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COMMERCE AND THE

into the English land-system. The whole baronage had "killed itself out" in the civil wars; the barons who survived found their feudal castles powerless to resist the newly invented gunpowder, and their armed retainers were suppressed by the policy of the Tudors. To them succeeded new men, who had made their wealth in commerce, and whom the growing security of the country tempted to leave the towns and to take up landowning as a business, to be therefore conducted on strict business principles. They saw that the immediate profit to be derived from pasture land was larger than the rent of plough-land, while, as there was no longer need of an armed body of followers, the lord's motive for establishing on his land a number of tenants, who would depend on him and support his cause, was gone. These two motives led to the forced expatriation of the small holders, and the consolidation of their small holdings into large ones. This process is well recounted by Bacon, who says that: "Enclosures at that time began to be more frequent, whereby arable land, which could not be manured without people and families, was turned into pasture, which was easily rid by a few herdsmen ; and tenancies for years, lives and at will, whereupon much of the yeomanry lived, were turned into demesnes. This bred a decay of people':" and, as was said in a petition to the Parliament "sheep and cattle drave out Christian labourers.” This tendency to consolidate holdings was met by a series of Acts, (which we need only notice in their general effect on the alienation of land), providing, in one Act, that no houses to which 20 acres of land were attached should be destroyed, in another that a suitable dwelling-house should be maintained for every 40 acres of land, with others directed against excessive sheep-farming and enclosures. These Acts, as Bacon continues", "did wonderfully concern the might and mannerhood of the kingdom, to have farms as it were of a standard, sufficient to maintain an able body out of penury, and did in effect amortize a great part of the lands of the kingdom unto the hold and occupation of the yeomanry or middle people, of a condition between gentlemen and cottagers or peasants." The

1 Bacon's Works, ed. Spedding, vi. 93, 94, 95.

tendency of these Acts was to ensure the tenure of land by small farmers or yeomen, who could till their land themselves; the tendency of the action of the lords was to divorce the tiller of the soil from any proprietary interest in it, and practically to create three classes of persons deriving their living from the land, the landlord, the farmer, and the labourer. So long however as the landowning classes were bent on accumulating land and founding and maintaining families, it was inevitable that lawyers should exhaust for them every means of preserving the land of the family from alienation by any member of the family, should avail themselves of every device to tie up the land in strict settlement. The tendency in the three classes has therefore been, for the landlord to accumulate land, for the farm to become larger, for the labourer to become more dependent, and to live with less hope of ever acquiring land of his own.

The desire of the landowning classes may have been assisted by events which, as their immediate result, led to the freer circulation and transfer of land. The Dissolution of the Monasteries in 1536 and 1539 confiscated to the Crown lands. estimated at one fifth of the soil of the kingdom, which, being held by corporations, had never come into the market, but had been usually cultivated by tenants on favourable leases at low rents with an option of renewal. These lands were regranted by the Crown to lay tenants, and thus, in the then state of law and family custom, rendered alienable, with the result that transfers of land became far more common. The years following the Dissolutions contain a large number of Statutes relating to the tenure and transfer of land; there being ten in the year 1540, the year of the Statute of Wills, alone; and to this extent secularizing the lands of the church assisted freedom of alienation. But many of these lands were granted to "new men" of commercial habits, who yet looked forward to founding families, and to establishing themselves firmly as members of a landed nobility. To the aims and desires of these new landowners we must look for the source of the experiments and attempts in restraining alienation, which, under the spur of the insecurity of civil wars, obtained success in the family settlements of Orlando Bridgman.

Meanwhile the reign of Henry VIII., as compared with that of Edward I., sees a great change in the laws restricting the transfer of land. The landowner's power of restraining his tenant from alienation of the land during his life, and of imposing a particular line of succession on the land on the tenant's death, which had been established by the Statute De Donis, is evaded with the help of the judges, by the devices of Fines and Common Recoveries, introduced by the ingenuity of the church, and adopted by lay tenants of land. Through the same channel the Doctrine of Uses is applied to the tenure of lands, with the result of evading the strictness of feudal relations and of the common law to the advantage both of tenant and of lord. Especially by its means was the power of disposing of lands by will given to all landowners, who thus had land free both in their life and at their death. The Statute of Uses aimed at restoring the old common law; at imposing upon the beneficial owner of land the duties and rights attaching to its owner at law; at ensuring publicity of transfer and notoriety of title; and incidentally at checking the secret disposition of lands by will. The irony of fate and the ingenuity of the Courts perverted the Statute from its original purposes. A new system of beneficial ownership, separate from the legal title to land, arose from the ruins which the legislature had made. The means employed to secure publicity of ownership, though supplemented by the Statute of Enrolments, led through the system of Lease and Release to complete secrecy of transfer; and the power of devise, destroyed by the Statute of Uses, was restored four years later, in deference to the strong national feeling in its favour, by the Statute of Wills. Side by side with these legal changes economic transitions were taking place, which furnished the motive power for still further developments in the system of land-tenure. The cultivation of England by lord and peasant gave way to a system of culture by lord, farmer, and labourer: commercial reasons led to large farms, and the desire of new landowners to found a family prompted the accumulation of land in one hand, and the invention of devices to keep on the land the grasp of that hand, though dead. Thus, though from the end of the fifteenth century land is the subject of almost

complete freedom of alienation, influences are at work, which after several experiments and failures enable landowners in the seventeenth century to reimpose on the land the fetters of the will of a dead owner, checked only by the rule that those fetters cannot last for a perpetuity. To the history of Family Settlements and of the "Rule against Perpetuities" therefore we now

turn.

CHAPTER VIII.

FAMILY SETTLEMENTS.

THE 16th and 17th centuries in England were years of almost complete freedom of alienation. Estates Tail, the great device by which landowners had kept lands in their family or under their control, had been broken down by the introduction of Fines and Recoveries, as devices for barring the entail. The absence of the power of devise, which had imposed on the land a line of succession fixed either by the State or the donor, had been at first supplied by the introduction of Uses, and then the incapacity had been deliberately destroyed by the provisions of the Statute of Wills. The tenant could therefore alienate his land freely during his life and devise it at his death to the successor of his choice.

But this freedom of alienation and devise was not congenial to the spirit in which great landowners viewed their land. To preserve their family name and position, to "keep the land in the family" seemed to them a desirable and even laudable object; to restrain any individual holder of the land from dealing with it so as to interfere with the interest of subsequent generations of the family in the family land was a necessary means to this end. To contrive restraints on alienation and succession which the law would enforce, to ascertain the furthest limits up to which the law would allow the grasp of the dead hand to be kept on the land of the living, was the task set by the great landowners before their legal advisers. The judges on the other hand endeavoured to protect the interests of the community and of the living tenant, by refusing to recognize many of these