Landholding in England/Chapter 21

by Mary A. M. Marks

CHAPTER XXI.—THE WORKING OF ENTAIL

"The ideal, then, of the English land system in a rural district is that which has been attained in the district of North Dorset, just referred to, and in many other parts of the country. It is that of a large estate where the whole of one, and oftener of several, adjoining parishes are included in it; where there is no other landowner within the ring fence; where the village itself belongs to the same owner as the agricultural land ; where all the people of the district—farmers, tradesmen, labourers—are dependent, directly or indirectly, on the one landowner, the farmers holding their land from him, generally on a yearly tenancy, the labourers hiring their cottages weekly or yearly either from the landowner or from the farmer ; and where the village tradespeople are also dependent largely for their custom on the squire of the district, and hold their houses from him. It is believed that this ideal has practically been attained in more than half the parishes of England and Wales, in the sense that all land and houses within them substantially belong in each to a single owner."—"Agrarian Tenures," Right Hon. G. Shaw-Lefevre, M.P. (1893).

WE have seen how great estates grew. The law of entail, coupled with the custom of primogeniture, has kept them together. The word "entail" is derived from the French "tailler," to cut. Entail means the cutting off of some heirs-at-law in favour of others. Some form of this existed in Greece and Rome; the nearest approach to modern entail was the practice under the later emperors of settling land on a series of heirs by means of a fideicommissa, or trust, and this law, in its latest form, was even more stringent than our own, for it restricted the right of mortgage. The old Common Law of England forbade what were called "perpetuities"—the tying up of property for a time longer than the lives of certain persons still living, and twenty-one years longer. The decision in the famous case of Taltarum turned on this; that decision, in accordance with the Common Law, allowed the heir, on attaining his majority, to disentail the estate if he desired. Since then, it has been impossible to tie up property of any kind for longer than twenty-one years beyond the lives of persons in existence. This is to give time for the latest-born heir to attain his majority.^[1]

Long before Taltarum, the Statute of Westminster II.—called the Statute De Donis Conditionalibus—of Edward I. had introduced the principle of entails, but there were many means of what was called "barring an entail," and entail as we know it dates from the seventeenth century.

In the early part of that century there was great freedom of sale and bequest, and it again became the boast of England that she had so many more substantial yeomen than were to be found in France. Cromwell's "New Model" armies were recruited chiefly from this class. But the Civil Wars brought a change. Each side alike treated its adversaries as "traitors," and confiscated their estates, and the lawyers became as anxious to save estates by tying them up to persons yet unborn as they had formerly been the reverse.

The essential feature of the system they devised was the power of settling land on an unborn eldest son, who, as soon as he came of age, could make a fresh settlement with his father in favour of his own unborn eldest son. In failure of a son the land goes to the next male legal representative of the family, in strict line of primogeniture, which thus works with entail to keep an estate intact. Only on the entire failure of heirs male did an estate go to a female. Under entail, the rights of the heir, born or unborn, are everything. His estate can be neither divided nor alienated—it is not even liable for the personal debts of the deceased owner. On attaining the age of twenty-one he can, if he and his father, or the present owner, agree, make a settlement, "cutting off the entail," and restoring to the owner the power of sale or bequest. But it is very seldom that either party desires this while there is every inducement for the heir to wish to tie up the land to his own heir. It is very easy to see how this has favoured the accumulation of land in a few hands.

Mr Shaw-Lefevre,^[2] in his admirable little book, "English and Irish Land Questions," gives a very clear description of the process of "settling" landed property. The main object of entails of land is, he observes, to "preserve landed property intact and undivided, and to make it descend to the furthest point possible in the direct line of succession."^[3] English Law has always been very jealous of creating "perpetuities"—but as usual only in name. The extreme legal limit of a "settlement" is for lives in being, and twenty-one years after but there is every inducement for a landowner to renew the entail, and so create a virtual perpetuity.

"The position of the father and son with reference to the property is this. The father has only a life-interest in it; the son is tenant-in-tail. The son cannot sell the estate without the consent of the father, though he can dispose of his own prospective and contingent interest. The father can still less deal with the property without the consent of the son. If the father should die before the son, without having made any fresh arrangement, the property will vest absolutely in the son, and, by executing a simple disentailing deed, he can convert his estate-tail into a fee … and deal with the property as he likes. On the other hand, if the son should die before the father, the property will, upon the death of the father, descend to the grandson, if there be any, or to the second son if there be no issue of the eldest son. The eldest son, therefore, is certain to obtain possession of the property if he should survive his father; he is not, however, entitled at law to any provision during his father's lifetime. It ordinarily happens, therefore, that when the eldest son comes of age, the father … makes a bargain with him. He promises to make the son an adequate provision during his, the father's lifetime; he also enables his son to make certain provision for marriage, by charging the estate with an annuity for his widow, or with portions for the younger children; in return for this the son agrees to join in re-settling the estate, taking in lieu of his remainder in-tail a reversionary life-interest after that of his father; and the ultimate remainder intail is then given to the unborn grandson—in other words, the entail is carried forward to another generation … and no further arrangement can be made till a grandson is born and in his turn comes of age" ("English and Irish Land Questions," pp. 83-84).

"By such a process … the bulk of the family estates in this country are kept in settlement from one generation to another, the new fetter being added at that epoch at which the power of alienation arises" (Williams, "Principles of Real Property Law," p. 273).

"It is believed," adds Shaw-Lefevre, "that in most cases the heir who has consented to make this arrangement with his father on coming of age lives to regret it; instead of coming into the property … with full dominion over it, and with power of disposing of it … he finds that … his power … is limited and fettered in all directions, and that he is without any power of selling, leasing, devising, or charging it, except in such manner as was provided under the settlement." (p. 85). As an instance of the effect of such a settlement, Mr Shaw-Lefevre gives the following as a case which "recently" came before the Bankruptcy Court.^[4] "A property of 16,000 acres, with a rental of as many pounds, was settled upon Lord A for life, with remainder to his son Lord B as tenant in-tail. Upon the coming of age of Lord B, the estate was re-settled. In consideration of an annuity of: £1500 per annum, the son agreed to join in the settlement, and to assent to charges which brought up the total encumbrance to £11,500 per annum, leaving a margin of £4500, out of which the son was to receive £1500 per annum, during the father's lifetime. The son gave up his reversion in-tail, and took a life-interest in succession to his father, with remainder in-tail to his own issue. Within a year from the settlement, the son, having run into debt for a few thousands, was made bankrupt; the whole of his reversionary life-interest was then assigned to the creditors; and the result is, that during the lives of the father and son, and perhaps for many years after, this great estate will be in the ostensible possession of men absolutely without means, and without any motive, or perhaps power, to sell" (pp. 87, 88).

We shall probably not feel much pity for the straits to which the noble family in question must have been reduced—a situation as ridiculous as painful. We may be pretty sure that, to put it mildly, their indebtedness did not remain stationary while their estate was thus "sequestrated." Supposing them actuated by the best intentions, living on the produce of the home farm, in the most economical manner possible, they could not have gone on without ready money for the rest of their natural lives—their financial state must have been constantly growing worse and worse, the estate more and more encumbered, and we may be certain that (unless he succeeded in marrying some great heiress) Lord B would leave his heir even a heavier load of debt than the estate groaned under at the time of the bankruptcy. It must be remembered that before the bankruptcy the actual income enjoyed by Lord A was only a little over one quarter of the nominal £16,000 a year, so heavily was the estate already encumbered.

It is the effect of such a situation upon the tenants which makes the story worth telling. How would they fare when the rent, instead of being paid to a man who had an owner's interest in the land, went to creditors, whose only interest was to get their money back as quickly as possible? As long as Lord A and his son lived—probably for a whole generation—the land lay at the mercy of men who, already long kept out of their money, would grudge every penny spent on improvements. It was to the interest of the creditors to repay themselves before the son of Lord B should come of age and make a new settlement. We may be sure that the creditors would not spend a farthing more than they could help on improving the estate for Lord B's son. The repair and erection of farmhouses and cottages, the drainage of the land, and everything else which under ordinary circumstances is done by a landlord, would be neglected. Woods would be cut down for timber, with no regard to the future. At the same time, rents would be kept as high as possible. Everyone who knows anything of the condition of a "sequestered" estate knows that a landlord cannot be beggared without his estate being starved. The whole position is a false one. It is bad for all parties—for the A family, whose estate has become a millstone tied to their necks, for the creditors, who must wait through a long term of years to recover their debts, and for the tenants, who see their holdings gradually deteriorating for want of money to be laid out, and have to choose between rubbing on as they can and having their rent raised to make up for any outlay on improvements. The deterioration of land, when a landlord either could not or would not spend money on necessary improvements, was so great and so obvious, that Parliament attempted more than once to give the Land Commissioners power to charge "settled property" with money spent on improvements, such as drainage and the building of farmhouses and cottages; but in practice this involved such expensive proceedings before the Courts of Law and the Enclosure Commission that only on large estates, managed by agents and lawyers, could these powers be made available. How little was done under them is seen from the late Lord Salisbury's "Report of a Committee of the House of Lords," in 1873. "Speaking not only of drainage, but of all kinds of improvements," only one-fifth had been done of what ought to have been done. In drainage alone, of 20,000,000 acres requiring it, only 3,000,000 had yet been drained. "The improvement of land," says the Report, "in its effect upon the price of food and upon the dwellings of the poor, is a matter of public interest; but as an investment, it is not sufficiently lucrative to offer much attraction to capital, and therefore even slight difficulties have a powerful influence in arresting it."^[5]

In the last words we have a strong indictment against a land system which operates to tie up land to owners as often unable as unwilling to "improve." Given a landowner whose affairs are embarrassed, and our land system is a curse to landlord and tenant alike—prolonging the period of the landlord's bankruptcy at the expense of the land itself. It would have been better for Lord A, and infinitely better for his tenants, if he could have paid his debts at once, and got rid of his " encumbrances," by parting with some portion of his 16,000 acres. As it was, he obtained a humiliating relief by crippling himself, and his son after him, for life, with a "remainder" of "encumbrance," and impoverishment to any possible grandson. By this artificial protection of the interest of a given family in the land, one of the most powerful incentives to prudence is removed—a spendthrift knows that at the worst his social position will remain untouched ; he will always be the nominal lord of a landed estate. The position of such a spendthrift, or of his luckless heir, always has a fascination for the public—as is shown by the many works of fiction whose plots turn on such a situation. But there is another aspect, less picturesque, but immeasurably more important than the troubles of a man who is at once a great landowner and almost a beggar, and that is the position of his tenants. If "even slight difficulties have a powerful influence in arresting the improvement of the land," what must be the effect of a system for securing a man in the possession of property when he cannot improve? And the irony of this is, that whenever small holdings are mentioned, we are told that the peasant is too poor to farm to advantage—he will not get out of his land what could be got out of it by a man able to spend money as well as labour on it; and the very persons who think this a good reason for extinguishing small holdings are the most anxious to prevent the bankrupt owner of half a shire from selling one of the acres, which he is too poor to farm to advantage.

But the evils of our land system are not confined to entail. The transfer of land has long been crying out for reform. In the great debates on the Repeal of the Corn Laws, in 1846, Lord Ebrington described the difficulties and uncertainties which surround the transfer of land even when it is not protected by entail. In those days landowners were always talking about the burdens on land, and demanding peculiar privileges on that account. Lord Ebrington said: "There was another burden upon land, which had not been referred to … he alluded to the laws of real property, and the expense of transferring or mortgaging land. The consequence of this system was, that small properties could with great difficulty be sold, and it lessened the value in the market of great ones. … In England, where all our prejudices and feelings were enlisted in favour of the possession of land, land sold at fewer years' purchase than in any other country" (27 to 30, in England, as against 30 to 35 in France, Belgium, Switzerland, and parts of Germany and Italy). "There was a case where the vendor of some land in Somersetshire paid £4000 purchase-money, and £1000 in law expenses." He told an anecdote: "An eminent lawyer sent a title to a conveyancer for his opinion. The conveyancer pointed out so many defects in the title that the lawyer said: 'Then you advise me to give up the purchase.' 'I beg your pardon,' replied the conveyancer, 'I thought you were for other parties: buy it, by all means: the title is as good a one as you can get.' The state of the law as it at present existed, precluded the possibility of a poor man ever hoping to become a landed proprietor, because the enormous expense of transfer would deter him from investing his savings in the purchase of land. … The state of the law led also to the absorption of the smaller proprietors … it was diminishing the number of small properties."^[6]

This was the state of the law in 1846. By how much is it better now? Will an assembly of great landowners ever reform it? Up to 1832 the vast majority of members of the House of Commons were landowners. The few who were not, were, like Burke, the nominees of landowners. The best argument for the retention of rotten and pocket boroughs used to be that they gave a poor but able man a chance of entering Parliament by the favour of the owner of such a borough.

Even the Reform Bill did not much alter this—landowners still formed the majority, and the present House contains more members who are not considerable owners of land than any which ever sat in England. One of the changes made by the Reform Bill was to give an occupier a vote if he was rented or rated at a certain value. This gave political power to the land, but not to the man; for the landlord could deprive his tenant of his vote by turning him out. And so, even after 1832, landlords drove their tenants to the poll like a flock of sheep. Our land system, in the country districts where it can work unrestrained, is a strange anomaly in "a free country." It is totally inconsistent with the spirit of those political institutions on which we pride ourselves as Englishmen. If an English squire chose to pull down a whole village, and drive out the people to be a charge upon the town into which they must go, he would not violate the law. He can, if he chooses, turn pasture or tillage into a park, and can exclude the public from that park. He can, and frequently does, pull down a house and erect no other in its place. He can, and still more frequently does, refuse to allow a new house to be built. He still, in the twentieth century, regards it as something like petty treason if his tenants do not vote for the candidate he supports. He has even given very strong hints that, notwithstanding the ballot, it leaks out how a man votes. As a rule, the great landlord does not use his full legal rights. He rarely does more than turn out a tenant who is too "independent," and prevent the increase of cottages. But this is only because he happens not to wish to do more. It is not more than fifteen years ago since a wealthy squire drove out of a certain seaboard parish a number of families, counting one hundred persons in all. The heads of these families had offended him mortally by exercising their legal right of inquiring into the administration of a local charity, founded before his time. These people had to go somewhere. Where did they go ? As no landowner would allow the sudden irruption of a hundred persons into a village—where in all probability there would not be a single house to accommodate them—they must have scattered themselves, as in fact they did, in the nearest towns. On a small scale, this sort of thing is constantly happening, and fully accounts for the overcrowding of towns. The exodus is doubtless helped by the fact that in a town a man feels himself more free, and has more amusements; but as the children of villagers grow up, they have little choice—go they must. There is no room in country districts for a surplus population. It does not "pay" the landowner to build cottages for persons not in his service, not to mention that he looks on the estate as his own private preserve, and on strangers as more or less trespassers. Parish Councils have no doubt done something towards greater liberty, but it is a mockery to talk of liberty when every man in the village knows that he can be turned out of his house if he offends the squire, and that this will be in effect an edict of banishment. In the instance to which I have referred the landowner carried his resentment so far as to refuse to renew the lease of a house which had been rented for many years as a summer residence by a gentleman from London, unless that gentleman would give a written promise to take no part in parish affairs. The gentleman had been active in demanding the inquiry. He refused to give the undertaking. In this instance, self-interest failed to act as a restraint. The house stood unlet for years, and the squire must have lost considerably. The story got into the London papers, and the unflattering comments made on the squire had the effect that for years after it was difficult for summer visitors to find any sort of lodgings, except at the house of the steward of the estate—who of course could be trusted to say nothing against the squire.

Not very long ago, Lord de Ramsay gave notice to 800 holders of allotments, alleging as a reason that they were "discontented." Such a reason assumes that permission to cultivate land (paying a rent) is a favour. But everyone knew that the true reason was that the 800 had voted against Lord de Ramsay's brother at the election. Lord de Ramsay thus had the power of forbidding 800 persons to hold land. And yet we wonder that villages are depopulated, that the young people find them "dull," and that all the most enterprising go off to the towns! A feudal lord of a manor would have had a statute passed against him, setting forth the injury done to the King and kingdom in the person of these tenants. But in modern times, when "profit" means money, the interests of the community are overshadowed by the interests of the individual. This was carried so far, that for fifty years the landowners of England controlled the supply of corn. There can be no more striking instance of the fact that the individual is better able to defend himself than the community. It would have been impossible to force a single individual to pay an artificial price for his bread, but when the whole people suffered, they were tolerably submissive. So tender are we of the "right" of a landlord to do what he will with his "own," that we forget that the "duties" of landholding are greater than the "rights," by so much as land differs from all other possessions.

The power wielded by land is far too great to be concentrated in so few hands. In the rural districts it is omnipotent. Country magistrates are almost invariably landowners, when not parsons; and when they are parsons, it is generally because the parson is also a landowner—or, as he has been called, "a squarson." Until 1831, the Game Laws gave sporting rights exclusively to owners of land of a certain value. Below that a man might not shoot a hare or a rabbit on his own land. The bolder spirits of a village took to poaching, and so came to ruin. Half the convicts sent to Botany Bay in the old days were manufactured by the Game Laws.

A good many years ago, the Rev. A. Barham-Zwincke, writing of a Swiss valley, said that in England the whole valley would have belonged to one family, and that family and its servants and retainers would have been the sole inhabitants; whereas, under the Swiss system of peasant proprietorship, about 4000 persons live in the valley. At the time he wrote this, Mr Barham-Zwincke much preferred the English way, because the single great family would have so high a standard of cultivation and refinement; while the 4000 peasants lead a life of rude hardship. His remarks made a profound impression on me. I happened to know the valley extremely well—indeed, I had found the book at a mountain hotel in that very valley, and this was the first time I realised the effect of great estates in thinning down rural population. Mr Barham-Zwincke came in after years to a different opinion, as I could not help thinking, in consequence of what he saw in the valley.

Mr Shaw-Lefevre, in his work on "Agrarian Tenures," gives an English example. In a district of Westmoreland a large class of small yeomen survived to comparatively modern times. They owned between them 25,000 acres. They were all gradually bought out, under the direction of the will of a man who two generations before made a fortune in trade, and whose only daughter married a nobleman. There were in all 226 different purchases, nearly all from "statesmen," as these holders are called in the dales. Now, instead of 226 owners, there is but one. This is exactly what Mr Barham-Zwincke saw would happen under the same system in the Val d'Anniviers.

The same sort of thing going on all over England for the last two hundred years has resulted in 2250 persons owing half the total area of agricultural land in England and Wales.^[7] Every one of these 2250 persons holds more than 2000 acres—the average is 7300 each. As there are about 12,000 rural parishes in England and Wales, these 2250 persons hold between them on an average two and a half parishes each. This does not include land held in cities and towns, or waste and common land, or woods and plantations, or land devoted to public purposes, such as roads, railways, and canals, or any land occupied by towns. The 2250 persons hold half the land in tillage; 1750 others (with from 1000 to 2000 acres each) hold between them 2,500,000 acres more; 34,000 persons, with between 100 and 1000 acres each), hold, in all, 8,926,000 acres; 217,000 own from 1 acre to 10—in all 3,931,000. "It would be interesting to know," says Mr Lefevre, "how many of the 34,000, owning from 100 to 1000 acres, are of the yeoman farmer class, and make a living by their land: how many of the 217,000 with one to 100 are present proprietors." He thinks that a very small percentage of those with from 100 to 1000 acres live by cultivating their own land. In the larger class, with from one to ten acres, a vast number are persons owning villas.^[8]

In the division of Dorset referred to in the words quoted at the head of this chapter, there are ninety-two parishes, containing 166,200 acres. Of these, sixty-two parishes belong substantially to a single owner, or are divided between two adjoining owners. In twenty-three others more than three-fourths of the land belongs to two or three great owners. In two parishes only can the land be said to be owned by many persons. Four-fifths of all the land in this Parliamentary Division of North Dorset belongs to thirty persons. One great landowner owns substantially the whole of six parishes and half of six others. Four others hold the whole of two or three parishes and the greater part of two or three others. With the rare exception of a house here and there, villages, as well as land, belong to the great owners. In North Dorset, we are told, the landlords are resident, and there is no complaint. But who can pretend that villagers so placed can call their souls their own? Their livelihood and the very roof that shelters them depend on the goodwill of one man—who is usually the great landowner's agent. If there is no complaint, this is the result of the characters of the great man and his agent. There can be no real independence. The fewer owners the more entirely the people are at their mercy.

The whole body of our Land Laws conspires to promote and perpetuate a state of things in which, as in North Dorset, one man can own six parishes and half of six more. No responsible thinker proposes any violent change, any forcible confiscation or redivision of the land—he knows that, even if it could by any possibility be done, the same causes which have produced accumulation once would produce it again. What he does ask is that the laws shall cease to promote and perpetuate a tendency to accumulation strong enough to need no artificial help. He asks that the other law shall be given a chance—the law which tends to break up accumulations, sometimes by the advent of a spendthrift, sometimes merely by a large family of co-heirs—whom our present system forbids to be co-heirs. Let land be no longer hedged about with entail and with a costly and complicated system of conveyance. Let it take its chance, as money does. If we could conceive of money being hedged about as land is, in a little while we should have 2250 persons in possession of half the money in the country. We all see that this could never be allowed for a day. But people can subsist without money, and cannot exist except upon land—even the slums are land. To promote the accumulation of land is to hinder the growth of citizenship.

1. About the year 1800, a Mr Thellusson tried to create an immense fortune by a will directing all his property to accumulate during the lives of his children, and great-grandchildren, and then to go to certain of his descendants. The property would then have amounted to £19,000,000. Although the existing law seemed to be enough, the Thellusson Act was passed, forbidding the accumulation of income for longer than twenty-one years after the death of a testator.
2. Afterwards Lord Eversley.
3. "By the law of entail no man owns his own estate."—R. Hyde Greg.
4. Written in 1881.
5. The Report says that cottages, without land attached, pay about 2½% on their cost. "The replacements of bad cottages by good is an even less remunerative operation." This Report was based upon the Reports of the Enclosure Commissioners.
6. 24th March 1846.
7. The total agricultural area of England and Wales is 37,320,000 acres, of which 33,031,000 only are accounted for in the Return of Landowners of 1870.
8. These figures are for 1893.