529

ART. IX. (1.) Impediments to the Prosperity of Ireland.

By W. N. HANCOCK, LL.D., M.R.I.A.; Archbishop Whately's Professor of Political Economy in the University of Dublin, and Professor of Jurisprudence and Political Economy in Queen's College, Belfast.

(2.) Report from the Select Committee of the House of Lords on the Burdens affecting Real Property. Ordered by the House of Commons to be printed, June 19, 1846.

(3.) A Bill for the Improvement of Agricultural Tenant Right in England and Wales. Brought in by Mr. PUSEY, September,

1847.

(4.) 9 and 10 Vict., c. 10, intituled, An Act to authorize the advance of Public Money to a limited amount, to promote the Improvement of Land in Great Britain and Ireland by Works of Drainage. (5.) Speech of Mr. William Bennett, Tenant to the Duke of Bedford, at Willis's Rooms, on March 7th, 1849.

IN [the earlier stages of society, when men were hunters and fishers, the idea of property was vague and indefinite. If it existed distinctly at all, it existed in reference to moveables, or to what the lawyers call chattels.' Land, fixed and unmoveable as it is, and was,-for to use the expressive language of Napoleon, 'le sol ne tremble pas,'-was, in the earlier ages of society, held in common. In the accounts given of the American tribes, as is truly stated by Sir John Dalrymple, in his Essay on Feudal Property, we read, that one or two of the tribe will wander five or six hundred miles from his usual place of abode, plucking the fruit, destroying the game, and catching the fish throughout the fields and rivers adjoining to all the tribes which he passes, without any idea of such a property in the members of them as makes him guilty of infringing the rights of others when he does so.

The next state of society begins with pasturage. In this condition of things men have no notion of property in unmoveables, nor of right of possession longer than the act of possession lasts.

A third state of society is produced when men become so numerous, and their intercourse with each other so extended, as to make them strike out new arts of life, and particularly the art of agriculture. Agriculture, leading men to bestow thought and labour upon land, increases their connexion with a single portion of it, and then produces the notion of property. The right of excluding all others from a particular spot of ground is one step in the idea of property; but the right of transferring it to another is a second

London: A. Millar. 1758.

and a wider right. At the death of the first possessor of land, it seems just and natural that his children, or heirs, should continue that right of exclusion which their predecessor had exercised. But the relationship or connexion of children with the deceased is not their only title. Children and relatives in new or early states of society bestow thought, labour, and the capital of the sweat of their brow upon any spot of earth on which they settle; and it would appear against every canon of natural justice, if they should not continue the father's right of exclusion, and the enjoyment of what their ancestor enjoyed before them. But as this enjoyment becomes wider and more extensive-as men and families increase-incapacities, natural and civil, are created by law and polity, not merely as to the general disposition of property, but as to the power of alienation. Thus the Romans, in the very earliest ages of the Roman law, could not alienate their heritage but in calatis comitiis, and with the consent of the people:* thus the jus retractus, or right of redemption, took place among the Jews.

It is no portion of our object to enter into a long disquisition on the feudal system. But we may remark, that in all nations which have suffered the dominion of the feudal law, the prohibitions to alienate are very numerous, accompanied with penalties and punishments equally severe and barbarous. The first step towards the alienation of landed property in Great Britain, was the power given to a man of alienating what he had himself acquired. Over this he was conceived to have a more extensive right than over what had been transmitted to him from his ancestors. This power is given by implication in the books of the press, and in the Saxon law, but by express words in the laws of Henry I. There is every probability, as stated by Sir John Dalrymple, who had paid much attention to the subject, and was one of the Barons of the Exchequer in Scotland, that the first free alienation of land in England arose among the trading people; for the holding not being strict in boroughs, it was not of great importance by whom the services were done. It should also be remembered, that the extent of the notions of mankind concerning their powers over property increases with society; and as people living in towns, from their greater numbers, and greater intercourse with each other, are in a more improved state than people living in the country, it is only natural to suppose that the power of alienating land should sooner arise among them than among the rest of mankind. When Bracton wrote his book, alienation seems to have been fully established. In the reign of

* Hein. Antiq. Roman.

Henry III., the propensity to alienation had grown so strong, even in the military holdings, that it became necessary to restrain it.__This restraint was contained in a clause of Magna Charta.

To remedy and reconcile the jarring interests of lords and vassals, the former of whom complained they were stript of their ancient rights, and the latter of whom complained that checks were interposed to alienation, the statute of 18 Edward was passed, generally called, Quia emptores terrarum. But, notwithstanding all efforts of legislation, the bent of the people was to make feudal land as much the subject of commerce as if it had been allodial. As the feudal law relaxed its severity, too, and the commerce of land grew more into use, the attachment of land by statute merchant and statute staple was allowed to all subjects in general, and, in later times, when land came to be absolutely in commerce, the 13th Elizabeth, c. 7, and the subsequent acts concerning bankruptcy, established a complete attachment of such lands as belonged to the persons specified in those acts. But though feudalism and feudal principles were thus, by the very bent and genius of the great mass of the country in some respects declining, yet the history of entails, on the other hand, proves that the feudal law was revived by the bent of particular families. Certain great families considered that the allowing land to come so much into commerce tended to weaken them, and to enfeoff those whom they regarded as little better than their slaves. In order to prevent such consequences, the artifice of entails, which took particular estates out of commerce, and, with regard to these estates, revived the spirit of the feudal law, was revoked. This was effected by the Statute of Westminster, cap. 1, generally styled the Statute de donis conditionalibus. This statute gave a sanction to private men to entail their estates, and declared that fines levied upon estates so entailed should be void. Most of the great families took advantage of the permission, and by doing so prevented their posterity from alienating, from forfeiting, or from charging with rents. As power follows property as surely as water finds its level, the property of these families continually increasing, their power grew to such a height as enabled them not merely to enslave the people, but to overshadow the crown.

It is true that entails were suffered to be greatly discouraged in courts of justice, that the judges restrained all devices for new species of entails, and that Henry VII., by the act which passes under his name as the 4 Hen. VII., c. 24, and more especially the judges, by their interpretation of this statute, did as much as

* Mag. Char., cap. 32.

in them lay to defeat entails. But notwithstanding that the commercial and the monied men found their views equally hurt by entails notwithstanding that the judges had been long discouraging them — notwithstanding the dissipation of the church lands by Henry VIII., and the alienation of great part of the crown lands by Queen Elizabeth, it was a considerable time before the commons were enabled to produce, by the transition of property from the lords to themselves, that alteration in the constitution necessary, not merely to its balance and harmonious working, but to its very vitality.

At all periods from the conquest, however, there were, in various parts of the kingdom, exceptions to the Norman feudal law. The people of Kent, through the favour of the Conqueror, being left in the enjoyment of their ancient laws, the succession in capita of the sons, called by the Saxon name of Gavelkind, continued, and does even to this day, in great part of the county, continue the practice. The Welsh, not being subject to the power, were still less subject to the laws of the Normans. The Orkney men being left from neglect, as Sir John Dalrymple truly states, more than from either favour or independency, in the possession of their ancient laws, the sons, till within these two hundred years, succeeded in capita in the cedal rights of Orkney. Nor was this altered by public law, but by private limitations of different successions.

The progress of feudality led to the prolixity and intricacy of conveyances. Set forms of ceremonies and of writings prevailed more in the feudal than in any other law. In the conveyances under other laws, all connexion between the grantor and grantee, unless what arises from particular covenants and qualifications, are at an end on completing the grant. But a feudal grant was, from the relations between superior and vassal, not only subject to the like covenants and qualifications, but to a great many others. Nor were these the only evils of feudalism. Feudal rights became in another way, as Hallam truly states, instrumental to oppression. The lands of those who died without heirs fell back to the crown by escheat. Hence, the escheator taking hasty inquests, or sometimes falsely pretending them, defeated the right of the heir to his succession. Informations for intrusion, criminal indictments, outlawries, or civil process, in short, the whole course of justice, furnished pretences for exacting money of the people,

It may be urged that these feudal and military tenures were abolished by the 12 Car. c. 24, which commuted them for a grant

* Constitutional History of England, vol. i., p. 19.

of excise and customs. But tenure in burgage, in socage, in borough English, and in copyhold, though many are enfranchised, still continue, and our table of descents till the act of 1833, for amending the law of inheritance, passed, was a remnant of the feudal system. Though, by the 3 and 4 Will. IV. c. 106, sec. 1, the word purchaser is declared to mean the person who last acquired the land otherwise than by descent, escheat, partition, or enclosure, by effect of which the land becomes descendible in the same manner as if acquired by descent, and 'descent' is declared to mean the title to inherit land by reason of consanguinity, yet an act of this kind cannot destroy the effect of the practice and tradition of ages, more especially when those traditions, are aided by the pride of family and of race, by the desire of founding or of perpetuating a name, or by the meaner motive of an ignoble avarice.

It is a curious, yet a true fact, that the forms of the feudal system, and the inconveniences consequent upon a strict compliance with these forms, are to be found at this day in Scotland as perfect as they existed five centuries ago in England, and without the means of obviating such inconveniences as was afforded in England, by employing a conveyance by way of uses.

We fully admit that since the Revolution of 1688, and more especially since the accession of George the Third, the commercial, manufacturing, and industrial interests have made vast strides, and have acquired a mighty, a definite, and a most appreciable and influential standing in the social, economic, and political world. But with all their energies, abilities, intelligence, and ductility, the monied and manufacturing, the commercial and industrial interests have not been enabled to free land from the traditions and habits of feudalism, or to render it an article of commerce, in the way of a plain bargain, sale and transfer.

Not merely our tenures of landed property, but all pertaining to them, smack strongly of feudalism. Sixty-one or sixty-two years ago, the denominations of fiefs in 'France were much more numerous than they ever were at any period in England.' There were fiefs d'honneur, fiefs liges, fiefs de retraite, fiefs d'amitié, fiefs à cré, fiefs terriens, fiefs de revenus, fiefs de deputé, and fiefs simple. But in one night of the famous Constituent Assembly, privileges of caste and of family, letters de cachets, corvées, and tithes, feudal tenures and feudal rights, game-laws, and seigneurial and lordly rights, were, uno flatu, abolished and destroyed. Our progress has been certainly slower and less sanguinary, and certainly safer than the progress of France.

But it is, nevertheless, most humiliating to our intelligence as