Agrarian tenures [electronic resource] : a survey of the laws and customs relating to the holding of land in England, Ireland, and Scotland, and of the reforms therein during recent years

Preface

In view of the agrarian questions which have been raised in various parts of the United Kingdom, I have thought it may conduce to their discussion and solution to review the existing conditions of landownership and land tenancy, and of the relations to one another of the various classes of the agricultural communities in the three countries, and to describe the efforts made by Parliament during the last twenty-five years to reform or reconstitute them.

These legislative enactments have been numerous and varied, and have accentuated greatly the differences between the agrarian condition of Great Britain and Ireland. Many of them have been tentative and halting. Some have totally failed to produce the effect intended. Looked at as a whole, however, they include almost every method which the most ingenious political draughtsman or the most extreme reformer could suggest, and it would be difficult to invent any new method. They have been the handiwork, not of one political party, but of all parties in turns. They bear the mark of many conflicting currents of opinion, and of many schools of land reformers, aiming at very different ultimate objects.

The multiplication of individual ownerships, the creation of systems of dual ownership between landlordowners and occupiers of land, the restriction of freedom of contract between landlords and tenants, and the conferring of inalienable rights on the latter, the giving power to local authorities to purchase land by agreement, or by compulsion, with a view to the creation of new classes of tenants, with more or less fixity of tenure, and to the erection of labourers' cottages, the use of

9949,3 vi PREFACE.

State credit for turning tenants into owners, and the reform of the laws of inheritance and transfer of land, have been some of the methods adopted of a more or less tentative character. Any fresh legislative efforts must almost necessarily be in the direction of expanding, or making effective some of these measures.

I have thought it might not be without value to compare the methods adopted, the objects aimed at, and the results achieved by such legislation. I had almost completed this work before the passing of the Small Agricultural Holdings Act in 1892. I have since, in the intervals of other work, added a description of that Act, and a study of its probable effect.

Some few of the passages describing the changes in landownership in England during the last two centuries are taken from a pamphlet which I published a few years ago, entitled, " Freedom of Land;" and the description of the system of landownership in the Channel Islands is a resume of an article I wrote in the Fortnightly Beview on this subject.

If in the course of my description I have not unfrequently quoted from Lord Salisbury's speeches, it is because I have found that he has always stated in the most able and complete manner the views or objections of the political party of which he is the head.

I have only to add that I have not written with a view to the existing agricultural depression. No reform of tenure, however desirable, or however beneficial in the long run, could, in my opinion, have any immediate effect on the condition of the agricultural classes, or prove a remedy for a bad harvest or for low prices of produce. Q g L

Ightham, Kent.

February 1, 1893.

CHAPTER I. Landownership and Tenancy in England

page

Changes in System of Landownership — Three Classes of Landowners — Extinction of Two out of the Three — Causes tending towards Accumulation of Land in a Few Hands — Number of Landowners — Consolidation of Farms — Results of System — Effect on Labourers . . 1

CHAPTER II. Recent Land Reforms in England

Legislation for Landowners — Land Improvement Acts — The Settled Land Act— Land Transfer — Legislation for Tenants — The Agricultural Holdings Acts — The Ground Game Act— Purchase of Holdings by Tenants— The Tithe Act .35

CHAPTER III. Legislation for Laboltrers

The Commons Act of 1876 — Charity Lands — The Allotments Acts — The Sale of Glebes — The Small Agricultural Holdings Act — Labourers' Cottages — Summary of Legislation 60

CHAPTER IV. Landownership in Ireland

System of Landownership — Custom of Ulster — The Encumbered Estates

Act — Classes of Cultivators 90

CHAPTER V. Recent Agrarian Reforms in Ireland

The Land Act of 1870— The Land Act of 1881— The Arrears Act of 1882 — The Land Commission — The Land Purchase Scheme of 1886 — The Agricultural Crisis of 1886— The Land Act of 1887 . . • .103 viii CONTENTS.

Nationalisation versus Individualism.

Mr. Henry George's Scheme— Mr. Alfred "Wallace's Scheme — Land

Restoration — Conclusions 294

AGRARIAN TENURES.

Chapter I. Landownership And Tenancy In England

Most people are accustomed to regard the system of landownership in England and Wales as the most permanent and unchangeable of any of their institutions. A careful review, however, of the facts will show that under the influence of laws, of political, social, and economic causes, and of public opinion; great changes have taken place in this, as in other institutions, in past times, and indeed in comparatively recent years. It is historically demonstrable that two hundred years ago — not a long period in the records of a country — the greater part of the land in the rural districts of England and Wales was cultivated by its owners — a class of hardworking, thrifty, and independent yeomen farmers. These men either owned the land in fee, or held it as copyholders under Lords of Manors, subject to fixed annual payments, or to fines of varying amounts payable on death or transfer, but with the right of perpetual renewal, a tenure nearly as certain as that of freehold. There were also in those days great landowners, but they were comparatively few in number.

They were the owners of manorial rights over wide ranges of common land, and of woods and forests. They had also extensive demesne lands, which were let out as farms to tenants, a class which has now become almost universal. Bound these great landowners were clustered large numbers of small freeholders and copyholders, who on their part enjoyed valuable rights of turning out cattle, and of cutting turf, bracken, or gorse on the great manorial wastes and commons, which then constituted one-third at least of the area of rural England. These freeholders and copyholders consisted of two classes : the one of yeomen farmers owning and cultivating, themselves, farms of a fairly large size, of from 50 to 200 acres, and employing labourers under them on the farm work ; the other and larger class, of small yeomen, or peasant owners, holding land of 50 acres and under, cultivating it with their own hands, or with the aid of their families, and not employing labourers. To this latter class especially the common rights were of the utmost value. Without them, their farms could not be cultivated to advantage. The labourers of the district, whether employed by the landowners, the tenant farmers, or the larger yeomen, formed a much smaller proportion of the rural population than at present, i Large numbers of them held their cottages and gardens by a fixed tenure, as copyholders of manors, or on leases for two or three lives renewable on payment of fines. They also enjoyed rights over the common lands. They were dependent on them for fuel, for litter for their pigs, for thatching for their cottages. They could turn out their cows or donkeys. These common rights were practically inalienable ; they were part of the condition of existence of rural life. They eked out the wages in money. They gave a sense of independence and of property to the labouring people.

Great changes have taken place in the condition of rural England in the course of the last two hundred years. The two classes of yeomen farmers and peasant proprietors have all but completely disappeared in every part of the country. A few yeomen farmers, indeed, still exist in the mountainous parts of Wales, and in Cumberland, Westmoreland, and Devonshire. A few peasant owners, or smaller yeomen, are to be found in districts, where there still remain large areas of common lands, as in the neighbourhood of the New Forest, Ashdown Forest, Dartmoor, and the Welsh and Cumberland Moors. There are also a few communities of small peasant owners in Lincolnshire, especially in the district known as the Island of Axholme, where a colony of Dutchmen, many years ago, introduced the system of small ownerships. But these cases are exceptional. The number of agricultural labourers, also, now owning their cottages and gardens, whether as freeholders or copyholders, or under leases for lives, is extremely small. Practically it may be said of rural England, as a whole, that the yeomen farmers, the peasant proprietors, and the cottage freeholders and copyholders have ceased to exist ; their lands and houses have been bought up and b2 merged in adjoining large estates, which, are now cultivated wholly by tenant farmers, holding generally on yearly tenancies, and by labourers, who have no permanent interest in the soil or in their homes. The complete separation of the three classes of landowners, farm tenants, and labourers, has become the distinctive characteristic of the English rural system ; differing in this respect from that of almost every other country in the world.

Under this system the landowners supply the land and the capital required for all permanent improvements, for draining and fencing it, for planting, for the erection of houses and buildings of all kinds necessary for the farm operations, and for the labourers' cottages. The tenants have no permanent interest in the land ; they hire their farms generally on yearly tenancies, not under leases for years ; they expend nothing on permanent improvements ; they supply only such capital as is necessary for the ordinary cultivation of the land, for the growing crops and for manure, for stocking it with cattle and sheep, and for supplying farm horses and implements. Their capital can be transferred to other farms, except so much of it as is sunk in the growing crops and in unexhausted manures. The labourers, on their part, supply only their labour. They have no permanent interest in the land. They are engaged by the week or the year. They hire their cottages by the same tenure from the landowners or the farmers. They have lost in most districts, by the enclosure of commons, the rights which they formerly enjoyed. In some parts of England, as in Oxfordshire and Wiltshire, large numbers of labourers change their employers every year, and move with their furniture and household goods to other districts, and are seldom permanently resident in any parish or district.

This complete separation of the three classes of landowners, farmers, and labourers, and the all but complete extinction of yeomen farmers and peasant proprietors, have been due to a number of causes political and economic, all operating in the same direction during the last two hundred years. Chief among these have been the legal methods devised by the lawyers during the period of the great Civil War for tying up estates under a system of family settlements or entails, and preventing their being broken up and dispersed, either by sale or bequest of their owners. There was in this, as in other countries in Europe, from the earliest times a strong desire, under the influence of the feudal system, to connect powerful families with large possessions in land, and with this object to afford the means of transmitting these estates from generation to generation intact, and with every motive for adding to them, with a view to social and political influence, in days when landed property was the main, if not the only, material wealth. There had grown out of this a system of perpetual entail of land ; but in the time of Edward IV. the evils of such entails had come to be fully recognised, and the lawyers of that time devised the means of breaking them,* and thenceforward,

* Taltarum's Case, 12 Edward IV., 1472.

for nearly two hundred years, till the period of the great Eebellion, the Courts of Law and Parliament resisted or counteracted every effort to re-establish the system, and to prevent the free transfer of land. During this period, then, there was great freedom in the sale and bequest of land. The owners of land were multiplied in numbers. It became one of the boasts of England that it had so large a body of substantial yeomen owning the land which they farmed. It is well known that the armies of Cromwell were mainly recruited from this class.

During the troubles, however, of the Civil War, it became of paramount interest to landowners to find protection for their properties, so far as the interests of their children and descendants were concerned, from forfeiture for treason, as one or other side in the war prevailed. The judges who had previously resisted the system of entails now lent their aid in favour of such arrangements. A system was invented, and was recognised by the Courts of Law, under which land could be settled by its owner on an unborn eldest son, with successive limitations over, in such a manner as to elude the statute against entails, and the common law against perpetuities, and to lay the foundation of family settlements. Although perpetual entails were still held to be illegal, yet under the system then devised there was every inducement, when the heir to a settled estate came of age, for him to make a fresh arrangement with his father, thus continuing the settlement for the benefit of another unborn eldest son in the next generation. The essential feature of the system was the power to settle property upon unborn persons, against which the judges had previously struggled. It is not necessary to enter into a description of the technical method by which this was effected, or to discuss the legal subtleties and difficulties which have grown out of it. It is sufficient to say that it led directly to the system of family entails, under which the great bulk of land in this country is now held. The object of these settlements is to perpetuate the ownership of an estate undivided in the eldest representative of each generation of the family; to restrain any owner for the time being from alienating it or dividing it among his children in such proportions as he may think fit ; and to prevent the land being subject to the personal debts of the owner for the time being, for a longer period than his own lifetime.

There can be no doubt that the system thus devised tended very materially to favour the accumulation of land in few hands, and the aggregation of large landed estates. The movement was promoted by other influences. From the revolution of 1688 to recent times, almost all political power was vested in the landowning class, and chiefly in the hands of the owners of large estates. The Upper House of Parliament was, and still is, composed almost wholly of men of this class, and has been recruited— with rare exceptions — from the possessors of broad acres. A large majority of members of the House of Commons was, till the Eeform Act of 1832, composed of or returned by the landed aristocracy ; and even since that Act, until quite recent years, the same class has formed by far the most important section of members. The magistracy in rural districts was, and still is, almost exclusively chosen from this class ; and the whole of the local government in such districts was, till four years ago, vested in the same body.

Till the year 1831, the Grame Laws conferred the enjoyment of sporting rights exclusively on the owners of land of a certain value ; and to this day the pleasures of sport can only be fully enjoyed where properties are of such an extent as to make the preservation of game possible and profitable. It followed from these and other privileges that the social prestige and importance attaching to persons in the position of owners of land, of an extent sufficient to qualify them for the status of landed gentry, were very great. It became the object of ambition to men, who had made their fortunes in trades or professions, to be enrolled in this class. Their highest aim was to become the owners of landed properties, to create families in the hierarchy of county landowners, to hand down their estates to successive generations, to prevent the dispersion of their land, so as to perpetuate their families in this privileged class, and to afford means and opportunities for further aggregation. Such motives appeal to some of the strongest instincts of the propertied classes in a social organisation. All these incidents and privileges of landownership tended also to raise the price of land in the market, to give it an artificial value, especially when held in large blocks, or when bought for the purpose of adding to a growing estate, and consequently to make it more and more the luxury of the rich, and to put it beyond the reach of those who look upon it as a mere investment. The complications caused to the titles to land by the system of entail and the power of carving various interests out of the freehold, made the transfer of land exceedingly difficult and costly, and tended to keep it out of the current run of commercial transactions.

Another cause operating in the same direction during the last two hundred years has been the extensive enclosure of commons. It has already been pointed out that at the commencement of this period nearly one-third of England and Wales consisted of common land. A very large proportion of this — amounting to not less than seven millions of acres — has been enclosed under special Acts of Parliaments, or under the General Enclosure Act of 1845, and converted into private property, free from the burthen of common rights. It might appear that these enclosures, involving as they did the allotment to various classes of commoners of portions of the commons, in compensation for their rights, would tend to multiply small ownerships. The very reverse has been the result. The rights of common were a necessary adjunct to the numerous small ownerships which at one time existed. The whole economy of the small holdings was based on the common rights attaching to them ; when the commons were enclosed, allotments of land were made in respect of such rights, but in no way answered the same purpose as the common rights. The allotments were often at a distance from the land in respect of which they were awarded. The small farms therefore ceased to be profitable when the common rights no longer attached to them. The allotments were sold; the small owners of land fell into difficulties and were compelled to sell ; and the land was bought up by the owners of larger estates adjoining ; and thus the aggregation of lands in few hands was facilitated and promoted by the enclosure of commons, rather than the reverse. This is illustrated by the fact that the only districts, where small ownerships still exist, are those where common lands remain unenclosed, and where it is fully recognised that the right of turning out cattle on the common is an indispensable adjunct to the small holdings.

It must be admitted also that economic causes have assisted the process of aggregation of land in few hands. The commercial and manufacturing prosperity of the country offered temptations to the class of yeomen farmers to sell, and to invest the proceeds of their land at a high rate of interest ; they were tempted the more by the artificial price of the land, due to the causes already alluded to ; they often remained as tenants of their former properties at rents below the interest on their investments of the proceeds of the sales.

As small holdings of land fell into the market from such causes, or owing to the death or embarrassment of their owners, they were generally bought up by the adjoining larger owners, or by fresh aspirants to the rank of landed gentry, who were bent on gathering together large properties, such as to qualify them for the status ; and there was no corresponding dispersion or breaking up of large estates, on the death or embarrassment of the larger owners, such as would naturally occur under a system, where there are no artificial encouragements or facilities by legislation or otherwise for the perpetuation of large properties.

These causes, operating slowly but surely for many generations, and during two hundred years, have most powerfully affected the condition of landownership in England and Wales, and account for the fact that the classes of yeomen and small peasant owners of land have all but disappeared. This was fully recognised by the Select Committee of the House of Commons on Small Holdings, which, after two years of inquiry, reported in 1890. Its members unanimously agreed to the following paragraph : —

" It appears to your Committee that to whatever extent legislation has tended to keep land out of the market, it must have been unfavourable to the creation of new small holdings, and must, therefore, have prevented the repair of the inevitable waste in this class of ownerships due to natural causes. They cannot doubt that the distinct object of legislation, down to a very recent period, was to prevent the dispersion of large estates, and they believe that owing to this policy the small ownerships, which have been absorbed from time to time by large estates, have remained attached to them, and have been thereafter and generally only purchasable in large masses."

An illustration is supplied, in the evidence given before the Select Committee, of this accumulation of a great estate, at the expense of a large number of small ownerships, in the case of a single property in the county of Westmoreland, a district where a large class of small yeomen survived till comparatively recent times. This great property consists of 25,000 acres. It was gradually accumulated and purchased under the express direction of the will of a man who, two generations ago, made a large fortune in trade, and whose only daughter married a nobleman. The estate was made up of 226 different purchases, nearly all of them cases where the vendors belonged to the class of yeomen farmers, or statesmen, as they are called in that district, who, themselves and their ancestors, had cultivated their own lands for many generations. Instead then of 226 distinct owners of land, there is now a single owner.

It may safely be assumed, in respect of this great property, that, under the existing system of family entail permissible by law, it will for generations to come remain intact in a single ownership ; that it will be the subject of successive family settlements aiming at its perpetuation in the same family ; and that, if at any future time it should be necessary to sell it, it will probably be found that, with the prestige and influence it confers on its owner as a landed magnate, with the amenities it offers, and the enjoyment it affords of game preserving on a large scale, it will command a higher price in the market if sold as a great estate in a single lot, than if broken up

AGRARTAN TENURES. 13

into many lots, so as to tempt a number of small owners, and to recreate the community of small yeomen who formerly existed here. This was well illustrated by the case of a recent sale of a great family estate — that ot Savernake in Wiltshire, consisting of 35,000 acres. It was sold by the tenant for life, and against the wish of the next in the reversion to it under the settlement, who was anxious that the property should be retained in the family. The tenant for life had full power to sell the greater part of the estate under the provisions of Lord Cairns' Settled Estates Act, but he could not sell the family residence or the demesne lands, without the consent of the next in succession in the entail, or of the High Court of Justice. It was represented in court that the farms could not be sold separately from the residence and demesne lands, and that the property would command the best price if sold as a whole. The judges authorised the sale of this great estate in a single lot, for the sum of £750,000, on the ground that it was to the interest of all the persons living upon it, whether tenant farmers or labourers, that it should be transferred to a man of large means, able to do justice to the property, rather than remain for some years in the possession of the tenant for life, who was in embarrassed circumstances and unable to maintain it in the manner which was desirable in the interest of all concerned. The case shows that, even with full freedom of sale, there are many difficulties in the way of the dispersion of great estates, and that, when once aggregated, it is more probable that they will be sold en bloc, if necessity for sale arises, than cut up into small holdings for sale in detail.

As a matter of common experience, it may be stated that while the process of aggregation into large estates has been going on continuously in every part of the country for generations, the process of breaking up a great estate and its dispersion among numerous holders has been comparatively rare, except where the land has become suitable for building purposes ; and even in such cases the land is generally let on long building leases rather than sold outright. Purely agricultural estates, lying in a ring fence, are very rarely broken up into lots. It is probably considered that the process would detract from the value of the whole estate, and that, having regard to the conditions of rural life and to the amenities, privileges, and influence attaching to large properties, a better price is obtainable for the estate when sold as a whole than when cut up into many lots.

NUMBER OF LANDOWNERS.

The actual condition of the ownerships of agricultural land in England and Wales is this — Their total area is 37,320,000 acres, of which 33,013,000 only are accounted for in the Eeturn of Landowners issued in 1870. A careful examination of this return has shown that about one-half of this area is owned by 2,250 persons, each with estates of over 2,000 acres, and averaging 7,300 acres each; 1,750 other persons own between 1,000 and 2,000 acres each, with an aggregate of

2,500,000 acres ; 34,000 persons own between 100 acres and 1,000 acres, with an aggregate of 8,926,000 acres ; and 217,000 persons own from 1 acre to 100 acres, with an aggregate of 3,931,000. The difference between the aggregate of these ownerships and the total acreage ot England and Wales represents land held in mortmain by the Crown, the Church, Charities, Universities, Colleges, and Schools (believed to amount to about 2,000,000 acres), waste and common land, woods and plantations, land devoted to public purposes — such as roads, railways, etc. — and land occupied by towns.

There are about 12,000 rural parishes in England and Wales, averaging about 2,500 acres each. It follows, then, that 2,250 persons own between them an average of about 2^ rural parishes. It would be interesting to know how many of the 34,000 persons owning between 100 and 1,000 acres are of the yeoman farmer class and make their living by cultivating their own land ; and how many, also, of the 217,000 owning between 1 acre and 100 acres may be classed as peasant proprietors, cultivating their own land and living wholly by it. The agricultural statistics throw no light on this subject. Of the class of owners between 100 acres and 1,000 acres, it may be confidently stated that a very small percentage make their living by cultivating their own land. In the larger class of 217,000 persons owning from 1 acre to 100 acres are included a vast number of persons owning villas with land attached, which they cultivate themselves, not with the object of making a living from it ; it includes also a very large class of small proprietors, village tradesmen and others, not making a living out of the land, but employing it as an adjunct to their other business. It may be assumed here, also, that the number of peasant farmers living wholly by their land is extremely limited.

In the Kentish parish where the writer lives, consisting of about 2,400 acres, where the land is fairly distributed and is purely rural, and where from the growth of fruit it might be expected that small ownerships would be cultivated to advantage, there is not a single case of a peasant owner making a living out of his land. There is but one case of a yeoman making a living out of his land. There are eight or ten cases of village tradesmen owning small holdings of land of from one acre to ten acres, and cultivating them for profit, but not making a living out of them. There are a few cases of retired tradesmen who have bought land of from two acres up to twenty in the parish, and who cultivate it partly for profit, partly for amusement, but who do not make their living out of it. These two last classes are of great value in the social and economic condition of the parish, but they are not yeomen or peasant owners in the true sense of the terms. If this be the condition of a rural parish in Kent, a county once renowned for the number and wealth of its yeomen, what must it be in other parts of the country where large* properties prevail ?