AND LAWS OF ENGLAND. 
 
 BY A MEMBER OF THE 
 
 CIVICS CLUB OF BROWN UNIVERSITY. 
 
 i 
 
 t 
 
 Published Midi y the auspices of the Club. 
 
 PROVIDENCE : 
 
 SIDNEY S. RIDER. 
 
 l886. 
 
This pamphlet makes no pretensions to originality or exhaustive- 
 ness. It was composed, along with several other papers similar in 
 nature, solely for the behoof of the private circle of students whence it 
 emanates, and is printed, not as superior to the others, hut as of more 
 general interest at the present time. It presents a glimpse of an 
 important topic on which, to many, larger literature is inaccessible. 
 
9 ^ (oi-^TQ 
 
 cr 
 
 LAND LAWS OF ENGLAND. 
 
 The laws of Primogeniture and Entail, which are the 
 principal features of the present English land system, have 
 • sprung, in the opinion of the most eminent authorities, from 
 the old feudal system in the later stages of its develop- 
 ment. Among the nations of antiquity whose laws we 
 have, the only race to practice Primogeniture was the Jews, 
 all other peoples giving equal rights to all the sons, but 
 granting the eldest one the privilege of making the first 
 choice in selecting his share of the property. The Hin- 
 doos, the Germans, the Irish and the Anglo-Saxons gave 
 no special preeminence to the first-born. Moreover, 
 Primogeniture did not belong to the customs which the 
 barbarians practiced on their first establishment within the 
 Roman Empire, but among these peoples the male chil- 
 dren were co-proprietors with their father, and the eldest son 
 had an equal share in the common property. Sir Henry 
 Maine says that “ an absolutely equal division of assets 
 among the male children at death is the practice most 
 usual with society at the period when family dependency 
 n is in the first stage of disintegration.” Nor, though many 
 laws, once supposed to be of native growth, have since 
 been traced back to the Roman law, can Primogeniture be 
 derived from that great source, for in this, “ when the suc- 
 cession was ‘ab intestato/ and the group of co-heirs con- 
 
 o 29220 
 
4 
 
 sisted of the children of the deceased, they each took an 
 equal share of the property.” 
 
 From these proofs it is clear that Entail and Primogeni- 
 ture had their beginning no farther back than *the feudal 
 system, and it is safe to assert that they originated in this 
 system, inasmuch as they were established in those coun- 
 tries, and only in those countries, where the feudal system 
 was established, and have been abandoned in the lands 
 where this system has been abandoned. 
 
 The cause of the origin of the custom has been very 
 well stated by Adam Smith : “While land is considered as 
 the means only of subsistence and enjoyment, the natural 
 law of succession divides it, like these, among all the chil- 
 dren of the family ; but when land was considered as the 
 means, not of subsistence merely, but of power and protec- 
 tion, it was thought better that it should descend undi- 
 vided to one.” 
 
 In the conquest of new countries, the chiefs parcelled 
 out the newly acquired lands among their principal retain- 
 ers, expecting that, in return, they would do military ser- 
 vice for their lord. On the decease of any of these retain- 
 ers it was naturally the eldest son who was best acquainted 
 with the obligations due his lord, and moreover it was neces- 
 sary that there be some one understood head of the family 
 to lead it in peace and in war. This head of the family 
 was in the majority of cases to be found in the person of 
 the eldest son, who had had greatest experience in all these 
 matters. He performed his duties not so much because he 
 was looked upon as having exceptional rights, but because 
 of his supposed superior merit ; and indeed in frequent 
 cases younger brothers were selected for the position, 
 showing that merit, not right, was the true criterion. 
 
5 
 
 These leaders in family matters, instead of enjoying, as now 
 many English landowners enjoy, riches, position, title, lux- 
 ury and ease, were weighed down under a system of bur- 
 dens that made their lives full of care and toil, with but a 
 small amount of peace or pleasure. 
 
 The precise year of the establishment of Primogeniture 
 in England is uncertain, yet it is known that by the end of 
 4 the thirteenth century it was the almost universal custom, 
 as was also the law of Entail. Yet it must be borne in 
 mind that the law of Entail at this period gives no inde- 
 , feasible right of inheritance as does the later statute. 
 This right was instituted by the statute “ De Donis,” made 
 in the reign of Edward I., by which, when a fee was granted 
 to a man, the succession of his issue was secured against 
 alienation, and the property had to be transmitted to his 
 heirs directly. That this statute, “ De Donis,” wrought 
 out the greatest evils, is clearly shown by its results as 
 stated by Blackstone in his Commentaries : “ Children 
 grew disobedient when they knew they could not be set 
 aside ; farmers were ousted of their leases made by ten- 
 ants-in-tail ; creditors were defrauded of their debts ; in- 
 numerable latent entails were produced to deprive purcha- 
 sers of the lands they had fairly bought ; and treasons were 
 encouraged, as estates-tail were not liable to forfeiture longer 
 than the tenant’s life.” 
 
 In view of the disastrous effects of this statute, Parlia- 
 ment, in the reign of Henry VIII., authorized tenants-in- 
 tail to bar their issue by two methods, called respectively, 
 “fines” and “common recoveries.” To explain what 
 these laws were, I will quote, in substance, from Mr. Pol- 
 lock’s Land Laws, first, in regard to the “common recov- 
 ery ” : 
 
6 
 
 The device, he says, in its simplest form, was of this 
 nature : the tenant-in-tail (let us call him Littleton) being 
 in possession, some person (say Brian), acting in concert 
 with him, would bring the real action, called a “ writ of 
 right,” for the recovery of the freehold, claiming himself to 
 be the real owner. Littleton, instead of defending his 
 title for himself, would “vouch to warranty” a third per- 
 son (say Catesby), from whom he professed to have received 
 his title, and who was supposed bound to warrant the tenant 
 from all comers. Catesby was brought in as a party and 
 acknowledged the warranty. Brian, the nominal plaintiff, 
 then obtained leave of the court to confer privately with 
 Catesby, thus providing a sort of carpenter’s scene to cover 
 the production of the final effect. When Brian came back 
 from his conference with Catesby, it was found that the lat- 
 ter had disappeared. Thereupon judgment went by default 
 against Catesby, and the lands were awarded to Brian as an 
 estate in fee simple. Brian transfers the estate to Little- 
 ton, and the process is brought to an end. In regard to 
 the “fine,” Mr. Pollock says that it was “a more ancient 
 proceeding, differing from a recovery in that the collusive 
 action was not pursued to judgment, but compromised.” 
 
 By the use of these processes the ownership and power 
 of alienation of land were made more just and facile than 
 they have ever been since ; for by them an owner could 
 obtain a title to his land in fee-simple, and then alienate as 
 he chose. 
 
 Soon, however, family pride in holding large estates, and 
 the desire for power, caused means to be devised for check- 
 ing this freedom and keeping estates undivided. The first 
 step in this direction was the substitution, in deeds of set- 
 tlement, of the words, “first, or eldest son,” for “heir of 
 
7 
 
 his body,” the effect of this change being, that the father 
 took simply a life interest in the estate, which, at his 
 decease, passed to the son. This idea was gradually fur- 
 ther developed, so that, though the tenant-in-tail could not 
 be deprived of his right to become eventually master of the 
 property, yet his acquisition of it might be postponed one or 
 even two generations. The next step was the establishment 
 k of “ trustees to preserve contingent remainders, ” whose 
 function it was to protect tenants-in-tail from being 
 deprived of their lands by the wrong acts of previous ten- 
 * ants. 
 
 These are some of the leading changes which have been 
 made in the laws of Entail and Primogeniture since their 
 earlier stages ; and we will now look at some of the condi- 
 tions which the present laws have caused. 
 
 The best idea of these conditions can be obtained from 
 what are known as the “ Doomsday Books,” a collection of 
 statistics and returns, gathered and published at the request 
 of the Earl of Derby, whose purpose it was to show that 
 the extent to which the purchase of land and the holding 
 of it in large estates is carried on, had been misrepresented. 
 The “Doomsday Books” certainly show a most astonish- 
 ing and, it would seem, alarming state of affairs ; for the 
 extent to which land is amassed in individual hands is enor- 
 mous, notwithstanding the fact that in the reports of the 
 areas of estates, no mention is made of the acreage of 
 woods, plantations, common lands, etc., which, if counted 
 in, would swell the estates to vastly greater proportions. 
 Some of these figures have been taken by Mr. Joseph Kay, 
 in his pamphlet called “Free Trade in Land,” and I will 
 quote them in part from him : 
 
 The total extent of England and Wales is 37,243,859 
 
8 
 
 acres. Of these acres, 66 men own 1,917,076; 100 per- 
 sons own 3,917,641 ; 710 men own more than one-quarter; 
 874 own 9,267,031 ; and a class of men, about 4,500 in 
 number, own 17,498,200, or more than one-half. 
 
 In Scotland the condition of affairs is far worse. Out 
 of a total area of 18,946,694 acres, one owner alone holds 
 1,326,000, to say nothing of 32,000 acres in England, mak- 
 ing a grand total of 1,358,548. Seventy men own half of 
 Scotland. Ireland is in the same state. 
 
 Taking the twelve largest owners in each country, we 
 find that in England they hold in all, 1,058,883 acres ; in 
 Scotland, 4,339,722; in Ireland, 1,297,288. In the United 
 Kingdom, the twelve largest owners hold 4,440,467 acres. 
 
 Even Mr. Froude, the eager champion of the present 
 laws, admits that “the House of Lords does own more 
 than a third of the whole area of Great Britain. Two- 
 thirds of it really belong to great peers and commoners, 
 whose estates are continually devouring the small estates 
 adjoining.” And this statement is supplemented by that 
 of Lord Derby, that “the glass of peasant proprietors, 
 formerly to be found in the rural districts, is tending to 
 disappear.” The result of the law which grants this 
 power of accumulation is, that the peasant, with no chance 
 of ever possessing the land on which he is at work, with no 
 possibility of ever having a home of his own, has lost the 
 greatest incentive to labor and improvement on the land ; 
 he will not waste his time, labor, or money on that which 
 cannot be his, and which he may lose at any moment. 
 All around him the rich and powerful are buying lands to 
 enlarge their estates at whatever price, in order to gain 
 power, fame and title. And this desire for large estates, 
 considered with the scarcity of land in the market, creates 
 
9 
 
 a most unhealthy inflation of the price of land, which can- 
 not but be harmful to the community. 
 
 But how is it that this land, when once in the possession 
 of the rich, can be tied up, and transferred in large quanti- 
 ties by the will of a single man ? Many believe, and that 
 falsely, that the law of Primogeniture is the cause of this 
 accumulation. Primogeniture means simply, that, in case a 
 
 i man dies intestate, the property or land shall go to his legal 
 heir, and this is easily seen to be distinct from any process 
 of forming large estates. 
 
 • Some persons believe that a man, by one will or deed, 
 can entail land and keep it from the market in perpetuity ; 
 this is a mistake. The law allows an owner to tie up his 
 land, so that it cannot be sold during the lifetimes of any 
 specified persons in existence when the will is made, or 
 until the unborn child of one of these persons reaches the 
 age of twenty-one. Thus by a single deed, a lord can pre- 
 vent his estate from coming into the market for several 
 generations after his own death, however expedient or 
 imperative the sale might be. Mr. Kay gives a striking 
 instance of the bad effects this power may cause, occurring 
 in an estate in the south of England, of which he was him- 
 self a trustee. A young titled lord had a valuable estate 
 in fee-simple, the whole income belonging to himself. 
 Upon his marriage, deeds were drawn up, giving him only 
 a life interest in the estate, which, at his death, was to 
 descend to his children in succession. The estate was 
 divided into large farms and very valuable woods. Lord 
 
 A was extravagant and reckless ; he lived as if his 
 
 income were ten times what it really was ; he gambled and 
 lost money, and finally fled from England. The remainder 
 of the life interest, worth only the thinning of the woods, 
 
IO 
 
 was sold to a Jew, who knew he would lose all as soon 
 
 as Lord A died. This state of things lasted forty 
 
 years; the farmers had no leases, and no security for 
 expenditure ; they were unwilling to expend on the farm 
 buildings. The Jew, in order to make as much money as 
 possible, demanded exorbitant rents, and cut out of the 
 beautiful park far more timber than any unembarrassed 
 owner would have done, and so the estate was damaged 
 more and more every year ; the tenantry were prevented 
 from dealing fairly by the land ; there were no one to sup- 
 port schools or the church, or to look after the large village 
 of laborers upon the property ; all social progress and pros- 
 perity were stopped ; the farm buildings fell into decay ; 
 the land was not properly drained or cultivated ; the plan- 
 tations were injured ; the mansion became dilapidated ; 
 and all this was caused by the deeds which the law allowed 
 the lord and his heirs to execute. 
 
 The laws which grant this power of maintaining estates 
 unbroken for generations, are three in number : 
 
 (1) . The law which enables an owner, by will or deed, 
 to prevent his estate being altered for years after his death. 
 This is the law of Entail. 
 
 (2) . The law by which, if a landowner dies intestate, the 
 land descends undivided and unincumbered to his heirs. 
 This is Primogeniture. 
 
 (3) . The series of laws enabling landholders to lease 
 portions of their estates for terms covering from ninety- 
 nine to nine hundred and ninety-nine years, placing upon 
 them restrictions binding until the lease expires. 
 
 (1). The first law enables an owner to give his property 
 to certain trustees, with instructions to pay his wife a cer- 
 
tain annuity for life, and to hand over the rest of the yearly 
 income to himself. If now he becomes hopelessly in 
 debt through extravagance or bad habits, he cannot sell the 
 land and cancel his debts, but the income must be used to 
 pay his creditors, the land remaining in the same hands. 
 But besides allowing this stricture to be made on the land 
 during the lord’s own life, the laws allow him to entail his 
 property on his children’s children, and they in turn can 
 do the same to their issue, often being enabled to restrict 
 the sale of land for seventy-five or one hundred years by a 
 single will. Moreover, the lord can place upon his heirs all 
 sorts of restrictions as to the care of the property, such as 
 the payment of certain annuities, and the management of 
 mines, woods, etc. 
 
 All this one man can do. But his heir wishes to keep 
 the estate undivided as far as possible ; so he promises to 
 his son a large allowance, if, when he reaches his twenty- 
 first year, he will unite with his father in tying up the prop- 
 erty as before. With the dazzling prospect of an imme- 
 diate supply of money if he agrees, and the rather gloomy 
 financial outlook if he refuses, the son naturally assents. 
 Of these agreements between father and son, Mr. Cliffe 
 Leslie says : “ It is commonly supposed that the son acts 
 with his eyes open, and with a special eye to the contin- 
 gencies of the future and of family life. But what are the 
 real facts of the case ? Before the future owner of the land 
 has come into possession ; before he has any experience of 
 his property, or what is best to do, or what he can do in 
 regard to it ; before the exigencies of the future are known 
 to him ; before the character, number and wants of his 
 children are learned, or the claims of parental affection or 
 duty can make themselves felt, and while still very much 
 
at the mercy of a predecessor desirous of posthumous 
 greatness and power, he enters into an irrevocable disposi- 
 tion, by which he parts with the rights of a proprietor over 
 his future property forever, and settles its devolution, bur- 
 dened with charges, upon an unborn heir.” 
 
 As the estate is to be undivided for many years, it is 
 necessary that there should be many directions, in the will 
 or deed, for the management of the land, and for proceed- 
 ure in any possible emergencies. These directions may be 
 in regard to cutting of woods, working of mines, erection 
 of new buildings, repair of old ones, expenditures for char- 
 ity, education, etc. And these “powers,” as they are 
 called, are often so numerous and so complex in their rela- 
 tions to each other, that the ablest lawyers sometimes can- 
 not tell the exact legal condition of the estate. If legal 
 minds cannot unravel these intricate knots, how can a lay 
 mind grasp the situation ? 
 
 (2) . The second law, that of Primogeniture, is that 
 which, if the landowner die intestate, gives the entire prop- 
 erty, without charges upon it, and undivided, to the land- 
 lord’s heir. This law merely aggravates the tendency to 
 the formation and continuation of large estates. Instead 
 of being divided proportionally among all the relatives, as 
 justice would seem to demand, the property must descend 
 to one and only one heir, whether he be able to carry on 
 the estate or not, and without the least regard for the needs 
 and possible suffering of the others. 
 
 (3) . By the third of these laws the landowner, without 
 having the power to sell his land, can lease portions of it 
 for terms of years from ninety-nine to nine hundred and 
 ninety-nine, and subject to all sorts of conditions. Before 
 the enactment of this law, an owner, after entailing his 
 
3 
 
 property upon his issue for generations, had only a life 
 interest, and since the day of his death was uncertain, the 
 time at which a lease expired was equally uncertain, and 
 no tenants would procure leases on such terms. In order 
 to secure to landowners the power of letting their farms 
 for a longer period of years, the Court of Chancery was 
 authorized by Parliament to grant permits for leases extend- 
 ing over ninety-nine or nine hundred and ninety-nine years. 
 Not only does this law admit of the further tying up of 
 estates, but the existence of leases, dating back one hun- 
 dred or two hundred years, also greatly complicates the 
 investigation and conveyancing of titles. 
 
 These are some of the leading principles which affect 
 land and its transmission. Now let us look at some of the 
 evil results of these laws, results which, of course, are not 
 invariable, but which often come to pass. 
 
 I. In the first place, they prevent large estates from 
 coming into the market, which would often do so if left 
 
 unrestricted. In the case of Lord A , which Mr. Kay 
 
 mentions, his estate would have been for sale forty years 
 before it was, had there been no deed made at his mar- 
 riage. And there are numbers of such cases in which the 
 sale of the property, if possible, would be a vast advantage 
 to all parties concerned. This plan of selling bankrupt 
 estates has been tried in Ireland, and in two cases, cited by 
 Mr. Kay, the tenants all bought their holdings, very many 
 being able to pay a large per cent, down in cash. The 
 London Times said : “ In every case great benefit had 
 resulted from the purchase. It had been a 4 spur to indus- 
 try and thrift,’ and the increased industry and activity 
 required to pay off the loan will establish a habit for the 
 future.” 
 
14 
 
 II. A second evil is that if one of these deeds of trans- 
 fer to the son has once been made, he knows that no mat- 
 ter what his course of action may be, it is impossible for 
 his father to disinherit him or otherwise discipline him, 
 however much he may desire to do so. This can hardly 
 conduce to a noble and useful life, or to proper respect for 
 parents. Lord Bacon says : “ So, passing over considera- 
 tions of humanity, let us now consider the discipline of 
 families. And touching this I will speak modestly and 
 under correction. Though I reverence the laws of my 
 country, yet I observe one defect in them, and that is, 
 there is no footstep of the reverend f potestas patria ’ which 
 was so commended in ancient times. This only remains : 
 if the father has any patrimony and the son be disobedient, 
 he may disinherit him ; if he will not deserve his blessing, 
 he shall not have his living. But this device of perpetui- 
 ties has taken the power from the father likewise, and has 
 tied and made subject the parents to the cradle, and so 
 notwithstanding he has the curse of his father, yet he shall 
 have the land of his grandfather.” 
 
 III. Berkeley asks, “What right hath the eldest son to 
 the worst education?” Careless fathers are encouraged in 
 their carelessness by the knowledge that, whatever the 
 son’s training, however he may conduct himself, and how- 
 ever bad a reputation he may bring upon himself, he can 
 never be deprived of his estates, or social position, nor can 
 the future of the family be affected by his acts. The pres- 
 ent laws have been described as tending “to establish in 
 the centre of each family a magnificently fed and colored 
 drone, the incarnation of wealth and social dignity, the vis- 
 ible end of human endeavor, a sort of great Final Cause, 
 immanent in every family.” Thus are kept at the head in 
 
i5 
 
 public affairs men who have looked upon labor as a dis- 
 grace, and have grown up in luxury and ignorance. 
 
 IV. In the great majority of cases, when the owner 
 comes into possession of his property, through the death of 
 his father or the previous tenant for life, he is already mar- 
 ried and has a family of children. If, after paying the cur- 
 rent expenses for the year, he has anything left from his 
 
 s income, he is in a dilemma as to its disposition. He natu- 
 rally desires to leave something to his younger children as 
 well as to their older brother. But improvements on the 
 1 estate are needed, which, if carried out, must be paid for 
 from his income. If the improvements are made, the 
 children fail of their money ; and on the other hand, if the 
 children’s interests prevail, the land must go unimproved, 
 the latter being more often the case ; so that estates, pass- 
 ing from hand to hand, are frequently in a little poorer con- 
 dition at each transfer than at the preceding one. 
 
 V. The law of Entail, and of Primogeniture as well, by 
 conferring upon an owner the power of directing the man- 
 agement of the estate for so many years, makes the deeds 
 of transfer, when such are made, very long and expensive. 
 Since no change can be made in the deed after the maker’s 
 death, he must insert in it an almost innumerable number 
 of directions and charges as to the care and disposal of all 
 the different parts of the property, such as the working of 
 mines, cutting of trees, sale of game, support of relatives, 
 etc. These directions, when made in successive wills in 
 
 ft 
 
 regard to the ' same piece of property, often so cross and 
 recross each other and become involved in such tangles, 
 ^ that the ablest legal minds in England cannot unravel them 
 and come to an agreement on their meaning. If the solic- 
 itors are unable to come to a decision, there is nothing left 
 
i6 
 
 but to resort to the Chancery Courts. Often the process 
 is so long that the estates in question are entirely con- 
 sumed by solicitors’ fees, and the only question is, to which 
 set of lawyers the estate belongs. 
 
 VI. Then, in buying a piece of land the purchaser must 
 know what his title is to be, and his solicitor, to answer 
 this question, endeavors to find out whether all previous 
 owners have given up all claim to the land, what disposi- 
 tion they made of it, what restrictions were laid upon it, 
 and how long they are to have effect, what leases and mort- 
 gages have been made, and who hold them. But all this 
 involves time, and time in England, as elsewhere, means 
 money, the title costing not in proportion to the value of 
 the estate, but in proportion to the time spent by the solic- 
 itor, which may be, and frequently is, greater for a small 
 estate than for a large one. Mr. Kay mentions a case in 
 1877, where a poor man bought three acres of glebe land 
 and ^15 a year of rent charge, for which he had to pay 
 ,£117, or $685, for the mere legal expenses attending the 
 examination of the title and the deed of conveyance. Such 
 cases are of course exceptional, yet very often the expense 
 is so great as to prevent a reasonable man from investing 
 in land. 
 
 VII. But when finally the deed is completed, and the 
 purchaser is congratulating himself on his new land and the 
 fine bargain he has made, he is not absolutely certain that 
 he cannot be ousted from his position by some one who 
 had a prior claim on the estate, which his attorney over- 
 looked, or which was concealed from him. A case of this 
 kind occurred in the south of England, where a man, after 
 a careful examination of the title, purchased a small estate, 
 the former owner of which soon fled the country in a state 
 
7 
 
 of hopeless bankruptcy. Shortly afterwards the new 
 owner found that the estate had been mortgaged secretly 
 in ,£1,200 to a third party, who now claimed his money; 
 and the money had to be paid. If England would only 
 adopt some such system of registration of deeds as is in 
 use in this country and among many European nations, all 
 uncertainty as to the security of titles would be reduced to 
 s a minimum ; and that the expense of registering a deed 
 would be a mere nothing as compared to the present cost, 
 is shown by the fact that in England’s own colony of Aus- 
 I tralia, the expense has been cut down ninety per cent, by 
 this institution. 
 
 VIII. But the cost of a title is not the only considera- 
 tion in small pieces of land such as the poor and the mid- 
 dle classes would be likely to purchase. It is almost impos- 
 sible to get land. The large estates swallow it up regard- 
 less of expense or need, and the poor man must either rent 
 or emigrate. And this constant absorption of small estates 
 by the greater ones causes immense harm ; for, by taking 
 from a man all opportunity or power of ever being able to 
 possess in his own right a strip of land which he may cul- 
 tivate and on which he may build a cottage, they remove 
 one of the greatest incentives to activity, industry, econ- 
 omy and moral life. 
 
 In addition to these manifestly harmful results which 
 have been mentioned, there are several rights and powers 
 which landowners, and owners of no other kind, have come 
 A to possess, and which they do not fail to exercise. 
 
 (i). The first of these powers is one derived from 
 ancient feudal laws, and is called the “ Law of Distress,” 
 by which, if a tenant fails to pay his rent for any reason 
 whatever, whether sickness, laziness, famine or distress of 
 
i8 
 
 any kind, the landlord, or his agent, has full power to step 
 in, without the long process of appeal to the courts, and 
 seize a sufficient quantity of the tenant’s household goods, 
 cattle, or agricultural implements, to satisfy the debt. To 
 an owner of no other kind is this right given ; all other 
 creditors must take an equal chance in the courts. 
 
 (2) . Another privilege, also handed down from feudal 
 times, is that known as the “ Law of Fixtures.” This law 
 provides that, in case of a tenant, whether on a short or 
 long lease, whatever improvements that tenant may make 
 upon his land, for example fences, walls, drains, new build- v 
 ings, etc., from the moment they are placed upon the land, 
 become fixtures, and belong no longer to the tenant who . 
 made them, bur to the landlord ; and this is true whether 
 the improvement be fixed or of such a kind that it can be 
 removed without injury to the estate. And one of the 
 worst features of the law is that, as a general rule, as can 
 
 be proved by the many cases tried in court on this subject, 
 the tenants enter into leases and agreements concerning 
 the land, without the slightest conception of what the law 
 means, or in fact that it exists. 
 
 (3) . Then, in the matter of game laws, the lord has a 
 power over those found trespassing on his premises, which 
 would be tolerated in no other country. A man caught in 
 the act of poaching is tried before a magistrate, himself a 
 landowner, who having the same interests at stake as the 
 man on whose preserves the poaching was done, is not 
 likely to let the offender go unpunished, and who often 
 imposes a fine which utterly ruins him. In no other court 
 would a judge be allowed to sit on the bench if he were ^ 
 anything but a disinterested party. 
 
 One very harmful result of England’s land policy is that 
 
19 
 
 the wealthy landowners, who are also the leaders in politi- 
 cal matters, gain the support of their tenants very often 
 through patronage and the tenants’ dread of eviction. To 
 secure the votes of the people the lords grant leases for 
 only short periods, which work vast evils, for the man 
 whose lease expires in a few years will not lay out money 
 in improvements which may be taken from him at any 
 time ; a most terrible lack of improvements has resulted 
 ‘ from this practice. 
 
 Great difficulty will be experienced in trying to reform 
 . the land-laws, on account of the enormous wealth and in- 
 fluence of the landowners in Parliament and elsewhere, and 
 also from that proverbial indisposition on the part of an 
 Englishman to attempt anything for which he has not the 
 precedent established way back in the time of the Con- 
 queror. 
 
 The first place where reform should be attempted is in 
 the law of Primogeniture, which should be repealed, a 
 measure which even the champions of the present system 
 are beginning to endorse, since it is among the poorer 
 classes only that intestacy prevails ; and thus the abolition 
 of this law would not affect them at all. And even if a 
 large property should devolve upon several children, yet a 
 fraternal agreement could easily be made by which the 
 estate might be kept in the family undivided. 
 
 But Primogeniture is not the only place where improve- 
 ment can be made. The law of Entail has far greater 
 A . influence for ill. It has been proposed to cut off that part 
 of this statute which permits the entailing of estates upon 
 unborn children, and limiting it. to only specified persons 
 * in existence when the will or deed was made. This meas- 
 ure would afford only a slight relief ; for when property 
 
20 
 
 can be tied up for one hundred years, a reduction of twenty 
 years does not touch the vital defect in the system, but 
 would only set lawyers at work to devise some \vay of get- 
 ting round the statute. 
 
 For these and other reasons it seems better to sweep 
 away entirely the law of Entail. This would not put an 
 end to the power of settling property upon one’s heirs at 
 pleasure, but it would destroy the power, given to one man 
 to direct the administration of an estate for a century after 
 his death. Following the abolition of this law would be 
 increased parental- control, and a general betterment of • v 
 those evils already mentioned as resulting from Entail. 
 Moreover, estates now heavily encumbered by debts would 
 come into the market, greatly to the advantage of the lord 
 himself and of his creditors as well. Mr. Arthur Arnold 
 gives a very good picture of the condition of a bankrupt 
 landlord: “The nominal owners of several of the finest 
 properties in England are now adjudicated bankrupts ; 
 their lands are racked and impoverished, but those broad 
 acres cannot be made free without the cooperation of the 
 tenant-for-life with the next tenant-in-tail, who in some cases 
 is a minor, and in others is unborn, and may never come 
 into existence. But for every one of the landed gentry 
 who is bankrupt, there are scores who are hopelessly 
 
 embarrassed The cottages upon many estates are 
 
 fever-nests and are few and far between ; the homesteads 
 are insufficient, inconvenient, and in many cases in ruins ; 
 the land is undrained, and there is no one with the interest ^ 
 of a proprietor to look to the estate. The ostensible 
 owner, the lord or the squi-re of the district, who is harassed ^ 
 for subscriptions, and supposed to contemplate with the 
 benign interest of a seignioral lord the welfare of all 
 
21 
 
 around, who is the great man in the church and in the vi( 
 lage, is in the dull reality of his own home merely a poor 
 annuitant, with his eyes fixed, not upon the many fields 
 and farms which in the rate-book bear his name, but upon 
 the slender remnant of income which is all that charges or 
 settlements have left him for the daily and hourly labor of 
 providing for a family, for whom ten times his means would 
 , seem insufficient. He and his eldest son have but one 
 pleasure in the world, and as it appears to cost nothing, 
 they think themselves meritorious in that they are content 
 ^ with the sporting which the estate and the neighborhood 
 afford. The younger children languish at home, well 
 knowing that upon their father’s death they must find a 
 new shelter, with very small fortunes.” 
 
 The laws of Primogeniture and Entail are the chief 
 cause of the troubles in the administration of land in Eng- 
 land to-day; but besides the abolition of these, there are 
 other reforms and improvements which should be made in 
 order to make the sale and transfer of land more certain 
 and simple, with less cost. Two of these changes are to be 
 found in the questions of registration and conveyancing. 
 If there had not been for so long a period the complicated 
 series of wills and deeds entailing property upon future 
 generations with an almost endless variety and number of 
 directions, restrictions and charges, much of the tedious- 
 ness and outrageous cost of conveyancing would have been 
 uncalled for, and the title of an English estate would not 
 ^ have needed to be “ enshrined in a mausoleum of parch- 
 ment.” This better conveyancing would be greatly aided 
 by better means of registration of title than at present pre- 
 vail ; these means now consist in the records of the Court 
 of Chancery, which are often very defective. Registration 
 
22 
 
 can be made just as simple and easy in England as any- 
 where else, yet it can have no beneficial effect if not made 
 compulsory, and also convenient and cheap. 
 
 Several movements in the direction of improvement have 
 already been begun, and more are constantly being pro- 
 posed. In 1833 the clumsy method of “ fines” and 
 “ common recoveries ” was abolished and a tenant-in-tail 
 now, by means of a deed enrolled in chancery, can make 
 whomsoever he pleases possessor of his estates, in fee-sim- 
 ple, if he has the freehold ; but if he has not this, he must 
 get the consent of the tenant-for-life, who is then called 
 “protector of the settlement.” This measure has caused 
 great relief. 
 
 To alleviate in some degree the difficulties, dangers and 
 expenses caused by poor registration, many efforts have 
 been made. Many times the subject has been discussed, 
 yet the root of the matter has been left untouched. Reg- 
 istries of deeds have been established, as for example, the 
 one in 1862, in which state guarantee and simplicity were 
 offered in future dealings to landlords who could prove 
 their titles satisfactorily. Local registries have also been 
 established, but with little success, the chief obstruction to 
 their success being that they are not made compulsory by 
 law. The certainty of a title under the present system is 
 well set forth in an answer sent to the Real Property Com- 
 missioners in reply to some inquiries from them: “It is 
 possible to attain to such a degree of certainty as com- 
 monly satisfies a prudent man in the ordinary business of 
 life, but with considerable delay, difficulty and expense ; 
 the great evil is not that titles are uncertain or unsafe, but 
 that the investigation of them is difficult, tedious and 
 costly.” A title is now held to be good when there have 
 
23 
 
 been twelve years undisturbed possession, except when the 
 claimants were disabled by infancy or some like reason from 
 presenting their cause, in which case six more years are 
 allowed. 
 
 Another point where much remains to be done is in the 
 matter of the disadvantages of strict settlements, of which 
 Lord St. Leonards wrote : “ The present plan of a strict 
 ^ settlement does not place land extra commercium , but 
 within reasonable limits enables the owner to transmit it to 
 
 all his posterity No man in this country can 
 
 p justly complain that there is not sufficient land in the mar- 
 ket on sale.” The great objection to these strict settle- 
 ments is that no room is left to a tenant-for-life for improve- 
 ments on his estate. The charges already placed upon 
 him by his ancestors, have so narrowed his income that he 
 has all he can do to support himself. In 1882 the Settled 
 Land Act of Lord Cairns was passed, which gives the ten- 
 ant-for-life certain powers of selling and leasing, subject to 
 certain restrictions intended for safeguards to prevent 
 abuse. The consent of the Court, however, is necessary to 
 the sale of a mansion-house or an heir-loom. The money 
 obtained from the sale of land may be devoted to improve- 
 ments, the expenditure on which is under the eye of the 
 Land Commissioners or the Court. By this act the life- 
 tenant gets no benefit to himself, but only places his estate 
 in a far better condition for his son to enter upon ; he may 
 leave money entirely instead of land, if he pleases; in so 
 * far can he alter the form which his son’s rights take, but 
 he cannot alter the rights themselves. 
 
 We have mentioned some of the laws which govern Eng- 
 land’s land to-day, also some of the evils which these laws 
 have caused, together with proposed remedies for them. 
 
24 
 
 With all these harmful customs and laws swept away, and 
 with better facilities of transfer, “ it is not too much to 
 expect,” to quote Mr. Brodrick, “ that some links, now miss- 
 ing, between rich and poor, gentle and simple, might be 
 supplied in country districts ; that ‘ plain living and high 
 thinking’ might again find a home in some of our ancient 
 manor-houses, once the abode of landowners, but now ten- 
 anted by mere occupiers ; that, with less of dependence ^ 
 and subordination to a dominant will, there would be more 
 of true neighborly feeling, and even of clanship ; and that 
 posterity, reaping the beneficent fruits of greater social 
 equality, would marvel, and not without cause, how the 
 main obstacle to greater social equality— the Law and 
 Custom of Primogeniture — escaped revision for more 
 than two centuries after the final abolition of the feudal 
 tenures.” 
 
UNIVERSITY OF ILLINOIS-URBANA 
 
 3 0112 061728710