William Ogilvie, The Right of Property in Land, 1781.

SECTION VII

Of a progressive Agrarian Law, which might be made the basis of all partial and occasional Reformation respecting Property in Land.

71. If in any nation of Western Europe the sovereign were desirous of introducing a system of property in land, wholly consonant to natural justice,1 and favourable to the greatest happiness of the greatest number of citizens; and if in this undertaking he found himself under no necessity of paying respect to the prejudices and interests of the present landholders, or any other body of men whatever, he would take for his leading object to increase the number of independent cultivators, and to bring into that favourable situation as great a number of citizens as the extent of his territory would admit. In the accomplishment of which purpose, he might see cause to enact a statute, not very different from the plan delineated in the following articles:

  1. That every citizen aged twenty-one years or upwards may, if not already in possession of land, be entitled to claim from the public a certain portion, not exceeding forty2 acres, to be assigned him in perpetuity for residence and cultivation, in the manner and under the conditions hereafter specified.
  2. That the claimant shall have right to choose the situation of his allotment on any farm, freehold, or uncultivated common within his own parish, if the same be not excepted by the other provisions of this law. If there be no unexcepted land in his own parish, he shall have right to choose in any of the parishes contiguous to his own; and if in these there be no unexcepted land, he shall have right to choose throughout the whole district or county.3
  3. This allotment shall be set apart, and its landmarks fixed by the magistrate with the aid of an assize, or of arbitrators chosen by the parties. It shall be marked out in the manner most convenient for both the old and new occupier: it shall approach to a square, or some other compact form; one of its sides shall run along the boundary of the old farm; and it shall have communication with some road already patent. -- None of these circumstances to be departed from without the consent of both parties.
  4. The ground thus set apart shall be submitted to the cognizance of an assize,4 or of arbitrators chosen by the parties, who shall determine what reserved perpetual rent the claimant must pay to the landlord,5 and what temporary rent to the former tenant (if any) in compensation of their rights.
  5. The following farms are to be exempted from all such claims: --
    1. Every farm from which, if the allotment claimed is taken away, less than forty acres will remain to the first tenant.
    2. The farm or park belonging to the lord of the manor, the same bearing a regulated proportion only to the extent of his estate.
    3. Every farm, of whatever extent, that has not been ten years occupied by the present tenant.
    4. Every farm whose arable ground has been diminished one-half by claims founded on this law shall be exempted for twenty years to come, if the tenant so desire.
    5. All farms of barren ground taken for the sake of improvement, under such forms and limitations as may prevent the collusive evasion of this law.
  6. In case the claimant is not contented with the rent affixed to his allotment, he shall not be obliged to hold it, but to pay the occupier twice the amount of any expenses incurred by him. If the former occupier is not contented, a new6 valuation may be obtained by him, he defraying all the expenses that may attend it. Every such claimant may make four options, and no more. If he has made two within his own parish without holding, he cannot make a third there, but may make his remaining two in the contiguous parishes, or in the district at large, as he shall choose.7
  7. The person thus acquiring property shall continue to reside upon his farm. He shall have right to transmit it to his heirs or assignees in full property, or under a reserved rent, but shall not have nor transmit the right of alienating it with reversion, i.e., of letting it, or any part of it, in lease. If he sells it to another, who shall not reside upon, but annex it to some other farm, one-tenth part of the price, or of the reserved rent, shall belong to the public.8
  8. The lands acquired in this manner shall not be transmitted by will, but according to the established rules of succession to landed property, the original lord of the manor being ultimas haeres. The father, however, may choose to which of his sons the farm shall devolve.
  9. No allotment shall be united to another by succession.9 The person who has right to two in this way shall make choice of one of them, and that which he relinquishes shall pass to the next heir. By marriage they may be united during the lives of the parties, and of the longest liver, but to be separately inherited by two of their heirs.
  10. It shall not be lawful to break down any such allotment in order to divide it among children,10 until in any county the uncultivated lands are wholly exhausted; at which time, a new standard of farms shall take place, of six or eight acres, suited to the spade culture; and allotments within that county may then be broken down by will, purchase, or otherwise to that standard.
  11. The property acquired in these allotments shall not carry along with it any right of common of any sort in the commons, moors, woodlands, private roads, or other appendages of the manor, excepting only in the nearest well and watering pond, and in the bog or common for turf, if that is the fuel of the country: this last right to be regulated by the usages of the manor, as if the allotment had been given off in lease only. Neither shall any use, prescription, or connivance, ever in course of time, procure the holder of such allotment any right of common that is not founded on, and ascertained by, express compact.11
  12. Those who are in possession of farms at the time of enacting this law shall not be entitled to get any part of their farms converted into freehold by its operation, until by the option of other claimants these farms be reduced to an extent of less than sixty acres.12
  13. All who acquire property by the operation of this law shall be obliged to perform double service in the militia of their country.
  14. In every competition that may arise, orphans, and those that have served in the army or navy, shall be preferred to all others, and to one another according to the number of years they have served, or the early age at which they have been left orphans.
  15. Every person who has acquired an allotment of land in this manner shall pay to the lord of the manor certain aids and services of a feudal nature, so regulated as to produce that degree of connection and dependence which may be expedient for preserving order and subordination in the country without danger of giving rise to oppression and abuse.13

72. Such might be the general outlines of a statute which from the nature of its operation would not improperly be called a progressive Agrarian law. Other more simple plans might no doubt be adopted by a sovereign having the power and the inclination above supposed. Many such might be proposed, by any of which the present state of landed property in Europe might be very much improved, and rendered more consistent with natural justice and the best interests of the greater number; yet far less improved than might be expected from the establishment of a progressive Agrarian law, the plan of which seems to comprehend the following advantages over every other Agrarian law that has been attempted or proposed.14

  1. It tends to unite the real benefits of that levelling scheme which was the avowed object of the Greek and Roman Agrarian laws, and which the peasants of Europe, in a frenzy excited by oppression, have sometimes seemed to aim at; with the known advantages of unequal fortunes, and the free accumulation of real property, excluding at the same time the greater evils that attend on each.
  2. That its operation must proceed gradually and gently, under the regulation of two principles, the one acting as an accelerating force, viz., the demand of the lower ranks for independent settlements, the other acting as a retarding or restraining force, viz., the inconvenience which the present occupiers, at any given period of time, must undergo. The opposite interests of these two classes of men, this law tends to compromise on a plan the least unjust to the former, and the least incommodious to the latter, according to the circumstances of the country at every successive point of time, with all the variations of which circumstances the operation of this law will, of course, vary.
  3. That it provides for the easy gratification of that propensity so natural to mankind, to fix their settlements as near as may be to the places of their birth, and to extend themselves de vicino de vicinum, chiefly like the trees of the forest.
  4. That it reduces no citizen to the alternative of renouncing his inclination or his right. If he does not incline to become a cultivator, or a husbandman, he is not therefore deprived of all opportunity of becoming so, when change of circumstances, or of his choice, shall so dispose him; when that time comes, he has free admission to an equal share of the soil of his country. Provision, however, is made, that whoever in the meantime has occupied that share shall not be dispossessed of it, with any circumstances of inconvenience, nor without a just compensation for labour bestowed and improvements made. In order to ascertain the amount of this compensation, recourse is had to the best expedient which the state of human affairs will permit, an expedient which in similar cases has been employed and found adequate.
  5. That it may be so adjusted as to confer suitable and effectual encouragement on the marriages and increasing progeny of the lower classes of men; not merely honours, exemptions, and prizes, which can fall only to the share of a few, but real establishments proportioned to their increasing wants, and consisting of the subject of industry and the means of subsistence.
  6. That by very easy variations it may be accommodated in a great measure to the municipal laws of any country, and the interests of any prevailing order of men, so as that very considerable and important branches of it, if not the whole, may be engrafted on the established system, whatever that may be, without any apparent violence or much danger of exciting . discontent.

73. There are three articles with regard to which these variations for adapting the progressive Agrarian to established systems and prevailing interests may require to be made: --

The lands which are made liable to claims of allotment.

The persons to whom the right of making such claims is given.

The nature of the right acquired in the allotments thus assigned.

(1) Natural justice and the greatest good of the whole community would require that all lands whatever should be subject to these claims until the whole country were divided into farms not exceeding the established standard. But this not being practicable, except in a few rare cases, and on such occasions as a new settlement or an absolute conquest, it might be expedient in most countries to restrain these claims to uncultivated lands alone, or to the forests and demesnes of the crown, either of which would prove of great public utility. This Agrarian law might be established with regard to commons in general, restricting the right of making such claims on each separate common to the children of those who have a right of common in the same -- a regulation perhaps not impracticable in England.

In almost every country there are some classes of men who, though they are allowed to possess property in land, are yet not reckoned to stand on the same footing with the bulk of the community, nor admitted to any share of government or legislative power. Such is the situation of Protestants in Roman Catholic, and of Roman Catholics in Protestant, countries. Might not such a statute be enacted in its full extent with regard to the lands of these proprietors? Might it not be enacted in its full extent with respect to lands whose proprietors are subjects of a foreign state? of which there are frequent instances on the Continent, and in most cases, these lands are subjected to double taxes, or other burdens, far less equitable than any detriment that might be incurred by the proprietor from the operation of this law.

The estates of absentees of a certain description, and still more the lands which at any time devolve by forfeiture to the public, might be made liable to such an Agrarian; the right of making claims on these estates being confined to natives of the same county or district.

If great proprietors are allowed to establish perpetual entails, in opposition to the public interest, it ought only to be on condition of rendering their estates subject to such an Agrarian in its whole extent, by which the public detriment arising from the entail would be fully compensated, without defeating the private intention (which is in itself laudable enough) of rendering a great family permanent.

Even Jews might be permitted, without alarming any prejudice whatever, to purchase lands in any country, subject to the regulations of this Agrarian law in favour of Christian cultivators, and without that sort of dependence which is pointed out in the last article of the plan.

(2) Natural justice and the greatest good of the community would require that every man, arrived at the years of maturity, should have such a right. It might, however, without detriment, perhaps with advantage, be limited to those who are married, and might perhaps require at its first commencement to be limited to thirty-six or thirty-two years of age, in order to prevent too sudden a diminution of the number of day labourers and hired servants; this standard age, however, sinking gradually, one year at a time, once in the two years, until reduced to twenty-one.

However impracticable or inexpedient it may be in most countries to extend this privilege to all persons whatever of the legal age, there are in every country certain useful and privileged classes to whom it might be willingly enough communicated by the legislature, as

  1. those who have served a certain time in the army. This regulation might be easily admitted in Prussia, Austria, all over Germany, and indeed Europe in general;
  2. those who have served a certain number of years in the fleets, or on board the trading vessels of their country. The prevailing eagerness for acquiring commerce and maritime power might well recommend such encouragement to this class of men everywhere. In most countries they make but a small proportion of the community, and where that proportion is large, there they are most highly valued and cherished by the State;
  3. the sons and sons-in-law of clergymen in Protestant countries might be thought entitled to this privilege, if at any time reduced to the necessity of claiming it;
  4. the peasant who has eight children alive, or six before he is thirty years of age, might be entitled to it in all countries;
  5. and so might those who have been left orphans in their nonage, the daughters, when married, conveying this privilege to their husbands.

(3) As to the nature of the right acquired in the allotments of land -- according to natural justice, it ought in all cases to be a perpetual tenure; but if this may not be obtained in all, it ought at least hardly ever to be departed from when uncultivated lands are allotted to the claimant. If the lands have been already cultivated, a long lease may suffice; and if they are fertile, that lease may be somewhat shorter, but ought in no case to fall below thirty-one years, with a life. On the expiration of every such lease, the tenant ought to have an option of renewing it again on paying an additional proportion of rent, as one-sixth, or such new rent as an assize may affix; but if that affixed rent shall not exceed the old one in a certain proportion, as one-tenth, the tenant ought in that case to forfeit his right of renewing the lease.

By such variations may the principles of a progressive Agrarian law be accommodated to the established institutions of various countries; and justly may it be affirmed that there is no country under the sun which might not derive great increase of prosperity from adopting one or other modification of such a law. Certain forms of this law might indeed be proposed, so simple in themselves, so little inconvenient to the present landholders, and yet so beneficial to the lower classes of men, that no good reason could be assigned why they ought not to be universally established in all parts of the world. Suppose, for example, that a petition were offered by the parties concerned, to any European legislature, requesting, with due respect, the establishment of the following regulation: -- That soldiers, sailors, orphans, should be entitled to make claims of uncultivated lands within their parishes and counties, on the boundaries of estates only, without acquiring any right of common, and to be possessed for forty years and a life rent, under such annual payment as an assize or arbitrators should determine to be the present annual value of the soil. What good reason could be offered for refusing so just a requisition? And were it flatly refused, what reason would there be to hesitate in pronouncing that legislature, whether monarch or senate, tyrannically oppressive, and unfaithful to the first objects of a sovereign's trust? But as in all parts of Europe the good of the people and the protection of the indigent and deserving, are held forth by governments as the pretexts of that authority which they assume, it could not well happen that so modest, so reasonable a request would be rejected in any county whatever; nor could it fail that the introduction of this very circumscribed form of a progressive Agrarian law, by showing an example of its advantages, and making known also the very inconsiderable amount of the inconveniences inseparable from it (which, while unknown, may be dreaded too much), would make way for its reception on a more extensive plan, as communicating the right of making options to various other classes of men, and in the cultivated as well as the barren lands of the State.

74. It would furnish the matter of a very interesting inquiry to examine what particular modifications of such an Agrarian law might be accounted more especially suitable to, and most likely to find ready admittance in, various countries with whose municipal laws we are acquainted, and what peculiar branches of such law might be adapted to various conjunctures which have occurred, or may perhaps occur, in different states. North America has lately enjoyed an opportunity of new modelling the establishment of landed property, even to theoretical perfection. Among the fundamental laws of their new constitutions a well-regulated Agrarian ought to have found a place, and might have remained unrescinded by the articles of any auspicious coalition with the parent state, none of whose pretensions could be supposed to be infringed by the internal arrangements of such a statute.15 Nor is that opportunity, though not observed in the great crisis of their fortune, wholly lost to countries where almost every citizen is annually admitted to vote for his representative in a legislative assembly, every member of which represents nearly an equal number of the people at large.

The whole landed property of Bengal and the other provinces which our East India Company has acquired is now absolutely at the disposal of that company and of the British Government. No nobler opportunity, no equal fund for exhibiting to mankind the illustrious pattern of a just and equal establishment of landed property, was ever by any conjuncture thrown into the hands of a set of men very capable of perceiving wherein the best use of such an occasion would consist. By making a proper use of it, and by the firm establishment of a beneficial landed property, some reparation might yet be made to that unhappy country for so many wrongs, and some testimony might be borne, amid so many ambiguous appearances, to the ancient honour and equitable disposition of the British nation; and what may be more directly regarded an additional security might thereby be provided for the permanency of our acquisitions in that part of the world. To establish a just system of landed property, and to secure it by introducing the trial by jury, are perhaps the only innovations which Britain ought to make in the ancient institutions of Hindostan.16

The situation of Ireland during the peaceable years of the present reign might perhaps have encouraged the legislature of that country to establish some considerable branches of an Agrarian law (had it been suggested) in the estates of the Catholics; these regulations might have been so devised, and so promulgated, as to operate more effectually in attaching the common people of that persuasion, than in disgusting the great proprietors.17

It seems not unlikely that the proprietors of extensive grazings in the south of Ireland might be more easily reconciled to the establishment of such an Agrarian than the holders of arable estates to the same value may be hoped to be; as these proprietors of grazings have so few people on their wide domains, they would not be so sensible as other landholders to the loss of influence and that degree of dominion over men, which is no doubt one of the principal charms of landed property. Their rents might probably be increased by the innovation, for surely the free produce of the ground might be greater under alternate tillage and grazing than when kept perpetually in grass. Supposing, however, that their rents were only kept up (which they ought to be at least), they could have little aversion to a few independent settlements on the frontiers of their extensive estates; or if they had such aversion, they could not apprehend that in parts of the kingdom so thinly peopled the increase of these settlements would advance very fast.

In the present doubtful state of that country,18 it is supposed that the volunteer corps, who have taken up arms for obtaining a free trade, are for the most part composed of persons who might derive advantage from equitable regulations of property in land. Should these men come to apprehend their own interest in that point, and should they think of insisting on the establishment of any such regulations in favour of themselves and their posterity, or for the community in general, would not their present ascendant enable them to accomplish this desire, if not carried to any intemperate extreme? Would not this be a much more important object, and more worthy of their generous enthusiasm, than that almost nominal independence of Great Britain, which they appear at present so eager to obtain? Is it not at the same time the interest of Great Britain that their ardour should take this direction, -- for avoiding the threatened contest, for increasing the common strength in the most effectual manner, for diverting the industry of Ireland from an immediate rival-ship in manufactures, which, notwithstanding all suppositions to the contrary, is very justly to be dreaded by Great Britain. Had the minds of men been prepared in any degree for thinking with freedom on the subject of landed property, and could the times have admitted of any hazardous delay, it might have been reckoned very liberal policy in the British Minister to have undertaken the patronage of the Irish common people against their own parliament and landholders, and then at least, when he promoted the bills relative to freedom of trade, to have annexed to them conditions of regulation for landed property, by which the freedom of agriculture might have been established at the same time.

It is only in purely democratical governments, of which there are very few, or in unlimited monarchies during the reign of a sovereign endowed with superior wisdom and capacity, that any sudden or effectual reformation of the abuses of landed property can be expected.19 Of all the absolute princes who have reigned in Europe for many ages, none has appeared so well qualified as the present King of Prussia for conceiving and carrying into execution, in the best and most genuine form, any great and singular project of this nature. Had the idea of reforming the constitution of landed property presented itself to his mind, in the earlier part of his reign, or had it been suggested by any of the philosophers whom he called around his throne, that penetration with which he discerns, and that royal patriotism with which he steadily pursues the real advantage and strength of his state, together with the native generosity of his sentiments, must without doubt have attached him very strongly to a scheme so magnificent and so beneficial. And however difficult the execution might have proved to other princes, it is plain that no material obstacle would have presented itself to that high authority wherewith this monarch is accustomed to regulate and to change the most respected establishments of his kingdom. It may be deemed no slight confirmation of the preceding speculations that this sagacious prince, although it does not appear that he has ever entered into any theoretical investigation concerning the nature and just extent of the right of landed property, has in fact practically adopted some of those maxims which such investigations tend to establish. No object is said to engage his attention more than the protection of peasants from the power of their lords. Amid the rigour of a military discipline by which his armies are rendered superior to any that the world has seen elsewhere, every native Prussian soldier is accustomed to the domestic engagements of a citizen and the industrious economy of a farmer or artisan; and during peace, one-half or two-thirds of them are dismissed to the cultivation of the fields, or other industrious occupations, for nine or ten months in the year.

Posterity will probably applaud this happy combination, and the very simple plan by which it is accomplished, above all those manoeuvres of the parade and of the field which his contemporaries are so proud to imitate. As for the landholders, so little is he influenced by partiality to them, or any apprehensions of their discontents, that he actually levies a tax of thirty-three per cent, (and in the case of noble tenures more) on the real, not the supposed, rents of their estates. Is not this treating them (in conformity to that idea of their just rights formerly suggested) as merely trustees or bankers for the public, to the full amount of the original value of the soil?

75. Still, it must be acknowledged that after setting aside all objections arising from the interest of landholders, and the prejudices of established opinion, there are not wanting others of a general nature which may be opposed, and not without some appearance of foundation, to the establishment of a progressive Agrarian law. That uncertain and fluctuating state into which all possession of land beyond the standard farm will be thrown, may be apprehended to prove extremely unfavourable to any -spirited and vigorous cultivation, which is chiefly to be looked for in extensive farms. In the plan of a progressive Agrarian, more than one clause is calculated to moderate this fluctuation; greater force may be given to these, and new clauses of corresponding effect may be added. It might be provided, for example, that none but barren and uncultivated lands should be open to claimants, at all times; cultivated lands only one year in seven, or any longer period that may be thought requisite for the security of cultivation; neither indeed ought uncertainty of possession to damp very much the spirit of improvement, while the improver is still secure of an adequate reward for the pains he may have taken; and that reward is to be assigned him by the verdict of an assize; at the worst, in proportion as the spirit of improvement may be damped in extensive farms, it will be encouraged and excited in the smaller, where possession and full property is rendered secure; and in these, improvements being carried on under the immediate continual inspection, and almost by the hands of the improver himself, they will be accomplished with more economy, that is, with more advantage to the public and to individuals than commonly happens in extensive undertakings of this sort.

The discouragement of established manufactures and the increase of litigious contention are in like manner objections which must be ad mitted to a certain extent, yet not to that degree as to be accounted national calamities, or t equiponderate the obvious and great advantage likely to arise from a due regulation of landed property.

It cannot be supposed that any great number of men, educated to manufactures and accustomed to the practice of mechanic arts, will be withdrawn from their respective trades, even by the free opportunities of engaging in independent agriculture; but a competition will take place with respect to the rising progeny of the present race, and if the greater number shall attach themselves to agriculture, it need not be regarded as any detriment to the public, since, the number of citizens remaining the same, they will be employed in a way which they themselves prefer, and probably to the advantage of their health and of their manners.20

With whatever violence the increase of litigation may break forth in consequence of regulations so new, so important, and not a little complicated, the duration of that evil cannot be very lasting. In a few years doubtful cases will be cleared up, and precedents of extensive application will be established, and whilst the attention of judicatories and of clients is engaged in settling these new points, the influence of other causes by which litigation is commonly produced will be in some degree suspended.

As for the beneficial effects of such a statute, the candid and intelligent are requested to estimate in their own thoughts what these might prove in the district with which they are most particularly acquainted, and to consider whether it would not very much improve the condition and the prospects of the day labourer, the hired servant, and the working manufacturer, without imposing on the established farmer or the landlord any unjust or even any considerable inconvenience? Whether it would not lessen the number of the indigent and the idle, and so reduce the rate of that tax by which the rich are obliged to maintain them? Whether it would not tend to promote cultivation and the fertility of the soil, to favour the increase of population, and to improve the manners and virtues of the great body of the people? After having made this estimate, let them consider what might have been the present state of that district had such a progressive Agrarian law or any capital branch of that statute been established there one hundred or even fifty years ago.21