SETTLED LAND ACT. 139 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. OLD AND NEW DOMESDAY. 141 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. There can however be no question that shortly after the Black Death and throughout the 15th century, before the process of consolidation of farms and their enclosure for pasture land, induced by the entry of commerce into landowning, had destroyed many small holdings, English land was largely held by small proprietors. Fortescue in the reign of Henry VI. says, that in no country of Europe were small proprietors so numerous as in England. They were the yeomen of England, “freemen born in England, who may dispend of their own free land in yearly revenue the sum of forty shillings "..." These are they that in times past made all France afraid1.” The New Domesday, in spite of the great inaccuracies to be pointed out hereafter, at any rate provides materials for far more accurate generalisations as to the present distribution of land in England and Wales. It shows 972,836 proprietors of land, owning 33,013,510 acres, with a gross estimated rental of £99,352,303. These figures may be further dissected as follows: A table which by further division gives the result: Owners of OVER 100 acres: 42,524 owning 28,840,549 acres, rental £50,089,548. Owners of UNDER 100 acres; 923,751 owning 4,171,534 acres, rental £46,377,294. And these tables show at first sight a considerable number of small owners, and a fair distribution of land. Closer investi 1 Harrison's Description of England, cited by Brodrick, p. 33. DOMESDAY. 143 gation however effects a great alteration in the aspect of the returns. In the first place there are important omissions. The returns only refer to rateable land, and as, at the time they were made, woods wastes and commons were not rateable, some 4 million acres are excluded from the return, of which most of the wood and waste undoubtedly belongs to great landowners. Again, London is not included in the return. This omission excludes a number of large estates held by great landowners, such as the Dukes of Bedford, Portland, and Westminster, with an enormous rental and a still more enormous reversionary value. Secondly, beside these omissions, the returns themselves contain fruitful sources of error. No attempt has been made to collect under one head the possessions of landowners in different counties. Thus the Duke of Buccleugh figures as 14 landowners, the Dukes of Devonshire and Cleveland, Earl Howe and Lord Overstone as 11 each, and the Duke of Bedford as 10: 6 great landlords thus appear as 68 lesser landowners'. And, as each peer is reckoned as a separate landowner in each county, some of his county holdings go to swell the ranks of small owners. Thus the Duke of Buccleugh counts as 9 owners of lands over 1000 acres, and 5 under 1000 acres, one of these holdings being a plot of eight acres, for which his Grace appears as an owner holding less than ten acres. Even in the same county the same lay owner appears through carelessness several times; Captain Heathcote appears as 4 owners in Staffordshire; an error which again tends to unduly swell the records of the small estates". Another serious source of error occurs in dealing with the lands of corporations and of the church. The clergyman is frequently entered as the "owner" of glebe land, and as the glebes are usually of small acreage, the roll of small owners is proportionately enlarged. Thus in Buckinghamshire, there are only five parcels of glebe land returned, but 235 owners have the title "Reverend"; in Lancashire there are 286 clerical 1 Arnold, Free Land, p. 5. 2 See results of Mr Bateman's In vestigations. Brodrick, p. 189 et al. |