1 confer a formal and perpetual title, and by the end of the sixteenth century they covered a third of the whole kingdom; many of them survived as late as the middle of the nineteenth century without the legislature troubling itself to amend their imperfections. If, however, we consider that the same persons frequently held both copyholds and freeholds-that is, lands of free tenure; that copyholds in many cases belonged to great nobles; that the time had long passed since their holders formed to any extent a class by themselves; that the peculiar burdens imposed upon them had been so effectually diminished as to afford no obstacle to agricultural progress; and that the system has always been treated as an object of temperate criticism, never as a grievance, we shall recognize the fact that, even as regards copyholds, the feudal system has only survived in legal technicalities, and not in facts of political or social importance.2 As for the mixed elements, at once civil and political, of feudalism—I mean primogeniture and entails—they met with no better fate. The system of great estates 1 The statutes relating to the property qualification of members of Parliament and county magistrates make no distinction between freeholds and copyholds; the income derived from land, which they require, can be drawn indifferently from estates of either tenure. 2 The persistent retention of feudal terms and ceremonies proves, even in the case of copyholds, that the institution had, in reality, ceased to be feudal. If no one objects to the preservation of obsolete forms, it must be because they hurt no one, and because, beneath its disguise, the thing itself has undergone such substantial modifications as have fitted it to the needs of modern society. owned by noble families which exists at the present time is in no sense a legacy of the middle ages, but a creation of the last century. It is now more than 350 years since freedom of testamentary disposition became the rule subject to a restriction which was to disappear in 1669), and the rule of primogeniture was confined to cases of intestate succession. It is now nearly 500 years since the ingenuity of jurists found a means of emancipating real property by collusive legal proceedings, and practically secured to owners of estates very extensive powers of alienation.1 It is instructive to follow, even in the middle ages, the efforts of Parliament to establish and maintain the system of entails, and the invariable failure of these attempts shows clearly the direction and influence of public feeling. All the English jurists, common law judges, equity judges, and lawyers show by turns their hostility to these restrictions upon free disposition. In each century their fertile ingenuity suggests fictitious interpretations and collusive proceedings which nullify all statutory prohibitions. In this work they showed no less energy than did the French jurists in adding to the royal prerogative. Very soon after the conquest freedom of testamentary disposition ceased to exist, and primogeniture was the universal law of all tenures. Under Edward I, the famous statute "De donis conditionalibus." put a stop to freedom of alienation in the case of all fiefs of a certain description, and attempted to create perpetual entails; but lawyers found, in time, more than one way of eluding it, and the Courts lent themselves willingly enough to their artifices. We need not describe here in detail the expedient of "common recoveries," or that of "fines," or finally, the crowning fiction of "uses." The effect of "uses" was, so to speak, to strip from the legal property in the land the substantial enjoyment of it, preserving the former in name and form, and creating under this disguise an estate which possessed all the actual advantages of ownership, but which was free from feudal responsibilities, and was neither recognized England has been before all other countries a country of free ownership, of moderately-sized and small estates. by the common law, nor subject to its prohibitions or penalties. It seems that more than half the land in the kingdom had come to be held by this title, that is to say, it had escaped from feudalism and was subject to the incidents of modern ownership. Lands held upon "uses" could be sold, devised, or apportioned, though, as a matter of fact, they generally devolved upon the eldest son. This system lasted till the reign of Henry VIII., its weak point being that lands so held escaped confiscation, and thus it became the object of the Crown to bring them again within the operation of the common law. The Act of 1535 was intended to abolish “uses,” but they had grown so indispensable that hardly had they been suppressed than they reappeared in substance, and, under another name, that of "trusts," were again assisted by the connivance of the Court of Chancery. Meantime, the agitation caused by their threatened abolition forced the hand of the legislature, and in 1540 formal sanction was given to freedom of disposition by will. This, as first granted, was only partial, but it was made complete and extended to all real estate by the statute of Charles II. which abolished military tenures. The end of the seventeenth century saw feudal ownership finally moulded into the shape of modern civil ownership. The point to be remembered in this lengthy statement is, that with very few exceptions, under the systems which were nominally most restrictive, real property in England has always been capable of division and alienation, of being acquired by those whose good management has supplied them with the means of adding to their estates, or of falling into the hands of men who, grown rich by commerce, aspire to a position in their county. Mr. Brodrick mentions the frequency, during the fifteenth century, of litigations relating to land, as a proof that real property in England has long been distinguished by the ease with which it could be alienated or divided. Assuredly a country can hardly be suspected of attachment to feudalism which has shown itself so intent upon destroying the political effects of the feudal system, and so ingenious in warding off its economical results. so. The present system of latifundia and settled estates only began to flourish after the Restoration it is based not upon the law but upon social custom, and is the outcome of a deliberate policy on the part of the upper classes. But in this case again the courts were not slow to limit the effective operation of entails to the life of a person in being plus a period of twenty-one years-less than was allowed in France under the ancien régime. Modern entails have developed within the narrow space marked out by the legislature and the judges, who have insisted that each generation shall be given the opportunity of reconsidering the arrangement made, and of restoring absolute ownership in case it thinks fit to do The fact that a perpetuity is in many instances created is owing solely to the wish and choice of successive beneficiaries. In our own days a series of statutes has freed the owner for the time being from the observance of those covenants in his settlements which are at variance with political economy, and has finally restored to him (though only for the benefit of all parties interested under the settlement) the chief rights which his position as a quasi usufructary forbade him to exercise. It is beyond question that the state of things which grew up during the last two centuries was unconnected with the feudal system which preceded it; it was the effect of a great aristocratic conception which finally provoked a democratic reaction, both being entirely modern in their causes and novel in their spirit. In our survey of the various elements which entered into the composition of Parliament, the towns remain to be considered. The growth of the towns in England was distinguished by certain peculiarities. In the first place, the great centres seemed to have formed more slowly than in France. In England, liberty, a certain degree of prosperity, and opportunities of acquiring wealth were all to be found in the rural districts. Residence in the towns was not the only mode of bettering their lot which was within the reach of the lower classes. City life, therefore, presented fewer attractions than it did elsewhere. Even in the time of Charles II. no very populous cities existed except London, and still less did any such exist in the fourteenth century. Moreover, England was not in any sense a manufacturing country: she was an agricultural, and above all, a pastoral country, dependent to a great extent upon the wool trade. The great majority of her cities were mere country towns;' their inhabitants in their manners and pursuits differed in no degree from the other inhabitants of the county. The great towns, almost all of which were directly subject to the king, escaped those struggles between the count, the bishop, and the citizens which fill the history of the French communes. No rival influence had opposed the grant of royal charters to the towns; the burghers had no grievances to prejudice or exasperate them against the neighbouring barons or knights, but, on the contrary, reposed in both a full and ungrudging confidence. Lastly, the townsfolk enjoyed frequent opportunities of contact with the nobility of the district, 1 Nine-tenths of the cities of medieval England would now be regarded as mere country towns, and they were country towns even then. Stubbs, iii. 595. 1 |