Land Laws.

Land Laws. Land being the universal and necessary basis of existence of the human race, it has in all countries been deemed to be subject to rules of use and possession established by the community. Of these rules in the earliest stages of society we have no written record, for they were in force before writing was invented. But we are able to trace their probable origin and first development partly from tradition, partly from customs which survive in later periods, and partly from investigation of the systems in force in rude nations when they first come within the view of competent observers. The formation of rules begins when civilisation or population has advanced so far as to render the regulation of conflicting rights desirable. Prior to that time the only law was that of the strongest: each man or each tribe occupied what he or it could conquer, and so much as it was within the power of either to defend from hostile aggression. Hunting, and afterwards pasturage, were the only uses to which land was then devoted. But as the tribes grew in numbers, and a nomad life became fatiguing, or inadequate to supply the means of existence, incipient agriculture led to the establishment of settlements more or less permanent. It is at this stage that we begin to meet with the recognition of rules for the regulation of culture and possession. The Roman writers, who examined with marked interest the contemporary institutions of their German enemies, show us one of the earliest stages of settled life. The wealth of the tribe lay still in herds of cattle, but a portion of the land around the villages was cultivated. This land was annually allotted to heads of families, and was changed in rotation from one to another, so as to ensure equality. Such arrangements survive in Europe to the present day. In Servia and some of the adjacent principalities the family property is still held in some degree in common, and every member of the household is considered to have a right to reside in the family dwelling, and to share in the produce of the family fields. The Russian mir, or village, preserves similar characteristics. It is a community recognised by the state as joint-propriator of the village lands, and jointly responsible for the taxes. The lands themselves, with their apportionment of taxes, are allotted by the community among its several families. Where the land is poor the division is seldom changed, but where it is rich a fresh arrangement is made at frequent intervals or even every year. This village system prevails also in India, though there the division has become permanent. In Great Britain, as will be seen hereafter, its existence was unquestionable, and traces of it survive even at the present day in the customs and nomenclature of numerous districts.

Such rudimentary systems are, however, from their own nature destined to extinction as population increases. The family grows into the village, but the village finds its bounds restricted more and more by the pressure of neighbours, while every year the number of mouths to be fed within its limited space becomes larger. Thus more labour and more manure must be given to the soil to extract from it increased return, and the individual who has made his allotment more fertile than his neighbour's does not willingly exchange it for one which has been comparatively neglected. If he has either power or influence, which probably his natural energy will procure for him, he insists on retaining his own plot, and on handing it on to his own family. As all who are in the like position will make a like claim, it easily becomes established as a right, and the more that labour is employed on the separate property the more impregnable does the title tend to become. This stage has always been reached by the time that the nation in which it prevails comes to have a recognised code and written laws. The laws of the Israelites (it matters nothing whether prescribed by Moses, or compiled at a later date from tradition, or from theories of sound policy and justice) recognised that the tribe had a title to a certain district, but that each member of the tribe had an absolute and indefeasible right to his own separate portion of land. This right was guarded by a law, at once of equal partition and of entail, under which alienation was only valid for a term of forty-nine years. In Greece private ownership was fully established. In Rome every family had its permanent share allotted to it. The survival of the idea of community was limited to the common lands, which by conquest became of immense extent. But the object of the agrarian agitation which covers so many pages of Roman history was not to revert to the original community of possession, but only to secure that of the remaining common lands each citizen, however poor, should be deemed entitled to receive a grant for his future possession in exclusive and private property.

From this general sketch of the origin of private property in land we may now proceed to consider its development in modern times, and especially in the United Kingdom.

The system of ownership of land in England under the Saxons was substantially the same as among their Germanic ancestors. There was still ample space for all. The village community remained the unit of social arrangements, and held generally large areas of forest or heath in common, on which every villager had a right to pasture stock. The small area of land under tillage was appropriated to individuals, sometimes in understood permanence, especially where a family held a position of pre-eminence, sometimes under a custom of more or less frequent redivision or appropriation. This village system, with its rights of common, survived far into the period of Norman occupation; and in numerous districts it may still be traced in the divisions and names of fields, and in the local customs. But a vast change of principle was introduced by the Norman Conquest, bringing with it the ideas of feudalism which had grown up on the Continent. Under this theory the whole land of the realm was deemed to be vested primarily in the sovereign. By him it was granted in knight-fee to certain nobles or gentlemen, who in return were bound to perform all duties of a vassal to his lord, and in especial to furnish a contingent of armed men to support him in war. Default in these duties involved forfeiture, but if performed punctually (or so far as the lord could enforce punctuality) the vassal was supreme in the territory granted to him. By degrees he gained the right of sub-infeudation—i.e. of making similar grants of portions of his land to others, to be held by them as his vassals. This privilege was abolished in England by the statute Quia Emptores, 18 Edw. I., which recognised the right of a vassal to sell, but required that the purchaser should hold subject to the original lord. At a still later period the owner of land in England acquired the right of devising land by will (32 Henry VIII. chap. 1). But the system of feudal tenures was swept away in England by the statute 12 Charles II. chap. 24, which abolished all services, already long fallen into disuse, of the nature of military aid to the sovereign. Meantime the character of the land laws had been chiefly affected by the struggle between parliament, representing the wishes of the great nobles, the courts of law, guided by judges sprung mainly from the people, and the Court of Chancery, which in its earlier stages was inspired by the church. The statute De Donis established entails. But these were defeated by fictions, called fines and recoveries, sanctioned by the courts of law. Parliament passed acts forbidding alienation of lands in mortmain, chiefly in order to prevent the aggrandisement of the church. But these were defeated by the Court of Chancery giving effect to trusts for religious corporations. Parliament by the Statute of Uses, 27 Henry VIII. chap. 10, annulled such trusts. But again the judges defeated the statute by declaring that it did not apply where a trust was created to hold for another, who again was to hold for a third person. At last a device was hit upon by the ingenuity of lawyers under which the effect of entails has been attained by means of what are called Settlements, under which the operation of natural motives is brought into play to induce each successive owner to restrict himself to a life-interest only. By this system, which applies to a very large proportion of the land of England, estates are preserved in families, from one generation to another, but at the cost of grave evils, arising from the restraint placed on the powers of the actual possessor.

In Scotland the feudal system superseded that of clanship; and the chief of the clan, who was at first only the village headman, acquired in the eye of the law the sole title to the land which supported the community. But sub-infeudation was never abolished in Scotland. It formed the basis of the system of conveyancing till past the middle of the 19th century, and it is still in practical use in the creation of 'feus.' Entails also, in all their strictness, were recognised as valid from the year 1696, and only since 1848 have been subjected to restraints resembling those which were from the first imposed upon them in England by the fictions which were sanctioned by the courts of law. Legislation subsequent to 1848 has enabled every owner under an entail to acquire the fee-simple on paying to the next heirs the estimated value of their interests.

Feudalism held sway in France down to the Revolution. The introduction of modern ideas of taxation even aggravated its hardships, for the great nobles secured exemption from these imposts, which thus fell the more heavily on their vassals. Both in France and Germany the vassals were also heavily burdened with the obligation of forced labour, partly due to the state for the maintenance of roads, &c., but chiefly to the immediate lord, who thus obtained the advantage of gratuitous cultivation for his own lands, while the peasantry were left to devote more inconvenient seasons to the work of their small farms. In France this system was swept away by that Revolution to which it had so largely contributed. The Code Napoléon now regulates the law, which, except that on death it directs the compulsory division of land among the whole of the children, practically resembles the law of England. In Germany the feudal system disappeared under the celebrated legislation of Stein and Hardenberg. To purchase their relief from the duty of forced labour and other exactions of the lords the peasantry surrendered a portion of their lands to the lords, and were declared to hold the remainder free from any service. Land banks were at the same time established, which made advances to those who desired to buy up rights of common affecting their lands, or to commute rents for a payment in money.

In northern Europe feudalism took no root, and land has generally been held by small freeholders who were the cultivators. The system passed from Scandinavia to Orkney and Shetland, where the same tenure exists to a considerable extent under the name of udal right.

The principles which are involved in the ownership of land receive illustration in modern systems where new or unappropriated lands have to be settled. Generally speaking, first occupation is recognised in such cases as a sufficient title to exclusive and permanent ownership. There is, however, an unwritten law almost universally in force that occupation must be actual, and not merely an assertion of right over more area than the settler can actually work. This understanding crystallises into the rule that the occupation must be only of a limited space or 'claim,' and that actual labour of a specified amount must be expended on it within a definite period. Such rules are instituted wherever bodies of men establish themselves, whether as miners, shepherds, or farmers. When the community has existed for a short time, and is so far permanent as to have organised a government, these or similar rules are enacted as laws, and the authority of the whole community is asserted over such portions of territory as lie within its powers to defend, and which are not yet appropriated to individuals. The state generally sells these in plots to private individuals for a certain fixed price. This system prevails both in British colonies and in the United States. In the latter the remaining public lands are vested in the separate states, several of which have established a 'Homestead Law,' under which each naturalised citizen is entitled to claim a free grant of a certain portion of unoccupied land on condition of actually cultivating it. (For the present division of land in Britain, see AGRICULTURE, Vol. I. p. 102; see also UNITED STATES, &c.)

From the foregoing sketch it may be seen that the fundamental idea of ownership in land, in the leading systems of village communities and of feudalism, is that it is ultimately vested in the state or nation. But it is equally apparent that individual ownership, subject to such services or other equivalent as the state may demand, is universally recognised as the most useful form in which land can be employed. It applies the stimulus of individual profit and enjoyment to the culture and improvement of the soil. Under this influence an enormous amount of capital has in all countries, but in the most marked degree in Great Britain, been invested in the reclamation of the land from its original state of nature, whether as forest, prairie, or swamp. The fee-simple value of the land as it at present exists, in the majority of cases, represents not the original value, but little more, very often considerably less, than the mere expenditure of capital within the last century on erection of farm-houses and farm-buildings, cottages, and fences, on making roads, on draining, levelling, embanking, warping, or such other improvements as the situation demands. These outlays have been made on the understanding that the state would deal with them on the same principles as with investments in factories, railways, dwelling houses, or other species of recognised individual property—i.e. that it would apply to them the general rules of ownership and succession established in the community at large. Such rules permit all property whatever to be taxed and even to be appropriated by the state when the public good requires; but they require that no one class of owners shall be treated differently from others, and that if anything is taken for the public benefit the public shall pay its fair market price to the owner.

A number of schemes have been proposed for what is vaguely called 'nationalisation of the land.' These all start from the principle which has been seen to form in most countries the basis of land tenure, that the land is the property of the nation; and their object is to assert this principle in the direction of recovering possession for the nation from individuals. The first of these proposals in the present day was made by Mr Herbert Spencer, who, in his Social Statics, suggested that land should be held by the state and let for short terms to the highest offerer. Subsequently Mr George (q.v.) proposed that, without divesting the present holders, land should be taxed in their hands to the amount of the full rental value, excluding only so much value as had arisen from improvements effected by the present holders or their ancestors. Dr Alfred Russell Wallace has proposed that the state should acquire the land of the country on payment of compensation to present owners, such compensation in his first suggestion being limited to their life-interest, but in later editions being extended to the value in fee-simple. He also urges adoption of a modified form of the Homestead Law of the United States, by which every citizen should be entitled to claim a sufficient extent of ground for a house and garden out of land in any situation not already devoted to that purpose. For this he would pay rent to the state. The agricultural land of the country in Dr Wallace's scheme is to be let by the state to tenants in perpetuity, subject to the obligation of 'occupying ownership'—that is to say, of being farmed by themselves without intervention of tenants. Other ideas, less distinctly formulated by their authors, contemplate the general division of the land into small portions sufficient only for the maintenance of a single family, which is recommended as 'restoring the people to the land;' while others suggested the ultimate cultivation by the community, under undefined arrangements of a socialist character. Thus it cannot be said that, as yet, any approach to agreement on a distinct system has been arrived at by the advocates of the idea of nationalisation of the land. The fundamental question whether any or what compensation is to be made to existing holders has yet been scarcely debated; the shock to the security of property if one species be confiscated has not been estimated; the difficulty of discriminating between original value and value added by outlay of capital has not been approached; and finally the question whether the nation would gain on the one hand by the transfer from one set of holders to another, or on the other by the substitution of state for individual cultivation, has not in any quarter been entered on.

As a middle scheme between existing private ownership and nationalisation, Mr Mill brought forward the doctrine of the right of the state to what he called the 'unearned increment' of land. His idea was that when land rose considerably in value from the mere fact of its proximity to a town, from a general rise of prices, or from other circumstance not dependent on the skill or capital of the owner, the public should be entitled to appropriate the rise to itself in the shape of a rent or tax. The idea of an 'unearned increment' in the value of agricultural land is, however, scarcely tenable, as it is the fact that any such increment is due (as has been shown above) mainly to the investment of capital by successive owners. The application of the doctrine would, therefore, occur generally in the case of land adjoining towns. But the growth of towns is largely due to private enterprise stimulated by the hope of profit. The confiscation or prohibition of such profit, which would be involved in a law permitting a municipality to take possession of land or buildings at its original value, would annul the operation of private enterprise. This is an entirely novel factor in modern progress, and one of which the full effects can hardly be forecast.

Under the name of 'Betterment,' the increase of value due to municipal improvements in restricted areas (e.g. a new street, bridge, or the like) has in America been subjected to a graduated tax, and this proposal has also been lately brought forward in Great Britain.

The mischiefs arising from the aggregation of large extents of land in the hands of one owner have also been the subject or motive of legislative proposals. The statute book contains one notable effort to restrain it, in the Thellusson Act (q.v.). Such aggregation is, however, fostered by entails and by the rule of primogeniture, while the subdivision of land is the result of laws of succession which prescribe that land shall be divided equally among children. That this should be done in cases of intestacy, while the parent is still allowed the option of bequeathing the whole to one son, would be the effect of merely abolishing the rule of primogeniture. But the Code Napoléon makes equal division among children a compulsory rule. The rule itself is, however, much older in many countries, and in the United Kingdom it has existed from time immemorial in the Channel Islands. One evil which flows from it is the excessive morcelement, as it is termed in France, of estates in land. But this result is partly attributable to the system of subdividing every separate portion of the paternal estate, which obviously is not a necessary condition. In practice a restraint on inconvenient minuteness of subdivision is found in the habits of the population. Where these tend towards emigration (which is largely the case in the Channel Islands, but not in France) the inheritor of a very small fraction of land readily sells it to a neighbour, and uses the price to set himself up in trade, or for the purpose of emigration. A graver evil is that the same family consequences follow from compulsory division as were shown by Bacon to attend entails on the eldest son. Children are apt to attend with impatience the father's death, which puts them in assured possession of their patrimony, and filial duty is weakened by the knowledge that disobedience involves no penalty. A middle course has been suggested—that children should have absolute right to only a portion of the paternal estate (as is the case in regard to personal property in Scotland under the law of Legitim, q.v.), but that the parents should have power of bequest over the remainder. To arrest aggregation it has also been proposed that no owner of property, whether in land or personality, should be entitled to bequeath more than a fixed amount to any single individual, though with full power to bequeath the whole of the estate to such persons as he chooses, subject to the above restriction.

Land has also been employed in all countries for the subsidiary purpose of forming a security for debt, as by mortgage in England or heritable security in Scotland. This also tends to aggregation, as it relieves the owner from the necessity of selling a part when in need of ready cash. Estates so burdened are, however, little better than leaseholds. The owner is necessarily short of capital to improve them, while led to keep up the appearance of greater wealth than he actually possesses. The lender of the money is also a strict creditor, seldom inclined to grant indulgence in time, and never to concede abatement in amount even in bad seasons. The evil is very ancient and very widely spread. It was the occasion of many insurrections in Rome, and at this day is even more prevalent on the Continent than in Britain. Vast tracts of land in eastern Europe are passing from the hands of the peasantry into those of money-lenders, and in India the same class of speculators, availing themselves of the strictness of British law for the recovery of debt, are becoming a scourge of the country. The Jewish law met the mischief by the laws against usury, and by the law of restitution at the jubilee. In 1880 the suggestion was offered (Boyd Kinnear, Principles of Property in Land) to attack the evil at its root by declaring that land shall not be a subject of preferential debt, while liable like all property to sale for payment of general debt. If such a rule were established no one would lend on land, and the owner who desired to raise money would be compelled to sell a portion. What he retained would be free from debt, what a purchaser acquired would be equally free, and every possessor would be a real, instead of fictitious owner of a smaller but more beneficial estate.

The cultivation of land may be either by the owner or by a tenant. The former is the natural, and almost always the most advantageous method, in the interests of the community, for it tends to induce the largest outlay on improvements which bring enhanced returns. The first departure from this idea takes the form (unknown in Britain, but common on the Continent, and not infrequent in the United States) of cultivation on shares, or métairie. Under this arrangement the landlord furnishes land and generally stock, the tenant gives the labour, and the produce is shared in certain proportions, frequently in moieties. It involves a close superintendence by the land-owner or his steward to ensure that the stock is not made away with, and that his fair share is handed to him either in kind or in cash. The next stage of the arrangement forms the system, once universal in Scotland, of 'grain rents,' where the tenant binds himself to pay annually the value of a fixed quantity of different species of grain according to the market prices then prevailing, these being annually ascertained in Scotland by the 'striking of the Fiars' (q.v.). The last stage is the agreement to pay a fixed money rent irrespective of crops or prices. It is preferred by tenants in times of prosperity, as it leaves them the whole benefit of increased crops or rise in prices. The term during which the arrangement continues is in foreign countries very generally seven or fourteen years, in Scotland usually nineteen; while in England it has been most frequently only from year to year, and in Ireland it was often for lives. The last is the worst, because the most uncertain of all. The lease from year to year has gained a sort of expectation of permanency; the lease for definite terms enables the tenant to make positive arrangements, but it has the disadvantage of disposing him to cultivate less liberally as the termination approaches. To meet this the Agricultural Holdings Act entitles him to payment by the landlord for the unexhausted value of certain specified beneficial outlays made during his tenancy.

In Ireland the majority of the tenants prior to 1832 held under lease; but after that date they were gradually converted into yearly tenants. The prevailing rule, however, was that they continued in possession, at such rents as they could pay, from generation to generation. In 1860, and subsequently in 1870, 1881, and 1887, the legislature introduced successive restraints on the landlord's right of eviction. The position of tenants subsequent to the last-named statute is briefly as follows. They all hold in permanence, subject to eviction only in the event of non-payment of rent. Even if evicted on that ground they may recover possession by paying the arrears within six months after notice. They are entitled also, although evicted, to receive payment for any permanent improvements they have made. They may sell or bequeath their right of tenancy at pleasure. The rent is fixed (if the tenant desires) by the Land Commissioners, after examination by valuers; but it is subject to revision every fifteen years—so, however, that it is not to be raised in respect of any improvements made in the interval by the tenant. During three years of low prices (1886–89) the tenant was entitled to obtain a new valuation and reduction, and all judicial rents were further reduced according to an official scale, based on current prices for each year. In 1882 an Arrears Act wiped out all arrears then due by tenants, on payment of only one year's rent. In 1870 the 'Bright clauses' granted advances by the state to the extent of two-thirds of the price to enable tenants to purchase the fee-simple of their holdings from landlords who were disposed to sell. The 'Ashbourne Act' in 1885 extended this boon to a sum sufficient to cover the whole price, and the tenant paying interest on this at 4 per cent. per annum for forty-nine years clears himself of the full amount. The amount to be thus advanced by the state was at first limited to £5,000,000. In 1888 £5,000,000 more were granted; and these sums being absorbed, a bill was in the session of 1890 introduced into parliament extending the sum to about £30,000,000, under some slight modifications. The Land Law Act of 1896 extends and simplifies the fixing of fair rents, simplifies purchase, and extends the powers of the Congested District Board and facilitates advances from the Land Commission.

For the land-tax imposed in Britain on land and houses for purposes of revenue in lieu of the ancient subsidies, scutages, tallages, tenths, and such occasional taxes, see VALUATIONS. The land-taxation and land-revenue of India are discussed at p. 115 of this vol.; for the proportion of the land-tax to other sources of revenue in various countries, see CHINA, TURKEY, &c. See also the articles in this work on:

The following works may be consulted: Von Maurer, Geschichte der Marken-Verfassung in Deutschland (1856), and other works; Nasse, Ueber die mittelalterliche Feldgemeinschaft in England (1869; Eng. trans. 1871); Laveleye, Primitive Property (Eng. trans. 1878); Maine, Village Communities (1871); Seebohm, The English Village Community (1883); the 'Cobden Club Essays,' Systems of Land Tenure (1870; new ed. 1881); Brodrick, English Land and Land Laws (1880); Wallace, Land Nationalisation (1882); Prothero, The Pioneers and Progress of English Farming (1888); the present writer's Principles of Property in Land (1880); R. M. Garnier, The English Landed Interest (1892); Shaw Lefevre, Agrarian Tenures (1893); Sir F. Pollock, The Land Laws (1883; new ed. 1896).