264 LAND
rights in Orkney), that the sovereign was supreme lord of all the land, and that every one held under him as tenant in England, vassal in Scotland, names which have survived in legal theory and language down to the present day. They expressed then as now the unquestionable legal rule that there is no such thing in our system as an absolute private right of property in land, but that the state alone is vested with that right and concedes to the individual possessor only a strictly defined subordinate right, subject to conditions from time to time enacted by the community.
Within Scotland the feudal system has been preserved in remarkable purity. The majority of the larger estates, as well as many small ones, are still nominally held of the crown, and pay an annual rent, or "feu-duty," along with certain fines on succession or alienation, nor is the title of any heir or vendee complete till he has received the written acknowledgment of the sovereign. But each owner who holds of the sovereign may grant a subordinate estate to be held of himself as "superior" or lord, on such terms as he thinks fit, and the "vassal" thus constituted must in future obtain recognition of his title from his immediate superior, just as if he held directly of the crown. It is only within the last few years that the subordinate vassals thus holding have been allowed the means of commuting the services they had bound themselves to pay to the "subject superior," and of converting themselves into direct vassals of the crown, which forms the nearest approach to private property permitted by the law of Scotland.
In England feudal forms became partially obliterated at an earlier period. In 18 Edward I. parliament had put an end to subinfeudation. The services due by the crown's tenants were by a statute of Charles II. reduced to a form which left them merely nominal. But at a very remote period there had sprung up a tenure which in many respects was equivalent to feudal tenure. The serfs who cultivated the lord's lands, although at first subject to his absolute pleasure, yet, being left undisturbed for a considerable series of years, fell under the doctrine of English jurisprudence which recognizes custom as having the force of law. They gained thus a right of occupation in permanence, paying only such rents or services as were entered in the copy of the rolls of the manorial court, from which their tenure came to be designated copyholds. By degrees they obtained manumission from servitude, and with it the right of alienating or bequeathing the land they thus held. There were therefore two principal classes of property in England, freeholds, holding in general directly of the crown, and copyholds, holding of a lord of the manor, but both with indefeasible title subject to trifling services ascertained by custom or by statute. It would seem that in these two forms a very large number of those whom we now should call yeomen or peasant proprietors were established throughout the country. But in addition to these there were on the large estates a great number of those whom we should now properly call tenants-at-will, renting lands of the lord, and not established for a sufficient length of time to have acquired the status of copyholders.
About the middle of the 14th century English wool was found to be peculiarly well adapted to the use of the weavers of the Low Countries, and brought a high price. This led the owners of the large estates to substitute pasturage for tillage, and by consequence many of the cultivating tenants-at-will were evicted. Hence arose complaints precisely similar in motive and language to those which in our own times have been excited by the clearings in Ireland and the Highlands for the purpose of substituting sheep farming in place of husbandry by cottars and crofters. During the 15th century, probably for the same reason, the extensive wastes which covered a large part of England began to be enclosed, to the consequent disturbance of a number of squatters (called at the time "champions," from champs) who had settled on them, and derived a not very sufficient subsistence from feeding a few animals on the commons. It is noticeable that both Fitzherbert and Tusser, the earliest English agricultural writers, and the latter himself one of the people, commend the enclosures, on the ground that the land so reduced to separate ownership produced much more than it had done as commons. But these causes, combining with the breaking up of the monasteries, and the absorption of church lands into the estates of the adjoining landowners, gave rise to much disorder and misery. Parliament attempted to deal with the causes and effects by enactments directed by turns against the high rate of wages, against the destruction of farm houses and cottages, and against the idle or unemployed tramps who roamed over the country. It was a period of dislocation of social relations, of which we are not now in a position to judge accurately. But undoubtedly the ultimate result was a considerable increase in the magnitude of the larger estates and farms, gained by a proportionate decrease in the number of both of smaller size. It is from this period that we must date the diminution of the class of yeomen which has been the theme of lamentation with economists and historians down to our own times.
Contemporaneously with these changes the law was receiving those adjustments which tended to preserve the large estates undiminished in the possession of their hereditary owners. Entails were sanctioned by statute (De donis, 13 Edw. I.), but broken down some two centuries, later by the ingenious judicial devices of fines and recoveries. Trusts were invented by the churchmen, but attacked by parliament, only to be re-established under the technical name of trusts upon uses. Lastly, estates for life were invented; and, being skilfully combined with so much of the principle of entails as the courts had sanctioned, they have formed the still existing method by which family estates are preserved from dispersion. The rule of law is that all persons living at the date of a settlement may be restricted to mere estates for their own lives, instead of taking the fee simple with full right of alienation. In this way each son when he succeeds finds himself merely a tenant for life, and as such possessed of no power to prevent his own son from becoming owner in fee simple when he in turn shall succeed. But a father so situated is little inclined to leave to his son powers of which he himself is deprived, while his son is generally willing to barter his. future liberty for a present liberal allowance. Thus father and son strike a bargain; the father buys the son's surrender of his future right, and the son, for a price, agrees to submit himself to the restraints of being merely tenant for life when his father shall die. The process repeated from generation to generation has re-established in practice the system of entails which the courts had abrogated as contrary to public policy, and which every writer from Bacon downwards has denounced as hurtful to the nation.
Similar rules prevailed in Scotland. But, as entails were there of later introduction, so they were much more strict, and from 1680 to 1848 land might be settled in an endless succession of inconvertible life estates. In the latter year an Act was passed which, with a good deal of complication, substantially limits the right of creating life estates to one generation as in England. In 1875 another Act introduced the useful principle that the owner of a life estate might in certain circumstances buy up and extinguish some of the contingent interests in succession to his own at their present value, ascertained by computation based on the expectation of life.
The system of entails, or of creation of estates for life only, which has thus prevailed for several centuries in the
