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THE ENGLISH LAND QUESTION.

ALTHOUGH a variety of topics of the utmost importance, such as

the Ballot, Irish Education, Licensing Reform, and many others, are demanding the immediate attention of the public, there yet remains one subject which though hardly as yet belonging to their number, nevertheless in intrinsic importance exceeds them all. This question is the English Land Question. Whether it be that Lord Derby addresses the magnates of the manufacturing North, or that the agricultural interest is gathered together in solemn conclave, or that the members of a London democratic association hold their meeting at some little-known public-house, yet from each and all of these assemblies, however different in composition, however discordant in feeling, arises the same cry that there is an English land question which ought to be dealt with. At one time it is vendors and purchasers who are complaining of the uncertainty and delay with which their transactions are attended, at another it is the man of business who is comparing dealings in land with dealings in stock or in shares to the disadvantage of the former; at one time it is the tenant farmer with an eye to the want of fixed improvements, at another it is the agricultural labourer with a wish for better cottage accommodation who is the complainant; at one time it is the political economist lamenting the ever-increasing separation of the labourer from the soil, at another it is the hardworked town mechanic with a grievance which

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he can hardly distinctly formulate who indicts the land system of his countryThese are well known facts, and with every allowance for the exaggeration of grievances there can be no doubt that the old saying "no smoke without fire" holds good in this case as in others.

In approaching this question, it is necessary to begin by settling clearly what are the practical objects which any system of land laws should aim at; in other words, what principles should be their foundation. The aim of every system of land laws should be, to give security to property, and to promote the best distribution and the maximum production of wealth from the soil. In so far as a system of land laws promotes these objects it is a good system; in so far as it does not promote them it is a bad one. Starting, then, from these principles, after a few words on inheritance from intestates, our land laws will be here considered under the following heads: first, in their relation to the settlement of land; secondly, as they affect the enclosure of waste spaces; and, thirdly, as they affect the title to property, including under this last head a few remarks on the present system of mortgage.

And first as to inheritance from intestates. It is regulated by the law of primogeniture, about the abolition of which we hear so much. Now the abolition of the law of primogeniture taken by itself is a matter of little or no moment, for the simple reason that intestacy in the case of the owners of real property is a rare event. But taking this law for what it is worth it certainly offends against the principles of natural justice; for intestacy pre-supposes the absence of that provision for younger children which in the case of a will or settlement of lands is invariably made by means of portions or otherwise; and, further, it necessarily tends to the accumulation of wealth in a few hands, a tendency already sufficiently strong in these times.

It is a very unfortunate thing that the facts as to the law of primogeniture are so little understood. Nothing, for example, is more common than to meet with persons who imagine that the abolition of this law implies the substitution for it of a law similar to that which exists in France, which compels the division amongst the next of kin of the deceased owner of the real estate owned by him. These mistakes may be traced to a confusion of the law and the custom of primogeniture. It cannot be too often repeated that the law and the custom of primogeniture are two distinct things, though the latter is probably the child of the former. The death of the one might ultimately end in that of the other, but if the custom does die it will die an easy death, brought on by the operation of natural causes.

Far more important than any questions which arise out of the existence or the abolition of the law of primogeniture, are those which

are involved in the consideration of the law of settlement and entail. As a considerable amount of misapprehension exists as to what the law does and does not allow under this head, it will be as well to preface the discussion of this part of the subject by a brief statement as to the character of the law of settlement. It is often said that we owe the law of settlement to our old feudal institutions. This assertion, though to a certain extent true, is but half the truth. We owe the law of settlement quite as much to the ingenuity of the seventeenth century conveyancers as to that of the feudal lawyers and barons who preceded them. The early history of our law of real property is the history of a struggle between freedom of alienation and its opposite. The details of that struggle involve a dry mass of legal antiquities, with which it would be useless to detain the reader. It is only necessary for the present purpose briefly to point out how the power of settlement on unborn children arose.

There is a rule of law that if a lesser and a greater estate coincide in one and the same person without the intervention of an immediate estate, the lesser is merged in the greater. Thus, supposing Brown to have been a tenant for life with remainder to his eldest son and the heirs of his body, and, in default of such issue, with remainder to Smith and his heirs in fee, if by any means the lesser estate of Brown became united with the greater estate of Smith, before the former had a son, the contingent remainder to the children of Brown was lost. There were a variety of ways by which this "merger," as it was called, could take place. The purchase of the remainder of Smith by Brown, or of the life interest of Brown by Smith, could effect it, or it could be accomplished, as it often was, by an operation called a wrongful feoffment. The effect in each case was the same, viz., the destruction of the contingent remainder to the unborn son. Some interesting remarks by that eminent authority, Mr. Joshua Williams, contained in a paper read before the Juridical Society * point to this conclusion, that contingent remainders to unborn children were unknown in their present shape to the courts previous to the reign of Philip and Mary, and that previous to the civil war, even where they existed, they were liable at any moment to be destroyed by the act of the tenant for life. To avoid this taking place, the ingenuity of Sir Orlando Bridgman and other eminent barristers who betook themselves to conveyancing during the civil war, devised the appointment of trustees to support contingent remainders in whom there was vested an estate in remainder for the life of the tenant for life, to commence whenever that estate determined otherwise than by his death. The merger of the life estate with the remainder in fee was thereby rendered impossible,

* 21st May, 1855; see the vol. of reprinted papers, 1855-8.

and contingent remainders to unborn children became indestructible. The state of things thus produced has been stereotyped by the 8 & 9 Vict., c. 106, which renders the destruction of contingent remainders by merger an impossibility,-a reform so far as it went, since the appointment of trustees becoming unnecessary subsequently to the passing of the act, the length of deeds was diminished. Beyond allowing the devices above mentioned the courts would not go. Acting on the maxim that "English law abhors a perpetuity," they never allowed the object of a settlement to be accomplished any further than could be done by giving estates to the unborn children of living persons. This, coupled to the power which a tenant in tail possesses when of age of barring the entail, remainders and reversion included (with the consent of the tenant for life if living), prevents any settlement affecting an estate longer than lives in being and twenty-one years after. Such, then, is the law of settlement and entail. But now observe its practical working. It sounds a paradox, but it is nevertheless true, that the operation of this law of ours, which we are told " abhors perpetuities," is to produce a state of things of which perpetuity is the foundation and chief cornerstone. A tenant in tail comes of age and bars the entail. True, but with the object of resettling the estate. The former tenant in tail in remainder takes a life estate with remainder to his children, and, the same performance being gone through by each successive generation, the result of these settlements and resettlements is that it can only be by some very strange accident that an estate is ever owned by any one but a tenant for life. Witnesses examined some years ago before Mr. Pusey's Committee on agricultural customs estimated the estates under settlement to be more than two-thirds of England, but it is bable that since that time the number of settled estates has diminished. What are the effects thereby produced on the various classes of which society is composed ? To what extent, if at all, are the conditions which have been laid down as distinctive of a wholesome land system thereby complied with? The tenant for life, except under certain exceptionary powers existing either in the settlement itself or conferred by statute, has no power of disposition over the estate of which he is the owner. The result naturally is that any improvement carried out by him may and often must be carried out at the expense of the other members of the family, and he is consequently under a strong temptation to starve the estate for their benefit, or for that of other persons to whom he wishes to make bequests. This evil is most acutely felt on estates of a moderate size, and by those owners who own real estate only. Again, the tenant for life is generally the victim of the charges of successive family settlements, and his improving powers are crippled in proportion. To

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quote the words of Mr. Vernon Harcourt in his inaugural address to the Social Science Association :

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"The tenant for life is the mere recipient of the rents of the land or of such portion of it as remains over after the payment of charges created by previous incumbrances. What is the practical result of this state of things? The person whom I venture to call the nominal proprietor is in the receipt probably of an income barely sufficient for the immediate wants of himself and his family. For want of capital the land languishes, while the proprietor himself, with a great nominal income, scrapes along in splendid penury."

But it may be said that these evils do not really exist because family settlements do not affect that class which we designate as that of the "occupiers," as distinguished from the "owners" of land. Such an objection is really no objection at all, for the custom of England is that the landlord should execute the permanent improvements, and agricultural fixtures are consequently, in the absence of agreement to the contrary, the property of the landlord. Any system therefore which paralyzes the improving power of the tenant for life generally paralyzes the power of improvement altogether.

It can hardly be doubted that the demand, which in some places is beginning to make itself heard, for the extension of the provisions of the Irish Land Act to England, and for the tenant to be allowed to put improvements in the soil and recover their value without any special contract to that effect, may in a great measure be traced to the existence in many parts of the country of tracts of land owned by men who cannot do their duty by them, and at the same time of a class of farmers who think they could do it themselves, if they had the necessary security. There is no real necessity for any such violent change in the habits of English rural economy as that to which the demand above alluded to points; but to prevent its growing in strength, and before long justifying itself, the landlords of England must support legislation which will render them masters of the lands they own, and enable them to improve in a manner sufficient to silence complaint.

And now as to the bearings of this question on the condition of the agricultural labourer. The law of real property in its present shape is inimical to the labourer, in so far as it keeps land out of the market, and lowers the rate of wages by keeping capital from investment in the soil; in so far also as owing to estates being owned by tenants for life it checks cottage improvement, and in so far as it has permitted, under the name of Inclosure Acts, the greatest injustice to be done to the owners and users of common rights during the last century and a half. On this subject the words of those whose opinions are weighted with all that responsibility which attaches to the ex

* Since published as a pamphlet.

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