The province of Groningen was the best cultivated of 
 Holland before ever it exported any of its products to Eng- 
 land, and yet there are no large towns in it ; but, thanks to its 
 peculiar system of hereditary leases, the farmers could keep 
 almost the entire produce of their labour to themselves. 
 
 Suppose that by the stroke of a magic wand, the whole of 
 the tenant farmers of Flanders were to become possessed of 
 the fee-simple of their lands, what would be the result ? They 
 
 * " Economic Rurale de la Belgique," p. 148. 
 
 + I have hardly ever met with an answer to the important question: Does 
 the Irish sm»l\ proprietor exhaust his land as much as the small tenant ?
 
 204 SVSTEMS OF LAND TENURE LLaveleye. 
 
 would then themselves consume the milk, butter, and meat 
 which they are now obliged to sell, and in consequence have 
 to dispense with animal food and to resort almost exclusively 
 to vegetables for their support ; then they would no longer 
 have to send what they do to an English market. Would they 
 be the worse off for that ? 
 
 Look at Switzerland. In proportion to her population, she 
 has more horned cattle than Flanders; i.e., 35 head to every 
 100 inhabitants, against 24 in Flanders. Yet while the latter 
 exports butter, oxen, rabbits, &c., to France and England, 
 Switzerland actually irnports butter, cattle, corn, &c. The con- 
 sequence is that Switzerland consumes twice as much animal 
 food as Flanders; viz., 22 kilos, of meat, 12 kilos, of cheese, 5 
 of butter, and 182 of milk per head per annum. Of the Swiss, 
 indeed, we may say what Caesar said of the ancient Britons — 
 Lade et came vivunt. 
 
 How is it that the Swiss peasant is much more substantially 
 fed than the Flemish ? Because the former is nearly always an 
 owner of the soil, while the latter is but too often only an 
 occupier. The Swiss has not for his market the insatiable 
 stomach of the London market, which the poor Fleming con- 
 tributes to feed ; he has a better one than that, namely, his 
 own. 
 
 Thus, Switzerland and Groningen prove that agriculture 
 does not stand in need of a large foreign market to make 
 progress. A peasant proprietary is the best of all markets.* 
 
 § 5. On the I St of January, 1865, there were in West 
 Flanders, on an area of 323,466 hectares, 89,297 proprietors, 
 and 693,904 "parcels" of land; in East Flanders, 155,381 
 proprietors and 845,220 parcels, towns and villages included; in 
 the entire kingdom of Belgium there were 1,069,327 owners 
 and 6,207,512 parcels. In 1846, the enumeration showed 
 758,512 i)roprietors and 5,500,000 i)arcels of land. Thus it 
 appears that the number of landowners and of parcels has con- 
 siderably increased. 
 
 In Belgium I have never heard a complaint of the present 
 state of things, nor any expression of alarm for the future, such 
 
 * Is another proof needed ? No vines arc better cared for than those of the 
 Canton of Vaud, being the agricultural wonder of the Lake of Geneva. Is 
 ihe wine grown there exported hke champagne, claret, or port? Not at all ; 
 the Vaudois drink it themselves. That is still better.
 
 Belgium.] IN VARIOUS COUNTRIES. 205 
 
 as one used to hear in France before economists of eminence, 
 such as de Lavergne, Wolovvski, and Passy, had undertaken the 
 labour of demonstrating the chimerical nature of the fears that 
 the soil would be crumbled to bits. 
 
 As regards Belgium, and more especially Flanders, foreigners 
 should not be misled by the great number oi parcels. The 
 parcels enumerated are cadastral parcels for the purposes of 
 the survey ; and very often the surface of the soil shows not the 
 least trace of any such divisions. Not only do many parcels 
 often belong to one and the same proprietor, but a single estate 
 or form of ten or twelve hectares generally consists of many of 
 them. The land is divided into farms of different sizes in pro- 
 portion to the capitals of the cultivators ; for example, fifty 
 hectares to four horses, twenty-five to two, twelve for one horse, 
 five or six hectares to a family without beasts of burden, and a 
 little plot for a labourer. When large farms are subdivided it 
 is done on economical grounds — viz., because they fetch higher 
 prices when sold in lots — they are hardly ever divided in con- 
 sequence of the law of succession. The peasant attaches too 
 much value to the proper outline of a field to break it into 
 pieces ; he would rather sell it altogether. 
 
 Hitherto, the consequence of the progressive subdivision of 
 land in Flanders has only been to raise at once the rental, the 
 gross produce, and the value of the soil ; at the same time that 
 the number of landowners has increased, the condition of the 
 cultivators has improved. 
 
 In Flanders you do not find the land subdivided in the way 
 it is in Ireland, according to Lord Dufierin, who has shown 
 the evils of the kind of subdivision practised there;* from his 
 description it appears that in Ireland, at the death of any 
 holder, and often during his lifetime, the children divide the 
 land among themselves, each of them building a cottage on 
 it ; or, if the tenant has no children, he sublets his land to 
 several small farmers, and allows them to settle on it, not- 
 withstanding the stipulations of the lease. Such breaking-up 
 of the land must lead to the most wretched kind of forming, 
 and to pauperism on the part of the tenants. As long as the 
 Irish farmer has no better understanding than that, of his own 
 interest and of the requirements of a sound economical system, 
 no agricultural policy, neither fixity of tenure nor even owner- 
 ship of fee-simple could improve his condition. Although the 
 
 " Vide Lord Dufferin on " Irish Tenure," chap. iii.
 
 206 SYSTEMS OF LAND TENURE [Laveleye. 
 
 population of Flanders is twice as dense as that of Ireland, a 
 Flemish peasant would never think of dividing the fami he 
 cultivates among his children ; and the idea of allowing a 
 stranger to settle and build a house on it, and farm a portion of 
 it, would appear altogether monstrous to him. On the contrary, 
 he will submit to extraordinary sacrifices to give his farm the 
 size and typical shape it should have. 
 
 How is it that the Fleming and the Irishman hold such 
 different points of view? I think it is partly due to the 
 difference of race, and partly to circumstances. The Celt 
 being more sociable, thinks most of the requirements of 
 members of his family, whilst the Teuton thinks more of the 
 requirements of the soil and of good cultivation. Nowhere to 
 my knowledge does the Celt show himself a cultivator of the 
 first order ; it is to the German, the Fleming, the Englishman 
 that agriculture is indebted for its greatest improvements. The 
 Celt has in several countries subdivided the soil for the sake of 
 his family, without regard to the requirements of national 
 husbandry. Throughout Germany,* law and custom alike have 
 always been opposed to the division of farms. In Upper 
 Bavaria this is carried so far that almost all the land is iri the 
 hands of wealthy peasants, keeping up a kind of entail by 
 always bequeathing the whole of their property to one of their 
 children, a small pittance being given to the others. But sup- 
 posing the Irishman to become the absolute owner of his farm, 
 v/ould he learn and comply with the requirements of the land ? 
 A Flemish farmer's son always wants to have a good farm of 
 his own ; he would not put up with a hovel improvised on a 
 potato field. Could the Irishman but be brought to practise 
 agriculture as an art, and not as a mere means of bringing a 
 subsistence from the soil, he would soon abandon the miserable 
 system of subdivision which he has adhered to so long. But 
 how is this taste for agriculture as an art to be imi)arted to 
 him ? To extinguish the influence of instincts or tendencies, 
 whether inherent in the race or the historical product of 
 centuries, would it suffice to introduce an agrarian constitution 
 in Ireland similar to that of J'landers, or, better still, tliat of 
 Switzerland ? These are questions which I confess myself not 
 in a position to answer; but they are questions which those who 
 have the Irish land question to solve ought to face, when con- 
 sidering the land system of Flanders. 
 
 * Vide W. Roscher, " Nationaliikonomik des Ackerbaues," p. 229.
 
 Belgium.] 
 
 IN VARIOUS COUNTRIES. 
 
 207 
 
 I think it useful to subjoin a tabulated statement, giving an 
 idea of the number of farms {exploitations) and their relative 
 sizes. These results date as far back as 1846, no returns 
 having been published since : — 
 
 
 Proportionate Number of Farms of 
 
 FROM 
 
 Provinces. 
 
 — 5 
 ti 
 
 
 
 i \ 
 
 I 
 
 ;-t 
 
 I 
 
 Z \ 
 
 
 
 •a 
 c 
 rt 
 
 
 rt c 
 
 
 
 u 
 
 a 
 
 1 
 
 
 
 
 S ! 
 
 
 
 
 8 
 
 ii s 
 
 
 ^ ^ 
 
 t. u 
 
 
 
 M 
 
 
 
 \r, \ 
 
 ^ 
 
 X > 
 
 
 <-c 
 
 < s 
 
 m 
 
 •^ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 S 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 m 1 
 
 10 
 
 
 " 
 
 
 
 
 
 Antwerp . . . 
 
 43 MS 
 
 8-62 26-90 
 
 IO-38J 
 
 4 '97 
 
 2-26 
 
 I -18 
 
 1-52 
 
 0-14 
 
 0-05 
 
 Brabant .... 
 
 .34-11 
 
 17-2436-20 
 
 6-iS 
 
 2-30 
 
 I -IS 
 
 0-17, 
 
 1-42 
 
 0-S3 
 
 0-17 
 
 Flanders, West . 
 
 S7-42 
 
 7-35119-24 6-27^ 
 
 2-66 
 
 2-10 
 
 172 
 
 2-72 
 
 0-53, 0'02 
 
 Planders, East 
 
 44-68 
 
 10-0831-50 7-63' 
 
 277 
 
 1-38 
 
 o-8i 
 
 I -02 
 
 0.12 o-oi 
 
 Hainaut . . . 
 
 .S.3-46 
 
 11-9923-92 4-83' 
 
 2-06 
 
 1-09 
 
 0-66 
 
 1-32 
 
 0-561 o-ii 
 
 Liege .... 
 
 4.572 
 
 13-81,25-76 7-10 
 
 2-91 
 
 I-.3.S 
 
 073 
 
 1-40 
 
 0-91 
 
 0-26 
 
 Limbourg . . . 
 
 30-41 
 
 II -97,32-62 13-34, 
 
 5-&4 
 
 2-50 
 
 1-13 
 
 1-78 
 
 0-47 
 
 0-14 
 
 Luxembourg . 
 
 18.92 
 
 12-75:41-88 12-67 
 
 5-28 
 
 275 
 
 1-48 
 
 2-78 
 
 I- 10' 0-93 
 
 Namur .... 
 
 33-«7 
 
 18-9732-92 6-26 
 
 2-40 
 
 1-19 
 
 0-76 
 
 1-60 
 
 1-44 0-77 
 
 Average of Kingdom 
 
 43 '24 
 
 12-302S-99 7-46 
 
 3*04 
 
 1-59 
 
 0-98 
 
 1-64 
 
 0-58 
 
 017 
 
 § 6. It has often been asserted that the peasant properties 
 of Flanders are burdened with debts, and that loans on them 
 are raised at ruinous rates of interest. 
 
 The following table shows that the truth lies in the opposite 
 direction. In the remarkable return of the Census of 1846, 
 the Government published an instructive table, showing which 
 are the provinces of Belgium where loans are raised at highest 
 rates of interest (page 240). 
 
 Thus while in East Flanders no more than five per cent, of 
 the loans are raised on usurious interest, in the province of 
 Luxembourg as much as eighty-two per cent, of the loans bear 
 interest at five per cent, and upwards. 
 
 Were a statement drawn up of the debts \\\\h which land 
 property is burdened in the various parts of Europe, it would 
 be seen that large estates are generally more encumbered than 
 small ones.
 
 2o8 SYSTEMS OF LAND TENURE [Lavelevb. 
 
 Proportion of Capital bearing interest 
 at the rate of 5 per cent, and up- 
 wards to the aggregate Loans. 
 
 Antwerp 
 Flanders, West 
 Flanders, East 
 
 Brabant . 
 Limbourg 
 
 Hainaut . 
 Liege 
 Namur . 
 Luxembourg . 
 
 15 per cent. 
 Small farms ' "i 23 ,, 
 
 5 
 Middle-size \ 33 per cent. 
 
 farms ( 40 
 
 \[ 71 per cent. 
 Large farms i ) 76 " 
 i ( 82 
 
 In England the mortgages are reported to amount to fifty- 
 eight per cent, of the vakie of the land ; in France only ten 
 per cent., according to Messrs. Passy and Wolowsky. In 
 Prussia the eastern provinces with their large estates show 
 greater indebtedness than those of the west with their small 
 farms.* In Lombardy, the total landed debt amounts to 
 twenty-five per cent, of the value of the land, and in the pro- 
 vince of Sondria, where the farms are small, they represent no 
 more than one-and-a-half per cent, of that value. 
 
 § 7. Every one knows La Fontaine's story of Perette going 
 to the market to buy eggs ; the eggs are hatched into chickens ; 
 the chickens produce a pig and then a calf, and the calf be- 
 comes a cow. This dream of Perette's is daily realised by the 
 Flemish small farmer. 
 
 We are often told that agriculture stands in need of capital ; 
 that institutions in aid of agricultural credit are wanting : I 
 reply, good husbandry itself creates the capital needed. 
 
 In agriculture, the capital most needed is live stock, to 
 furnish the manure by which rich harvests are secured. 
 
 The Flemish small farmer picks up grass and manure along 
 the roads. He raises rabbits, and with the money they fetch 
 he buys first a goat, then a pig, next a calf, by which he gets a 
 cow producing calves in her turn. But of course he must find 
 food for them, and this he does by staking all on fodder and 
 roots ; and in this way the farmer grows rich, and so does the 
 
 * Fitfe the excellent work by President Adolphe Lette : " Die Vertheilung 
 Grundeigenthutns."
 
 Belgium] IN VARIOUS COUNTRIES. 209 
 
 land. The institution in Flanders in aid of agricultural credit 
 is the manure-merchant, who has founded it in the best of 
 forms ; for money lent may be spent in a public-house, but a 
 loan of manure must be laid out on the land. 
 
 The poor labourer goes with his wheelbarrow to the dealer 
 in the village to buy a sack or two of guano, undertaking to 
 pay for it after the harvest. The dealer trusts him, and gives 
 him credit, having a lien on the crop produced by the aid of 
 his manure. In November he gets his money : the produce 
 has been doubled, and the land improved. The small fanner 
 does as the labourer does ; each opens an account with the 
 manure-dealer, who is the best of all bankers. 
 
 The large farmers of Hainaut and Namur do not buy 
 manure, fancying they would ruin themselves by doing so. 
 The Flemish small farmers invest from fifteen to twenty 
 millions of francs in guano every year, and quite as much in 
 other kinds of manure. Where does large farming make such 
 advances ? 
 
 § 8. The chief objection made to la petite culture is, how- 
 ever, that it does not admit of the use of machinery, being 
 reduced, as it is alleged, to the employment of the most 
 primitive implements of husbandry, and never raising itself 
 above the first stage of cultivation in that respect. This has 
 been put forward as an incontestable axiom, baffling refutation, 
 and I believe is so regarded in England. 
 
 To disprove this, I need not point out that to Flanders are 
 due the best forms of the spade, the harrow, the cart, and the 
 plough — -Brabant ploughs having for a long time been imported 
 from Flanders into England. It may be said that these are 
 primitive and not very costly implements. I need only reply. 
 Look at what is going on in Flanders at the present day. 
 
 The most costly agricultural machine in general use in 
 England is the locomotive steam threshing-machine. Well, 
 this machine is to be found everywhere in Flanders. Some 
 farmers will club together to purchase one, and use it in turn ; 
 or else a villager, often the miller, buys one, and goes round 
 threshing for the small farmers, on their own ground, at so 
 much per day, and per hundred kilos of corn. The same thing 
 takes place with the steam-plough as soon as the use of it 
 becomes retrumerative. 
 
 To keep hops in good condition, very expensive machines 
 o
 
 2IO SYSTEMS OF LAND TENURE [Laveleye. 
 
 are required to press it. At Poperinghe, in the centre of the 
 hop country, the conwmne has purchased the machines, and 
 the farmers pay a fixed rate for having their hops pressed — 
 which is at once an advantage to them and a source of revenue 
 to the town. 
 
 The example of Flanders proves, therefore, that the division 
 of land forms no obstacle to mechanical economy in farming. 
 Moreover, the subdivision of the soil is perfectly compatible 
 with the methods of la grande culture itself ; the operations of 
 husbandry may all be on a great scale, while the land is held 
 in shares by a number of persons, like shares in a railway. I 
 see no practical impossibility in such a solution of the problem 
 how to combine the land system of Flanders with all the 
 improvements of the age. 
 
 § 9. It is often asserted that poor lands can be brought into 
 cultivation only by large and wealthy owners. This is exactly 
 the reverse of the truth — at least as regards the most intractable 
 soils. 
 
 In Belgium there are lands so sterile by nature that one- 
 half of all the capital sunk in them is either lost or yields 
 hardly any returns — so that it is not in the interest of any 
 capitalist to work them. In La Campine, all those who 
 have attempted to set up large farms, were they ever so well 
 managed, have ruined themselves, or, at any rate, lost money 
 by it. 
 
 It is the small cultivator only who, spade in hand, can 
 fertilise the waste, and perform prodigies which nothing but his 
 love of the land could enable him to accomplish. His day's 
 Avork he counts for nothing ; he spares no exertion, and shuns 
 no trouble ; and by doing double the work, he produces double 
 the result he would do if he worked for hire. Thus he has 
 made fertile farms of the dunes and quicksands which border 
 our dangerous coast. Penetrating into the interior of these 
 dunes in the neighbourhood of Nieuport, you observe little 
 cottages with a few acres of rye and potatoes around them. 
 Their owners succeed in keeping a few cows, which the children 
 take out to graze wherever a blade of salt grass can be found. 
 With the manure of their cattle they mix seaweed and whatever 
 animal matter the sea throws up, and thus they raise crops of 
 first-rate potatoes and vegetables. I.a Veluwe — the Campine 
 of Holland — has been reclaimed in like manner inch by inch
 
 Belgium.] IN VARIOUS COUNTRIES. 211 
 
 by the peasantry. I have elsewhere given an account of the 
 rise of one of these sand villages within recent years.* 
 
 In Savoy, in Switzerland, in Lombardy, in all mountainous 
 countries, land has been reclaimed by la petite culture^ which 
 large landowners could not have broached without loss. In 
 those highlands man makes the very soil. He builds terraces 
 along steep inclines, lining them with blocks of stone, and then 
 carrying earth to them on his back, in which he plants a 
 mulberry or walnut-tree, or a vine, or raises a little corn or 
 maize.t Whoever, after paying for the labour, should take a 
 lease of the ground thus created would not get one half per 
 cent, from his outlay, and therefore a capitalist will never do it. 
 But the small cultivator does it ; and thus the mountain and the 
 rock become transformed. So, too, under la petite culture, even 
 when aided not by proprietorship, but only the kind of tenure 
 to which the name of emphyteusis has been given, and which 
 corresponds to a long lease, the most ungrateful land has been 
 reclaimed in Flanders. The tenant, being secure of the future, 
 builds a house, clears the ground, manures and fertilises the 
 rebellious soil ; and though he will not reap the same benefit 
 from it that a peasant proprietor would, he reaps much more 
 than either a large farmer or a large proprietor would. 
 
 § ID. Notwithstanding all the arguments of the most dis- 
 tinguished economists in England, especially j\Ir. John Stuart 
 Mill, to the contrary, peasant property in land seems still to be 
 regarded there as synonymous with wretched cultivation, and 
 large estates with rich and improved farming. The reason is 
 obvious ; the English are accustomed to compare the farming 
 of their own country with that of Ireland. In fact, however, 
 both England and Ireland are exceptions, one on the right, the 
 other on the wrong side. In England there exists a class of 
 well-to-do and intelligent tenant-farmers such as are not to be 
 found anywhere else. In Ireland, on the contrary, there is no 
 peasant property, but only large estates in combination v.ith 
 small tenure, often with a middleman between the landlord and 
 the cultivator — of all agrarian systems the most wretched. 
 A.dded to this, many centuries of oppression and misgovern- 
 ment made the Irish people more improvident than the 
 inhabitants of any other country in the civilised world : thus, 
 
 * Vide "Economic Rurale de la N€erlande," p. 212. 
 
 t Vide my " Economie Rurale de la Suisse et de la Lombardie," p. 71.
 
 212 SYSTEMS OP LAND TENURE [Laveleye. 
 
 what with a land system of the worst kind, and the general 
 condition of the country, the case of Ireland is surely an 
 exceptional one. All over the continent of Europe there is 
 more live stock kept, more capital owned, more produce and 
 income yielded by small farms than large estates. 
 
 Look at Flanders, for an example. The soil is detestable, 
 as we have seen; and it is unhappily a country where a multitude 
 of small farms are held by tenants, as in Ireland ; but happily 
 the peasant proprietor exists by the side of the small tenant. 
 
 The working capital of a farm, which in England is estimated 
 at from ;^io to ^12, amounts here to 500 francs (;/j2o). 
 The gross produce may be taken at 600 francs (^^24) per 
 hectare. As regards live stock, there were to be found in 1846, 
 55 heads of horned cattle, 12 horses, and 8 sheep on every 
 100 hectares superlicial area. 
 
 For England (not including Ireland and Scotland) M. de 
 Lavergne gives the following averages for the same year : — 
 33 heads of horned cattle, 6 horses, and 200 sheep per 
 100 hectares. 
 
 Bringing these figures down to the common standard of 
 heads of great cattle,* we find 64 heads in England and 68 in 
 Flanders ; the land of Flanders being at the same time worse 
 than any in England. The average rent of land in Flanders is 
 100 francs (^4) per hectare, and the value or selling price 
 varies from 3,500 to 4,000 francs (^'140 to ^£"160). Rents 
 and selling prices have doubled since 1830. These results are 
 not equalled in any other part of Europe. 
 
 § II. The fact that the Flemish husbandman derives such 
 abundant produce from a soil naturally so i)Oor, is due to the 
 following reasons, viz.: — 
 
 1. The perfection of both plough and spade work. 
 
 2. Each field has the perfection of shaj)c given to it, to 
 facilitate cultivation and drainage. 
 
 3. Most careful husbanding of manure. None is wasted 
 either in town or country, and all farmers, down to the poorest 
 tenants and labourers, purchase manure from the dealers. 
 
 4. The great variety of crops, especially of industrial plants, 
 e.g., colza, flax, tobacco, hops, chicory, ike, yielding large returns 
 and admitting of exportation to the most distant countries. 
 
 * In reducing sheep to great cattle, we have adopted the proportion of 8 : r, 
 instead of the usual one of 10 : r, tiie Englisli sheep being exceptionally superior 
 as regards flesh and wool.
 
 Belgium.] IN VARIOUS COUNTRIKS. 213 
 
 5. Second, or " stolen," crops, such as turnips and carrots, 
 after the cereals, of English clover, spurry, &c., whereby the 
 cultivated area is in effect increased one-third. 
 
 6. Abundance of food for cattle. Although the soil is not 
 favourable to permanent meadows, yet, taking the second crops 
 into account, one-half of the available superficies is devoted to 
 the keeping of live stock. Hence the rise of rents, although the 
 price of corn has hardly increased. 
 
 7. House feeding of the cattle, by which the cows give both 
 more milk and more manure. 
 
 8. Minute weeding.* 
 
 Many of these agricultural practices are possibly only where 
 there is a large agricultural population ; for which, on the other 
 hand, work is found at the same time by these very practices. 
 
 § 12. The following table shows the amount of labour 
 employed in the cultivation of the soil in Belgium. 
 
 Provinces, 
 
 Antwerp 
 Brabant . 
 Flanders, \V. 
 Flanders, E. 
 Hainaut . 
 Liege . . 
 Limbourg . 
 Luxembourg 
 Namur . 
 
 s; c I .ii c 
 
 c o 
 
 c o 
 
 3 -i 
 
 \ 70 
 
 47 
 50 
 38 
 
 52 
 64 
 
 130 
 
 237 
 
 68 
 
 ■A-ggregate of Kingdom 68 25 
 
 26 
 
 27 
 
 23 
 26 
 22 
 17 
 37 
 37 
 26 
 
 e- 
 
 is 
 
 3-C 
 
 Zi 
 
 74 84 83 
 
 64 78 86 
 
 57 56 
 
 60 I 57 
 
 70 I 57 
 
 64 69 
 
 55 , 61 
 
 77 71 
 
 50 j 57 
 
 65 
 103 
 
 67 
 46 
 
 58 
 
 51 
 
 42 
 
 
 20 
 
 30 
 19 
 
 J-^ 
 
 
 
 
 
 " 
 
 ki Ih 
 
 
 ^■0 
 
 1 !i 
 
 E-o 
 
 
 ■sx. 
 
 m 
 
 Z, 
 
 17 
 
 476 
 
 18 
 
 3-46 
 
 13 
 
 3-86 
 
 14 
 
 2-76 
 
 23 
 
 314 
 
 4 "49 
 672 
 
 "•35 
 7-42 
 
 61 I 65 97 I 19 1 4-55 
 
 o i 
 
 47,935 
 83,130 
 78,498 
 88,305 
 105,977 
 55,347 
 32,170 
 36,244 
 44,944 
 
 C X '" 
 
 3 ^ rt 
 
 106,080 
 
 183,522 
 149,668 
 203,561 
 
 157,071 
 
 76,290 
 
 69,158 
 
 69,537 
 68,714 
 
 572,550 1,083,601 
 
 * Comprising the farmers themselves, the farm labourers, and labourers proper. 
 t licing the proportion of women of the three preceding classes to 100 men. 
 
 '^'".s ^'"- p'»-'t^viinjii ui ^^uiiicii 01 mc liirec preceding 
 ' Holders " includes both freehold and tenant-farmer 
 
 * I'iJe my "Economic Rurale de la Belgique." The reader will pardon 
 my referring him to a previous work of mine for particulars which need not be
 
 214 
 
 SYSTEMS OF LAND TENURE 
 
 [Laveleve. 
 
 This table is taken from tlie official statistics published by 
 the Belgian Government in 1S50. Those pubUshed in i86i 
 relate to the year 1S56, and are less detailed. In the follow- 
 ing table I have given the data relative to the two Flanders, 
 Namur, Luxembourg, and the entire kingdom, as derived from 
 those statistics. Although the two tables are drawn up on 
 different statistical plans, the returns are about the same, and 
 tlierefore the data may be considered the more trustworthy. 
 
 Owners, tenants, ) 
 managers, and di-> 
 rectors of farms .) 
 
 Gardeners, kitchen-") 
 gardeners, horti- j 
 culturists, arbori- I 
 culturists, silk- | 
 
 worm rearers, vint- 
 ners . 
 
 vmt- 
 
 Shepherds, graziers, "^ 
 herdsmen . . . j 
 
 Field liav.ds and ^ 
 day labouters, farm- ' 
 servants of both C 
 sexes J 
 
 \Yood - cutlers and"^ 
 otlier wood labour- (_ | 
 ers, gamekeepers, 
 and others . . . 
 
 Flanders, West. 
 
 Males. I Females 
 
 32,617 28,132 
 
 1,727 
 
 304 
 
 546 
 
 63.957 139,139 
 
 673 
 
 137 
 
 99,278 67,958 
 
 Flanders, East. 
 
 Males. 
 
 79,207 
 
 I 1,478 
 
 432 
 
 63,174 
 
 980 
 
 Females. 
 
 35,812 
 
 360 
 
 31,802 
 
 145,271 
 
 Luxembourg. 
 
 Males. 
 
 19,223 
 
 62 
 
 532 
 
 14,445 
 
 580 
 
 Females. 
 
 4,671 
 
 46 
 
 7,227 
 
 67,975 34.842 
 
 ",947 
 
 repeated liere. Even in the writings of the best foreign authors errors occur 
 witli regard to Belgium. Thus Mr. Stuart Mill, in his " l^rinciples of Political 
 Economy, " cjuotes a passage from MacCulloch in which liainaut and the two 
 Flanders arc alluded to as being circumstanced alike — whereas, in fact, their 
 conditions arc different in every respect.
 
 Belgium.] 
 
 IN VARIOUS COUNTRIES. 
 
 215 
 
 
 Namur. 
 
 Entire Kingdom. 
 
 
 Males, 
 
 Females. 
 
 Males. 
 
 Females. 
 
 Total, 
 
 Landowners and te- ^ 
 nants, farmers and f 
 managers of es- T 
 tates ) 
 
 Gardeners, kitchen-" 
 gardeners, horti- 
 culturists, arbori- 
 culturists, silk- r 
 worm rearers, vint- 
 ners J 
 
 Shepherds, graziers, '^ 
 drovers , . . . ) 
 
 Field hands and "^ 
 day labourers, farm- f 
 servants of both C 
 sexes J 
 
 other wood labour- / 
 ers, gamekeepers C 
 and others . . .J 
 
 15,226 
 
 308 
 
 627 
 28,621 
 
 1,059 
 
 982 
 S 
 
 11,347 
 
 2 
 
 300,473 
 
 8,681 
 
 4,811 
 388,312 
 
 6,757 
 
 122,630 
 
 1,462 
 
 396 
 228,115 
 
 298 
 
 423,103 
 
 10,323 
 
 5.207 
 616,427 
 
 7,05s 
 
 
 45,841 
 
 12,836 
 
 709,214 
 
 352,901 
 
 1,062,115 
 
 § 13. It has often been argued from the example of Ireland 
 that the subdivision of land must tend to produce an excessive 
 increase of the population. Arthur Young prophesied that the 
 subdivision of the soil would convert France into a rabbit- 
 warren. 
 
 Now the fact is, that in no other country, not actually in a 
 state of decadency, is the increase of the population slower 
 than in France. The same may be said of Flanders, where the 
 population increases at a rate much inferior to that of the rest 
 of the kingdom — viz. : — 
 
 
 Population in 
 
 Proportional 
 
 
 1846. 
 
 1866. 
 
 Increase. 
 
 Flanders, West , . , 
 Flanders, East . , . 
 Entire Kingdom . . 
 
 643,004 
 
 793,264 
 4,337,196 
 
 659,938 
 824,175 
 
 4,984,351 
 
 2-6 per cent. 
 
 3 '8 per cent. 
 
 15 •! per cent. 
 
 Yet in Flanders the soil is greatly subdivided, as shown by 
 figures given above (§ 5).
 
 2l6 
 
 SYSTEMS OF LAND TENURE 
 
 [Laveleyk. 
 
 § 14. To prove the superiority of large farming, Arthur 
 Young made the following calculation : — 
 
 To cultivate a district of 4,000 hectares, divided into farms 
 of a single plough, 666 men and 1,000 horses would be re- 
 quired ; whereas in farms of three ploughs apiece the same 
 district would require only 545 men and 681 horses; being a 
 saving of 121 men and 319 horses, capable of other useful 
 employment in the production of manufactured articles. There- 
 fore the district with large farms will be better provided for 
 than the one with small holdings, and consequently large farm- 
 ing is preferable to small farming. 
 
 Young's calculation is perfectly correct so far as it goes ; 
 nevertheless only one thing is necessary to overthrow his con- 
 clusion — namely, that the smaller farms should yield more pro- 
 duce, and more valuable produce, than the large ones ; and this 
 is precisely the case all over the Continent of Europe, without a 
 single exception that I know of, wherever la petite and la grande 
 J>roJ>riete diXQ seen in competition. "At the present day," says 
 M. Hippolyte Passy,* "on the same area and under equal 
 circumstances, the largest clear produce is yielded by small 
 farming, which, besides, by increasing the country population, 
 opens a safe market to the products of manufacturing industry." 
 Which are the richest and most productive provinces of France? 
 Precisely those in which the small landowners are in the 
 majority, especially Flanders and Alsace. In this respect I need 
 but refer the reader to the works of M. Leonce de Lavergne. 
 
 In the eastern provinces of Prussia (Prussia proper and 
 Posen) there are hardly any but large estates, worked by the 
 owners themselves. In Westphalia and the Rhenish provinces 
 there are to be found peasant proprietors and small farmers. 
 The eastern provinces are inferior to those of the west, even with 
 respect to live stock, as appears from the following table : — 
 
 There are to every square mile in the — 
 
 I'rovinci'.s. 
 
 Metres of i u i ■. . 
 Road. Inhabitants. 
 
 Heads of 
 Large Cattle. 
 
 Posen ..... 
 Prussia .... 
 Westphalia .... 
 Rhineland .... 
 
 5,000 > 
 
 4,000 > 
 
 14,000 ) 
 
 17,000 ) 
 
 3,000 
 6,000 
 
 2,980 
 
 { 3.569 
 ( 4,024 
 
 * Vide " Mdmoire dc l'Acad6mie des Sciences morales et politiques dans la 
 Stance du 4 Janvier, 1845."
 
 Belgium.] IN VARIOUS COUNTRIES. 21 J 
 
 In the western provinces agricultural wages are double what 
 they are in the eastern ones ; and while in the latter there are 
 nine inhabitants to every house, there are but five and a half 
 in the former. 
 
 As regards Saxony, Dr. Engel's well-known statistics have 
 shown that small farms keep twice as much live stock as large 
 ones.* 
 
 As to Italy, Mr. Kay expresses himself as follows in his 
 "Notes of a Traveller": — "In 1836, Tuscany contained 130,190 
 landed estates. In the dominions of the Pope, from the frontier 
 of the Neapolitan to that of the Tuscan state, the whole country 
 is reckoned to be divided into about 600 landed estates. 
 Compare the husbandry of Tuscany, the perfect system of 
 drainage, for instance, in the straits of the Arno, by drains 
 between every two beds of land, all connected with a main 
 drain — being our own lately introduced furrow, till draining, 
 but connected here with the irrigation as well as the draining 
 of land — -compare the clean state of the growing crops, the 
 variety and succession of green crops for feeding cattle in the 
 house all the year round, the attention to collecting manure, 
 the garden-like cultivation of the whole face of the country — 
 compare this with the desert waste of the Roman Maremma, 
 or with the Papal country, of soil and productiveness as good 
 as that of the Vale of the Arno, the country about Foligno and 
 Perugia — compare the well-clothed busy people, the smart 
 country girls at work about their cows' food, or their silkworm 
 leaves, with the ragged, sallow, indolent population lounging 
 about their doors in the Papal dominions, starving, and with 
 nothing to do on the great estates ; nay, comi)are the agricul- 
 tural industry in this land of small farms with the best of our 
 large farms districts, with Tweedside or East Lothian, and snap 
 your finger at the wisdom of our St. Johns and all the host of 
 our bookmakers on agriculture, who bleat after each other that 
 small farms are incompatible with a high and perfect state of 
 cultivation." 
 
 In Lombardy, in the province of Como, where la petite 
 culture prevails, the value of the cattle per hectare in cultivation 
 is 161 francs; whilst in the province of Mantua, with its large 
 farms and fine pasture land, it is but 94 francs. f 
 
 * Vide " Zeitschrift des Statistichen Bureau's des K. Siichsischen Ministe- 
 ruims des Innern," No. i, February, 1857. 
 
 + Vide my " Etudes d'Economie Rurale en Lombardie," p. II 2, and Zacini's 
 excellent book, " La I'roprieta fondiaria in Lombardia."
 
 2lS 
 
 SYSTEMS OF LAND TENURE 
 
 [Laveleye. 
 
 In Portugal there are in the large-farming province of 
 Alemtego but 329,277 inhabitants on an area of 2.454,062 
 hectares, with an annual production — exclusive of cattle — worth 
 54,762,500 francs, or 2272 francs per hectare. On the con- 
 trary, in the small-farming province of Minho, there are on an 
 area of 749,994 hectares, 914,400 inhabitants, producing — 
 exclusive of cattle — 37,756,250 francs per annum, or 50*34 
 francs per hectare, being more than twice the production of 
 Alemtego.* 
 
 In Spain, compare Estremadura, the Castiles, or even 
 Andalusia, with the kingdom of Valencia, and with Lower 
 Catalonia. Where small farming prevails, the land is a garden ; 
 where the estates are large, a desert. 
 
 In Belgium, the small-farm provinces, the Flanders, own 
 more cattle, yield more produce, are more carefully cultivated, 
 and have more agricultural capital than those in which large 
 estates are predominant, as will be seen from the subjoined 
 table. Here I have compared East Flanders with Namur ; 
 and it is to be noticed that in the former province the land is 
 much poorer than in the latter. 
 
 
 hectare 
 ectarcs 
 
 Namur. 
 
 Flanders, E. 
 
 "Heads of cattle per 100 hectares . 
 
 "Working capital per hectare 
 
 Produce per hectare . 
 
 Rent per hectare 
 
 Average selling price of land per 
 
 Number of Inhabitants per loo h 
 
 35 
 
 francs 250 
 
 300 
 
 50 
 
 „ 1,804 
 
 138 
 
 68 
 francs 450 
 ,, 600 
 
 ,. 93 
 „ 3.218 
 
 263 
 
 * With reference to Portugal, see the excellent work, " Coinpcndio de 
 Economia rural," by Senhor A. Rebello da Silva, Colonial Minister of Portugal 
 in 1870 ; and J. Forrester's '' Portugal and its Capabilities,'' in which we find 
 the following passages : — "The Minho is justly termed the garden of Portugal." 
 " Tlie Alemtego is the largest, and perhaps naturally the richest, province of 
 Portugal. Once the granary of Portugal, it is now the worst cultivated and 
 most thinly populated of the entire kingdom. The reason of this change may 
 be traced to the following fact. The fecundity of this province has been pro- 
 verbial from the remotest times ; and jjcople of substance relinquishing the 
 North, came here, and united many small farms in a few extensive estates, 
 which have descended from father to son undivided, undiminished, and through 
 mismanagement and neglect are at this moment so many waste lands in the 
 possession of proprietors who themselves have not the means of cultivating 
 them, and who will not allow others to do so. Hence, there being no employ- 
 ment for agricultural labourers, the Transteganos have dispersed themselves
 
 Belgium.] IN VARIOUS COUNTRIES. 219 
 
 § 15. Let US carry out the parallel drawn by Arthur Young, 
 between the results of small and large farming, by placing 
 spade and plough side by side before us. 
 
 Throughout Flanders, and especially in the Waes country, 
 the spade is often used to prepare the soil before sowing. To 
 dig up one hectare with the spade, at the rate of 5 ares per 
 diem, 20 days are required, and an outlay of 30 francs ; whilst 
 the same work done with the plough Avould cost no more than 
 6 or 7 francs, perhaps less. Thus, spade-work costs five times 
 as much as plough-work, which is an enormous balance in 
 favour of the latter. 
 
 Yet the Fleming persists in calling the spade a gold mine 
 {De Spa is de Gotidmym der Boeren) ; and in Lombardy they 
 have a proverb to the same effect : Se Varatro ha il vomero di 
 fcrro^la vanga ha la pwita doro. (If the plough has a plough- 
 share of iron, the spade has a point of gold.) How is this to 
 be accounted for ? Is it routine or miscalculation "^ Neither ; 
 the peasant only means to say that a large increase in the 
 returns is well worth a larger outlay. 
 
 In Lombardy, it has been computed that in two fields of 
 the same quality, and manured in the same way, one being 
 worked with the spade and the other with the plough, the 
 returns of the former were to those of the latter as 66 to 28. 
 Assume the produce to be but double, it will make up for twice 
 the excess of expense. 
 
 In Flanders, this difference is not very considerable for 
 cereals ; but the Fleming does not grow corn alone. In the 
 same year in which corn conies up in the rotation he has a 
 second crop {nxolte derobee), which of itself is worth three or 
 four times the excess of 25 francs in the cost of spade-work ; 
 and if after this he lifts such crops as flax, chicory, tobacco, 
 and colza, returning from 600 to 1,200 francs per hectare, the 
 excess in the preliminary outlay dwindles down to a mere 
 nothing. Young, and most English writers on agriculture after 
 him, reason just as if no other crops were grown than cereals ; 
 a mistake with respect to the nature and objects of la petite 
 culture which vitiates all their conclusions. 
 
 I am fully aware that these second crops may be derived 
 also from the plough, and so they are indeed by many Flemish 
 
 over the other provinces, leaving the feudal lords in full possession of their land, 
 their pride, and their poverty " (p, 102;. Of the south of Portugal it may also 
 be said, Latifundia perdidcrc Lusitaniam.
 
 2 20 SYSTEMS OF LAND TENURE [LAVEt-EVE. 
 
 farmers , but then, in the first place, the land is better prepared 
 by the spade for receiving the seed ; and secondly, to weed 
 and to gather crops of this kind much more labour is required, 
 and therefore a larger population by whom the spade-work too 
 may be done. All these things go hand in hand, there being 
 an intimate connection between such economic factors as large 
 population, minute labour, rich produce, small rural industries, 
 like flax-steeping and peeling, preparation of chicory, tobacco, 
 and hops, oil-pressing, &c. It is a system which must be 
 looked at as a whole ; and it is one by which a country, one 
 might say by nature incapable of cultivation, has become the 
 garden of Europe. 
 
 I'hus the example of Flanders shows that, as far as the 
 production of wealth and even the clear produce are concerned, 
 the spade ought to get a verdict in an action against the plough. 
 1 admit at once that it would be well for the spadesman, could 
 he have his work done for him by horses and steam engines, 
 that his work is harder and his returns smaller than is good for 
 man. But would he be happier, wealthier, better, under a land 
 system under which he would be a labourer for hire without 
 prospect of elevation ? Especially would he be so on the 
 barren sands of Flanders. 
 
 § i6. The system of tenure usual in Belgium is a lease. In 
 the Middle Ages there also existed the form of tenure known 
 by the name of metayage, of which, however, traces are now to 
 be found only in some of the polders along the coast of the 
 German Ocean. The cultivation of land by the intervention 
 of a bailiff or steward, so common in Eastern Europe, is a rare 
 exception in Belgium. 
 
 The leases are, as a rule, very short — nine years at most ; 
 very seldom indeed for so much as eighteen years. On the 
 other hand, yearly tenancy and tenure-at-will are also very 
 exceptional. All who devote attention to agriculture, even the 
 agricultural societies, though consisting almost exclusively of 
 landowners, admit that the leases are too short. The tenant is 
 not encouraged to improve; and if he does make improvements, 
 he can hardly be said to reap the benefit of them. The land- 
 lords will not grant longer leases, because they want, in the 
 first place, to keep a hold upon their tenants ; and secondly, to 
 raise the rents when the leases expire. It may be said that 
 throughout Belgium such increases of rent take place regularly 
 and i)erio(li('ally.
 
 Belgil'.m.] 
 
 IN VARIOUS COUNTRIES. 
 
 221 
 
 The following table gives an idea of this continuous increase 
 of rents since 1830 : — 
 
 
 1 ) 
 
 NCREASE OF ReNTS FROM 
 
 Rent 
 
 PER Hectare. 
 
 
 1 1830 
 
 1835 
 
 1840 
 
 1846 
 
 1850 
 
 
 
 
 Provinces. 
 
 to 
 
 to 
 
 to 
 
 to 
 
 to 
 
 1830. 
 
 1856. 
 
 1866. 
 
 
 1 1833. 
 
 1840. 
 
 1846. 
 
 1850. 
 
 1856. 
 
 
 
 
 
 t Per cent. 
 
 Percent. 
 
 Per cent. 
 
 Per cent. 
 
 Per cent. 
 
 Fr. c. 
 
 Fr. c. 
 
 Fr. c. 
 
 Antwerp . 
 
 7 06 
 
 IO-22 
 
 6-32 
 
 8-33 
 
 15 -.38 
 
 47-50 
 
 75 
 
 92 
 
 Brabant 
 
 7-62 
 
 12-48 
 
 5-05 
 
 2-41 
 
 17-65 
 
 66-27 
 
 100 
 
 135 
 
 Flanders, \V. 
 
 8-IO 
 
 693 
 
 5-20 
 
 4-05 
 
 16-90 
 
 60-00 
 
 83 
 
 102 
 
 Flanders, E. 
 
 13-96 
 
 11-39 
 
 285 
 
 
 
 21-84 
 
 71-40 
 
 106 
 
 130 
 
 Hainaut 
 
 8-94 
 
 15-58 
 
 7-48 
 
 1-05 
 
 14-58 
 
 69-79 
 
 IIO 
 
 135 
 
 Liege . . 
 
 7-5^ 
 
 14-72 
 
 8-11 
 
 741 
 
 16-09 
 
 62-35 
 
 lOI 
 
 124 
 
 Limbourg . 
 
 1028 
 
 13-02 
 
 1-90 
 
 
 
 1 7 00 
 
 46-80 
 
 62 
 
 90 
 
 Luxembourg 
 
 5-14 
 
 7-73 
 
 4-17 
 
 3-03 
 
 14-71 
 
 28-78 
 
 39 
 
 44 
 
 Namur . . 
 
 Average of 
 Kingdom . 
 
 9-87 
 
 15-35 
 
 7-66 
 
 10 -OD 
 
 16-36 
 
 36-77 
 
 64 
 
 77 
 
 9-10 
 
 1274 
 
 5 -90 
 
 2-94 17-14 
 
 57-25 
 
 82 
 
 102 
 
 Since 1856, rents have risen even more in proportion than 
 during the preceding period. It may thus be affirmed that, 
 since 1830, the value of land and the rents have doubled. 
 This is a further proof of the proposition so clearly set forth by 
 Mr. Mill, that while the rate of profit and of interest has a down- 
 ward tendency in a progressing community, rent, on the contrary, 
 tends to rise incessantly. Thus, the landowners actually reap 
 all the benefit resulting from the progress made by the entire 
 community in various directions. Part of this progressive 
 increase in rent may be traced to improvements made by the 
 farmers in the cultivation of the soil. By raising the rent, the 
 landlord lays hold for himself of this advance in the value of 
 the land produced by those who cultivate it. 
 
 The increase of the revenue the landlord derives from his 
 land is not the result of improvements executed by himself; 
 and the fact adverted to is a general one, which may be met 
 with everywhere. In whatever cases landlords have actually 
 made improvements, they have got the interest of the outlay in 
 the shape of an additional augmentation of their revenue. 
 
 For these reasons, I think that the increase of rent, being 
 due to the progress of society at large, and not to the exertions 
 of the landowners, ought not in justice to benefit the latter 
 alone. It would be but fair to divide this benefit. For a 
 portion of it the tenant should come in ; and this he would get
 
 222 SYSTEMS OF LAND TENURE [Laveleye. 
 
 if he had a longer lease. Another part of it should fall to the 
 share of the community at large, in the shape of an increase of 
 the land-tax. 
 
 At the present day, the land tax (ivipot fonder) in Belgium 
 amounts to about 19 million francs (^760,000). It ought to 
 increase in some proportion to the augmentation of rent, so, 
 however, as not to affect the revenue, which is the reward of 
 improvements ; but some portion of that general advance of 
 rents, which is the result of the general progress of the country, 
 ought to be laid under contribution. 
 
 All this applies with equal force to the British Isles, but 
 subject to some important restrictions, because, in the first 
 place, English and Irish landlords do not put on the screw of 
 a continual increase of rent with anything like the harshness 
 habitual with Belgian landowners. In the second place, the 
 local rates in England are high, and are rising progressively. 
 Thirdly, rents have been raised in England much less in 
 proportion than they are in Belgium. 
 
 Nevertheless, as regards the increase of rent, the land 
 system of Belgium is not so bad as that of England. In both 
 countries part of the clear profit of civilisation is sublimated, so 
 to speak, and deposited in the shape of increased rent in the 
 landlord's exchequer, even though he be an absentee or a 
 do-nothing. But where there are a great many landowners a 
 large proportion of its inhabitants must come in for a share 
 in the increased rent. If, on the contrary, they are few in 
 number, they monopolise the whole of the social benefit. In 
 the former case the working of the economic law of increasing 
 rent will be harsher than in the latter ; yet it will be acquiesced 
 in when many benefit by it, while it must sooner or later arouse 
 opposition where it tends to enrich a few families only. The 
 system of rack-renting, which is so much censured in England, 
 is generally practised in Flanders ; nevertheless, the tenant 
 bears with it in all meekness, notwithstanding the sufferings it 
 entails on him. In the United Kingdom the landlord would 
 scruple to shear his tenants as they are shorn in Flanders, yet 
 he does not escape reproach ; and this is easily explained by 
 the fact that, for one landowner in England there are a hundred 
 in Flanders. Still, on the whole, the system of tenure of land 
 in Flanders is anything but worthy of imitation. There are too 
 many tenant-farmers, and too few peasant-proprietors ; the 
 leases are excessively short, and the rents excessively high.
 
 Belgium.] IN VARIOUS COUNTRIES. 223 
 
 Arthur Young has said : " Give a farmer a nine years' lease 
 of a garden and he will make a desert of it.'" It is to the 
 honour of the small farmers of Flanders, and oi la petite culture, 
 that they have falsified this maxim. 
 
 § 17. Among the various systems of tenure of land in the 
 Belgian and Dutch Low Countries, there is none more interest- 
 ing to the student of agriculture than the Beklcm-rcgi, in the 
 province of Groningen. This is a kind of hereditary lease, 
 something like fixity of tenure. The landlord can never raise 
 the tenant's annual rent. The tenant, on the contrary (called 
 the Bcklemde-?neyer), may bequeath his right of occupation, 
 dispose of it, moitgage it, provided only he does not diminish 
 the value of the land. The Beklem-regt is indivisible, and can 
 be held only by one person. Whenever it changes hands the 
 landlord is entitled to a fee called propinen, which amounts to 
 one or two years' rent, and is fixed beforehand. This system 
 dates from the Middle Ages, and is still constantly practised in 
 Groningen, even on lands recently reclaimed, on polders, and 
 on lands put in cultivation in the turf-bOg region. It arises in 
 the following manner : — Some landowners being in want of 
 money, and not wishing to mortgage their lands, give hereditary 
 leases of them for a sum of money, thus remaining nominally 
 proprietors ; they never part with the fee-simple. Moreover, 
 when the land is sold, the fee-simple and the Beklem-regt are 
 disposed of separately, and a higher price is thus realised. 
 
 All Dutch economists are alive to the advantages of the 
 Beklem-regt, of which the principal ones are as follows : — 
 
 I St. It gives the tenant absolute security for the future, thus 
 encouraging him to make improvements. 
 
 2nd. The tenant purchasing the right of occupation has 
 less to pay for it than he would for the fee-simple, and yet 
 acquires the same security. The higher the rent, the less 
 money he pays. In Ireland, on the contrary, no real right is 
 obtained by purchasing the goodwill or tenant right, and the 
 new tenant must pay the same rent as others. In Groningen, 
 an hereditary right of occupation is acquired, and the rent to 
 be paid is moderate and invariable. 
 
 3rd. The Beklem-regt, being indivisible, prevents compul- 
 sory or injurious subdivision. If the division is beneficial, the 
 landlord consents to it in consideration of a share in the profits 
 to be gained by it.
 
 2 24 SYSTEMS OF LAND TENURE [Laveleye. 
 
 4th. The Beklevi-regt precludes the immoderate increase of 
 the population, because, on the one hand, it limits the number 
 of farms, and on the other, because the farmer himself being in 
 good circumstances, his sons are not likely to allow themselves 
 to fall into distress. 
 
 5th. By this mode of tenure a number of well-to-do quasi- 
 proprietors are made to reside in the country, cultivating the 
 land with capital and science, whereas if the landlords were to 
 hold the land themselves they would go and live in the towns, 
 and let their estates to tenants at ruinous rents. 
 
 Thus, instead of tenants with the fear of losing their 
 holdings always before their eyes, and ground down by ever- 
 increasing rents, this system, derived from the Middle Ages, has 
 created a class of semi-proprietors, independent, proud, simple, 
 but withal eager for enlightenment, appreciating the advantages 
 of education, practising husbandry not by blind routine and as 
 a mean occupation, but as a noble profession by which they 
 acquire wealth, influence, and the consideration of their fellow- 
 men ; a class ready to submit to any sacrifice to drain their 
 lands, improve their farm-buildings and implements, and look- 
 ing for their well-being to their own energy and foresight alone. 
 
 Systems of tenure of land similar to the Beklcm-regt used to 
 exist in the Channel Islands and in Brittany, by the name of 
 domame congcahle, in Lombardy by the name of coniratto di 
 livel/o, and in Portugal by that o{ aforavicnio.'^' As long as the 
 hereditary /^;/^;/A- cultivate the land for themselves, the Bekloii- 
 regt is attended only with beneficial effects ; but as soon as 
 they sub-let it becomes subject to the drawbacks of common 
 leases, with the difterence that in that case the sub-tenant must 
 pay a double rent— viz., the fixed one to the landlord, and a 
 variable one to the hereditary tenant. 
 
 Could \\\e. goodwill m Ireland be converted into Beklem-regl 
 or a/ont!?!€/ito, the country might perhaps be saved by it. But 
 then the Irish peasants would, in the first place, have to respect 
 the indivisibility of their leaseholds and of the fiirms for which 
 these are granted. Moreover they would have to pay to the 
 landlords themselves, not to the outgoing tenants, the price of 
 the hereditary leases for which they would come in. One must 
 add, however, that it would in all probability be very difficult 
 to make them understand and appreciate this mode of tenure. 
 Even in the provinces adjoining Groningen, where the whole- 
 • Vide the note on a/oramerifo at the end of this essay.
 
 Belgium.] IN VARIOUS COUNTRIES. 225 
 
 some effects of this system are seen and appreciated, it is not 
 adopted. 
 
 Lawyers, inspired with the ideas of uniformity and simpHfi- 
 cation of the French Revolution, are moreover opposed to a 
 system which formerly used to prevail in a great part of 
 Europe. It has likewise disappeared in many countries by 
 degenerating from its original form, or by reason of being 
 coupled with imjjroper regulations. In Lombardy the contratto 
 di livdlo, enforcing certain payments in kind, prevented the 
 hereditary former from growing such crops as he liked, and 
 thus formed an obstacle to progress in husbandry. Instead ot 
 trj'ing to do away with this system, it should be preserved, and 
 even brought into general use, with improvements in its 
 form. 
 
 § 18. The Flemish Fachters-regt, or farmer's right, consists 
 in the liability of the incoming tenant to pay the outgoing one 
 for the value of the straw and manure on the land, besides the 
 manure in stock, and the manure and crops on the ground ; 
 being a compensation for unexhausted iniprovements, but given 
 on a more systematic plan than in England. 
 
 The existence of this custom in Flanders dates as far back 
 as the Middle Ages, which is another instance of the progress 
 the country had achieved, even in those remote days. At 
 present the Pcichters-regt varies according to districts, and the 
 differences seem to coincide with the areas occupied of old by 
 the various German tribes. In the neighbourhood of Ypres and 
 Courtrai, not more than one-third of the value of the manure 
 from which a crop has already been raised, is given ; near 
 Ghent, the indemnity amounts to one-half of that value ; and 
 in the Waes country a fixed rate of twenty-one francs is paid 
 per hectare for the manure sunk in the two foregoing years. 
 The total amount of compensation varies according to the 
 state of cultivation of the land and the time of taking possession 
 of it. 
 
 In the southern districts, where the leases commence in 
 October, the Fachters-regt applies only to the half-exhausted 
 manure and the manure kept in tanks, and does not exceed 
 70 or 80 francs per hectare on an average ; whilst in the neigh- 
 bourhood of Ghent, where the farmers take possession at 
 Ghristmas, or on the ist ot March, the indemnity is paid for 
 the croi)s in the ground as well as the manure, and amounts 
 p
 
 226 SYSTEMS OF LAND TENURE [Laveleye. 
 
 to 400 or 500 francs for every hectare sown with corn 
 (emblave).'' 
 
 In Mr. Caird's " Letters on Enghsh Agriculture " it is 
 stated that in the counties of Surrey and Essex an inventory is 
 usually drawn up, similar to the Flemish p/izy, which is an 
 inventory of unexhausted improvements. However, Mr. Caird 
 is not very much in favour of a custom which, in his opinion, is 
 attended with the following two drawbacks : — 
 
 I St. Costly valuations, lawsuits, and law expenses, 
 
 2nd. The compensation for the inventory exhausts the 
 resources of the incoming tenant. 
 
 Neither of these two drawbacks exists in Flanders, and 
 neither ought to exist in England. The inventory is drawn up 
 by experts, and frequently by the notary of the locality, at a 
 trifling expense, and litigious proceedings hardly ever arise 
 from this. Where the crop in the ground is to be valued, as in 
 the neighbourhood of Ghent, the operation is indeed attended 
 with some difficulties ; but where the new-comer takes pos- 
 session in October, as in the environs of Courtrai, nothing 
 need be valued except the farmyard manure (of which the cubic 
 volume may be readily ascertained), and the half-exhausted 
 manure ; and the inventory is taken with the greatest facility. 
 
 As regards the alleged diminution of the incoming tenant's 
 resources, this charge is groundless ; on the contrary, the prizy 
 increases his capital. He pays for manure on the sjDOt, which 
 he would otherwise have to procure from some remote quarter. 
 It is owing to the prizy that the outgoing farmer does not 
 neglect the land even in the last year of his tenure, and the 
 incoming tenant finds it in perfect condition, instead of its 
 being exhausted and overgrown with weeds. No outlay is less 
 regretted by the Flemish farmer than the one for the inventory. 
 His saying is, Hoe hooger hoe beter, the higher the better.t 
 
 In Flanders all agricultural authorities agree that the 
 Pachters-regt is indispensable to good culture. They go so flir 
 as to demand, in the interest of rural economy, that the local 
 customs relative to this right be systematised and regulated by 
 
 * In an interesting manual for valuers of indemnities to be paid to outgoing 
 tenants, entitled " Het I'achters-regt ; door L. Dclaruc en van Bockel," I find 
 valuations of compensations for lands sown with barley, colza, and wheat, 
 amounting to from 400 to 500 francs per hectare ; of which upwards of 300 
 francs arc for manure. 
 
 t I need hardly add that nothing of all this applies to the Ulster tenant right 
 as described by Lord Dufferin on "Irish Tenure," p. 116.
 
 Belgium.] IN VARIOUS COUNTRIES. 227 
 
 law. In fact, the land in Flanders is naturally so excessively- 
 poor that if the outgoing tenant neglects it during the last 
 two years of his occupation the farm is ruined, and a great 
 expenditure becomes necessary to put it into its proper 
 condition again. 
 
 The Flemish Pachters-regt deserves to be introduced every- 
 where, for the following reasons : — 
 
 1 . It is equitable, compensating, as it does, the farmer for 
 his improvements and good cultivation. 
 
 2. It prevents the exhaustion of the land during the last 
 two or three years of the lease. 
 
 3. It furnishes the incoming farmer with manure, which 
 it is his interest to have. Both the Flemish and the Chinese 
 properly think that there is no better investment to be made 
 than in manure. 
 
 § 20. Those who cultivate the soil are either landowners, 
 tenants, or labourers. Let us now examine the condition of 
 each of these three classes in Flanders. 
 
 If the cultivator of the land is the owner of it at the same 
 time, his condition is a happy one in Belgium, as everywhere 
 else, unless the plot he holds is insufficient to support him, in 
 which case he has to eke out his existence by becoming also a 
 tenant or labourer. But as a rule the peasant-proprietor is well 
 off. In the first place, he may consume the entire produce of 
 his land, which being very large, especially in Flanders, his 
 essential wants are amply satisfied ; secondly, he is independent, 
 having no apprehensions for the future ; he need not fear being 
 ejected from his farm, or having to pay more, in proportion as 
 he improves the land by his labour. 
 
 Yet the mode of living of the little landowner, who Avorks 
 as a peasant, difters very little from that of the tenant-farmer. 
 His food is about the same, except that he eats bacon more 
 frequently, killing a pig or two for his own use, and that he 
 drinks more beer. His clothes, habits, and dwelling also 
 resemble those of the other class, save that they denote rather 
 easier circumstances. He lays money by to purchase land and 
 give his farm a better outline ; and it is owing to the com- 
 petition of peasant-proprietors in the land-market that the value 
 of real property is rising so rapidly. 
 
 What remains to be desired is not that the peasant-proprietor 
 should add to or refine his wants, for the progress of civilisation
 
 228 SYSTEMS OF LAND TENURE [Laveleye. 
 
 is not co-extensive with that of epicureanism,* but that he 
 should pay more attention to his own intellectual improvement, 
 and to this a portion of his annual savings might very well be 
 devoted. 
 
 The situation of the small Flemish tenant-fanners is, it must 
 be owned, rather a sad one. Owing to the shortness of their 
 leases, they are incessantly exposed to having their rents raised 
 or their farms taken from them. Enjoying no security as to the 
 future, they live in perpetual anxiety. So much does this fear 
 of having their rents raised tell upon their minds, that they are 
 afraid to answer any question about farming, fancying that an 
 increase of rent would be the inevitable consequence. 
 
 Rack-rents leave the small farmer barely enough to subsist 
 on. I do not think his working capital returns three per cent., 
 and he works himself like a labourer. However, he is always 
 properly clothed, and on Sundays he dresses just like a 
 bourgeois. His wife and daughters, who work barefooted during 
 the week, are stylishly dressed on Sunday, wearing crinolines, 
 ornaments, and flowers in their hair. 
 
 It ought to be added that suitable farm-buildings are almost 
 always erected by the landlord, and remarkably well kept by 
 the tennnt ; this is quite a traditional custom in Flanders, and 
 has been so for many ages. Every one is alive to and respects 
 the requirements of good farming. The properties cultivated 
 by the proprietors themselves, although in a minority, form a 
 kind of model or type, and every one does his best to imitate 
 them. They are looked upon as standards from which the 
 peasants would be ashamed to depart very far. Their influence 
 in this respect has been very forcibly pointed out by ]\Ir. Clifie 
 Leslie in a remarkable article on " The Farms and Peasantry 
 of Belgium," t in which he says : " As Falstafl" could boast of 
 being not only witty himself, but the cause of wit in other men, 
 the peasant-proprietor may boast that he is not only a good 
 farmer himself, but the cause of good farming in other men." 
 
 Nothing gives a more charming idea of country life than 
 the little farmhouses of Flanders, especially in the Pays de 
 
 * In my opinion it is a great mistake to consider the refinement of wants 
 and luxury in jjrivatc life as a criterion of civilisation. In tlie best days of 
 anci(-nt (jreece, private comfort was all but unknown. In ancient India and 
 Judx-a, the men, whose minds conceived the ideas on which our moral life is 
 based, lived in quite a primitive way. 
 
 f Vide Eraser s Alagazitie of December, 1867, and T. Cliffe Leslie's valuable 
 book, " Land Systems in Ireland, England, and the Continent."
 
 Belgium.] IN VARIOUS COUNTRIES. 229 
 
 Waes. With an orchard in front, where the cows graze in the 
 shadow of the apple-trees, surrounded by well-kept hedges, the 
 walls whitewashed, doors and window-frames painted in green, 
 rtowers behind the windows, the most perfect order everywhere, 
 no manure lying about, the whole presents an appearance of 
 neatness, and even of ease and comfort. 
 
 The reason why these small farmers are ground down by 
 rack-rents is that there are too many of them. On loo hectares, 
 or one square kilometre (0-386 square mile), there are in West 
 Flanders, 200, in East Flanders, 270 inhabitants, against 76 in 
 France, and 136 in Lombardy. The peasants of Flanders 
 unfortunately will not leave their own province, and their 
 intense competition for farms raises the rents in a manner 
 ruinous to themselves. 
 
 Above the small farmers there is a class of small proprietors, 
 who profit without scruple by this competition. Having just 
 enough to support themselves, they do not trouble themselves 
 about the condition of the farmer or anything else, being 
 anxious to maintain " their position in the world," as they 
 term it. 
 
 No parallel can be drawn between the Belgian and the 
 English landowner. The latter, I believe, acts upon considera- 
 tions unknown on the Continent, and no inference can there- 
 fore be drawn from so exceptional a case. Not that the English 
 landlord is intus et in cute better than other men \ but he is 
 subject to a higher public opinion, and being a much wealthier 
 man, he is not tempted to screw the last farthing out of his 
 tenant. Hence the condition of the English tenant-farmer is 
 a happier one than that of the Flemish. 
 
 As a rule, peasant property is an excellent thing wherever 
 the proprietor is himself the cultivator ; but where it exists side 
 by side with leasehold farming in an over-populated country, 
 the tenant-farmer is placed in a worse condition than if the 
 estates were large. But it is most important to bear in mind, 
 in comparing the condition of the agricultural population in 
 Flanders and England, that the small Flemish farmer who 
 cultivates his land with his own hands corresponds, not to the 
 English tenant-former, but to the English farm-labourer. Now 
 our small farmer, though hardly better fed than the English 
 agricultural labourer, has a decided advantage over the latter ; 
 he doubtless has the cares and responsibility his superior 
 position entails, but on the other hand he acquires from it
 
 230 SYSTEMS OF LAND TENURE [Laveleye, 
 
 habits of providence and self-control, and the exercise of his 
 intellectual faculties. 
 
 Let us next glance at the condition of the agricultural 
 labourer in Flanders. His wages are very low, ranging from 
 ifr. IOC. to ifr. 50c. per day, without board. In the Walloon 
 country, in which are all the large centres of industry, the 
 wages are about double of this, owing to the mines and manu- 
 factories competing with the land in the labour-market. Some 
 facts connected with this are almost incredible. In the environs 
 of Liege, an agricultural labourer earns 2^ francs a day, while 
 near Hasselt, at a distance of no more than four leagues, he 
 earns but one franc ; the country is Flemish, and he is pre- 
 vented by the difference of language from going to a Walloon 
 district, in which he might earn much higher pay. 
 
 For breakfast the Flemish labourer has bread and butter, 
 with chicory, coffee, and milk ; for dinner, potatoes, vegetables, 
 and bread ; at 4 p.m., bread and butter again, and for supper 
 the same fare as for dinner ; ver}'- seldom a little bacon, and as 
 for butchers' meat— four or five times in a year. Those who 
 live with the farmers get pork more frequently. 
 
 On the other hand, the farm-labourer is generally well 
 housed. For himself and his family he always has a house, 
 with at least two, more frecjuently four, rooms, generally kept 
 in good condition, and having an acre or half an acre of land 
 belonging to it, where the man grows vegetables, potatoes, 
 and rye ; and there is besides a goat which gives milk to the 
 household. 
 
 Number of Families for every 100 Houses 
 
 in the RURAL DISTRICTS of 
 
 
 1846. 
 
 1856. 
 
 Flanders, West . . . .' 
 Flanders, East .... 
 The Entire Kincjdom 
 
 103 
 104 
 104 
 
 lOI 
 
 102 
 
 104 
 
 'J'hus, the number of houses in Flanders has increased as 
 comjjared with the rural population, who have by this means 
 found better accommodation. 
 
 No remarks need be made on the beneficial effects- of a 
 good home on a man's morality and self-respect. This aijplies 
 to the country as well as to towns, and accounts for the fact 
 that the Flemish population, badly fed and little educated as it
 
 Belgium.] IN VARIOUS COUNTRIES. 23 1 
 
 is, yet presents all the outward appearance of well-being and 
 civilisation. 
 
 It may be affirmed that in normal years no pauperism is to 
 be found in the rural districts of Flanders, and beggars are 
 very rare. The labourers and small artisans live poorly; yet 
 having nearly all of them a little plot of land to work, they are 
 at any rate kept from starving. At the time machinery sup- 
 planted hand-spinning, a severe crisis took place indeed ; but 
 the last traces of it have now disappeared. 
 
 A stranger visiting Flanders should guard against rashly 
 drawing unfavourable inferences from certain facts arising from 
 custom. A Walloon, for instance, seeing women working in 
 the fields barefooted, is apt to consider it as a proof of extreme 
 destitution. He is, however, in error — it is the custom of the 
 country, A well-to-do farmer's daughters, who are stylishly 
 dressed on Sundays, will work barefooted during the week. 
 The same observation applies to the rye-bread, which the 
 country people eat, as a rule, simply because they have done so 
 for centuries, although they can often afford to eat wheaten 
 bread ; which, by the way, is coming into more general use at 
 present. 
 
 § 20. In my work on the rural economy of Belgium, I 
 made some reflections on the indifferent condition of the 
 Flemish peasants, from which inferences adverse to peasant 
 proprietorship have been drawn. These conclusions are 
 erroneous. The evil arises from the fact that there are too 
 few small proprietors and too many small tenants among the 
 peasantry of Flanders. 
 
 If you want to find a district in Belgium where the peasants 
 are well off, you must go to Lower Luxembourg. There the 
 land is divided out into a multitude of peasant properties, 
 almost the whole of which are cultivated by the owners them- 
 selves. Each of these manages his own farm, and under the 
 shadow of his fruit-trees enjoys in security what he earns by 
 the sweat of his brow. This is a kind of rural opulence, due 
 not to the possession of large capitals, but to the abundance oi 
 rural produce. No one is rich enough to live in idleness ; 
 none so poor as to suffer from want. The peasant there is also 
 more enlightened than in Flanders, and more independent. 
 The situation is nearly the same as that of the Canton of 
 Grisons, in Switzerland.
 
 232 SYSTEMS OF LAND TENURE [Laveleye. 
 
 A few figures will indicate the contrast between Flanders 
 and Luxembourg ; in each of the two provinces I shall select 
 a normal district. 
 
 Flanders. District of St. Nicholas, in the Pays de Waes. 
 
 Farm-labourer's wages, i franc 10 centimes per day. 
 
 . n J 1 J f by owners, 6,ss6 hectares. 
 
 Area of land worked < , ^ ^ ?o 1 
 
 ( by tenants, 31,689 hectares, 
 
 Luxembourg. Bouillon and Paliseul district. Farm-labourer's 
 
 wages, 2 francs per day. 
 
 Area of land worked I ^^ °^^'^^^',^' ^°'^99 hectares. 
 ( by tenants, 1,563 hectares. 
 Thus, in Lower Luxembourg the labourer's wages are double 
 what they are in Flanders, although most articles of food, espe- 
 cially meat and potatoes, are cheaper in the former province. 
 
 § 21. The farmers of Holland lead a comfortable, well-to- 
 do, and cheerful life. They are well housed and excellently 
 clothed. They have china ware and plate on their sideboards, 
 tons of gold at their notaries', public securities in their safes, 
 and in their stables excellent horses. Their wives are bedecked 
 with splendid corals and gold. They do not work themselves 
 to death. On the ice in winter, at the kermesses in summer, 
 they enjoy themselves with the zest of men whose minds are 
 free from care. 
 
 The Belgian farmer, we have shown, is neither as rich as 
 his Dutch neighbour, nor can he enjoy himself in the same 
 way. 
 
 One reason is that in Holland the townspeople have at all 
 times invested their savings in public securities, and generally 
 left landed i)roperty alone, which has thus remained entirely in 
 the hands of the peasants. In Belgium, on the contrary, the 
 nobility have retained large landed property, and capitalists 
 have eagerly bought estates. Hence a good number of the 
 peasants have become mere tenants. 
 
 To meet with the ideal of rural life, you must look for it in 
 Groningen or in Upper Bavaria. 
 
 § 22. Pliny's saying, Latifundia pcrdidcre Italiani, has 
 sounded like a warning voice across centuries. The latifimdia 
 of the Roman aristocracy first devoured the small estates, then 
 the small ])roprietors, and, when the Barbarians made their 
 appearance, the emjjire had become a solitude.
 
 Belgium.] IN VARIOUS COUNTRIES. 233 
 
 The Esiados of the grandees of Spain have also destroyed 
 the small landowners, whose place has been taken by bandits, 
 smugglers, beggars, and monks. 
 
 Tiberius Gracchus was the only Roman who understood 
 the economic situation of his country. Had the laws proposed 
 by him been adopted, the decline of the Republic might 
 perhaps have been prevented. 
 
 It is the glory of England to have remained free from the 
 consequences usually attending the large-property system. 
 Great Britain possesses a class of landowners and tenants alive 
 to the requirements of agriculture ; and her gigantic commerce 
 has provided employment for the small freeholders whose lands 
 have been swallowed up. But on the Continent the case is 
 vastly different ; and the reason of this is to be found in the 
 facts noticed with reference to Belgium. 
 
 Here large farms are, as a rule, not so well cultivated as 
 small ones, and this is easily accounted for. To work a farm 
 of 200 hectares with as much capital as Plemish small farmers 
 do, 100,000 francs {^4,000) would be required. Now, a man 
 who commands such a sum will not become a farmer ; he will 
 either go and live in a town, become a functionary, or employ 
 his capital in business ; hence the working capital of large 
 farms is, as a rule, insuflicient, and therefore the returns from 
 these are smaller, and they let at less rent. Thus an additional 
 stimulus is given to subdivision. 
 
 This being the case in Belgium, it must a fortiori be so in 
 countries in which husbandry is more behindhand. In Eastern 
 Europe — e.g., in Hungary, Poland, and Prussia— large estates 
 are farmed by the proprietors themselves, in the absence of 
 tenants of sufficient capital. 
 
 Even in England, would not the land be more carefully 
 cultivated were there a number of peasant proprietors ? * and, 
 supposing there were 200,000 small farmers more than there 
 are now, might there not be 500,000 fewer paupers less to be 
 supported ? I only put the question, not feeling myself com- 
 petent to decide it. 
 
 § 23. Free trade in land. — I borrow this title from an in- 
 teresting work published by Mx. W, Eowler, M.P. In our 
 western world it seems to me necessary that there should be 
 
 * See the excellent article on the "Channel Islands," by M. Zincke, in the 
 Fortnightly Review, istjan., 1876;
 
 234 SYSTEMS OF LAND TENURE [Laveleye. 
 
 no obstacle to land changing hands, in order that it may be 
 distributed in conformity with the laws of political economy, 
 and become the property of those who can turn it to the best 
 account. 
 
 To this end, the first requisite is that all those restrictions 
 should be done away with by which landed property is rendered 
 immovable in the possession of certain families ; for example, 
 primogeniture, entails, &c. In the second place, every one 
 ought to be able to purchase a lot of land without heavy 
 expenses, and with perfect security. If the purchase of an 
 estate involves law-suits, risks of title, or considerable costs, 
 then the rich only can indulge in the luxury. The continuance 
 anywhere of so intolerable a state of things can only be 
 accounted for by the fact that it is the interest of lawyers 
 and of the wealthy to maintain it ; the former for the sake of 
 the legal business it creates, the latter because it keeps the 
 land market to themselves. 
 
 As regards the transfer of land and the law of mortgage, 
 Belgium may be considered a model country. The following 
 is a synopsis of the laws in force in this respect : — 
 
 Since the passing of the Act of December i6, 1852, modify- 
 ing the then existing law, the sale of land takes place by a 
 deed executed before a notary, or else by one under a private 
 seal recognised in law. Deeds under private seal used to give 
 rise to irregularities, and to serious dangers whenever the 
 authenticity of the signature was contested. By the following 
 compulsory forms of law the purchaser obtains perfect security 
 with regard to mortgages. His notary is bound to obtain a 
 certificate {etat ncgatif) from the Registrar or Keeper (Con- 
 servateur) of Mortgages, showing that there are no outstanding 
 charges against either the seller or the former owners. The 
 notary is personally responsible for neglect to take this pre- 
 caution, and the Registrar of Mortgages would also be liable to 
 an action for damages were he to omit to give notice of any 
 incumbrances. If there be any incumbrances of this kind, 
 they may be deducted from the selling i)rice, and in that case 
 the purcliaser assumes the seller's liability ■ or else the pur- 
 chaser may pay off the creditor, who then gives him a discharge 
 of the deljt. 
 
 The law of 1851 has done away entirely with JiypotJieques 
 tacitcs oil li'galcs. All unregistered mortgages are invalid against 
 the purchasers of an estate.
 
 Belgium.] IN VARIOUS COUNTRIES. 235 
 
 Along witli the certificate against incumbrances an etat des 
 inutatio7is must be obtained by the notary — i.e., a statement of 
 all the changes of hands the property has undergone since a 
 fixed date prior to the sale, and establishing the title of the 
 vendor. The notary must moreover take the precaution to 
 obtain an extract from the matrice cadastralc, or otherwise a 
 copy of the official survey. Notice is given of every transfer ot 
 landed property to the ad/ninistmteu?' du cadastre by the offices. 
 of registration and succession duties, as well as by his own 
 surveyors, who make periodical circuits, and ascertain, de visic, 
 what modifications the land has undergone. A good surveyor 
 knows the " parcels " of his district just as well as a shepherd 
 does his sheep. 
 
 The notary draws up the deed of sale, which is signed by 
 the parties, two witnesses, and himself The minute or original 
 of the deed is brought to the office of the Registrar {receneiir de 
 rcnrcgistreinent), who puts an abstract or summary of it on his 
 register. By this formality the purchase and its date are fully 
 authenticated ; but the primary object of it is to secure the 
 Government duty, which amounts to 4 per cent, plus 30 
 centimes additlofuiels, altogether to 5fr. 20 c. per cent, of the 
 selling price. 
 
 After this the deed undergoes transcription. It is then no 
 longer the minute that is lodged with the registrar of mortgages, 
 but a duplicate duly executed. The registrar transcribes it in 
 full ; this transcription establishes the legal transfer of the 
 property as far as third parties are concerned. Under the Code 
 Civil, transcription was not required to validate a transfer. 
 Under the present law, the purchaser who has been the first to 
 have his deed transcribed is the legal proprietor. The tran- 
 scription is subject to a duty of ifr. 30c. per cent., with some 
 centimes additionnels. The notary's fees vary according to the 
 value of the property transferred. 
 
 The essential features of the process may be summed up as 
 follows :— 
 
 I St. A deed of transfer is executed before a public officer 
 (the notary), who is responsible for its proper legal form. The 
 original remains in the notary's hands, and forms the title-deed ; 
 and thus individuals are secured against the loss of their title. 
 
 2nd. This document is transcribed on a public register, 
 with a statement of the mortgages, if any, on the estate trans 
 ferred. An extract from this register may be had for a few
 
 236 SYSTEMS OF LAND TENURE [Laveleye. 
 
 francs, and thus any one may readily ascertain to whom an 
 estate belongs, by what right it does so, and what incumbrances, 
 if any, there are on it ; and all this without any uncertainty or 
 obscurity. 
 
 3rd. The official survey contains a plan of each township 
 {commune), with the parcels, their areas, annual values, and 
 peculiarities marked on it ; and in every comymme in the king- 
 dom there is to be found a copy of the plan of its territory, 
 which may be referred to by the inhabitants, and from which 
 they may claim an extract. 
 
 In Belgium the transfer duties (which are very high, about 
 seven per cent, of the selling price) are levied on the property 
 sold ; but this tax is a bad one, impeding free trade in land. 
 In Prussia, where the same legislation exists, the tax amounts 
 to no more than one and a half per cent., and the notary's 
 fees are very low. If the Government requires the amount ot 
 the tax, it had better impose it on land directly, by increasing 
 the land-tax. It falls on the owners of land in either case, 
 but in the latter there would be the compensatory advantages 
 arising from unimpeded sale of their land. In other respects 
 the system is perfect. The cadastre, or official survey, ascertains 
 the areas, boundaries, and properties of estates ; the notary 
 puts the deed of transfer into its proper legal shape, and the 
 transcription on a public register fixes the date of the transfer 
 and publishes it to the world. There is, in short, absolute 
 authenticity combined with full publicity, being just the two 
 things needful. It is the duty of the State to make these 
 formalities compulsory, a public and not merely a private 
 interest being at stake. 
 
 It is of the highest public interest, in the first place, that 
 landed property should easily get into those hands by which it 
 can be turned to the best account \ secondly, that the title to 
 property in land should be secure and incontestable ; and, 
 thirdly, that there should be no legal obstacles to the sub- 
 division of land when the natural economy tends to it, so that 
 the number of small landowners should not be artificially 
 reduced by imperfection in the law. 
 
 The Belgian system is only an improvement on that of the 
 French law, wliich has been successively adopted by almost all 
 continental countries, on account of its conspicuous usefulness. 
 
 As long as I<^nglai:id does not introduce security, publicity, 
 facility of exchange, in f\we,f /re trade into everything connected
 
 Belgium,] IN VARIOUS COUNTRIES. 237 
 
 with property in land, there will ever be an insuperable obstacle 
 to the establishment of an agrarian system in keeping with the 
 wants of modern society. A reform in this particular branch 
 of English law is, in my opinion, the most urgent of all. 
 
 § 24. We have seen that much larger gross returns are 
 everywhere obtained from the land by small than by large 
 farming. Tliis is certainly a great, but not tlie greatest, boon 
 accruing from it. 
 
 The larger the number of landowners is in a country, the 
 more free and independent citizens there are interested in the 
 maintenance of pubhc order. Property is the essential com- 
 ])lement of liberty. Without property man is not truly free. 
 VVhatever rights the political constitution may confer upon 
 him, so long as he is a tenant he remains a dependent being. 
 A free man politically, he is socially but a bondsman. 
 
 In Belgium most tenant-farmers enjoy both the municipal 
 and parliamentary franchise. But this right, so far from raising 
 them in the social scale, is but a source of mortification and 
 humiliation to them, for they are forced to vote according to 
 the dictate of the landlord, instead of following the dictates of 
 their own inclinations and convictions. How can they feel any 
 attachment to a constitution which, in conferring a new right, 
 really at the same time rivets a new chain on them ? The 
 electoral franchise is but a mockery and a snare to the culti- 
 vator without either proprietorship or a long lease. 
 
 It may be thought a matter for surprise that, in Flanders, 
 feelings hostile to social order nevertheless do not manifest 
 themselves, and that agrarian outrages are never perpetrated as 
 in Ireland, although I think it certain that, in consequence of 
 excessive competitions, the Flemish farmer is much more 
 ground down by his landlord than the Irish tenant. The fact 
 that in Flanders, as in all countries in which landed property 
 is distributed among a large number of owners, the ideas called 
 socialist* in the bad sense of the word do not obtain influence, 
 is to be accounted for as follows : — 
 
 The Flemish tenant, although ground down by the constant 
 rise of rents, lives among his equals, peasants like himself who 
 
 * I think it is to be regretted that a disparaging meaning should attach to 
 this word. Are not those who devote themselves to social science, socialists ? 
 When, in 1848, I'roudhon was asked in the Committee of Inquiry, " What is 
 socialism ?" he replied, " A general desire for improvement." " Then we are 
 all of us socialists," remarked the chairman of the Committee.
 
 538 SYSTEMS OF LAND TENURE [Laveleye. 
 
 have tenants whom they use just as the large landowner does 
 his. His father, his brother, perhaps the man himself, possesses 
 something like an acre of land, which he lets at as high a rent 
 as he can get. In the public-house peasant proprietors will 
 boast of the high rents they get for their lands, just as they 
 might boast of having sold their pigs or potatoes very dear. 
 Letting at as high a rent as possible comes thus to seem to 
 him to be quite a matter of course, and he never dreams of 
 finding fault with either the landowners as a class or with 
 property in land. His mind is not likely to dwell on the 
 notion of a caste of domineering landlords, of " bloodthirsty 
 tyrants," fattening on the sweat of impoverished tenants, and 
 doing no work themselves ; for those who drive the hardest 
 bargains are not the great landowners, but his own fellows. 
 Thus the distribution of a number of small properties among 
 the peasantry forms a kind of rampart and safeguard for the 
 holders of large estates ; and peasant property may, without 
 exaggeration, be called the lightning conductor that averts 
 from society dangers which might otherwise lead to violent 
 catastrophes. 
 
 The concentration of land in large estates among a small 
 number of families is a sort of provocation of levelling legis- 
 lative measures. The position of England, so enviable in many 
 respects, seems to me to be in this respect full of danger for 
 the future.* 
 
 § 25. The idea that all men are equal, placed at the head 
 of all modern constitutions, and announced as an axiom 
 throughout the world, is a new idea, the wholesome or baneful 
 effects of which it is as yet impossible to foretell. The gospel 
 proclaimed the equality and fraternity of all men : but it was 
 to Christians a heavenly ideal, which they did not feel called 
 upon to realise in this world. The Reformation, the United 
 States Constitution, and the French Revolution, made of it a 
 terrestrial ideal, of which the consequences must be logically 
 followed up ; it only remains to be seen to what extent these 
 consequences are to be carried. 
 
 Tocqueville, in his book on Democracy, has admirably 
 shown the effect of the equalitarian principle in politics ; but 
 he has not pointed out with equal clearness the economic con- 
 
 * Vide Mr. Cliffc Leslie's remarkable Article on the Land System of 
 England, in Fraser^s Magazine, February, 1867.
 
 Belgium.] IN VARIOUS COUNTRIES. 239 
 
 sequences it is likely to entail ; and these precisely absorb, at 
 the present day, the attention of all those who can see and 
 understand. 
 
 The idea that all men have equal rights, though proclaimed 
 everywhere, has not yet taken root enough to become a living 
 and earnest conviction, resolute on action. To the upper 
 strata of society this idea is like a vague threat hanging over 
 them; to the lower ones, like a light of hope in a distant 
 future ; but being incessantly repeated at workmen's con- 
 gresses and meetings, it is likely to diffuse itself through all 
 classes, especially those whose interest it is to believe it to be 
 true. 
 
 Now suppose this idea universally and ardently embraced 
 in a country in which the larger part of the land is in few 
 hands, what sentiment is it likely to give birth to among the 
 masses ? They will say : " If we are equal, how is it that a 
 caste has perpetual possession of the land, and that we are 
 perpetually doomed to support this caste by the produce of 
 our labour ? Has God made the land only that a privileged 
 few shall enjoy it? Property is said to be the creature of 
 labour. How is it, then, that we ever behold idleness and 
 opulence on one side, and labour and destitution on the other? 
 According to the laws of nature, he who works ought to reap 
 the fruits of the earth, whilst he who lives in idleness should 
 suffer hunger ; but does the perfection of social laws consist in 
 keeping the drone in abundance and the bees in distress?" 
 
 I will not carry the argument further ; it will be readily 
 understood. This was precisely the language held by the 
 peasants who revolted in Germany when Luther spoke of 
 evangelical equality to the feudal society of the sixteenth 
 century. These ideas may be drowned in blood, as they were 
 on that occasion, as they were in France at the time of the 
 Jacqueries ; but they will always revive and redouble the 
 danger to society in countries where inequality appears like an 
 institution conspicuous to the sight of all. 
 
 It is a grave symptom of the emergency that the upper 
 classes themselves no longer remain inaccessible to these 
 ideas. A distinguished member of the British Parliament, to 
 whom I pointed out that certain measures proposed for Ireland 
 looked remarkably like " confiscation," replied to me, " No 
 doubt they do ; but why should they not ? Is it not just that 
 every one should have his turn ?" And really, if but a few are
 
 240 SYSTEMS OF LAND TENURE [Laveleve. 
 
 chosen to sit down to the feast of Ufe, why should these guests 
 be ahvays the same? This is in its crudity the idea which 
 invohmtarily rises in the mind. It is all very well for lawyers 
 and economists to prove its absurdity, but one and the same 
 argument produces a different effect on the man who is seated 
 at table and the man who waits upon him ; what may seem 
 absurd to the man who has the good side of the present 
 regime may appear perfectly right and proper to him who has 
 come in for the bad side. 
 
 Travelling in Andalusia this year (1869), I hghted upon 
 peasants harvesting the crops on the lands of Spanish grandees, 
 which they had shared among themselves. " Why," said they, 
 " should these large estates remain almost uncultivated in the 
 hands of people who have neither created nor improved them, 
 but are ruining them by spending elsewhere the net produce 
 they yield ?" I am convinced that were land more divided 
 in those districts of Andalusia, where ideas of communion 
 prevail at the present day, these would no longer find any 
 adherents. In Belgium, socialism, though spreading among 
 the working classes in manufacturing districts, does not 
 penetrate into the country, Avhere the small landowners block 
 up its way. 
 
 Therefore I think the following propositions may be laid 
 down as self-evident truths : — There are no measures more 
 conservative, or more conducive to the maintenance of order 
 in society, than those which facilitate the acquirement of pro- 
 perty in land by those who cultivate it ; there are none fraught 
 with more danger for the future than those which concentrate 
 the ownership of the soil in the hands of a small number of 
 families.
 
 Belgium.] IN VARIOUS COUNTRIES. 24I 
 
 APPENDIX. 
 
 ON THE AFORAMENTO IN PORTUGAL. 
 
 In the following note are collected some highly interesting particulars of 
 this mode of tenure, for which I am indebted to a Portuguese economist, 
 Mr. Venancio Deslandes. 
 
 The aforametito is very much like the Beklem-regt, in Groningen, i.e., 
 an hereditary lease by which the right of occupation is granted indefinitely 
 in consideration of an annual vent fixed once for all, which the landlord can 
 never iitcrecuse. This right passes on to the heirs, who, however, cannot 
 subdivide the estate, the aforamento being essentially indivisible ; therefore 
 one of the heirs must take it as his share, and indemnify the others. 
 Where this cannot be done, and the heirs do not agree, the aforamento is 
 sold, and the purchaser then holds it subject to the same conditions as 
 the seller. If there be no next of kin and no legatee, the aforamento 
 expires, and the landlord re-enters into possession. 
 
 Again, if the hereditary tenant allows the land to deteriorate so as to 
 reduce its value to one-fifth over and above the capitalised rent, the land- 
 lord resumes the right of possession without any compensation to the 
 tenant. 
 
 Besides the yearly rent, the landlord was formerly entitled to levy a 
 duty, whenever the land changed hands, which was called liictiwsa, if 
 the change took place in consequence of a death, and landeinium, if in 
 consequence of a sale. The new civil code in force since July, 1867, which 
 in many instances betrays, like its French prototype, a hostility to every- 
 thing pertaining to the ancient regime, has done away with these dues as 
 feudal charges. 
 
 Another and severer blow has been dealt to the afoi-amento system, by 
 the new code prohibiting a holder from bequeathing the sole right of 
 occupation to the one of his children he might designate. The division 
 of all property into equal shares being made compulsory, and the afora- 
 mento being indivisible, a conflict arises between the two principles. The 
 aforamento is then sold, and taken from the family who had held it per 
 haps for centuries. 
 
 The aforamento dates from the earliest times of the Portuguese 
 monarchy. It was introduced by monastic orders, especially the Benedic- 
 tines, on the lands they owned, and since then has gradually become 
 general throughout Portugal north of the Tajo. Even down to this day, 
 contracts of this kind are made between private parties ; and if townships 
 let common lands to the inhabitants, this is often done by aforamento. 
 
 Private persons let land at fixed rents, and in consideration of the fixity 
 of tenure they grant, the payment of a certain sum of money is stipulated 
 for, which represents the price of perpetual enjoyment by the tenant 
 without increase of rent ; by submitting to an immediate sacrifice he gains 
 
 Q
 
 242 SYSTEMS OF LAND TENURE. [Laveleye. 
 
 perfect security for the future. The people used to have, and have even 
 at this day, a great predilection for this kind of contract ; both farmers and 
 landlords agree in appreciating the great advantages it offers. These are 
 especially evident in the province of Minho, so celebrated for the perfection 
 of its husbandry, the well-being of its inhabitants, and the magnificent 
 appearance of the country. There all lands are held by aforamento, and 
 by this system of hereditary tenure its prosperity is accounted for. 
 
 I met with aforamento very frequently in the environs of Lisbon, 
 especially in the magnificent country adjoining the Cintra Road. 
 
 Unfortunately legislation, prompted by French ideas, has declared war 
 against this excellent system of tenure, with a view to carry out what is 
 called the liberation of the land, i.e., the reconstitution of absolute property, 
 and the adoption of the common kind of lease. This is an error ; for 
 every institution is good which is calculated to give security of possession 
 to him who cultivates the land.
 
 243 
 
 V. 
 
 THE AGRARIAN LEGISLATION OF PRUSSIA 
 DURING THE PRESENT CENTURY. 
 
 By R. B. D. Moriek, C.B. 
 
 In treating of the agrarian legislation of Prussia during the 
 present century, it is important to guard against a prevalent 
 misconception, to the effect that this legislation is something 
 " sui generis," and different in kind from that of any other 
 European State. The contrary is the case — legislation similar 
 to that we are about to describe has in some form or other 
 marked the history of every German State during the last sixty 
 years, and analogous legislation has marked our own history, 
 and we may add that of every other State of Teutonic origin. 
 
 For every Teutonic community has been evolved out of a 
 germ identical in its rudimental construction with that of every 
 other, and therefore containing within itself the laws of a similar 
 growth. The history of this growth is recorded in the history 
 of the occupation of land ; for, in contradistinction to the 
 citizens of the antique world, the Teutonic race is essentially a 
 race of landfolk. 
 
 I. The original Teutonic community is an association of free- 
 men, a " Gemeinde," a commonalty or commons (not common 
 people in contradistinction to uncommon people, that is, a 
 privileged class, but a body of men having property in common), 
 amongst whom the private right of property in land is correla- 
 tive to the public duty of military service and participation in 
 the judicial and other political acts of the community. These 
 public duties are of a comparatively simple kind ; the agricul- 
 tural relations of the community, on the other hand, are of a 
 comparatively complicated kind. The district, or ]\Iark {i.e., 
 the geographical area marked out and appropriated by the com- 
 munity), consists of three distinct parts ; hrst. the Common
 
 244 SYSTEMS OF LAND TENURE [Morier. 
 
 Mark (the Folcland of the Anglo-Saxons), o\vned jointly by the 
 community ; secondly, the Arable Mark (Feldmark), cut out of 
 the Common Mark, and apportioned in equal lots to the mem- 
 bers of the community (the Anglo-Saxon Boc land) ; and, 
 lastly, the Mark of the tozvnship (Dorf, thorp, villa), also divided 
 into equal lots, and individually appropriated. 
 
 The individual marksman, therefore, stands in a threefold 
 relation to the land occupied by the Gemeinde. He is a joint 
 proprietor of the common land ; he is an allottee in the arable 
 mark, and he is a householder in the township. In the first 
 case he owns "de indiviso," and his rights are strictly controlled 
 by those of his co-marksmen. His cattle grazes on the common 
 pasture, under the charge of the common herdsman ; he hews 
 wood in the forest, under the control of a communal officer. 
 
 In the Arable Mark he has a distinct inheritance, and can 
 call a certain number of square roods his own ; but he must 
 cultivate his lot in concert with his associates, and the com- 
 munity at large determines on the mode of its cultivation. The 
 whole Mark is divided into as many parts or Fields (" Fluren," 
 " Campi ") as the rotation of crops and the alternation between 
 fallow and plough requires. Usually into three such " common- 
 able" Fields, each Field lying fallow once in three years, the 
 community having rights of pasturage on the fallow as well as 
 on the stubbles of the land under the plough.* To obviate 
 the possibility of the individual allottee finding himself every 
 third year without any land under cultivation, which would be 
 the case if the lots lay in undivided blocks, each lot is dis- 
 tributed in single parcels over the three Fields of the arable 
 mark, a subdivision which renders cultivation in common still 
 more necessar)'. 
 
 In the Common Mark, therefore, and in the Arable Mark, 
 the individual is everywhere controlled by his peers, and by the 
 minute customs and usages of the community ; he is contained 
 by and tethered to the association. In his dwelling-house and 
 
 * It is these common rights of pasturage on the Arable Mark which it is of 
 importance to note, for it was from these rights, and not from the right of 
 pasturage on the common pasture, that mediajval agriculture derived its dis- 
 tinctive character. The obligatory cultivation on the "Three Field system," 
 the common temporary enclosure of the commonable Field (not of the individual 
 parcel), whilst the crop is growing, the removal of that enclosure after harvest, 
 the prohibition against permanent and individual enclosures, are all of them 
 results which flowed from the common right of pasture on \\\q fallow axi<\ 
 ■tuliblfs.
 
 Glkmanv.J in various COUNTRiKS. 245 
 
 its appurtenances the reverse is the case. Here he is absolute 
 lord and master. His fenced-in court-house or manor (curtis, 
 hof, mansus, manoir, manor) is in the fullest sense his " own ' 
 (eigen). Over his family, over the dependents ("Hiirige" — 
 " liti ") and slaves (servi) domiciled within it he can dispose as 
 seems good to him. To them he is a lawgiver and a law-en- 
 forcer. Within his pale (septum) neither public nor communal 
 officer can enter otherwise than with his sanction. It lies out- 
 side the community, and constitutes an " immunity " — " im- 
 munity " and " community " thus come to be opposed to each 
 other. " Immunitas est quod non communitas, immunis quod 
 non communis." In the eleventh century this is still the rule 
 applicable universally to the homestead of every freeman. 
 " Omnis domus, omnis area pacem infra septa sua habeat fir- 
 mam. NuUus invadat, nuUus effringat, nullus infra positos 
 temere inquirere, aut violenter opprimere prsesumat. Si fugiens 
 aliquis septum intraverit securus inibi sit."* In the familiar 
 saying, " Every Englishman's house is his castle," we have a 
 distant echo from those far-off times. 
 
 These two distinct aspects of the early Teutonic freeman as 
 a " lord " and a " commoner " united in the same person — the 
 one when within the pale of his homestead, the other when 
 standing outside that pale in the economy of the Mark — should 
 not be lost sight of. In them are reflected the two salient cha- 
 racteristics of the Teutonic race, its spirit of individuality, and 
 its spirit of association ; and as the action and reaction upon 
 each other of these two laws have determined the social and 
 political history of the race, so, as the secjuel will show, they 
 have in an especial manner affected and determined its agricul- 
 tural history. 
 
 Lastly, we should note a strange peculiarity apparently dating 
 back to this period— viz., that the personal "status" of the oc- 
 cupant communicates itself to the walls of his domicile, and, as 
 it were, adheres to them, sometimes reacting back upon the 
 new occupant, and determining ///V status. The occupier privi- 
 leges the manor occupied by him, and the manor thus privileged 
 invests the later occupier with those privileges. In the same 
 way the servile tenement renders the occupier servile. 
 
 This is the first period of the Teutonic community. Its 
 characteristic features are, tha'. there are two distinct communi- 
 
 * Juramentum pacis circa an. 1085, quoted in v. Maurer's '' Einleitung zur 
 Geschichte der Mark, Hof, Dorf und Stadt Verfassung," p. 241.
 
 246 SYSTEMS OF LAND TENURE [Morier. 
 
 ties — an agricultural community and a political community — 
 inseparably identified with each other, the rights conferred by 
 the one being con-elative to the duties imposed by the other. 
 
 We may describe it as the period of land-ownership and equal 
 possession, in which the freeman is a "miles ' in virtue of being 
 a land-^7<:w^r.* 
 
 II. The second period can be described as the period of 
 land tenure, and of unequal possession, in which the feudal 
 tenant is not a " miles " in virtue of being a Isiwd-owner, but a 
 \3.r\A'/iolder in virtue of being a " miles." 
 
 The transition from the one state to the other is necessarily 
 influenced by a great variety of circumstances in the different 
 communities ; but there are certain features connected with 
 this transition common to all the communities. 
 
 1. Intertribal wars, the consequent subjugation of other 
 communities, the appropriation of the land in the common 
 marks of those communities, the unequal division of the 
 lands so appropriated according to the amount of fighting 
 work done by the associates, are among the earliest and most 
 effective causes which break up the original equality of 
 property, and lead to the accumulation of wealth in a few 
 hands. The fines paid as blood-money (Wergeld) in accord- 
 ance with a criminal system entirely based on fines, appears as 
 another important cause leading to the same results. 
 
 2. The cessation of the political independence of the in- 
 dividual community, without, however, as yet a cessation of 
 the political functions of the members of the community. 
 This process takes place in two ways, first, by the gradual 
 colonisation of the Common Mark by communities sent forth 
 from the original townships, in which case each new township 
 receives an Arable Mark cut out from the Common Mark, but 
 
 * For the liistory of the constitution of the Mark we refer our readers to 
 the numerous works of I^udwig George von Maurer. It would be impossible 
 to cite our authorities for the statements made in the text in detail, for we have 
 given the barest outline of a vast amount of learned investigation. The main 
 features of the constitution of the Mark may be considered as having been 
 now fairly won back to the domain of history, thanks to the labours of Maurer 
 and many others, over the entire area of the primitive Teutonic settlements in 
 Germany and Scandinavia. 
 
 It may seem pedantic, in treating of legislation in the nineteenth century, to 
 go back to the institutions of the first century, but the agricultural features of 
 the early Teutonic community have so indelibly engraved themselves on the 
 entire subseciucnt liistory of Teutonic agriculture, especially in Germany (as 
 any one who has seen the map of a (jerman Gemeinde can testify), that we 
 have found it impossible to dispense with this introduction.
 
 Germany.] IN VARIOUS COUNTRIES. 247 
 
 the common mark itself continues to be owned " de indiviso " 
 by all the townships ; secondly, by the agglomeration of a 
 number of marks into a loose kind of confederacy, which, by 
 degrees, assumes a greater consistency, and becomes in time a 
 national unity. 
 
 In both cases the several communities retain in their own 
 hands the management of the affairs of their own township, 
 but national affairs are transacted in general assembHes. In 
 both cases, however — and this is a point which it is of import- 
 ance to note — a sort of embryo suzerainty or 'over-lordship is 
 claimed, in the one case by one or other of the more important 
 marks of which the confederacy is composed ; in the other 
 case by the original or mother township (Mutter Dorf), as it 
 was termed, over the daughter townships. 
 
 3. The establishment of permanent executive organs, and 
 the gradual hereditariness of the executive office. Hitherto, 
 the assembly of the community has been all in all. In case of 
 war, it elected a chief, a king or Herzog, whose attributes were 
 purely military, and ceased when peace was concluded. When 
 the assembly sat as a court to try civil or criminal cases, it 
 likewise elected its president. From the eariest times, however, 
 in both cases, the choice appears to have been limited to a 
 certain number of families, who, in some especial manner, 
 represented the blood of the tribe, and little by little, though 
 the forms of election continue, office becomes practically 
 hereditary. How this rule obtained in the case of the Anglo- 
 Saxon and Frankish kings is well known ; but it is necessary to 
 note that this tendency is universal throughout the Teutonic 
 Kosmos, and applies to all its institutions. Thus, as the king 
 of the nation is " de jure " elective " de facto " hereditary, so 
 also is the president of the court of the township, the judge or 
 Schu/t/ieiss, he who apportions unto a man his debt or guilt — i.e., 
 who fixes and exacts the Wergeld. This is a matter of extreme 
 importance, as it is to the hereditariness of this office and its 
 identification with one particular manor in each township, so 
 that whosoever owns the manor exercises the office, and who- 
 ever exercises the office owns the manor, that we apparently 
 owe the origin of the manorial rights which aftenvards become 
 the key-stone of the entire land system in feudal times, and to 
 this day affect in an important manner the agrarian relations of 
 many important coim tries in Europe, England included. Our 
 space does not admit of our entering upon this subject here.
 
 248 SYSTEMS O" LAND TENURE [Mor:er, 
 
 and it must therefore suffice to say that from the earliest times 
 known to us — and we are now speaking of times antecedent to 
 the estabhshment of the feudal system — we note in every 
 Teutonic township one manor (Hof), which thus becomes par 
 excellence the manor, raised above its fellows. This manor, 
 afterwards variously described as the " Salhof," " Frohnhof," 
 " Curtis dominicalis," " curtis judicialis," " curia publica quae 
 dicitur Frohnhof/' receives dues and services from the other 
 manors in the township, even whef-e these manors are the allodial 
 property of free}nc}i. That these dues and services were of 
 the nature of public charges, and at a time when all payments 
 were made in kind represented the emoluments of the principal 
 executive officer of the township seems now established beyond 
 a doubt.* 
 
 The foregoing indications will suffice to point out the pre- 
 disposing causes in the pure Teutonic society which led when 
 that society came to conquer the Roman world to the estab- 
 lishment of the feudal system, a system made up of Teutonic 
 and Roman elements — viz., on the one hand of the Teutonic 
 idea of the correlation between possession of land and military 
 service, of the Teutonic tendency to change public office into 
 private right, and to transmit such rights by inheritance; lastly, 
 of the Teutonic peculiarity of regarding " unfree " service ren- 
 dered personally to the sovereign as in its nature honourable,, 
 though involving political disabilities (Thaneship, Dienst- 
 mannschaft, Horigkeit, Ministerialitat);f and, on the other 
 hand, of the ideas of the Roman law regarding " beneficial 
 uses," the difference between "possession" and "dominium," 
 as well as the Roman practice connected with the agricultural 
 colonisation of the provinces. 
 
 The ai:)plication of the feudalX system in Germany was 
 necessarily a much slower process than in the Roman Provinces, 
 where it was, as it were, called into life by the exigencies of 
 conquest. In the one case, the raw material that it had to 
 work up consisted of free allodial % i)roprietors, who deemed 
 
 * Confer Landau Der Salhof, do. Die Territorien. 
 
 t Confer Freeman's account of Thaneship in his " History of the Norman 
 Conquest." 
 
 X The etymology of alodium and feodum throws great light on the entire 
 question of "ownership'' versus "tenure." 
 
 The syllable vd, in old High German ot, in Anglo-Saxon ead, signifying 
 "possession," " wt-altli," " treasure," is common to both. 
 
 Allod, alodium, or, in its earliest form, alodis and alaudes, is that which is 
 altogether my possession, or possession in all its fulness. 
 
 [Compare /Clcinod, a jewel, i.e., a small possession, or rather a possession
 
 Germany.] IN VARIOUS COUN'I'UIL'.S. 249 
 
 themselves the equals of the king, and whose personal status 
 was legally higher than that of his proudest Dienstmannen ; in 
 the latter case it consisted principally of conquered Romans 
 and Provincials, who were glad to get back their lands on any 
 terms. 
 
 In Germany, therefore, it was an economical necessity 
 rather than a political convulsion which brought about the 
 change. As population increased, more and more townships 
 were settled on the common lands, the proportion between 
 pastoral as compared with agricultural wealth decreased ; and 
 the ordinary freeman was gradually reduced to little more than 
 what his lot in the arable mark brought him in. Simul- 
 taneously with this diminution of his means rose the cost of 
 his equipment for the field, and the strain put upon his 
 resources by having to maintain himself during the long 
 summer and winter campaigns which were now the rule. 
 Soldiering under Charlemagne against the Saracens in Spain, 
 or the Huns on the Danube, was different work from an 
 autumn raid across the Rhine, after the harvest was got in. 
 Accordingly, as early as Dagobert's time, we find the possession 
 of five allotments to be the minimum qualification required for 
 a fully-armed " miles." 
 
 Hence, partly by his poverty — partly by the pressure, often 
 amounting to force, brought to bear upon him by the lords 
 who Avished to increase their demesne lands, the free owner 
 was little by little reduced to the condition of an unfree holder. 
 
 dear to me, the diminutive being used to express endearment, as in the exactly 
 analogous case of jewel, French joyiu, i.e., gaudicuhim,^ a little joy.] 
 
 Feodum, if derived from Old High German fihu (modern German, Vieh), 
 cattle, and od, possession, meant originally possession in cattle. 
 
 The early Teuton's land — i.e., his lot in the Arable Mark and in the township, 
 is altogether his own : it is possession in all its fulness. When he becomes 
 acquainted with Roman "beneficial'' possession, as distinct from "dominium," 
 he expresses it by a distinction drawn between the land itself and the wealth 
 which is on the land, and derived from the land, but separable from it — viz., 
 cattle (which, as in the English word chattel, becomes in time synonymous 
 with movable as distinct from immovable property). Thus the idea of 
 usufruct comes to be translated by the idea cattle posicssion. 
 
 This original conception oi feodum remains the same, even if with Diez we 
 have to consider /(W//»z as derived directly from Pro : /t'«, Italian ^(?, i.e.. 
 Old High German, fhu, and look upon the d as inserted for the sake of 
 euphony, as in ladico for laico, instead of seeing in it a remnant of the Old High 
 German tt. 
 
 The idea of allodial ownership was lost in England from the moment the 
 whole of the soil can\e to be regarded as a demesne of the Crown, the only 
 ;illodial owner left being the sovereign. For the etymologies in this Note wc 
 are indebted to Professor Max Miiller.
 
 250 SYSTEMS OF LAND TENURE [Morier. 
 
 By " commending " himself (" comendatio," "traditio") to 
 a superior lord, that is, by surrendering the " Dominium 
 directum" of his " allodium" and receiving back its "dominium 
 utile," the freeman lost his personal rights, but obtained in 
 return protection against the State — i.e., against the public 
 claims that could be made upon him in virtue of his being a 
 full member of the political community. According to the 
 nature of his tenure, he had to render military service (no 
 longer as a national duty but as a personal debt) to his 
 superior, and in return was maintained by his lord when in the 
 field : or, if his tenure was a purely agricultural one — and it is 
 with these we are concerned — he was exempt from military 
 service, and only rendered agricultural service. 
 
 In this way, as generation followed upon generation, the 
 small free allodial owners disappeared, and were replaced by 
 unfree holders. But the memory of their first estate long lived 
 amongst the traditions of the German peasantry, and it required 
 centuries before the free communities, who, out of dire necessity, 
 had, by an act of their own, surrendered their liberties into the 
 hands of the lords of the manor, sank to the level of the servile 
 class settled upon their demesnes proper by the lords of the 
 soil. The glimpses we obtain of the Bauer in the 12th and 
 13th centuries* exhibit him to us as still a jovial, high-handed 
 fellow, who holds his own with the folk from the castle, and is 
 quick at retort both with his cudgel and his tongue. 
 
 In the peasant's war which followed on the Reformation, he 
 made a desperate attempt to recover his lost liberties ; and in 
 the record of grievances upon the basis of which he was ready 
 to treat, he showed how accurate was his recollection of the 
 past, and how well he knew the points on which the territorial 
 lords had robbed him of his just rights. 
 
 The Thirty Years' War gave the final blow. With exceptions 
 here and there the tillers of the soil became a half servile caste, 
 and were more and more estranged from the rest of the com- 
 munity, until, with the humanitarian revival at the close of last 
 centur)', they became to philanthropists objects of the same 
 kind of interest and inquiry which negroes have been to the 
 same class of persons in our day. 
 
 Before we leave^this second period, we must allow ourselves 
 a general observation, which is of importance both as regards 
 this period and the next. 
 
 * Cfr. Freitag " Neue Bilder aus dem Leben des deutschen Volks," cap. 
 " Aus dem Leben des deutschen Bauers."
 
 Gbrmanv.] in various COUNTRIF..5. 25 1 
 
 We described the earliest fonifi of the Teutonic community 
 as the union between an agricultural and a political com- 
 munity. 
 
 The second period is marked by the divorce between these 
 two bodies. This divorce is accomplished when the power of 
 the king has fully established itself, the result as regards 
 Germany of the conquest of the Roman provinces, and the 
 foundation of the Frankish monarchy. Instead of the self- 
 administered marks of a former age, the ancient " Gaue " now 
 become " Gau Grafschaften " — i.e., counties governed by the 
 '' comites " of the king with a hierarchy of subordinate officials, 
 ''Vice comites," "Centgrafen" (Counts of the Hundred), &c. 
 For a short while there is a real revival of the Roman Empire, 
 and the structure which the genius of Charlemange builds up 
 and superposes over the Teutonic as well as over the Latin 
 foundations of his monarchy, simple as are its classic outlines, 
 contains all the appurtenances required for the government of a 
 great centralised commonwealth. 
 
 After his death the structure, it is true, remains standing, and 
 its external outlines can still be descried, but, shooting upward 
 from the ground and sidewards from every nook and crevice, 
 the vigorous Teutonic vegetation, whose luxurious growth even 
 the original architect had scarcely been able to restrain, spreads 
 over the building and produces that marvellous but not un- 
 picturesque monstrosity known as the Holy Roman Empire. 
 
 The Teutonising of the Roman forms of administration was 
 effected by a process precisely similar to that which had obtained 
 in regard to the executive offices in the old free community. 
 It was the same inveterate Teutonic tendency to treat public 
 office as private property, and therefore as something that 
 could be transmitted by inheritance, a hereditament, which 
 ruled in the one case and the other. Thus as the office of 
 king and Herzog, from being elective had become hereditary, 
 so the Gau Graf, from being a prefect named by the Emperor 
 to exercise royal prerogatives in his name, becomes a hereditary 
 subregulus ; the royal authority is decentralised, and the royal 
 prerogative adscripted to the glebe, or rather identified with the 
 person who is lord of the glebe. In the same way that the great 
 territorial lords gradually possess themselves of the rights of the 
 Gau Graf and transmit them to their posterity as part of their 
 real estate, the lesser lords possess themselves of the attributes 
 of the Cent-Graf,and so on down to the ownersof/'//(? manor in the 
 township. Now each of these offices, from the highest to the
 
 252 SYSTEMS OF LAND TENURK [Morier. 
 
 lowest, represents a jurisdiction, and each of these jurisdictions 
 therefore comes to be identified with the possession of real 
 estate. Consequently in the frightful chaos which resulted out 
 of the feudal system, we have nevertheless got a clue which 
 enables us to unravel many difficulties. The idea of dominion, 
 the rights of the "dominus" (Frohnherr, lord), are made up of 
 public and private ingredients, but in inverse proportions to 
 what they were in the first period. It is the turning topsy- 
 turvy of the ancient principle. Then private rights imposed 
 public duties ; now public duties breed private rights. 
 
 When the system has once been firmly established, it is easy 
 to note the different relation in which the community, the larger 
 community of the mark as well as the smaller community of the 
 township, comes to be placed in towards its executive othcers. 
 For a long period after the community has, by the consolidation 
 of the kingly authority, ceased to be a political community in 
 the sense of an independent and international unit, it continues 
 in the assembly of the hundred to administer its own affairs, and 
 to sit as a civil and criminal court. During this intermediate 
 stage the sovereign authority is still as it were emanating from 
 below, and therefore the only jurisdiction to which freemen 
 have to submit is to that of their own peers. The president of 
 the court is one of themselves, and in so far as he exercises 
 executive authority, it is authority delegated by them. 
 
 With the establishment of the feudal system, the sovereign 
 authority begins to flow from the contrary direction : it comes 
 now from above, and no longer from below ; it is delegated by 
 the king, and no longer by the commons. The owner of the 
 manor now no longer exercises his functions as " primus inter 
 pares ;" he has obtained a jurisdiction over his former peers, 
 and has become invested with a " dominium." From hence- 
 forth the township is administered partly as a political unit, 
 partly as a private demesne, from the manor house. Public 
 and private rights, jmblic and private dues, get mixed up in 
 inextricable confusion. 
 
 The divorce between the agricultural and the political com- 
 munity even in regard to local affairs (except in the most limited 
 sense) is complete ; but the point which it is important to note 
 is, that the agricultural community in Germany remains intact. 
 The " Bauern Gemcinde " of the 19th century is in its essential 
 ])oints themicrocosmicre])roduction of the " Landes Gemeinde" 
 of the 1st century, apart from the political rights and the culti- 
 
 1
 
 Germany.] IN VARIOUS COUNTRIES. 253 
 
 vation in common. It is a corporation of free, allodial owners 
 who are allottees in an arable mark, and co-partners in common 
 lands. It is an administrative unit, managing its own private 
 affairs, like any other body corporate, with some slight remnants 
 of a jurisdiction which in Prussia is still exercised under the 
 surveillance of the manor. 
 
 It is at this point that the agricultural history of England and 
 Germany part asunder. In England the agricultural community, 
 though traces of it are to be found much later than is generally 
 supposed, traces which may even to this day be deciphered, 
 from a very early period ceases to be conterminous with the 
 self-governing body. Not the agricultural, but the ecclesiastical 
 community, the parish, becomes with us the administrative unit, 
 and the lord of the manor, except in regard of the freeholders 
 who make up the court baron, finds himself face to face, not 
 with a compact association and a recognised corporation, but 
 with isolated individuals. 
 
 III. We have now arrived at the third and last period. It 
 is that with which we have to deal in treating of the agrarian 
 legislation of Prussia during the present century. It is marked 
 by the demolition of the feudal edifice, and the removal of the 
 materials of which it was built. // can be described as the return 
 to free oivnership with unequal possession. 
 
 The three principal incidents of the process can be classed 
 as follows : — 
 
 1. Abolition of villeinage in so far as it affects the personal 
 
 " status " of the villein. 
 
 2. Abolition of villein and other feudal tenures, and 
 
 substitution in lieu thereof of allodial ownership. 
 
 3. Removal from the land thus allodially owned of all 
 
 charges, whether of a public or private character, 
 
 derived from the feudal forms of tenure and from the 
 
 feudal organisation of society. 
 
 The three great efforts made by the legislation of Prussia in 
 
 1807, in 1811, and 1850, respectively correspond to these three 
 
 incidents. 
 
 From this it will be abundantly manifest that a similar 
 process of legislation has marked the history of every State in 
 which the feudal system has been established. 
 
 In England personal villeinage dies out at a comparatively 
 early date, we hardly know how, so noiselessly does it 
 disappear.
 
 2 54 SYSTEMS OF LAND TENURE [Morier. 
 
 In the same noiseless way villein tenure loses its servile 
 incidents and assumes the form of copyhold tenure, which 
 tenure can by 15 and 16 Vict. c. 51 be commuted into free- 
 hold tenure at the instance of the lord of the manor or of the 
 copyholder. By the statute 12 Car. II. c. 24 all forms of free- 
 hold tenure were practically reduced to the simple one of 
 tenure by common socage.* 
 
 It is not in any way our purpose, by calling attention to 
 these analogies, to detract from the merits of the so-called 
 Stein Hardenberg legislation. Those merits are of a trans- 
 cendent kind, but it is to the accidents that accompanied 
 the legislation, to the scale on which the measures were framed, 
 to the spirit in which they were carried out, and not to the 
 novelty of the legislation, that those merits belong.t 
 
 * For all practical purposes tenure by common socage is as good as allodial 
 ownership, and therefore the statute of Charles II., taken in combination with 
 the statutes of the present reign, enabling the transmutation of copyhold into 
 freehold tenures, must be considered as the English equivalent of what we 
 have described as the second main incident of the Prussian agrarian legislation. 
 For the purpose, however, of strict accuracy, it should be noted that in 
 England, and in England alone, the feudal structure of society still exists on 
 the statute book, with the further exceptional circumstance that the sovereign 
 is lord paramount, and therefore, strictly speaking, the only real landowner, 
 all his subjects being only tenants. Hence the inveterate use of the terms 
 freehold tenure, and freeholder, when the idea intended to be conveyed is that 
 of allodial ownership. 
 
 t We have felt it the more necessary to insist upon these points because, in a 
 celebrated passage of a celebrated speech, Mr. Bright gives the received erroneous 
 English account of the Prussian legislation in question. We most heartily 
 sympathise with the object which Mr. Bright has in view, viz., the numerical 
 increase of the landowning class in Ireland. No one can have lived abroad 
 during the last twenty years without convincing himself that, in the present 
 transition state of society, it is of vital importance that its one permanent con- 
 servative force, viz. , landownership, should be so distributed as to e.\ercise its 
 steadying and restraining influence over a large area instead of a small area, 
 over all classes instead of over one class. It is therefore with the greater regret 
 that we notice the inaccuracy in question ; but where so important a precedent 
 is invoked on so important a matter, and by so great an authority, it appears 
 to us of leal moment that it should be correctly stated. 
 
 Mr. Bright is reported to have said : " If in this country fifty years ago, as 
 in Prussia, there had arisen statesmen who would have taken one-third or one- 
 half the land from the landowners of Ireland, and made it over to their tenants, 
 I believe that the Irish landowner, great as would have been the injustice of 
 which he might have complained, would, in all probability, have been richer 
 and happier than he has been." 
 
 Now what the statesmen did in Prussia fifty, or rather sixty, years ago, was 
 just the reverse. They took half or a third of the land possessed by the tenants 
 of Prussia, and handed it over in full possession to the landlords of Prussia. 
 The land occupied by these tenants was land on which, except in case of 
 devastation and in virtue of a judgment passed by a Court of Law, the lord of 
 the manor had no right of re-entry. What the law of 1811 did was to force
 
 Germany.] IN VARIOUS COUNTRIES. 255 
 
 The Legislation of 1807. 
 
 In order to estimate what were the changes practically- 
 effected by the decree of 9th October, 1807, it is necessary to 
 realise what was the state of things which that decree was 
 intended to supersede. 
 
 At the period in question the entire land of Prussia (then, 
 it must be remembered, consisting of the few provinces left to 
 the King of Prussia by the peace of Tilsit) was distributed 
 amongst three classes of society, carefully kept asunder, not by 
 usage only, but by strict legal enactment — nobles, peasants, 
 and burghers. In other words, it was held by knight's tenure, 
 villein tenure, and a sort of civil tenure which had grown up 
 out of the privileges of town municipalities. These classes 
 were distinct castes — their personal status was reflected in the 
 land held by them, and conversely the land held determined 
 the status of the holder. The noble could follow no avocations 
 but those of his caste. He could administer his estate, and 
 serve the king either in a civil or military capacity. He could 
 not occupy himself with trades or industries. He could acquire 
 nobles' land, and therewith manorial rights over land held 
 under villein tenure ; but he could not acquire burgher land or 
 the " dominium utile" — i.e.^ the possession of peasant land. 
 
 The burgher had a monopoly of trades and industries, 
 which, with some very limited exceptions, such as the business 
 of wheelwrights and smiths, were confined to the towns, and 
 
 the lord of the manor to sell his manorial overlordship to the copyholder for 
 one-half, or one- third, of the copyhold. By this process he was put in possession 
 of more land than he was possessed of before. What he was deprived of was 
 labour. The tenant lost one-half or one-third of the land he possessed before, 
 but obtained the " dominium directum," as well as the '' dominium utile," over 
 the remaining half or two-thirds ; what was, however, much more important, 
 he got back the free use of his own labour. The landlord sold labour and 
 bought land ; the tenant sold land and bought labour. All the essential features 
 of the transaction would have remained the same even if the " dominium 
 directum" of the landlord had not been passed over to the peasant, for an 
 overlordship of this kind deprived of its material contents would have been 
 a mere meaningless form, like ihe dominium eminens of the Crown in England. 
 There was no injustice done of the kind supposed by Mr. Bright, any more 
 than the Act 15 and 16 Vict. c. 51 creates an injustice by compelling the lord 
 of the manor to sell his copyhold rights to the copyholder. The only differ- 
 ence between the two transactions consists in the payment, in the one case 
 being made in money, and in having, in the other, been made in land. One- 
 half and one-third was a rough-and-ready calculation by which, in all proba- 
 bility, the lords of the manor, in some cases, got more than their share, the 
 peasants less, and vice versO.
 
 256 SYSTEMS OF LAND TENURE [Morier. 
 
 could not be exercised in the country. He could not acquire 
 nobles' land or peasants' land. The military profession was 
 closed to him as well as the higher civil employments. 
 
 The condition of the peasant differed widely in the different 
 provinces, and in the different parts of the same province. It 
 was a mirror in which almost every phase of mediaeval history 
 was reflected. There was this feature, however, common to all 
 peasant holdings — that they were not isolated farms, but united 
 in a "commonalty," and that these "commonalties" stood 
 under the jurisdiction of the manor. 
 
 The rural area of Prussia was consequently divided into two 
 kinds of districts. The Gutsbezirk, or manorial district proper, 
 consisting of the demesne lands, cultivated by the manorial 
 proprietor, and in which he exercised the functions of a police 
 magistrate directly ; and the township of the peasant com- 
 munity, with its arable mark and its common mark, in which a 
 Schulze (contracted from Schultheiss),* usually an hereditary 
 office, or one inseparable from a particular Hof, exercised the 
 police authority in the name of and under the supervision and 
 control of the lord of the manor. The community likewise 
 managed its private affairs like any other corporation, but also 
 under the guardianship of the manor. 
 
 The different communities held by different kinds of tenure 
 — varying in an ascending scale from those in which the 
 allottees were in a state of personal villeinage with unlimited 
 services to those in which they were free settlers, who, though 
 under the jurisdiction of the manor, and paying dues to it in 
 virtue of that jurisdiction, were yet owners of their lots. These 
 distinctions generally may be traced to the original difference in 
 the nature of the land held, adverted to in the first part of this 
 essay. In the one case, the communities had originally been 
 slave communities, settled upon the demesne lands proper of 
 large proprietors, and had gradually emerged to the compara- 
 tively higher level of villeinage — or they were communities of 
 freemen or dependents, " liti," settled in the same way, who had 
 gradually sunk to a state of villeinage. In the other case, they 
 were originally the allodial owners of the land held by them 
 who had surrendered their rights of full ownership to the 
 manorial lords on distinct stipulations, or they had retained the 
 ownership of their land, and were only subject to the jurisdic- 
 tion of the manor. 
 
 * See supra, p. 284.
 
 Germany.] IN VARIOUS COUxNTRIES. 257 
 
 But there was another distinct class peculiar to Prussia, who 
 owed their origin to the fact that the German race was in these 
 parts a conquering race, and settled upon territory taken from 
 another race. These were the free colonists colonised " more 
 Teutonico," principally on the demesne land of the Crown. 
 Contractors, termed " locatores," obtained grants of land, and 
 brought with them, chiefly from Holland, communities of agri- 
 culturists, who, according to the old system of the mark, 
 received their individual lots and likewise rights of co- 
 proprietorship in a certain amount of common lands. The 
 contractor received a larger grant, free of services and dues, 
 and was infeofifed in the office of Schulze. The colonists 
 received their grants for ever, and were only bound to pay 
 fixed and moderate dues in kind or money. These tenures 
 may be considered as ready-made copyholds. The " tenants " 
 were to all intents and purposes freeholders, with only a kind 
 of shadowy " dominium directum " in the background. 
 
 The status of villeinage differed according as the villein 
 was Leibeigen {i.e., as his lord had rights of property in his 
 body), or only " erbunterthanig," i.e., in a state of hereditary 
 subjection to the manor, "adscripti glebae." 
 
 In its worst form the villein could be held to unlimited 
 service, and could be deprived of his holding, and located in 
 another. At his death, the whole or the largest portion of his 
 personal estate fell to the lord. His children could not marry 
 without the lord's consent, and could be kept an unlimited 
 number of years as personal servants (Gesinde) in the service 
 of the manor. He could receive corporal punishment to 
 heighten his productive power, and to enforce respect, but his 
 life was protected. 
 
 This extreme form was, however, the exception to the rule. 
 It occurred mostly in the more remote provinces.* The 
 milder form differed from the former in the services to be 
 performed and the dues to be paid, being limited by local 
 custom, and in a greater freedom in the disposal of the 
 holding. The villein knew what work he and his team would 
 have to perform in the course of the year, the number of years 
 
 * Stringent legislative enactments had been passed by Frederick the Great, 
 regulating the personal "status" of the villein, and limiting the rights of his 
 lord ; but usage was stronger than law, and the greatest diversity in the 
 "status " of the villein in the different parts of the monarchy is a characteristic 
 feature of the agricultural system of Prussia at the commencement of the 
 century. 
 
 R
 
 258 SYSTEMS OF LAND TENURE [Morier. 
 
 his children would have to serve in the household of the lord, 
 the tax he would have to pay on their marriage, the amount of 
 the mortuary dues which at his death the lord would have a 
 right to. He could also buy his freedom at a fixed price, and, 
 with the permission of his lord, dispose of his holding. 
 
 The free peasant differed from the villein in having no 
 personal dues to pay, and in his services and dues being usually 
 recorded in writing in the grants made to him, and therefore 
 bearing the character of a legal contract. He could not, how- 
 ever, acquire by purchase or inheritance other than peasant 
 land, nor could he change his position by changing his country 
 life for a city life ; nor could he in the country exercise any 
 trade or calling but that of agriculture. 
 
 The land cultivated by the peasant therefore was divided 
 into two principal categories : 
 
 I. That in which he had rights of property ; 
 
 ,2. That in which he had only rights of usufruction. 
 
 In both cases services were rendered, and dues were paid 
 kind or money to the manor. But in the first case these 
 services and dues may be considered as having had a public, in 
 the latter case a private, origin. 
 
 As regards the land in which the peasant had only rights of 
 usufruction, it was divided into two principal categories : 
 
 1. Land in which the peasant had hereditar}'- rights of 
 
 usufruction, and could transmit his holding to his 
 descendants and his collaterals, according to the 
 common law of inheritance ; 
 
 2. Land in which the occupier was only a tenant for life, 
 
 or for a term of years, or at will. 
 In neither case, however, could the landlord re-enter on 
 this land. The lords of the manor had been deprived of this 
 right,* if it ever existed, by various edicts of the former 
 
 * No point connected vvkli the mcrliajval history of land tenure presents 
 more difficulties than this question of what the manorial right of Overlordship 
 really amounted to, and wliether or not it invested the lord with a right to 
 possess himself with the tenant's land. Wherever in the Teutonic Kosmos we 
 meet with a manor and dependent "mansi," we are encountered by this 
 difficulty and by the difference between the "terra tenentium " and the 
 "dominium villenagium," tenant land and dcmcsncVxnA. If the description 
 of the origin of manorial rights given in the early part of this essay is correct, 
 it would follow that what in feudal language are called '' tenants " were 
 (except in the case of servile townships settled on the lord's "allodium") 
 originally allodial owners, whose dues and services to the manor were of the 
 nature of public taxes, which could not invest the lord with rights of property 
 over the lands of the proprietors. It is, however, certain that with the estab-
 
 Germanv.] IX VARIOUS COUNTRIES. 259 
 
 Hohenzollern kings. Frederick the Great imposed a fine of a 
 hundred ducats on any landlord who appropriated to his own 
 use any land held by his peasants. At last a general law was 
 passed on the subject. (AUgemeines Land Recht II. 7, 
 §§ 14—16.) 
 
 The manors were respectively held by the Crown, by cor- 
 porations, lay and ecclesiastical, and by individual nobles. 
 But whoever was the occupant, the functions of the manor in 
 the body politic remained the same. The term implied a house 
 with farm buildings {the manor in the community, the other 
 manors having sunk to mansi, "messuages"): demesne lands 
 cultivated by the labour of the peasants under its jurisdiction : 
 rights of various kinds over the persons of these peasants and 
 the lands occupied by them : correlative duties in the way of 
 maintaining paupers, furnishing wood for the building and 
 repair of the peasants' farm-buildings, in some cases furnishing 
 the stock of the farm, the building and endowing schools, the 
 repairing of churches, &c., and, lastly, a police magistracy, and 
 a court of first instance in civil and criminal matters, the so- 
 called " Patrimonial Gerichtsbarkeit " (courtleet and customary 
 court). It did not imply the right of re-entry on the lands 
 occupied by the peasants. 
 
 The judicial functions were not exercised by the lord of the 
 manor in person, but by his steward, who required to be a 
 properly-trained lawyer. 
 
 Where the manor was the property of the Crown, or of a 
 corporation, the rights of the manor were exercised by a bailiff". 
 
 lishment of the feudal system this original character was lost sight of, and 
 that the lords universally claimed the right to possess themselves of tenant 
 land. Two forces came to the assistance of the tenant in his resistance to this 
 encroachment — • 
 
 1. Wherever the royal authority was gaining the upper hand, the Crown 
 sided with the tenants against the lords. A statute of William the Conqueror, 
 quoted in the work of I'rofessor Nasse later on referred to (we have no means 
 of verifying the quotation), affords in this respect a remarkable analogy to the 
 edicts of Frederick the Great and his predecessors alluded to in the te.xt. It 
 forbids the lords " removere colonos a terris dummodo servitia persolvent; " 
 and it adds that if '' domini terrarum non procurent idoneos cultores ad terras 
 suas cclendas justiciarii hoc faciant." This clearly refers to tenants' land. On 
 the other hand, Bracton defines "demesne land " ((/fw/w/ww villenagium) as 
 ' ' item dicitur quod quis tempestive et intempestive resumere possit pro voluntate 
 sua et revocare." 
 
 2. The Law Courts were the second force which came to the aid of the 
 tenants ; and here again Germany furnishes cases exactly analogous to the 
 celebrated decisions in the reign of Edward III. and Edward IV., by which 
 "customary tenure " was created, and the tenant obtained an action of trespass 
 against the lord.
 
 26o SYSTEMS OF LAND TENURE [Morier. 
 
 Each manor had its own usages and customs, which 
 amounted to a kind of microscopic customary law. 
 
 The manors situated on the demesne lands of the Crown 
 were immeasurably in advance of those in private hands, both 
 as to the position of the peasants and as to economical results. 
 
 Justice would not be done to the intricacy of these relations, 
 did we not add that besides the rights above described, there 
 were innumerable cross rights, servitudes, and easements, be- 
 tween the lords and the peasants (such as rights of pasturage 
 by the lords on the common lands of the peasants, similar 
 rights enjoyed by the peasants in the forests of the lords, &c.), 
 as well as between the peasants of the same community " inter 
 se," and between peasant communities belonging to different 
 manors, and so on ad infinitum. 
 
 Lastly, the entire burdens of the State, as far as they rested 
 on real estate, were borne by the peasant land. 
 
 Chaotic as this picture appears to us, it must not be supposed 
 that chaos reigned in the monarchy of Frederick the Great, 
 On the contrary, nothing could be more regular than the work- 
 ing of the wheels within wheels of this wonderful machinery — 
 nothing more remarkable than the ledger-like beauty with 
 which the productive forces of the country were inventoried, 
 and the debtor and creditor account of its agricultural resources 
 kept. The Hohenzollerns had brought with them from 
 Niiremberg business habits, which have not a little contributed 
 to the greatness of the Prussian monarchy, and Frederick the 
 Great in this, as in other respects, showed himself the repre- 
 sentative man of his race. He was a strong advocate of the 
 feudal system, such as he understood it, not from any mediaeval 
 turn of mind, but because it supplied him with a machinery 
 which, in his hands, could be made to produce great results. 
 The political power of the Prussian nobility had long since 
 been broken. They were docile instruments in the hands of 
 the Crown. Sufficiently numerous to supply the army with its 
 officers, and therefore really rendering knights' service in return 
 for knights' fees, yet not so numerous but that an indefatigable 
 administrator like Frederick II. could thoroughly acquaint 
 himself with the resources and capabilities of each of them, 
 they represented so many responsible centres of administration, 
 whom the king made accountable, not only for the public taxes 
 and charges, but equally for the cultivation and agricultural 
 economy of the monarchy.
 
 Gkkmany.] in various COUNTRIES. 26 1 
 
 Frederick the Great knew exactly what every acre of land, 
 what every pair of hands, and what every yoke of oxen in his 
 dominions were capable of producing, and he took care not 
 only that they should produce it, but that they should be main- 
 tained in a state in which they should continue capable of 
 producing it. He also knew the economical value of justice 
 between man and man, and therefore, despite the tremendous 
 strain put upon the peasant class during his reign, and the 
 scrupulous maintenance of the manorial system, the peasants 
 felt that the great king was their friend ; and their material 
 condition was undoubtedly raised under his reign. But this 
 very improvement only served to hasten the changes which 
 had become unavoidable. Under the weak sovereign who 
 succeeded Frederick, it was seen that the feudal system had 
 long since been dead — that it had only been galvanised into 
 apparent vitality by the genius of one man, and that the process 
 of decomposition was only the more rapid for the temporary 
 interruption. 
 
 The Battle of Jena and the Peace of Tilsit sealed the fate 
 of the institution. The edict of October 9, 1807, was its 
 death-warrant. 
 
 Let us look with our own eyes at this great landmark in the 
 history of a great people. 
 
 " We, Frederick William, by the grace of God, &c. &c. 
 Be it known unto all men that, 
 
 " Whereas, owing to the universal character of the prevailing 
 misery, it would surpass our means to relieve each person 
 individually, and, even if we could, the objects we have at 
 heart would not be fulfilled (loquitur the mediaeval Father of 
 his people) ; 
 
 " And, 
 
 " Whereas, it is not only conformable to the everlasting 
 dictates of justice, but likewise to the principles of a sound 
 national economy, to remove all hindrances in the way of the 
 individual attaining to that measure of material well-being 
 which his capacities may enable him to attain (loquitur Adam 
 Smith); 
 
 " And, 
 
 " Whereas, the existing restrictions, partly on the possession 
 and enjoyment of landed property, partly in connection with 
 the personal condition of the agricultural population, in an 
 especial manner obstruct our benevolent intentions, and exercise
 
 262 SYSl'EMS OF LAND TENURE . [Morier. 
 
 a baneful influence, the one by diminishing the value of landed 
 property and impairing the credit of the landed proprietor, the 
 other by diminishing the value of labour ; we are minded that 
 both shall be restrained within the limits which the public 
 welfare requires, and therefore we decree and ordain as 
 follows : 
 
 " Free Exchange of Real Property. 
 
 " § I. Every inhabitant of our dominions is, as far as the 
 State is concerned, henceforth free to acquire and own landed 
 property of every kind and description. The noble, therefore, 
 can acquire not only noble land but burgher and peasant land, 
 and the burgher and the peasant can acquire not only burgher 
 and peasant land, i.e., land not noble, but likewise noble land.* 
 Every such transfer of real estate must, however, continue, as 
 before, to be notified to the authorities. 
 
 " Freedom m regard to Choice of Occupation. 
 
 "§ 2. Every noble, without derogation to his rank, is 
 henceforth free to exercise the trades and callings of the 
 burgher — the burgher may become peasant, the peasant 
 burgher, 
 
 " In how far Rights of Pre-emption still exist. 
 
 " § 3. (This paragraph is technical, and does not alter the 
 principle of the measure.) 
 
 " Division of Property. 
 
 " § 4. All owners of real property, in its nature saleable, 
 can, after due notice to the provincial authority, sell the same 
 piecemeal and in detail as well as in block. Co-proprietors 
 can in the same way divide amongst them property owned in 
 common. 
 
 " Free power of Granting Leases. 
 
 " § 5. Every proprietor, whether or not his property forms 
 part of a fief or of any otlier kind of entailed jjroperty, is free 
 to grant leases of any duration so long as the moneys received 
 in payment of such leaseholds are used to pay off mortgages, 
 
 * §§ 6 and 7 restrict this right, which was only fully established by the 
 " Edict for the better Cultivation of the Land," on the 14th September, 1811.
 
 Germany.] IN VARIOUS COUNTRIES. 263 
 
 and in the case of an entailed property, are capitalised for the 
 benefit of the estate. 
 
 " Extinction and Consolidation of Peasant Holdings. 
 
 "§ 6. When a landed proprietor is of opinion that he 
 cannot restore to their former condition or keep up the several 
 peasant establishments on his property, he may, if the holdings 
 have not got the character of hereditary tenures {i.e., Anglic^, if 
 they are not of the nature of copyhold or perpetual leaseholds), 
 after the particular case has been inquired into by the Govern- 
 ment of the province, and with the sanction of that Govern- 
 ment, consolidate such holdings into one large peasant holding, 
 or incorporate them with demesne land. 
 
 "Special instructions as to the cases in which this process 
 shall be permitted will be sent to the provincial Governments. 
 
 " § 7. U, on the other hand, the tenures are of a hereditary 
 kind, no change whatever can be effected without the previous 
 acquisition by purchase, or in some other legal manner of the 
 rights of the actual possessors. Such cases likewise require 
 the formalities specified in § 6 {i.e.., the previous sanction of the 
 Government). 
 
 " j^acilities for Mortgagifig Entailed Estates to pay Losses 
 occasioned by War. 
 
 "§ 8. (The provisions of this paragraoh are of a temporary 
 kind). 
 
 " Of the cutting o^ of Entails. 
 
 " § 9. Every entailed estate, whatever the nature of that 
 entail, can be freed from the entail by the consent of the 
 family. 
 
 ^^ Abolition of Villeinage. 
 
 "§ 10. From the day of the publication of this edict no 
 new relations of villeinage, either by birth, marriage, or acqui- 
 sition of a villein holding can be created. 
 
 "§ II. From the same date all peasants holding by here- 
 ditary tenures cease, they and their wives and their children, 
 to be villeins. 
 
 "§ 12. From Martinmas, 1810, every remaining form of 
 villeinage in all our dominions shall cease, and from that date
 
 264 SYSTEMS OF LAND TENURE [Moribr. 
 
 there shall be none but freemen in our dominions, such as 
 is already the case in our domains in all our provinces.* It 
 is to be understood, however, that these freemen remain sub- 
 ject to all obligations flowing from the possession of land or 
 from particular contracts to which, as freemen, they can be 
 subjected. 
 
 " So Given at Memel, 9th October, 1807. 
 " Friederich Wilhelm, 
 
 schrotter, 
 
 Stein, 
 
 schrotter ii." 
 
 Such, with a few abbreviations and some unimportant omis- 
 sions, is the text of the measure by which Prussia thoughtfully 
 and deliberately stepped out of the mediaeval past into the 
 modern present. 
 
 Not the least interesting feature of the measure is its (' 
 affiliation with the teaching of Adam Smith and its impregnation 
 with the spirit of the Kantian philosophy. 
 
 The three persons more immediately concerned with the 
 framing of the measure — Schon, Schrotter, and Auerswald— had 
 all of them been students at Konigsberg and pupils of Kraus, 
 the great expounder of Adam Smith at that university, and one 
 of that brilliant professorial body who, under the inspiration 
 of Kant, were callmg attention to the fact that man was a 
 rational being, and that reason might be profitably consulted 
 even in matters of State. It is this, we conceive, which has 
 left so indelible a mark upon the Stein and Hardenberg 
 legislation. 
 
 At a moment of universal chaos, when the old landmarks 
 had been overthrown by the breaking up of the waters of the 
 deep, when Europe was torn asunder by the wild passions 
 evoked by the French Revolution, when to one party to be a 
 reformer was to be a sans culotte^ to the other party to maintain 
 authority was to trample on the rights of man, a body of 
 statesmen were found cahii enough to take reason as their 
 guide, and bold enough, in the teeth of the violent oi:)position 
 of the privileged classes, to legislate <? //w/v', and on general 
 principles. 
 
 The interest which attaches to the Edict of 1807 is greatly 
 
 * Strange to say, tliis was an error ; villeinage had at that time not ceased 
 in a!! the domains of the Crown.
 
 GsRMANY.] IN VARIOUS COUNTRIES. 265 
 
 enhanced by an acquaintance with the deUberations of the 
 commission from which it emanated. In that commission two 
 parties had been hotly opposed to each other. The party of 
 the pure economists, whose great object was to estabUsh the 
 most absokite freedom of exchange, both in land and labour, 
 and who had an almost superstitious belief in the results which 
 would flow from the application of capital to land as a con- 
 sequence of this absolute freedom, and a party who, though 
 equally zealous in their desire for reform, feared the disintegra- 
 tion which might result from this process, and were imbued 
 with the Prussian traditions of the supremacy of the State over 
 all the relations of its members, and impressed with the neces- 
 sity of keeping intact the social foundations of the Prussian 
 monarchy. 
 
 The disciples of Adam Smith, on the whole, carried the day, 
 as the wording of the edict, every sentence of which breathes 
 the spirit of free exchange and the liberation of productive 
 forces, amply proves. On one point, however, connected with 
 paragraphs 6 and 7, the opposite views, and this by the direct 
 interposition of Stein, obtained a partial victory. 
 
 The point at issue in connection with this paragraph is one 
 of great importance, as it involved one principal element of the 
 controversy which raged in the commission, and is concerned 
 with a principle on which opinion is at the present more than 
 ever divided. It may, in its most abstract form, be thus stated. 
 Should it be the object of the State to stimulate the community 
 it represents to the production of the maximum of producible 
 wealth irrespectively of the instruments by which it is produced, 
 in other words, irrespectively of the distribution of that wealth ; 
 or should it have an eye to the distribution of that wealth as 
 well as to its production ? In the particular case under discus- 
 sion it took this form : Should the State by its legislation stimu- 
 late the creation of large farms worked with corresponding 
 capital, or should it, on the contrary, endeavour to retain the 
 actual peasant cultivators, and only raise their personal status 
 and increase their material well-being ? 
 
 The economists were imbued with the ideas of Arthur 
 Young, and the English farming system was the ideal they had 
 m view. Why, asks Schon, waste the productive force of four 
 proprietors and sixteen horses to do that which one proprietor 
 and six horses can do better ? Because, was the answer pro- 
 bably returned, though the actual answer is not recorded, in a
 
 2 66 SYSTEMS OF LAND TENURE [Moriek. 
 
 country like Prussia, whose existence depends on its fighting 
 power, the wealth of the country could not for national pur- 
 poses take a better form than that of the three additional pro- 
 prietors and the ten additional horses. 
 
 The moment was singularly well adapted for a change from 
 the one system to the other. The whole country was suffering 
 from the devastation caused by the French invasion. Whole 
 villages were lying in ashes, whole tracts were depopulated. 
 The landlords were bound to restore the farm-buildings of the 
 peasantry to their former state. Now, therefore, was the moment 
 for consolidation. Give them the right of re-entry on the 
 peasant land, or, at all events, allow them to amalgamate small 
 holdings into large. 
 
 Paragraph 6 of the edict admits the principle, thus abro- 
 gating the very stringent laws above referred to against the 
 extinction of peasant holdings ; but confines its application to 
 exceptional cases, the Provincial Government, and not the 
 individual landlord, being the judge in ^cach particular case. 
 
 In the Instruction to the Provincial Governments, the rule 
 was laid down that the permission to extinguish peasant holdings 
 should only be given in regard to so-called new land — i.e., land 
 created peasants' land, that is, let out in peasant tenures during 
 the last fifty years ; and that even in this case the permission 
 should only be granted upon the condition that half the land 
 proposed to be changed into demesne land should be made 
 into comparatively large peasant holdings, and either given in 
 fee simple to peasant holders, or let on perpetual leases.* 
 
 * It was necessary to call attention to this conflict between the statesmen 
 and the economists because it has been much commented upon and because 
 the great name of Stein is immediatelyconnectcd with it. Much misconception, 
 however, e.\ists on the subject. The prevalent idea is that it was by the direct 
 interposition of the Prussian Government acting through the instrumentality of 
 the instruction referred to in the text that the all-important class of peasant 
 proprietors has been kept up. But this is wholly erroneous. The restrictions 
 of the edict of 1807 remained in vigour for only a very short time, having been 
 set aside by the edict of 181 r. The point is one of great importance, inasmuch 
 as one of the most valuable precedents in favour of peasant proprietorship 
 would lose its value if it could be established that these Prussian peasant pro- 
 prietors had been artificially maintained by means of State interference. One 
 of the commonest arguments used in England against small properties is that 
 they cannot maintain themselves by the side of large properties, and that where 
 free exchange in land is the rule, the large properties will invariably swallow up 
 the small ; consequently, that if small proprietors are a desideratum, there must 
 be a law of compulsory division of property as in France, or some special State 
 interference '' ad hoc " as is supposed to exist in Prussia, in order to keep them 
 up. The example of Prussia, on the contrary, tends to establish exactly the 
 reverse, for there, with the most absolute rights of alienation on the part of the
 
 Germany.] IN VARIOUS COUNTRIES. 267 
 
 The Legislation of 1 8 1 1 . 
 
 The edict of 1807, great and incisive as had been its 
 operation, was of a negative kind. It removed disabilities, 
 undid the shackles which bound the peasant to the glebe, 
 allowed such rights as existed to be used freely, and pulled 
 down the walls which separated from each other the different 
 classes of society. But it created no new forms of property ; 
 it proclaimed freedom of exchange, but it did not provide 
 the title-deeds required as the first condition of exchange. 
 Peasants' land could now be held indiscriminately by all the 
 citizens of the State ; but it was still held under the old forms 
 of tenure ; there were still two kinds of property. The lord 
 was still owner of the peasants' land, but had no right to its 
 possession. The peasant was free, but was not master of his 
 labour. 
 
 The legislation of 181 1 stepped in to remedy this state of 
 things, and applying to the monarchy generally the principles 
 which during the last three years had proved in the highest 
 degree successful when applied to the state domains, it set 
 itself to substitute allodial ownership for feudal tenure. 
 
 Its work was in the highest degree positive. 
 
 The legislation of 181 1 mainly consists of two great edicts, 
 both bearing the same date, that of the 14th of September. 
 The one entitled, " Edict for the Regulation of the Relations 
 between the Lords of the Manor and their Peasants." 
 
 The other, " Edict for the better Cultivation of the Land." 
 
 The first is concerned with the creation of new title-deeds 
 for the peasant holders, and with the commutation of the 
 services rendered in virtue of the old title-deeds. 
 
 The second surveys the whole field of agrarian reform, and 
 introduces general measures of amelioration. 
 
 The preamble to the "Edict for the Regulation of the 
 Relations between Landlord and Tenant" recites how "We, 
 Frederick William, by the grace of God, King of Prussia, 
 having convinced ourselves, both by personal experience in our 
 
 pea-sant proprietors, and with their immediate proximity to large and mostly 
 entailed estates, they have fully maintained their ]-)osition. Strenuous attempts 
 were made in 1824 and 1834 to curtail the liberty of alienation and dismember- 
 ment conferred by the edict of i8ii; but the result of careful inquiries made into 
 the subject by the Government triumphantly established the fact that none 
 of the ill effects had arisen out of this freedom of exchange which its enemies 
 supposed.
 
 268 SYSTEMS OF LAND TENURE [Morier. 
 
 own domains, and by that of many lords of manors, of the 
 great advantages which have accrued both to the lord and 
 to the peasant by the transformation of peasant holdings into 
 property, and the commutation of the services and dues on the 
 basis of a fair indemnity, and having consulted, in regard to 
 this weighty matter, experienced farmers, and skilled persons of 
 all kinds belonging to all our provinces, and to all ranks of our 
 subjects, ordain and decree as follows : " 
 
 The edict then branches off into two main parts. 
 
 The first dealing with peasant holdings in which the 
 tenant has hereditary rights ; the second with holdings in which 
 the tenant has no hereditary rights. 
 
 PART I. 
 
 All tenants of hereditary holdings — i.e., holdings which are 
 inherited according to the common law, or in which the lord 
 of the manor is bound to select as tenant one or other of the 
 heirs of the last tenant — whatever the size of the holding, shall 
 by the present edict become the proprietors of their holdings, 
 after paying to the landlord the indemnity fixed by this edict. 
 
 On the other hand, all claims of the peasant on the manor, 
 for the keeping in repair of his farm-buildings, tS:c., shall cease. 
 
 " We desire that landlords and tenants should of themselves 
 come to terms of agreement, and give them two years from the 
 date of this edict to do so. If within that time the work is not 
 done, the State will undertake it. 
 
 " The rights to be commuted may be thus generally 
 classed : — - 
 
 " I. Rights of the landlord. 
 
 1. Right of ownership (' dominium directum '). 
 
 2. Claim to services. 
 
 3. Dues in money and kind. 
 
 4. Dead stock of the fiirms. 
 
 5. Easements, or servitudes on the land held. 
 "II. Rights of the tenant.* 
 
 * It is wortliy of remark that the tenant's " dominium utile, " or right of 
 possession, is not recorded as a set-off against the "dominium directum " of 
 the lord of the manor. The fact is, this right of possession is something 
 so self-understood, that it never seems present to the mind of the legislator. 
 The " dominium directum " is something quite different, for it represents an 
 aggregation of all kinds of different rights. These rights he has to sell to 
 the peasant, and the peasant buys them with the only thing he possesses, viz., 
 his land.
 
 Germany.] IN VARIOUS COUNTRIES. 269 
 
 1. Claim to assistance in case of misfortune. 
 
 2. Right to gather wood, and other forest rights, in the 
 
 forest of the manor. 
 
 3. Claim upon the landlord for repairs of buildings. 
 
 4. Claim upon the landlord, in case tenant is unable to 
 
 pay public taxes. 
 
 5. Pasturage rights on demesne lands or forests. 
 
 " Of these different rights only a few, viz., the dues paid in 
 kind or money, the dead stock, and the servitudes, are capable 
 of exact valuation. 
 
 " The others can only be approximately estimated. 
 
 "To obtain therefore a solid foundation for the work of 
 commutation, and not to render it nugatory by difficulties 
 impossible to be overcome, we deem it necessary to lay down 
 certain rules for arriving at this estimate, and to deduce those 
 rules from the general principles laid down by the laws of the 
 State. 
 
 " These principles are : 
 
 *' I. That in the case of hereditary holdings, neither the 
 services nor the dues can, under any circumstances^ 
 be raised. 
 
 " 2. That they must, on the contrary, be lowered if the 
 holder cannot subsist at their actual rate. 
 
 " 3. That the holding must be maintained in a condition, 
 which will enable it to pay its dues to the State. 
 
 " From these three principles, as well as from the general 
 principles of public law, it follows that the right of the State, 
 both to ordinary and extraordinary taxes, takes precedence of 
 every other right, and that the services to the manor are 
 limited by the obligation which the latter is under to leave 
 the tenant sufficient means to subsist and to pay taxes. 
 
 " We consider that both these conditions are fulfilled when 
 the sum-total of the dues and services rendered to the manor 
 do not exceed one-third of the total revenue derived by an 
 hereditary tenant from his holding. Therefore, with the 
 exceptions to be hereafter described, the rule shall obtain : 
 
 "That in the case of hereditary holdings the lords of 
 the manor shall be indemnified for their rights of ownership 
 in the holding, and for the ordinary services and dues attached 
 to the holding, when the tenants shall have surrendered one- 
 third portion of all the lands held by them, and shall have 
 renounced their claims to all extraordinary assistance, as
 
 270 SVSTEMS OF LAND TENURE [Morier. 
 
 well as to the dead stock, to repairs, and to the pajnuent 
 on their behalf of the dues to the State when incapable 
 of doing so." 
 
 The edict then goes on to lay down the rules to be 
 obser\'ed in applying this principle. 
 
 These rules presuppose the existence of the agricultural 
 community referred to in the earlier part of this Paper, 
 viz., equal allotments in an arable mark : the division of 
 the arable mark in which these several allotments are situated 
 into three '• Cojnmonabk Fields " or " Fluren ; " a common 
 system of cultivation obligatory on the community, in order 
 to secure the community's right of pasture on the fallow 
 and stubbles : and common rights of property in common 
 lands occupied "de indiviso," mostly pasture lands, woods, 
 &c., but sometimes also in arable common lands. 
 
 As the rule, the lord of the manor is to acquire possession 
 of one of the three Fields, or of one-third portion of each 
 field, and of one-third portion of the common lands. 
 
 We have no space to enter into the details of the arrange- 
 ments which provide for the cases differing from these. 
 
 As noted above, the lords and the peasants left are free to 
 make what arrangements they please, as long as the pro- 
 portion of one-third is maintained, i.e., the indemnity may 
 take the form of a pajTnent of capital, or of a corn or 
 money rent. Yet the rule to be followed (and a departure 
 from this rule must have a distinct motive) is that the 
 indemnity must be paid in land where the holdings are over 
 fifty " morgen," * but in the shape of a corn-rent where 
 the holdings are under that size. 
 
 As a matter of practical convenience to both parties, the 
 absolute separation of proprietary rights suffers some few 
 exceptions : the first and most important is that the lord 
 retains the right of pasturing the manorial sheep on two- 
 thirds of the fallow and stubbles of the arable mark ; f the 
 peasant also continues to enjoy the right of collecting as 
 much firewood in the demesne as he requires for his personal 
 use : for this right and for the acquisition of his house and 
 farm-buildings as well as his garden-plot (his allotment in 
 
 * The Prussian acre is about equal to two-thirds of an English acre, an 
 hundred English acres being equal to 158.^ Prussian acres. 
 
 t Compare Rogers' " History of Agriculture and Prices in England," vol. i., 
 P-3I-
 
 Germany.] i X VARIOUS COUNTRIKS. 27 T 
 
 the mark of the village), he continues to render services to 
 the lord of the manor at times (e.g., harvest) when extra 
 hands are wanted. These services are, however, restricted 
 to a maximum of ten days of team-work, and ten days of 
 hand-labour for a team-peasant, and ten days man's work 
 and ten days woman's work for a hand-peasant. 
 
 Several paragraphs of the edict are are taken up with 
 provisions for so apportioning the burdens on the holdings 
 that nothing shall prevent their dismemberment and their 
 being sold or exchanged in single parcels. Among these 
 provisions is one preventing the peasant from mortgaging his 
 estate above one-fourth of its value. 
 
 Where corn-rents are not paid punctually, the lord of the 
 manor can exact services instead. 
 
 PART II. 
 
 The class of holdings treated of in the second part, are 
 those held at will, or for a term of years, or for life. In these 
 cases the landlord gets an indemnity of one-half of the holding 
 under much the same conditions as in the case of the here- 
 ditary holdings. When the conditions differ, they do so in 
 favour of the lord of the manor. 
 
 By the edict, of which the above are the main provisions, 
 entirely new conditions of land occupation were inaugurated, 
 and corresponding changes became necessary in the other 
 branches of the agricultural system. 
 
 The " Edict for the better Cultivation of the Land," pub- 
 lished on the same day, had these changes in view. 
 
 Fully to understand what these changes were, and what 
 was the nature of the agricultural reforms to be introduced 
 into Prussia, the picture of the peasant community as a 
 microcosmic reproduction of the old community of the mark 
 must be kept in mind. The peasant occupier's tenement is 
 situated, apart from his land, in a village or township ; his 
 estate is made up of a number of single lots or parcels, 
 (Grundstiicke) distributed over the three main divisions or 
 jFie/ds (Fluren, Campi) into which the arable mark is divided. 
 Often intermixed with these peasant parcels, and subject to 
 the same obligatory cultivation, are parcels of demesne land. 
 In addition to his individual rights of possession in the arable
 
 272 SYSTEMS OF LAND TENURE [Morier. 
 
 mark, controlled by the common rights of pasturage on the 
 stubbles, he has common rights in the common pasture, which 
 common rights he shares with the lord of the manor. Besides 
 these rights he has rights of pasture, &c., in the forest lands of 
 the demesne proper. The sum-total of these individual and 
 common rights make up the peasant holding, correlative to 
 which are the services to be rendered to the manor. As long 
 as these services were calculated on the sum-total of the rights 
 enjoyed by the tenant, it was of paramount importance that no 
 dismemberment should take place. Consequently, even in 
 the case of freeholders, none but exceptional dismemberments 
 were allowed. 
 
 Apart then from the relations between landlord and tenant, 
 or rather inseparably implicated in those relations, and therefore 
 requiring simultaneous regulation, are the common rights of the 
 peasants themselves, and the impediments which these common 
 rights throw in the way of individual cultivation, and the free 
 use of the rights of property about to be granted. 
 
 The ruling idea of the " Edict for the better Cultivation of 
 the Land," as of its predecessor, and indeed of the whole legis- 
 lation connected with the names of Stein and Hardenberg, is 
 to enfranchise not the owner of land merely, but likewise the 
 land owned by him, and to remove every impediment in the 
 way of the soil finding its way out of hands less able to cul- 
 tivate it into those better able to cultivate it. Conformably 
 to these principles, the edict in question, in the first place, 
 removes all restrictions still existing in the way of free 
 exchange in land, in so far as private rights (viz., rights 
 arising from entails, servitudes, &c.) are not affected. By this 
 proviso the restrictions contained in paragraphs 6 and 7 of 
 the edict of 1807 were removed, the difference between tenant's 
 land and demesne land ceased, and the lord of the manor 
 could freely acquire the former without the previous sanction 
 of the State. On the other hand, by the perfect liberty 
 granted for dismemberment (the maxim being laid down that 
 it was better both for the cultivator and for the land cultivated 
 that the former should administer a small unencumbered estate 
 rather than a large encumbered one), the advocates of the 
 "petite culture" were conciliated. The passage in the Edict 
 is worth quoting in extenso, as it contains very explicitly what 
 we have described as the ruling idea of the legislation we are 
 discussing : an idea, it is true, which only attained its full
 
 Germany.] IN VARIOUS COUNTRIES. 273 
 
 development forty years later, but which, nevertheless, in spite 
 of the obstacles thrown in its way by the successors of Stein 
 and Hardenberg, took sufficient root even at this early period 
 to enable us to judge of its fruits. It is the idea of ownership 
 versus tenancy, and of absolute freedom of exchange and dis- 
 posal ; and special importance attaches to it as representing 
 principles opposed both to the French system of compulsory 
 division, and to the English system of tenancy, primogeniture, 
 and strict settlement. The passage we refer to runs on as 
 follows : 
 
 " The proprietor shall henceforth (excepting always where 
 the rights of third parties are concerned) be at liberty to increase 
 his estate, or diminish it, by buying or selling, as may seem 
 good to him. He can leave the appurtenances thereof (the 
 ' Grundstiicke,' or parcels distributed in the three ivV/^/i-) to one 
 heir or to many, as he pleases. He may exchange them or 
 give them away, or dispose of them in any and every legal way, 
 without requiring any authorisation for such changes. 
 
 " This unlimited right of disposal has great and manifold 
 advantages. It affords the safest and best means for preserving 
 the proprietor from debt, and for keeping alive in him a lasting 
 and lively interest in the improvement of his estate, and it 
 raises the general standard of cultivation. 
 
 " The first of these results is obtained by the power it gives 
 to the actual proprietor, or to an heir upon entering on his 
 estate, to sell such portions as will enable him to provide for 
 his heirs or co-heirs, as the case may be, or for any other extra- 
 ordinary emergency, leaving what remains of the property 
 unencumbered with mortgages or settlements. 
 
 " The interest in the estate is kept alive by the freedom left 
 to parents to divide their estate amongst their children as they 
 think fit, knowing that the benefit of every improvement will 
 be reaped by them. 
 
 '' Lastly, the higher standard of cultivation will be secured 
 by land — which in the hands of a proprietor without means 
 would necessarily deteriorate — getting into the hands of a 
 proprietor with means, and therefore able to make the best of it. 
 Without this power of selling portions of his property, the pro- 
 prietor is apt to sink deeper and deeper into debt, and in 
 proportion as he does so the soil is deprived of its strength. 
 By selling, on the other hand, he becomes free of debt and free 
 of care, and obtains the means of properly cultivating what 
 s
 
 274 SYSTEMS OF LAND TENURE FMorier. 
 
 remains to him. By this unhindered movement in the possession . 
 of land, the whole of the soil remains in a good state of cultiva- 
 tion ; and this point once attained, increased industry and 
 exertion will make it possible to attain a yet higher point, 
 whereas a backward movement, except as the result of extra- 
 ordinary mischances from without, is not to be apprehended. 
 
 " But there is yet another advantage springing from this 
 power of piecemeal alienation which is well worthy of attention, 
 and which fills our paternal heart with especial gladness. It 
 gives, namely, an opportunity to the so-called small folk (Kleine 
 Leute), cottiers, gardeners, boothmen, and day labourers, to 
 acquire landed property, and little by little to increase it. The 
 prospect of such acquisition will render this numerous and 
 useful class of our subjects industrious, orderly, and saving, 
 inasmuch as thus only will they be enabled to obtain the means 
 necessary to the purchase of land. Many of them will be able 
 to work their way upwards, and to acquire property, and to 
 make themselves remarkable for their industry. The State will 
 acquire a new and valuable class of industrious proprietors ; by 
 the endeavour to become such, agriculture will obtain new 
 hands, and by increased voluntary exertion more work out of 
 the old ones."' 
 
 The Edict next enacts, as a supplementary measure to the 
 " Edict for the Regulation of the Relations between Lords of 
 the Manor," that in the case of hereditary leaseholds (Erbpachte) 
 the services and fines may be commuted into rent-charges, and 
 these rent-charges redeemed by a capital i)ayment, calculated 
 at four per cent. 
 
 It next proceeds to deal with the commoii 7-ii^Jits of the 
 peasants and of the lords ; and here it fairly owns its inability 
 to carry out the principle of the free owner on the free soil. 
 The great mass of the peasant holdings are dispersed in small 
 open " commonable '' intermixed fields over the area of the 
 arable mark ; and the common rights of pasturage over the 
 arable mark neces.sarily chain down the individual cultivator to 
 the modes of cultivation compatible with these common rights. 
 To disentangle this complicated web must be the work of time 
 and of special legislation. The edict therefore announces a 
 future law on the subject, and for the present confines itself to 
 making jn'ovi.sions by wliich one-third part of such "common- 
 able " fields can be freed from the common rights of pasturage, 
 and placed at the absolute disposal of individual proprietors.
 
 Germany.] IN VARIOUS COUNTRIES. 275 
 
 The rights of pasturage in the forest lands of the manor are 
 more easily disposed of; the advantageous terms on which full 
 rights of property are obtainable by the peasants render it 
 ])ossible to make stringent regulations in regard to the exercise 
 of those rights, in the interest of the landlord and for the 
 preservation of the forests. 
 
 To guard against the possibility of a return to the double 
 ownership system, the edict lays down the rule that though a 
 landed proprietor may settle labourers on his estate, and pay 
 for their services in land, such contracts are never to be made 
 for more than twelve years. 
 
 The edict concludes by expressing it to be his Majesty's 
 wish and will that agricultural societies should be formed in 
 every part of the country, for the purpose of collecting and 
 diffusing knowledge. The expenses of these societies, and the 
 salaries of their secretaries, will be paid out of the Exchequer, 
 and the societies themselves will be placed in communication 
 with a central office in the capital, whose business it will also 
 be to establish and maintain model farms in various parts of 
 the country for the diffusion of agricultural knowledge. Besides 
 this more or less unofficial machinery, provision is made for 
 official agricultural boards to be established in each district ; 
 but these arrangements, having been superseded by subsequent 
 legislation, need not be referred to. 
 
 The two edicts of the 14th September, 18 it, may be con- 
 sidered as the culminating point of the legislation which goes 
 by the name of Stein and Hardenberg. 
 
 Two important laws, it is true, immediately connected with 
 the foregoing, were published in 182 1, the one having reference 
 to the regulation of common rights, the other to the commu- 
 tation of servitudes into rent-charges, and to the redemption of 
 the latter. Our space does not admit of our describing the 
 former of these two laws, all-important as is the question of 
 these common rights, and of the way they were dealt with, to a 
 correct appreciation of the agricultural system of Prussia. The 
 latter law was superseded by the much more drastic and com- 
 plete measure passed in 1850, and need not therefore be more 
 particularly dwelt upon here. 
 
 That which it is of importance to bear in mind is that these 
 laws were the necessary complements of the foregoing legisla- 
 tion, and that unless this legislation had been itself cancelled, 
 it was impossible for these laws not to have been passed. They
 
 276 SYSTEMS OF LAND TENURE [Morier. 
 
 were carried, as it were, by the momentum of the Stein and 
 Hardenberg legislation ; but the impelling force which had 
 imparted its momentum to that legislation had died out long 
 before, and other forces had taken its place. 
 
 " Le nomme' " Stein* had already, previously to the edicts of 
 181 1, been driven out of the service of the Prussian crown by 
 the mandate of Napoleon. Belonging to the class of statesmen 
 to whom recourse is instinctively had in times of trouble, and 
 from whom men who desire a quiet life, and who consider that 
 sufficient unto the day is the evil thereof, instinctively shrink 
 when the storm has passed by, he did not return to office when 
 the French were driven from the soil of Germany. 
 
 We are not here concerned with his general schemes of 
 political reform, intimately as they are connected with his 
 agrarian legislation. It is sufficient to note that what may be 
 termed his structural reforms, with the exception of the reform 
 of the municipalities, remained in their draft form. The repre- 
 sentative and self-governing institutions, which were to replace 
 the jurisdiction of the manor and the "status pupillaris" in 
 ■which the peasant community stood towards the manor, were 
 never called into life, and are at this very moment occupying 
 the attention of the Prussian legislature. 
 
 What he did succeed in carrying through was the reform of 
 the Prussian administration, and the creation of the ablest 
 and the most patriotic bureaucracy which ever weakened the 
 plea for self-government by the plea of good government. It 
 was against the serried ranks of this bureaucracy that the 
 manorial reaction tried the edge of its sword. At first on the 
 prosaic ground of vested interests, later on with the picturesque 
 accompaniments of a mediaeval revival. The completion of 
 the great work of agrarian reform was prevented and kept in 
 abeyance for upwards of a generation. Some of its features 
 even were grievously disfigured, but the massive torso itself 
 could not be moved from its place. Konisberg and Stein 
 had engraved their mark indelibly on the history of Prussia. 
 
 The most directly retrogressive step was the declaration of 
 the 29th of May, 18 16, which limited the action of the "Edict 
 for the Regulation of tlie Relations between Lords of the 
 
 • " Le nommd .Stein chcrchant ^ exciter dcs troubles en Allemagne est 
 
 declar*? ennenii dc la France II sera saisi de sa personne partout 
 
 oii il pourra c-trc attaint <le nos troupes ou ccUes de nos alliens. 
 
 " En noire camp imperial de Madrid, le i6 Decembre, 1808. — N.VPOLEON."'
 
 Germany.] IN VARIOUS COUNTRIES. 277 
 
 Manor and their Peasants " to farms of a comparatively large 
 size, without abrogating the provisions of the " Edict for the 
 better Cultivation of the Land " which did away with the con- 
 stitutional difference between peasant's land and demesne land, 
 and established the principle of free trade in land. By the 
 combined effect of these two principles the " so-called small 
 folk," whom the latter edict so ostentatiously took under its 
 protection — i.e., the great mass of small holders, who did not 
 cultivate with teams — were placed at a huge disadvantage, for 
 where their tenures were hereditary, they continued burdened 
 with feudal services and dues ; where they were not hereditary, 
 they were evicted wholesale. 
 
 By a later declaration, in 1836, twenty-five Prussian acres 
 is fixed as the minimum of a holding having the right to be 
 enfranchised. 
 
 THE LEGISLATION OF 1850. 
 
 The legislation of 1850 was in the highest degree prolific; 
 but we need only concern ourselves with the two great laws ot 
 the 2nd of March. 
 
 1. The Law for the Redemption of Services and Dues and 
 the Regulation of the Relations between the Lords of the 
 Manor and their Peasants. 
 
 2. The Law for the Establishment of Rent Banks. 
 
 The former of these laws abrogated the " dominium 
 directum," or overlordship of the lords of the manor, without 
 compensation ; so that from the day of its publication all 
 hereditary holders throughout the Prussian monarchy, irrespec- 
 tively of the size of their holdings, became proprietors, subject, 
 however, to the customary services and dues, which by the 
 further provisions of the law were commuted into fixed money 
 rents, calculated on the average money value of the services 
 and dues rendered and paid during a certain number of years 
 preceding. By a further provision these rent-charges were 
 made compulsorily redeemable, either by the immediate pay- 
 ment of a capital equivalent to an 18 years' purchase of the 
 rent-charge, or by a payment of i.\ or 5 per cent, for 56 j^ or 
 4^tV yC'irs, on a capital equivalent to 20 years' purchase of the 
 rent-charge. 
 
 The law for the establishment of rent banks provided the
 
 278 , SYSTEMS OF LAND TENURE [Morier. 
 
 machinery for this wholesale redemption. By it the State, 
 through the instrumentality of the rent banks, constituted itself 
 the broker between the peasants by whom the rents had to be 
 paid, and the landlords who had to receive them. 
 
 The bank established in each district advanced to the latter 
 in rent debentures, paying 4 per cent, interest, a capital sum 
 equal to 20 years' purchase of the rent. The peasant, along 
 with his ordinary rates and taxes, paid into the hands of the 
 district tax collector each month one-twelfth part of a rent 
 calculated at 5 or 4^ per cent, on this capital sum, according 
 as he elected to free his property from encumbrance in 4i-iV '^^ 
 5^tV years, the respective terms within which at compound 
 'interest the i or the J per cent., paid in addition to the 4 per 
 cent, interest on the debenture, would extinguish the capital. 
 
 The account given of these rent banks in Mr. Hutton's 
 pamphlet, p. 18, is so clear and exhaustive, tliat it would be 
 lost labour to attempt to improve on it here. 
 
 The legislation of 1850 was no more than the efficacious 
 application of the principles contained in the edict of 181 1. 
 At first sight, two new principles appear to have been intro- 
 duced, viz., the absence of compensation for the " dominium 
 directum," and the elimination of the principle of payments in 
 land. But if we look at the matter more closely, these 
 differences amount to little. The " dominium directum," as 
 before observed, deprived of its material contents, i.e., of the 
 services and dues, was absolutely valueless to the overlord, 
 whilst, on the other hand, the immediate and simultaneous 
 entrance into full proprietary rights on the part of the many 
 thousands of holders who were affected by the law of the 2nd 
 of I\Tarch, was calculated to exercise a moral effect of the 
 greatest magnitude. 
 
 As regards the non-commutation in land, it will be remem- 
 bered that the edict of 181 1 laid down the rule that the 
 services of holdings less than fifty Prussian acres in size should 
 be commuted in rent-charges only. Now it is probable that 
 most of the holdings over this size had been redeemed prior to 
 1850, so that practically the law of the 2nd March had only to 
 deal with the smaller kinds of holding, for which the com- 
 mutation of services by a rent-charge had been provided by 
 the edict of 181 1. It was not by the newness of the principles, 
 therefore, but by the incompara])ly superior machinery for 
 applying the principles, that the legislation of 1850 established
 
 Germany.] IN VARIOUS COUNTRIES. 279 
 
 its superiority over that of 1811, and obtained such much 
 larger results in comparatively so short a time. 
 
 Such in very rough outline is a sketch of the agrarian legis- 
 lation of Prussia during the present century. Neither the space 
 nor the time at our disposal have allowed us to do more than 
 attempt to point out its chief incidents, and connect these with 
 the general agricultural history of the Teutonic race. The 
 identity of this history in the earlier stage of the several 
 Teutonic communities has already been dwelt upon. Given 
 this identity, it necessarily followed that at some time or other, 
 in the development of each Teutonic community, the same 
 problems presented themselves for solution. According as 
 they have been solved in one way or the other, the entire 
 -social and political condition of the several communities has 
 been modified. The organic change common to all, and which 
 constitutes, as it were, the turning-point in their several 
 histories, is that from cultivation />/ common to cultivation by 
 individuals, or, to use two old English terms, from " champion 
 country " to " severall." To the student of English history, 
 the word which corresponds to this change is " enclosure," the 
 true significance of which has, however, not always been seized 
 by either English or foreign writers on the subject.* The 
 great " enclosing " movement in the sixteenth century is usually 
 described as if it had merely had for its object to turn arable 
 land into pasture. Its importance as a joint effort on the part 
 of the lords of the manor to withdraw their demesne lands from 
 the " communion " of the township has been overlooked. That 
 this object was in itself highly desirable, and the conditio sine 
 qua non of any improvements in agriculture is undeniable ; it 
 was an organic change through which every Teutonic com- 
 munity had necessarily to pass. The evils which attended the 
 process in England at the time referred to arose from the fact 
 that instead of being effected by impartial legislation, as has 
 been the case in Prussia during the present century, the change 
 was forcibly brought about by the one-sided action of the 
 landlords. Any one acquainted with the practical difiiculties 
 experienced in Germany in making analogous separations, will 
 readily comprehend all the injustice which one-sided action in 
 
 * An invaluable contribution to the history of this complicated subject has 
 been made this year by Professor Nasse of Bonn, in a pajier entitled " Ueber 
 die Miltelalterliche Feldgemeinschaft und die Einhegungcn des Sechszehuten 
 Jahrhundorts in England," to which we refer any of our readers who may doubt 
 the conclusions we have come to in the following pages.
 
 28o SYSTEMS OF LAND TENURE [Morihr. 
 
 such a process on the part of the stronger must have implied. 
 In the most favourable case, the withdrawal of, say, one-third,* 
 or one-half of the land from the "commonable" arable land of 
 a township, such half or third portion, be it remembered, con- 
 sisting, in many cases, of small parcels intermixed with those of 
 the commoners, must have rendered the further common culti- 
 vation impossible, and thereby compelled the freeholders and 
 copyholders to part with their land and their common rights on 
 any terms. That in less favourable cases the lords of the 
 manor did not look very closely into the rights of their tenants, 
 but interpreted the customs of their respective manors in the 
 sense that suited them best, and that instead of an equitable 
 repartition of land between the two classes, the result was a 
 general consolidation of tenants' land with demesne land, and 
 the creation of large enclosed farms, with the consequent 
 wholesale destruction of agricultural communities or tovvnships,f 
 is well known to every reader of history. That the result of 
 the newly-acquired liberty of agricultural operations was to in- 
 crease sheep farming is equally well knov/n ; but the two facts 
 are usually brought into immediate connexion with each other, 
 without reference being made to the primary fact which governs 
 the two, viz., not the enclosure of arable land as such, but of 
 " commonable " arable land. The immense increase in stock, 
 apparently without any diminution in the amount of corn grown 
 (for during the period when the clamour against the enclosures 
 was hottest, the price of corn remained uniformly low), was the 
 result of the natural improvement in agriculture, caused by the 
 change from " champion " to " severall," which enabled more 
 produce of all kinds to be got out of the land with less labour. 
 We have called attention to this great crisis in English 
 
 * In a majority of cases the tenants' land in a manor was much in excess of 
 the demesne land. 
 
 t Cf. lien. VII. 4, cap. 19, "an acte against the pulling down of 
 
 tounes. Foune" is here used in its original sense, viz., as the equivalent 
 
 not of a walled city, hut of a yirwc^rf-in village — '"villa," "villata." "Tun," 
 which is the same word as the German "Zaun," means y^/ir*?. The "tun- 
 skip " or township was therefore the enclosure within which the tenements of 
 the community, with their garden lots, &c., were permanently fenced off from, 
 the unenclosed commonalile mark. For the arable mark, as such, was unen- 
 closed — the "Fields," " flurcn," "cami^i," being only temporarily fenced in 
 whilst the grain-crops were growing and until they were harvested. Hence it 
 was the permanent enclosing of the several lots held in the open unenclosed 
 arable mark which constituted withdrawal from the community, and which, 
 where it was done, on a large scale, necessarily led to the break up of the "com- 
 munion " of the township.
 
 Germany.] IN VARIOUS COUNTRIES. 28 1 
 
 agriculture during the sixteenth century — ist, because we 
 believe that it affords the correct analogy to the Prussian agri- 
 cultural crisis in the nineteenth century; and, 2nd, because 
 the matter not only possesses great historical interest, but is 
 still of practical importance ; for the change we have been 
 describing was by no means completed in the sixteenth century. 
 Down to the present century, very large portions of England 
 were still cultivated in common, on the old Three Field 
 System,* and the work of enclosure is not done yet. 
 
 Now, speaking with all diffidence, we cannot but believe that 
 legislators called upon to frame Enclosure Acts might find their 
 task made easier to them by a knowledge of the principles and 
 practice which during the last sixty years have been applied to 
 similar legislation, not in Prussia only, but in every State of 
 Germany. England is the only Teutonic community (we 
 believe we might say, the only civilized community now 
 existing) in which the bulk of the land under cultivation is not 
 in the hands of sfnall proprietors. Clearly, therefore, England 
 represents the exception, and not the rule ; and no exception 
 can be understood without a knowledge of the rule. 
 
 Three great countries — England, X>ance,t and Germany- 
 began their political life from a similar agricultural basis. In 
 each of them the great conflict between immunity and com- 
 munity, between demesne land and tenant land, between the 
 manor and the peasant, has had to be fought out. 
 
 In England the manor won ; the peasant lost. In France 
 the peasant won ; the manor lost. In Germany the game has 
 been drawn, and the stakes have been divided. Each system 
 can be defended and passionately pleaded for. Each has 
 much to be said for and against it. 
 
 We have not been able to do more than call attention to the 
 general analogies of the question, hoping that some abler pen 
 than ours may be tempted to take up the subject, and examine 
 the land history of the United Kingdom in connexion with the 
 land history of kindred nations. 
 
 Should our hope be realised, we shall feel that in an infini- 
 
 * Cf. A Review of the Reports to the Board of .-\griculture from the Midland 
 department of England, by Mr. Marshall, York, 1815. 
 
 t Of course we do not class France as a Teutonic country, though its land 
 institutions were of distinct Teutonic origin. It is probable that the Celto- 
 Uomanic elements which so soon overpowered the Teutonic elements of French 
 society contributed to the solution of the conflict in the way peculiar to 
 France.
 
 282 SYSTEMS OF LAND TENURE [Morier. 
 
 tesimal degree we shall have fulfilled our duty as members of 
 the Cobden Club, and at least trimmed the lamp of international 
 knowledge. 
 
 Considering the object for which this volume of essays has 
 been written, it may seem incumbent upon us before we come 
 to a close to estimate how far the precedent afforded by Prussia 
 is available for the purposes of Irish legislation. 
 
 We confess ourselves, however, unequal to a task whicli 
 would presuppose a far different acquaintance with the agri- 
 cultural relations of Ireland than any we possess. 
 
 All we can do is to hazard a review of the Irish land question 
 from the standing ground which we can conceive a man, 
 penetrated with the wisdom of the principles upon which the 
 legislation of Prussia is founded, might occupy. 
 
 1. The first thing which such a man would do would be to 
 point out the impossibility of directly applying that legislation 
 to the present state of Ireland. Turning as it does upon what 
 the Germans call the "constitutional" difference between 
 " demesne " land and " tenants' " land, in the mediaeval accep- 
 tation of those terms, it could be applied directly only where 
 that difference existed. 
 
 2. He would express in no measured terms his condemnation 
 of a system of tenancy-at-will. Here we can speak ex cathedra, 
 there being a remarkable paper extant in which Stein expresses 
 his opinion on uncertain tenures. 
 
 3. He would probably set aside primogeniture, entails, and 
 strict settlements. On large estates held by corporations he 
 would look with no friendly eye. The " dead hand " fills hini 
 with peculiar horror. He everywhere wishes to see the living- 
 hand grasping the living soil. 
 
 4. He would insist on every rood of Irish land having a 
 parliamentary title, and being transferable by a cheap and 
 simple system of registration. His land and mortgage register 
 deposited in each township with its accurate map of the dis- 
 trict would play an important part in his system. 
 
 5. When he came to examine the popular cry {ov Jixify of 
 tenure, he would, we are inclined to think, reject it absolutely. 
 He would declare that it must lead to one of two things, cither 
 to the stereotyping of the system of double ownership, against 
 which the whole legislation of Prussia is an emphatic protest, 
 or to the eventual undivided ownership of the present tenants,
 
 Germany.] IN VARIOUS COUNTRIKS. 283 
 
 i.e., to the dispossession " en bloc " of the present proprietors. 
 In the first case all the evils of double ownership would be 
 aggravated by the pecuUar tendencies of Irish agriculture. 
 The tenant not having the passion for his land or the pride in 
 it which ownership alone can give, would sublet and subdivide. 
 The landlord, knowing that, the rent due to him being a first 
 charge upon the estate, his interests, limited as they were, were 
 safe, would look on with indifference, and not interfere. In a 
 word, the landlord would be divorced from the soil without the 
 tenant being married to it, and the evils of an illicit union 
 would be the natural result. But the experience of Prussia 
 would have taught our imaginary critic that where a variable 
 rent is changed into a fixed rent charge, even where the possi- 
 bility exists of a periodical revision, and of an increase at some 
 future period in the amount of the rent-charge, the almost 
 certain consequence is the redemption of the rent-charge by a 
 payment of capital, and he believes that this result would 
 inevitably follow in Ireland. For supposing the periodical 
 revision were to take place every twenty or thirty years, M^hat 
 landlord would hesitate to sell this reversionary right, and what 
 tenant would hesitate to buy it by any sacrifice in order thus 
 to enter into full proprietary rights ? But the dispossession of 
 the present proprietors and the substitution of the actual 
 tenants as the sole proprietary class, would mean economically 
 the withdrawal from the soil of the class having the largest 
 capital and enjoying the largest credit ; and the reproduction 
 in another shape of the present evil of a class monopoly in the 
 ownership of land. One object of Prussian legislation was that 
 every class should participate in the rights and duties which 
 flow from property in land, and this object would be equally 
 defeated whichever was the monopolising class. 
 
 6. Having rejected fixity of tenure and tenancy-at-will, he 
 would look to leases as the "tertium quid." He would require 
 written contracts, in a form established by law, but varying 
 according to the modes of cultivation in the various districts. 
 In the absence of such written contract, the presumption of 
 the law would be in favour of the lease enjoined by tlie legal 
 contract of the district, the landlord having a right of eviction 
 if he could prove that the tenant had refused the legal 
 contract. 
 
 . 7. He would next examme the question of improvements 
 effected by tenants, and would establish Boards of Arbitration,
 
 284 SYSTEMS OF LAND TENURE [Morier. 
 
 on the model of the Prussian General Commissions, but with 
 juries composed equally of landowners and tenants to decide 
 questions of fact. These boards should determine what the 
 value of such improvements amounted to in each case. This 
 amount would constitute a first charge upon the estate, and be 
 registered as such in the Land and Mortgage Register. It 
 would be left to the landlord and tenant to determine in what 
 way the debt should be extinguished ; but a limit of time 
 within which the charge should be liquidated might be fixed. 
 Where the value of the improvements approached or exceeded 
 that of the fee-simple of the land, it would be a question left to 
 the parties, assisted by the Board of Arbitration, to decide 
 whether the landlord should buy up the tenant's right, or the 
 tenant the landlord's. 
 
 8. He would not be inclined to look with favour on Ulster 
 tenant right, at least where that right miplied a payment for 
 the " good-will," in excess of the value of the improvements 
 made by the tenant or his predecessors, as he would consider 
 this another form of double ownership. The Board of Arbitra- 
 tion would carefully discriminate between the value of improve- 
 ments and the value of the good-will " per se ; " and would 
 treat the former in the way already suggested, whilst it would 
 consider the latter as a servitude on the estate, to be redeemed 
 in the manner most favourable to the landlord. 
 
 9. Having done his utmost to place the relations of land- 
 lords and tenants on a satisfactory footing, and having removed 
 all difficulties in the way of free alienation, he would next 
 occupy himself with the creation of farmer proprietors, i.e., of 
 a middle-class proprietary. Remembering the colonisation of 
 waste lands by Frederick the (ireat, he would see what was to 
 be done in the way of diminishing competition for land already 
 under cultivation, by organised settlements on uncultivated 
 lands, keeping in view the fact that land, which it does not pay 
 to reclaim for the object of rent, will yield sufficient returns 
 when tilled as property. He would, in the next place, by 
 means of rent-banks, and on the Prussian system of amortisa- 
 tion, facilitate every transaction by which a landlord might 
 desire to sell his property to his tenants ; the rent-bank 
 advancing the capital sum to the landlord, and recouping 
 itself out of a percentage added to the rent. By means of the 
 same machinery the State, acting through the bank, would buy 
 up all the land that came into the market, and sell it to
 
 Germany.] IN VARIOUS COUNTRIES. 285 
 
 ocaipiers. The object of the State not being to make money, 
 but to create proprietors without loss to itself, the principle of 
 competition would not be allowed to act in these sales. Two 
 conditions would have to be laid down : 1st, that the farm 
 should be of sufficient size fully to maintain the proprietor and 
 his family, according to the highest scale of comfort known in 
 the district ; 2nd, that the intended proprietor should possess 
 the necessary capital to work it. Where these conditions 
 were fulfilled, the actual occupier would have the right of pre- 
 emption. Where they were not fulfilled, he would have to be 
 bought out, and the farm would be given to the candidate who 
 fulfilled the conditions. Where several such candidates pre- 
 sented themselves with equal claims, the choice of the candi- 
 date would be decided by lot. On entering into possession, 
 the future proprietor would have to sign a bond, by which he 
 engaged, until he had paid up in full, neither to let nor sublet, 
 to keep the farm-buildings in repair, &c. On his failure to 
 fulfil these engagements, the bank would have a right to evict 
 him on repayment of the rates already paid by him. 
 
 10. All these objects, he believes, would be attainable by 
 using the credit of the State, and without any cost to the tax- 
 payers. Any spare sums of money derived from church 
 property, or other sources, he would employ in establishing 
 agricultural schools and model-farms in every part of the 
 island, and in imparting an elementary knowledge of agricul- 
 tural science to the national schoolmasters. 
 
 Such, we believe, is the kind of programme which our 
 imaginary legislator, arguing from a general kind of Prussian 
 analogy, and with only a general knowledge of the Irish Land 
 Question, might recommend. 
 
 It must not be forgotten, however, that being, under the 
 hypothesis of the case, a foreigner, he is, on the one hand, 
 unacquainted with the political difiiculties of the question, 
 and, on the other hand, possessed of that belief in the omni- 
 potent and beneficent action of the State, which it would not 
 be easy to impart to an Englishman.
 
 287 
 
 VL 
 
 THE LAND SYSTEM OF FRANCE. 
 By T. E. Cliffe Leslie. 
 
 The object of this essay is to describe the Land System ot 
 France in respect of the distribution of landed property in that 
 country, with the rural organisation in which it results, and to 
 examine its causes and effects. In considering its causes, laws 
 and customs relating to property {including succession and 
 transfer), and to tenure, of necessity form prominent objects of 
 incjuiry ; but their operation is so bound up with that of 
 economical causes and conditions, that we should miss in 
 place of obtaining clearness by separating what may be termed 
 the legal from the economical class of subjects of discussion. 
 It ought, too, to be premised that although political causes, in 
 that narrow sense of the word which relates merely to the con- 
 stitution and action of the State, do not (aW within the scope 
 of the present essay, yet the fact of their existence ought not to 
 be altogether ignored. There are such causes, and their dis- 
 turbing influence is powerful. A striking illustration of the 
 potency of this class of causes is afforded in the fact that 
 M. Le'once de Lavergne, in his celebrated work on the " Rural 
 Economy of Great Britain,'' refers the progress of English agri- 
 culture during the last two hundred years, in the main, directly 
 or indirectly, to political institutions, political liberty, and 
 political tranquillity. The influences and effects of the French 
 land system cannot then be fairly estimated without taking 
 into consideration matters excluded by the non-political cha- 
 racter of these pages. On the other hand, it will be pertinent 
 and material to their purpose to show that much which is 
 commonly ascribed in this country to political causes (in that 
 wider sense which comprehends all the institutions of a country,
 
 288 SYSTEMS OF LAND TENURE [Leslie. 
 
 especially those relating to property in land), as the chief 
 agencies regulating the division of the soil in France, and the 
 modes of its cultivation, are in reality traceable to the natural 
 play of economic forces, aided, indeed, by the law of France, 
 but not the part of it supposed. 
 
 The contrast between the land systems of France and 
 England, two neighbouring countries at the head of civilisation, 
 may, without exaggeration, be called the most extraordinary 
 spectacle which European society offers for study to political 
 and social philosophy. The latest official statistics in France,* 
 on the other hand (following an enumeration of 1851, now in 
 arrear of the actual numbers), reckon no less than 7,845,724 
 " proprietors," including the ov/ners of house property in towns 
 — a number which may be assumed to denote the existence of 
 eight million such proprietors now. Of these, according to the 
 computation of M. de Lavergne, about five millions are "rural 
 proprietors," of whom nearly four millions are actual cultivators 
 of the soil. The official tables themselves return no fewer than 
 3»799t759 landowners as cultivators, of whom 57,639 are 
 represented as cultivating by means of head-labourers or 
 stewards, as against 3,740,793 cultivating their land de leurs 
 mains. This last figure is again subdivided into 1,754,934 
 landowners cultivating only their own land; 852,934 who, in 
 addition to their own, farm land belonging to others as tenants; 
 and 1,134,190 who work also as labourers for hire. But these 
 figures, as already remarked, are now in arrear ; and we may 
 accept as a close approximation to the actual situation the 
 following estimate by M. de Lavergne : — " Of our five millions 
 of small rural proprietors, three millions possess on the average 
 but a hectare f a-piece. Two millions possess on the average 
 six hectares. . . . Two million independent rural proprietors, 
 a million tenant farmers or metayers, and two million farmers 
 and servants themselves, as well as the million farmers, for the 
 most i)art proprietors of land ; such is aj)proximately the com- 
 position of our rural population."]: 
 
 It would hardly diminish the contrast of such statistics to our 
 own, were we to adojjt the figure which M. de Lavergne has 
 introduced into his " Rural I^conomy of Great Britain," on the 
 
 • " Statistifiue (le la France. Agriculture, 1868" (Resultats Gcn^raux de 
 l'I''n(|ut*t(; Doccnnale de I862\ 
 
 t Not quite two acres and a half. 
 
 X " Economic Rurale de la France," last I'.tlition.
 
 France.] IN VARIOUS COUNTRIES. 289 
 
 authority of a statement made by an unofficial member of the 
 House of Commons during a debate — -a figure which has often 
 since been reproduced in England on the authority of M. de 
 Lavergne himself — namely, that there are 250,000 owners of 
 land in this country ; although it ought to be noticed that there 
 is reason to believe an error respecting the meaning of the 
 technical term " freeholders " was involved in this calculation, 
 and, moreover, that it includes a number of suburban free- 
 holds, and by consequence an urban, not a rural class of pro- 
 prietors, far less actual cultivators of land of their own. 
 
 Four millions of landowners cultivating the soil of a territory 
 only one-third larger than Great Britain, may probably appear 
 to minds fomiUar only with the idea of great estates and large 
 farms almost a redudio ad ahsurdum of the land system of the 
 French. Those, on the other hand, who have studied the con- 
 dition of the French cultivators not merely in books, but in 
 their own country, and who have witnessed the improvements 
 which have taken place in it and in their cultivation year after 
 year, will probably regard the number with a feeling of satisfac- 
 tion. One thing, at least, is established by it, that property in 
 land is in France a national possession ; that the territory of the 
 nation belongs to the nation, and that no national revolution 
 can take place for the destruction of private property. 
 
 But the inquiry proper to the present pages leads us to 
 examine, in the first place, the causes of so wide a distribution 
 of landed property in France, and, secondly, its economic 
 rather than its political effects. Its economic eflfects will prove 
 on examination to be in foct its principal cause. The notion 
 commonly entertained in England appears, however, to be that, 
 originating in the confiscations of the French Revolution, the 
 subdivision of the soil has been not only perpetuated but 
 increased in a geometrical progression by the law of succession 
 established by the Code Napole'on. That it did not originate 
 with the Revolution, and that an immense number of peasant 
 properties existed in France long prior to 1789, is indeed 
 well known to all students of French social history ; and 
 those who have not concerned themselves with that side of 
 history will find the fact fully substantiated in the introduction 
 to M. de Lavergne's " Economic Rurale de la France." The 
 point which calls for notice here is that, centuries before the 
 Revolution of 1789, one of the causes of the subdivision of 
 land in France (one which we shall find to be the chief cause in 
 
 T
 
 290 SYSTEMS OF LAND TENURE [Leslie. 
 
 our own time) was its acquisition by purchase in small 
 parcels by the French peasantry. 
 
 " I have in my hands," says M. Monny de Mornay, in 
 his general report on the results of the recent Enquete Agricole, 
 " contracts of purchase by peasants of parcels of land of less 
 than twenty ares (that is to say, less than half an acre) com- 
 mencing prior to the close of the sixteenth century." It was 
 not the lack of landed property that left the peasantry of 
 France in destitution, and drove them to furious vengeance 
 two himdred years later ; it was the deprivation of its use 
 by atrocious misgovernment, and the confiscation of its fruits 
 by merciless taxation and feudal oppression. But in England, 
 also, the number of small landholders at the close of the six- 
 teenth century was still very large, though it had once been 
 much larger ; even at the date of the French Revolution it was 
 considerable ; and in 1815 (at which date it is calculated 
 that there were 3,805,000 landowners in France), it was, 
 although it had steadily declined, a more significant figure than 
 it is now. In France, on the contrary, the number has 
 increased to about four millions engaged in the actual cul- 
 tivation of the soil, in addition to nearly a million other small 
 rural proprietors, who are the owners, at least, of a cottage. 
 We are not here engaged to inquire into the causes of the 
 diminution, the disappearance, one may say, of small land- 
 owners in England ; but the contrast between the movement 
 which has been steadily adding to the number in France 
 and that which has extirpated them in England adds interest 
 to an investigation of the nature and causes of the French 
 agrarian economy. The results of such an investigation can 
 hardly fail, moreover, to throw an indirect light upon the 
 agrarian economy of England. 
 
 As already ol3served, the French law of succession, which 
 limits the parental power of testamentary disposition over pro- 
 perty to a part equal to one child's share, and divides the 
 remainder among the children equally, is the cause commonly 
 assigned in Itngland for the continuous subdivision of land 
 in France. And of an incontestable mischief in the operation 
 of the French law, as regards the subdivision of separate 
 parcels, there will be occasion to take notice hereafter. But a 
 point of much greater importance is, that the real effects of 
 the French law of succession cannot be understood without 
 taking into account a process of subdivision taking place in
 
 France.] IN VARIOUS COUNTRIES. 29 1 
 
 France from a different cause, one really indeed traceable in 
 part to the structure of French law, but not the law of suc- 
 cession — namely, continual purchases on the part of the 
 peasantry of small estates or parcels of land. On this subject 
 notaries in many different parts of France have given the 
 writer surprising information in recent years ; and it has 
 indeed for many years been a subject of such common remark 
 in the country, that even mere railway passengers through it 
 can hardly have failed to have come upon evidence of it. 
 M. Monny de Mornay states with respect to it, in the chapter 
 of his report on the division of land : " The fact which 
 manifests itself most forcibly is the profound and continuous 
 alterations in the distribution of the soil among the different 
 classes of the population. In the greater number of depart- 
 ments the estates of loo hectares might now be easily counted ; 
 and taken altogether they form but an insignificant part of the 
 national territory. The proportion cannot be stated in figures, 
 because it varies from one department to another ; one must 
 confine oneself to saying that the west and south have pre- 
 served more large estates than the north and east." The north 
 and east, he might have added, are the wealthiest and best- 
 cultivated zones, though the south is now rapidly improving in 
 cultivation and wealth, and, as will presently be shown, the 
 process of subdivision keeps step with this improvement. 
 After referring to the disappearance of estates of even moderate 
 size, M. de Mornay proceeds : " All that has been lost to the 
 domain of large estates, all that is lost day by day to that of 
 estates of middle size, small property swallows up. Not only 
 does the small proprietor round his little property year by year, 
 but at his side the class of agricultural labourers has been 
 enriched by the rise of wages, and accedes to landed property 
 in its turn. In the greater number of departments 75 per 
 cent, at least of them are now become owners of land. Peasant 
 property thus embraces a great part of the soil, and that part 
 increases incessantly. The price of parcels of land, accord- 
 ingly, which are within reach of the industry and thrift of the 
 peasant, increases at a remarkable rate. The competition of 
 buyers is active, and sales in small lots take place on excellent 
 terms for the seller, when the interval has been sufficient to 
 allow fresh savings to reaccumulate." This is in some degree 
 an official statement, and official statements in France are 
 sometimes suspected of exaggerating the prosperity of the
 
 292 SYSTEMS OF LAND TENURE [Leslie. 
 
 nation at large ; but it is confirmed by a superabundance of 
 unofficial and unquestionable authority not on the side of 
 Imperial Government. In one of several passages to the same 
 effect, in his " Economic Rurale de la France," and other 
 works, M. Le'once de Lavergne, for instance, says : " The small 
 proprietors of land, who, according to M. Rubichon, were about 
 three millions and a half in 181 5, are at this day much more 
 numerous ; they have gained ground, and one cannot but 
 rejoice at it, for they have won it by their industry.'' And in 
 a very recent communication* to the present writer, M. de 
 Lavergne observes : " The best cultivation in France on the 
 whole is that of the peasant proprietors, and the subdivision of 
 the soil makes perpetual progress. Progress in both respects 
 was indeed retarded for a succession of years after 1848 by 
 political causes, but it has brilliantly resumed its course of 
 late years. All round the town in which I write to you 
 (Toulouse) it is again a profitable operation to buy land in 
 order to re-sell it in small lots. ... I have just spent a 
 fortnight near Beziers. You could not believe what wealth 
 the cultivation of the vine has spread through that country, and 
 the peasantry have gotten no small share of it. The market 
 price of land has quadrupled in ten years. But for the duty 
 on property changing hands (I'impdt des mutations), and the 
 still heavier burden of the conscription, the prosperity of the 
 rural population of France would be great. It advances in 
 spite of everything, in consequence of the high prices of 
 agricultural produce." 
 
 Along with the subdivision of landed property thus taking 
 place, there is also, as we shall see, a movement in the land 
 market towards the enlargement of peasant properties, the 
 consolidation of small parcels, and even in some places towards 
 the acquisition of what in France are considered as large 
 estates ; as, in like manner, contemporaneously with the sub- 
 division of farms, and the more minute cultivation of the soil, 
 there is also a counter-process of enlargement of little farms, 
 and in some places even a development of /a grande culture on 
 a splendid scale. But let us inquire first, what are the causes, 
 economic and legal^ of the continual subdivision by purchase 
 of the soil in France? The reader will bear in mind with 
 respect to it, that it is by no means a mere subdivision of 
 existing peasant properties ; that small properties are gaining 
 • November 6, 1 869.
 
 France.] IN VARIOUS COUNTKiKS. 293 
 
 ground in the literal sense, and increasing the breadth of their 
 total territory as well as their total number. And the con- 
 tinuous acquisitions of land by purchase on the part of the 
 French peasantry and labouring classes can be palpably shown 
 to be a perfectly natural and beneficial movement ; one pro- 
 ceeding, in the first place, from the natural tendencies of rural 
 economy, from the mutual interest of buyers and sellers, from 
 the growing prosperity and development of France, as its 
 agriculture improves, as it is opened up by railways, roads, 
 internal and foreign trade, manufactures, and mines, and as 
 both country and town become wealthier ; proceeding again, in 
 the second place, from, or at least promoted by, a sound and 
 natural legal system ; facilitating dealings with land as the 
 interests, inclinations, haj)piness, in a word, the good of the 
 community direct. 
 
 One obvious consideration presents itself foremost, though 
 too much stress must not be laid on it, that France has 
 aptitudes of soil and climate for several kinds of agricultural 
 produce — the vine, for example — for which la petite culture, in 
 the form of manual cultivation (a form to which we shall see 
 hereafter that la petite culture is by no means confined), is 
 almost exclusively appropriate. Too much stress must not be 
 laid on this fact, as just said ; for the amount of cultivated 
 territory under such kinds of produce does not amount to one- 
 fifteenth of the whole ; but it is a fact worth mentioning, on 
 one hand as an indication, so for as it goes, of the chimerical 
 nature of notions prevalent in England, even among excellent 
 farmers, of the ruinous consequences to agriculture of the sub- 
 division of the French soil, and on another hand as presenting a 
 particular example of a general fact of immense importance in 
 the inquiry ; namely, that the class of productions for which la 
 petite culture is eminently adapted (whether exclusively, or in 
 common with the large system of farming) is one for which the 
 demand steadily increases with the growth of wealth, trade, 
 and agriculture, and the prosperity of the inhabitants of both 
 town and country, including the small cultivators themselves. 
 
 M. Le'once de Lavergne, in his " Rural Economy of Great 
 Britain," after remarking — and the remark is in itself one of no 
 small importance and instructive suggestion — that, " Capital 
 being more distributed in France than it is in England, it is 
 -expedient that the farms should be smaller, to correspond with 
 die working capital," proceeds : "The extent of farms, besides,
 
 294 SYSTEMS OF LAND TENURE [Leslib. 
 
 is determined by other causes, such as the nature of the soil, 
 the cUmate, and the kinds of crops prevaiHng. Almost every- 
 where the soil of France may be made to respond to the labour 
 of man, and almost every\vhere it is for the advantage of the 
 community that manual labour should be actively bestowed 
 upon it. Let us suppose ourselves in the rich plains of 
 Flanders, or on the banks of the Rhine, the Garonne, the 
 Charente, or the Rhone ; we there meet with la petite adtiire, 
 but it is rich and productive. Every method for increasing the 
 fruitfulness of the soil, and making the most of labour, is there 
 known and practised, even among the smallest farmers. Not- 
 ■withstanding the active properties of the soil, the people are 
 constantly renewing and adding to its fertility by means of 
 quantities of manure, collected at great cost ; the breed of 
 animals is superior, and the harvests magnificent. In one 
 district we find maize and wheat ; in another, tobacco, flax, 
 rape, and madder; then again, the vine, olive, plum, and 
 mulberry, which, to yield their abundant treasures, require a 
 people of laborious habits. Is it not also to small farming that 
 we owe most of the market-garden produce raised at such great 
 expenditure around Paris?" And further on (notwithstanding 
 the favour which, in his love for political liberty and order, M. 
 de Lavergne regards everything in the economy of England) 
 he observes : " Our agriculture may find in England useful 
 examples ; but I am far from giving them as models for 
 imitation. The south of France, for example, has scarcely 
 anything to borrow from English methods; its agricultural 
 future is nevertheless magnificent." This passage was written 
 sixteen years ago ; and a communication to the writer cited 
 above shows how the predictions it contains respecting the 
 south of France, and the great future before la petite culture, 
 are now being realised under the eyes of its author. But it is 
 not in the southern half alone of France that the peasant 
 cultivator finds a perpetually growing demand for all the most 
 remunerative kinds of his produce. The " Enquete Agricole," 
 for instance, shows a great increase in the cultivation of the 
 vine in the east, the west, and the centre, as well as the south ; 
 while in the north — where the vine is, on the contrary, giving 
 way before the competition of the plant of more favoured skies 
 — the demand for the produce of the market-gardens, the 
 dairy, and the orchard, afi"ord more than a compensation. It 
 deserves, moreover, passing remark that the little gardens and
 
 France.] IN VARIOUS COUNTRIES. 295 
 
 orchards round the cottages of the peasantry form, by reason 
 of their careful and generous cultivation, the greater portion of 
 the class of land which in French agricultural statistics obtains 
 the denomination of Terrains dc qualite superieure. For dairy- 
 husbandry, /a petite culture, with its minute and assiduous 
 attention, has such eminent aptitude, that even with respect to 
 England, M, de Lavergne remarks: "Although everything 
 tends to proscribe small farming — though it has no support, as 
 in France, from a small proprietary and a great distribution of 
 capital — though the prevailing agricultural theories and systems 
 of farming are opposed to it, yet it persists in some places, and 
 everything leads to the belief that it will maintain its ground. 
 The manufacture of cheese, for example, which is quite a 
 domestic industry, is well adapted to it." He adds, what is 
 not to be left out of account, for it is not an account merely of 
 pounds, shillings, and pence : '* There is nothing so delightful 
 as the interior of these humble cottages ; so clean and orderly, 
 the very air about them breathes peace, industry, and happiness; 
 and it is pleasing to think that they are not likely to be done 
 away with." * 
 
 The raising and fattening of cattle for the market is another 
 great department of husbandry which la petite culture has 
 almost to itself in France ; yet it must be confessed that it is 
 — though a marked improvement is visible — not as yet generally 
 carried on with the same skill as in Flanders ; and the art of 
 house feeding, which is the basis of the Flemish system of 
 small farming, is still in its infancy in many French districts : a 
 fact, however, which only opens a brighter future for la petite 
 culture within them. And we may a fortiori — by reason on the 
 one hand of the hold small farming has already established 
 over both the territory and the mind of France, and, on the 
 other hand, of the more recent development of manufactures, 
 means of communication, and commerce — -apply the language 
 which Mr. Caird has used with respect to England : " The 
 production of vegetables and fresh meat, forage, and pasture 
 for dairy cattle, will necessarily extend as the towns become 
 more numerous and more populous. The facilities of com- 
 munication must increase this tendency. An increasingly 
 dense manufacturing population is yearly extending the circle 
 within which the production of fresh food, animal, vegetable, 
 and forage, will be needed for the daily and weekly supply of 
 
 * " Rural Economy of Great Britain."
 
 296 SYSTEMS OF LAND TENURE [Leslie. 
 
 the inhabitants and their cattle ; and which, both on account 
 of its bulk and the necessity of having it fresh, cannot be 
 brought from distant countries. Fresh meat, milk, butter, 
 vegetables, &c., are articles of this description ; and there is a 
 good prospect of flax becoming an article in excessive demand, 
 and therefore worthy of the farmer's attention. Now all these 
 products require the employment of considerable labour, very 
 minute care, skill, and attention, and a larger acreable appli- 
 cation of capital than is requisite for the production of corn. 
 This will inevitably lead to the gradual diminution of the 
 largest farms, and the gradual concentration of the capital and 
 attention of the farmer on a smaller space." * Thus the very 
 productions for which la petite culture is specially adapted are 
 the things getting new markets with every new railway, road, 
 manufacture, mine, and increase of national wealth ; and that 
 ascent of rural prices in France which M. Victor Bonnet has 
 shown to be the result of its economic development is in effect 
 an ascent in the economic scale of peasant property and the 
 little farm. It follows that the subdivision of the French soil, 
 which has been the subject of sincere regret and pity on the 
 part of many eminent English writers and speakers, as well as 
 of much ignorant contempt on the part of prejudiced politicians, 
 is really both a cause and an effect of the increased wealth of 
 every class of the population — the seller and the buyer of land, 
 the landowner, the farmer, and the labourer, the country and 
 the town. Instead of being, as has been supposed, a cause of 
 low wages, it has been a consequence of high wages, which 
 have enabled the labourer to become a land-buyer — and even 
 a cause of high wages by diminishing the competition in the 
 labour market, and i)lacing the labourer in a position of some 
 independence in making his bargains with employers. Instead 
 of diminishing agricultural capital, as many English agriculturists 
 urge, it is, in the language of Adam Smith, both cause and 
 effect of " the frugality and good conduct, the uniform, constant, 
 and uninterrupted effort of every man to better his own con- 
 dition, from which public as well as private opulence is derived, 
 and which is frequently powerful enough to maintain the 
 natural tendency of things towards im])rovement, in spite both 
 of the extravagance of Government and the greatest errors of 
 administration." 
 
 But, assuming it to be demonstrable that the subdivision 
 
 * Caird's " English Agriculture."
 
 France.] IN VARIOUS COUNTRIES. 297 
 
 of land in France is in the main the result of natural and 
 beneficial economic causes, it is certain, nevertheless, that it 
 could not take place without the co-operation of legal causes, 
 that is to say, of a legal system which renders dealings in land 
 simple and safe, and, by comparison with the English system, 
 inexpensive. In the absence of natural economic tendencies 
 towards the subdivision of land by its purchase in small lots, 
 the best-constructed legal system of transfer would only tend to 
 its accumulation in few hands ; but, on the other hand, under 
 such a legal system as our own, whatever the natural tendencies 
 of the market, the expense, difficulty, and risk of buying very 
 small estates would make them an altogether unsuitable and 
 impracticable investment for tlie savings of the peasant and the 
 labourer. Even under a law of succession like the French, 
 there could be no such poor man's land market in England ; 
 the properties partitioned by inheritance would be rapidly 
 added to the domain of the great landowner and the millionaire, 
 able to run the risk of litigation and to procure the best legal 
 assistance. In France, every sale and every mortgage of land 
 is immediately inscribed in a public registry in the chef-lieu of 
 the arjvndissement ; and any one has a right to enter and inspect 
 the register, to satisfy himself respecting the title to any estate 
 or parcel of land, and the charges, if any, upon it. The director 
 of the registry is, moreover, bound to deliver for a trifling charge 
 a statement of the title to every estate or parcel to any one 
 demanding it. The private charges for the assistance of the 
 notary in effecting a purchase vary indeed considerably, and 
 are very much heavier in proportion on very small parcels than 
 on large estates. Every sale of land is moreover burdened with 
 the much-complained-of duty of above 6 per cent.* But the 
 transaction is sim.ple, expeditious, and secure ; and the fact 
 that, in spite of heavier relative cost, high taxation, and the 
 competition of public loans and other investments, the peasant 
 is the great buyer of land in France, only strengthens the con- 
 clusion that the subdivision of land by the purchase of small 
 estates is a natural and healthy tendency of the market, springing 
 from the high profits of la petite culture, and at the same time 
 from the happiness and independence which the possession of 
 land is found by the experience of the people at large to confer. 
 It shows, too, the error of a common impression in England, 
 that it is much better for a cultivator to rent a larger farm than 
 
 * 6f. 5c. per loof. , inclusive of the lUcime de guerre.
 
 298 SYSTEMS OF LAND TENURE [Leslie. 
 
 to farm a small estate of his own. If there be any truth in 
 English political economy, the buyers of land in France are the 
 best judges of their own interests ; and we have the practical 
 testimony of the whole nation that the small estate is the better 
 investment of the two for capital and labour. But, moreover, 
 under a sound system of title, and of registration of mortgages, 
 the peasant proprietor is not debarred from increasing the size 
 of his farm ; he can raise money expeditiously and safely on 
 his own little property, and farm adjoining land as a tenant, 
 should he find it to his advantage. The French land system 
 gives the small buyer of land the benefit of being able to raise 
 capital on unexceptionable security, and that by a process which 
 creates no impediment to its subsequent sale. And such a 
 system, so far from tending to increase the encumbrances on 
 land, tends necessarily, in the first place, to bring land into 
 the hands of those who can make most of it, and secondly, to 
 enable them to develop its resources by additional capital, 
 and thereby to liberate it from any charges upon it. 
 
 The amount of debt on the peasant properties of France 
 has been enormously exaggerated. M. de Lavergne estimates 
 it at 5 per cent, on an average on their total value ; and the 
 marked improvement in the food, clothing, lodging, and appear- 
 ance of the whole rural population is of itself unmistakable 
 evidence that they are not an impoverished class, but, on the 
 contrary, one rapidly rising in the economic and social scale. 
 M. de Lavergne himself arrived at the conclusion that the great 
 estates of England were more heavily encumbered acre for acre 
 than the peasant properties of France ; and Mr. Caird concludes 
 his description of English agriculture thus: "There is one great 
 barrier to improvement which the present state of agriculture 
 must force on the attention of legislature — the great extent to 
 which landed property is encumbered. In every county where 
 we found an estate more than usually neglected, the reasons 
 assigned was the inability of the proprietor to make improve- 
 ments on account of his encumbrances. We have not data by 
 which to estimate with accuracy the proportion of land in each 
 county in this position, but our information satisfies us that it 
 is much greater than is generally supposed. Even where 
 estates are not hopelessly embarrassed, landlords are often 
 pinched by debt, which they could clear off if they were enabled 
 to sell a portion, or if that portion could be sold without the 
 difficulties and expense which must now be submitted to. If
 
 France.] IN VARIOUS COUNTRIES. 299 
 
 it were possible to render the transfer of land nearly as cheap 
 and easy as that of stock in the funds, the value of English 
 property would be greatly increased. It would simplify every 
 transaction both with landlord and tenant. Those only who 
 could afford to perform the duties of landlords would then find 
 it prudent to hold that position. Capitalists would be induced 
 to purchase unimproved properties for the purpose of improving 
 them and selling them at a profit. A measure which would 
 not only permit the sale of encumbered estates, but facilitate 
 and simplify the transfer of land, would be more beneficial to 
 the owners and occupiers of land, and to the labourers in this 
 country, than any connected with agriculture that has yet 
 engaged the attention of legislature." Such a measure the 
 owners, occupiers, and labourers of France have long had the 
 benefit of; and the fact that in spite of new opportunities of 
 migration and of steadily rising wages, even the labourer in 
 France is a great land buyer, proves the profitableness of lapetite 
 culture, as well as the wealth of the very humblest and poorest 
 class of the French peasantry. Imagine the English agricultural 
 labourers great buyers of land, and at the same time lending no 
 small sums to the State ! One ought, too, to bear in mind, at 
 the same time, the different histories of the two countries, and 
 the condition in which tlie tyranny, misgovernment, and wars 
 of preceding centuries had left the rural population of France 
 half a century ago, not to speak of later political disasters. Far 
 from objecting to the subdivision of land which has resulted 
 from the legal facilities for its transfer and mortgage, the highest 
 French authorities are urgent for the removal of the obstacles 
 created by the high duties on both sales and successions. 
 " Instead of placing obstacles in the way of changes of owner- 
 ship {ftiutations *), the true policy would be to encourage them. 
 In addition to the direct taxation on land [rimj>di fonder), 
 landed property is subject to the much heavier burden on 
 changes of ownership. The value of immovable property 
 annually sold may be estimated at ;^8o,ooo,ooo ; that which 
 changes hands by succession at ;^6o,ooo,ooo ; the duties 
 charged upon both amounting to ^j^S, 000,000. Such taxation 
 is contrary to every principle, falling as it does on capital and 
 not on revenue." t \Ve are not here concerned with the policy 
 
 * The term mutations is applied to all changes of ownership, whether by 
 purchase or inheritance. 
 
 f "Economie Rurale de la France," par M. de Lavergne.
 
 300 SYSTEMS OF LAND TENURE [Leslie. 
 
 of duties on succession ; but there is one incontrovertible 
 injustice in their incidence in France which deserves notice — 
 namely, that the successor pays duty on the entire value of the 
 property, without any deduction for encumbrances, so that it 
 sometimes happens that he actually pays more than the full 
 value of his inheritance. This monstrous system of valuation 
 offers, of course, a great obstacle to raising capital for the 
 improvement of land ; while it adds not a litde to the encum- 
 brances already upon it ; the sort of encumbrances added 
 (sums borrowed to liquidate the duties) being moreover entirely 
 unproductive to the owners. 
 
 There are, then, two causes of the subdivision of land in 
 the structure of French law — the law of transfer and the law of 
 succession. But the fact that the subdivision promoted by one 
 of these — the law of transfer — is in perfect accordance with the 
 interests of all parties concerned, and the natural tendencies of 
 agriculture in a country of growing wealth suggests a very im- 
 portant conclusion respecting the other — namely, the law of 
 succession. It enables us to perceive why this latter does not 
 produce the practical mischiefs many English writers, not 
 unnaturally, have assumed. The fact is, that (except as regards 
 its operation upon separate parcels, where the property consists 
 of such — a mischief easily cured in the opinion of the highest 
 French authorities) the French law of succession tends in the 
 main to the same result as the natural course of agriculture and 
 free trade in land — namely, the subdivision of land. Secondly, 
 the operation of a good law of transfer tends to cure whatever 
 mischiefs really arise from the partitions effected by the law of 
 succession, there being a steady flow of small lots through the 
 land market towards those who can turn them to the best 
 account. Lastly, it is established beyond dispute that peasant 
 property arrests an excessive partition of land among children 
 by imposing a check upon population. "The law of suc- 
 cession/' observes M. de Lavergne, " is still the object of some 
 attacks, which do not succeed in shaking it. It cannot be said 
 of a country which contains 50,000 properties of more than 
 200 hectares that the soil is subdivided to excess. It is enough 
 to read the advertisement columns of the daily papers to see 
 that lands of several hundred, and even several thousand, 
 hectares are still numerous. There are even too many of them, 
 in the sense tiiat the majority of the owners would be gainers
 
 France.] IN VARIOUS COUNTRIES. 30I 
 
 by dividing them." * Of smaller properties, again, of only six 
 hectares on the average (of which he reckons two millions), the 
 same authority adds : "The owners of these live in real comfort. 
 Their properties are divided by inheritance ; but many of them 
 are continually purchasing, and on the whole they tend more to 
 rise than to fall in the scale of wealth." In place of suggesting 
 a radical change in the law of inheritance, he, like most French 
 economists, suggests only a modification of it in the case of a 
 number of separate parcels, together with a great reduction of 
 the duty on their exchange, which at present is the same as on 
 a sale. Rational opponents in England of the French law of 
 partition (that is to say, those who are in favour of a greater 
 liberty of bequest, as distinguished from those who defend our 
 own barbarous system of primogeniture and entail) ought to 
 take into account that the French law of succession really 
 effects, in the main, the very results which the testamentary 
 powers they advocate would produce ; as is evident from the 
 fact that the vast majority of French parents do not exercise 
 the limited power they already possess over a part equal to one 
 child's share. But the main point is that already adverted to — 
 that a good law of transfer corrects a defective law of inherit- 
 ance. Not only is there a continual enlargement of little 
 peasant properties by the purchase of adjoining plots, as well as 
 a continual accession to the number of small plots through the 
 natural play of the market ; but there is even a natural flow of 
 large capitals toward the land. Hence M. Monny de Mornay 
 remarks that, notwithstanding the great diminution of the total 
 domain of large property, and the perpetual increase in the 
 number of little estates through the purchases of the peasantry 
 and the labouring class, there has been for some years a current 
 of ideas and tastes on the part of unemployed men of fortune, 
 and of capitalists enriched by the trade of towns, towards 
 investment in landed property.f The truth is that large and 
 small property compete on much fairer and more natural terms 
 in France than in England, and large buyers of land as well as 
 small, in the former country, are free from burdens on the 
 pursuit of their interests and happiness with which both are 
 loaded in the latter. 
 
 It follows in natural sequence that large and small farms — 
 la graiide and la petite culture — like la grande and la petite 
 
 * " Economie Rurale de la France." 
 t ' ' Enqugte Agricole."
 
 302 SYSTEMS OF LAND TENURE [Leslie. 
 
 propri'et'e^ really compete on fairer terms in France than in 
 England ; and the former and not the latter is the place to see 
 them on their trial, and to judge of the natural tendencies of 
 rural economy in respect of each. The fact is that, while la petite 
 culture is gaining ground and growing more prosperous as well 
 as more perfect and more minute, large farming too has made 
 great progress in France. Not only is there a great domain, within 
 which la petite culture has exclusive or special advantages, but 
 there is a common domain, for example, in the production of 
 cattle, cereals, and roots, where both may co-exist and prosper: 
 and there is, again, a domain within which la grande ciiltiire has 
 its own superior advantages. There were no less than 154,167 
 farms in France of 100 acres — a number not far short of the 
 total number of farms in England — at the date to which the 
 latest agricultural statistics go back. There were, again, 2,489 
 steam threshing-machines in 1862, as against 1,537 in 1852 ; 
 and it is natural to infer that the chief employment of these was 
 on the larger farms. In the production of sheep, again, la 
 petite culture has not shown itself successful in France ; though 
 it is proper to remark that the decline of sheep between 1852 
 and 1862 is attributed by the highest authorities, in the main, 
 not to the subdivision of the soil (the decline in their number 
 being a new phenomenon and subdivision an old one), but to 
 a number of wet seasons followed by disease, to a contraction 
 of the area of sheep-walks by the reclamation of waste land and 
 the division of commons ; to an extension of the surface under 
 wheat ; and to an improvement in quality as distinguished from 
 quantity. Nevertheless, it appears certain that minute farming 
 under French methods does not give sheep an adequate range, 
 and tends to other productions. Again, both in Belgium and 
 in France the cultivation of the sugar beet, in combination with 
 sugar factories, is found to tend to la grande culture, and no 
 finer, larger farms are to be seen in Scotland than many in 
 France, of which beet is the principal jjroduce. 
 
 In the departments immediately surrounding Paris large 
 farming is to be seen in the highest perfection, of which the 
 reader who has not visited them will find a description in 
 M. de Lavergne's " Economie Rurale de la France." Yet, 
 after noticing several magnificent examples, he adds : " While 
 la grande culture marches here in the steps of English culti- 
 vation, la petite develops itself by its side, and surpasses it in 
 results." The truth is, as we have said, that the large and the
 
 France.] IN VARIOUS COUNTRIES. 303 
 
 small farming compete on fair terms in France, which they are 
 not allowed to do in England ; and the latter has, to begin 
 with, a large and ever-increasing domain within which it can 
 defy the competition of the former. The large farmer's steam- 
 engine cannot enter the vineyard, the orchard, or the garden. 
 The steep mountain is inaccessible to him, when the small 
 farmer can clothe it with vineyards ; and the deep glen is 
 too circumscribed for him. In the fertile alluvial valley like 
 that of the Loire, the garden of France, his cultivation is not 
 sufficiently minute to make the most of such precious ground, 
 and the little cultivator outbids him, and drives him from the 
 garden ; while, on the other hand, he is ruined by attempts to 
 reclaim intractable wastes which his small rival converts into 
 terrains de qualite siiperieure. Even where mechanical art 
 seems to summon the most potent forces of nature to the large 
 farmer's assistance, the peasant contrives in the end to procure 
 the same allies by association, or individual enterprise finds it 
 profitable to come to his aid. It is a striking instance of the 
 tendency of la petite culture to avail itself of mechanical power, 
 that the latest agricultural statistics show a larger number of 
 reaping and mowing machines in the Bas Rhin, where la petite 
 culture is carried to the utmost, than in any other department. 
 Explorers of the rural districts of France cannot fail to have 
 remarked that la petite culture has created in recent years two 
 new subsidiary industries, in the machine maker on the one 
 hand, and the entrepreneur on the other, who hires out the 
 machine ; and one is now constantly met even in small towns 
 and villages, old-fashioned and stagnant-looking in other re- 
 spects, with the apparition and noise of inachines, of which the 
 large farmer himself has not long been possessed. Admitting, 
 therefore, fully an important truth in Mr. Wren Hoskyns' 
 remark, that " The machine doctrine of ' most produce by 
 least labour ' is, as applied to the soil, the doctrine of starvation 
 to the labourer and dispossession to the small proprietor ; and 
 instead of belonging to the advance of knowledge, is a retro- 
 gression towards the time when a knight's fee included a whole 
 wapentake, or hundred, and a count was territorial lord over a 
 county:"* — regarding with Mr. Wren Hoskyns, machinery as 
 made for man, not man for machinery, and the happiness and 
 prosperity of a large rural population as the true object of 
 
 * "Land in England, Land in Ireland, and Land in Other Lands." By 
 Chandos Wren Hoskyns, M.P,
 
 304 SYSTEMS OF LAND TENURE [Leslie. 
 
 agriculture and land systems, we see no reason to believe that 
 the progress of machinery is incompatible with the persistence 
 of la petite culture, still less with that of la petite propriete, 
 in France. 
 
 But if large and small farming compete on fairer terms in 
 France, as elsewhere on the Continent, than in England, and 
 their relative position is accordingly very different, it ought to 
 be added that it is only in the hands of proprietors that either 
 la grande or la petite culture is fairly tried in France. It is not 
 in the part of the French land system against which English 
 criticism has been directed — the part which differs from the 
 Enghsh, namely, the subdivision of landed property and 
 peasant proprietorship — that its weak point really lies ; it is, on 
 the contrary, in the part which resembles the English — the 
 system of tenure. The British Islands are far from being the 
 only country in which the question of tenure demands and 
 indeed engages the earnest attention of statesmen and eco- 
 nomists ; though on the Continent the problem of tenure finds 
 more than half its solution in the system of proprietorship. In 
 France there are two kinds of tenure — namely (i), by lease, 
 usually for three, six, or nine years (a lease for even eighteen 
 years being quite the exception) ; and (2) tnetayage, according 
 to which the proprietor and the metayer divide the produce, the 
 capital being furnished by the one or the other in proportions 
 varying in different localities. It seems to be supposed by 
 many writers that the metayer if he has only half the motive to 
 exertion which may be supposed to influence a tenant who has 
 the whole of the produce subject to a fixed rent, enjoys at 
 least the advantage of permanence of tenure. But such is far 
 from being the case in France ; very commonly the contract of 
 m(ftayage is but for one, two, or three years. 'Jlie truth is, the 
 system of short tenures common throughout most of Western 
 Europe has a common barbarous origin. It belongs to a state 
 of agriculture which took no thought of a distant future, and 
 involved no lengthened outlay, and which gave the land fre- 
 quent rest in fallow ; and it belongs to a state of commerce in 
 which sales of land were rare, changes of proprietorship 
 equally so, and ideas of making tlie most of landed property 
 commercially non-existent. It is right to observe, however, 
 that in many parts of France, although the stated period of 
 tenure is commonly short, the farm really remains commonly
 
 France.] IN VARIOUS COUNTRIES. 305 
 
 in the same family from father to son, from generation to 
 generation, provided only the rent is paid. Now, indeed, 
 with greatly rising prices of agricultural produce, there is a 
 steady and general augmentation of rents ; and complaint is 
 much oftener made by tenants of the rise of rents than of the 
 shortness of leases ; first, because the tenant is seldom turned 
 out if he farms at all decently and lives in moderation, as he 
 usually does; and secondly, because the tenant has very often 
 already some land of his own, has almost always, if no land, 
 some money saved to buy it. He is not, therefore, in appre- 
 hension of being turned out naked on the world ; on the 
 contrary, he would sometimes hesitate to accept a long lease, 
 having in view setting up altogether for himself as a proprietor. 
 Again, although no legal customs of tenure for unexhausted 
 improvements remain in France, where the Code has swept 
 away all customary laws, yet compensation for some un- 
 exhausted improvements exists under the Code. In the case 
 of manure, for example, laid on by the outgoing tenant, he 
 gets compensation, calculated in proportion to the time during 
 which its unexhausted forces ought to yield profit. Again, 
 where the farming is a joint concern between proprietor and 
 tenant, under the form of cattle-lease called c/iepte/, if the value 
 of the joint property has been increased by the tenant, he is 
 entitled, at the expiration of the lease, to half the additional 
 value. For improvements, however, in the nature of drainage 
 and irrigation no right of compensation of any kind exists ; and 
 the absence of it furnishes in part the explanation of destructive 
 droughts even in the best-cultivated parts of France. Under 
 peasant proprietorship, in parts both of Germany and France 
 itself, the most perfect system of irrigation may be found. 
 Peasant proprietorship, coupled with, and in a great measure 
 caused by, a good system of land transfer, is in truth the great 
 redeeming feature of Continental land systems, which in point 
 of tenure are as defective as our own. A good law of transfer 
 corrects, as we have seen, a defective law of succession, and it 
 also goes far to remedy defective laws and customs of tenure. 
 It is, moreover, peasant proprietorship alone that prevents the 
 <[uestions of both tenure and landed property from assuming 
 the formidable shape on the Continent which they do already 
 in Ireland, and will do ere long in England. The " Report of 
 the Enqucte Agricole " suggests additional powers of lease in 
 the case of husbands owning in right of their wives, and of 
 u
 
 3o6 SYSTEMS OF LAND TENURE [Leslie. 
 
 guardians, and, again, a reduction of the duty on leases, with, 
 moreover, a legal presumption of a lease for twelve years in the 
 absence of a written one. But such measures would give 
 about as much satisfaction, and go as far towards allaying 
 agrarian discontent in France as they would in Ireland, were 
 there not a large diffusion of landed proprietorship, and a 
 facility for both tenants and labourers of passing from that 
 status to the status of proprietor, or of combining both. 
 
 It is fortunate for France not only that peasant proprietorship 
 already exists on a great scale, but that the tendency of the 
 economic progress of the country, as already shown, is to 
 substitute more and more cultivation by tenants ; and to give 
 more and more to those who remain tenants or labourers the 
 position and sentiments also of proprietors. The increasing 
 demand for, and rising prices of the produce of la petite culture 
 make it more and more a profitable investment of the peasant's 
 savings and labour ; and those very rising prices, and the rising 
 wages, which also follow the development of the resources of 
 the country, put both the small tenant and the labourer in a 
 condition to become buyers in the land market. All improve- 
 ments in the law of property, and in fiscal legislation respecting 
 it, will tend in the same direction, since the costs attending 
 changes of ownership and exchanges of land fall heavier on 
 small than on large properties. All the highest agronomic 
 authorities in France, instead of objecting to the' increasing 
 subdivision of landed property, are urgent for the removal of 
 all legal impediments to its division, as well as those which 
 lay disproportionate cost on its acquisition in small portions, 
 as in those which retain it in common ownership. 
 
 The question of common ownership is one which ought not 
 to be entirely ignored in a sketch of the French land system, 
 however brief, although but a very few words can be devoted 
 to it here. Upwards of four million and a half hectares of land 
 in France belong in common to various bodies, corporations, 
 communes, and villages. Of this are?, it is true that a con- 
 siderable part is in forest, managed by the State, much of 
 which it would be inexpedient to divide and deforest. But the 
 remainder is in great part simply so much land almost lost to 
 the country. In a review of the " Reports of the Enqu^te 
 Agricole," at the end of last year, M. de Lavergne pronounced 
 that an effective law for the division and sale of the common
 
 France.] IN VARIOUS COUNTRIES. 307 
 
 lands would do more for the increase of the agricultural wealth 
 of France than all other administrative measures taken together ; 
 for in addition to the cultivation of land, now almost waste, 
 that would follow, the communes themselves would obtain funds 
 by the sale for the making of country roads, in which the southern 
 half of France, especially, is for the most part lamentably deficient. 
 An Act was actually passed in i860, to facilitate the division of 
 the common lands, but it has produced but little effect. An 
 impediment to the division of the village commons in France, 
 which has come under the writer's observation, arises from a 
 kind of departure of the beneficial from the legal ownership. 
 An entire commune, made up of several vill^iges having each 
 its common land, is the body whose authority is requisite for a 
 division. It may be the interest of the villagers, and their 
 wish, to divide their own common among themselves, but the 
 rest of the commune would often prefer to see the villager 
 driven or induced to bring his own land, with the communal 
 rights attached, into the land market, where they themselves 
 might become buyers. They are not desirous of giving the 
 villagers an additional inducement to stay where they are. 
 If land existed in such ample abundance that every peasant 
 could have a sufficiency of land of his own to make a comfort- 
 able subsistence, or could at least have the advantage and 
 comfort of a cottage and garden, the joint possession by each 
 \illage of an additional common domain might be regarded as 
 a great benefit ; but such is not the situation of matters in 
 Western Europe. Nevertheless the French communal lands, 
 even as they are, give the French peasantry an advantage 
 which the British peasant has been deprived of; and they also 
 provide a fund for the future augmentation of the possessions 
 of the French peasantry, to which there is nothing now corre- 
 sponding in England. 
 
 It is not, however, the object of the present writer to 
 compare the land system of France to that of Great Britain. 
 Those who institute such a comparison will remember that it 
 would be in a great measure imperfect and even delusive if 
 confined to a survey of the present state of agriculture and of 
 the peasantry of France — forward already as is the former, 
 happy as is the latter, in many parts of that country. The 
 history of the two countries, the comparative state of their 
 agriculture and peasantry a hundred years ago, as well as now, 
 must be taken into account. France has had only three-
 
 3o8 SYSTEMS OF LAND TENURE. [Leslis. 
 
 quarters of a century of anything like liberty, and less than half 
 a century of tranquillity and industrial life. Nor in any such 
 comparison should the respective effects of the land systems of 
 the two countries on the town as well as on the country be 
 overlooked. Whoever reflects what the French rural population 
 would be, on the one hand, under a land system like that of 
 Ireland, or even England ; and what its town population would 
 be, on the other, if instead of being a third it were more than 
 a half of the whole nation, and if instead of having a political 
 counterpoise in the country, it found there only greater political 
 ferment and discontent than its own, must surely pronounce 
 that the land system of France is not only the salvation of that 
 country itself, but one of the principal securities for the tran- 
 quillity and economic progress of Europe.
 
 309 
 
 VII. 
 
 THE RUSSIAN AGRARIAN LEGISLATION OF 1861. 
 
 Bv Julius Fauciier, of Berlin, 
 
 Member of the House of Deputies of the Prussian Landtag. 
 
 The bondage of agricultural labour, taken off from the Russian 
 people by the legislation of 1861, was of comparatively recent 
 origin. It is true that, already at the dawn of recorded Russian 
 history, we meet with the existence of slaves of the czar as well 
 as of the nobles of his court, but these slaves were prisoners of 
 war and their offspring, the personal property of their masters, 
 and quite different from the peasantry, which formed the bulk 
 of the Russian people. The noblemen who owned those slaves 
 were themselves no landed proprietors in their own right, nor 
 even vassals owing allegiance for the tenure of land, but 
 servants of the crown, whom the crown had to feed. This, 
 not as a rule, but often, was managed in the form of an allot- 
 ment to them of crown land, to be tilled by their slaves, either 
 for a number of years or for life ; or, but rarely, with revocable 
 permission to leave the fruit of it to their descendants. Such 
 nobles as did not own slaves were sometimes paid by the czar's 
 abandoning to them the yield of the taxes due to the czar by 
 the peasantry of one or more villages. But such an arrange- 
 ment did not legally impair in the slightest degree the liberty 
 of these peasants. They remained the free children of the 
 czar, entitled legally to break off their household, and to 
 separate from their village community whenever they liked, 
 and to join another. The yield of the taxes of the place, not 
 that of so many distinct persons, was given in lieu of a salary-. 
 
 The Russian peasants of those times were nobody's servants 
 but the czar's, like everybody else in the empire. Nor is it for 
 tracing the origin of the bondage, now destroyed, that it is 
 necessary to refer to the more remote parts of Russian historv
 
 3IO SYSTEMS OF LAND TENURE [Faucher. 
 
 There are other things to be understood concerning Russian 
 village life before a judgment on the probable practical bearing 
 of the Act of 1 86 1 can be formed. The free village of old has 
 to furnish the key to the future of the free village of to-day. 
 
 The division of the Russian people into Great Russians 
 and Little Russians signifies far more than a mere split of the 
 language into two dialects, which, by the way, difter but little 
 from each other. Let us state at once the salient point. Little 
 Russia, with Kiew for its centre, is the mother-country ; and 
 Great Russia, with Moscow for its centre, is the colony^ the one 
 great colony whose limits are not yet fixed. Little Russia is 
 Sclavonic, pure ; the Great Russians are a mixed race, a 
 majority being Sclavonians, undoubtedly, and who, more by 
 dint of higher culture than by the sword, were the conquerors, 
 with a minority of the former inhabitants of the country, the 
 Finnic tribes or Tchudes. And now the consequence of it, on 
 which we intend to lay stress ! The colony, which afterwards 
 became the dominant part of the empire {colonisation never being 
 completed — that is to say, never yet having occupied the whole 
 disposable soil), did not yet find time to undergo such changes 
 in the form of the tenure and the tillage of land as have occurred 
 in other places, where originally the same form prevailed as 
 that which the Great Russians continued to preserve while 
 constantly applying it anew, as colonists, on virgin soil. 
 
 It may be stated at once, that this form was that of the 
 joint husbandry of a whole village. The village, not the family, 
 was the social unit. Supplanting the family for purposes of 
 colonisation, the village, by necessity, partook to a certain 
 extent of the character of a family. It stood under patriarchal 
 rule. Movable property alone was individual, immovable, the 
 land at least, was common. With the alien not belonging to 
 the village, not the individual, the village only, had to do. 
 The village always had a mother-village, and the mother-village 
 again had a mother-village, and so on. The name of mother- 
 village in general, or of mother-village to another district 
 village, is still attached to many Russian towns and villages ; 
 but even where the tradition of it is now lost, it may be taken 
 for granted that such a relation once existed. Nor are the 
 most recent times void of examples of the foundation of a 
 daugliter-village by a mother-village, though the interference of 
 the masters, which the Russian villagers in the meantime had 
 got, had given to the colonising movement a somewhat different
 
 Russia.] IN VARIOUS COUNTRIES. 5II 
 
 shape. The colonising masters sometimes made up the new 
 villages of selected families from a whole number of older 
 villages in the same master's possession. But whenever this 
 has taken place, it was done in disregard of the traditional 
 feelings of the people. Though the Russian peasants by no 
 means cling to the soil which has given birth to them, they 
 cling to their fellow-villagers. They would not have aggregated 
 voluntarily from different villages to form a new village. And 
 they like to have even the mere traditional remembrance of a 
 common mother-village, as children, who are still children, like 
 to have still a mother. I have been witness (in the Govern- 
 ment of Moscow, in the summer of 1867) to the fact that a 
 whole village, which had been destroyed by one of the numerous 
 conflagrations of that year, and which had lost everything ; 
 whose inhabitants, besides, not feeling at ease where they were, 
 resolved to return to the mother-village»of their village, situated 
 two hundred and fifty miles off, and which they, or rather their 
 ancestors, had left nearly fifty years ago. They collected 
 money for this purpose from the neighbouring gentry, and even 
 the neighbouring villages, which fully appreciated the resolution, 
 contributed their share. 
 
 This colonisation by whole villages giving birth to other 
 villages, and sending them off and planting them often at a 
 very great distance, was necessitated by the difficulties colonisa- 
 tion had to encounter in those tracts and in those times. When 
 the Sclavonian colonisation in a north-easterly direction (which 
 was the work of a people already settled, not nomads, as is 
 sometimes conjectured) commenced, the Russians as yet had 
 no government worth the name which could protect the 
 advanced posts. It is well known that later, feeling the want 
 of such a government, and not understanding at all how to 
 manage to get a national government, the heads of the villages 
 all over the vast places already colonised (chiefly due north of 
 the Dnieper, where Nowgorod and Pskofl" had become trading 
 emporiums with the north, in the same way as Kiew was the 
 trading emporium with the south) were agreed upon inviting 
 the Waraegers, whose attacks they had just repelled by a 
 general popular rising, to return in peace and to govern them. 
 But when this took place, we find the Russians already widely 
 spread among the Finnic tribes of the north-east. It seems 
 that they had already lined the whole net of rivers with their 
 villages, being eager fishermen, as the Russians are to the
 
 312 SYSTEMS OB- LAND TENURE [Fauchek. 
 
 present day, like all Sclavonians, and preferring, as passionate 
 gardeners, which they still also are, the black alluvial soil of the 
 river-banks. The interstices of this network of settlements, 
 however, were still peopled with Tchude huntsmen, among 
 whom an isolated household of alien-born colonists, probably, 
 would not have been safe. Nor would the Russians themselves, 
 being no hunters, have been safe from the bears and wolves 
 which the Finnic hunters, up to the present day, are never 
 afraid to encounter in single combat, even without fire-arms. 
 
 Thus the closely-packed village, in which block-house 
 borders on block-house along the two sides of the broad 
 village street, shut up at the two ends by stockades or block- 
 houses placed across, was the only possible, endlessly repeated, 
 form of settlement.* A clearing of the forest by common 
 labour of the colonists had furnished the acreage and the 
 building material for the' block-houses. The enclosed space of 
 the village street was the common workshop in summer, for 
 carpentry, for making the hemp and flax ready for spinning- 
 and weaving, and for bleaching the cloth, &c. The cattle- 
 stands, threshing-floors, and barns were attached to the single 
 block-houses, showing the stage at which village labour and 
 village property ceased and individual labour and individual 
 property began. 
 
 As a further consequence of colonial isolation, the village, 
 as a rule, and as far as possible, was self-sustaining. In order 
 to be able to form an idea of the past, present, and future of 
 the Russian people, it is of high importance to bear this originaf 
 character of the Russian village settlements, easily traceable 
 from the present state, strictly and continually in mind. The 
 most prominent feature of a settlement, which in the beginning 
 and perhaps for a long time was unable to enter into commer- 
 cial relations with other settlements, will be, that just the 
 amount of acreage necessary to furnish the food and the 
 clothing material for the villages will be tilled, and not more. 
 For to till more would be far from correct management. It 
 would merely be taking away time and labour-power from other 
 work just as necessary, where everything that is wanted is to 
 be done on the spot. This also indicates the corollary to be 
 
 * Tlie Sclavonic and Teutonic names for a village (Russian, dcrewnia ; 
 Scandinavian, trup ; German, dorf ; Anglo-Saxon, thorpe) have the root 
 in common with troops, troupe, troupL>au, and signify aggregation for pro- 
 tection's sake.
 
 Ri-ssiA.] IN VARIOUS COUNTRIES. 313 
 
 expected. Where the husbandman is not more of a husband- 
 man than is just wanted to produce what a single family 
 consumes, and yet is not a savage, but already accustomed to 
 a certain degree of comfort, we must expect to see him a 
 handicraftsman, too, of very variegated skill — a kind of jack-of- 
 all-trades. 
 
 As said before, the possibility of constantly throwing off the 
 surplus of the increasing population of the village by founding 
 a daughter-village on virgin soil, was calculated to take away 
 every stimulus to change the system, which, at the same time, 
 was so extremely fitted to the exigencies of that primitive 
 colonisation. While all the other Sclavonian nations, the Little 
 Russians not excepted, followed to a certain extent the ways of 
 central and western Europe (a process which partly was 
 quickened by conquest, those farther west being almost 
 invariably the conquerors of those farther east), the Great 
 Russians alone kept the original form of settled life of the 
 Sclavonian race intact. Their place on the utmost north- 
 eastern wing of the race, putting them at the same time out 
 of reach of western conquest, with nothing but huntsmen, and 
 nomads, and virgin soil all round them, made expansion, not 
 c/iange, their law of progress, just as it seems to have been the 
 case with the Chinese, whom they now are facing. 
 
 The village, at once the smallest and the largest compass of 
 the social thought of the bulk of the people, now became the 
 prototype of the empire, which, beginning with Rurik's election 
 to the czardom, became destined (after passing through vicissi- 
 tudes of all kinds — self-created confusion as well as foreign 
 invasion) to inherit the fruits which the unassisted and un 
 guided, modest and silent, but continuous colonising labour of 
 the ancient free Russian villagers has borne. The villagers — 
 who in their village governed themselves by patriarchal rule — 
 after they had become conscious, by means of sad experiences 
 — inroads of eastern nomads, and plundering excursions of 
 northern and western adventurers — that the merely sentimental 
 link between mother-village and daughter-village was not that 
 national solidarity of which the hostile foreigner has to beware, 
 considered, after the constitution of czardom, all Russia, as far 
 as it already went, simply as one great village, likewise under 
 patriarchal rule, likewise on a soil the common property of all, 
 likewise sufficing to itself, and likewise having to do with aliens 
 only in common ; and this is still the conception which the
 
 314 SYSTEMS OF LAND TENURE [Faucher. 
 
 Russian people entertain of their state. The savage drama of 
 the pohtical history of the country, the extirpation of resisting 
 tribes chiefly in the west, the sanguinary feuds between the 
 princes of the Imperial House, the partitions and repartitions 
 of the empire, even the struggles which accompanied the intro- 
 duction and spread of the Greek Church — all this had no 
 bearing on what will always remain the most interesting phe- 
 nomenon connected with the rise of Russia — namely, the 
 growth of a very numerous 7ietv people^ spreading over a very 
 extensive area in a comparatively very short time, in Europe 
 itself, without the remainder of Europe even becoming aware 
 of it! 
 
 What is recorded by Nestor shows merely that a military 
 government and taxation having been introduced, and a pro- 
 fessional priesthood established (likewise borrowed from abroad, 
 after a vain attempt to turn the native heathenism to account 
 for the same purpose), the same fights about the legalised prey 
 had begun in Russia which constitute the political part of 
 every other nation's history. Protection from plunder by the 
 foreigner had everywhere to be bought from legalised plun- 
 derers at home, and everywhere has the extent to which it 
 was to be legal been fought for, and everywhere did the 
 plunderers contest the prey amongst themselves. What is not 
 recorded in written records, but is shown by the results to 
 which it has led, is the cementing process which now took 
 place, and which marks the second stage in the mighty colonis- 
 ing movement, going on imperceptibly in the north-east, 
 without even the colonists themselves being conscious of its 
 extent and significance. 
 
 While Little Russia, the true mother-country on the 
 Dnieper, and the tracts of land on the north-west of it, 
 bordering on Poland, and inhabited by minor Sclavonian 
 tribes of mongrel character, now comprised under the name 
 of Ruthenes, Russians, or Rusniaks, remained the theatre of 
 civil as well as of foreign wars, the colony in the north and 
 north-east, as whose starting-point the country round Now- 
 gorod has to be considered, enjoyed a comparative repose, and 
 had all the advantages of national and ecclesiastical unification. 
 The foundation of village by village must have gone on unabated 
 as well as the pushing forward of the north-eastern frontier of the 
 settlements ; for the geographical horizon rapidly widens in the 
 records of the historian. As a distinct race the race of the
 
 Russia.] IN VARIOUS COUNTRIES. 315 
 
 Great Russians had first been formed at Nowgorod, on 
 originally Finnic soil, by mixture with the Finnic tribe of the 
 locality. Along the Neva, and the large lakes and water- 
 courses of which it forms the mouth, the Finns had resisted 
 farther encroachment. Their most warlike and proud tribes 
 were settled there ; but farther east, where the same race 
 occupied the whole country north of the Oka, and even farther 
 south, and as far in an easterly direction as the river Ob, in 
 Siberia, they were too thinly spread, and too little civilised, to 
 form an obstruction to the constant advance of the Great 
 Russian village colonies. They continued for some time to fill 
 the interstices of the network of river villages, living the life of 
 huntsmen or lonely settlers, as before ; but with the national 
 unification and Christianisation of the Great Russian invaders, 
 the time of the total absorption of the aboriginal people had 
 arrived. They were turned into subjects of the grand prince, 
 or czar, and the prince, his relative and vassal who presided 
 over the district ; and they gradually disappeared, and are still 
 so disappearing, among the villagers. For these latter hence- 
 forward refused altogether to respect the hunting-grounds left 
 free between their villages. Simultaneously now with the ex- 
 tension went on the densification of the network of settlements. 
 The erroneous notion is often met with in Western Europe, that 
 the whole of Russia, without exception, is but thinly peopled. 
 It is true that very large parts of Russia are very thinly peopled, 
 of Avhich more anon, but the centre of the empire, on the 
 Upper Wolga, on the Oka, and between these two rivers, a 
 lump of land by no means despicable, shows the villages as 
 close to each other as anywhere in Western Europe ; and if 
 the same figure of density of population is not found in the 
 tables, it is not a lesser village population, but a lesser popula- 
 tion of the towns, which are few and far between, and some- 
 times very small, that accounts for it. 
 
 The Church assisted the colonising movement in another 
 way. Pilgrimage had been introduced. One has to think ot 
 a people living in close confinement during a long winter, 
 followed by a short and hot summer with protracted daylight, 
 w^hose allurements produce a feeling of restlessness ; of a 
 people, moreover, living in villages, every one of these villages 
 looking back upon another, often very distant, village as a 
 mother that claimed a visit ; of a people, finally, living in 
 community of household interests, among whom the pilgrim,
 
 3l6 SYSTEMS OF LAND TENURE [Favchek. 
 
 who sets out on his journey with the consent of his fellow- 
 villagers, need not fear of seeing his interests neglected. 
 Besides, migrations of long files of emigrants on their way to 
 the new settlement having been of yearly occurrence from times 
 immemorial, and these having been able to appeal on their 
 way at every village on the roadside to the remembrance of a 
 similar migration of the more aged and influential villages, 
 hospitality to pilgrims could not but become at once a cogent 
 rule. It is so still. Bread and the summer drink of the 
 country, kwass, a kind of very thin, unfermented beer, are 
 never — not by the poorest peasant — refused to the traveller ; 
 and if payment for it be offered, its acceptance is invariably 
 refused with indignation. The short nights, and the clothing 
 — adapted even to severe colds — permit a night's rest in the 
 open air, if no other is to be had. Thus the institution of 
 religious pilgrimage — convenient pretext for the migratory pro- 
 pensities of mankind — could find nowhere a more congenial 
 soil than in Russia. It was but natural that the place of 
 worship to which the religious pilgrimages were directed, and 
 the mother-settlement, which a long-preserved attachment, 
 transmitted in fireside tales from generation to generation, 
 longed to see, in very many instances coincided. For the 
 spread of convents, usually the ostensible places of destination 
 of pilgrimage, followed the spread of settlements. The neigh- 
 bourhood of a mother-village which had already many daughter- 
 villages, was just the place to erect a convent. 
 
 It will now be easy to imagine how colonisation must have 
 been pushed by the increased restlessness which the united 
 Church with its pilgrimages had brought over the whole nation, 
 and by their becoming conscious, partly through the medium 
 of their own feet and eyes, partly through the recitals of travel- 
 lers ])assing their houses, of the immensity of the territory 
 already under their grasp, and the boundless extension of un- 
 occupied land in an easterly direction. The pilgrims were to 
 them what American emigration agents now are to English, 
 Irish, and German villagers. The pilgrims' refectory in the 
 convent, where the pilgrims from far and near met, was their 
 newspaper. 
 
 The seats of the princes, whose number sometimes was 
 very great, and the seats of the convents, could not but gradu- 
 ally assume the character of larger or smaller emporiums of 
 commerce. The swarms of peasants, which they periodically
 
 Rlssia.] in various COUNTRIES. 317 
 
 attracted, provided for it. The creation of a number of centres 
 of commerce was the real and palpable result of the establish- 
 ment of Church and State among the villagers of the great 
 plains of Eastern Europe. But it would be a mistake to liken 
 the Russian cities, even at the present day, to the cities of 
 Western Europe. They never became, to a similar extent, the 
 exclusive seats of industry. They remained pre-eminently marts 
 of exchange whose lot it was to introduce division of labour 
 between village and village, not division of labour between 
 agriculturist and artisan, but between the peasants of one vil- 
 lage, who continued to till the soil for their own sustenance, 
 and who now began to apply the remainder of their time, in- 
 stead of to aU work, to some distinct occupation, and the 
 peasants of other villages, who did just the same. Village in- 
 dustry is still the great industry of Russia. It would be very 
 rash to condemn this as misguided activity. It must not be 
 overlooked that in Russia the time for work in the open air is 
 shorter, and the time for work in the house is longer, than in 
 Central and Western Europe. It will then easily be under- 
 stood that the settlement, which first was compelled by colonial 
 isolation to sustain itself, and had the disposal of a long winter 
 to provide by house-industry for all the wants of the settlers, 
 was not easily induced to give up the advantage derived from 
 house-industry in winter, when the gradual introduction of 
 division of labour between village and village, through the 
 medium of marts and exchange, rendered house-industry more 
 profitable. 
 
 We arrive now at institutions of still stranger appearance, 
 when measured by the standard of Central and Western Europe, 
 and yet easily intelligible, if it be but kept in mind that one 
 thing binds the other in the web of civilisation. Immovable 
 property being the common property of the village, and even 
 the title-deed of movable property being derived at some pre- 
 vious time from repartitions by common consent, it was but 
 natural to the villagers to consider the whole of the trade which 
 had sprung up between them and others likewise as common 
 property. Was the son of the village, who had been permitted 
 to set out, first on a pilgrimage, or a journey to court, then — 
 the occasion having brought about the discovery of gain to be 
 made by selling and buying, as a commercial traveller — alone 
 to reap the benefit of his journey, which he could not have 
 made had not his village been a common household ? Thus
 
 3l8 SYSTEMS OF LAND TENURE [Faucher. 
 
 the habit sprung up and became a law in the eyes of the 
 villagers, that whoever of them, being abroad, got orders for 
 articles to be, produced by the house-industry of his village, did 
 not get these orders for himself as speculator and employer of 
 labour, but for the village as a whole, and that the orders were 
 to be distributed among the villagers by common consent. 
 And thus things are still managed to a large extent. 
 
 Thus the second — in recorded history the first — stage of 
 Russian peasant life shows us the peasant as an artisan^ at 
 least where division of labour had changed him into an artisan, 
 and a member of a society of "adventurers," who at the same 
 time continued to jDroduce the food necessary to feed them and 
 their families, and partly the raw material for their branch of 
 industry by the common husbandry of the village, which still 
 formed the social unit of the country. 
 
 The Mongol invasion, though it lasted two hundred and 
 twenty-five years, appears to have had no influence whatever 
 on the life led by the villagers nor even on the spread of their 
 settlements. The business of the Mongols was with the grand 
 prince, the other princes, and with the clergy. They humiliated 
 the princes and made them pay tribute — that is to say, give up 
 part of the taxes they received from the villagers — but as for 
 the clergy, they even took off taxation from them. The state 
 in which the country emerged from the dominion of the nomads 
 shows that it cannot have suffered much ; perhaps it had even 
 benefited. For it would seem as if, in the time immediately 
 before the conquest, there had already been attempts on the 
 part of the single princes to prevent the people from leaving 
 their'state or province for the purpose of erecting new settle- 
 ments elsewhere. With the nomads the old liberty returned. 
 It is very probable that colonisation continued unabated even 
 under Mongol rule. The immunities and favours bestowed by 
 these shrewd Asiatics upon the priestly order cannot but have 
 assisted colonisation. For the Church was not merely indirectly, 
 through pilgrimage, but direcdy, through hermits and gardening 
 convents, a colonising agency. The priestly order, recruited 
 from tlie peasantry, remained faithful to their habits and pro- 
 pensities. 
 
 With the withdrawal of the Mongols into Asia began the 
 discnfranchiscment of the great bulk of the peasantry, but it 
 progressed very gradually. Records are insufticient, but the 
 state of things met with at a later and better-known period
 
 Ri'ssiA.] IN VARIOUS COUNTRIES. 319 
 
 admits of pretty safe conclusions. The main lesson drawn 
 from the experience of a foreign dominion was, that the bond 
 of unity of the empire had to be drawn tighter. The rule of 
 numerous princes, vassals of the grand prince, who now offici- 
 ally adopted the name of Czar, or rather Zar, had to be done 
 away with, at all events. Iwan III. commenced the struggle, 
 Iwan IV., the Terrible, brought it to a successful issue. This 
 struggle favoured the growth of a petty nobility, formed partly 
 of the courtiers of the late princes, whom the czars left in pos- 
 session of the yield of the taxes of such villages as had been 
 allotted to them by their former masters, without insisting upon 
 regular service on their part, merely reserving the right to 
 summon them when wanted. Such is still the relation of the 
 whole Russian nobility to their czar. It consisted, further, of 
 the czar's own servants, which were partly taken from among 
 the villagers themselves, likewise endowed with the yield of the 
 taxes of one or more villages — and lastly, the proprietors of 
 such villages, mainly situated in the western parts of Russia, 
 which had been formed of slaves, and had always been the 
 property of their masters. 
 
 Villages not being disposed of in such a way seem to have 
 remained free villages or crown villages till the later years of 
 the reign of Iwan IV., who seems to have commenced the 
 practice, largely resorted to in later times, of turning crown 
 villages into villages belonging to the czar, not as sovereign of 
 the country, but as landed proprietor. Such villages, peopled 
 by prisoners of war and their offspring, the slaves of the czar, 
 must have existed always, just as similar villages, mentioned 
 above, were in possession of single noblemen. But there can 
 be little doubt that Iwan IV., in designating by a legislative act 
 which villages were henceforward to be considered as state pro- 
 perty (Siemschina), and which as property of the czar (Oprit- 
 china), did so for purposes of appropriating what was not his 
 own. He appropriated in this way even cities. The lawless- 
 ness of his proceedings is proved by the amends which were 
 made for them in later times, when at least all the cities and 
 other property Avere again excluded from the Opritchina or 
 apanage of the imperial house. 
 
 The changes effected amounted to this, that a very great 
 number of villages, having been formerly free communities, 
 merely paying taxes to the State, had been turned into estates of 
 the czar and the nobility, on which the peasantry had to pay rent.
 
 320 SYSTEMS OF LAND TENURE [Fauchkr. 
 
 The amount payable remaining unaltered, and the person 
 to whom it was to be paid remaining the same, the peasantry, 
 perhaps, did not even become aware of the change. They may 
 still have considered their village as a little socialistic and patri- 
 archal republic, just as the bees in the hive are not aware that 
 they have other masters besides their queen. 
 
 But the time was now fast approaching when every doubt 
 that their old liberty was gone should be removed from them. 
 
 Popular poetry in Russia has kept alive, in rhymed wails, 
 the memory of St. George's day, as the day when Boris 
 Godunow, the usurper, published his ukase, by which the 
 Russian peasant was forbidden to quit his village without per- 
 mission and passport, either from the proprietor of the estate, 
 into which the village had been turned, or, Avhere it was still a 
 free village, from the authority to which it was submitted. The 
 ukase, besides, ordained that every peasant not being provided 
 with such a passport, and being found wandering about the 
 country, should be taken into custody, his personal identity 
 and his whereabouts should be ascertained, and that he should 
 be sent back in irons to his village, where punishment might 
 be inflicted upon him for having left it without permission. 
 
 Boris Godunow is represented to have acted thus, in com- 
 pliance with the wishes of the petty landed nobility — his main 
 supporters. They had represented to the Government that the 
 fiefs they held in exchange for service done, or service they 
 were bound to do, were valueless if the peasants were permitted 
 to emigrate. Modern writers, even Russians themselves, and 
 still more French and Germans, have not shrunk from justifying 
 Boris Godunow and his nobles, by asserting that this was the 
 only means of putting an end to the nomadic propensities of 
 the Russian people, which the Mongol invasion had fostered 
 anew. But where is the slightest evidence of nomadic propen- 
 sities among the peasantry of Northern Russia, before that time, 
 at that time, and after that time ? Not even the Cossacks — 
 fugitives, as they were, from opi^ression in the southern steppe 
 — bore even the slightest resemblance to real nomads. To 
 colonise and to nomadise are two very different things. Just 
 as well one may talk of nomadic i)ropcnsities among the Eng- 
 lish, or the Spaniards, or the Dutch, or the Germans. The 
 truth is, thai just towards tlie end of the long reign of I wan the 
 Terrible the colonising movement in an easterly and southerly 
 direction had assumed new proportions. The Khanats of
 
 Russia.] IN VARIOUS COUNTRIES. 32I 
 
 Kasan and Astrachan had been conquered ; Siberia had been 
 discovered by the Cossacks, and a large part of it conquered ; 
 the steppe and the black country in Southern Russia had 
 acquired a safety unknown before. The commerce of the West, 
 the fur-trade of Nowgorod with Germany, which was more a 
 trade of the Finnic hunters than of the Russian village artisans, 
 and of Kiew with the Byzantine Empire, had almost ceased, 
 Iwan III. having crushed the former by imprisoning German 
 merchants, and the conquest of Constantinople by the Turks 
 having crushed the latter. Instead of it, commerce with the 
 East, with Central Asia, had commenced on a large scale, first 
 introduced by the Mongols, then favoured by the conquest of 
 the two Khanates and of Siberia. Here it was the produce of 
 the industry of the Russian villagers that was sold ; and the 
 further eastward they went with their settlements the more they 
 benefited by it. The whole nation was astir with colonising 
 projects; and the records of the dates of foundation of the 
 older settlements in the East, show how many of them were 
 carried out. 
 
 But then the proprietors of the villages, now private estates, 
 and the czar himself, as proprietor of the appanage estates, lost 
 the advantage of increasing population on their estates and of 
 an increasing rent from them. They, besides, lost the power of 
 raising the rent. What I am about to add is mere probability, 
 but it is probability ; a certain approach had taken place 
 between the Russian Government^ isolated after the fall of 
 Constantinople from all other Governments, and one at least of 
 the Governments of Western Europe. The English had found 
 the way to the White Sea, and already Iwan IV. had exchanged 
 embassies with Queen Elizabeth ; and Boris Godunow con- 
 tinued amicable relations with the Queen, and even attempted 
 to bring about a marriage of his son with one of her relatives. 
 His ambassador, ISIikulin, took even an active part in the 
 streets of London in the quelling of Essex's insurrection. 
 Mikulin had to report to the czar on English legislative institu- 
 tions. In the year 1601 (Stat. 43, Queen Eliz.), the great poor 
 law, crowning the efforts of the Tudor age in dealing with the 
 difticulty of pilgrims and vagabonds — the bane of the country, 
 down from the time when Henry VII. abolished vassalage — 
 had become the law of the land in England. It had been pre- 
 ceded by Stat. 14, Queen Eliz., which ordained that the abode 
 of persons who could not or would not do work was to be fixed 
 
 V
 
 322 SVSTEMS OF LAND TENURE [Faucher. 
 
 to the parish in which they were born, or in which they had 
 resided during three years, and, in case of vagabonds, during 
 one year. Might not Boris Godunow, whose legislative acts in 
 the matter date from 1592, 1597, 1601, and 1606, beleaguered 
 by his nobility, and getting the convenient pretext of a famine 
 (which broke out, engendering swarms of beggars and a typhus- 
 epidemic, which these beggars caiTied all over the country), 
 and informed by his ambassador of the wise counsel, under 
 similar circumstances, of the advisers of the English queen, 
 have tried a Muscovite version of contemporaneous English 
 legislation? Indeed, it looks very much like it: Proneness 
 to imitation, and reckless boldness in trying it, is a Russian 
 characteristic to this day, of which more anon. 
 
 The decisive blow had fallen. It did not at once bring 
 about its final results — compulsory labour of whatever kind the 
 master demands from his slave — but it contained it in germ, 
 and the development was rapid. The first and most important 
 consequence was, that colonisation was checked for a long time, 
 and only recommenced when the masters, having become 
 masters in full, themselves found it profitable. The whole 
 seventeenth century shows the heart in the prostrated body of 
 the Russian peasantry still palpitating. The enshrined spirit 
 of liberty asserts itself in religious sectarian movements, in 
 agrarian risings, in bold brigandage, under the seductive form 
 of free Cossack life. It was reserved for the eighteenth century 
 to consummate the worst. The harmless and gentle villagers, 
 wlio for the love of wife, child, brother, sister, and neighbour, 
 had conquered the uncongenial eastern plain of Europe for 
 civilisation, now disappear, as working agents, from the histori- 
 cal records of their country ; they have become mere tools to 
 work Avith, mere matter to be worked upon. They are now 
 "mujiks " — bodies — " tchornoi narod " — black people: some- 
 thing like niggers, as it would seem. A large part of them are 
 bought and sold with the land ; without the land, they are 
 merely let out, and fee! themselves most favoured when let out 
 to themselves.* And yet it would be wrong to liken their fate, 
 even when it was worst, which is during the time from Peter I., 
 the Great (!), to about the accession of Alexander I., to that of 
 the 1)lack slaves in the colonies of Western Europe. Patriarchal 
 
 * The household serfs, being considered as the offspring of the slaves of the 
 middle ages, lucrc sold without land, and, as it appears, in spite of the law, 
 numbers of peasants, too, under pretext that they were household serfs.
 
 Russia.] IN VARIOUS COUNTRIES. 323 
 
 feelings and patriarchal habits never became extinct, either with 
 the Russian serf or with the Russian master. The harmless 
 and gentle character of the villagers is the harmless and gentle 
 character of the nation, which has but the fault of bearing good 
 luck not so well as bad luck, and of becoming drunk with tran- 
 sitory pride, with still more transitory anger, and with zeal, more 
 transitory with them than anything else. 
 
 The attempts to relieve the fate of the peasantry began with 
 the government of the Emperor Nicholas. The state of things 
 with which he had to deal had received a finishing stroke by a 
 set of imperial decrees of the Emperor Paul in the year 1797. 
 These decrees, which at least had restored to the peasantry the 
 right of electing their village heads, were left intact by Nicholas, 
 except as far as the " private peasants " — that is to say, the serfs 
 of private proprietors, or of the czar as private proprietor — of 
 estates were concerned. The most important change of the 
 Emperor Nicholas was introduced by a ukase issued in 1842, 
 which permitted to the proprietors of private estates to trans- 
 form, by treaties, their serfs into farmers, the Government 
 vouching for the former serfs fulfilling the conditions under- 
 taken by them in the treaties. The idea was to see what forms 
 of treaties would prove the most popular and acceptable to 
 both sides, and then, if still need be, to frame a general com- 
 pulsory measure, in which the contents of the popular form or 
 forms of treaties were to be embodied. But very little use was 
 made of the expedient, as has been asserted, from the difficulty 
 of settling things with the mortgage-holders. The Emperor 
 Nicholas, besides, by ukase issued in 1848, abolished the inter- 
 dict to private peasants, of buying immovable property. He 
 further reinforced the law interdicting the sale of peasants 
 without land, by forbidding its evasion by transforming peasants 
 first into household slaves, and also the sale of land without 
 peasants, if, by such sale, the village-acre was curtailed in such 
 a way as to amount to less than four and a half djessatines 
 (twelve acres) for every male villager. Finally, he issued regu- 
 lations defining more distinctly than the law did before, how 
 much labour, or how much payment in lieu of labour, in a 
 variety of cases and places, the peasant-serfs owed to their 
 masters. 
 
 But all this did not amount to much, when compared with 
 what the position of the peasantry once was, and with what 
 it since has become. When the Emperor Alexander II.
 
 324 SYSTEMS OF LAND TENURE [Faucher. 
 
 announced his resolve to do justice to the peasantry, he found 
 still nearly one-half of them — forming with their families more 
 than one-third of the population of the empire — to all practical 
 purposes slaves, tilling a soil which did not belong to them, 
 without being paid for their labour, during about three days in 
 the week, while they had to sustain themselves and their 
 families by their labour during the other three days, likewise 
 by tilling a soil which did not belong to them, and not in the 
 way they chose to do it, but as they were permitted, or rather 
 ordered to do it. 
 
 The serfs, though their number had comparatively declined, 
 formed still the largest group among the Russian peasantry. 
 Next in numbers stood the crown peasants, the remnant of the 
 old free peasantry, turned into copyholders from the crown, 
 and governed by servants of the crown. Their position has 
 not been touched by the act of 1861, but by a recent special 
 act, which has been framed to bring the position of this part ot 
 the peasantry into better accordance with that of the enfran- 
 chised private peasants. It must not be passed over that, at 
 least to the eye of the foreign travelling observer, there is no 
 marked difference of well-being visible between the villages of 
 crown peasantry and those of private peasantry. There are 
 Russian authors — but such as belonged and still belong to the 
 political opposition in the empire, like Golowin and Dolgo- 
 rukow — who pretend that the crown peasants had and have 
 far more to suffer than the private peasants. Dolgorukow, in 
 particular, whose work, " The Truth about Russia," was pub- 
 lished but shortly before the act of 1861, gives a revolting 
 description of the abuse which the functionaries of the crown, 
 entrusted with the administration of the crown villages, make 
 of their power. The crown peasants had then and have still 
 to pay copyhold-fee to the crown, part of them by each head 
 of the male population, part of them in shape of a real land- 
 tax, and were then still burdened with a certain amount ot 
 compulsory labour, which, road-making excepted, now has 
 been superseded by fees. The fees levied by the head yield 
 ten millions of roubles, the land-tax thirty millions of roubles. 
 The highest fee on the head is 2r. 86k., the lowest 2X. 15k. 
 The copyhold-right is always a right of the village as a whole. 
 The sale of it by the villagers was not permitted, yet they might 
 so far dispose of it as to barter their position with other crown 
 peasants, or even with private peasants, on certain conditions.
 
 Russia.] IN VARIOUS COUNTRIES. 325 
 
 And they might let out the land for fifty years to other persons; 
 an arrangement evidently designed to facilitate the erection of 
 industrial establishments in the country. 
 
 The minor groups consisted, before 1861, firstly, oi free- 
 holders living in farm-yards separated from every village. They 
 are to be met with in Great Russia, in the southern govern- 
 ments, in the so-called country of the black soil. They are 
 supposed to be the Russianised remnants of the original in- 
 habitants of the country, the Tchudes, who in the south, on the 
 fertile soil, were not merely or pre-eminently huntsmen, but 
 agriculturists too. This is very probable. It is said that a far 
 greater number of them would still exist, had not Peter I. reck- 
 lessly deprived them of their freehold right, and compelled them 
 to become crown peasants. They are further to be met with 
 in the Western Ruthene provinces ; and there they are the off- 
 spring of the lower Polish nobility (shlachta), who invaded 
 these provinces and settled down in them, and afterwards were 
 unable to prove their noble descent. Another group was 
 formed by the serfs who had bought immovable property since 
 1848. There were further Russian bojars, whose nobility was 
 not proved, or was lost, and who therefore were considered as 
 glebce adscripti, though on their own property ; and Cossacks, 
 whose freedom and right to their property had been recognised. 
 All these groups, together with a very small amount of Russian 
 peasantry tilling the property of other persons, without being 
 serfs — namely, of persons not entitled to have serfs, because not 
 being noblemen, and yet landowners — were evidently excep- 
 tions, and not the rule. The remainder was not of Russian 
 nationality. 
 
 The measures adopted by the Emperor Nicholas for initiating 
 and stimulating a voluntary abandonment of serfdom on the 
 part of the masters, as a rule, having proved abortive, and yet 
 great numbers of the masters themselves having become fully 
 conscious of the increasing personal danger to which they were 
 exposed so long as they had to deal with their serfs, this much 
 was considered as a settled thing, when the Emperor Alexander 
 II. ascended to the throne, by himself as well as by his people, 
 that at all events serfdom was now to be entirely and forcibly 
 eradicated from agrarian legislation in Russia. In this primary 
 and unconditional postulate all the world agreed. But nobody, 
 not even the most strenuous advocate of unlimited rights of 
 property in land, conferred by superannuation on the proprietor
 
 326 SYSTEMS OF LAND TENURE [Faucher. 
 
 in legally acknowledged possession, could hide from himself, 
 that merely to sever the link between master and serf, and to 
 make this measure at the same time sever the link between the 
 serf and the land, would be, besides an historical injustice, a 
 political blunder involving the most direful consequences. For 
 what was to become of the enfranchised serf? An agricultural 
 labourer ? "Would this be the use he would make of his free- 
 dom, that he remained what he had been, with this difference, 
 that his master, now called his employer, could — in his idea, 
 far worse than to whip him — turn him out of doors with wife 
 and child, at the slightest symptom of even a justifiable dis- 
 obedience ? A farmer ? And if a farmer, a farmer of what ? 
 Merely of the land necessary to provide the food and clothing 
 for the family ? But, being unable to pay any rent out of the 
 produce of this land, he would have to do other work to enable 
 him to pay the rent. What work ? Village industry ? Field 
 labour on the proprietor's land ? Would not he thus legally be 
 the same labourer as above, only with notice to quit by the 
 year, instead of by the w^eek, for practically it would be by the 
 year in both cases ; and in both cases the security of his sus- 
 tenance, which with serfdom was perfect, would be superseded 
 by a constant apprehension of losing his sustenance, and render 
 him as resistless as farmer against rack-rent, as he would be 
 resistless as labourer against depression of wages and maltreat- 
 ment. Practically, in both cases his position would be exactly 
 the same ; for the rack-rent in the one case would be but 
 another fonii of the depression of wages in the other. Every- 
 body — economist as well as socialist — understood that the 
 economical, or social law, as the reader likes, which regulates 
 the relations between employer and labourer, and between pro- 
 prietor and farmer — a law which the economist trusts, and the 
 socialist curses, at all events was not applicable, where the 
 threat of the loss of a homestead and of a sustenance hitherto 
 enjoyed by the future labourer or farmer under very different 
 arrangements was thrown into the balance to the employer's or 
 proprietor's advantage, and to the labourer's or farmers disad- 
 vantage. It could not but have rapidly brought about a pro- 
 bably fearful state of the country. It would have soon filled 
 the country with swarms of peasantry, wandering to and fro, 
 now begging, now endangering the safety of the roads, and 
 finally of the country-seats. The pretext of Boris Godunow 
 would have been turned into a reality.
 
 Russia.] IN VARIOUS COUNTRIES. 327 
 
 The resolve of doing away altogether with serfdom involved, 
 therefore, in everybody's eyes in Russia, at once a second re- 
 solve — namely, that of settling the land question between the 
 late master and his late serfs in such a way as to prevent the 
 bulk of the peasantry from becoming suddenly and simul- 
 taneously unsettled and homeless, and thus to make the new 
 relations between employer and labourer, or between proprietor 
 and farmer, take their issue from positions duly balanced 
 between them. 
 
 But this being agreed upon by almost unanimous consent, 
 a third still more precarious problem at once emerged, so to 
 speak, from the deep sea of agrarian history in Russia, and 
 forced itself on the anxious attention of the native statesmen 
 and writers on public affairs. 
 
 If the land was to be divided between the master and his 
 serfs, was the single former serf to be invested with freehold 
 property, in accordance with what had taken place under simi- 
 lar circumstances further west in Europe, or was regard to be 
 had to the old national custom of common village property and 
 joint village husbandry — the " Mir," as the language has it, in 
 an expression not to be translated into a language of Western 
 Europe ? This custom was still alive and paramount in the 
 horizon of peasant thought, though now in the disguise of a 
 common household, not by common consent, and free to act 
 as the members of the household liked, but of a common 
 household placed under the supreme will, in the last instance, 
 of a resident or absentee master, belonging to anodier sphere 
 of society than the members of the houseliold themselves, and 
 being either the czar himself or somebody else, who lorded it 
 over the Mir, in the eyes of the peasantry at least, always in 
 the name of the czar ? The land question betiveen peasant and 
 peasant was therefore a third c^uestion embodied in the primary 
 one of the total abolition of the bondage of agricultural labour. 
 
 It fmally appeared that local administration and local 
 jurisdiction, yes, even that amount of local legislation which 
 can never totally be dispensed with, could not remain, Avith 
 an enfranchised peasantry, what they had been before, when a 
 good deal of the duties of administration, jurisdiction, and 
 legislation, as far as the serfs were concerned, simply devolved 
 on their master, whose supreme will was the Alexander's sword 
 for cutting many a Gordian knot. The necessity to supersede 
 individual \\\\\ in affliirs, which from private affairs had become
 
 328 SYSTEMS OF LAND TENURE [Faucher. 
 
 public affairs, by collective will, was the fourth of the problems 
 by which the Russian reformers had to be prepared to see their 
 legislative abilities tried, after the removal of the stain of 
 slavery from their national escutcheon had once become their 
 firm resolve. 
 
 The moment has now arrived to mention the most promi- 
 nent features of party division in Russia, with regard to the 
 reform of agrarian legislation. They may be described as the 
 economist and imperial party on the one side, and the socialist 
 and national on the other, the former, at the same time, being 
 reproached with aristocratic leanings, the latter very ostensibly 
 professing democratic ones. It would be very erroneous to 
 compare them in any way to Conservatives and Liberals in the 
 sense of Western Europe. They would, both of them, 
 repudiate it themselves with rather contemptuous laughter. 
 The faith, the very sincere faith, of the socialist and national — 
 which, with them, does not merely mean Russian, but Pan- 
 ■sclavonian — party is, that it is all over with the particular form of 
 civilisation which is dominant in Western Europe. According 
 to them, the future belongs altogether to the Russian "Mir" 
 and to the Sclavonian race. Communism in land is designated 
 by them as the particular Sclavonian substratum of civilisation. 
 According to them, tlie nations of Western Europe, who, all of 
 them, in times dating back very far, knew of institutions 
 similar to the Russian Mir, committed a fatal blunder already at 
 the beginning of their career, and condemned themselves to 
 unavoidable decay setting in sooner or later, by allowing land 
 to become the object of individual right of property, which, 
 among the \\^estern nations, was established by the formation 
 (Of a feudal aristocracy first, and the revival of Roman law 
 afterwards. Land, they argue, having never been produced, 
 "but found, derives the value which we now find adhering to the 
 bare acre exclusively from social, not from individual eftbrts. 
 Rent paid to individuals has therefore no foundation in justice, 
 but only such rent as is paid to meet the public expenditure of 
 the smaller or larger community, the parish, the county, the 
 state. The position of this party in regard to the land question, 
 as a question between noble proprietor and peasant, was there- 
 fore to make light of the inherited or purchased rights of the 
 l)roprictor, to insist upon as much land being taken from him 
 as possible, and of his being treated in future simply as one of 
 the peasants of the village. Of course they were aware that
 
 Russia.] IN VARIOUS COUNTRIES. 329 
 
 they could not entertain the hope of seeing such a scheme 
 carried out in our times ; and those of them who were called 
 upon to take an active part in framing the new legislation did 
 not even attempt it, strong as their influence was. But notice 
 is to be taken of the existence and collaboration of a political 
 party and of statesmen who, as far as they consented to leave 
 to the noble proprietor rights of property, singled out from the 
 common ones of the village, did so from reasons of expediency, 
 and not from inclination or conviction. It had its very sensible 
 influence on the quantitative side of the arrangement effected. 
 
 The confiscation of rent, on which the Sclavonian socialists 
 put the construction of a restoration of the original and 
 inalienable right of property of the community in the soil, 
 rests evidently on a theory on which they must be prepared 
 to act, if it be shown to them that its sincere adoption 
 involves the necessity of not merely applying it to the settle- 
 ment of the affairs of the living generation, but of a constantly 
 repeated application. They are, however, fully aware of, this, 
 and do not shrink from asserting that they are not merely 
 prepared, but really engaged in so acting. And they point, 
 for proving this, to their arduous and unconditional defence 
 und recommendation of the Mir, which is their solution of the 
 second problem of the land question, namely, of the question 
 between peasant and peasant. 
 
 Property in the soil being considered the property of all, 
 it becomes evidently necessary to decide on what title to rest 
 the claim of the individual to work a certain parcel of this soil. 
 The reply of the Sclavonian socialists is very plain ; they say, 
 let the title be composed of his free will and of his ei'ident 
 ability. What ? the stronger or more intelligent man, or the 
 man with more working capital, is to get more than the others ? 
 The reply is, this is not what, in the first place, we are mean- 
 ing. Before all other considerations, we have in view the man 
 with a larger family. In Western Europe the difference in the 
 number of children between one family and the other is a more 
 fretjuent cause, particularly with the class of small landed pro- 
 prietors and of small farmers, of the increasing difference 
 between wealth and poverty, than laboriousness and parsimony 
 here, idleness and spendthriftiness there. The great bulk of 
 every people, under the influence of custom and neighbours' 
 gossip, are pretty nearly alike as to economical habits. Yet 
 poverty, as well as wealth, is on the increase in the West, with
 
 330 SYSTEMS OF LAND TENURE [Faucher. 
 
 the peasant population in France and Germany, and with what 
 is left of that class in England. We ascribe it to the blessing 
 not being known there of our " ]\Iir.'' In a Western village 
 with divided soil a family gets poorer by being blessed with 
 numerous children in rapid succession. For during the first 
 fourteen years of his life the child is a mere burthen, and while 
 the family which the soil has to feed grows, the soil they possess 
 and are able to till does not grow ; and even when, fourteen 
 years or more later, they are enabled to till more soil, by the 
 growing maturity of their progeny, in numbers of cases it has. 
 become too late, and they are not any longer in the position to 
 buy or farm more soil. In our "Mir" the family is not 
 impoverished by the birth of a child, but, on the contrary, 
 enriched. For with the number of children increases the share 
 of the family in the village household. Of all that is held in 
 common and produced in common they partake a head's share 
 more. The birth of a male child thus is our new title to the 
 right of husbandry on a unit-share of the soil of the onpire ; and 
 here you have the constantly-repeated application of the theory 
 in which we believe. The " Mir " is merely a commodious 
 instrument for effecting it. As far as the surplus of progeny in 
 one family is counterbalanced by the sterility of other families 
 in the Mir, the title acquired in the Mir by the birth of a child 
 involves no curtailment of the titles of the other members of 
 the "Mir." Voluntar)- emigration into cities is further calcu- 
 lated to prevent any rapid decrease of the size of the unit- 
 share. It is true that with the birth of the child the increase 
 of the family's ability for working the soil is but yet prospec- 
 tive. But what else takes place, save that a debt is incurred, 
 which the child grown up will have to repay in similar manner ? 
 Those who have fewer mouths of children to feed have to work 
 for those who have more such mouths to feed. We are levying 
 a kind of rate, not appearing in public accounts, for counter- 
 acting the effects of such inequalities between family and family 
 for which nobody is responsible. For we do not consider any- 
 body responsible for the number of his children. We do not 
 believe in the doctrine of the necessity of self-imposed restraint 
 as means to and result of a higher stage of civilisation. It is 
 against nature ; it cannot be right. Our village rate for assist- 
 ing numerous families, to prevent inequality of wealth to creep 
 into our villages, invented not by theorists, but by our people 
 themselves in times beyond the dawn of history, is the result
 
 Russia. J IN VARIOUS COUNTRIES. 33 1 
 
 of an instinctive forethought, for the absence of which you 
 in the West are punished by your poor-rates. What our 
 people pay at once, when it can be both given as well as 
 received with a good grace, yours have to pay afterwards, 
 when it is burdensome to give and degrading to receive — 
 when it, besides, is unable to cure an already hereditary 
 evil. The '•' Mir " of the village, of course, is only a stage 
 in the application of the theory of communism in land. 
 Should the increase of the population of the village have 
 increased in such a way as to reduce the unit-share too much, 
 we mean to resort to the old expedient of our people, colonisa- 
 tion. We have still uncultivated land enough, and very good 
 land too. And if we had not, we would know how to procure 
 it. Of the new village, the nation, the empire, has to take care, 
 as the village does of its child. 
 
 I have let the Pansclavonian socialists speak on this 
 particular land question between peasant and peasant so 
 extensively, selecting from what I have read and heard what 
 appeared to me their most plausible — by no means convincing 
 — arguments, because it is the question they have most at 
 heart. In fact, it is the national pride which one has here to 
 deal with. I have the impression — I cannot help it — that the 
 Sclavonian nations, being so very late and backward with their 
 reformatory era, must absolutely have something for themselves. 
 Their young men, and, in Russia itself, perhaps still more the 
 young ladies — who are very busy and enthusiastic, and un- 
 doubtedly of a general education more resembling man's 
 highest education than is the case in any other country, 
 England, America, and Sweden not excepted — rushed in 
 swarms into the political arena, as soon as the death of the 
 Emperor Nicholas, the humiliation of the Empire in the 
 Crimean war, and the declared willingness of the Emperor 
 Alexander II. to unfetter the forces slumbering in this great 
 nation, had sounded the death-knell of the German tutelage 
 under which the nation stood before. In their youthful 
 national enthusiasm, they looked round to what was either 
 truly Sclavonian or altogether new. The German youth did- 
 just the same after the war of liberation from the French ; and 
 the time from 1815 to 1820 in Germany bears a striking resem- 
 blance to what took place in Russia during the first five years 
 of Alexander's reign. The Russian youth now discovered the 
 very old Russian Mir and the very new French socialism, and
 
 332 SYSTEMS OF LAND TENURE [Fauchkr. 
 
 had what they wanted. Now Russia need no longer lower her 
 head before anybody. She was as far advanced as the boldest 
 French radicals, and yet could proudly tell them that, what 
 ■with the French had ended as a dream, with the Russians 
 had begun with a reality — a reality which they had always 
 possessed, although in a mutilated form, despised and mal- 
 treated ; and that they possessed it still. There was no 
 arguing with them, for they would not argue. They would 
 believe what they liked to believe, were sharp-witted enough 
 — for they are sharp-witted — to find out the most plausible 
 arguments in favour of their belief, and not sober enough — 
 for they are not sober — really to busy themselves with ex- 
 amining the arguments against it. 
 
 It was not the fault of the Russian socialists, when the 
 occasion has not been made use of to introduce the great 
 Russian Mir all over the empire, to make it compulsory on the 
 enfranchised peasantry, and to make it perpetual. However, 
 as they profess the firm conviction that at least all the 
 Sclavonian people still prefer common to individual hus- 
 bandry, they could not but admit that to leave it optional with 
 the enfranchised peasants, if they would continue the arrange- 
 ment which they had established when free, and, as serfs, were 
 compelled to uphold, was all they reasonably could insist upon. 
 
 As to the new organisation of local administration, jurisdic- 
 tion, and legislation, which was concomitant with the measure, 
 it is manifest that the socialist democratic party I am speaking 
 of repudiates any other machinery but that of election by the 
 people to all the representative as well as the executive charges 
 and appointments of local self government, wifh salaries, as far 
 as pretexts and money for them can be got, and without any 
 but the most obvious disabilities. Here the necessity to secure 
 as many interested advocates among the people themselves of 
 peaceful co-operation with the Government and the aristocracy 
 for steering the dangerous measure into port clear of the rocks, 
 which mark tlie passage of every serious social reform, has 
 greatly assisted the views and the wishes of the Russian social 
 democrats ; and Russia is perhaps at present that country in 
 FAu-ope wliich, in the inferior parts of its political organisation, 
 comes up nearest to the ideal of democracy. The stratagem to 
 have the part of the business more odious to the peasants done 
 by elected but paid — very well ]xiid — peasants, and the part 
 more odious to the proprietors likewise by elected, but paid —
 
 Russia.] IN VARIOUS COUNTRIES. 333 
 
 very well paid — members of the class of proprietors, has been 
 considered as a particularly lucky stroke of policy on the part 
 of the late minister Miliutine, the statesman who enjoyed the 
 confidence of the Russian social democrats, though he did not 
 (juite belong to their number. Time only can show if it really 
 will prove lucky. 
 
 The Pansclavonian socialists were the movement party in 
 the affair • the more aristocratic Russian patriots, who still are 
 looking to Western Europe as a teacher, who have begun tO' 
 make political economy a favourite study, and who meditate, 
 before all other things, the transition of their state, cautiously 
 and by degrees, to parliamentary government — not much in 
 favour with the Russian socialist democracy — were willing 
 enough to do everything that was needed to re-establish the 
 personal liberty of the great bulk of their people, but disin- 
 clined to sacrifice the interest of the class of noble landowners 
 to any such extent as to impair their fitness for constituting a 
 native and independent political gentry. For, without this 
 being accomplished, parliamentary government and local self- 
 government in Russia, according to them, would be but a 
 dream or a sham. I must confess from what I, as a foreigner, 
 know and saw of the country and people, I very strongly share 
 this conviction. The abolition of serfdom must undoubtedly, 
 as a secondary advantage, largely contribute to the growth of 
 such an independent gentry among the class of landowners ; 
 for he who owns serfs, be he ever so well educated, is 
 neither independent nor a gentleman ; but then neither his 
 authority with the people of his neighbourhood, nor the 
 weight and freedom of movement his wealth imparts to him, 
 must be curtailed. Thus the movement party, for whom these 
 considerations had no meaning, was faced by a resisting party, 
 as far as the noble proprietor's interests and the European 
 stamp of agrarian arrangements were concerned, among the 
 Russians themselves. 
 
 The nightmare of an essentially German rule — severe, as is 
 always the rule of a minority, and of a minority of foreign 
 nationality too — having been taken from the country, and the 
 reform of agrarian legislation having, by common consent and 
 the imperial will, been declared to be the first and foremost 
 business of the awakened nation, the older, more sober, and 
 wealthier of the educated Russians cast their looks, in the 
 first instance, in the same way on England as the younger ones
 
 334 SYSTEMS OF LAND TENURE [Falcher. 
 
 did on France. They saw the soil of England divided into 
 huge lumps of landed property, as huge as their o^vn, but ver}' 
 much better cultivated, and yielding splendid rent. This rent 
 they saw paid by farmers living on farms sometimes of con- 
 siderable size, in most cases at least of a respectable size, 
 which, however — with the fertility of the soil, the propitious 
 climate, permitting the greatest number of working days in the 
 open air in the whole world, with the dense net of magnificent 
 roads of all kinds, and, above all things, with a town population 
 standing in the relation of two and more to one to the rural 
 population — are equal in agricultural importance to the very 
 considerable Russian estates. They saw these farmers bring- 
 ing the whole movable capital with them, to an amount per 
 acre quite beyond Russian conceptions, and sometimes even 
 risking a part of their own capital. Thus far a most enviable 
 prospect arose before their view. But then they saw a great 
 number of agricultural labourers, not exactly badly paid, in a 
 great number of counties pretty well paid, in some places, in 
 the south-west, indeed, insufficiently paid, but, there could be 
 no doubt, even where pretty well paid, not H'ell off. They 
 could not help seeing the figures of the poor-rate in rural 
 parishes, and then the dwellings and the clothing ! The 
 English agricultural labourer's cottage decidedly did not come 
 up, in the majority of cases, to the standard of the block- 
 house of the Russian serf, either in size or in the furniture 
 filling the house. The clothing, cotton and cotton again, 
 or the smock-frock and rude shoes ; and in Russia stout linen, 
 woollen cloth, the sheepskin coat, and always excellent boots, 
 almost up to the knee ; the food about on a level with that in 
 England, perhaps a little more meat, but less milk, butter, 
 eggs, and river-fish ; in Russia, good, though coarse, bread in 
 profusion; in England, better and finer bread, but in limited 
 quantity. In England, peas and j)Otatoes ; in Russia, little 
 potatoes except for making fat cakes, but, besides peas, grits of 
 buckwheat, a very wholesome food, in great quantities, and 
 lentils and beans. The drink in both cases tea, in Russia 
 always of a superior quality (Congo teas); a great difference only 
 in the beer, which cannot be better than in England, or worse 
 than in Russia. But then to the Russian kwass everybody is 
 as welcome as to water. It is not to be wondered at, when, 
 after all, even many of those Russians who constructed the 
 new era of their state and their social institutions into an
 
 Russia.] IN VARIOUS COUNTRIES. 335 
 
 approach to the forms of Western Europe, yet did not quite 
 shut their ears to the insinuations of their countrymen of the 
 doctrine of Sclavonian sociaUsm, and from the commencement 
 were ready to let the Mir at least have its trial by the side of 
 other experiments, all the more as it -vvas the existing form in 
 so large a part of the empire, apart from the serfdom, which 
 had merely been superposed on the Mir. 
 
 This resolve was naturally strengthened by their eye now 
 falling on the farmers of small farms, j^articularly in Ireland. 
 For the transformation of the serfs into labourers at one stroke 
 had, at an early period, become out of the question. The 
 original product in this quarter had been to transfer to the 
 enfranchised serfs the full property of the blockhouses in which 
 they lived, with but a small patch of garden attached to each, 
 without any payment on the part of the peasants, and to leave 
 the proprietor in possession of the whole acreage. Such a 
 settlement, at all events, would have been clear and easy 
 enough, and it was fancied that the gift of personal liberty and 
 a house, without debts, at the same time, would be enough to 
 content the peasants. But the strenuous opposition of the 
 democratic party to such a solution of the problem, the bad 
 grace with which it was received by the Imperial Government, 
 who looked upon the creation of an order of peasant-pro- 
 prietors, or, at least, of peasant-farmers, as essentially contribut- 
 ing to the stability of the throne, as necessary for the business 
 of recruiting the army, and as a guarantee of an uninterrupted 
 increase of the population, and lastly and principally, the un- 
 deniable disinclination of the serfs themselves to part with 
 what they had still considered as a kind, at least, of right of 
 property, in spite of serfdom, and of ever so many personal 
 experiences, which ought to have taught them that they had no 
 such right, had early rendered it impossible. Thus, at least, 
 the transitional transformation of the serfs into small farmers 
 had already become inevitable in the immediate future. But 
 what had been the experience where small individual farms 
 are the rule ? WTiy, abject misery, semi-barbarism, and, before 
 all things, agrarian riots and agrarian crime ! Thus, even with 
 this party, the revival of the independent " Mir," as first form 
 of the new peasant life, from which, as from an embryonic 
 state, higher forms of agrarian organisation were gradually to 
 issue, soon became a settled affair. Their afterthought was, 
 and is, of course, to get rid of it as soon as possible. An
 
 336 SYSTEMS OF LAND TENURE [Falcher. 
 
 attempt to secure this possibility by a provision which made it 
 optional with the proprietor after the lapse of a certain number 
 of years, to turn the copyhold — which was henceforward to 
 form the legal and original link between the proprietor and the 
 villagers, continuing, as free men, to work in common — into 
 tenure at will, was likewise frustrated by the opposition of the 
 Government. For the reasons indicated above, they had to be 
 content with the provision, as a final compromise between the 
 two opposed parties, that it should be made optional with the 
 peasants, either to acquire the freehold of the land allotted to 
 them, by paying a legally settled price for it in instalments, and 
 with the assistance of Government, or to dissolve the Mir. 
 
 Thus the whole plan, under the contending influence of 
 opposed ideas as to the future agrarian organisation to be 
 desired, assumed this general shape. The retention of the 
 system of common husbandry by the enfranchised serfs of a 
 village, as the cradle of an estate of peasant-proprietors, 
 created by their own free efforts, by the side of large noble 
 proprietors of land, so that both classes of proprietors will have 
 to show of what stuff they are made. 
 
 Events will prove whether the result of this competition 
 between the two systems will be a constantly increasing peasant- 
 proprietary, owing to further purchases of land effected by the 
 })easantry, or the absorption of property in the hands of the 
 nobles, who will then have to turn it to account by free labour, 
 instead of by the labour of serfs, or by letting their land pro- 
 bably in farms of larger size to the most intelligent and enter- 
 prising of the peasant class. The " Mir," or copyhold, which 
 evidently will retain the weakest part of the peasantry, would 
 serve all the while as a safeguard against the spread of pauperism 
 of the West European character, as a kind of agricultural work- 
 house under the management of the inmates themselves, but 
 not, as will be seen, without control ; a workhouse endowed 
 with a not inconsiderable amount of soil, for which rent is to 
 be paid. 
 
 Now as to the main provisions in which this general idea 
 has been embodied. 
 
 It is unnecessary to dwell upon that part of the legislation 
 which had for its object to restore personal liberty. The 
 Russian people have thus acquired rights which in Europe are 
 general rights, so far, at least, as they are valid against any 
 private person.
 
 Russia.] IN VARIOUS COUNTRIES. 337 
 
 The provisions concerning the partition of the land between 
 the proprietor and the peasants are the first point of interest. 
 The proprietor of a village is bound to hand over to the 
 villagers, in hereditary copyhold against payment of rent, an 
 amount of land, the exact size of which depends on local 
 circumstances, and on friendly agreement between the pro- 
 prietor and the peasants ; but there is a minimum fixed on the 
 male head of the village population. To understand that this 
 was possible, the law revived or rather reinforced by the 
 Emperor Nicholas has to be kept in mind, that no proprietor 
 was to be allowed to sell land without peasants, unless enough 
 was left to the village to amount to 4| djessatines (about twelve 
 acres) per male head of the population. 
 
 But in the same way as a minimum is fixed, a maximum 
 also is fixed. For this purpose European Russia (Finnland, the 
 German Baltic provinces, and the kingdom of Poland were not 
 affected by the measure) was divided into three zones : the 
 steppe, the country of the black soil, and the provinces belong- 
 ing to neither. These three zones were again sub-divided into 
 respectively twelve, eight, and nine districts. In the steppe 
 districts, the minimum and maximum were made to coincide ; 
 the legal share on the male head was fixed at three djessatines 
 in the most densely-peopled district, and at eight djessatines in 
 the most thinly-peopled. In the two other zones, the minimum 
 was made to form a third part of the maximum. The maximum, 
 in some cases amounting to seven djessatines, shows the lowest 
 figure in the district in Moscow, where three djessatines were 
 fixed as maximum, and consequently one djessatine — amount- 
 ing to not quite three acres — was deemed sufficient to form 
 the minimum. The ground built upon, or enclosed as yard or 
 garden, entered into the calculation. The real extent of the 
 grant will have been, in most cases, that of the " Nadel," that 
 is to say, of the land which the peasants had under cultivation 
 for sustaining themselves and their families while serfs. 
 
 It was settled that where the Nadel exceeded the new legal 
 maximum, and the proprietor preferred to insist upon the 
 maximum being respected, the land to be transferred from the 
 Nadel to the proprietor's own share was, in the first instance, 
 to be selected from among such land as was not manured, such 
 pasture-land as had not the advantage of being inundated in 
 spring, if possible from wooded land, if such (which, however, 
 was rare) had formed part of the Nadel ; and especially it was 
 w
 
 338 SYSTEMS OF LAND TENURE [Faucher. 
 
 to be taken from the parts of the acreage forming the Nadel 
 most distant from the village, or separated from it by the pro- 
 prietor's own land. Manured land was to be cut off from the 
 Nadel only as far as no land not manured could be found for 
 making up the proprietor's legal share. Pasture-land improved 
 by inundation in spring was not to be cut off at all, except with 
 the consent of the peasants, and even then the proportion of 
 such land to the whole acreage must not be altered. If such 
 pasture-land, for instance, had formed the tenth part of the 
 Nadel, and 100 djessatines were to be taken from the Nadel, 
 not more than ten djessatines of such pasture-land must form 
 part of the land to be cut off. Kitchen gardens, and hop and 
 hemp fields, were likewise not to be transferred from the Nadel 
 to the proprietor's share without the consent of the peasants. 
 
 Where the Nadel was kss than the new legal minimum, the 
 land by which the minimum was to be completed was to be 
 adjacent to the Nadel, and consisting of soil really worth tilling. 
 Only where such soil adjacent to the Nadel was not to be 
 found, or where the proprietor's dwelling was erected and his 
 garden laid out upon it, or where all the adjacent land was 
 manured or inundated, retained before by the proprietor, land 
 ;z^/ adjacent to the Nadel might be taken to make up the 
 minimum. But then, at all events, the land nearest to the 
 village was to be taken for the purpose, and a cattle-path to the 
 village was to be let free, without entering into the account as 
 landed property. 
 
 It will be seen from this what precautions were taken to 
 prevent the proprietor from mutilating the self-sustaining com- 
 pleteness of peasant husbandry from the beginning. The 
 animus of those who had the paramount influence in framing 
 the details of the measure is clear; they wanted a stable "Mir," 
 or, if the peasants should prefer to dissolve it, a stable peasantry 
 founded on individual property. 
 
 For the first two years a provisional agreement (by way of 
 experiment) was admissible. During the next six years the 
 proprietor, but not the peasants, had the right of insisting upon 
 a definite settlement, the expenses being borne by the pro- 
 prietor. Minor details, all strictly in keeping with the general 
 spirit of the measure, and whose number and variety is very 
 great, cannot be mentioned here. Great part of them has 
 reference to the different forms of husbandry in use in the 
 different parts of Russia. Others refer to the erection of new
 
 Russia.] IN VARIOUS COUNTRIES. 339 
 
 and the pulling down of old houses. Part of them had merely 
 a transitory character. 
 
 For the space of nine years after the new regulations had 
 become the law of the land, it was rendered obligatory on the 
 peasantry to keep the land in copyhold against payment of 
 rent. Only this much was allowed, that by free agreement 
 between the proprietor and the peasant, on the proposition of 
 the latter, a reduction of the peasant's share to one-half of the 
 maximum, where this at first had been exceeded, could be 
 effected. But this was then to be the definitive size of the 
 peasant's share. It was further allowed, that if the peasants 
 in common should have purchased, in the way which will be 
 described beneath, a part of the land, transferred to them first 
 as copyhold, before the nine years were elapsed, such part not 
 being less than one-third of the maximum, the peasants should 
 have the right to renounce retaining the copyhold of the 
 remainder. If, finally, the proprietors should resolve to make 
 a present to the peasants of so much land as formed one-fourth 
 of the maximum, and the peasants should agree to accept it, 
 then, too, the peasants might renounce the remainder in copy- 
 hold, even before the obligatory nine years were elapsed. 
 
 This, in the interest of arriving as quickly as possible at the 
 establishment of a proprietary peasantry holding common or 
 individual property, was rather an ingenious provision, but in 
 form very Russian ! First, the peasants are compelled to 
 remain as copyholders, peasants, for the space of nine years 
 after they had ceased to be serfs. Thus, it was hoped to get 
 them accustomed to peasant hfe under freedom, by means of a 
 little coercion, as the only pardonable and transitory remnant 
 of serfdom, namely, the coercion of continuing to till the soil 
 as copyholders instead of as serfs. If they should feel the 
 burden of the compulsory payment of the copyhold-fee too 
 extensive, an escape is left them by their becoming proprietors 
 of a smaller amount of land. And the proprietor of the estate, 
 too, is stimulated to secure to himself a less curtailed estate, by 
 assisting the peasants in becoming freeholders. 
 
 Should a decrease of the (male) population of the village 
 take place during the first nine years amounting to at least 
 one-fifth of the whole, and tiot proceeding from peasants emi- 
 grating from the village and disconnecting themselves, with the 
 consent of the other villagers — liable each for all and all for each 
 — from their joint liability, but arising from other causes, then
 
 340 SYSTEMS OF LAND TENURE [Faucher, 
 
 the peasants should Hkewise be entitled to renounce a corre- 
 sponding part of the copyhold enforced upon them. 
 
 Here the disconnection of single peasants from the joint 
 liability, with the consent of the others, in spite of the com- 
 pulsory nature of the copyhold, demands explaining. The 
 explanation, which consists simply in the condition that the 
 peasant thus liberated must already have become a peasant- 
 proprietor, is furnished by another provision of the law, which 
 follows here. 
 
 Should, namely, a peasant be the proprietor of at least 
 double of the maximum per head of land, not forming part of 
 the common copyhold, and being situated at no greater distance 
 from the village than 15 versts (10 miles), then he was to be 
 free to renounce to his share in the copyhold, the land which 
 was allotted to him of the common copyhold continuing to 
 form part of it, and he himself continuing a member of the 
 political commune. In such villages where the institution of 
 the Mir was unknown, and the Nadel divided into hereditary 
 lots (in the West, with the Little Russians and Ruthenes), every 
 peasant who should have become the proprietor of land 
 amounting to double the maximum per head, should be en- 
 titled to renounce to his hereditary lot in the copyhold in the 
 same way, the lot becoming copyhold of the others in cotmnon; 
 and also if he had purchased such an amount of land from the 
 proprietor of the estate himself out of the common copyhold 
 land. But in both cases it would be necessary that either the 
 other villagers remaining liable for the whole amount of copy- 
 hold rent, and the proprietor of the estate, too, should consent 
 to let him free, or that the proprietor of the estate should 
 renounce to so much copyhold rent as corresponds to the 
 contribution to it of the peasant desirous to quit, or that the 
 peasant pays down the capitalised value of the rent, calculated 
 at 6 per cent., due by him. It is the hnv, only destined to 
 compel the peasants to remain peasants at least for the space of 
 nine years, which has let him off because he has given other 
 security for his remaining true to his order ; as far dis private \r\- 
 terests are effected, an agreement or payment is still necessary. 
 
 The anxious efforts of the Government to make a freehold 
 peasantry proceed from the measure of emancipation of the 
 serfs become here again visible. 
 
 After the lapse of nine years — a time now fast approaching 
 — the copyholders with joint liability still left may renounce to
 
 Russia.] IN VARIOUS COUNTRIES. 34 1 
 
 such part of the copyhold land as any one of its members has 
 renounced before. It will only then become more clearly 
 discernible to what extent henceforward landed property of 
 large size, landed property of small size, and copyhold will 
 enter into the agrarian state of the country. 
 
 There was one way left for the proprietor of the estate and 
 the peasantry on it agreeing to avail themselves of it — viz., a 
 partition of the land, leaving the whole acreage in the hands of 
 the proprietor, and the houses, kitchen-gardens, and some 
 pasture-land only as copyhold, with option to purchase it, in 
 the hands of the peasants, namely, on an application from both 
 parties to Government to confer upon the village the character of 
 a market-town. It appears that there has been little resort to it, 
 or, perhaps, Government has been tardy in lending assistance. 
 
 In attempting to prevent as much peasant husbandry as 
 possible from being discontinued, the legislature did not forget 
 the emergency of the peasants temporarily failing to meet their 
 liabilities. It was, of course, necessary, in the case of arrears 
 of rent, to place a corresponding amount of land again at the 
 disposal of the proprietor of the estate. But it was provided 
 that during the first nine years, either the joint copyholders, or, 
 where hereditary lots are the custom, any single member of the 
 community, not being himself in arrears with rent, might step 
 into the dormant copyhold right, after every third year's harvest 
 had taken place. After the lapse of the nine years, the right 
 of the peasants to step into quiescent copyhold titles can 
 be exercised but once, three years after the seizure. If it 
 then be not exercised, the land will return definitively to the 
 proprietor of the estate. 
 
 The money paid down by peasants resolved to give up their 
 share in the joint copyhold, as capitalisation of their running 
 liability, was ordered to be reserved as guarantee- fund for the 
 combined copyholders discharging their liabilities. But it was 
 made optional with the proprietor of the estate to have the 
 money paid out to himself on his renouncing to the amount ot 
 rent thus capitalised. 
 
 Now as to the way of fixing the form and amount of the 
 compulsory copyhold fee — by far the most difficult part of the 
 whole preceding. 
 
 It was assumed — with what right a foreign observer is unable 
 to say — that a sudden and absolute transition in the form of a 
 compulsory rent from the form of labour to the form of money
 
 342 SYSTEMS OF LAND TENURE [Faucher. 
 
 was inadmissible, if it was everywhere to be rendered possible 
 for the villagers to discharge their liabilities. It was deemed 
 to the interest of the preservation of an order of peasants as 
 numerous as possible, to acquiesce not merely in a remnant of 
 coercion in general, but even in a remnant of compulsory 
 labour, the law prescribing in lieu of what amount of money it 
 should stand. 
 
 In both cases as well where labour was chosen as the form 
 of the rent, as where money was chosen, the maximum of 
 peasants' land on the male head of the village population was 
 made the legal starting-point of the calculation. The rent due 
 for a share coming up to the maximum was laid down, in the 
 form of labour, as amounting to forty days of man's labour and 
 thirty days of woman's labour. Where the actual share did not 
 come up to the maximum, the amount was to be reduced in 
 proportion. Three-fifths of the days were to be summer days, 
 and two-fifths winter days. For each half summer day in addi- 
 tion to the three-fifths, a winter day falls out. The number of 
 working days due by the whole community of copyholders, 
 during either of the two half-yearly periods, is to be divided by 
 the number of weeks ; and the proprietor of the estate cannot 
 claim more working days in the course of a week than fall 
 within a week. The number of working days falling within a 
 single Aveek is to be divided by three, and on no day of the 
 week can he claim more than a third part. He is, however, 
 entitled to add the odd days of both divisions, but never more 
 than one working day per week, and one working day per day. 
 Two working days of a horse are to be considered equal to one 
 working day of a man. The men discharging the labour in- 
 cumbent upon the community are to be taken from among the 
 men between i8 and 55 years, and the woman from among the 
 women between 17 and 50 years. It is permitted to the 
 peasants to fill their place with a hired labourer. 
 
 It will be seen that care has been taken to keep as close as 
 possible in framing the law to the custom which prevailed in 
 the times of serfdom, of the proprietor leaving three days of the 
 week to his serfs, and claiming the other three for himself. He 
 has still his three days per week, only he has far less labourers 
 to dispose of For, instead of having to claim about one hun- 
 dred and thirty days, he has to claim but forty, and respectively 
 thirty. This, especially, is what has reduced the value of 
 Russian estates after the abolition of serfdom.
 
 Russia.] IN VARIOUS COUNTRIES. 343 
 
 For the rent in money, too, where this form is adopted, does 
 not make up for the working days of the serfs lost by the pro- 
 prietor, being merely the equivalent of the number of working 
 days now forming the rent of a share. The transition from 
 labour-rent to money-rent was made optional with the peasants, 
 with the whole community, or with every single family — in the 
 sense of the re-partition for tilling purposes of the land by the 
 members of the community among themselves, " tjaglo " — only 
 two years after the law had become valid, and they being not 
 in arrear with working days. Four-fifths of the peasants having 
 effected the transition from labour-rent to money-rent, it was 
 made optional with the proprietor of the estate to compel the 
 remaining fifth. The money-rent, to which the traditional 
 name of every tax on the peasantry, signifying very different 
 things in different times, " obrok," was preserved, was fixed on 
 the male head of the population, to which the number of shares 
 corresponds, but without exact proportion to the size of the 
 land-share. The situation of the land in the empire was con- 
 sidered of higher importance, as soon as its value was to be 
 expressed in 7noney, than either the exact size or the quality ot 
 the soil, which, moreover, had been made to compensate each 
 other as much as possible, by the legal maximum of the shares 
 varying with the zones and their districts, and having generally, 
 ccBteris paribus, been made smaller on more fertile soil. And 
 it was certainly correct political economy, as soon as the money 
 value — the value of exchange — of rent was in question, to pay 
 attention to that element in the formation of land-rent which 
 the German Von Thiinen, fifty years ago, has discovered and 
 traced with ability, in the distance of land from the market, the 
 place of exchatige. Consequently it was laid down as law that 
 the '' obrok " was to amount for the maximum share at a dis- 
 tance from St. Petersburg of not more than 25 versts (15 miles) 
 to 12 rubles (i 1st. 18 sh.) on the male head, in the districts of 
 Petersburg, Moscov, Zaroslaw, Wladimir, Nijar-Nowgorod, 
 and close to the banks of the Wolga, to 10 rubles (i 1st. 12 sh.); 
 in a series of other districts to 9 rubles (i 1st. 8 sh.) ; and 
 where the lowest figure was applied, to 8 rubles (i 1st. 5 sh.). 
 However, to a certain extent, the size of the share for which 
 the '•' obrok " is to be' paid was made to enter the calculation, 
 namely, by the following arrangement. In the first zone, one- 
 half of the maximum " obrok " has to be paid for the first djes- 
 satine of the real share, including the space of house and
 
 344 SYSTEMS OF LAND TENURE [Falcher. 
 
 garden; for the second djessatine one-fourth of the maximum 
 "obrok" is to be paid ; and the remaining fourth is to be con- 
 sidered as the equivalent of so much djessatines as the maxi- 
 mum consists of besides the two first djessatines. This leaves 
 but a small part of the "obrok" as representing the rent of 
 such djessatines as the real share may contain less than the 
 maximum, and so much only is taken off from the " obrok." 
 The regulation of the way of calculating the reduction varies a 
 little for the two other zones. 
 
 The average maximum share being about 12 acres in size^ 
 its rent in the form of labour being set down at seventy work- 
 ing days, made up of male and female, of summer and winter 
 labour, and the average rent in the form of money being i 1st. 
 8s., it follows that the legislator has estimated the rent of an 
 acre in Russia at 2s. 4^., and the wages of agricultural labour 
 at 5^. a day. 
 
 Both estimates are far from coinciding with the prices 
 actually obtainable in the open market. Wages almost every- 
 where are much higher, so that it is advantageous to the 
 peasantry to pay the " obrok," instead of working for the pro- 
 prietor. Land is both much dearer and much cheaper. Land 
 under actual tillage by peasants as a rule is dearer ; so that 
 such peasants as pay "obrok" have been gainers of wealth by 
 the measure, beside the amount of freedom they have acquired. 
 
 There is another " obrok " to be paid by the peasantry for 
 the houses, stables, barns, gardens, improvements on pasture- 
 land, &c., in one word, for the fixed capital, which forms part 
 of the copyhold grant. P'or this purpose four classes of villages 
 were formed. Such as are exclusively devoted to agriculture, 
 and which offer no peculiar advantage to their inhabitants, 
 have to pay i^ rubles on the male head; such as are carrying 
 on branches of industry, particularly market-gardening, culture 
 of hemp and beet-root for sale, &c., have to pay 2^ rubles; 
 such as enjoy evident local advantages, being situated in the 
 neighbourhood of Petersburg or Moscow, &c., have to pay 3^ 
 rubles ; and the fourth class consists of villages whose local 
 advantages are so great — for instance, villages in suburban 
 relation to towns of 20,000 inhabitants and more — that not 
 merely a higher house-obrok but also a higher land-obrok is 
 founded on justice. Here the provincial committee is entrusted 
 with settling the amount of liabilities, a limit being, however, 
 drawn by law.
 
 Russia.] IN VARIOUS COUNTRIES. 345 
 
 The "obrok" is to be paid six months in advance, if the 
 proprietor insists upon it. Otherwise an agreement may be 
 come to, which is then binding upon both parties, Uke the 
 amount of the obrok itself, for the space of twenty years, after 
 the lapse of which a new arrangement may take place. The 
 obrok is collected in the same way as the public taxes, by 
 the elected functionaries of the local self-government. The 
 promise of the Government was to enforce it with all possible 
 rigour. 
 
 The most important, however, of the main provisions of the 
 Act of 1 86 1 is that which refers to the right of the peasants tO' 
 purchase the copyhold on which they are living. They were 
 compelled to accept the copyhold; but, in compensation, the pro- 
 prietor of the estate is compelled to accept their money, if they are 
 able and willing to buy either each his own share, dissolving 
 the community, or together the whole of the grant, continuing 
 the community. The legal price is 165-fold the amount of the 
 " obrok." They are entitled to purchase the farm-yard alone 
 or together with the land, the "obrok" for the one, as has. 
 been seen, being separated from the "obrok "for the other. 
 This option left to them has been the subject of much con- 
 troversy. The proprietors would have preferred to see the 
 whole village do either the one or the other. Where the com- 
 munity is not dissolved, and not inclined to purchase the land 
 in common, each single peasant may yet assert his right of 
 purchasing his own share, but on condition that he pays one- 
 fifth more than the purchase-money otherwise would amount to. 
 
 Government has undertaken to assist the peasantry in pur- 
 chasing the land, by advancing, on the security of the " obrok'* 
 collected by their agents, part of the necessary sum, amounting 
 to four-fifths where the whole grant is purchased, and to three- 
 quarters where a part of it of certain size is purchased, in form 
 of bonds of the Imperial Bank, bearing five per cent, interest, 
 or titles to rent, guaranteed by Government, which afterwards 
 are to be taken in exchange for such bonds of the bank. They 
 are to be paid over at once to the proprietor of the estate or to» 
 his creditors. Only such peasants, of course, can receive the 
 benefit of governmental assistance who have already turned the 
 labour-rent into "obrok." But Government, always in the 
 interest of securing the existence of a numerous order of 
 peasants, has placed another condition on their assistance. 
 The purchase-money is only advanced in behalf of such peasants.
 
 346 SYSTEMS OF LAND TENURE. [Faucher. 
 
 as consent to purchase the dwelUng-houses and farm-yards loith 
 the land. This also will tend to lessen the number of cases — 
 apprehended by the proprietors — of a part of the peasants in a 
 village purchasing the houses and farm-yards itnth the land, 
 and a part without it. 
 
 As yet it is impossible to judge of the full practical bearing 
 of this great agrarian reform among one of the most numerous 
 and influential nations of the earth, holding in possession such 
 an immense territory. A considerable number of peasant-pro- 
 prietors, partly individuals, partly communities, have already 
 sprung up. In my opinion the difference between single and 
 common property is greater, and of greater importance, than 
 that between freehold and copyhold. Should the "Mir" 
 prevail, colonisation undoubtedly will be favoured by it, as it 
 was in olden times, and as seems to have been the case 
 thousands of years ago in China, where the most populous 
 nation of the earth has derived its strength in colonisation from 
 similar agrarian institutions. But interior social progress will 
 be weak, as it always has been in Russia, and as it has been 
 in China. And the country will continue to be in danger of 
 despotic political and social institutions. For nations who are 
 in the habit of sacrificing so much of their individuality as to 
 become, in their daily life, the slaves of a majority, are always 
 at but one step's distance from becoming the slaves of a 
 master. Had the ancient Russian villages not been com- 
 munists, they would not have become slaves ; not the law, but 
 their individual weakness, which knew not how to resist the 
 abuse of the law, has cost them their liberty. 
 
 From the little I have seen ot the Russian peasants, I do 
 not think that the Mir will continue for any length of time to 
 be popular with them. I have a presentiment that the}' will 
 shortly and strongly disavow by their acts that they are what 
 the philosophers who pretend to speak in their name represent 
 them to be. I fancy that I have discovered very great resem- 
 blances between them and the peasantry, of mixed German 
 and Sclavonic blood, in the eastern provinces of my own 
 country — Prussia. If I am right in this, then anything rather 
 than communistic habits and leanings are to be expected from 
 tliem as free men ; and I hope it will be so, in the general 
 interest of civilised humanity.
 
 347 
 
 VIIL 
 
 FARM LAND AND LAND-LAWS OF THE 
 
 UNITED STATES. 
 
 By C. M. Fisher. 
 
 Counsdlor-at-Law, United States. 
 
 INTRODUCTION. 
 
 This Essay is intended to convey some general idea of the 
 actual distribution of land in the United States ; the proportion 
 of landowners to population ; the laws which relate to land as 
 to facilities of transfer, descent, &c. ; as well as some informa- 
 tion as to the fitness of the Irish emigrant for becoming the 
 owner and cultivator of land. 
 
 In a country so vast as the United States, there must 
 necessarily be kw individuals whose opportunities for observa- 
 tion can be sufficiently extensive to enable them to speak 
 positively upon all the foregoing points, as relating to the 
 country at large. It will also be seen that in America the 
 enormous amount of lands eminently suited for agriculture 
 must necessarily influence the operation and working of the 
 laws affecting land ; and to the former fact, perhaps, more than 
 to the laws, must be attributed the great prosperity of the 
 country which, to the man of observation, must be apparent in 
 the driving of the ploughshare over wide fields between the 
 two great oceans of this half-continent, and from the inland 
 seas of the north to the tropics ; in establishing, .according to 
 the census of i860, above 2,440,000 farms, and in creating 
 cities rivalling some of the proud capitals of Europe which had 
 been founded a thousand years ago. These, with towns and 
 villages, numbered at the above date 28,000, and contained at 
 that time a fraction less than 5,000,000 of houses ; pointing, in 
 a significant way, to the industry of our population.
 
 348 SYSTEMS OF LAND TENURE. FFisher. 
 
 THE LANDS OF THE UNITED STATES. 
 
 The agricultural area of the United States, by the last census, 
 in i860, embraced 163,110,720 acres of improved land, and 
 244,101,818 acres of land unimproved. In other words, for 
 every two acres of improved land there were, at the period in 
 question, three acres of land connected therewith not under 
 cultivation ; while the gross aggregate of uncultivated territory, 
 fertile and waste, swells to 1,466,969,862 acres. 
 
 This fact determines the agriculture of the country. Land 
 is abundant and cheap, while labour is scarce and dear. Even 
 in the older-settled States there is much land that can be 
 purchased at extremely low rates ; and by a recent Act of 
 Congress, known as the Free Homestead Law, every citizen of 
 the United States, or any foreigner who shall declare his 
 intention of becoming a citizen, can have a farm of 160 acres 
 without charge. As good land as any in the world is offered 
 to actual settlers on these easy terms. 
 
 Under such circumstances it is evident that the high- 
 farming system of agriculture which is practised in some older 
 and more densely-populated countries, where labour is abun- 
 dant and the land mostly under cultivation, cannot, as a 
 general rule, be profitably adopted at present in this new 
 country. It has been said that American agriculture is half a 
 century behind that of Great Britain. In one sense this is 
 perhaps true. Our land is not as thoroughly under-drained, 
 manured, and cultivated as that of England, Scotland, or 
 Belgium ; but we can, and do now, produce a bushel of wheat 
 at much less cost than the most scientific farmer of England 
 can by the best approved method of cultivation, rt'cn if he paid 
 nothing J or the use of his land. 
 
 The following table exhibits the amount of improved, 
 unimproved, and cash value of farm-lands, the aggregate 
 population, and the number of farmers and farm-labourers in 
 each State, as collected from all the official records of most 
 recent date procurable. 
 
 The total population is, I believe, now estimated to be 
 upwards of 40,000,000, and at the period when the next census 
 will be taken, 1870, next year, the exi)ectation is that th.e 
 population will be found to number even 42,500,000.
 
 
 
 TABLE. « 
 
 
 
 
 "1 Name of State. 
 
 Amount of t j 
 improved M''^^ . 
 
 Cash value. 
 
 Aggregate 
 
 Number 
 of 
 
 Number 
 of Farm 
 
 
 lands in i860. 
 
 unimprovea. 
 
 
 population. 
 
 Farmers. 
 
 Labourers. 
 
 
 Acres. 
 
 Acres. 
 
 8 
 
 
 
 
 ^Alabama . . 
 
 6,385,724 
 
 12,718,821 
 
 175,824,622 
 
 964,201 
 
 ... 
 
 14,282 
 
 Arkansas . . 
 
 1.983,313 
 
 7.590,393 
 
 91,649,773 
 
 435,450 
 
 48,475 
 
 8,350 
 
 California . . 
 
 2,468,034 
 
 6,262,000 
 
 48,726,804 
 
 379,994 
 
 20,836 
 
 10,421 
 
 Connecticut . 
 
 1,830,807 
 
 673,457 
 
 90,830,005 
 
 460,147 
 
 30,612 
 
 11,489 
 
 Delaware . 
 
 637,065 
 
 367,230 
 
 31,426,357 
 
 112,216 
 
 7,284 
 
 4,122 
 
 Florida . . 
 
 „ 654,213 
 
 2,266,015 
 
 16,435,727 
 
 140,424 
 
 7.534 
 
 1.329 
 
 Georgia . . . 
 
 8,062,758 
 
 18,587,732 
 
 157,072,803 
 
 1,057,286 
 
 67,718 
 
 19.567 
 
 Illinois . . • 
 
 13,096,374 
 
 7,815.615 
 
 408,944,033 
 
 1.711,951 
 
 153,646 
 
 47.216 
 
 Indiana . . . 
 
 8,242,183 
 
 8,146,109 
 
 356,712,175 
 
 1,350,428 
 
 158,714 
 
 40,827 
 
 Iowa . . 
 
 3,792,792 
 
 6,277,115 
 
 "9,899.547 
 
 674,913 
 
 88,628 
 
 27,196 
 
 Kansas . 
 
 405,468 
 
 1,372,932 
 
 12,258,239 
 
 107,206 
 
 15,572 
 
 3,660 
 
 Kentucky . . 
 
 7,644,208 
 
 ",519,053 
 
 291,496,955 
 
 1,155,684 
 
 "0,937 
 
 36,627 
 
 Louisiana . . 
 
 2,707,108 
 
 6,591,468 
 
 204,789,662 
 
 768,002 
 
 14,996 
 
 5.483 
 
 Maine . . . 
 
 2,704,133 
 
 3.023,538 
 
 78,688,525 
 
 628,279 
 
 64.843 
 
 15.865 
 
 Maryland . . 
 
 3,002,267 
 
 1,833,304 
 
 145,973,677 
 
 687,049 
 
 27,696 
 
 12,920 
 
 Massachusetts . 
 
 2,155,512 
 
 1,183,212 
 
 123,255,948 
 
 1,231,066 
 
 45.204 
 
 17,430 
 
 Michigan . 
 
 3,476,296 
 
 3,554,538 
 
 160,836,495 
 
 749,113 
 
 88,657 
 
 35.884 
 
 Minnesota . 
 
 556,250 
 
 2,155.718 
 
 27,505,922 
 
 172,023 
 
 27,921 
 
 
 Mississippi . . 
 
 5,065,755 
 
 10,773.929 
 
 190,760,367 
 
 791,305 
 
 46,308 
 
 7.972 
 
 Missouri . . 
 
 6,246,871 
 
 13,737,939 
 
 230,632,126 
 
 1,182,012 
 
 124,989 
 
 39.396 
 
 New Hampshire 
 
 2,367,034 
 
 1,377,591 
 
 69,689,761 
 
 326,073 
 
 35.392 
 
 10,152 
 
 New Jersey. 
 
 1,944,441 
 
 1,039,084 
 
 180,250,338 
 
 672,035 
 
 30,325 
 
 18,429 
 
 New York . . 
 
 14,358,403 
 
 6,616,555 
 
 803,343,593 
 
 3,880,735 
 
 254.786 
 
 115,728 
 
 North Carolina 
 
 6,517,284 
 
 17,245,685 
 
 143,301,065 
 
 992,622 
 
 85,198 
 
 19,119 
 
 Ohio. . . . 
 
 12,625,394 
 
 7,846,747 
 
 678,132,991 
 
 2,339,5" 
 
 223,485 
 
 76,484 
 
 Oregon . . . 
 
 896,414 
 
 1,164,125 
 
 15,200,593 
 
 52.465 
 
 7,861 
 
 1,260 
 
 Pennsylvania . 
 
 10,463,296 
 
 6,548,844 
 
 662,050,707 
 
 2,906,215 
 
 180,613 
 
 69, 104 
 
 Rhode Island . 
 
 335.128 
 
 186,096 
 
 19,550,553 
 
 174,620 
 
 6,875 
 
 3.510 
 
 South Carolina. 
 
 4,572,060 
 
 11,623,859 
 
 139,652,508 
 
 703,708 
 
 35,137 
 
 6,312 
 
 Tennessee . 
 
 6,795,337 
 
 13,873,828 
 
 271,358,985 
 
 1,109,801 
 
 103,835 
 
 25.990 
 
 Texas . • • 
 
 2,650,781 
 
 22,693,247 
 
 88,101,320 
 
 604,215 
 
 51.569 
 
 6,537 
 
 Vermont . . 
 
 2,823,157 
 
 1,451,257 
 
 94,289,045 
 
 315.098 
 
 38,967 
 
 14,022 
 
 Virginia 
 
 11,437,822 
 
 19,679,215 
 
 371,761,661 
 
 1,596,318 
 
 108,958 
 
 30,51s 
 
 Wisconsin . . 
 
 3.746,167 
 
 4,147,420 
 
 131,117,164 
 
 775.881 
 
 93.859 
 
 31,472 
 
 Colorado | 
 
 
 
 
 
 
 
 Territory . \ 
 
 ... 
 
 
 
 34,277 
 
 195 
 
 ... 
 
 Dakota "^ 
 Territory . ) 
 
 2,115 
 
 24,333 
 
 96,445 
 
 4,837 
 
 495 
 
 ... 
 
 Nebraska ) 
 Territory . ) 
 
 118,789 
 
 512,425 
 
 3,878,326 
 
 28,841 
 
 3,982 
 
 455 
 
 Nevada ") 
 Territory . i 
 
 14.132 
 
 41,986 
 
 302,340 
 
 6,857 
 
 140 
 
 74 
 
 New Mexico " 
 Territory . ; 
 
 149,274 
 
 1,265,635 
 
 2,707,386 
 
 93.516 
 
 5,922 
 
 5,461 
 
 Utah Territory 
 
 Washington "^ 
 
 Territory . ) 
 
 77,219 
 
 12,692 
 
 1,333,355 
 
 40,273 
 
 3,832 
 
 670 
 
 81,869 
 
 284,287 
 
 2,217,842 
 
 ".594 
 
 1,653 
 
 257 
 
 District of \ 
 Columbia . S 
 
 17,474 
 
 16,789 
 
 2,989,267 
 
 75,080 
 
 246 
 
 89
 
 350 SYSTEMS OF LAND TENURE [Fisher. 
 
 The laws of the United States and the various States of the 
 United States do not differ very materially as to the method of 
 conveying real estate. 
 
 Many of the States have by special legislation defined 
 certain words, so as to simplify the mode or form of making 
 deeds of conveyance, and perhaps it will not be out of place to 
 recite at length the usual form of such a deed. 
 
 "This Deed, made the day of^ , in the year 
 
 , Between (here insert the names of the parties) Witnesseth : that in 
 
 consideration of (here state the consideration) the said_ 
 
 doth (or do) grant unto the said All &c. (here describe the 
 
 property, and insert covenants or any other provisions). 
 
 " Witness the folIo%\'ing signature and seal (or signatures and seals)." 
 
 ^ By the same legislation it is provided as follows : — 
 
 Every such deed, conveying lands, shall, unless an exception 
 be made therein, be construed to include all the estate, right, 
 title, or interest whatever, both at law and in equity, of the 
 grantor in or to such lands. 
 
 Whenever, in any deed, there shall be used the words, 
 
 "The said grantor (or the said ) releases to the 
 
 said grantee (or the said ) All his claims upon the 
 
 said lands," such deed shall be construed as if it set forth that 
 the grantor hath remised, released, and for ever quit claimed, 
 and by these presents doth remise, release, and for ever quit 
 claim unto the grantee, his heirs and assigns, all right, title, and 
 interest whatsoever, both at law and in equity, in or to the 
 lands and premises granted, or intended so to be, so that 
 neither he nor his personal representative, his heirs or assigns, 
 shall at any time hereafter have, claim, challenge, or demand 
 the said lands and premises, or any part thereof, in any manner 
 whatever. 
 
 A Deed of Lease may be made in the following form, or to 
 the same effect : — 
 
 "This Deed, made the ^day of in the year 
 
 Between (here insert the names of parties) Witnesseth : that the said 
 
 doth demise unto the said his personal 
 
 representatives and assigns, AH &c. (here describe the property) from the 
 
 day of for the term of thence ensuing, yielding 
 
 therefor during the said term the rent of (here state the rent and mode of 
 payment). 
 
 " Witness the following signature and seal." 
 
 When a deed uses the words, "the said covenants," such
 
 America.] IN VARIOUS COUNTRIES. 35 1 
 
 covenant shall have the same effect as if it was expressed to be 
 by the covenanter, for himself, his heirs, personal representa- 
 tives, and assigns, and shall be deemed to be with the 
 covenantee, his heirs, personal representatives, and assigns. 
 
 A covenant by the grantor in a deed, " that he will warrant 
 generally the property hereby conveyed," shall have the same 
 effect as if the grantor had covenanted that he, his heirs, and 
 personal representatives will for ever warrant and defend the 
 said property unto the grantee, his heirs, personal representa- 
 tives, and assigns, against the claims and demands of all persons 
 whomsoever. 
 
 A covenant by any such grantor, " that he will warrant 
 specially the pronerty hereby conveyed," shall have the same 
 effect as if the grantor had covenanted that he, his heirs, and 
 personal representatives will for ever warrant and defend the 
 said property unto the grantee, his heirs, personal representa- 
 tives, and assigns, against the claims and demands of the 
 grantor, and all persons claiming or to claim by, through, or 
 under him. 
 
 The words " with general warranty," in the granting part of 
 any deed, shall be deemed to be a covenant by the grantor 
 " that he will warrant generally the property hereby conveyed." 
 The words " with special warranty," in the granting part of any 
 deed, shall be deemed to be a covenant by the grantor " that 
 he will warrant specially the property hereby conveyed." 
 
 A covenant by the grantor in a deed for land " that he has 
 the right to convey the said land to the grantee," shall have 
 the same effect as if the grantor had covenanted that he had 
 good right, full power, and absolute authority to convey the said 
 land, with all the buildings thereon and the privileges and 
 appurtenances thereto belonging, unto the grantee, in the 
 manner in which the same is conveyed, or intended so to be by 
 the deed, and according to its true intent. 
 
 A covenant by any such grantor " that the grantee shall 
 have quiet possession of the said land," shall have as much 
 effect as if he covenanted that the grantee, his heirs, and 
 assigns might, at any and all times thereafter, peaceably and 
 quietly enter upon and have, hold and enjoy the land con- 
 veyed by the deed, or intended so to be, with all the buildings 
 thereon, and the privileges and appurtenances thereto belong- 
 ing, and receive and take the rents and profits thereof, to and 
 for his and their use and benefit, without any eviction, intemip-
 
 352 SYSTEMS OF LAND TENURE [Fisher. 
 
 tion, suit, claim, or demand whatever. If to such covenant 
 there be added "free from all incumbrances," these words 
 shall have as much effect as the words, "and that freely and 
 absolutely acquitted, exonerated, and for ever discharged, or 
 otherwise by the said grantor or his heirs, saved harmless and 
 indemnified, of, from, and against any and every charge and 
 incumbrance whatever." 
 
 A covenant by any such grantor " that he will execute such 
 further assurances of the said lands as may be requisite," shall 
 have the same eftect as if he covenanted that he, the said 
 grantor, his heirs, or personal representatives, will at any time, 
 upon any reasonable request, at the charge of the grantee, his 
 heirs, or assigns, do, execute, or cause to be done or executed, 
 all such further acts, deeds, and things for the better, more 
 perfectly, and absolutely conveying and assuring the said lands 
 and premises hereby conveyed, or intended so to be, unto the 
 grantee, his heirs, and assigns as his or their counsel, shall 
 be reasonably devised, advised, or required. 
 
 A covenant by any such grantor " that he has done no act 
 to incumber the said lands," shall have the same effect as if he 
 covenanted that he had not done or executed, or knowingly 
 suffered any act, deed, or thing whereby the lands and 
 premises conveyed, or intended so to be, or any part thereof, 
 are, or will be charged, affected, or incumbered in title, estate, 
 or otherwise. 
 
 In a Deed of Lease, a covenant by the lessee " to pay the 
 rent," shall have the effect of a covenant that the rent reserved 
 by the deed shall be paid to the lessor, or those entitled under 
 him, in the manner therein mentioned : and a covenant by 
 him "to pay the taxes," shall have the effect of a covenant 
 that all taxes, levies, and assessments upon the demised 
 premises, or upon the lessor on account thereof, shall be paid 
 by the lessee, or those claiming under him. 
 
 In a Deed of Lease, a covenant by the lessee that " he 
 will not assign without leave," shall have the same effect as a 
 covenant that the lessee will not, during the term, assign, 
 transfer, or set over the premises, or any part thereof, to any 
 person, without the consent in writing of the lessor, his repre- 
 sentatives, or assigns : and a covenant by him that " he will 
 leave the premises in good repair," shall have the same effect 
 as a covenant that the demised premises will, at the expira- 
 tion, or other sooner determination of the term, be peaceably
 
 Amfkica.] in various COUNTRIES. 353 
 
 surrendered and yielded up unto the lessor, his representatives, 
 or assigns, in good and substantial repair and condition, reason- 
 able wear and tear excepted. 
 
 No covenant or promise by a lessee that he will leave the 
 premises in good repair, shall have the effect if the buildings 
 are destroyed by fire or otherwise, without fault or negligence 
 on his j)art, or of binding him to erect such buildings again, 
 unless there be other words, showing it to be the intent of the 
 parties that he should be so bound. 
 
 A covenant by a lessor " for the lessee's quiet enjoyment 
 of his term," shall have the same effect as a covenant that the 
 lessee, his personal representatives, and lawful assigns paying 
 the rent reserved, and performing his or their covenants, shall 
 peaceably possess and enjoy the demised premises for the term 
 granted, without any interruption or disturbance from any 
 person whatever. 
 
 And if in a Deed of Lease it be provided that " the lessor 
 may re-enter for default of days in the payment of rent, 
 
 or for the breach of covenants," it shall have the effect of an 
 agreement that if the rent reserved, or any part thereof, be un- 
 paid for such number of days after the day on which it ought 
 to have been paid, or if any of the other covenants on the part 
 of the lessee, his personal representative, or assigns, be broken, 
 then, in either of such cases, the lessor, or those entitled in his 
 place at any time afterwards, into and upon the demised 
 l)remises, or any part thereof, in the name of the whole, may 
 re-enter, and the same again have, repossess, and enjoy, as of 
 his or their former estate. 
 
 All deeds are valid between the parties, whether recorded 
 or not, but void as to creditors and other purchasers, unless re- 
 corded in the town, county, or district in which the land 
 intended to be conveyed may be situated. 
 
 The records touching a lot or parcel of land, exhibited by 
 the books of the registry office where situated, and of which 
 authenticated certificates are readily procurable for a small fee, 
 are always held to be good evidence of ownership, even in tlie 
 absence of the Deeds of Conveyance themselves. 
 
 The ordinary fee charged for preparing simple leases or 
 deeds is from one to two dollars (say from 4s. to 8s.), and fifty 
 cents (or 2s.) for recording a deed. 
 
 The laws governing the distribution of land belonging to 
 the estates of intestates are not exactly the same in each State, 
 
 X
 
 354 SYSTEMS OF LAND TENURE [Fjsher. 
 
 yet, upon examination of the laws of the various States, it will 
 be found that there is but slight difference, and the distribution 
 or division of such estates is made between and among the 
 children, both male and female, in equal proportions, and the 
 representatives of a deceased child — such representatives of a 
 deceased child taking only such portion as the parent would 
 have taken if living. And when the estate is inconsiderable, 
 or when it cannot be divided without great injury, that is to 
 say, when partition would materially lessen its value, the Court 
 having jurisdiction may decree the whole or any part of the 
 land to one of the heirs, who would be called upon to pay such 
 sum of money to the others as Commissioners appointed by 
 the Court should deem to be just and fair. When it is con- 
 sidered advisable that the land be so decreed to any one of 
 the heirs, the eldest male is to be preferred to the others, and 
 the males to the females. I believe this to be a wise discretion, 
 which is possessed by the various Probate Courts ; and it is 
 generally a matter of agreement among all interested in the 
 estate — which of the heirs shall take the land, and how much 
 money the heir so taking shall pay to the others for their 
 shares. 
 
 The widow, if any, is entitled to the use of one-third of all 
 the real estate during her lifetime, which may be set out or 
 apportioned to her by Commissioners whom the Court ap- 
 point for that purpose. She is also entitled to such proportion 
 of the personal estate as the Court may assign to her, for her 
 own absolute use ; and this assignment is not to be less than 
 one-third of the value of all that may remain, after the jDayment 
 of the debts of the intestate. 
 
 This method of distributing estates tends to prevent large 
 holdings, as at the death of any large holder his estate would, 
 in almost all instances, be divided amongst those who might 
 come after him ; and, in cases of small farms, by the provisions 
 of the law already referred to, injurious subdivisions are 
 avoided. Again, although all the children of a landholder 
 would share in the division of the estate, yet if the old home- 
 stead were insufficient to provide each with a form, those who 
 might receive their share in money would have the wherewitlia! 
 to assist them to acquire new lands in the great West, or in 
 other ways to make homes for themselves. 
 
 In Virginia, and in other parts of the South, very large 
 grants of land were made before the organisation of the United
 
 America.] IN VARIOUS COUNTRIES. 355 
 
 States, and at a time when lands were of inconsiderable \-alue, 
 which grants have been farmed as plantations, and with slave 
 labour. Before the late war, although the children of an intes- 
 tate shared equally in the distribution of such an estate, yet it 
 was customary for some of them, by purchase, to become the 
 owner of the whole estate, or else it was sold in block to any 
 purchaser who might be found, and the proceeds equally 
 divided. 
 
 With slave labour, such products as cotton, tobacco, rice, 
 &c., could only be grown with advantage upon large plantations ; 
 and the Southern States, with these large holdings, and only 
 slave labour for their cultivation, although more favoured by 
 nature, have, it appears to my mind, not made the rapid pro- 
 gress of the Western and Middle States, with their smaller 
 holdings of land. Since the abolition of slavery and the sub- 
 stitution of free and skilled w^iite labour, I incline to the 
 opinion that smaller holdings will hereafter be found the rule 
 in the South, and in fact I am aware that many large planta- 
 tions have recently been parcelled into several farms with a 
 view to their being worked in accordance with the altered 
 circumstances of the South. 
 
 Foreigners may buy and hold land in the United States, 
 upon being naturalised (or upon filing, in the office of the clerk 
 of the proper Court, a declaration of intention of becoming 
 naturalised), the same as a native-born citizen ; and in some 
 few States, such as Georgia, Wisconsin, &c., aliens may hold 
 land. 
 
 Of the emigrant settlers, those from Ireland, in many 
 instances, make good and thrifty farmers, and acquire con- 
 siderable property ; but still a large proportion of the Irish are 
 always to be found among the labouring population. Their 
 qualifications for making good settlers are not so rare as might 
 be generally supposed by an eye-witness of the agricultural per- 
 formances of many small Irish tenant-farmers in their native 
 land. 
 
 In America, industry and hard work, when directed to the 
 cultivation of land, offer greater rewards than in Ireland; and 
 this fact appears to have a marked effect upon many an Irish 
 emigrant. Again, a description of husbandry which an English 
 well-to-do farmer might consider slovenly, is, perhaps, as well 
 calculated to make profit out of a newly-cleared farm as a more 
 careful system would be ; and so even a comparatively ignorant
 
 356 SYSTEMS OF LAND TENURE [Fisher. 
 
 man may, by turning his attention to farming, surely reap a 
 good return, and ultimate independence, provided he devote 
 himself with diligence to the work. And with such examples 
 before him the newly-arrived emigrant is constantly stimulated 
 to exertion in a similar direction. I could point to many 
 instances in the State of Vermont, and in otliers, where a com- 
 paratively ignorant and penniless Irish emigrant had, almost 
 immediately after arrival, arranged for the purchase, on time, 
 of a lot of land ; then worked as a labourer until he had got 
 together a few dollars to purchase implements, seed, and a 
 little food, the latter in the shape of a barrel of flour, some salt 
 pork, tea, &c., forming suflicient for one season, and who had, 
 without any other aid, managed to struggle on until a succes- 
 sion of harvests found him a rich man in comparison with his 
 former condition. The feeling of " becoming one's own land- 
 lord," of " owning the fee-simple of land," is one that has been 
 spoken of, in my hearing, by this class of persons, and appears 
 to me to be calculated to afford, and does afford, great indi- 
 vidual gratification, and must at the same time act as a strong 
 incentive to exertion in the right direction ; and I would say, 
 further, that I believe it to be the first great ambition of every 
 Irish emigrant to become the owner of real estate. Even 
 many who continue to work as labourers for years after their 
 arrival in the country will constantly speak of a time when 
 they hope to have a farm of their own — a hope which, it may 
 be, from the cultivation of habits which debar the accumulation 
 of capital sufficient, or from other causes, they are delayed or 
 prevented from realising ; and then, after time elapses, perhaps, 
 influenced by a feeling of contentment with the present, they 
 may, and, I regret to say, occasionally do, augment that no 
 inconsiderable class called " loafers, " who live a hand-to-mouth 
 sort of existence. 
 
 In the Eastern and Middle States the farms are not large. 
 The average I believe to consist of from fifty to two hundred 
 acres of land, and many of even less extent. 
 
 Land in most States is valued by properly -appointed 
 assessors once in five years, for the purposes of taxation ; and 
 before the late war the tax upon land was light, being raised 
 for local and school purposes only. Even now I believe it is 
 not more than one per cent, upon the appraised value of land. 
 
 The following extracts from the statutes of some of the 
 various States, in regard to descent and distribution of land,
 
 America.] IN VARIOUS COUNTRIES. 357 
 
 may be taken as a sample of the statutes of the others upon the 
 same subjects. 
 
 Extract from General Laws, United States. 
 
 Ordinance of Cous^resr {si/iins^ under the Ai-ticles of Confederatioti) for the 
 Gji'crnment of the Territory of the United States north-west of the 
 River Ohio, passed 13 July, 1787. 
 
 1. Be it ordained by tlie United States in Congress assembled, 
 That, &c. 
 
 2. Be it ordained by the authority aforesaid. That the estates both of 
 resident and non-resident proprietors in the said territory, dying intestate, 
 shall descend to, and be distributed among their children, and the 
 descendants of a deceased child in equal parts, the descendants of a 
 deceased child or gi-andchild to take the share of their deceased parent in 
 equal parts among them ; and where there shall be no children or 
 descendants, then in equal parts to the next of kin, in equal degree ; and 
 among collaterals, the children of a deceased brother or sister of the 
 intestate shall have, in equal parts among them, their deceased parent's 
 share ; and there shall in no case be a distinction between kindred of the 
 whole and half blood ; saving in all cases to the widow of the intestate her 
 third j^art of the real estate for life. 
 
 State of Massachusetts. 
 
 Extract from Lazvs relating to Descent and Distribution of Real 
 Estate. Chap. 91. 
 
 Section i. — When a person dies seised of land, tenements, or heredita- 
 ments, or of any right thereto, or entitled to any interest therein, in fee 
 simple or for the life of another, not having lawfully devised the same, they 
 shall descend, subject to his debts (except as provided in chapter one 
 hundred and four), in manner follo\\'ing : 
 
 First. — In equal shares to his children and the issue of any deceased 
 child by right of representation ; and if there is no child of the intestate 
 living at his death, then to all his other lineal descendants ; if all the 
 descendants are in the same degree of kindred to the intestate, they shall 
 share the estate equally ; otherwise they shall take according to the right of 
 representation. 
 
 Second. — If he leaves no issue, then to his father. 
 
 Third. — If he leaves no issue nor father, then in equal shares to his 
 mother, brothers, and sisters, and to the children of any deceased brother 
 or sister by right of representation. 
 
 Fourth. — If he leaves no issue, nor father, and no brother nor sister, 
 living at his death, then to his mother to the exclusion of the issue, if any, 
 of deceased brothers or sisters. 
 
 Fifch. — If he leaves no issue, and no father, mother, brother, nor sister, 
 then to his next of kin in equal degree ; except that when there are two or 
 more collateral kindred in equal degree, but claiming through different 
 ancestors, those who claim through the nearest ancestors shall be prelerred 
 to those claiming through an ancestor who is more remote.
 
 358 SYSTEMS OF LAND TENURE [Fisher. 
 
 Provided, 
 
 Sixth. — If a person dies leaving several children, or leaving one child 
 and the issue of one or more others, and any such surviving child dies 
 under age and not having been married, all the estate that came to the 
 deceased child by inheritance from such deceased parent shall descend in 
 equal shares to the other children of the same parent, and to the issue of 
 any such other children who have died, by right of representation. 
 
 Seventh. — If at the death of such child who shall have died under age 
 and not having been married, all the other children of his said parent are 
 niso dead, and any of them have left issue, the estate that came to such 
 child by inheritance from his said parent shall descend to all the issue of 
 the other children of the same parent ; and if all the issue are in the same 
 degree of kindred to the child, they shall share the estate equally ; other- 
 wise they shall take according to the right of representation. 
 
 Eighth. — If the intestate leaves a widow and no kindred, his estate shall 
 descend to his widow ; and if the intestate is a married woman and leaves 
 no kindred, her estate shall descend to her husband. 
 
 Ninth. — If the intestate leaves no kindred, and no widow or husband, 
 his or her estate shall escheat to the Commonwealth. 
 
 Section 2. — An illegitimate child shall be heir of his mother and any 
 maternal ancestor, and the lawful issue of an illegitimate person shall 
 represent such person and take by descent any estate which the parent 
 would have taken if living. 
 
 Section 3. — If an illegitimate child dies intestate, without lawful issue, 
 his estate shall descend to his mother. 
 
 Section 4. — An illegitimate child whose parents have intermarried, 
 and whose father has acknowledged him as his child, shall be considered 
 legitimate. 
 
 Section 5. — The degrees of kindred shall be computed according to the 
 rules of the civil law ; and the kindred of the half blood shall inherit 
 equally -with those of the whole blood in the same degree. 
 
 Section 6. — Any estate, real or personal, given by the intestate in 
 his lifetime as an advancement to any child or other lineal descendant, 
 shall be considered as part of the intestate's estate, so far as it regards 
 the division and distribution thereof among his issue, and shall be taken 
 by such child or other descendant towards his share of the intestate's 
 estate ; but he sliall not be required to refund any part thereof, although 
 it exceeds his share. 
 
 Section 7. — If such advancement is made in real estate, the value thereof 
 .shall be considered as part of the real estate to be divided ; if it is in 
 personal estate it shall be considered as part of the personal estate ; and if 
 in either case it exceeds the share of real or personal estate respectively 
 that would have come to the heir so advanced, die shall not refund any part 
 of it, but shall receive so much less out of the other part of the estate as 
 will make his whole share equal to those of the other heirs who are in the 
 same degree with him. 
 
 Section S. — Ail gifts and grants shall be deemed to have been made in 
 advancement, if they are expressed in the gift or grant to be so made, 
 or if charged in writing ])y the intestate as an advancement, or acknow- 
 leged in writing as such by the child or other descendant. 
 
 Section 9. — -If the value of the estate so advanced is expressed in the 
 conveyance, or in the charge thereof made by the iutestate, or in the
 
 America.] IN VARIOUS COUNTRIES. 359 
 
 acknowledgment by the party receiving it, it shall be considered as of that 
 value in the division and distribution of the estate ; otherwise it shall be 
 estimated according to its value when given. 
 
 Section lo. — If a child or other lineal descendant so advanced dies 
 before the intestate, leaving issue, the advancement shall be taken into 
 consideration in the division and distribution of the estate ; and the 
 amount thereof shall be allowed accordingly by the representatives of the 
 heir so advanced, as so mucli received towards their share of the estate, in 
 like manner as if the advancement had been made directly to them. 
 
 Section li. — Nothing contained in this Chapter shall affect the title of 
 a husband as tenant by the courtesy, nor that of a widow as tenant in 
 dower, nor her right to any j^art of the real estate of her husband given to 
 her by law in lieu of dower. 
 
 Section 12. — Inheritance or succession, "by right of representation," 
 takes place when the descendants of a deceased heir take the same share 
 or right in the estate of another person that their parent would have taken 
 if living. Posthumous children are considered as living at the death 
 of their parent. 
 
 Massachusetts. 
 Homestead Law. — Chap. 104. 
 
 Section I. — Every householder having a family shall be entitled to an 
 estate of homestead, to the extent in value of eight hundred dollars, in the 
 farm or lot of land and buildings thereon owned, or rightly possessed by 
 lease, or otherwise, and occupied by him as a residence ; and such home- 
 stead and all right and title therein shall be exempt from attachment, levy, 
 or execution, sale for the payment of his debts, or other purposes, and 
 from the law of conveyance, descent, and devise, except as hereinafter 
 provided. 
 
 Section 2. — To constitute such estate of homestead and to entitle 
 property to such exemption, it shall be set forth in the deed of conveyance 
 by which the property is acquired, that it is designed to be held as a home- 
 stead ; or after the title has been acquired, such design shall be declared 
 by writing, duly signed, sealed, acknowledged, and recorded, in the 
 registry of deeds for the county or district where the property is situated. 
 But the acquisition of a new estate of homestead in either of said modes, 
 shall operate to defeat and discharge any estate or right of homestead 
 previously existing. 
 
 Pen.\sylvani.\. 
 Law regulating Descent and Distribution of Real Estate. 
 
 The real and personal estate of a decedent, whether male or female, 
 remaining after payment of all just debts and legal charges, which shall not 
 have been sold or disposed of, by will, or otlierwise limited by marriage 
 settlement, shall be divided and enjoyed as follows, viz. : — 
 
 Where such intestate shall leave a widow and issue, llie widow shall be 
 entitled to one-third of the real estate for the term of her life, and to one- 
 third of the personal estate absolutely.
 
 360 SYSTEMS OF LAND TENURE [Fisher. 
 
 Where such mtestate shall leave a widow and collateral heirs, or other 
 kindred, but no issue, the widow shall be entitled to one-half part of the 
 real estate, including the mansion-house and buildings appurtenant 
 thereto, for the term of her life, and to one-half part of the personal estate 
 absolutely. 
 
 Where such intestate shall leave a husband, he shall take the whole 
 personal estate, and the real estate shall descend and pass as hereinafter 
 provided, saving to the husband his right as tenant by the courtesy which 
 shall take place, although there be no issue of the marriage, in all cases 
 where the issue, if any, would have inherited. 
 
 The real estate of such married woman, upon her decease, shall be 
 distributed as provided for by the intestate laws of this commonwealth 
 now in force. . . . Subject to the estates and interests hereinbefore 
 given to the widow or surviving husband, if any, the real estate of such 
 intestate shall descend to and be distributed among his issue, according 
 to the following rules and order of succession, viz. : — 
 
 If such intestate shall leave children, but no other descendant, being the 
 issue of a deceased child, the estate shall descend to^ and be distributed 
 among, such children. 
 
 If such intestate shall leave grandchildren, but no child or other 
 descendant being the issue of a deceased grandchild, the estate shall descend 
 to, and be distributed among, such grandchildren. 
 
 If such intestate shall leave descendants in any other degree of con- 
 sanguinity to him, the estate shall descend to, and be distributed among, 
 such descendants. 
 
 If such intestate shall leave descendants in different degrees of con- 
 sanguinity to him, the more remote of them being the issue of a deceased 
 child, grandchild, or other descendants, the estate shall descend to and 
 be distributed among them as follows, viz. : — 
 
 Each of the children of such intestate shall receive such share as 
 such child would have received, if all the children of the intestate who 
 shall then be dead, leaving issue, had been living at the death of the 
 intestate. 
 
 Each of the grandchildren, if there shall be no children, in like 
 manner shall receive such share as he or she would have received if all 
 the other grandchildren who shall then be dead, leaving issue, had been 
 living at the death of the intestate, and so on in like manner to the 
 remotest degree. 
 
 In every such case, the issue of such deceased child, grandchild, or 
 other descendant, shall take, by representation of their parents, respec- 
 tively, such share only as would have descended to such parent, if they 
 had been living at the death of the intestate. 
 
 It is the true intent and meaning of this Act, that the heir at common 
 law shall not take in any case, to the exclusion of other heirs and 
 kindred standing in the same degree of consanguinity with him to the 
 intestate ; and it is hereby declared, that in every case whicli may arise, 
 not expressly provided for by this Act, tlie real as well as the personal 
 estate of an intestate shall pass to and be enjoyed by the next of kin 
 of such intestate, without regard to his ancestor, or other relation, from 
 whom such estate may have come.
 
 America.] IN VARIOUS COUNTRIES. 361 
 
 Wisconsin. 
 
 Laiu relating to Descent of Real Estate. — Chap. 92. 
 
 Section i. — When any person shall die, seised of any lands, tene- 
 ments, or hereditaments, or of any right thereto, or entitled to any 
 interest therein, in fee-simple or for the life of another, not havinj^ lawfully 
 devised the same, they shall descend, subject to his debts, in manner 
 following : — 
 
 1. In equal shares to his children, and to the lawful issue of any deceased 
 child by right of representation ; and if there be no child of the intestate 
 living at his death, his estate shall descend to all his other lineal descend- 
 ants ; and if all the said descendants are in the same degree of kindred to 
 the intestate, they shall share the estate equally, otherwise they shall take 
 according to the right of representation. 
 
 2. If he shall leave no issue, his estate shall descend to his widow 
 during her natural lifetime, and after her decease to his father ; and if he 
 shall leave no issue or widow, his estate shall descend to his father. 
 
 3. If he shall leave no issue nor father, his estate shall descend to his 
 widow during her natural life, and after her decease in equal shares to his 
 brothers and sisters, and to the children of any deceased brother or sister, 
 by right of representation : provided, that if he shall leave a mother, she 
 shall take an equal share with his brothers and sisters. 
 
 4. If he shall leave no issue, nor widow, nor father, his estate shall 
 descend in equal shares to his brothers and sisters, and to the children of 
 any deceased brother or sister, by right of representation : provided, that if 
 he shall leave a mother also, she shall take an equal share with his brothers 
 and sisters. 
 
 5. If the intestate shall leave no issue, nor widow, nor father, and no 
 brother nor sister, living at his death, his estate shall descend to his mother, 
 to the exclusion of the issue, if any, of deceased brothers or sisters. 
 
 6. If the intestate shall leave no issue, nor widow, and no father, 
 mother, brother, nor sister, his estate shall descend to his next of kin in 
 equal degree, excepting when there are two or more collateral kindred in 
 equal degree, but claiming through different ancestors, those who claim 
 through the nearest ancestor shall be preferred to those claiming through 
 an ancestor more remote : provided, however : — 
 
 7. If any person shall die, leaving several children, or leaving one child, 
 and the issue of one or more other children, and any such surviving child 
 shall die under age, and not having been married, all the estate that came 
 to the deceased child by inheritance from such deceased parent shall descend 
 in equal shares to the other children of the same parent, and to the issue of 
 any such other children who shall have died, by right of representation. 
 
 8. If, at the death of such child who shall die under age, and not 
 having been married, all the other children of his said parent shall also be 
 dead, and any of them shall have left issue, the estate that came to said 
 child by inheritance, from his said parent, shall descend to all the issue of 
 other children of the same parent, and if all the said issue are in the same 
 degi-ee of kindred to said child, they shall share the said estate equally ; 
 otherwise, they shall take according to the right of representation. 
 
 9. If the intestate shall leave a widow, and no kindred, his estate shall 
 descend to such widow.
 
 362 SYSTEMS OF LAND TENURE [Fisher. 
 
 State of Illinois. 
 Extract of Law relating to Descent of Estates. 
 
 Section 46. — Estates, both real and personal, of resident or non-resi- 
 dent proprietors in this State, dying intestate, or whose estates, or any part 
 thereof, shall be deemed and taken as intestate estate, and after all just 
 debts and claims against such estates shall be paid as aforesaid, shall 
 descend to, and be distributed to his or her children, and their descendants 
 in equal parts ; the descendants of a deceased child or grandchild taking 
 the share of their deceased parent in equal parts among them ; and when 
 there shall be no children of the intestate, nor descendants of such children, 
 and no widow, then to the parents, brothers, and sisters of the deceased 
 person and their descendants in equal parts among them ; allowing to each 
 of the parents, if living, a child's part, or to the survivor of them, if one 
 be dead, a double portion ; and if there be no parent living, then to the 
 brothers and sisters of the intestate and their descendants. Vv'hen there 
 shall be a widow and no child or children or descendants of a child or 
 children of the intestate, then, the one-half of the real estate, and the whole 
 of the personal estate shall go to such widow, as her exclusive estate for 
 ever ; subject to her absolute disposition and control to be governed in all 
 respects by the same rules and regulations as are or may be provided in 
 cases of estates of femes sole ; if there be no children of the intestate or 
 descendants of such children, and no parents, brothers, or sisters, or 
 descendants of brothers and sisters, and no widow, then such estate shall 
 descend in equal parts to the next of kin to the intestate, in equal degree, 
 computing by the rules of the civil law ; and there shall be no representa- 
 tion among collaterals, except with the descendants of the brothers and 
 sisters of the intestate ; and in no case shall there be a distinction between 
 the kindred of the whole and the half blood, saving to the widow, in all 
 cases, her dower, as provided by law. 
 
 Section 47. — ^Yhen any feme covert shall die intestate, leaving no child 
 or children, or descendants of a child or children, then the one-half of the 
 real estate of the decedent shall descend and go to her husband, as his 
 exclusive estate for ever. 
 
 Section 51. — Where any of the children of a person dying intestate, or 
 their issue, shall have received from such intestate in his or her lifetime, any 
 real or personal estate, by way of advancement, and shall desire to come 
 into the partition or distribution of such estate with the other parceners or 
 distributees, such advancement, both of real and personal estate, shall be 
 brought into hotchpot with the whole estate, real and personal, of such in- 
 testate ; and every j)crson so returning such advancement as aforesaid, 
 shall, thereupon, be entitled to his or her just proportion of said estate. 
 
 Section 52. — If any man shall have one or more children by any 
 woman whom he shall afterward marry, such child or children, if acknow- 
 ledged by the man, shall, in virtue of such marriage and acknowledgment, 
 be thereby legitimated, and capable in law to inherit and transmit in- 
 heritance as if burn in wedlock. 
 
 Section 53. — If any single or unmarried woman, having estate, either 
 real or personal, in her own right, shall hereinafter die leaving one or more 
 children, deemed in law illegitimate, such child or children shall not on that 
 account be disinherited ; Init they and each of them, and their descendants, 
 shall be deemed able and capable in law to take and inherit the estate of
 
 America.] IN VARIOUS COUNTRIES. 363 
 
 their deceased mother, in equal parts among them, to the exclusion of all 
 other persons : provided, that if there shall be no such child or children, 
 or their descendants, then and in such case the estate of the intestate shall 
 be governed by the rules of descent, as in other cases where illegitimates 
 are excluded. 
 
 Section 54. — In all cases where any person shall die intestate, leaving 
 real or personal estate in this State, and a child or children, commonly 
 called posthumous children, shall be born unto him after his decease, 
 within the usual time prescribed by law, such child or children shall come 
 in for their just proportion of said estate, in all respects as though he, she, 
 or they had been bom in the lifetime of the intestate. 
 
 Section 128. — Where any heir of an intestate has received money, goods, 
 chattels, or real estate from such intestate, if the amount so received shall 
 be charged to such heir by said intestate, the same shall be taken into com- 
 putation in making distribution of the estate upon being brought into 
 hotchpot as aforesaid : provided, that an heir who has received from the 
 intestate more than his share shall in no case be required to refund. 
 
 State of Kansas. — Chapter So. 
 Extract of Law relating to Descents and Distribution. 
 
 Section 5. — One-half in value of all the real estate in which the 
 husband at any time during the marriage had a legal or equitable interest, 
 wliich has not been sold on execution or other judicial sale, or to which the 
 wife has made no relinquishment of her rights, or which may not be 
 necessary for the payment of the debts of the deceased husband, shall, 
 under the direction of the Court, be set apart by the executor as her pro- 
 perty in fee-simple, upon the death of the husband, if she survives him. 
 Continuous cohabitation as husband and wife, is presumptive evidence of 
 marriage for the purpose of giving the right aforesaid. 
 
 Section 6. — Such share shall be so set off as to include the ordinary 
 dwelling-house, and the land given by law to the husband as a homestead, 
 or so much thereof as will be equal to tlie share allotted to her by the last 
 section, unless she prefers a different arrangement. But no different 
 arrangement shall be permitted where it would have the effect of pre- 
 judicing the rights of creditors. 
 
 Section 7. — The share thus allotted to her may be set of? by the mutual 
 consent of all the parties interested, when such consent can be obtained, or 
 it may be set off by referees appointed by the Court. 
 
 Section 8. — The application for such admeasurement by referees may 
 be made at any time after twenty days and within ten years after the 
 death of the husband, and must specify the jjarticular tracts of land in 
 which she claims her portion, and ask the appointment of referees. 
 
 Section 9. — The Court shall fix the time for making the appointment 
 and direct such notice thereof to be given to all the parties interested 
 therein as it deems proper. 
 
 Section 10. — The referees may employ a surveyor, if necessary, and 
 they must cause the widow's share to be marked off by metes and bounds, 
 and make a full report of their proceedings to the Court as early as 
 practicable.
 
 364 SYSTEMS OF LAND TENURE [Fisher. 
 
 Section 11. — The Court may require a report by such a time as it deems 
 reasonable ; and if the referees fail to obey this, or any other order of the 
 Court, it may discharge them, and appoint others in their stead, and may 
 impose on them the payment of all costs previously made, unless they show 
 good cause to the contrary. 
 
 Section 12. — The Court may confirm the report of the referees, or it 
 may set it aside, and refer the matter to the same or other referees, at its 
 discretion. 
 
 Section 13. — -Such confirmation after the lapse of thirty days, unless 
 appealed from according to law, shall be binding and conclusive as to the 
 admeasurement, and she may bring suit to obtain possession of the land 
 thus set apart for lier. 
 
 Section 14. — Nothing in the last section shall prevent any person in- 
 terested from controverting the general rights of the widow to the portion 
 thus admeasured. 
 
 Section 15. — The widow's portion cannot be affected by any will of her 
 husbraid if she objects thereto, and relinquishes all rights conferred upon 
 her by the Will. 
 
 Section 16. — Sul)ject to the rights and charges hereinbefore con- 
 templated, the remaining estate of which the decedent died seised, shall, 
 in the absence of other arrangements by Will, descend in equal shares to 
 his children. 
 
 Section 17. — If anyone of his children be dead, the heirs of such child 
 shall inherit his share, in accordance with the rules herein prescribed, in 
 the same manner as though such child had outlived his parent. 
 
 Section 18. — If the intestate leaves no issue, the whole of his estate 
 shall go to his wife ; and if he leaves no wife nor issue, the whole shall go 
 to his father. 
 
 Section 19. — If his father be previously dead, the portion which would 
 have fallen to his share by the above rules shall be disposed of in the same 
 manner as though he had outlived the intestate, and died in the possession 
 and ownership of the portion thus falling to his share, and so on through 
 each ascending ancestor and his issue, unless heirs are sooner found. 
 
 Section 20. — If heirs are not found in the male line, the portion thus 
 inherited shall go to the mother of the intestate, and to her heirs, following 
 the same rules as above prescribed. 
 
 Section 21. — If heirs are not thus found, the portion uninherited shall 
 go to the wife of the intestate, or to her heirs, if dead, according to lii^e 
 rules ; and if he has had more than one wife, who either died or survived 
 in lawful wedlock, it shall he equally divided between the one who is 
 living and the heirs of those who are dead, or between the heirs of all 
 if all are dead, such heirs taking by right of representation. 
 
 Section 22. — Jf, still, there be property remaining uninlieritcd, it 
 shall escheat to the territory. 
 
 Secti'jn 23. — Illegitimate children inherit from the mother, and the 
 mother from tiie children. 
 
 Section 24. —They also inherit from the father whenever they have 
 been recognised by him as his children ; but such recognition must have 
 been general and notorious, or else in writing. 
 
 Section 25. — Under such circumstances, if the recognition of relation- 
 ship has been mutual, the father may inherit from his illegitimate cliild. 
 
 Section 26. — But in thus inheriting from an illegitimate child, the rule
 
 America.] IN VARIOUS COUNTRIES. 365 
 
 above established must be inverted so that the mother and lier heirs 
 fake preference of the father and his heirs, the father having the same 
 riglit of inheritance in regard to an illegitimate child that the mother 
 has in regard to one that is legitimate. 
 
 Section 27. — -Property given by an intestate, by way of advancement to 
 an heir, sliall be considered part of the estate, so far as regards the 
 division and distribution thereof, and shall be taken by such heir towards 
 his share of the estate, at wliat it would now be worth if in the condition 
 in which it was so given to liim. 
 
 Section 28. — -But if such advancement exceeds the amount to which 
 he would be entitled, he cannot be required to refund any portion thereof. 
 
 Section 29. — All the provisions hereinbefore made, in relation to the 
 widow of a deceased husband, shall be applicable to the husband of a 
 deceased wife. Each is entitled to the same rights or portion in the 
 estate of tlie other, and Mce interests shall in the same manner descend 
 to their respective heirs. The estate of dower and by courtesy are 
 hereby abolished. 
 
 Section 30. — Children of the half-blood shall inherit equally A\-ith 
 children of the whole blood. Children of a deceased parent inherit in 
 e(|ual proportions the portion their fatlier or mother would have inherited, 
 if living. 
 
 State of Georgia. — Chap. 3. Article i. 
 
 Extract of Laws rdating to Inheritable Property end the relative rights 0/ the 
 Heirs and Administrator. 
 
 2451. Upon the death of the owner of any estate, in realty or 
 negroes, which estate survives him, the title vests immediately in his 
 heirs-at-law. The title to all other proj^erty owned ])y him vests in the 
 administrator of his estate for the benefit of the heirs and creditors. 
 
 2452. The following rules shall determine who are the heirs-at-law 
 of a deceased person : — 
 
 1. The husband is sole heir of his intestate wife. 
 
 2. If the intestate dies without children, or the descendants of children, 
 leaving a wife, the wife is his sole heir. 
 
 3. If there are children, or those representing deceased children, the 
 wife shall have a third part, unless the shares exceed five in number, 
 in which case the wife shall have one-fifth part of the estate. If the wife 
 elects to take her dower, she has no farther interest in the realty. 
 
 4. Children stand in tjie first degree from the intestate, and inherit 
 equally all property of every description, accounting for advancements, as 
 hereinafter explained. Posthumous children stand upon the same footing 
 with children in being upon all questions of inheritance. The lineal 
 descendants of children stand in the place of their deceased parents ; and 
 in all cases of inheritance from a lineal ancestor, the distribution is per 
 stirpes and not per capita. 
 
 5. Brothers and sisters of the intestate stand in the second degree, and 
 inherit, if there is no widow, or child, or representative of child. Tlie half- 
 blood on the paternal side inherit equally with the whole blood. If there 
 is no brother or sister of the whole or half-blood on the paternal side, then 
 those of the half-blood on the maternal side shall inherit. The children or
 
 366 SYSTEMS OF LAND TENURE. [Fisher. 
 
 grandchildren of brothers and sisters deceased shall represent and stand in 
 the place of their deceased parents, but there shall be no representation 
 farther than this among collaterals. 
 
 6. The father, if living, inherits equally with brothers and sisters, and 
 stands in the same degree. If there be no father, and the mother is alive, 
 and a widow, she shall inherit in the same manner as the father would. If 
 the mother is not a widow, she shall not be entitled to any portion of such 
 estate, unless it shall be that of the only or last surviving child of the 
 mother, in which event she shall take as if married. 
 
 7. In all degrees more remote than the foregoing, the paternal and 
 maternal next of kin shall stand on an equal footing. 
 
 8. First cousins stand next in degree ; uncles and aunts inherit equally 
 with cousins. 
 
 9. The more remote degrees shall be determined by the rules of the 
 canon law, as adopted and enforced in the English courts prior to the fourth 
 day of July, a.d. 1776. 
 
 2453. ^Vhenever any feme covert, having a child or children by a 
 former marriage, is, or becomes, entitled to property, by inheritance, at 
 any time, or devise, antecedent in date to her last marriage, and not in 
 trust, the possession of which is not obtained prior to such marriage, such 
 property shall not belong to the husband of such feme covert, but shall be 
 equally divided between all the children of such feme covert, living at the 
 time when possession is obtained, and such feme covert. The portions of 
 such feme covert, and her children by her last husband, shall alone be 
 subject to be reduced to possession by, and the title vest in, such husband.
 
 3^7 
 
 IX. 
 
 THE LAW AND CUSTOM OF PRIMOGENITURE. 
 By the Hon. George C. Brodrick. 
 
 The right of Primogeniture, the most distinctive feature of the 
 Enghsh family system, is partly the creation of law, and partly 
 the growth of custom. It is the growth of custom, so far as it 
 has its origin in the voluntary action of feudal lords in making 
 grants of land to be held by knight-service, and so far as it 
 now depends on the preference given by parents to eldest sons 
 in wills and settlements of property. It is the creation of law, 
 so far as it is the fixed rule of succession to landed estates in 
 case of intestacy ; and so far, moreover, as the custom which 
 prevails in Avills and settlements has been determined or 
 favoured by the law. The practice of entailing, which is often 
 associated or confounded with the right of Primogeniture, is 
 theoretically quite independent of that right, since it would 
 be as easy and as consistent with legal principles to entail an 
 estate upon the youngest son as to entail it upon the eldest 
 son. Again, the power of settling is theoretically altogether 
 distinct from the power of entaihng, since it extends to per- 
 sonalty as well as to land, and might be employed to keep 
 land tied up, though entails should be abolished by law. 
 Practically, however, settlements are the medium through which 
 the entailing power is exercised, and form a powerful bulwark 
 of Primogeniture, inasmuch as they enable successive heads of 
 families, owing to it their own position, to secure its main- 
 tenance far into the lifetime of an unborn generation. 
 
 I. The so-called law of Primogeniture, applicable to in- 
 heritance of land ab intestate^ is thus stated in " Blackstone's 
 Commentaries": — "That the male issue shall be admitted 
 before the female, and that, when there are two or more males 
 in equal degree, the eldest only shall inherit, but the females 
 altogether." The right of Primogeniture, then, in the descent 
 of land, exclusively belongs to eldest sons, and has no place 
 among daughters. This fact, in itself, has a material bearing
 
 368 THE LAW AND CUSTOM [Brodrick. 
 
 on its historical origin. The kiminous researches of Sir H. 
 !Maine into ancient law tend strongly to support the opinion of 
 Blackstone and other authorities, that we owe this institution 
 to feudal society, not in the earlier, but in the later stage of its 
 development. " Primogeniture did not belong to the customs 
 which the barbarians practised on their first establishment 
 within the Roman Empire." It was, indeed, directly at variance 
 with the principles of equality which appear to have regulated 
 all the primitive communities whose organisation, but lately 
 revealed to historical students, furnishes the key to so many 
 social problems otherwise insoluble. Even the patriarch, though 
 lord of the family possessions, "held them as trustee for his 
 children and kindred."' The male children were recognised 
 both in German and Hindoo jurisprudence as "co-proprietors 
 with their father, and the endowment of the family could not 
 be parted with, except by the consent of all its members." 
 Still less had the eldest son any advantage over the rest, either 
 in those primeval family groups which held their domains in 
 joint ownership, or under that more advanced system of land 
 tenure, where partitions took place on the death of a parent, 
 according to rules indicated by Tacitus with his usual pregnant 
 brevity : " Ha;redes successoresque sui cuique liberi, et nullum 
 testamentum : si liberi non sunt, proximus gradus in posses- 
 sione, fratres, patrui, avunculi." Sir IT. ]\Iaine, after summing 
 up the evidence on this part of the subject, concludes that "an 
 absolutely ecpal division of assets among the male children 
 at death is the practice most usual with society at the period 
 when family dependency is in the first stages of disintegration." 
 This conclusion, mainly founded on the legal history of 
 Germany and India, is further confirmed by the great cus- 
 tomary of Ireland, known as the Brehon Code, which not only 
 adopts the rule of equal division, but extends the right of 
 inlieiitance to bastard children. It is hardly necessary to 
 state that a like rule, but applying only to legitimate sons, was 
 established by the Anglo-Saxon custom of gavelkind, which 
 .still ])revails, as of common right, over the greater part of Kent, 
 and in a qualified form, governs the descent of copyhold lands 
 in some otlxer parts of the kingdom. The Athenian law of 
 succession, under the Solonian constitution, was tlie same in all 
 essential respects with the Anglo-Saxon. All the sons inherited 
 equally, upon the death of their fiithcr, and the only privilege 
 reserved to the eldest was that of exercising the first choice
 
 OF PRIMOGENITURE. 369 
 
 in the division. The right of Primogeniture, as Blackstone 
 observes, seems to have been maintained by the Jews alone, 
 among the oldest races whose laws are known to us ; and even 
 the Mosaic law assigned no more than a double portion to the 
 eldest son, while the " birthright " of pre-Mosaic times, as ap- 
 pears from the case of Reuben, might be set aside by the father. 
 
 It is ecjually certain that Primogeniture is not derived from 
 Roman law — the real fountain head of so many institutions and 
 ideas once supposed to be indigenous. According to Roman 
 law, " when the succession was ab iniestato, and the group (of 
 co-heirs) consisted of the children of the deceased, they each 
 took an equal share of the property ; nor, though males had at 
 one time some advantages over females, is there the slightest 
 trace of Primogeniture." Intestacy, it is true, was rare among 
 the Romans ; but Sir H. Maine has given cogent reasons for 
 believing that Roman wills, so far from being made for the 
 purpose of accumulating property upon one representative of 
 the family, were usually made for the contrary purpose of 
 dividing the inheritance more equitably among all the children, 
 and defeating the rule which excluded sons already emancipated 
 from succession ab ijitcstaio. 
 
 We may assume, then, with as much confidence as is 
 possible in inquiries of this nature, that Primogeniture is essen- 
 tially a feudal institution. It cannot be traced back to an age 
 preceding feudalism ; it was fully established in those countries, 
 and those only, which are known to have adopted the feudal 
 system, and it has been abandoned, for the most part, by those 
 countries which have undergone a complete de-feudalising pro- 
 cess. Moreover, though we are unable to specify the exact 
 mode whereby this innovation was accomplished in the Dark 
 Ages, we are able to account for it completely by the peculiar 
 circumstances of that warlike and chaotic period. '' While 
 land," says Adam Smith, "is considered as the means only of 
 subsistence and enjoyment, the natural law of succession 
 divides it, like them, among all the children of the family ; 
 . . . . but when land was considered as the means, not 
 of subsistence merely, but of power and protection, it was 
 thought better that it should descend undivided to one." Such 
 is the true historical explanation, as it is also the sound 
 economical explanation, of the rise of Primogeniture. In 
 ancient Rome, no less than in ancient Athens, the State was 
 everything and the individual nothing ; public rights dwarfed 
 y
 
 370 THE LAW AND CUSTOM [Brodsick. 
 
 and overshadowed private rights ; and family pride, intense as 
 it was, could not indulge the passion of territorial aggrandise- 
 ment, lest it should encounter the fierce jealousy of the re- 
 publican spirit. In communities of the Oriental and old 
 German type, different causes produced the same effect ; land 
 was regarded as " a means of subsistence " for all the members 
 of a primitive family or village, and the idea of vassals or 
 tenants holding under a lord could scarcely have been con- 
 ceived. Even when the German tribes first conquered the 
 Roman Empire, there is reason to believe that equality was 
 the general principle of division. Each great chief, however, 
 naturally received a larger share, and, being unable to cultivate 
 the whole of it for himself, granted a part to retainers on 
 conditions of military ser\-ice. It is from grants of this kind, 
 and from "honorary feuds" to which titles of nobihty were 
 attached, that Primogeniture, as a rule of succession, is held by 
 most jurists to have directly sprung. The original grantee of 
 a fief, unlike the owners of "allodial" property, was indebted 
 to no family law for his new possession. He derived it solely 
 from the bounty of his chief, whose interest it was that it 
 should always be held by some person capable of serving in 
 war, as well as of discharging the less definite obligations, in 
 lieu of rent, which afterwards became regular legal incidents of 
 tenure in chi\-alry. In most instances the eldest son would be 
 the one most capable, on the father's death, of undertaking 
 his feudal liabilities ; but this was not the only reason why 
 Primogeniture gradually superseded joint ownership and equal 
 division. In those wild and unsettled times, it was as necessaiy for 
 the family as for the lord that it should have one acknowledged 
 head to govern it, one standard round which all its members 
 and dependants could rally, one judgment-seat to which all 
 disputes could be referred. The disorganised state of society 
 compelled a recurrence to something like the patriarchal 
 system of fiimily government ; but whereas that system had 
 developed into the rule of equal inheritance, feudalism, under a 
 different order of conditions, became the parent of Primo- 
 geniture. 
 
 The eldest son, therefore, was invested with his exceptional 
 privileges under the feudal system, not because he was supposed 
 to have any exceptional rights, but rather because he was sup- 
 posed to be the most eligible for the performance of exceptional 
 duties. He was not, however, invariably preferred ; and we
 
 OF PRIMOGENITURE. 371 
 
 know that merit had far more to do with inheritance in the 
 first age of feudalism than it has with succession to estates or 
 titles in our own days. The Crown itself was then, in some 
 degree, elective in every feudal monarchy ; and it is more than 
 probable that fiefs, like the chieftainship of Scotch and Irish 
 clans, sometimes descended to younger brothers and sometimes 
 to uncles. When they descended, as they usually did, to eldest 
 sons, they assuredly brought with them far heavier burdens and 
 far more limited rights of proprietorship than we are wont 
 to associate with the position of a landowner. The life of a 
 German baron under the Othos, or of a Norman baron under 
 the Conqueror and his immediate successors, was a life of 
 incessant toil and anxiety, seldom relieved by leisure or enjoy- 
 ment ; and the younger brother who had entered a monastery 
 or turned soldier of fortune had perhaps little cause to envy 
 the lord of several castles, whose revenues, paid in kind, were 
 devoured by hungry and turbulent retainers. 
 
 It is impossible to fix the precise year, or even the precise 
 reign, in which Primogeniture was substituted for gavelkind in 
 the Common Law of England. Blackstone, who regards this 
 feature of mature feudalism as introduced by the Conqueror, 
 points out that, under the so-called laws of Henry I., the eldest 
 son had no pre-eminence beyond the right of appropriating the 
 "capital fee" held by military tenure; and that so late as the 
 reign of Henry II. socage fees continued to be partible among 
 the male children. At all events, the present rule of succession 
 had become almost universal, except in Kent, before the end 
 of the thirteenth century, by which time, also, the custom of 
 entailing, in its most ancient form, was already established. 
 Entails created in this form conferred no indefeasible right 
 of inheritance. When a fee was granted to a man " and the 
 heirs male of his body," it was held that, upon the birth of a 
 son, the grantee might sell the land, or charge it with incum- 
 brances, or forfeit it by treason, so as to bar the interest of his 
 own issue, though, if he did none of these acts, it would descend 
 according to the express terms of the grant. This full liberty 
 of alienation is described by Mr. Neate, in his treatise on the 
 Law of Entail, as characteristic of true feudalism, which denied 
 the son any vested right in the estate so acquired by the father. 
 The famous statute De Bonis (13 Edward I., cap. i), by which 
 the succession of the issue, and the ultimate reversion of the 
 donor on failure of issue, were secured against the risk of
 
 372 THE LAW AND CUSTOM [Ekodrick. 
 
 being defeated by alienation, is viewed by the same author as 
 a legislative encroachment on feudal principles. The entails 
 made under this statute for nearly two hundred years created, 
 in fact, a perpetual series of life-estates, and are stigmatised 
 in a well-known passage of " Blackstone's Commentaries": — 
 "Children grew disobedient when they knew they could not be 
 set aside ; farmers were ousted of their leases made by tenants- 
 in-tail ; . . . . creditors were defrauded of their debts ; 
 . . . . innumerable latent entails were produced to de- 
 prive purchasers of the lands they had fairly bought ; . . . 
 and treasons were encouraged, as estates-tail were not liable to 
 forfeiture longer than for the tenant's life." Though it may 
 well be doubted whether the greater part of England was 
 subject to entails under De Donis, the fact of such conse- 
 quences having resulted from them has never been disputed. 
 Accordingly, when the absurd technical device of a common 
 recovery was invented to break these entails in the reign of 
 Edward IV., Parliament took no steps to counteract it, and in 
 the reign of Henry VIII. expressly authorised a tenant-in-tail 
 to bar his own issue by a proceeding known as a " fine." 
 
 It has not been sufficiently realised that during the period 
 between the introduction of these methods for breaking entails, 
 and the institution of family settlements in the seventeenth 
 century, the ownership of family property in this country was 
 practically more absolute, and the disposition of it less re- 
 stricted, than it had been for two centuries before, or than it 
 has since become. Each successive tenant-in-tail, by levying 
 a fine, or suffering a common recovery, was able to convert his 
 estate into a fee-simple, and as the use of life estates in tying 
 up land had not yet been discovered, the head of a family was 
 usually in this position. The agrarian history of this remarkable 
 period yet remains to be written ; but it is impossible not to 
 connect the rapid growth and singular independence of the 
 English gentry and yeomanry under the later Tudors and 
 earlier Stuarts, with the limitation of entails and freedom O'f 
 alienation which thus characterised it. In course of time, 
 however, family pride, aided by lawyers, contrived new ex- 
 pedients for checking alienation by sale or subdivision by 
 will, and placing the right of Primogeniture on a secure basis. 
 The first of these expedients in logical, if not in chronological, 
 order, was the mere substitution of such words as " first son " 
 or " eldest son " for " heir of his body," in deeds of settlement
 
 OF PRIMOGKXITL'KE. 373 
 
 The legal effect of this was, that instead of the father taking an 
 estate-tail under the settlement, which he might have forthwith 
 converted into a fee-simple, he took only a life-estate, and 
 had no control over the remainder (whether for life or in tail) 
 given by the same instrument to his eldest son. This idea 
 was developed by conferring, so far as possible, life-estates 
 instead of estates-tail on the whole first generation of persons 
 included in a family settlement ; so that, whereas a tenant-in- 
 tail once in possession could not be deprived of his power to 
 become master of the property, the acquisition of this power 
 might be deferred to a second, or even to a later generation. 
 But, for reasons known to lawyers, that object could not have 
 been accomplished effectually without a further expedient 
 devised by Sir Orlando Bridgman and Sir Geoftrey Palmer 
 during the Civil Wars, and generally adopted after the Res- 
 toration. This was the notable contrivance of " trustees to 
 preserve contingent remainders,'"' of which it is enough to say 
 that it protected the interests of tenants-in-tail against the risk 
 of being defeated by the wrongful act of preceding life-tenants. 
 From this epoch, rather than from " Chudleigh's case," which 
 is cited by Lord Bacon, must be dated the modern type of 
 settlement. Still, the principle was maintained that an entail 
 might be cut off by a tenant-in-tail of full age, though it was 
 technically necessary for him, unless in ])ossession, to obtain 
 the concurrence of the person (generally his own father) in 
 whom the immediate freehold was vested. This principle was 
 violated by the Legislature for the first time, as Mr. Neate 
 shows, in the great Act of William IV., which created the 
 " protector of the settlement." Since this Act it has been a 
 positive rule of law, and no longer a mere technical necessity, 
 that, when a tenant-in-tail under a settlement wishes to bar the 
 entail completely, he must obtain the consent of the " pro- 
 tector," that is, in legal phrase, of the person who has the first 
 estate of freehold prior to his own estate-tail. 
 
 IL We are now in a position to review the actual 
 operation of Primogeniture in this country, whether under the 
 express terms of settlements and wills, or by virtue of the law 
 prescribing the course of descent on intestacy. Unfortunately, 
 the statistical materials requisite for such a review are still very 
 imperfect. No register of setdements, or of other dealings 
 affecting land, exists as yet for the greater part of England, 
 though "such a register is kept in Scotland, and very contlicting
 
 374 THE LAW AND CUSTOM [Brodrick. 
 
 estimates have been formed of the proportion which settled 
 bears to unsettled property. Wills, it is true, are preserved, 
 but they do not show the extent of land devised by them ; nor 
 is there any means of ascertaining, with any approach to 
 accuracy, how far they are employed to aggravate, and how far 
 to mitigate, the inequality arising from the custom of settling 
 landed estates upon eldest sons. It might have been expected, 
 however, that a complete record of the land devolving annually 
 by descent would be kept for State purposes and public in- 
 formation. Instead of this, no distinction appears to be drawn, 
 even between land which passes by will and land which passes 
 by settlement, being equally chargeable Avith succession duty ; 
 while, for a like reason, no separate account is published of land 
 transmitted to heirs by the law of intestacy. A still more 
 extraordinary, not to say disgraceful, cause of the mystery which 
 has so long surrounded our land -system, is the circumstance that, 
 until the present year (1S76) there were no official documents 
 showing the number of landowners in Great Britain, and the 
 distribution of the soil among them. With the new " Domes- 
 day Book " in our hands, we can ascertain how the soil is 
 actually distributed in every county of England and Wales, 
 but how far the Law and Custom of Primogeniture may have 
 contributed to produce this distribution, remains even now 
 a speculative question. Still there are certain facts which are 
 matters of common notoriety, and others which are within the 
 general cognizance of persons conversant with land, by the 
 light of which it is possible to arrive at some trustworthy con- 
 clusions respecting the dominion of Primogeniture over social 
 life in England. 
 
 In the first place, it is material to observe that personal 
 property, which is exempt from the law of Primogeniture, is 
 little affected by the custom, save where it is thought necessary 
 to keep up the dignity of a family place. Rich capitalists who 
 do not invest in land, or aspire to found a county family, 
 seldom make an eldest son, and of those who do indulge this 
 ambition, some prefer to buy a moderate estate for each of their 
 sons. Still more habitually is e<|ual division recognised as 
 the dictate of natural equity by the great body of merchants, 
 tradespeople, and professional men, as well as by the labouring 
 classes throughout Great Britain and Ireland ; in short, by the 
 middle and lower orders of society, " divorced from the soil " 
 in this country, and by the landless members of the upper
 
 OF PRIMOGENITURE. 375 
 
 orders. Nor must it be forgotten that, by English law, ordinary 
 leaseholds, whether they consist of lands or houses, count as 
 personalty, and are distributed as such on intestacy ; whereas 
 money in trust for investment in land counts as realty and falls 
 under the same rule of inheritance. Vast leasehold interests 
 are constantly included in settlements of personalty, and few of 
 these settlements, whether made on the marriage of a duke's 
 younger son or on the marriage of a shopkeeper, exhibit any 
 bias towards Primogeniture. In most instances, the funds are 
 directed to be invested for the benefit of all the sons and 
 daughters of the marriage equally, though a power is usually 
 reserved to the parents of modifying this distribution by 
 " appointment," at their own discretion. The same course is 
 generally followed by testators possessed of small landed 
 estates purchased with their own earnings, who, for the most 
 part, devise their land to trustees for sale, and direct the 
 proceeds to be divided among their children. In families of 
 the yeoman class, the ordinary practice appears to be that 
 hereditary property should go to the eldest son, but that, in 
 accordance with the Scotch rule of /egifim, younger children 
 should be compensated, so far as possible, for their disinherison, 
 and that, if burdened with mortgages, the land should be sold 
 for the equal benefit of all. Even the rude wills and settle- 
 ments drawn up by priests or schoolmasters for Irish peasant 
 farmers, among whom the instincts of proprietorship are 
 cherished in their intensest form, embody the principle of 
 gavelkind and not of Primogeniture. Though often destitute 
 of any legal validity, and purporting to dispose of an interest 
 which has no existence in law, they usually disclose a clear 
 intention to place the younger children on a tolerably equal 
 footing with the eldest son, either by the subdivisions of which 
 Irish landlords complain so much, or by heavy charges on the 
 tenant-right. 
 
 It may, therefore, be safely affirmed that Primogeniture, as 
 it prevails in England, has not its root in popular sentiment, or 
 in the sentiment of any large class, except the landed aristocracy 
 and those who are struggling to enter its ranks. By the great 
 majority of this class, embracing the whole nobility, the squires 
 of England, the lairds of Scotland, and the Irish gentry of 
 every degree. Primogeniture is accepted almost as a funda- 
 mental law of nature, to which the practice of entails only 
 gives a convenient and effectual expression. Adam Smith
 
 376 THE LAW AND CUSTOM [Brodrick. 
 
 remarks that " in Scotland more than one-fifth, perhaps more 
 than one-third, part of the whole lands of the country, are at 
 present supposed to be under strict entail " — that is, entailed 
 under a system introduced in 1685, which barred alienation far 
 more inexorably than was permitted by the English rule against 
 perpetuities. Mr. McCuUoch, writing in 1849, calculated that 
 at least halt Scotland was then entailed, though an Act passed 
 in the previous year had already facilitated disentailing by 
 provisions borrowed from the English law. In England, where 
 so much land is in the hands of corporations or trustees for 
 public objects, and where almost all deeds relating to land are 
 in private custody, we cannot venture to speak with so much 
 confidence on this point. Considering, however, that in most 
 counties large estates predominate over small, and that large 
 estates, by the general testimony of the legal profession, are 
 almost always entailed either by will or settlement, while small 
 estates, if hereditary, are very often entailed, there is no rash- 
 ness in concluding, in accordance with the evidence given 
 before Mr. Pusey's committee, that a much larger area is under 
 settlement than at the free disposal of individual landowners. 
 
 It has frequently been asserted that a mere fraction of the 
 land which yearly changes hands on death, is governed by the 
 law of intestacy. There are no adequate means of testing this 
 assertion ; but the probability is that it overstates the case. 
 There is scarcely a wealthy or noble family of any considerable 
 antiquity in which the estates have not at some time descended 
 to an heir or coparceners by the eftect of this law, and such an 
 event is far more likely to happen in families less guided by the 
 advice of solicitors. What is really true is, that landowners 
 seldom deliberately intend to die intestate, and that most 
 descents by operation of law are the result of negligence or 
 misadventure. A man, perhaps, makes several contradictory 
 wills, all of which jjrove to be void for want of proper attes- 
 tation, or by reason of his incompetence ; or he makes a good 
 will that does not cover the whole of his property ; or, having 
 recendy purchased a small freehold, he is just about to devise 
 it, when lie is suddenly cut off. The known wishes of an 
 intestate may be carried into effect by arrangement within the 
 family, or an amicable suit in equity, without the public be- 
 coming aware of the fact, especially if those wishes should 
 coincide with the course of descent at common law. Several 
 notable examples of the contrary kind, where the known wishes
 
 OF PRIMOGENITURK. 377 
 
 of the intestate, and the plain requirements of justice, were 
 grievously violated by the law of Primogeniture, have been 
 cited by Mr. Locke King and others. Upon the whole, how- 
 ever, our presumption must be that, whatever may be the 
 indirect influence of that law on the minds of settlors and 
 testators, its direct influence in promoting the aggregation of 
 land is by no means extensive. 
 
 We have next to examine the mode whereby the right of 
 Primogeniture is secured in ordinary settlements of landed 
 property, or, less frequently, in the wills of landed proprietors 
 who have enjoyed an absolute power of disposition. This 
 mode is thus explained in the standard work of Mr. Joshua 
 Williams, on the Law of Real Property : — " In families where 
 the estates are kept up from one generation to another, settle- 
 ments are made every few years for this purpose ; thus, in the 
 event of a marriage, a life-estate merely is given to the husband; 
 the wife has an allowance for pin-money during the marriage, 
 and a rent-charge or annuity by way of jointure for her life, in 
 case she should survive her husband. Subject to this jointure, 
 and to the payment of such sums as may be agreed on for the 
 portions of the daughters and younger sons of the marriage, 
 the eldest son who may be bom of the marriage is itiade by the 
 settlement tenant-in-tail. In case of his decease without issue, 
 it is i)rovided that the second son, and then the third, should 
 in like manner be tenant-in-tail ; and so on to the others ; and 
 in default of sons, the estate is usually given to the daughters ; 
 not successively, however, but as ' tenants in common in tail,' 
 with 'cross remainders' in tail. By this means the estate is 
 tied up till some tenant-in-tail attains the age of twenty-one 
 years ; when he is able, with the consent of his father, who is 
 tenant for life, to bar the entail with all the remainders. 
 Dominion is thus again acquired over the property, which 
 dominion is usually exercised in a re-settlement on the next 
 generation ; and thus the property is preserved in the family. 
 Primogeniture, therefore, as it obtains among the landed gentry 
 of England, is a custom only, and not a right; though there can 
 be no doubt that the custom has originated in the right which 
 was enjoyed by the eldest son, as heir to his father, in those 
 days when estates-tail could not be barred." 
 
 To complete this explanation, it should be added that 
 almost all modern settlements contain a power of sale, enabling 
 the trustees, with the consent of the tenant in possession, to
 
 378 THE LAW AND CUSTOM [Brodrick. 
 
 sell portions or even the whole of the property, and to re-invest 
 the purchase-money in other land. Under these powers out- 
 lying estates, or estates which may have come into the family 
 collaterally, are very commonly sold off, and the produce is 
 either applied in rounding off the central domain, or held upon 
 trust for the same persons as would have received the income 
 of the land, till it is sooner or later absorbed in paying charges 
 which must othenvise have been raised upon the entire pro- 
 pert)-. In default of such powers being inserted in the settle- 
 ment, the Court of Chancery may direct sales, with the consent 
 of the parties interested ; and it may be asserted that with the 
 exception of a very few domains inalienably settled, like Blen- 
 heim, on a particular family, no estate in England is literally 
 unsaleable. It should also be remarked that a settlement of 
 the kind described by Mr. Joshua Williams, implies that full 
 control has been acquired over the land before it is executed. 
 For this purpose, most family properties are disentailed in each 
 generation with a view to re-settlement, by the joint act of the 
 life-owner for the time being as "protector," and of his eldest 
 son as tenant-in-tail in reversion. The former is actuated by a 
 desire to perpetuate the entail by fresh limitations, to a period 
 as distant as the law permits ; and often gains, in the process 
 of re-settlement, the means of discharging his own debts, or 
 making provision for those who have claims upon him. The 
 son, on the other hand, taking a life-estate in lieu of his estate- 
 tail, forfeits the prospect of becoming master of the property 
 on his father's death ; but in consideration of this sacrifice, he 
 usually receives an immediate rent-charge by way of allowance, 
 and is placed in a position to marry early. 
 
 It is well known that in families which maintain the practice 
 of entailing, the disparity of wealth between the eldest son and 
 younger children is, almost invariably, prodigious. The charge 
 for the portions of younger children, when created by a marriage 
 settlement, is created at a time when it is quite uncertain how 
 many such children there will be. It is rarely double of the 
 annual rental, and often does not exceed the annual rental ; 
 indeed, in the case of very large estates, it may fall very far 
 short of it. In other words, supposing there to be six children, 
 the income of each younger brother or sister from a family 
 property of ^5,000 a year will consist of the interest on a sum 
 of p^i,ooo or possibly ;;^2,ooo ; and even if there were but 
 one such younger child, his income from the property would
 
 OF PRIMOGENITURE. 379 
 
 probably not be more than one-twentieth or one-thirtieth of 
 his elder brother's rental. Nor does this represent the whole 
 difference between their respective shares of the family endow- 
 ment ; for the eldest son, who pays no probate duty, finds a 
 residence and garden at his disposal, which he may either 
 occupy rent-free, or let for his own private advantage. Of 
 course, where a father possesses a large amount of personalty, 
 he may partially redress the balance; and there are exceptionally 
 conscientious landowners who feel it a duty to save out of their 
 own life incomes for younger children. But it is to be feared 
 that accumulations in the Funds are too often employed, not 
 exclusively nor mainly to increase the pittances allotted for 
 portions ; but, on the principle of " To him that hath shall be 
 given," to relieve the land of some outstanding incumbrance, 
 and to aid the eldest son in conforming to a conventional 
 standard of dignity. The same imaginary obligation to pre- 
 serve that degree of state and luxury which is expected of 
 country gentlemen with a certain status and acreage, offers 
 an obstacle to saving, which the majority find insuperable. 
 Besides, nine out of ten men who inherit their estates burdened 
 with charges for their father's Avidow and younger children, 
 would think it Quixotic to lay by out of their available in- 
 come, as men of business would do, for the benefit of their 
 own younger children. Hence the proverbial slenderness of a 
 younger son's fortune in families Avhich have a " place," and 
 especially in those which have a title, to be kept up. As for 
 the daughters, their rank is apt to be reckoned as a substantive 
 part of their fortunes ; and not only are their marriage portions 
 infinitely smaller than would be considered proper in families 
 of equal affluence in the mercantile class, but it is not unfre- 
 quently provided that, unless they have children, their property 
 shall ultimately revert to their eldest brother. 
 
 To say that Primogeniture, thus organised, has a direct 
 tendency to prevent the dispersion of land, is only to say that 
 it fulfils the purpose for which it was instituted. It is hardly 
 less evident that it must have the further effect of promoting 
 the aggregation of land in a small and constandy decreasing 
 number of hands. The periodical renewal of entails is in- 
 tended to secure, and does secure, ancestral properties against 
 the risk of being broken up ; and, practically, they very seldom 
 come into the market, except as a consequence of scandalous 
 waste or gambling on the part of successive life-owners. The
 
 380 THE LAW AND CUSTOM [Brodrick. 
 
 typical English family estate is that which, like Sir Roger de 
 Coverley's, neither waxes nor wanes in the course of generations, 
 and there are still many such estates in counties remote from 
 London. But there is nothing to check the cumulative aug- 
 mentation of ancestral properties by new purchases of land, 
 which is the darling passion of so many proprietors. There is 
 always some angidus iste to be annexed and brought within the 
 park palings or the ring-fence on the first good opportunity ; 
 and scarcely a day passes without some yeoman of ancient 
 lineage being erased from the roll of landowners by the com- 
 petition of his more powerful neighbour. Not that any tyranny 
 or unfair dealing is involved in this process of aggrandisement, 
 which is the consequence of economical laws quite as simple as 
 that of natural selection in the animal creation. The yeoman 
 sells his patrimony either because he has ruined himself by 
 drinking or improvidence, or because he finds that by turning 
 it into money he can largely improve his income and the future 
 expectations of his family. The nobleman or squire buys it 
 at a price which is not commercially remunerative, either to 
 prevent its being covered with buildings, or because it lies 
 conveniently for his own agricultural designs, or because he 
 wants to extend his influence in the county ; for one or all of 
 which reasons it is worth more to him than to any one else. It 
 is known in some parts of the country that it is utterly vain to 
 bid against the great territorial lord of the district, whose agent 
 is instructed to buy up all properties for sale, regardless of 
 expense. In other parts of the country, men who have made 
 their fortunes in trade are equally covetous of land, which for 
 them is the one sure passport to social consideration, and 
 equally anxious to keep it together by entails. Thus by the 
 normal operation of supply and demand large estates are per- 
 jietually swallowing up small estates, while, by a suspension of 
 that operation through the law and custom of Primogeniture, 
 they are themselves preserved, to a great extent, from dis- 
 solution. On the other hand, it must not be forgotten that a 
 counter-tendency, no less natural and legitimate, partly neutra- 
 lises this gravitation of smaller towards larger aggregates of 
 land. The enormous rise in the value of all sites within easy 
 reach of great towns sometimes offers to great landowners an 
 inducement to sell which they cannot resist. In this way, 
 under the powers of sale already mentioned, distant and de- 
 tached portions of great estates are frequently passing in large
 
 OF PRIMOGENITURE. 381 
 
 blocks into the hands of new landlords, generally of the mer- 
 cantile class, or are bought up by land-jobbers and sold, in 
 petty blocks, to retired tradesmen. At the same time, the 
 acquisition of minute plots by the working classes has been 
 facilitated of late by the agency of freehold land societies, 
 originally established for political objects, and would doubtless 
 prevail to a much greater extent but for the exorbitance of 
 law-charges on small purchases of land. 
 
 In default of authoritative statistics, the loosest and vaguest 
 conjectures were long current respecting the division of owner- 
 ship caused by these divergent tendencies. It was confidently 
 stated, for instance, that, whereas in the latter part of the last 
 century this country was divided among 200,000 landowners, 
 it had come to be divided among no more than 30,000. No 
 proof was thought necessary to support the former assertion ; 
 the latter was supported by a proof which, on examination, 
 turned out to be perfectly worthless. In the Occupation 
 Returns of the Census for 1861, only 30,766 persons described 
 themselves as land-proprietors, and these figures were most 
 persistently quoted as official evidence on the subject, in the 
 face of the patent fact that above half of the whole number 
 were females. The probable explanation of this circumstance 
 is, that women owning land feel a pride in recording their 
 ownership ; whereas thousands of male landowners returned 
 themselves as peers, members of Parliament, bankers, mer- 
 chants, or private gentlemen. At all events, the mere 
 existence of so palpable a flaw in the return utterly de- 
 stroyed its value for the purposes of statistical argument. 
 Equally reckless assertions were made in support of the con- 
 trary opinion, and until the present year it was regarded as. 
 open to doubt whether the whole body of English landowners^ 
 properly so called, amounted to 30,000 or to 300,000. 
 
 These doubts are at last set at rest. It is true, the Return 
 lately issued by the Local Government Board purports to be 
 no more than " proximately accurate," and a very cursory 
 inspection suffices to disclose numerous errors of detail, which 
 m.ight have been avoided by more careful revision. Great and 
 inevitable difficulties were found to beset the definition of 
 ownership, and one of these difficulties had to be solved by 
 treating as owners all holders of leases for more than 99 years 
 or for lives, with a right of renewal, while other leaseholders 
 were excluded. Moreover, the Return does not cover the
 
 382 THE LAW AND CUSTOM [Brodrick. 
 
 Metropolis ; and since it is based on lists separately prepared 
 for each county and each rating-district, it must be taken as 
 subject to large deduction for double entries. Nevertheless, 
 its general results, translated into round numbers, may be 
 accepted as conclusive for the purpose of our present inquiry. 
 They exhibit a gross total of 972,836 freehold properties, 
 which probably represents a net total of above 900,000 
 freeholders in England and Wales, But of these so-called 
 properties, no less than 703,289 are plots of less than one acre, 
 while 269,547 consist of one acre and upwards. Considering 
 how large a proportion of gardens and grounds forming part of 
 business premises exceed one acre in extent, it would certainly 
 have been convenient if some higher limit, not less than five 
 acres, had been fixed as the minimum area of a bona fide landed 
 property. However, the voluminous tables here set forth 
 contain ample materials for a more complete analysis than 
 is furnished in the official summary, and some of their more 
 important revelations have already been made public* It 
 appears that although nearly a million persons may own the 
 sites of their own homesteads, 42,524 is the extreme number 
 of properties above 100 acres each, the number of their 
 owners being considerably less ; that nearly one-eighth of all 
 the enclosed land in England and Wales is in the hands of 100 
 owners ; that nearly one-sixth is in the hands of less than 280 
 owners; and that above one-fourth is in the hands of 710 
 owners. Nor is this all ; for it must not be forgotten that 
 among tlie dukes and other great noblemen who head this 
 territorial roll, there are several who also derive a vast rental 
 from Scotland, Ireland, or the Metropolis, whereas among the 
 nominal proprietors below one acre there is an indefinite 
 number of mere faggot-voters. 
 
 A close investigation of the returns for single counties fully 
 bears out these conclusions, and places the inequalities of 
 landed proprietorship in a still more striking light. Take, for 
 
 * See the elaborate statistics published in tlie Spectator of February 12, 
 February 19, and March 4, 1876. These statistics, having been tested by an 
 independent examination of the figures, seem to be substantially correct. A 
 further analysis published in the Times of April 7, 1876, shows three pro- 
 prietors owning above 100,000 acres, two between 80,000 and 100,000, two 
 ijetween 70,000 and 80,000, three between 60,000 and 70,000, nine between 
 50,000 and 60,000, ciglit between 40,000 and 50,000, twenty-eight between 
 30,000 and 40,000, and forty-five between 20,000 and 30,000. It also states . 
 that "874 owners hold 9,367,133 acres, 2,689 owners hold 14,896,324 acres, 
 10,207 owners hold 22,013,208 acres, 42,524 owners hold 28,840,550 acres."
 
 OF PRIMOGENITURE. 383 
 
 instance, Northumberland and Nottinghamshire, wliich stand 
 next to eacli other in alphabetical order, but differ widely from 
 each other in the character of their population. In North 
 umberland, the number of owners below one acre is stated at 
 10,036, but they own no more than 1,424 acres between them, 
 so that each possesses, on an average, less than one-seventh of 
 an acre. In Nottinghamshire, 9,891 petty landowners rule over 
 1,266 acres between them, possessing, -on an average, about 
 one-eighth of an acre apiece. If we now look at the higher 
 end of the scale, the contrast is startling. Nearly three-fifths of 
 Northumberland is in the hands of forty-four proprietors, nearly 
 half is in the hands of twenty-si.x proprietors, and far more 
 than one-seventh is in the hands of one proprietor, the Duke 
 of Northumberland, who has also landed estates in other 
 counties. In Nottinghamshire, again, nearly two-fifths of the 
 whole acreage belongs to fourteen proprietors, and above one- 
 fourth to five proprietors. If the division of landed property 
 over the rest of England and Wales corresponded with the 
 division of landed property in Northumberland and Notting- 
 hamshire, one-half of the whole country would be in the hands 
 of about 1,000 proprietors, and these proprietors, by virtue of 
 their family connections and social ascendency, would exercise 
 a power far more than commensurate with their acreage. 
 
 The inference must be that Primogeniture, operating for 
 many generations, has reduced the landed aristocracy ot 
 England and ^^'ales to a body even smaller than had been 
 commonly supposed, but that in those classes which do not 
 maintain the custom of Primogeniture, landed property is 
 broken up into a multitude of small parcels. The owners of 
 such parcels are, for the most part, not yeomen, but shop- 
 keepers and artisans, too humble and too dependent for their 
 livelihood on urban trade and industry to fill any i)erceptible 
 space in the rural economy of this country. That econom\- is 
 so familiar to all of us that we scarcely recognise the peculiar 
 characteristics of it, which foreigners notice as unique in 
 modern Europe. To an Englishman bom and bred in the 
 country, it appears the natural order of things, if not the fixed 
 ordinance of Providence, that in each parish there should be a 
 dominant resident landowner, called a squire, unless he should 
 chance to be a peer, in^•ested with an authority over its in- 
 habitants, which, as Mr. Neate contends, " the Norman lords, 
 in the fulness of their power," ne\-er had the right of exercising.
 
 384 THE LAW AND CUSTOM [Brodrick, 
 
 This potentate, who, luckily for his dependants, is usually a 
 kind-hearted and tolerably educated gentleman, concentrates 
 in himself a variety of rights and prerogatives, which, in the 
 aggregate, amount to little short of patriarchal sovereignty. 
 The clergyman, who is by far the greatest man in the parish 
 next to himself, is usually his nominee, and often' his kinsman. 
 The farmers, who are almost the only employers of labour 
 besides himself, are his tenants-at-will, and, possibly, his debtors. 
 The petty tradespeople of the village community rent under 
 him, and, if they did not, might be crushed by his displeasure 
 at any moment. The labourers, of course, live in his cottages, 
 unless, before the Union Chargeability Act, he should have 
 managed to keep them on his neighbour's estate ; but this is 
 by no means his only hold upon them. They are absolutely 
 at his mercy for the privilege of hiring allotments at an 
 " accommodation " rent ; they sometimes work on the home 
 farm, and are glad to get jobs from his bailiff, especially in 
 the winter ; they look to him for advice in worldly matters as 
 they would consult the parson in spiritual matters ; they believe 
 that his good word could procure them any favour or advance- 
 ment for their children on which they may set their hearts, and 
 they know that his frown may bring ruin upon them and theirs. 
 Nothing passes in the parish without being reported to him. 
 If a girl should go wrong, or a young man should consort with 
 poachers, or a stranger of doubtful repute should be admitted 
 as a lodger, the squire is sure to hear of it. and his decree, 
 so far as his labourers and cottage tenants are concerned, is 
 as good as law. He is, in fact, the local representative of the 
 law itself, and, as a magistrate, has often the means of legally 
 enforcing the policy which, as landlord, he may have adopted. 
 Add to all this the influence which he may and ought to 
 acquire as the leading supporter and manager of the parish 
 school, as the most liberal subscriber to parochial charities, as 
 the patron of village games and the dispenser of village treats, 
 not to speak of the motherly services which may be rendered 
 by his wife, or the boyish fellowship which may grow up 
 between the youth of the village and the young gentlemen at 
 the Hall, and it is difficult to imagine a position of greater real 
 power and responsibility. Yet even this does not exhaust the 
 special advantages and i)rerogatives attached to the position of 
 an English country gentleman. Until very lately, he alone was 
 lawfully eligible to a seat in Parliament, and even now his class,
 
 OF PRIMOGENITURE. 385 
 
 wliich may be said to engross the Upper House, predominates 
 conspicuously in the Lower. By this class the whole machinery 
 of county taxation, county government, and county judicature, 
 is regulated and worked. In those of them who may be 
 magistrates is vested ex-officio a right of taking part in poor-law 
 administration ; in their gift is a great variety of lucrative county 
 offices, and the wealthiest magnate of the greatest manufacturing 
 town is " nobody in the county " until he shall have secured 
 their good opinion. That powers so vast and so arbitrary have 
 not been more frequently abused is an honour to our national 
 character ; nor can we reflect without some feeling of pride, on 
 the admirable manner in which the "duties of property" are 
 acknowledged and discharged on thousands of English estates. 
 But this must not lead us to idealise this form of rural economy 
 as our forefathers idealised the British Constitution, to ignore 
 the grave defects and anomalies inherent in it, or lightly to 
 dismiss the experience of other nations as inapplicable to our 
 social condition. 
 
 III. The Reports on Land Tenure drawn up for the 
 Foreign Office in the years 1869 — 70, by Her Majesty's repre- 
 sentatives in the principal countries of Europe and the United 
 States of America, contain a mine of precious materials on 
 foreign land systems. Though specially directed to points 
 bearing directly on the objects of the Irish Land Bill, they 
 include a large mass of evidence on such questions as the 
 descent of landed property on intestacy, and the general ten- 
 dency of various codes to favour the accumulation or dispersion 
 of land. A few extracts from the results thus obtained may be 
 of some value in iUustrating an inquiry into the law and custom 
 of Primogeniture in England. 
 
 In France, as all economists are aware, " the land is chiefly 
 occupied by small proprietors, who fomi the great majority 
 throughout the country," so that of some 7,500,000 proprietors, 
 about 5,000,000 are estimated to average six acres each, ^vhile 
 only 50,000 average 600 acres. This morccllemeiit is the direct 
 and foreseen consequence of the partible succession enforced 
 by the Code Napoleon, under which all children inherit the 
 bulk of their father's property equally, without distinction of 
 age or sex, a testator with one child being allowed to dispose 
 of half, a testator with two children of one-third only, and a 
 testator with three cliildren of one quarter. The dismember- 
 ment of estates thus produced is progressive. "With some 
 z
 
 386 THE LAV/ AND CUSTOM [Brodricic. 
 
 rare exceptions, all the great properties have been gradually- 
 broken up, and even the first and second classes " (averaging 
 600 and 60 acres respectively) " are fast merging into the 
 third." Volumes of controversy have not exhausted the argu- 
 ments either for or against the French law of inheritance, and 
 it is instructive to remark that, whereas it used to be attacked 
 on the ground that it stimulated the increase of population to a 
 frightful extent, it is now attacked on the ground that it keeps 
 the population almost stationary. In France itself, if we may 
 trust the Report, " the prevalent public opinion as to the 
 advantages or disadvantages of the tenure of land by small pro- 
 prietors is decidedly that it has been advantageous to the pro- 
 duction of the soil, and has tended to the improvement of the 
 material condition of the agricultural population." It is believed, 
 moreover, that subdivision " conduces to political as well as 
 social order, because the greater the number of the proprietors, 
 the greater is the guarantee for the respect of property, and the 
 less likely are the masses to nourish revolutionary and sub- 
 versive designs." The reporter, Mr. Sackville West, appears 
 to share these views, but he is careful to express his concurrence 
 in M. Lavergne's opinion that morcdlcment has now reached the 
 limit of safety, and that " an unlimited partition of the small 
 properties as they already exist would be productive of serious 
 evil." 
 
 The elaborate Report on land tenure in Prussia and the 
 North German Confederation, by Mr. Harriss Gastrell, attests 
 the same preponderance of public opinion in favour of small 
 proprietorship, which is encouraged by the law. " In cases of 
 intestacy the law divides all property, including land, in certain 
 proportions, among widow and children ; or equally amongst 
 the children, if there be no widow," and no disposition can 
 deprive the " natural heirs " of their claim to a fixed allotment, 
 sometimes amounting to as much as two-thirds of the whole. 
 Though subject to these limitations, "the custom of making 
 a will is almost universal," but " the restrictions on land by 
 settlements and the like are much less than in England." The 
 consequence is, that in the entire province of Prussia, out of 
 about 185,000 freehold estates, rather more than lialf do not 
 exceed twenty acres in extent. 
 
 "Wurtemburg is remarkable as tlie country where subdivi- 
 sion of land is carried to the greatest extreme," containing, as 
 it does, some 280,000 peasant owners, with less than five acres
 
 OF PRIMOGENITURE. 387 
 
 each, and about 160,000 proprietors of estates above five acres. 
 Upon intestacy, the land is equally divided among all the 
 children, male and female." The fatlier, however, seems to be 
 allowed full liberty of disposition over the property, so long as 
 a certain moderate portion defined by law {pflicJit-theil) is re- 
 served for each child. On the smaller peasant farms, " when, 
 in accordance with the will of the father, one child becomes 
 owner of all the paternal land, an estimate is formed on a 
 footing rather favourable to him, and he compensates the 
 brothers and sisters by equal sums of money. The daughters, 
 however, are more frequently on their marriage allotted an 
 equal share of land ; and, as the husband is probably the 
 proprietor of a piece of land elsewhere in the commune, the 
 intersection and subdivision of the land goes on increasing." 
 On the larger peasant farms, the custom of Primogeniture has 
 encroached still further on that of equal division. Here, the 
 eldest son commonly succeeds to the whole property, "often 
 in the father's lifetime. When the parent is incapacitated by age 
 from managing his farm, he retires to a small cottage, generally 
 on the property, and receives from the son in possession con- 
 tributions towards his support both in money and kind. The 
 other children receive a sum of money calculated according to 
 the size of the property, and the number of children, but which, 
 in any case, falls far short of the sum which they would receive, 
 if the property were equally divided, or even were the law of 
 pflicht-theil acted on. They have, however, their home there 
 until they establish themselves independently or take service 
 on another property." Mr. Phipps, who gives this account of 
 the Wurtemburg land system, adds that political economists of 
 that country are now " of opinion that small proprietors, who 
 complete their means of livelihood by industrial pursuits are the 
 most desirable class to encourage, whereas formerly agriculture 
 on a large scale was considered the most profitable." 
 
 In Bavaria, where the land is very much subdivided, Mr. 
 Fenton attests the general prevalence of a custom very similar 
 to that which characterises the larger peasant farms in \\'urtem- 
 burg. Except in the Bavarian Palatinate, where the Code 
 Napole'on is in force, the descent and inheritance of land are 
 governed throughout Bavaria by the principles, though not 
 everyAvhere by the express provisions, of the common law. 
 " A proprietor is bound to bequeath, at his death, a certain 
 defined portion of his property, to be divided in equal shares
 
 388 THE LAW AND CUSTOM [BRoi^kick. 
 
 among all his legitimate children. That portion must not be 
 less than one-half, if the number of children be five, or more 
 than five ; and not less than one-third, if there be four, or less 
 than four, children." Where the property consists of land, and 
 especially if it be a peasant property, the eldest son may, and 
 usually does, retain the whole, paying the rest a pecuniary 
 indemnity for their shares, if the father has not already installed 
 him in possession, as sometimes happens, during his own life- 
 time. "Amongst that class the almost invariable custom is for 
 the testator to leave the whole of the real property — farmhouse, 
 farm buildings, and land — in the possession of one member of 
 the family, commonly the widow or the eldest son, and that 
 person then becomes responsible to the children for the pay- 
 ment to them of a sum of money corresponding to the value 
 (as ascertained by official appraisement) of their share of the 
 property, the children's share being generally fixed at one-half 
 of the whole, real as well as personal. It is further a univer- 
 sally-understood condition of an arrangement of the nature 
 above described, that the person who remains in possession of 
 the property and becomes its owner, is bound during a certain 
 number of years (after the payment of their shares to all the 
 children) to provide any one or all of them with board and 
 lodging at the homestead, in the event of their falling into 
 distress from sickness, want of employment, &c." In short, 
 the peasant proprietors of Bavaria, who are admitted to be a 
 thriving class, appear to keep up their family estates with as 
 much tenacity as our own landed gentry, but with a jealousy 
 for the rights of younger children which reminds us of the 
 Irish peasant farmers. In the Austrian Empire, on the con- 
 trary, the devolution of all property, real and personal, is 
 regulated by the Civil Code, by which " no preference is 
 accorded to eldest sons," nor have sons any advantage over 
 daughters , but " an exception exists in the case of family 
 entails (ma/ora/s)." Of course these entails are mainly created 
 on large properties. Whatever be the instrument which con- 
 stitutes such an entail, Mr. Lytton remarks that it has no legal 
 validity without the special consent of the legislative power. 
 
 It is almost superfluous to state that Switzerland is a land 
 of small proprietors, the law of equal division being heartily 
 sup])orted by custom. According to Mr. Mackenzie's report, 
 " the (juantity of land usually held by each varies from six to 
 twelve acres, small lots held together, and the larger intersected
 
 OF PRIMOGENITURE. 389 
 
 by Other properties," yet, instead of being pauperised by sub- 
 division, the Swiss are proverbial for successful enterprise in 
 trade both at home and abroad. In Belgium, morcciiement has 
 notoriously been carried, under the Code Napoleon, to a 
 greater extreme than in France itself; so that Air. Wyndham 
 estimates the average size of estates, deducting woodlands and 
 wastes, at seven acres ; and Mr. Grattan cites official statistics 
 which show that four-fifths did not exceed twelve acres. " The 
 dispersion of land is increased by the system which generally 
 prevails at public sales of dividing real estate into small parcels 
 or lots ; " otherwise the properties of small families, sold for the 
 purpose of effecting a more convenient distribution among 
 children, would be constantly passing into the hands of rich 
 families. In Holland, as we learn from Mr. Locock's report, 
 " the law of succession requires the division in equal portions, 
 amongst the children or next of kin, of a major part of every 
 inheritance without regard to its nature or origin, and this is 
 naturally calculated to favour to a great extent the division of 
 landed property. But on the other hand there exists a very 
 prevalent desire with individuals to avoid unnecessarily splitting 
 up the paternal estates. It is a common thing for a farmer, 
 whether proprietor or tenant, to have accumulated before his 
 death sufficient movable property, frequently in the funds, to 
 enable him to assign a portion therefrom to one or another of 
 his children." I'he policy of the law, however, is rather against 
 family arrangements whereby the eldest son may retain all the 
 land and the younger children may be compensated in money, 
 since it imposes an increased tax on successions thus modified 
 by agreement. In the Hanse Towns, as well as in Schleswig- 
 Holstein, Primogeniture is more countenanced by law ; but 
 even where, as in Bremen, the real estate goes to the eldest son 
 on intestacy, the " co-heirs," or younger children, are entitled 
 to be portioned out of it. 
 
 In Italy, says Mr. Bonliam, '"the laws in force tend in every 
 way to favour the dispersion of land,"' and equal division, with- 
 out distinction of sex, is the rule of inheritance on intestacy ; 
 but a landowner, having children, may leave one-half of his 
 property by will ; the other half — legitima portio — " cannot be 
 burdened with any conditions by the testator." In Greece and 
 Portugal the law of intestacy and the restrictions on testamentary 
 disposition are, in all essential respects, the same as in Italy, 
 producing in both countries a large and increasing subdivision
 
 39© THE LAW AND CUSTOM [Brodrick. 
 
 of landed property. Mr. Finlay, speaking of the stationary 
 condition of Greek agriculture, observes : — " It is the almost 
 universal rule that each small proprietor possesses a zevgari" 
 (or plot requiring two pair of oxen to plough it), "and that 
 each cultivator of national land occupies no more." Mr. Merlin, 
 in his report on Greece, mentions the curious fact that " it is 
 extremely rare for the sons to marry till their sisters are pro- 
 vided for ; and this feeling pervades all classes." In Russia, 
 where the land system has been complicated by political and 
 social distinctions between classes, by serfdom, and by the 
 communal organisation, Mr. Michell reports that local usage 
 regulates the descent of peasant properties. The law of in- 
 testacy for the rest of the community is based on equal division, 
 giving males a preference over females. " There is no general 
 law of Primogeniture, although, in a few great families, estates 
 have been entailed under a special law passed in the reign of 
 the Emperor Nicholas. In 17 13 Peter the Great attempted to 
 introduce a general inheritance in fee of the eldest son ; but 
 this was so much opposed to the spirit of tlie Russian land- 
 owners, that one of the first acts of Peter II. was to cancel the 
 Ukase of 17 13." 
 
 Under the land laws of most States in the American Union, 
 an owner in fee-simple has nearly the same power of disposition 
 as he would possess in this country, but the rule of equal 
 division prevails in case of intestacy. The results of this 
 system, and the reason why they differ so widely from those 
 produced by our own, are succinctly described in the following 
 passages of Mr. Ford's report :— 
 
 " Tlie sysleiii of land occupation in the United States of America may 
 be generally descril)ed as by small proprietors. The proprietary class 
 throiigiiout the country is, moreover, rapidly on the increase, whilst that of 
 the tenancy is diminisliing, and is principally supplied by immigration. 
 The theory and practice of the country is for every man to own land 
 as soon as possible. The term of landlord is an obnoxious one. The 
 American peo]5le are very averse to being tenants, and are more anxious to 
 be masters of the soil, and are content to own, if nothing else, a small 
 homestead, a mechanic's home, a comfortable dwelling-house in compact 
 towns, with a lot of land of from 50 feet by 100 feet about it. In the 
 sparsely-peopled ]Dortions of the country a tenancy for a term of years may 
 be said to exist only in exceptional cases. Land is so cheap there thai 
 every provident man may own land in fee. The jjossession of land of itself 
 <loes not bestow on a man, as it does in Murojjc, a title to consideration : 
 indeed, its possession in large quantities frequently reacts prejudicially to 
 his interests, as attaching to him a taint of aristocracy which is distasteful 
 to the masses of the American i)cople.
 
 OF PRIMOGENITURE. 39 1 
 
 "The landowner in the United States has entire freedom to devise his 
 property at will. He can leave it to one or more of his children, or he 
 may leave it to a perfect stranger. In the event of his dying intestate, his 
 real estate is equally divided amongst his children without distinction as to 
 sex, subject, however, to a right of dower to his widow, should tliere be 
 one. If there are no children or lineal descendants, the property goes to 
 other relatives of the deceased. If the intestate leaves no kindred, his 
 ■estate escheats to the State in which it is situated. The laws of the 
 •different States of the Union regulating the descent and division of landed 
 property on death of owner harmonise to a great extent with each other. 
 
 "It maybe asserted that the system of land-tenure by small proprietors 
 is regarded in this country with great favour, and that the prevailing public 
 opinion is that tlie possession of land should be within the reach of the 
 most modest means. A proprietor of land, however small, acquires a stake 
 in the country, and assumes responsibilities which guarantee his discharging 
 faithfully his duties as a citizen. Whilst practically any one man may 
 acquire as much land as he can pay for, yet the whole tendency and effect 
 of the laws of this country are conducive to dispersion and multitudinous 
 ownership of land. The several States, and the Government of the United 
 States grant their lands in limited quantities ; and under the laws of descent 
 lands descend to the children, irrespective of sex, in equal shares ; and the 
 laws of partition provide for a division of the lands into as many parts as 
 there are interests, where it can be done without prejudice. In many 
 European countries the sale and transfer of land are so hampered by legal 
 •complications, and entail such heavy expenses, as frecjuently to discourage 
 such operations. In the United States, on the contrary, the sale and 
 transfer of land are conducted with about the same ease as would be the 
 sale of a watch. Very large quantities of land are seldom held in this 
 country, undivided, by one family for more than one or two generations. 
 It is worthy of remark that in this country the same reluctance is not felt, 
 as in Europe, to parting with family lands." 
 
 The conclusion to be drawn from tliis rapid survey of 
 foreign laws and customs regulating the devolution and settle- 
 ment of land may be expressed in a very few Avords. No 
 other nation has adopted in its entirety the English right of 
 Primogeniture — a right which could only have grown up in a 
 thoroughly feudalised society, and could only have been per- 
 petuated in a country where the feudal structure of society has 
 never undergone any violent disturbance. In those states 
 which have remodelled their jurisprudence on the principles of 
 the Code Napoleon, the eldest son is effectually debarred from 
 engrossing the whole landed property of the family. In other 
 states which have developed their law of succession inde- 
 pendently, parents are allowed to " make eldest sons," under 
 greater or less restrictions. In no considerable state but our 
 own does the law itself, in default of a will or settlement, con- 
 stitute the eldest son the sole heir to all the realty, and in no
 
 392 THE LAW AND CUSTOM TBrodrick. 
 
 other is the exclusive preference of the first-born, thus con- 
 secrated by law, carried to such extreme lengths in family 
 government. It remains to consider whether this unique in- 
 stitution, viewed as a whole, deserves to be still Tipheld by 
 English statesmen, either by virtue of its intrinsic merits, or 
 by reason of its having become incorporated into our national 
 character ; and, if not, in what manner it may be proper to 
 modify it by legislative enactment. 
 
 IV. In approaching this part of the subject we must reso- 
 lutely put aside two lines of reasoning which have done much 
 to obscure it. The first of these is that which starts from the 
 idea that younger sons have certain natural rights, of which 
 they are deprived by the law and custom of Primogeniture. 
 Now, it is impossible to form any definite conception of rights 
 in this sense, except as arising from the personal exertions of 
 those who claim them ; or, at least, from expectations fostered 
 by the law, or the parent, as the case may be. If the Code 
 Napole'on had been introduced into England, and if the existing 
 rule of descent by Primogeniture were afterwards substituted 
 for it, the generation of younger sons affected by the change 
 would have good cause for complaint, unless their interests 
 were expressly reserved. Again, if a father had led his children 
 to count upon an equal division of his property, and were then 
 to accumulate all upon the eldest son, a palpable wrong would 
 be done to all the rest. But the supposed grievance of existing 
 younger sons who receive the small fortunes to which they were 
 born, and have always looked forward, will not bear a moment's 
 investigation. It is in no respect more real than the grievance 
 of those who are born to no fortune at all, and look wistfully 
 at the inherited wealth of the richer classes. Indeed, the 
 cadets of territorial famihes who are disposed to regard them- 
 selves as the victims of injustice, may well reflect tliat, but for 
 the institution of Primogeniture, those fomilies might perhaps 
 have little or no territory in their possession, but might long 
 since have been merged in the mass of the community. Ex- 
 cept where the law steps in, on intestacy, to defeat the known 
 intentions of a father, or a father disappoints the hopes en- 
 couraged by himself to aggrandise an eldest son, it can 
 hardly be said that Primogeniture involves injustice to younger 
 children. Whatever injustice it may involve is sustained by 
 society at large, and though society consists of individual 
 members, those of its members wlio ultimately sufter most by
 
 OF PRIMOGENITURE. 393 
 
 the operation of Primogeniture are certainly not to be found 
 in families which owe their existence to it. 
 
 Still more irrelevant are the attacks which have recently 
 been made on Primogeniture from a communistic point of 
 view. Communistic tlieories of property, if valid at all, are 
 valid not against any particular rule of succession, but against 
 individual proprietorship as such, or against the ample and 
 peculiar rights of English landlords — rights of which no pro- 
 prietary class is more tenacious than new purchasers. No 
 doubt it is a perfectly intelligible proposition that all the land 
 in the kingdom ought to be " nationalised" and placed under 
 public management, because individual owners cannot be 
 trusted with full dominion over that part of the earth's surface 
 by which and upon which all natives of England must live, 
 unless they choose to emigrate. It is evident that, apart froni 
 all other objections, this doctrine is the very negation of the 
 belief in peasant-proprietorship and "the magic of property," 
 being, in fact, an essentially urban sentiment, and inevitably 
 destructive to all independence of rural life. Nor can it be 
 said that our experience of corporate administration, in the 
 case of lands held by collegiate, ecclesiastical, and municipal 
 bodies, as well as by trustees of charities, is such as to re- 
 commend the substitution of public for private ownership on 
 a much grander scale. At the same time, it is incontestable 
 that land has actually been treated by all governments, not 
 excluding our own, as more within State control, for many 
 purposes, than other kinds of property ; and it is possible to 
 conceive circumstances under which it might be expedient to 
 extend State control much further over the soil of these islands. 
 But what has all this to do with the right of Primogeniture? 
 and what consistency is there in a programme which couples 
 the abolition of that right and the adoption of Free Trade in 
 land, with provisions designed to withdraw from the market 
 and consolidate into large municipal domains more and more 
 of the properties which are already supposed to be too few ? 
 This is not the i)lace to discuss the moral or economical 
 aspects of these provisions ; suffice it to point out that, except 
 so far as they are aimed at overgrown private estates, they have 
 nothing in common with the policy of reforming the law and 
 custom of Primogeniture. This policy assumes the mainten- 
 ance of private property, and is directed to its more ecjuitable 
 distribution among individuals, without contemplating a return
 
 394 'i'HE LAW AND CUSTOM [Brodrick. 
 
 to a communal system of ownership, which, if accepted, would 
 supersede all laws of inheritance and powers of disposition. 
 It is the more necessary to insist on this point, because the 
 cause of Primogeniture has been strengthened, and the efforts 
 of its opponents weakened, by the unfounded impression that 
 it cannot be touched without reconstructing our whole law of 
 property, whereas no more is demanded or required than an 
 amendment of one single chapter. 
 
 The most familiar, as well as the strongest, arguments in 
 favour of Primogeniture as it exists in England are derived 
 from considerations which must be called, in the largest sense, 
 political. It was as a powerful bulwark of our landed aristo- 
 cracy that Burke defended it in his " Appeal from the New to 
 the Old Whigs," emphatically declaring that " without question 
 it has a tendency (I think a most happy tendency) to preserve 
 a character of consequence, weight, and prcvaloit influence over 
 others, in the whole body of the landed interest." The Real 
 Property Commissioners appointed in 1828 fully endorsed this 
 opinion in their first Report, which contains a laudation of 
 the settlements then in use as the best means of " preserving 
 families," and as investing the ostensible lord of the soil " with 
 exactly the dominion and power of disposition over it required 
 for the public good." The English law of intestacy is regarded 
 by the Commissioners with equal approbation, since it " appears 
 far better adapted to the constitution and habits of this king- 
 dom than the opposite law of equal partibility, which, in a few 
 generations, would break down the aristocracy of the country, 
 and, by the endless subdivision of the soil, must ultimately be 
 unfavourable to agriculture, and injurious to the best interests 
 of the State." Very similar opinions are expressed by Mr. 
 McCulloch, in combating the well-known dictum 'of Adam 
 Smith, that " nothing can be more contrary to the real interest 
 of a numerous fimily than a right which, in order to enrich 
 one, beggars all the rest of the family." Mr. McCulloch, 
 indeed, though he condemns the old indestructible Scotch 
 entails, since abolished by law, treats it as a characteristic 
 merit of English Primogeniture that it sustains a high standard 
 of luxury among country gentlemen of which the example is 
 not lost upon the mercantile classes. 
 
 If we analyse this plea for Primogeniture somewhat more 
 closely, it will be found to resolve itself into several distinct 
 lines of reasoning. In the first place, it is alleged, or rather
 
 OF PRIMOGENITURE. 395 
 
 suggested, that without Primogeniture it would be impossible 
 to maintain an hereditary peerage. The sufficient reply to any 
 such allegation is that an hereditary peerage may be kept up, 
 and is kept up in some Continental states, either by means of 
 majorats specially created, or by making certain estates "run" 
 with the titles derived from them, without any general law or 
 custom of Primogeniture. Moreover, unless Primogeniture be 
 defensible on other grounds, as beneficial to the whole com- 
 munity, it would surely be monstrous that it should be imposed 
 on the families of some hundred thousand freeholders — not to 
 speak of those who may be rendered landless by its indirect 
 operation — for the sake of the few hundred families composing 
 the hereditary nobility. In fact, Burke himself, with all his 
 aristocratic bias, was careful not to rest the case on so narrow a 
 ground ; and few admirers of Primogeniture would now venture 
 to advocate it in the interest of the Upper House, as distinct 
 from that of the nation at large. 
 
 But, secondly, it is urged, and not without great force, that 
 Primogeniture is actually productive of greater benefits, political 
 and social, to English society as a whole than could be ex- 
 pected from a system of more equal partibility. It is better, 
 we are told, for rural England at least, to be paternally 
 governed by a comparatively limited hierarchy of eldest sons, 
 v/hose successors are usually designated long beforehand, than 
 for estates to become subject to division once in each genera- 
 tion, with the risk of passing into the hands of new purchasers 
 having no ancestral connection with land. It is contended 
 that an heir born to a great position, and trained from his 
 earliest years to make himself worthy of it, acquires habits, and 
 is fortified by motives, which are powerful securities for his 
 future virtue and capacity. This ideal landowner, having been 
 thoroughly instructed in all the manifold duties of property 
 during his father's lifetime, and conscious that a large body of 
 tenants and dependants look to him for guidance and example, 
 enters upon the management of his estate in a spirit altogether 
 superior to commercial self interest, prepared to do for it what 
 no mere land-speculator would think of doing, and no small 
 proprietor could afford to do. If he is a religious man, he 
 builds churches in neglected hamlets ; if he is an agriculturist, 
 he sinks more in drainage and farm buildings than he will ever 
 live to receive back in rent ; if he is a social reformer, he erects 
 model cottages, carries out sanitary improvements, patronises
 
 396 THE LAW AND CUSTOM [Brodrick. 
 
 schools, or devotes himself to bringing forward the most 
 promising youths in the parishes of which he is lord. In all 
 these enterprises, as well as in the unpaid services which he 
 renders on the magisterial bench, on local boards, and in the 
 varied spheres of influence open to resident landlords, he is 
 actuated by no hope of pecuniar}^ reward or even of personal 
 gratification, but rather by that peculiar sense of honour, com- 
 pounded of public spirit and family pride, which has played so 
 large a part in the history of England. His character, thus 
 developed, exhibits a marked individuality, but it is by no 
 means a one-sided individuality. With education enough to 
 understand the economical and legal questions which he is 
 daily called upon to settle in practice ; with leisure enough to 
 follow the course of affairs both at home and abroad ; with 
 refinement enough to appreciate art and literature ; with energy 
 enough to enjoy a life of constant activity in which "county 
 business " is relieved by field sports and a laborious summer 
 holiday ; with independence enough to smile at official favours 
 or displeasure ; the model English country gentleman repre- 
 sents a species which has never been developed in any other 
 country, and the absence of which goes far to account for the 
 failure of local self-government in France. Is it, we are asked, 
 a legitimate object of state policy to promote the gradual 
 extinction of this class, and meanwhile to disorganise the whole 
 structure of family life within it, for the sake of any doubtful 
 advantage that may be gained by a wider distribution of pro- 
 prietary rights ? 
 
 Such a landlord as has been described may be taken as the 
 embodiment of the lilnglish landed aristocracy, as it should be, 
 from the political and social point of view. Possibly an equally 
 attractive and not less faithful picture might be drawn of a 
 landed democracy, as it should be, illustrated by Swiss and 
 American experience. We have not, however, to deal with ideals, 
 but with realities ; not with exceptions, however numerous, 
 but with general tendencies. Let it be granted, once more, 
 that a high standard of political and social responsibility is 
 recognised by a very large number of English country gentle- 
 men — the special products, ex hypothcsi, of I'rimogeniture ; 
 and, further, that an institution so bound up with much that is 
 admirable should not be lightly disturbed. Still, we are bound 
 to in(j[uire whether these results have not been purchased too 
 dear; wlicther the continued mainlonance of Primogeniture in
 
 OF PRIMOGENITURE. 397 
 
 its integrity involves no countervailing evils, and whether a 
 nearer approximation to ancient usage and foreign codes of 
 land-tenure might not conduce to greater stability and greater 
 unity in our body politic. 
 
 It is certainly impossible to ignore the grave political danger 
 involved in the simple fact that nearly all the soil of Great 
 Britain, the value of which is so incalculable, and progressively 
 advancing, should belong to a section of the population rela- 
 tively small, and progressively dwindling. More than twenty 
 years ago, Mr. Porter, a very high authority on economical 
 statistics, arrived at the conclusion that " with scarcely any 
 exception, the revenue drawn in the form of rent has been at 
 least doubled in every part of Great Britain since 1790." In 
 the period which has since elapsed the same causes have con- 
 tinued to operate with still greater activity. It was stated in a 
 report issued by Mr. Goschen, as President of the Poor-Law 
 Board, that the annual value of lands, houses, railways, and other 
 property in the United Kingdom assessed to the income tax, 
 under Schedule A, rose from ;^53,495,375 to ^143,872,588 
 between 1814 and 1868; and this must be exclusive of the 
 immense sums (estimated by Mr. A. Arnold at ^-/^ 100,000,000) 
 received by the landed interest from railway companies, over 
 and above the market price of the land thus sold. From the 
 last Report of the Inland Revenue Office it appears that the 
 assessment of the United Kingdom, under Schedule A, 
 amounted to more than ;^i 50,000,000, and that of England 
 and Wales alone to ;!^i22,599,255, in the year 1873-4, and 
 the Commissioners give reasons for believing the real advance 
 in the value of landed property to have been much greater. 
 But it is the less needful to enter minutely into any such 
 calculations, inasmuch as it is not disputed that for many years 
 past the rental of England has been constantly on the increase; 
 while __the fact that persons are willing to invest in land at a 
 low present rate of interest is the best proof either that a 
 further increase in its annual value is expected, or that its 
 annual value is no measure of its real worth to a purchaser. 
 In short, the man who buys land buys not only what may pay 
 him so much per cent., but what may give him social position, 
 and power over his tenants and neighbours. It is precisely 
 this which renders the undue concentration of landed property 
 so detrimental to public interest in quiet times, and so perilous 
 to its possessors in times of revolution. We have seen that,
 
 398 THE LAW AND CUSTOM [Brodrick. 
 
 whether the aggregate number of EngHsh landowners be stated 
 at more than 900,000, or less than 50,000, a few hundreds of 
 them possess more land than all the rest together, having 
 dominion, moreover, over the greater part of London itself, 
 and many of our provincial capitals. Had the legal rights 
 actually possessed by such proprietors as the Marquis of West- 
 minster been strained to the utmost, instead of being exercised 
 for the most part with forbearance and discretion, legislative 
 interference would assuredly have been needed to avert a 
 revolutionary solution of the English land question. Very 
 serious issues, too, have already arisen in England upon which 
 the interests of rural landowners have been ostensibly in 
 antagonism with those of the commercial and industrial classes. 
 Still more serious risks of collision between town and country 
 are foreshadowed by recent events in France, where the millions 
 of peasant proprietors constitute the one great barrier against 
 Communism. Were it possible to imagine a similar crisis 
 occurring in England, it is to be feared that no similar barrier 
 could be presented by the handful of great proprietors, how- 
 ever powerful their existing influence, who have profited so 
 enormously, and with so little effort of their own, by the grow- 
 ing prosperity of the country during the present century. 
 
 In the next place, we cannot and must not "ignore the less 
 favourable aspect of Primogeniture, in its relation to public 
 life and national energy. Mr. W. L. Newman, in a remarkable 
 essay on the " English Land Laws," speaks of their tendency 
 " to establish in the centre of each family a magnificently fed 
 and coloured drone, the incarnation of wealth and social 
 dignity, the visible end of human endeavour, a sort of great 
 Final Cause, immanent in every family." Without adopting 
 this somewhat invidious conception of the system, we may well 
 ask ourselves whether it is, on the whole, for the public good 
 to encourage the development of a class wholly dependent on 
 birth, and independent of merit, for the command of all that 
 makes life desirable. Berkeley asks — " What right hath an 
 eldest son to the worst education?" and Bacon, after describing 
 a new expedient for defeating the recent legislation against 
 entails, touches in a pregnant sentence the very bottom of tliis 
 question : — " Therefore, it is worthy of good consideration, 
 whether it be better for the subject and sovereign to have lands 
 secured to men's names and blood by perpetuities, with all the 
 inconveniences above-mentioned, or to be free, with hazard of
 
 OF PRIMOGENITURE. 3991 
 
 undoing his house by unthrifty posterity." No doubt Primo- 
 geniture creates a "leisure class," but is this an unmixed 
 benefit? "Leisure" may be essential to sesthetic and intel- 
 lectual culture, but it is the leisure earned by honourable 
 exertion or guaranteed by a discriminating use of endowments, 
 not the leisure inherited as a right attaching to private property. 
 It would be difficult, indeed, to show that our peerage and 
 landed aristocracy, with all their overwhelming advantages, 
 have contributed one-half so much to science, literature, or 
 art, as the rest of the community who have been thrown upon 
 their own labour for the means of making their bread. Even 
 in politics, where eldest sons long enjoyed a precedence that 
 might easily have proved exclusive, younger sons and men of 
 no family at all have more than equalled them in the attain- 
 ment of great eminence ; and it is no absurd opinion that 
 England would have produced a larger number of really 
 illustrious men, if she had abandoned Primogeniture long ago. 
 Were the inheritance of a great name and fortune a security 
 for public virtue, we should expect to find the standard highest 
 in the most exalted order of our nobility ; whereas it is too 
 notorious to need specific demonstration that an exceptional 
 indilTerence to such motives has of late been manifested by 
 persons of ducal rank. No doubt, these are exceptions, but 
 they are by no means rare exceptions. They are exceptions, 
 moreover, of which Primogeniture must bear the whole dis- 
 credit, for they are the direct result of settling princely 
 temtories upon unborn heirs, of whose capacity and character 
 there is not the smallest presumption. On the other hand, the 
 whole credit of instances, happily more numerous, in which a 
 noble estate is nobly administered, cannot fairly be assigned to 
 Primogeniture. Before we can be assured that society is a 
 clear gainer by the existence of a great landowner, combining 
 every perfection of his type, we must be satisfied that he does 
 more good than all the yeomen whom he displaces, and more 
 than he would have done himself if compelled to win his own 
 position in the world, perhaps struggling, like WaiTen Hastings, 
 for the redemption of a lost patrimony. 
 
 .Indeed, the merits so freely claimed for Primogeniture 
 from this point of view, only appear irresistible so long as we 
 leave out of sight those which may be claimed for the alter- 
 native. When, for instance, it is urged that no incentive to 
 honourable ambition is so potent as the prospect of founding
 
 400 THE LAW AND CUSTOM [Brodkick. 
 
 a family, it is forgotten that, whatever be the force of this 
 incentive, it is exhausted by one individual to the detriment of 
 his descendants. The first bearer of a title may have rendered 
 important services to the State in the attempt to achieve 
 success ; but no sooner is success achieved, than an indefinite 
 series of male successors is placed above the operation of the 
 very motives which inspired and ennobled the exertions of 
 their ancestor. Again, when it is contended that Primogeni- 
 ture keeps up the local settlement of families, which is assumed 
 to be an unmixed benefit, it is entirely forgotten that while it 
 roots the elder branch for the time being in the soil, it uproots 
 all the others. The eldest male in each generation is selected 
 to occupy the family mansion and estates, but the other mem- 
 bers of the family are by the same act divorced from the place 
 of their birth, and scattered abroad to seek their living in 
 other parts of England, in the metropolis, or in the colonies. 
 This dispersion of families, which does not equally prevail in 
 any other class, is, in fact, often represented as one of the 
 blessings incident to Primogeniture. It is by no means 
 uncommon to hear eloquent discourses on the happiness of 
 younger sons in having to start in life without a competence, 
 and especially without a competence in land, by persons to 
 whom it never occurs that, if the heritage of poverty be so 
 enviable, it would not be difficult to devise means whereby it 
 might be shared by eldest sons also. 
 
 Equally delusive is the notion that Primogeniture operates 
 as a democratic solvent upon the landed gentry, inasmuch as 
 younger sons, who might otherwise help to form an exclusive 
 aristocracy, are thus constantly thrust down into the plebeian 
 class. The fusion of the upper and middle classes in England, 
 so far as it exists at all, is not the effect of Primogeniture, but 
 of national temperament. In Germany, where titles descend 
 to younger sons, the utmost insolence of fiimily pride is mani- 
 fested by the poorest scions of nobility ; in America, where 
 popular opinion almost enforces the equal division of property, 
 social eciuality is complete, and }oungcr sons are more in- 
 dustrious than in England. In short, men's habits and bearing 
 are governed rather by early training than by future prospects ; 
 and a youth brought up in one of our ducal palaces, though 
 destined to be cut off with a beggarly fortune, is more likely to 
 be an aristocrat in character than if brought up in a frugal home 
 with great expectations.
 
 OF PRIMOOENITURE. 40C 
 
 But these are not the only, or the main, fallacies which 
 beset the social argument in favour of Primogeniture. Tliat 
 argument rests upon the further assumption that entails and 
 settlements are, at least, effectual to give us a resident pro- 
 prietary capable of discharging the first duty of property, by 
 developing to the utmost the productive energies of the soil 
 This assumption will scarcely bear examination by the light of 
 every-day experience. Instead of Primogeniture creating a 
 wealthy resident proprietary, it is certain that it produces, and 
 almost demonstrable that it must produce, the very opposite 
 effect. Out of three English proprietors owning above 100,000 
 acres each, two have properties scattered, respectively, over 
 eleven counties. Most of our great aristocratic houses possess 
 more than one family place. It is impossible for the head of the 
 family to reside continuously at each; during the whole I.ondoa 
 season he is nominally in attendance on the House of Lords, and, 
 unless he is excei)tionally conscientious, he easily satisfies him- 
 self with a flying visit once a year to his less favoured estates. 
 In short, absenteeism is the inevitable consequence of a system 
 which concentrates landed property in few hands, and, where 
 absenteeism exists, the raison d'etre of Primogeniture is 
 materially weakened. But this is not all. Entails and settle- 
 ments provide an ample security against landed property being 
 divided according to the dictates of natural atifection, but they 
 provide no adequate .security against its remaining practically 
 without a responsible owner during a whole lifetime, or eveu 
 against its ultimately passing into the hands of strangers. If a 
 duke ruins himself by gambling, and is declared bankrupt, his 
 domains may be managed for the sole benefit of his assignees 
 during half a century, unless he can obtain the concurrence of 
 his eldest son to sell them outright. In this case, the whole 
 inheritance of a family may be converted into money at a 
 stroke by collusion between two of its members, for the ex- 
 clusive profit of themselves or their creditors, without the 
 semblance of consent on the part of the younger children and 
 junior branches, who are supposed to have a moral, if not a. 
 legal, interest in the land thus alienated. It is true that where 
 such things happen — and such things do happen — the farmers 
 and cottagers on the estate usually change masters for the 
 better, and this fact points to what is the inherent weakness of 
 Primogeniture, economically considered. It vests the control 
 of property, wherever it prevails, not in a series of hereditaiy 
 
 A A
 
 402 THE LAW AND CUSTOM [Brodrick. 
 
 landowners, but in a series of hereditary life-tenants, or " limited 
 owners," as they are now called, without the full rights and 
 sense of proprietorship, sometimes heavily embarrassed, and 
 almost always with a standard of unproductive expenditure 
 more than commensurate with their means. Let it be granted 
 that somewhat undue stress has been laid on this particular 
 topic by some opponents of Primogeniture, who measure its 
 economical defects by the whole difference between the actual 
 produce of England, and that which might be realised if the 
 entire area of the country, including the waste lands, were 
 brought into the very highest state of cultivation. Let it be 
 granted also that ancestral connection may count for something 
 against a superior command of capital available for agricultural 
 impro\ements, that rents are seldom excessive on settled 
 estates, and that, until the poor in country districts can be 
 raised to greater independence, they might often suffer by the 
 substitution of stricdy commercial relations for their present 
 semi-feudal connection with the family on whose property they 
 are settled. Still, we may confidently appeal to persons con- 
 versant with the sale of land to confirm the inference deducible 
 from the laws of political economy — viz., that, in the majority 
 ■of instances, when land comes into the market, it passes from 
 worse into better hands, and that, consequently, so far as 
 Primogeniture artificially obstructs Free Trade in land, and 
 saves the estates of spendthrifts from partition, it works a 
 substantial injury to society. The new purchaser may be 
 comparatively ignorant of country life, but he is not encumbered 
 by rent-charges of indefinite duration, by mortgages contracted 
 to pay off his father's debts, by dynastic traditions of estate- 
 management, by the silly family pride which must needs 
 emulate the state of some richer predecessor, by the passion 
 for political dictation to which the refusal of leases is so fre- 
 quently due, or by the supposed necessity of satisfying the 
 supposed expectations of the neighbourhood. Having no 
 liabilities of a past generation to discharge, he can make a 
 liberal provision for younger children out of his rental, by way 
 of life insurance or otherwise ; and if this should not suflice 
 with such addition as he may be able to make from invested 
 funds, there is nothing to prevent his leaving them portions of 
 the estate or directing portions to be sold for their benefit. 
 Meanwhile, he is master of his own property, and free to 
 develope its resources without feeling that he is either com- 
 promising or unjustly enriching an eldest son.
 
 OF PRIMOGENITURE. 403 
 
 This brings us back to what may be called the domestic 
 aspect of Primogeniture ; that is, to its influence upon the 
 happiness and welfare of the households immediately affected 
 by it. Apart from the question whether upon other grounds it 
 is expedient, in the interest of the State, to perpetuate a landed 
 aristocracy, we have to consider the question whether the 
 English institution of Primogeniture conduces to family peace 
 and virtuous conduct within that aristocracy. This is a question 
 which has been very fully discussed by Mr. Locke King and 
 Mr. Neate, the latter of whom specially insists on the humilia- 
 ting and unbecoming position in which the father as life-tenant 
 is placed towards the eldest son, as tenant-in-tail in remainder. 
 " It is a hard thing," he says, " for a father to have to confess 
 and excuse his extravagance to a son, or to justify his desire for 
 a second wife. It is a worse thing for a son to judge of his 
 father's excuses, or to decide virtually, as head of the family, 
 whether it is right that his father should be allowed to marry 
 again." Yet this is but one of the forms in which our system 
 of entails operates to sow discord and undutiful feeling in 
 families. Long before the heir to a great estate emerges from 
 boyhood, he is made aware that his fortune does not depend 
 on his father's will or his own deserts. He soon learns to 
 consider the estate as iiis, subject only to his father's life- 
 interest, and expects to receive an allowance making him to 
 live in idleness, so that a double burden is laid upon the land 
 for the support of two establishments yielding no agricultural 
 return. As the father grows older, and the son's expectation of 
 succeeding becomes nearer and nearer, painful jealousies are 
 very apt to spring up between them, till at last, perhaps, not a 
 lease can be granted or a fall of timber authorised, lest it may 
 prejudice or be represented as prejudicing the reversion. Of 
 course, there are many examples of families owning settled 
 estates, where the fatlier and eldest son work together in 
 harmony, both looking upon themselves as trustees not only 
 for the rest of the family, but for all placed under their control. 
 But it is self-evident that an indefeasible right of succession 
 vested in the eldest son must tend to weaken parental autho- 
 rity, and to facilitate borrowing money upon the security of 
 reversionary interests. 
 
 We have already seen that it is fallacious to speak generally 
 of Primogeniture as inflicting injustice upon younger children. 
 It is, however, equally fallacious to describe it as securing 
 younger children, regarded individually, a full equivalent for an
 
 404 THE LAW AND CUSTOM [Brodrick. 
 
 equal share of the family heritage upon the father's death. In 
 what does this imaginary equivalent consist ? Certainly not in 
 anything capable of being reduced to a definite conception, 
 unless it be the enjoyment of a rank determined by that of 
 their elder brother, and of a claim on his influence for their 
 advancement in life, as well as the maintenance at his expense 
 of a country seat where they are welcome and honoured guests. 
 Of these privileges, the two last depend entirely on their 
 remaining on good terms with the head of the family, whose 
 interest naturally centres in his own children rather than in his 
 father's children, and whose residence, however freely thrown 
 open to them, cannot after all be treated as their home. As 
 for the first privilege, it may well be doubted whether rank or 
 status out of proportion to a man's pecuniary means be not an 
 encumbrance rather than a boon. To have acquired, under a 
 parent's roof, habits, tastes, and ideas of style which cannot be 
 gratified in maturer years without running into debt, has been 
 the ruin of many a promising career. To this cause, more than 
 any other, is traceable the self-imposed celibacy too prevalent 
 among younger sons of good family in the metropolis, and 
 inevitably prejudicial not to morality only, but to steadiness 
 and earnestness in practical work. By this cause more than 
 any other was fostered the shameful jobbery of former days, 
 when the Church, the Army, and the Civil Service were refuges 
 for the privileged destitute, and junior members of the aris- 
 tocracy were said to rely on the Budget for their ways and 
 means. Now that patronage has been most properly restricted, 
 that capital and mercantile connection is almost essential for 
 success in business, and that even the Bar is becoming more 
 and more dependent on the lower branch of the legal profes- 
 sion, it is very doubtfiil whether younger sons of county families 
 stand a fair chance in the race of life against young men of 
 the middle class with equal fortunes, more active backing, less 
 sensitive feelings, and a more utilitarian education. If they 
 have no right to complain of a lot which appears very enviable 
 to most of their countrymen, and which only needs exceptional 
 energy to make it so, yet they owe no gratitude to a system 
 which inverts the natural order of human life, accustoming them 
 to ease and luxury in youth, but offering them no adequate pro- 
 vision either for an early settlement or for an early retirement. 
 
 From every point of view, then, we are led to an adverse 
 judgment on the extreme development of Primogeniture estab-
 
 OF PRIMOOENITURK. 405 
 
 lished in England by the joint operation of law and custom. It 
 must be condemned, politically, as aggravating the perilous 
 dualism of town antl country ; as aftbrding the very minimum 
 of constitutional stability to be derived from the conservative 
 instincts of proprietorship ; and as giving a very limited body 
 of landlords a preponderance in the State, none the less un- 
 reasonable and obnoxious because it is defended on the 
 untenable ground that it is bound up with the existence of 
 the Upper House. It must be condemned, socially, because 
 it helps to stereotype the caste-like organisation of English 
 classes '' in horizontal layers," setting up in thousands of 
 country parishes a territorial autocracy, which, however 
 benevolently exercised, keeps the farming and labouring 
 population in an abnormal state of dependence on a single 
 landowner, while the rural districts have gradually been deserted 
 by the lesser gentry who hel[)ed to bridge over the chasm 
 between rich and poor in ancient times. It must be con- 
 demned, economically, because it cramps the free play of 
 economical laws in dealings with land, multiplies the difficul- 
 ties and cost of transfer, and discourages a far-sighted application 
 of capital to agriculture, either by the landlord, who is usually a 
 mere life-owner, or by the tenant, who seldom holds a lease. 
 It must be condemned, morally, because it holds out to almost 
 every eldest son in what must still be regarded as the governing 
 class the assurance of wealth and power, whether he be worthy 
 of it or not, and subject to no condition but that of surviving 
 his father. Lastly, it must be condemned, in the interest of 
 family government, because it fatally weakens the authority of 
 parents over eldest sons, and introduces a degree of inequality 
 into the relations of children brought up together, which often 
 mars the cordiality of their intercourse in after lite. 
 
 V. These considerations are amply sufficient to prove the 
 expediency — not to say the necessity — of reforming the insti- 
 tution of Primogeniture, so far as it depends on law. Upon 
 one principle to be embraced in any such reform, public 
 opinion has long pronounced itself so decisively that it may be 
 taken as already conceded. This principle is the assimilation 
 of real to personal property, in respect of distribution on in- 
 testacy. Even the stoutest adherents of Primogeniture, as a 
 custom, are beginning to allow that, in default of a will or 
 settlement, the law should incline to equality, especially as 
 intestacies are more likely to occur in poor than in wealthy
 
 406 THE LAW AND CUSTOM [Brodrick. 
 
 families. To what extent a change in the law of succession on 
 intestacy would affect the practice of testators and settlors is a 
 matter of mere speculation, on which it would be rash to speak 
 confidently. Many are of opinion that no legal presumption 
 in favour of equal partition would avail in the least to counteract 
 the rooted propensity of Englishmen, once possessed of land, 
 to found and keep up a family, but that, on the contrary, 
 people who are now content to die intestate would forthwith 
 make wills disinheriting all their children but one. This opinion 
 appears to derive some little weight from the history of landed 
 property in Kent, where a great many estates have been dis- 
 gavelled, and where it is said that wills are not more favourable 
 to younger sons than in the rest of the island. Others believe 
 that a deliberate reversal of the policy hitherto sanctioned by 
 the Legislature would exert a powerful influence on popular 
 sentiment, and, coupled with the direct operation of the new 
 law, would leave a very sensible impression on the rural 
 economy of England within two or three generations. In 
 support of this belief, it may be urged that, in a vast number 
 of cases, the form of settlements and wills is practically dictated 
 by the solicitors who frame them, and who themselves follow, 
 more or less exactly and more or less consciously, the course 
 prescribed by the law on intestacy. A man informs his 
 solicitor that he knows little of legal phrases, but that he 
 wishes to settle his property strictly in the usual and right 
 manner; upon which the solicitor makes a will, giving all the 
 land to his eldest son, and dividing the personalty, if any, 
 among his widow and children, nearly in accordance with the 
 Statute of Distributions. So close is the correspondence of 
 the custom of the law, that whereas, in default of sons, the 
 law vests the land in all the daughters and not in the eldest 
 daughter only, the same rule is adopted, with very slight varia- 
 tion, in most wills and settlements of realty. Were the law 
 altered, however, and especially were it altered after a thorough 
 discussion of the whole question, the uniformity of these usages 
 would be effectually broken. Solicitors would feel bound to 
 ask for more precise instructions from their clients ; testators 
 and settlors would more fully realise their responsibility ; and 
 the dispositions of landed property hitherto embodied in the 
 common forms of conveyances would have to be reconsidered 
 by the light of modern ideas. Here and there an old property 
 would devolve to several children under the law of intestacy,
 
 OF PRIMOGENITURK. 407 
 
 and yet would be kept in the family by means of such fraternal 
 arrangements as are made every day on the Continent. A few 
 instances of this kind would go far to dispel prejudices against 
 equal partition, while, in the case of properties to whicli no 
 family sentiment attaches, directions to sell and divide the 
 proceeds in specified proportions could hardly fail to supersede, 
 by their superior convenience, the plan of devising to one child 
 and charging portions for all the rest. Indirectly, therefore, 
 the mere assimilation of real to personal estate, on intestacy, 
 would probably effect a considerable though gradual revolution 
 in the English land system, even though not supplemented by 
 any other enactment. 
 
 Such is the object of Mr. Locke King's original Bill " for 
 the better settling the Real Estates of Intestates," introduced 
 in the Session of 1859, and re-introduced by Mr. T, B. Potter 
 in the present Session (1876). This Bill provides that where 
 any person beneficially entitled to any real estate shall die with- 
 out a will, that estate shall pass to his executor or administrator, 
 and shall be either divided or sold, exactly as if it were per- 
 sonalty, for the benefit of creditors and the next of kin. A 
 "Real Estate Succession Bill" of the same general character 
 was introduced by the Government in the Session of 1870, but 
 that Bill, unlike Mr. Locke King's, was intended to cover 
 legal, as well as equitable, or beneficial, estates, while it in- 
 cluded various saving clauses more or less open to criticism. 
 A third Bill, introduced by Mr. Locke King and Mr, Hinde 
 Palmer in the Session of 1873, after providing against certain 
 technical difficulties, embraced within its definition of real 
 estate every kind of property which is not personal estate. 
 Not one of these Bills, however, goes the length of vesting in 
 the executor realty passing by devise, in the same manner as 
 personalty, including leaseholds, passing by bequest, vests in the 
 executor under the existing law. Nor does any provide that 
 real estate, passing by descent or devise, shall cease to be 
 exempted from the probate duty imposed on personalty. Still 
 less does any interfere with the rule under which a person 
 succeeding to real estate, though he may inherit in fee simple, 
 is charged with succession duty on his life interest only, and i-s 
 permitted to pay this duty by instalments— a rule which amounts 
 to a legislative protection of landed property against a salutary 
 liability to dispersion. 
 
 A far more serious and difficult issue arises upon the
 
 4o8.- THE LAW AND CUSTOM [Brodrick. 
 
 various proposals for amending the existing law of entail and 
 settlement. These proposals usually assume one of two 
 general forms, widely differing, in principle, from each other. 
 Either they contemplate a reconstruction of our land system on 
 the model of the Code Napole'on, or they are directed to a 
 simple restriction of the power whereby estates can be tied up 
 fior a life or lives in being, and a period of twenty-one years 
 afterwards. Both of these schemes purport to promote Free 
 Trade in land, and to check its aggregation in the hands of an 
 exclusive aristocracy : the former, by constantly and forcibly 
 breaking up properties into fragments, easily saleable ; the 
 latter, by prohibiting or curtailing the limitations which prevent 
 their coming into the market. Thus, both involve an abridge- 
 ment of the liberty now enjoyed by English settlors and 
 testators, but with this important difference, that whereas the 
 ©ne scheme would only abridge the liberty of a bygone genera- 
 tion to control the action of the living generation, the other is 
 directly at variance with full individual proprietorship. Under 
 the French system of enforced partible succession the property 
 of each citizen is rigidly settled, with the exception of a fixed 
 disposable portion, but the settlement is made by the State, 
 instead of by himself, and therefore without regard to peculiar 
 family circumstances. The causes which facilitated the intro- 
 duction of this great legal revolution into France have been 
 explained by MM. de Tocqueville and Lavergne, and Mr. 
 Cliffe Leslie has done much to repel the objections, both social 
 and agricultural, which have been persistently urged against it 
 in this country. It is a remarkable fact that no French Govern- 
 ment, whether Legitimist, Orleanist, Imperial, or Republican, 
 has ever attempted to reverse it ; nor can we fail to be struck 
 by the opinion so generally expressed in the Reports above 
 cited, that in countries which have borrowed this article of the 
 Code Napoleon it is believed to work beneficially. On the 
 other hand, it is not less significant that no practical English 
 statesman has ever advocated its adoption, and that even those 
 English theorists who have least sympathy with the rights of 
 property have apparently no great partiality for the agrarian 
 constitution of France and lielgium. Their ideal is not the 
 infinite disintegration of landed property among peasant 
 owners, which they would regard as a retrograde measure, but, 
 on the contrary, its concentration in the hands of one national 
 kmd commission, or a number of municipal land commissions,
 
 OF PRIMOGENITURE. 409,. 
 
 under whom private individuals, if allowed to call any land 
 their own, must be content to hold leases. With that far 
 larger and more important class who are engaged in amassing 
 wealth in the assured hope of leaving it as they please, enforced 
 partible succession would assuredly find as little favour as with 
 the landed aristocracy ; and if there be a leaning in this class 
 towards any foreign land law, it is not towards that of France, 
 but towards those of the United States and our own colonies. 
 As for the great mass of Englishmen, it may be taken as certain 
 that a law placing the State /// loco parentis, and declaring that 
 a father who has made his own fortune shall not be free to deal 
 with it by will, or to disinherit a child, however worthless and 
 ungrateful, would be in the highest degree unpopular. Upon 
 these grounds, apart from all economical considerations, we 
 must dismiss this proposal as an impossible solution of the 
 problem before us — impossible because it would satisfy no class 
 or school of thought in England, because it has no foundation 
 to support it in the organic framework of English society, and 
 because the very ideas necessary to lay such a foundation are 
 entirely wanting. It would be rash to assert that so direct an 
 interference with personal rights will never be accepted by this 
 country, but we may safely assert that if the only alternative to 
 English Primogeniture were indefeasible equal succession, that 
 institution would probably fulfil the prediction of Adam Smith, 
 and survive for generations longer. 
 
 For difterent, but ecjually cogent reasons, we must reject as 
 impracticable the bold suggestion of Mr. J. S. Mill, who con- 
 demns both the English and French rules of succession, that 
 it would be expedient to restrict, " not what any one may 
 bequeath, but what any one should be permitted to acquire by 
 bequest or inheritance," so that it should not exceed a maxi- 
 tiiiim " sufficiently high to afford the means of a comfortable 
 independence." A very little reflection upon the practical 
 application of this suggestion ought surely to convince us that 
 even if it were possible to make it the basis of a testamentary 
 code, it would be hopeless to carry it out with any approach to 
 real equity. But a detailed criticism of it would here be out of 
 place, because it is not so much designed to check the abuses 
 of Primogeniture as to realise a favourite idea of Bentham, by 
 diverting the surplus of private accumulations into the public 
 treasury — an object which may or may not be desirable in itself, 
 but which is beyond the legitimate scope of our present inquiry.
 
 410 THE LAW AND CUSTOM [Brodrick. 
 
 By what means, then, can the vices inherent in the English 
 system of entail and settlement be remedied without impeach- 
 ing the essential rights of proprietorship and disposition? 
 According to some law reformers, nothing more is required for 
 this purpose than a simple legislative prohibition of entails 
 upon unborn children. There can be no doubt that such a 
 measure, if so framed as to exclude the evasion of its principle 
 by the creation of "powers" or otherwise, might reduce by 
 twenty-one years the period for which land can be lawfully kept 
 extra commercium by the force of a single instrument. But it 
 would leave the mischief of limited ownership and contingent 
 incumbrances wholly untouched within the allotted circle of a 
 life or lives in being, or rather, it would stimulate family pride 
 and legal ingenuity to devise new modes of settlement which 
 should make up by their greater complexity for the brevity of 
 their restrictive operations. Indeed, it is quite possible that a 
 mere prohibition of entails upon unborn children, without any 
 further change in the law, would have less practical effect than 
 some minor amendments of a less sweeping character. In the 
 first place, a broad distinction might be drawn between settle- 
 ments made by will and settlements made by deed inter vivos, 
 especially upon marriage. Posthumous dispositions of all 
 kinds are watched in these days, on very sufficient grounds, 
 with increasing jealousy, and posthumous entails are liable to 
 peculiar objections which do not attach to others. When they 
 are derived from wills executed in prospect of death, they are 
 far more likely to be capricious and self-defeating than if 
 they had originated from the same mind in the full vigour 
 of life ; if the will has been executed long before the testator's 
 death, from which it, nevertheless, " speaks," it may not 
 represent his final intention, and may even contravene 
 his first intention, owing to circumstances which have 
 occurred since the date of its execution. In any case, the 
 power of entailing by will is exercised secretly, and with 
 much less security for deliberation than is afforded by the 
 negotiations that usually precede a marriage settlement, which 
 is manifestly, of all settlements, the one entitled to most indul- 
 gence. Upon this ground a second distinction might be drawn 
 between entails upon the unborn children of the settlor himself 
 and entails upon the unborn children of some other person. 
 It may, possibly, be reasonable to allow a man about to marry 
 the power of providing for his own unborn children by an ante-
 
 OF PRIMOGENITURE. 4H 
 
 nuptial settlement, and yet quite unreasonable to entrust the 
 same power to a stranger, animated, perhaps, with the senseless 
 ambition of immortalising an ignoble name. But it may well 
 be doubted whether it can ever serve any good end that a 
 bachelor should be enabled to designate as his heir a child 
 which may never be born, so irrevocably as to defeat his own 
 capacity of choosing among his children when they are born, 
 or rather when their characters are sufficiently formed. This 
 anomaly miglit be rectified by an enactment importing into 
 every settlement, by implication of law, a power of appoint- 
 ment, to be exercised at the discretion of the father, but only 
 among the children, and, when exercised, to override the entail. 
 It miglit also be provided that every tenant for life under an 
 ordinary family settlement should have the power, by a like 
 implication of law, to charge the estate, for the benefit of his 
 wife or younger children, to an amount bearing a stated pro- 
 portion to its annual value. The proportion so fixed would 
 thenceforth constitute, so to speak, a legal standard of family 
 justice, and though its adoption would be permissive and not 
 compulsory, the consciences of many would be awakened to a 
 sense of their parental obligations, till it came to be thought 
 a disgraceful thing for a nobleman with ^50,000 a year to cut 
 off his daughters, either married or single, with portions of 
 ^5,000 or ;^io,ooo. 
 
 A far more eftective blow might be struck at Primogeniture, 
 as founded on family settlements, by absolutely putting an end 
 to life-estates in land. Supposing this to be done, but the right 
 of entailing to be preserved, each successive head of a family 
 would be left to inherit the undivided property as tenant-in-tail 
 instead of as tenant for life, unless the entail had been cut off 
 by his predecessor. The chief difference from the fiimily point 
 of view would be that eldest sons, being entirely in the i)ower 
 of their fathers, who might exercise the right of disentailing at 
 any moment, would be, as it were, bound over in heavy recog- 
 nisances to good behaviour. The chief difference from the 
 economical point of view would be, that by virtue of the same 
 right the ostensible owner of a property might charge it for his 
 debts to its full value, instead of only to the value of his life 
 interest. It is, however, incredible that, under such a law, the 
 passion for making eldest sons would remain unabated. Since 
 younger children would be consigned to beggary, where the 
 father's property consisted solely or mainly of land, unless they
 
 412 THE LAW AND CUSTOM [Brodrick. 
 
 v/ere given shares of it or charges upon it, a universal custom 
 of breaking entails for this purpose would probably spring up, 
 and apportionments so made out of a fee-simple estate would 
 almost inevitably be far less influenced by the spirit of Primo- 
 geniture than re -settlements of the prevailing type. 
 
 But, having gone thus far, how can we avoid going one 
 step further? It is self-evident that if life-estates were destroyed, 
 no freehold estates would remain, but estates-tail in possession 
 and estates in fee-simple. Now, since estates-tail in possession 
 are convertible into estates in fee-simple at the will of the 
 owner, who has usually the strongest motive for so converting 
 them, it would appear that very little can be either gained or 
 lost by retaining them. We'are, therefore, once more brought 
 face to face with the prior and larger question, whether any 
 freehold estate in land short of absolute ownership should be 
 recognised by the law. This question is not to be disposed of 
 by dogmatic assertions that whatever rule be applied to realty 
 must be applied to personalty likewise. To such assertions a 
 controversialist might rejoin that personalty and realty have 
 not in past times been treated by the law on this footing of 
 equality. For instance, the heir taking all the land on in- 
 testacy, was specially exempted from the rule that sums ad- 
 vanced to sons in their father's lifetime should be deducted 
 i'rom their shares at his death, while, by a monstrous perversion 
 of justice, a mortgage debt contracted on the security and for 
 the benefit of the land, was primarily chargeable on the per- 
 sonal estate until Mr. Locke King's Act, was passed in 1854. 
 'J'his, however, is not the place to multiply proofs of the 
 partiality formerly shown to land by a legislature principally 
 composed of landowners, still less to discuss the incidence of 
 taxation upon land as compared with personalty. There are 
 very strong reasons for objecting to complicated reservations of 
 future interests in personalty, and for doubting whether the 
 efforts of the dead to regulate the enjoyment of wealth by the 
 living in the interest of the unborn, are sufficiently repressed by 
 the rule against perpetuities and the Thelusson Act. But these 
 reasons have little or nothing to tlo with the law and custom of 
 I'rimogeniture, which must stand or ftill by the peculiar claims 
 and obligations of real property. We are here concerned with 
 the settlement of land, and of land only ; nor is it difficult 
 to show that land is, in this regard, a thing sui gene/is, 
 over which the State may and ouglit to assume a control, far
 
 OF PRIMOGENITURE. 413 
 
 more stringent than it would be politic to assume, but not than 
 it might rightfully assume, over other kinds of property. The 
 familiar arguments in support of this position are derived from 
 the fact that land is strictly limited in quantity, at least within 
 the borders of each kingdom, and that its resources in a virgin 
 state are not the production of human industry. 'I'hese argu- 
 ments are so far valid as to rebut what does not need to be 
 rebutted — the presumption of any binding analogy between 
 land and money. But the one decisive justification for treating 
 land as an entirely exceptional subject of property is to be 
 found in the entirely exceptional power whicli the possession of 
 it confers. If we contemplate the supreme influence wielded 
 by landowners collectively over the condition and especially 
 over the dwellings of the people, if we remember that upon 
 their estate-management depend the productiveness of the soil 
 and the food-supplies of the country, if we realise that not only 
 is the land in a physical sense " the leaf we feed on " but in 
 a political sense the substratum of our whole administrative 
 machinery, we shall not fail to perceive the full absurdity of 
 postulating that it should be exactly assimilated to stock in 
 plasticity for the purposes of settlement — but not, forsooth, in 
 facility of transfer, in the course of devolution on intestacy, or 
 in liability to probate and succession duties. 
 
 The more thoroughly we appreciate the almost insuperable 
 difficulty of partially reforming an institution so deeply rooted 
 and widely ramified as the custom of entail and settlement, 
 the more irresistible will appear the conclusion that it is better 
 to reform it altogether, by abolishing all kinds of ownership 
 except ownership in fee-simple, with all customary and copy- 
 hold tenures, and by imposing proper restrictions on the length 
 of leases. The conception of such a measure would demand 
 an effort of constructive statesmanship quite as bold as that of 
 the Irish Land Bill, while its execution would affect still vaster 
 interests, and must be spread over a longer period of time. 
 Once carried, however, it would cut half the knots which 
 together make up the English Land Question. One of these 
 knots consists in the difficulty, expense, and delay attending, 
 the transfer of land, especially in small lots, and it is sometimes- 
 assumed, too hastily, that all this could be rectified by a good 
 system of registration, such as exists in most Continental states, 
 where a public court does what is here done by conveyancers. 
 It should be remembered that, even where a transfer of stock
 
 414 THE LAW AND CUSTOM [Brodrick. 
 
 is effected by a mere stroke of the pen, a long and costly 
 investigation must often be previously undertaken on behalf of 
 the trustees who authorise the sale. No system of registration 
 could bring about Free Trade in land under settlement, but a 
 register would become invaluable both to vendors and pur- 
 chasers when every name in it would be that of an owner in 
 fee. Trusts of land, with all their vexatious incidents, would 
 soon be obsolete when there were no reversionary interests to be 
 protected. Mortgages on old family properties would be rarer 
 and more easily cleared off, when every acre of land could be 
 turned into ready money at the owner's pleasure. They would, 
 however, be more frequently contracted on new purchases by 
 capitalist farmers, when it was discovered that it might be 
 cheaper to pay interest to a mortgagee than rent to a landlord. 
 But these advantages, it must be confessed, might perhaps 
 be secured by less radical methods. What cannot be secured by 
 any method consistent with the principle of modern entails is, 
 in one word, unity of proprietorship. A settled estate is an 
 estate which has not, and may never have, a real proprietor. 
 For the common family settlement is a contrivance whereby 
 the land itself may be saved from inorcelkme?it at the expense 
 of the proprietary interest, which is dissected, split up, and 
 parcelled out into more shares than a French lawyer would 
 think possible. This process is repeated in each generation by 
 a family compact between father and eldest son, in which no 
 other member of the family has any voice, yet neither of the 
 parties is truly a free agent, or in a position to reverse the self- 
 renewing dispensation of which they are little more than instru- 
 ments, and no single person can be identified as the author. 
 Now let us assume that, due provision being made for vested 
 interests, all this ingenious network of particular estates, as they 
 are technically called, were swept away by law, and that every 
 acre of English soil belonged absolutely to some assignable 
 owner. Let us, further, picture to ourselves a case in which 
 the operation of the change would be most severely tested — 
 the case of an heir succeeding to a family property strictly en- 
 tailed by its original purchaser and held together for centuries 
 by settlements in the eldest male line, but finding himself at 
 perfect liberty to sell it or devise it as he pleases. This is a 
 case, be it remarked, which, but for the practice of re-settle- 
 ment, would occur daily under the ])resent system, and does 
 occur sometimes, when the eldest son obstinately refuses to
 
 OF PRIMOGENITURE. 415 
 
 commute his estate-tail for a life-estate. It will hardly be 
 disputed that a landowner so circumstanced has a more 
 enviable lot, with greater inducements and greater power to do 
 his estate and all connected with it full justice, than if he were 
 the mere creature of a settlement, but it may be imagined that 
 his gain is more than counterbalanced by some loss elsewhere. 
 Where, then, is this loss, and who is it that suffers by the sub- 
 stitution of ownership for life-tenancy in the case supposed? 
 Not, surely, his ancestors, who, having brought nothing into 
 the world, could not carry anything out, and whose memory it 
 would be superstitious to personify. Not his wife or younger 
 children, whom he is now enabled to endow according to his 
 own convictions of justice, instead of according to a standard, 
 determined by the paramount claims of Primogeniture, before 
 his marriage, if not before his birth. Not his eldest son, who, 
 by the hypothesis, must have come into the world, or at least 
 emerged from childliood, after the alteration in the law, and 
 would have been educated in the full knowledge that his birth- 
 right, if any, was at the disposal of his father. Not any more 
 distant relatives, whose interest in family estates, unless vested, 
 is usually most shadowy and delusive. Not unborn descend- 
 ants, who might possibly inherit if the entail were perpetually 
 renewed, under the present law, but who are equally with the 
 dead beyond the reach of appreciable injury. In short, we 
 strive in vain to discover any specific individual, either in esst' 
 or in J>osse, who could be aggrieved by the legal extinction of life- 
 estates and estates-tail, under proper conditions of time. Still 
 it may be said that " families," that is, territorial families, 
 would sooner or later cease to exist without the artificial safe- 
 guard of complex settlements, and that such a result would 
 prejudice not only the happiness of their members in all 
 succeeding generations, but the welfare of all the rural com- 
 munities grouped around them, and even of the nation at 
 large. And thus we are led back to a point of view from 
 which the actual results of family settlements have already been 
 estimated, and from which it may now be useful to forecast the 
 probable results of the alternative system. 
 
 The first, and not the least salutary, of these would be the 
 strengthening of parental authority in those families where it is 
 most needed. The father is, upon the whole, a wiser lawgiver 
 and a more impartial judge within his own domestic cifcle than 
 any providence of human institution, whether it be embodied
 
 41 6 ' THE LAW AND CUSTOM [Bkodrick. 
 
 in a lifeless deed or in a lifeless statute ; and; as Mr. Locke 
 King justly remarks, " if such a disposer of property did not 
 exist, we should only be too happy to discover such a being." 
 Invested with full dominion over his landed estate, the head 
 of each family would no longer have any cause to be jealous 
 of his eldest son, or feel bound to maintain him in idleness 
 during the best years of his life. Doubtless there would still 
 be a strong disposition in most representatives of old hereditary 
 properties to leave the eldest son, if not unworthy, the principal 
 family domain, with the bulk of the land ; but since he would 
 depend, like his younger brothers, upon his father's award, and 
 could not raise money upon his expectations, he would, like 
 them, betake himself to some profession or business, and en- 
 deavour to increase, instead of diminishing, his future patrimony. 
 In such cases, the position of the younger children would be very 
 much what it is under the present system, during the parent's 
 life ; but even in such cases, and still more in cases where 
 hereditary traditions were less powerful, the father would seldom 
 think himself justified in leaving them a mere fraction of the 
 property at his disposal, and would often direct his outlying 
 estates to be divided among them or sold for their benefit. In 
 these ways land would be constantly " passing out of the 
 family," and thougli some might be left back to it by childless 
 uncles, the unity of family properties would be greatly and 
 progressively impaired. Moreover, now and then a spendthrift 
 who ought to have been disinherited would be allowed to 
 succeed by a too indulgent father, and might gamble away in 
 a year the purchases and improvements of many generations. 
 This being the contingency which settlements on the eldest 
 son are specially designed to prevent, and the occurrence of 
 which is represented by the friends of Primogeniture as an 
 unmitigated calamity, it may be well to pause for a moment, 
 and observe both what it does and what it does not involve. 
 
 That it does not involve any destruction or even any " dis- 
 sipation'' of the land itself is so obvious that nothing but the 
 persistent use of confused metaphors could have obscured it. 
 Money, or money's worth, can be eaten, drunk, thrown into 
 the sea, or otherwise literally consumed in unproductive expen- 
 diture, but a fortune consisting of land can only be scjuandered 
 in the sense of being transferred from the dominion of one 
 man into that of another or several others, which may happen 
 to be the best thing which can befall the soil and all who live
 
 OF PRIMOGENITURE, 
 
 417 
 
 upon it. Considering the enormous injury done to any estate 
 by the life incumbency of one insolvent — not to say, one 
 absentee — proprietor, as well as the well-known tendency of 
 families to degenerate after one such disgraceful interregnum, 
 the burden of proof certainly lies upon those who hold that, in 
 such an event, the greatest happiness of the greatest number is 
 promoted by keeping it undivided and inalienable, lest an 
 ancient feudal name should perish out of the county. But 
 this, as we have seen, is a very inadequate view of the whole 
 case. Might it not be expected that if each successive heir of 
 an illustrious house were actuated at once by ancestral pride 
 and the fear of forfeiting his birthright through misconduct or 
 incompetency, a healthy kind of atavism would develope itself 
 in the landed aristocracy, and the virtues manifested by the 
 founders of families would be more frequently reproduced in 
 their descendants ? Nay, more, does not our knowledge of 
 human nature, confirmed by the experience of Germany, 
 America, and the Colonies, encourage us to hope that in ter- 
 minating all indefeasible rights of succession, we should be 
 unlocking hidden springs of energy and genius, calling into 
 action the mettle of that " lounging class " which is the re- 
 proach of English Primogeniture, infusing unwonted industry 
 into our aristocratic public schools and universities, and making 
 henceforth the antiquity of a family a true mark of hereditary 
 strength ? 
 
 In the meantime, no sudden or startling change would be 
 wrought by the new law in the characteristic features of English 
 country life. There would still be a squire occupying the great 
 house in most rural parishes, and this squire would generally be 
 the eldest son of the last squire ; though he would sometimes 
 be a younger son of superior merit or capacity, and sometimes 
 a wealthy and enterprising purchaser from the manufacturing 
 districts. Only here and there would a noble park be deserted 
 or neglected for want of means to keep it up and want of reso- 
 lution to part with it ; but it is not impossible that deer might 
 often be replaced by equally picturesque herds of cattle ; that 
 landscape gardening and ornamental building might be carried 
 on with less contempt for expense ; that game preser\-ing might 
 be reduced within the limits which satisfied our sporting fore- 
 fathers ; that some country gentlemen would be comi)elled to 
 contract their speculations on the turf, and that others would 
 have less to spare for yachting or for amusement at Continental 
 
 BB
 
 41 8 THE LAW AND CUSTOM OF PRIMOGENITURE. [Brodrick. 
 
 watering-places. Indeed, it would not be surprising If greater 
 simplicity of manners, and less exclusive notions of their own 
 dignity, should come to prevail among our landed gentry, 
 leading to a revival of that free and kindly social intercourse 
 which made rural neighbourhoods what they were in olden 
 times. The peculiar agricultural system of England would 
 remain intact, with its three-fold division of labour between the 
 landlord charged with the public duties attaching to property, 
 the farmer contributing most of the capital and all the skill, and 
 the labourer relieved by the assurance of continuous wages from 
 all risks except that of illness. But the landlords would be 
 a larger body, containing fewer grandees and more practical 
 agriculturists, living at their country homes all the year round, 
 and putting their savings into land, instead of wasting them in 
 the social competition of the metropolis. The majority of them 
 would still be eldest sons, many of whom, however, would have 
 learned to work hard till middle life, for the support of their 
 families ; and besides these, there would be not a few younger 
 sons who had retired to pass the evening of their days on little 
 properties near the place of their birth, either left them by will 
 or bought out of their own acquisitions. With these would 
 be mingled other elements in far larger measure and greater 
 variety than at present — wealthy capitalists eager to enter the 
 ranks of the landed gentry, merchants, traders, and professional 
 men content with a country villa and a hundred freehold acres 
 around it, yeoman-farmers, and even labourers of rare intelli- 
 gence, who had seized favourable chances of investing in land. 
 Under such conditions, it is not too much to expect that some 
 links, now missing, between rich and poor, gentle and simple, 
 might be supplied in country districts ; that " plain living and 
 high thinking " might again find a home in some of our ancient 
 manor houses ; that with less of dependence and subordination 
 to a dominant will there would be more of true neighbourly 
 feeling, and even of clanship ; and that posterity, reaping the 
 beneficent fruits of greater social equality, would marvel, and 
 not without cause, how the main obstacle to greater social 
 equality — the law and custom of Primogeniture — escaped 
 revision for more than two centuries after the final abolition of 
 feudal tenures. 
 
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