case.

The statute De Donis, 13 Ed. I., did, it is true, interpose, for the first time, a restriction expressly for the benefit of the issue; but the history of the previous attempts to confine the right of succession to the lineal descendants of the first taker, lead to the conclusion that the primary object, even of the statute De Donis, was the protection of the lord's right of escheat, or reversion, as it came to be called after the statute. Whatever the reason of the statute, its importance and effect have been greatly exaggerated. We are led to suppose from the language of Blackstone that the great bulk of the landed property which was held by the barons and knights (the nobility and gentry of that day) was subjected to the fetters of entail, but a little reference to the law of that day will show that this could not have been the In the first place, the simplicity of the common law did not admit of a father settling land upon his son (or upon anyone), in such a way as to reserve to himself the enjoyment for life. Whatever he gave he had to give out and out, and though no doubt fathers did often do this with a part of their estate, as a provision on marriage, they were not likely to do it with the greater part; and it is abundantly clear that the larger portion of the property of the country continued to be alienable, from the frequency of gifts in mortmain, after the statute De Donis, and still more from the general practice of conveying land to uses; and, though it must be admitted that the use itself might have been entailed, this does not appear to have been very generally done, for the statute of uses speaks of the power of making wills as the most prevalent evil arising from uses, and that power would not have existed in the case of an entail. The law of entail, whatever the extent of its application, remained in full force for about 200 years, when it was virtually declared by the judges in Taltarem's case, that an entail could be barred by a recovery-that is, a judgment in a fictitious action to which the tenant in tail was made a party-but the little stir which this change of the law appears to have made at the time is a further proof of the absence of any general system of entail. The legislature appears to have acquiesced without a struggle in this manifest invasion of the old statute De Donis by legal contrivance, and not long afterwards they themselves by a new statute of their own, carried to a greater length the facility of barring entails; that is, by the statute of fines, first passed in the reign of Richard III. for the purpose apparently of securing doubtful titles, and after wards extended, in the time of Henry VIII., to the barring of the issue in tail. It is to be remarked that its effect is confined to the issue, which makes the statute of all the more significance, as a proof how little the legislature had then adopted, that which has become the principle of our modern law, the protection of the son against the father. For some time after Edward IV., and indeed down to the times of Charles II. a greater freeuom of alienation appears to have prevailed than had existed before, or has existed since; and the effect of this freedom-coupled with other causes-was the growth of that class, or classes, of gentry and yeomanry which withstood the attempted

tyranny of Charles I. Since that time the fetters of entail have been generally re-imposed in a less binding form in the shape of family settlement, by which the estate tail, being split into two parts -namely, a life estate in the father, with a remainder in tail to the eldest son could only be barred, at least during the lifetime of the father, by his concurrence with the son in a common recovery, or in the mode of assurance now substituted for it. But if the son survives the father without concurring in the settlement of the estate, he becomes tenant in tail, on possession, that is, absolute owner, subject only to the necessity of signing a special form of deed to exercise his right. This is commonly prevented by the resettlement of the estate on the marriage of the son in the lifetime of his father, by which the estate of the son is cut down to an estate for life, and the estate tail is put off to the next generation. What is called the rule of perpetuation does not admit of any greater restriction upon the right of alienation than is provided by this mode of settlement; but even this modified restriction is the result of the different contrivances of heirship-ingeniously devised in opposition, as Mr. Neate attempted to show, to the acknowledged principles of the law, and the apparent intention of the legislature.

Mr. ROBERT STUART read a paper on the laws of Scotland as affecting the sale of land. The law of purchase and sale of land in that country was no further advanced now than was that of England in 1635. It was true that an Act was passed in 1848 with the view of remedying the existing evil, but that Act was but a permissive invasion of 1685. He contended generally for the emancipation of land from feudal tenure, and for the assimilation of the Scottish and English laws, especially with regard to the acquisition of title in Scotland similar to that prevailing in England.

DISCUSSION.

Mr. JOHN HODGKIN: I will first advert to one or two points of a practical character in Mr. Urlin's paper. The views expressed by him as to the desirableness of reducing all the tenures eventually to that of freehold or fee-simple, as to the limitation of the rule with regard to attestation of wills, and as to the effect of subsequent marriage in the revocation of any will previously executed, appear to me to be well worthy of consideration. With regard to the limitation of the right of bringing actions to reduce wills, I am not prepared to go the length of further reducing the gross period. There may indeed be some advantage in reducing the period for the accrual of successive rights, but I think the gross period of forty years-seeing the necessity of it is so mainly dependent on the probable duration of human life-could not safely be shortened. I think the rule Vigilantibus non dormientibus jura subveniunt, might be still further carried out in regard to this subject. The suggestions for the conversion of copyhold into freehold are already in some degree met by the operation of the Enfranchisement Acts, although it may be desirable that the process should be still further accelerated; and in regard to that matter the remarks of our able and lamented colleague, Mr. Senior, were particularly appropriate as describing the thing in mathematical formula, showing that the parts are not equal to the whole, and that what the one party lost the other did not gain. I do not concur in the suggestion that the law should provide for the posthumous child. However inviting that idea may be to the affection of parents, I think it a dangerous

proposal; and that the remedy is worse than the disease. The notices which we have had of the supposed evils of the English system relate partly; perhaps principally, to the unmerchantable character of the land, and to the fact that it is not within reach of acquisition by the poor man. Now on this point some of the papers, especially that of the Professor of Political Economy at Oxford, treated the matter too much in the way of an appeal to class feeling. I believe it would be found that, even if we swept away the laws of entail and primogeniture, and if we removed many of those obstacles and expenses connected with the transfer of land, still the poor man would not and could not be an acquirer of land to any great extent. There is at least one strong reason in support of this view, that if we removed all those obstructions in the way of simplicity, security, and cheapness of title, we should simply raise the market-price of land. With the increase in the price of land, we should of course increase the one great difficulty in the way of the poor man's acquisition of it, namely that it is the least profitable of all investments. However abundant land may be in the colonies, in England it is necessarily dear, for it is limited in extent, and those who desire it and can buy it are constantly increasing in number. There may be exceptional cases through the operation of the allotment system, and building or land societies, but as a rule investment in land is unremunerative and therefore aristocratic, a luxury in which no one can indulge unless he has ample means to spare. That, however, does not render it unimportant to endeavour to give the lower and middle classes every reasonable opportunity of making investments in land should they desire it; and that necessitates our consideration of the laws of entail and primogeniture, as well as of the technical obstructions connected with titles. With regard to the law of entail we have had some rather new views expressed as to the operation of the statutes De donis and Quia emptores. But notwithstanding all we have heard, it is clear to me that it is not, strictly speaking, the law of entail itself, but the law of settlement, and still more the class feelings of the upper aristocracy, that are the main causes of the difficulty. I am not prepared to say that, with our mixed constitution, and with the importance of permanence in the holding of the land, we ought either to sweep away the law of entail or the law of settlement, but it is possible that the law of land should in that respect be placed on the same footing as the law of personalty. This middle course might not be incompatible with the mixed necessities of the case. There was one view expressed with which I could not at all sympathise, that the settling power, and especially the testamentary power, should only go to the extent of giving absolute interests. But would any one consent that that proposal made as to the land should apply to money? Would a successful trader, who had acquired a large property, consent that his testamentary power should be confined to an absolute interest, that if he gave anything to his widow it must be an absolute interest, and that he could not give a life interest? Yet this was the purport of the suggestion made. I cannot conceive of any arrangement that would give to the owners of property less power of regulating the settlement of it by the exigencies of their families than that which they already possess, and which no one purposes to take from them with regard to money, which would meet with the approval either of the conscience or intellect of the country. With regard to the law of primogeniture, I should not at all be prepared to infringe upon it. I think that the entirely free disposition by testament or otherwise is to a fair extent a practical guard against it, but I am nevertheless aware of the force of the remark that if the legislature were to abolish it, it would give a character to the feeling of men making a final disposition of their property. I think that would act in a right direction, but it would be purchased at too dear a price in the present condition of the country. I am aware of the very different feeling that prevails in France, chiefly by reason of the intolerable wrongs inflicted on the country by the old aristocracy. I have had opportunity of conversing with eminent jurists, and also with men of property in France, and I find the feeling there is directly in the teeth of the feeling here. In a conversation I had some years ago with a large proprietor in France, he said that France would bear the destruction of her political liberty more readily than she would bear the infraction of that equality which they say is essential to justice. And even with regard to the small portion over which the French law gives the testator the power of disposal, the feeling is so strong for equality

that, if a father were to give the quotite disposibile to his eldest son in order to make his portion larger, it would be thought that he had sinned in his grave, and the wife, having almost always her separate property, would try to hoard up her resources so that her quotite disposibile should be given to the other children.

Mr. JOSEPH FISHER: I believe the feudal system was properly a holding of the land by the king for the purposes of the state. The monarch was allowed to possess the right of disposal of landed property, which he gave to those who accompanied him in his wars, as the rewards of their services. The property in land, as it passed to the feudal owner, was burdened with the support of the armies of the state, and the land was bestowed upon the original owner and held by him as a benefice. It was not originally descendable from father to son, but, at the death of the holder, it reverted to the king to be disposed of by him. The fees given by the Crown to the original lords were not disposable by will, and could not be seized by creditors. Consequently the holder had purely a life-interest. The heir, whoever he was, did not possess until investiture took place, and a year's rent became the property of the Crown under the title of primary seisin. That was the law up to Taltarum's case, and so far from the Crown being against the law, as decided in that case, the Crown influenced the judges so as to destroy the power of the nobility. It was not until land came to be regarded as the individual property of the owner, that a devise was granted and questions of descent arose. One of the papers says that every man should get the fruit of his labour. As a general maxim that is correct, but when you come to land, does it apply? How then does the heir of the land become entitled to the property erected upon it to the detriment of the man who made the outlay? Almost all our writers have held that the possession of land is a trust to be exercised for the benefit of the people; that the possessor came into it with the free consent of the community, and got a general retainer to use that wealth for the public good. Now I believe if that principle were always carried out, such questions as we are discussing to-day would never arise. Mr. Danson drew a good distinction between property in land and in houses, but he forgot the idea that property in houses was the representative of labour. Take Coleridge's idea-it was this: The land itself never was nor could be property, for property means the result of man's labour. God gave the land of the country to the people of the country, that is the principle of the gift; the government of the country distributed that land to the people in different proportions, that comes within the process of law. But what is law? Law is the expression of the will of the people, and it is only by expression of that will that land is held. Mr. Mill says, whenever the possession of land is inexpedient, it is unjust. Now if the possessor of the land refuses to give a lease, or if he couples it with conditions to the effect that the fertility of the soil should not be developed -all these operate against the welfare of society. If the tenant lays out his capital, which is merely accumulated labour, on the land, what reason is there that he should not receive compensation for it? That question underlies the question of lease, for every lease has in it that condition. But is there any law, natural or divine, to warrant the assumption that one man is entitled to labour for another without any compensation? Mr. Danson lays it down that the law gives to a man the fruits of his labour, but is that giving a man the fruit of his labour that he cannot get the land on any other terms but that the fruit of his labour shall revert to another? There was a question raised as to the power of the poor man to purchase land. In France the capitalist cannot buy against the poor man, and there are 4,000 men working on their own properties of not more than eight acres. And are the labouring classes here less able to purchase land? And when you see that the cost of cereal produce and of animal produce is increasing in a more rapid ratio than the population, and that the growth of corn and the production of meat are decreasing, you may then say, why is it that the English system is not equal to the French? It may, I think, be laid down as a maxim that as you consolidate farms and increase the size of holdings, so surely do you diminish production. An extraordinary instance of this is to be found in the caso of Ireland, which in 1841 was an exporting country with 8 millions of population, whereas now, with the population reduced to 5 millions, she is not growing food enough for herself, and is an importing country. You may say that there is an increase in exports to meet the imports of grain, but the exports of meat and

butter were not so great in 1862 as in 1841. The fact is that as you consolidate farms you diminish the product; and, if you want the theory of the subject, you find it in Mill, who says, with regard to the land, that you must look upon it in two capacities, first as an agent for producing food, and second as a means of making profit for those investing in it. Now it sometimes happens that the one principle won't comport with the other. It will not pay the large farmer to give the land the amount of labour which is necessary to secure that return which a small farmer would draw from it.

Mr. WESTLAKE: With regard to the remark of the last speaker, that the land is going out of cultivation, I have no experience in regard to Ireland, but in regard to England I can testify that the land is not going out of use. But there is a change in its destination proceeding, and there, is an obvious reason for it both in England and Ireland. The increasing population requires increased supplies both of corn and animal food; corn can be more conveniently brought from a distance, and therefore, as the population increases, we must go on increasing in the import of corn and increasing in raising animal food at home. With regard to Professor Rogers' paper, I may observe that at present the power of settling real property is very much the same as settling personal property. In consequence of the difference in the nature of the two kinds of property, there is a little difference in the terms and expressions, but practically the power of settling is the same in both cases. You may create successive interests in land, but the series must finish with one who came into life within the lives of those now living or within twenty-one years afterwards. Now that is about the smallest power which is compatible with a marriage settlement at all; for in settling a property in contemplation of marriage, you must give an interest in it to one who at the time of the settlement is yet unborn, but who must come into being, so as to have the disposal of the property within the time named. When Mr. Bright wished to give point to his views on this subject, he felt himself obliged to say that the power of creating successive interests should be limited by the condition that the persons in whose favour they are created should be living at the time these interests were created, but that a special exception should be made in the case of marriage settlements; for Mr. Bright is far too clear-sighted a man to imagine it possible or desirable that any hindrance should be put in the way of marriage settlements. Now see how small an alteration that would be. It would simply come to this, that what may now be done either by marriage settlement or by will would be done by marriage settlement only, an alteration hardly worth making. So far as I understand, Professor Roger's paper apparently goes further and certainly seems to recommend that the creation of successive interests in land should be absolutely confined to their creation in favour of persons in existence, without that exception which Mr. Bright seems to feel the necessity of making. I feel some difficulty in imputing to him so extraordinary a doctrine seeing he has not spoken out decidedly in regard to it; but if he does desire this he advocates something which would not be entertained by any practical man, and would create an oppressive and invidious distinction between land and personal property. I may observe that various of the arguments used with regard to land have no special or exclusive reference to that particular kind of property, but would equally apply to others. For instance, it is said that a person having a limited interest in the land has not the same interest in managing it energetically which the absolute owner of it has. Is it not also true that if shares in a company are put in settlement so that one person has a life interest in them and another person not born has the ultimate interest in them, the holder of these shares for life has not the same inducement to take an energetic part in the affairs of the company as the absolute holder would have? And there are other kinds of property to which similar principles would apply. Therefore, having regard to the impossibility of establishing unequal rules, and the shock which our feelings of justice would receive by imposing conditions on the settlement of land which do not apply to other property, and looking to the connection which the two kinds of property have with the interests of the country, I do not see why the disposal of the one should be limited more than the other.

Dr. J. W.SMITH: The real question is, Are the laws such as to prevent the land being bought by the man who is ready to give the highest price for it and make