The Right of Property in Land

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

SECTION II

Of Circumstances and Occasions favourable to a partial Reformation of the Laws respecting Property in Land, by the sovereign or legislative power.

50. Many schemes of innovation may be thought of, which, without amounting to a complete change, or the establishment of the best system of property in land, might yet recommend themselves to the attention of absolute monarchs, as being more suddenly, and therefore more safely, to be carried into execution, than any total reformation can be, and productive of very beneficial effects, though not of the best.

Such as, 1st. To fix the rent of every farm for ever, and limit the duration of all leases to a single life of the tenant; that is, to convert leases into benefices.
2ndly. To make the duration of every lease perpetual, so long as the tenant may choose to make an addition of one-twelfth, or some other just proportion of the present rent, at the end of every thirty years.
3rdly. To make the duration of every lease perpetual, reserving to the landlord a stated proportion of the annual produce, suppose one-fifth to be paid in the staple commodity of the country; the amount of this produce to be ascertained by a jury, once in thirty years, if the landlord require it, or in twenty, if the tenant chooses.
4thly. To convert all farms into freeholds, with a reservation of the present rent to the landlord, transferring at the same time all land taxes and all public burdens whatever, with all their future augmentations from the landlord, to the new freeholders, formerly his tenants.
5thly. To establish a sort of jubilee, with regard to property in land, by enacting, that at the expiration of fifty years after the last purchase of an estate in land, every farm shall become freehold in the hands of the farmer, with reservation of the average rent of the last seven years to the landlord.
These are examples only; many other schemes might be easily devised.
By the 1st, the landlord receives power in exchange for gain, and by the 4th, a lucrative exemption, in place of the uncertain increase of a racked rent.
By the 3rd, the claims of both parties are compromised in a manner scarcely less favourable to the landlord, and far less oppressive to the cultivator, than the conditions of leases for a limited time commonly are.
By the 2nd, the cultivator, and by the 5th, the landlord, would be excited to a diligent improvement of the fertility of the soil.
In all cases, the farms thus converted into freehold should be made subject at the same time to the laws of gavel-kind, until they are subdivided into allotments of less than forty acres, or whatever other standard may be fixed upon as best suited to the state of the community and the nature of the soil.
51. It has sometimes happened, though too rarely, that all ranks and orders of men in a state, forgetting for a while their subordinate and particular interests, are disposed with concurring wishes to seek for, and to adopt whatever schemes may contribute most effectually to the public good, and may become the foundations of lasting order and prosperity. Such seems to have been the prevailing disposition of the Romans, when the laws of the twelve tables were enacted; such nearly that of Athens, when Solon was intrusted by his fellow citizens to compose a body of laws for their country; and such that spirit which ought to pervade, and has in general pervaded every community of men, while contending for independence, against the efforts of a more powerful state.
Should ever any happy concurrence of disposing causes produce such a temporary disposition in any of the Western nations of Europe; could the legislature, prompted by enlightened zeal for the universal good, set at naught the discontents which might arise in any particular class, and remove with ease all opposition made to their generous purposes; in this fortunate situation, it might occur to them, perhaps, that a just regulation of property in land is, of all those arrangements which the present moment could give opportunity of establishing, the most essential for diffusing prosperity and independence among the body of the people.
Pursuing this idea, biassed by no influence, awed by no faction, they might be led to enact a law, by which every person inclined to employ himself in cultivating the earth for his own subsistence, and that of his family, should be entitled to claim in full property a reasonable share of the soil of his country; without prejudice, however, to the just rights of any other persons who may have previously bestowed their industry in cultivating and improving the same spot.
Such a law might, from the nature of its operation, be not unfitly denominated a progressive Agrarian, and might be comprised in the following articles, or others of similar effect:

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 forty acres, to be assigned him in perpetuity, for cultivation and residence, in the manner and under the conditions hereafter specified.
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.
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 to both the old and the new occupiers ; 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.
The ground thus set apart shall be submitted to the cognizance of an assize, or of arbitrators chosen by the parties, who shall determine what reserved , perpetual rent the claimant must pay to the landlord, and what temporary rent to the former tenant (if any), in compensation of their rights.
The following farms are to be exempted from all such claims. -- Every farm from which, if the allotment claimed is taken away, less than forty acres will remain to the first tenant. -- The farm or park belonging to the lord of the manor, the same bearing a regulated proportion only to the extent of his estate. -- Every farm of whatever extent that has not been fifteen years occupied by the present tenant. -- 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. -- All farms of barren ground taken for the sake of improvement, under such forms and regulations as may prevent the collusive evasion of this law.
The person thus acquiring property in land 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, that is of letting the whole, or any, part of it in lease. -- If he sells to another, who shall not reside upon it, but annex it to some other farm, one-tenth part of the price, or of the reserved rent, shall belong to the public.
The property acquired in these allotments shall not carry along with it any right of common of any sort in the commons, 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; in which case this right is 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 to the holder of such allotment any right of common, that is not founded on and ascertained by express compact.

The Agrarian laws of antiquity seem to have failed in producing durable and beneficial effects chiefly from two circumstances:
(1st) Their operation was sudden, violent, and occasional only, whereas the progressive Agrarian is so constituted as to exert a continual influence, more or less intense, in proportion as the general interests of the community may require.
(2nd) The ancient Agrarian laws were easily, and thus generally, evaded; as they opposed the whole body of those who wanted lands, to the whole body of those who possessed more than the legal allotment, without assigning to individuals a specific right in any particular fields or district, a general convulsion of the State must have attended every attempt to call forth the energy^ of law. To avoid these tumults, all persons soon became disposed to connive at various evasions of these laws, and to acquiesce in their falling into desuetude, until some popular leader arose and called anew for their restoration. But the progressive Agrarian assigns particular definite rights to a few men, within every district of moderate extent; it opposes the natural claims and the indigence of these few men to the exorbitant possessions and the opulence of a still smaller number within the same district. The facility of evasion must be much diminished by this regulation. The vigilance of the claimants, being confined to a narrow space, will be more awake and precise; their limited rights founded on a local claim, and derived from their birth, will be more distinctly conceived by themselves, and more readily supported by the concurring sentiments of all other men.
52. Without venturing to make openly any alteration in that system of landed property, which, like systems of corrupted religion, is regarded with superstitious reverence in countries where it has long obtained, many occasions will occur, whereof advantage may be taken to introduce under the cover of other objects, and as part of the usual proceedings of the State, such regulations as may tend very effectually, though by remote and indirect influence, to promote the independence of the plough, and the distribution of property in land, in small allotments, among the lowest ranks of the people.
If, for example, new taxes are to be levied, what subjects of taxation can be more justly liable to the imposition, or more productive, than large farms and short leases?¹ The landlord, by adopting these plans in the management of his estate, means to derive advantage to himself, from measures which at once obstruct the increase of population, and diminish the spirit and independence of the 'common people; and if his right to make these invasions on the public good cannot be directly attacked, let him at least be obliged to indemnify the public in some degree, by some other mode, more familiar to the minds of men.
A tax imposed on barren lands, and so regulated as to engage the proprietor in their immediate cultivation, or oblige him to resign them to the community for general distribution, could not be esteemed in the smallest degree unjust. His right to these barren lands is founded solely on occupation; there is no improved value superadded, no right accruing from labour bestowed, and as he occupies, besides, more than his equal share of the soil, the whole unimproved tracts of his estate belong strictly and entirely to the public; and no small indulgence is shown in giving him an option to improve or to resign them.
A tax on all augmentation of rents, even to the extent of one-half the increase, would be at once the most equitable, the most productive, the most easily collected, and the least liable to evasion of all possible taxes, and might with inconceivable advantage disencumber a great nation from all those injudicious imposts by which its commercial exchanges are retarded and restrained, and its domestic manufactures embarrassed.²
If the increase of population is to be promoted by encouraging the marriages of the lower ranks, let every farmer be entitled to an addition of five years to the duration of his lease (whatever that may be) for the first legitimate child, and of three years for every other. Let every person whatever, not possessed of lands, and having five children, be entitled to the privileges of the Agrarian law, within a certain district.
If the improvement of agriculture is to be promoted and rewarded, let not the prize held forth to those who excel be, as it has sometimes been in France, the rank of nobility, but rather the full property, under reservation of the present rent, of those farms to which their skill and industry have been applied; and let an annual prize or prizes of this sort be proposed not for the whole extent of a great kingdom, but for every small district and neighbourhood.
If any changes are to be made in the municipal laws, relative to succession, inheritance, or the transmission of property in any other form, let them not pass unaccompanied by the introduction of some mode of the Agrarian law, extended over the estates of those persons whose interests or caprice are consulted in the intended change. Let no land estate, for example, pass to heirs of entail, nor even to collaterals in the ordinary course of succession, without becoming subject to such a law, even in its utmost extent.
53. Certain regulations which have formerly taken place, and are like enough to be renewed in flourishing states, are of such a nature, that they ought to be accompanied by the introduction of some branches of the progressive Agrarian law, as an equivalent and compensation in some degree to those orders of men whose interests are encroached on by the change; and as a very moderate deduction from the advantages of those other orders, for whose advantage chiefly such regulations are intended, two remarkable examples may be pointed out in the reduction of interest, and the corn laws.
Every reduction of interest throws a great immediate advantage into the hands of the landholders, who are in general encumbered with debts: the interest of these debts being reduced, their actual income is thereby increased; besides, this reduction increases the value of their property in land, if they are obliged to sell off a part, or the whole; and it tends to enhance the rent of farms, by determining persons who had formerly lived on the mere annual rents of their stock, to betake themselves now to some sort of industry, and to agriculture more than any other, as being that alone which men are supposed qualified to undertake, without any particular education to fit them for it.
All those laws which prohibit the importation of grain into any country, and still more those which give a premium on the exportation, are calculated to bestow great advantages on the farmer and landholder, though chiefly on the latter, at the expense of that far more numerous class of citizens, who till no land for their own behoof, and must purchase all the grain or bread consumed in their families from the landlord and the farmer, or their agents and retailers.
Commonly one-half of the slender incomes which men of this class enjoy must be expended on this indispensable article, the price of which is, by these laws, kept up one-fourth or more above its natural level.
Is it not highly reasonable, then, that the industrious poor, who are taxed in this manner, and to this amount, without their consent, for the behoof not.of the public, but of other orders of men richer than themselves, should have it at least in their power to pass with ease from that class of people, who must go to market to purchase this commodity, to the class of those who raise and have it to sell? The introduction of a progressive Agrarian law, extending over the demesnes of the crown, waste lands, and farms of too great extent, would produce this effect in no inconsiderable degree, and would at the same time essentially promote the object of all corn laws, if that object be indeed the prosperity and increase of agriculture, and not rather the profitable monopoly of the landholders.
54. It is by no means without example that the legislative power of a state, however tender of seeming to meddle with the general system of property in land, should interfere to impose some regulations on the manner of granting leases. Ireland furnishes a recent example of some importance, and the laws of many countries have, on various occasions, interposed their authority to protect the peasants from outrageous oppressions, from violent and sudden removals, and from the pretensions of a new purchaser, coming in place of their former lord.³
In this field, there is great room, without seeming to pass beyond the usual jurisdiction of municipal law, for introducing into most countries new and beneficial regulations, relative to the three essential articles of a lease, the extent, the duration, and the rent to be paid.
In respect of duration all leases ought to be of considerable length (sufficient at least for the farmer to bring up his family, and settle them around him, without being removed himself), and of uncertain termination, ending with a life. New forms, adapted to the advantage of both parties, might easily be devised; as, for example, 0 lease which might be called a lease on alternate lives, beginning with that of the lessee, and ending with the life of that person who shall have come into the place or right of the lessor, when the first life falls, or when any number of years -- 20, 30, 40, or more -- from that uncertain date have elapsed.
That the extent of the farms set in lease should be moderate, is certainly most advantageous to the community in general, and may be so adjusted as to prove not less favourable to the interest of the landlord. The rent to be paid ought always to be fixed at a determined proportion of the real or estimated* annual produce of the soil; and this proportion being determined by the letter of the law, the application of that law to each particular case ought to be committed to a jury from the neighbourhood, if either party so desire.
Leases on improvement, as they are called, if considered according to the principles of natural equity, must be accounted altogether absurd and unjust; for they avowedly take from the farmer, as his cultivation advances, a share of that increased produce to which his industry has given rise, in order to bestow it on a landlord who has contributed nothing at all to the improvement of the soil; yet, in respect of expedience, they are to be regarded as among the best and most practicable compromises, which, under that establishment of land property which now obtains, can be brought about between the exorbitant rights of the landlord and the reasonable expectations of the farmer. Various beneficial schemes of such leases have been proposed, and some carried into execution; yet great scope still remains for varying their form, and combining new stipulations in such a manner, as that both parties may be interested in the progressive improvement of the soil. But the interposition of the legislature seems necessary in most countries, to render the landholders willing to give the preference to leases of this kind.
55. By the laws of many nations, a right of redemption (jus retractus) belongs to the superior lord, or to the nearest of kin of the landholder, who sells his estate. By this right, they are entitled to redeem the land sold at the agreed price, within a limited time, commonly twelve months after the bargain has been struck; and so generally is this privilege established on the Continent, that it has been considered as a branch of the law of nations. Much more justice and much more good policy would there be, in conferring _such a right on the tenants and cultivators of the lands alienated, if, within a limited time, any number of them, not less than one-third part, could form a scheme, to be approved by the tribunals of justice, for purchasing the estate among them, by advancing one-half the price, or any other proportion required by law, and converting the remainder into reserved rents. The public ought even in justice and in policy to come to their assistance in forming such a scheme, and to advance the money wanted, on proper security to have it repaid by gradual instalments, or converted into perpetual reserved rents, which might again be sold, at no great discount of that value which had been given for them.
56. Various occurrences in the political revolutions of government have frequently stripped the ancient proprietors of large tracts of land, and thrown the absolute disposal of these lands into the hands of the rulers of the State: such are the forfeitures usually following on successful insurrections and conspiracies, the subversion of obnoxious associations, as the Templars and Jesuits; the dissolution of the monasteries, and the reformation of ecclesiastical establishments in the north of Europe. The courtiers and grandees who have been enriched on these occasions by the profusion of their sovereigns, might have been equally well gratified and attached by the donation of seignorial rights and reserved rents alone, and the property of the soil might have been all at once conferred on the cultivators, or rendered subject to the operation of a progressive Agrarian law; or indeed both regulations might have been made to take place at the same time; that is, the property might have been given to the present cultivators, but subject to future claims arising from the Agrarian law.
Such a disposal of escheated or forfeited lands may, without regard to the encouragement of agriculture and the independence of the plough, be recommended by policy of State alone, as tending to interest the lowest as well as the highest ranks in those innovations, whether justly or unjustly concerted, which the sovereign is desirous of having accomplished.
Would not, it may be asked, that great transfer of property made in Ireland by Cromwell have been almost equally acceptable to his captains and officers at the time, had it been accompanied with a progressive Agrarian law? And would not the effect of such a law, so applied, have shown itself in the most beneficial manner to Ireland long before the present age?
Had the lands left vacant by the expulsion of the Moors been distributed in full property to cultivators only, might not even Spain have recovered in a few generations the effects of that severe wound?