ments bestow upon the present possessor of an estate the benefit of ownership', and secure the property to his posterity. The existing rule respecting perpetuities has happily hit the medium. between the strict entails of Scotch law, by which the property entailed is for ever abstracted from commerce, and the total prohibition of substitutions and the excessive restrictions of the power of devising established in some countries on the Continent. In England families are preserved and purchasers always find a supply of land in the market. A testamentary power is given which stimulates industry and encourages accumulation, and while capricious limitations are restrained, property is allowed to be moulded according to the circumstances and wants of every family".

In 1856, however, greater power was given to the tenant for life, by an "Act to facilitate Leases and Sales of Settled Estates"," which, with the Acts amending it, was consolidated and improved by the Settled Estates Act of 1877. The general tenor of these Acts was to allow greater power of leasing and sale to the tenant for life, subject in each case to the approval of the Court of Chancery. The Court might authorise leases and sales of settled estates and timber "if it should deem it proper and consistent with a due regard for the interest of all parties entitled under the settlement5". To this extent power was given to the tenant for life, after going through an expensive and complicated application to the Court, to deal with the land more freely than he could under the settlement; but even this had a limitation. The settlor's wishes were still to be sacred, for the powers contained in the Act were not to be exercised if an express declaration that they should not be exercised was contained in the settlement.

Another series of Acts gave power to tenants for life to obtain capital for necessary improvements from Public Com

missioners for drainage and other like purposes. But all these powers were so fenced round with safeguards and expensive formalities as to rather discourage than lead to their use, and a vast quantity of English land is still undrained.

In 1882 however, with the consent and concurrence of a Liberal Lord Chancellor, Lord Selborne, an Act introduced by a Conservative Lord Chancellor, Lord Cairns, was passed. The Settled Land Act', which usually bears the name of its author, goes in theory nearly as far in the direction of freeing the land, as it is possible to do while the system of family settlements and estates tail is maintained. Any serious step further must be in the direction of their abolition.

As the result of this Act, it is not going too far to say that all land in England and Wales held under any family settlement or similar disposition may now be sold or otherwise dealt with by the private person then entitled to its income as beneficial owner, in nearly every way in which a prudent owner would deal with it, except that the resultant purchase money cannot be treated as income, but must either be invested in specified securities, or capitalized in the land by making improvements or paying off incumbrances. The scheme of the Act is to place the tenant for life in the position occupied by the Court under the previous Settled Estates Acts, and to make him the sole judge of the propriety of the particular improvements or dealings with the land contemplated, so long as they are within the classes of improvements and dealings sanctioned by the Act. Certain acts, such as the sale of the principal mansion on the settled estate, cannot be carried out without the intervention of trustees; certain others require an application to the Court. The honest attempt has however been made to reconcile the beneficial owner's power of freely dealing with the land with the settlor's power of determining the line in which the land shall descend. The settlor's power over his land has indeed been seriously curtailed, for the tenant for life can neither contract himself out of the Act, nor transfer his powers under the Act to any other person: neither can the settlor, by provisions in the settlement or otherwise, restrict the exercise by 2 Wolstenholme's Settled Land Act, p. 7.

1 45 and 46 Vic. c. 38.

the tenant for life of the powers under the Act, though he may enlarge them. The settlor is still allowed to fix a line of succession for his land, or its money value, but he cannot tie his heirs to the land or place them under restrictions in the management of the land which he himself is no longer on earth to control.

The real criticism on this Act and on its forerunners may be suggested by a clause of the Act of 1877, which runs1: "Nothing in this Act shall be construed to create any obligation on any person to make or consent to any application to the Court, or exercise any power." In other words: "You may lead a horse to the water, but you can't make him drink." You may give a tenant for life power to improve or to sell, but you can't compel him to sell, or improve, if you do not provide him with a sufficient motive. Lord Cairns' Act provides the limited owner with the power, but the system of family settlements deprives him in most cases of any motive. He may not see any particular object in improving the land for the benefit of a successor whom he has not chosen, and with whom he may be at enmity. He may perceive no advantage in risking his own income for the benefit of others. A limited owner has but a limited interest in the land, and from a limited interest, only half-hearted dealings can be expected. The family evils alluded to in the next chapter are untouched by this Act, which still allows "the son to have the curse of his father, but the land (or money) of his grandfather." The true remedy, with great resulting advantages political, economical and domestic, is the entire abolition of all estates in land but those in fee simple.

Meanwhile further improvements can be made, even on the lines of Lord Cairns' Act. It only applies at present to private owners. It should be extended to corporations, especially to clergymen owning glebe lands: for a clergyman is especially unfitted to deal with land, and has not, as the tenant for life may have, even a personal interest in his successor, that he should make improvements for him. To such owners powers of sale may be fairly given. And it is questionable whether in the case of many corporate bodies, such as the Ecclesiastical Commissioners, this sale might not be made compulsory.

CHAPTER XI.

POLICY OF THE PRESENT LAW.

THE most important restrictions on the alienation of and succession to land at the present time are the Laws of Entail and Settlement, and the Law and Custom of Primogeniture.

Under the body of laws and customs which may be described as the Law of Entail and Settlement, it is possible for a landowner to settle the disposition and devolution of his land for a period which may extend to eighty or ninety years from his death, subject only to the possibility of the sale, under Lord Cairns' Act, of the whole or part of the land, the purchase money being still held on the trusts of the settlement. To this there is annexed the custom of Re-settlement on the majority of the first tenant-in-tail, which postpones the time when free alienation, except under Lord Cairns' Act, will be possible, for an average period of thirty years.

The Law of Primogenitary Succession to land on intestacy is accompanied by and supports a custom of Primogenitary Devise. The policy of these restrictions and the arguments for and against any alterations in the law in the direction of more or less freedom of disposition of land, I now propose to consider.

The recent compilation and issue by Government authority of the record of English landowners, known as the "New Domesday Book'," has placed at our disposal greater accuracy of information as to the distribution of landed property in the United Kingdom. Previous to its issue, there was a

1 Moved for by Lord Derby in the House of Lords, Feb. 19, 1872. Compiled, 1874, 1875.

statement common that, whereas at the time of the old Domesday Book the land of England was divided among more than 200,000 owners, in the nineteenth century, though far more land was in cultivation, it was held by only 30,000 landlords. This latter statement was based on the returns to the Census of 1861, in which only 30,766 persons described themselves as "landed proprietors"; but an examination of these entries showed that nearly half these "proprietors" were women, from which it was clear that many of the male landowners had returned themselves under other heads. The statement as to the old Domesday, based on the old Domesday figures which show roughly: 9000 tenants in chief and sub-tenants: 36,000 socmanni and liberi homines; 110,000 villani, 90,000 bordarii and cotarii; appears to me equally inaccurate. For it is now fairly clear that the villani, bordarii and cotarii were manorial tenants, holding, though often themselves freemen, by servile tenure, and not yet having attained such. security of position that they can be reckoned as landowners in any modern sense of the word. And if this is so, the greater part of the land of England is owned immediately after the Conquest by the 9000 tenants in chief and sub-tenants, while the 36,000 socmanni and liberi homines represent the small proprietors, the sum of whose holdings would be insignificant beside those of the great lords. Mr Seebohm estimates the acreage of land in the manors at under 4 million acres, divided into 1 million acres of the lord's demesne, 21 million acres held by villani, and a million held by bordarii and cotarii1. But from the landowner's point of view, these 4 million acres were held by the 7,800 sub-tenants, who in their turn were tenants of the 1400 tenants in capite who thus held 4 million acres of English land. The holdings of the 36,000 socmen Mr Seebohm estimates at 1 million acres. On these figures it is hardly fair to make any definite statement as to the distribution of the land without considerable explanation; but there are more substantial grounds for saying that it was held by 1400 landowners, than for dividing it amongst over 200,000.

1 Seebohm, V. C. p. 102.