Free trade in land

Preface

^ I HAVE been asked to write a few words of intro-

UJ

«^ duction to this Volume. I do it willingly, although

^ I cannot think that any special introduction is

oQ required.

The subject discussed in it is so important, and the manner in which it is treated is so good, that I hope and believe the Volume will recommend itself to that increasing portion of the public which takes an interest in one of the greatest and most pressing

ggiquestions of the day.

^ It is a matter of deep regret that the Author of

^ the Letters of which the book is mainly composed,

uj did not live to complete his work. He was compeer . . tent, perhaps above any other writer on the subject

of our Land Laws, to treat his favourite question

with admirable clearness of exposition, and with a

knowledge and experience derived from much travel

^ abroad, from careful investigation at home, and from

§ accurate legal study of the difficulties by which it is

"*" surrounded.

»8';'235 vi Preface.

As the reader acquaints himself with the contents of the Volume, he will perceive how moderate and how just are the views which are advocated in it. There is nothing to alarm intelligent owners of land ; there is no support given to any of the wild propositions which some speculative writers have put forth, and which ignorant and illogical men have adopted or favoured.

The Author is always just ; he seeks to give that freedom to the soil which our laws have given to its produce, and which they give to personal property of every kind ; he would leave to their free action the natural forces which tend to the accumulation of landed property on the one hand, as well as those which tend to its dispersion on the other ; he would so change our laws as to give to every present generation an absolute control over the soil, free from the paralysing influences which afflict it now from the ignorance, the folly, the obstinacy, or the pride of the generations which have passed away.

He shows, by abundant evidence, how great is the gain to the humbler classes of society, to the labourers, and peasants, and small farmers of the countries in which the reforms he advocates have been effected, and he pleads urgently on behalf of the suffering and helpless population of our country, bound to the land by a tie which is more that of

Preface, vii

serfdom than one of ownership and of independent enjoyment and possession.

I venture to recommend this Volume to owners of estates, to tenant farmers, to the labourers on their farms, and to the crowded populations of our large villages and towns.

There is no class of our people which has not a great and direct interest in the reforms it explains and advocates. It may prove a legacy of much good from one who is now withdrawn from amongst us, if it hasten the time when, in addition to the many gains of freedom of which we justly boast, we may boast also of the freedom of our soil.

JOHN BRIGHT.

PREFACE BY THE EDITOR.

Mr. Kay intended to publish the contents of the following Letters as soon as he had completed the series. He wished to re-arrange them in Chapters, and divest them of the repetitions incidental to their original form, that of a series of Letters published in the " Manchester Examiner and Times."

My husband, however, died while engaged in the composition of No. XV., the concluding portion of which would have contained an account of the Land Laws of Germany. There would have been one more Letter only, in which he would have summed up the results he had arrived at, and which he had already indicated in the earlier Letters.

Since it is beyond my power to carry out precisely what my husband intended, I have decided to publish the Letters as they were written, with only such slight alterations as the writer himself indicated while the work was in hand.

X Editors Preface.

These alterations occur in Letters II. and VII., which have been slightly recast in accordance with wishes he had expressed to me.

In a iew cases paragraphs have been inserted as they were written by my husband after the publication of the Letters, and with a view to their final arrangement.

MARY E. KAY.

i8 Hyde Park Gardens, March 29, 1879.

Contents

Preface by the Right Honourable John Bright v Editor's Preface . . . . . . ix

Introduction to the Letters . . . 9-10

LETTER L

THE ACTUAL CONDITION OF THINGS WHICH THE PRESENT LAND LAWS HAVE PRODUCED.

Returns of so-called "Doomsday Books "

In what respects misleading

Size of great estates in England .

Scotland , . . . .

Ireland .....

Effect of present Land Laws on peasantry in Great Britain

Foster accumulation of land in few hands .

19 20

LETTER IL

ON SOME FALLACIES AND MISCONCEPTIONS.

Misconceptions as to " Primogeniture" .

Objections to expression "Free Land"

Xll

Contents.

Sir Stafford Northcote criticised .

Mr. Francis Newman ....

Mr. Froude .....

True causes which prevent land coming into market

PAGE

26 27 28 29

Letter III. The Existing Land Laws

Land Laws offspring of Feudal System .

Laws which oppose " Free Trade " in Land Settlements and Devise Primogeniture ....

Leases for long terms of years

32 33 33 39 39

Letter IV. Evil Consequences Of The Existing Laws

Estates kept out of the market . . . . .44

Parental control lessened . . . . . .48

Effect upon Heirs . . . . . . .49

Unworthy persons maintained in influential positions . . 50

Management of estates interfered with . . . .50

Agricultural improvements retarded , . . .52

LETTER V. EVIL CONSEQUENCES {C07ltimicd)

Expense and obscurity of conveyances

Investigation of Titles .....

Uncertainty of Titles .....

Picnefits of the South Australian system of Registration of Title

Accumulation of land in few hands

Contrast between English and German peasantry

Evil consequences aggravated in Ireland by Absenteeism

55 56 57 58 59 60 61

Contents.

Xlll

LETTER VI. EVIL CONSEQUENCES {cOuHttued)

Recapitulation of Letters IV. and V.

. 64

Law of Distress .....

. 65

Law of Fixtures .....

. 68

Administration of Game Laws

. 70

Want of Leases .....

• 73

County Franchise and Education .

. 74

Stimulus to Extravagance

. 76

LETTER Vn.

ON REGISTRATION.

Registration defined and explained

Reason of failure of Registration in England

Contrast with foreign countries

79 80

LETTER VI I L

Author appointed travelling bachelor of the University of Cam

Switzerland visited . . . . . .83

Training College of M. Vehrli at Constance

Contrast between Saxony and Bohemia .

Education in Switzerland . . ■ . . . -91

Want of, in France . . . . . -91

LETTER IX.

ON FRANCE.

French System of Land Laws Code Napoleon

94 97

XIV

Contents.

Division of land in France

Size of estates

Frencli people content with System

PAGE

LETTER X.

WITNESSES TO THE EFFECTS OF THE FRENCH LAND LAWS

Letter of Mr. Cobden quoted

. 104

M. Passy . . • .

. no

M. Gustave de Beaumont

. 112

AL de Lavergne ....

. 115

Mr. Hamerton . . . . .

. 116

Corn and Wine produced in 1850 and 1S76

. 116

LETTER XL

EVEN THE FRENCH SYSTEM PROMOTES THE PROSPERITY AND HAPPINESS OF THE RURAL POPULATION.

Mr. Coleman on French agriculture . . . .119

Increasing use of machinery in France . . . .122

Counteracting influences to excessive subdivision in Norway . 123

In Switzerland . . . . , . .126

LETTER XIL

THE CHANNEL ISLANDS.

Objection to French System from climate

Land Laws of Guernsey

Of Jersey ....

Value of Land in Channel Islands

Trade with London

Prosperous condition of small owners

Houses and cottages

Markets ....

answered

Couients.

XV

LETTER XIII.

ON BELGIUM.

Soil and climate ....

Effect of local customs and manufacturing towns Contrast between tenants and owners Small properties not burdened with debt . System of Registration

LETTER XIV.

DISADVANTAGES OF THE FRENCH SYSTEM OF LAND LAWS.

Excessive limitation of owner's power of devise Effect upon father's authority Improvements slowly adopted in France .

Tendency to excessive subdivision

161 162

163 164

LETTER XV.

THE SYSTEM OF LAND LAWS IN FORCE IN PRUSSIA, AND IN TWO OR THREE OF THE SMALLER GERMAN STATES.

Division of Land in Prussia

Index to Appendix

• 173-331 332

X.

{The follo-uing kindly record published in the '■'■ Manchester Examiner and Times'' of the wth October 1878, seems to form a fitting int7-oductio7i to this series of Letters. — Ed.]

With deep regret we have to announce this morning the death of Mr. Joseph Kay, a man whose many and various associations with this district have made his name famihar to thousands of our readers, and whose private virtues endeared him to a multitude of devoted friends. Mr. Kay had long been a sufferer — he never entirely recovered, indeed, from the serious illness which prevented his appearance at the last Salford election, but his death, up to witliin a few hours before it happened, was quite unexpected — and, as a political thinker and writer, he may be said to have died in harness. His death occurred on Wednesday, at Fredley, near Dorking, Surrey, his home during the last few years, the name of which, too, will be henceforth sadly familiar to the readers of this journal.

By many ties the late Mr. Kay was connected with Manchester, or, rather, with the neighbouring borough, which he always called his native town. There he was born, and received his earliest education ; there he filled an important judicial office, and there on two occasions his name was inscribed on the banner of political liberty during momentous political crises. From his boyhood he

2 3hmoir.

had been an earnest and zealous political student, and, as the brother and pupil of Sir James Kay-Shuttlevvorth, his thoughts were early directed towards social and ethical reforms. Thus, though he was no longer a young man when he first consented to become a candidate for parliamentary honours, he brought to the contest an ardent and enthusiastic nature, singularly well informed on the most important political questions, and able to discuss them with no less insight than eloquence. But the secret of Mr, Kay's influence was chiefly due to the sterling honesty of his character ; the charm of his manner, the closeness of his reasoning, and the vigour and force of his oratory, never failed to carry away a popular audience ; but they were all the more eftective because they were expressive of the thoughts and feelings of one of the kindest and honestest men of his time. And while his loss will be lamented by thousands who only knew him as a public man, by those who had watched his career as a lawyer and judge, who had read his luminous and forcible essays on such subjects as Education, Land Tenure Reform, (See, and who had listened to his stirring orations as a political champion, we do not hesitate to say that only those who had the privilege to call him friend were able to gauge the depth of tenderness in his nature, the sweetness and gentleness of his disposition, and the measure of his excellence in the most sacred duties of life.

Mr. Joseph Kay was born at Ordsal Cottage, Ordsal Lane, Salford, in the year 1S21 ; he was the son of the late Mr. Robert Kay, the representative of an old Lancashire trading family. As we said above, he went first to a school in Salford, where some of the best-known of our citizens of to-day were his schoolfellows. Afterwards he was educated with the sons of Sir Thomas Fowell Buxton, and at this time the echo and excitement of the antislavery agitation reached the cars of the sons of the great philanthropist, and their friend's first aspirations as a politician were in favour of freedom to the slave. At

Cambridge j\Ir. Kay had a successful career, and after taking his degree, his appointment as " travelling bachelor" in 1844 gave him the opportunity of investigating the legal codes of foreign countries, and of testing by the experience of direct observation the comparative advantages of divergent systems. To the studies of this time are due the most important literary labours of his after life. Startled, as he has said, at what he saw of the results abroad of " free trade in land," he made close inquiries into the working of the Land Laws, as well as the educational systems of Germany and Switzerland.

In one of his recent letters he thus refers to his first experience of the duties of his office : " I left England on my appointed duties, furnished with introductions from our Government and from the German Ambassador, Chevalier Bunsen, to all the Governments and other authorities and heads of institutions who could aid me in my proposed inquiries. I went first to Switzerland, partly because in that country were to be found some of the greatest leaders of the educational movement which had been for many years spreading through Western Europe, and partly because I knew that some of the cantons were, even at that time, making the greatest efforts to perfect the schools for the children of all classes of their people. I visited first the rich agricultural cantons of Neuchatel, Berne, Vaud, Argovie, Zurich, Geneva, and Thurgovie, As I travelled through these prosperous districts, from school to school, I was more and more struck by the prosperous appearance of the farms, by the high farming, the substantial comfort, size, and excellence of the farm buildings, the number, beauty, and fine condition of the cattle, the extraordinary richness of the pastures, and the evident care that I observed on every hand not to waste anything, either land in wasteful fences or in undrained plots, or any portions of the manures from the farms and homesteads, or anything that could by any means conduce to increase the produce of the farms. I was astonished also to see how much care and expense were bestowed on the embellisliment of the exterior of the houses, as if the inmates were really interested in them, I noticed, also, that although the everyday working dresses of the men and women were of very coarse, substantial, and often home-made materials, I seldom, if ever, saw rags even on the working days, while on the Sundays men and women always appeared in comfortable, substantial, unpatched clothes, and often, if not generally, in their national costume, or at least with some part of their picturesque cantonal ornaments.

But what surprised me as much as, if not more than, anything, was that as I drove along the public roads for miles, even near the towns, the roads were bordered by rows of magnificent fruit trees of various kinds. These trees had no protection against theft. There were no hedges or palings. They were all open to any passenger along the roads. I have seen hundreds of miles of such roadside orchards in Switzerland, Germany, and Italy, and have constantly looked with astonishment at the wonderful respect for property which all this evinced. After some time spent in examining the primary schools throughout Switzerland, I went to the Lake of Constance, to visit and inspect the celebrated Training College for Teachers, which was then presided over by the celebrated Vehrli, at that time one of the most distinguished promoters of the education of the working classes in Europe." Vehrli took him to see a large agricultural school in the neighbourhood, which was maintained in order to enable the sons of small farmers to improve to the utmost their modes of farming and the capabilities of their land. Everything he saw was a source of wonder to him, and he began to study not only the education question, but the not less grave one of " free trade in land." When he saw the agricultural labourers struggling for themselves, working for no landlord, sharing their winnings with no master, he was more and more impressed with the moral and social effects of the release of the land from feudal laws. And then he began to ask hunself— Would a hke release have like results in England ? "I returned to England," he said, "and began the earnest study of our Land Laws. I then returned to the Continent, and travelled through the principal countries of Germany. Throughout these countries I found that the feudal laws had been done away, and that the educated yeomen farmers and peasants were cultivating their own lands. Everywhere I found the good effects of these great reforms manifested in the moral wellbeing of the yeomen farmers and peasants, in the healthy self-help they manifested, in their hopeful looks, in the good and substantial appearance of their villages and houses, in the economical and careful management of their fields."

In 1846 Mr. Kay published " Education of the Poor in England and Europe," and in 1850 " The Social Condition and Education of the People in England and Europe." It is scarcely necessary to remind our readers that for many years Mr. Kay has been a regular contributor to our own columns, and the ink is scarcely dry on his last written connnunication. With what ability he has discussed the Education and Land Law Reform they do not require to be told ; few modern writers, indeed, have brought to bear on these subjects so much thought and such exact knowledge, and his wise lessons have been rendered all the more valuable by remarkable illustrative power, and by the advantage of a graceful and vigorous style. A few years ago he published a treatise on " The Law relating to Shipmasters and Seamen," which established his position as an authority on the maritime and mercantile law of the country. In these and his other literary works Mr. Kay has left a rich legacy of political wisdom, of the value of which we have happily not been entirely ignorant during his lifetime.

As an education reformer Mr. Kay was no mere theorist ; he was deeply interested in the first attempt at anything like a system of national elementary education in this country initiated by his brother, Sir James Kay-

Shuttleworth. When the first English Training College for Teachers was established by Sir James Kay-Shuttleworth, and Mr. Tufnell at Battersea, Mr. Kay for about a year had great opportunities of observing and assisting in its management.

Mr. Kay was called to the Bar by the Honourable Society of the Inner Temple on the 5th of May 1848, and joined the Northern Circuit. In 1862 he was appointed Judge of tlie Salford Hundred Court of Record, and this appointment brought him into closer contact with the borough, though he had never ceased to keep up intimate social relations with many of his early friends here. He was made a Queen's Counsel in 1869. In the same year the Manchester Court of Record was amalgamated with the Salford Hundred Court, and Mr. H. W. West, Q.C., and Mr. Kay were appointed joint judges of the new court. Though Mr. Kay has not sat as judge for some time, he held that office at the time of his death. ^

Of Mr. Kay as the Liberal candidate for Salford it is quite needless to say more than a few words. His ability and attainments were recognised by his opponents, and his telling speeches will not soon be forgotten — speeches in which sound and sterling views were expressed in choice and eloquent language, and with the skill of a practised and scholarly orator. How deep was the regard and how sustained the trust Mr. Kay won from the Liberal party in Salford in 1874 (when he and Mr. Henry Lee were opposed to Mr. Cawley and Mr. Charley) was emphatically manifested when Mr. Cawley's lamented death in 1877 caused another contest. Mr. Kay had only spoken a few times in the borough since the previous election, and he was then suffering from the effects of his exertions at a meeting in the Town Hall in the previous February. Yet though it was known tliat his presence was impossible — notwith-

^ Shortly after being made a Queen's Counsel, Mr. Kay was elected a Bencher of the Inner Temple, and in 1872 was appointed Solicitor- General of the County Palatine of Durham.

standing the disadvantage of a fight in the absence of the standard-bearer — the influence of his very name was considered so great that his candidature was accepted with enthusiastic acclamation. It was said at the time of his first contest that " he was a Liberal in the best sense of the word, neither an obstructive nor a destructive ; " and he certainly never advocated change for the sake of change ; but always maintained that without cons<-ant modifications according to the changing wants of the age, no institutions could be kept " in good repair." He married Mary Elizabeth, eldest daughter of the late Captain Thomas Drummond, who was for some years Under-Secretary of State for Ireland, and without any violations of that reserve which should be held specially sacred at this moment, it may be said that never was a union more completely happy. His long and painful illness was borne with serene steadfast composure, and his almost heroic cheerfulness was sustained by the tenderest and most devoted love ; and the kindness and consideration for others which throughout his life won for him the love and regard of all who knew him intimately were not wanting in his last hours.

At such a time the rancour of political strife is forgotten, and in the case of a man in whom party differences rarely, if ever, interfered with private friendship, it is all the more easy to realise how much in his departure we have lost as a community. There have been many men whose opportunities for active political life have been more extensive, and Mr. Kay will perhaps be remembered rather as a philosophical thinker and writer than as an ardent partisan. Only his most intimate friends could fairly estimate his great capabilities, his generosity, and disinterestedness. At a period like the present, indeed, it is difficult to avoid repining for the loss of a man apparently so well fitted to play a conspicuous part in political life \ but how few men leave us whose careers have been rendered so useful to their fellow-creatures. No fulsome record of imaginary virtues, no catalogue of imaginary services, will be inscribed on the tomb of Joseph Kay, but those to whom he was nearest and dearest may be assured that his memory will be kept green in the hearts of the best men and women of his native town as a genial and accomplished gentleman, a faithful friend, and an honest man.

Introduction To The Letters

December 15, 1877.

In these letters I wish to explain, as simply, clearly, and shortly as I can, the facts of a great subject, which will henceforward until its settlement more and more draw to itself the attention of the public — I mean the subject of the Land Laws.

It is surrounded by so many technicalities, and by so many statutes and decisions of the courts — the law is so difficult even for lawyers to understand ; such a vast literature of rubbish has grown up around it ; so many thousands of cases have been argued and reported upon its meaning ; and lawyers are so unwilling to put their own hands to the work of reform — that it is not wonderful that the most singular mistakes should be made by many public speakers in dealing with this question, and that the real reforms which are needed, should still be wrapped in so much obscurity.

And yet I believe that this subject is capable of a simple and intelligible statement, and that the facts in which the unprofessional public are interested are few and easy of comprehension.

I am, however, almost astonished at myself for venturing on the above statement, when I reflect that I have known the deed of settlement of one estate to require many months for its preparation ; to cover nearly a barrow-load of paper when written out preparatory to being engrossed on parchment; and to cost over ^400 for the conveyancer's charges

10 Introduction.

alone, ■without reckoning either the solicitor's charges or the cost of the necessary stamps.

And yet, with all this cumbrous, costly, and scarcely intelligible verbosity, the title of such an estate is scarcely ever free from some doubt or question.

I propose to try to explain : —

1. The actual condition of things which the present Land Laws have produced.

2. What the actual existing laws are, under which this condition has been produced.

3- The different state of things which exists in foreign countries.

4. What remedies we ought to seek

Letter I

THE ACTUAL CONDITION OF THINGS WHICH THE PRESENT LAND LAWS HAVE PRODUCED.

December 15, 1877.

To ascertain this we must consult some extraordinary and interesting returns, which have been recently prepared — I mean, of course, the so-called " Doomsday Books."

These returns were moved for in the House of Lords, on the 19th February 1872, by the present Earl of Derby — himself one of the largest of the English landowners — who in moving for the returns showed clearly what his motive for wishing for them was, by stating his belief that the number of landowners in the United Kingdom was nearer 300,000 than 30,000, as had been constantly stated ; that it was a popular fallacy to suppose that small estates were gradually being absorbed in the larger ones; but that "it was true that the class of peasant proprietors formerly to be found in the rural districts was tending to disappear."

It was therefore with the expectation, if not with the object, of making out these propositions, that the return was demanded of and granted by the assembly of the greatest landowners of the United Kingdom.

So far as giving us an approximate idea of the size and number of the great estates, these returns are as interesting as they are astounding ; and astounding they most certainly are, for they disclose a state of things existing in Great Britain and Ireland which has no parallel in any other civilised country in the world. But even in professing to

1 2 Actual Condition of Things zvhich

state the size and number of the great estates, they do not lell us the whole of the story, for they do not include in the alleged sizes of these estates the acreage of any woods or plantations, or of any waste or common lands, all the vast extent of which property is not added to the estates of their owners. " Doomsday Books," therefore, only give tlie sizes of the estates after deducting the immense area covered with woods, plantations, waste, and common lands. So far as showing the number of the owners of small agricultural estates, or as they used to be called "yeomen proprietors' estates," the " Doomsday Books " are utterly worthless, if not utterly misleading, for not only do they mix up in the number of " owners of one acre and upwards " all the large number of small building plots purchased by members of the middle and shop-keeping classes, on which to erect houses or villas, but they also mix up in the same number and reckon as oivners of land all holders of land on leases for terms exceeding 99 years. That is, in order to swell the number of small 07c>;ters, they have reckoned leaseholders as ozuners I It is difficult to conceive a more misleadmg statement. I will try to explain why I say so. First of all, it should be remembered that, at the end of these terms of more than 99 years, the lands held by these leaseholders return to the great landowners, together with all that has been expended upon them, and together with all the improvement in value which has resulted from this expenditure. A leaseholder has never the same feeling towards, nor the same full interest in the land he so holds, that he would have if he knew that it was his own property. But more than this, the land held for these terms of more than 99 years is almost always subject to various kinds of covenants and conditions — such as to expend upon it a certain sum of money for buildings or other kinds of improvement; or to expend at certain jicriodical times on restorations ; or to insure ; or to cultivate in a particular kind of way ; or not to use the lands for certain named and specified purposes ; or not to shoot the

PreseJit Land Lazvs have Produced. 1 3

game ; or to allow the landlord to enter to inspect, or to shoot the game, or for other purposes ; or not to cut any timber, or not to remove fences, or to keep up erections on the land ; or to observe some other agreed duties. Many of these leases contain agreements that the landowners shall have the power to enter and take possession, if any of these covenants is broken.

Besides all this, it must be remembered, as I know from the best possible authority, that neither the " Rate Books," nor any other parochial documents either could, from their entries, or did enable the Local Government Board to ascertain what lands were held for eve7i 99 years.

But, in those cases where lands were merely reputed to be held on lease, the overseers and rate collectors were instructed to obtain the best available information as to the term on which they were held, and to omit or insert the lessees accordingly. And when it is remembered how naturally unwilling, for many substantial reasons, both the landowner and the lessee generally are to make public the terms of the holding, or the nature of their mutual arrangements, it may be faintly conceived how utterly worthless this part of the returns of the " Doomsday Books " really is. Such a holding as this is less like real ownership than a horse hired by any one is like a horse which belongs to him ; for, at any rate, when any one hires a horse he is not bound down by covenants as a leaseholder is. I say, therefore, that it was ridiculous and misleading in the extreme to include these leaseholds for more than 99 years among the freeholds, or, in other words, among the small estates belonging out and out to the occupiers themselves. If we could possibly ascertain the number of yeomen proprietors actually owning out and 'out small f.\rms, we should find that number a very small, and, as Lord Derby admits, a constantly decreasing one. Even the House of Lords did not venture to propose that these 99 years' leaseholds should be reckoned as freeholds. The nearest approach to such a proposition was made by the Marquis of Salisbury,