Chapter VI

The Family and the State in England

It is notable that in England at the present day neither the Family in general nor the law of inheritance attracts much attention either from statesmen or from economists. In the past, indeed, the system of Primogeniture has been made to play a most effective part in determining the social history of the people; and it still holds its own, both as a custom and as the law of intestacy, with respect to the inheritance of land. But comparatively few Families in England are now directly affected by regulations or customs attaching to the inheritance of land. Amongst a peasantry whose sole opportunity of making a livelihood lies in the actual possession of land, it is of vital importance whether or not each member of a Family can in some way share in that opportunity; but to a people long accustomed to regard their living as depending upon their wageearning capacity, questions of the inheritance of landed property become of minor importance. In England for the great mass of the people their dependence upon the land is so indirect and remote that the introduction of such a law as the Prussian "Anerbenrecht" would have no appreciable effect upon their lives. A law of equal division, as in France, would be applicable, of course, to all Families possessing movable property, as well as those possessing land; but here again the English workingclasses depend so much less upon the investment of capital than upon their individual skill and capacity as wage-earners, that such a law would have little effect either in increasing or diminishing their prosperity. That could only really be touched by legislation which should affect either the source of those qualities upon which they mainly depend for earning a living, or the industries in which those qualities are available.

In so far, indeed, as agriculture is one amongst other industries, any legislation affecting the distribution of land would also indirectly affect the position of the wage-earners employed upon it. If more land is made available for agricultural purposes, the demand for agricultural labourers may increase, and their position improve. If, again, the acquisition of small holdings is encouraged, we may possibly revive a class of peasantry in direct dependence upon the land, to whom the law of inheritance may once more become of importance. It is possible, therefore, that the time may yet come when Statesmen in England will, as on the Continent, turn their attention to the question of controlling the descent of property in the Family.

If we turn to the history of the question in England we find, on the contrary, that the relation between the Family and its property has been in the past a matter of anxious consideration to Statesmen, and in later times to economists. The history, taken in its broad outlines, starts from the position of the Anglo-Saxons. We have already seen how land may be possessed either in common by all members of a community, or by the Family, or by the individual. Amongst the Anglo-Saxons much of the land was held in common by the village communities- public property. But what private property there was belonged not to the individual but to the Family. "The economic unit amongst the Anglo-Saxons, as amongst other peoples at an early stage of culture, was not the individual but the household. The property was the common property of all members of the household; all together were responsible for the action of each; the claims of one were the claims of all; industry was carried on in common under the guidance of the eldest or father of the family."¹

It followed from this common possession of the property by the Family that there was no inheritance, properly speaking. When the chief died the Family did not die. It continued as before to hold and work the land in common, only under the guidance of a new chief. But should the Family break up, and cease therefore to exist as an economic unit, then the property would be equally divided amongst the male members; and inasmuch as such a dissolution would tend to take place, if at all, at the death of the chief by whose authority it had been ruled, the division of the property might not unnaturally come to be regarded in time as a form of inheritance from the father. But originally it would seem that when a division took place the dead man himself was assigned his share: a share which took the form of animals to be sacrificed or articles to be buried with him, and which was in later times diverted to the Church, as payment for attending to the welfare of his soul. We find the same feeling, if not actually a relic of the same custom, amongst many of our people to-day, in the pompous funeral rites which are held to be the dead man's due from the surviving members of his Family.

But there was always one portion of the family property which was not susceptible of division, and that was the homestead. Not only amongst the Anglo-Saxons, but also amongst the Celts (notably in Wales) it was customary for this to be assigned to the youngest son. Various explanations have been given for this custom (known as borough-English), and all seem to point to the fact that the elder sons had left the Family before the death of the father. In that case, whether they had already received their full share of the property or not, they would have made their own homes, and it was natural that the old homestead should fall as his share to the son who had remained longest under the rule of his parents. But even after division had become prevalent, the holders of the divided property were held to be incapable of disposing of their shares without the consent of the relations; they could not, therefore, dispose of them by will. At the time of the Conquest this inflexible tie between the Family and its property had somewhat relaxed, Brentano thinks under the influence of the Church, which would be likely to profit by the freedom of the individual to bequeath to it some of the family property; but the prevalent form of inheritance continued to be equal division amongst male children, with the homestead going as his share to the youngest son.

From this to the system of Primogeniture, which gave the property to the eldest son with total or partial exclusion of the remaining children, was surely one of the most striking of the many changes introduced by the Norman Conquest. It could hardly have been imposed even upon a conquered people unless there had been some circumstances to soften the abruptness of the change, and make it seem, to a certain extent, in accordance with the custom of the people. Perhaps the principal mediator would be the old conception of the Family as a community, which still maintained its interest in the family property as a whole, even after its actual appropriation to individual use. This conception made its influence felt amongst the Anglo-Saxons in the restrictions imposed upon the individual in the disposal of his land; and amongst their Norman conquerors in the exertions made by the feudal head of the Family to promote the fortunes of the younger branches. The feudal system was not originally inconsistent with the equal division of the property amongst sons. Brentano quotes from the libri feudorum : "Vasallo mortuo ad filios aequaliter pertinet feudum."² But even after Primogeniture had become firmly established as custom, and for a time even as law, the head of the Family and its junior branches have continued to regard themselves more or less as a community with common interests. It is, of course, a long step from a community in which the property is merely managed by the head in the interests of all to one in which it is owned by the head, even though he may continue to bear the interests of all in mind; but the moral sense of the people might be less offended by such a step than by a change which would have brought about a complete dissolution of the Family.

In the second place, the people were already, to some extent, prepared for the preference of one son above the others by the custom of borough-English. The homestead, which went to the youngest son, must always have seemed the most important share of the inheritance, as being the centre, not only of the property, but also of the whole family tradition, history, and association. And in the disturbed and dangerous times which followed upon the Conquest the concentration of power in the hands of the eldest, and therefore presumably the strongest member of the Family, might come to be recognised as an advantage even by the younger sons themselves.

But the change in the family organisation was due, for the main part, to the fact that the chief ownership of the land had itself changed. Instead of belonging directly to Families, it now belonged to the king. "Land was held by the Church in return for dues of prayer or praise, by the knight in return for military service, by the small freeman in return for service and rent." And when land was thus held as a fief, it became necessary for the Family to select a representative to be invested with it; this representative was the eldest member, and from him the remaining members of the Family held their share of the inheritance as tenants. "From this function of the eldest member as chief ruler of the family estate there developed gradually an exclusive right, i.e. Primogeniture."

It was with respect to land granted to the Normans that the new method of inheritance first prevailed; the obligation to preserve the property intact being imposed as a source of strength to the Family, which would enable it to hold its own against a conquered but hostile people. Amongst the Saxons the ultimate ownership of the land passed also to the Crown, and those who had previously been owners of small freehold properties (socage land) now held them from a feudal lord in return for services and dues. Here, however, the Crown had no object in enforcing a strong organisation, and the custom of equal inheritance was preserved for two hundred years after the Conquest.³ "But the judges were in favour of the feudal system. Where it could not be expressly proved that equal inheritance had prevailed in the past, they presumed in favour of Primogeniture. But no such proof was forthcoming when a Family had so far held together and no division had taken place within the memory of man. So here also, before the end of the thirteenth century, Primogeniture triumphed, except in Kent, where equal inheritance by the sons-the special mark of Saxon freedompersists until to-day." Even in Kent many lands have now been "disgavelled" by the wish of the owners, and subjected to the ordinary law of Primogeniture.⁴

Amongst those of the peasants who held their land on servile tenure there was originally no inheritance, even by the Family as a whole. They worked the land in the interests of their lord, and he was sole heir. Gradually it was found convenient to recognise the succession of the children to the land worked by their fathers; but it was always the Family as such which succeeded. But should the Family break up, then the land passed intact-for the lord would not permit division-to one son, and this son, in analogy to the custom of borough-English, was the youngest. "The succession of the youngest was so universal amongst the serfs as actually to stand for a mark of servitude. It was for this reason that it disappeared, with few exceptions, in the course of economic progress. The commutation of services into money payments begins with the twelfth century. In the thirteenth and fourteenth centuries it forms the chief feature of the social development of the country. And it is characteristic that with this substitution of money payments for services there appears also the change in the system of inheritance. Instead of the succession of the youngest, which had become a mark of servitude, the aristocratic system of Primogeniture prevails,"⁵ and with Primogeniture there emerges also the problem of the younger brother.

We see, then, that in England also Primogeniture was introduced by the State as a definite policy, designed to strengthen the ruling powers by the creation and maintenance of great Families, able to hold their own in a hostile country. It was a practical recognition by Statecraft of the close relation between the Family and the State, a relation which was to vary through succeeding centuries between mutual support and the deadliest conflict, and which led to constant efforts on one side or the other to diminish or enhance the greatness of the Family; and it must be borne in mind that though the State has concerned itself little in the past with the family life of the great mass of the people, yet no policy affecting the nobles, no privilege conceded to or blow struck at the "great Families" could be altogether without effect upon the more obscure. We have just seen how the introduction of Primogeniture spread through all classes down to the lowest. Even more important to the welfare of the people, though less direct in its action, was the distribution of land effected by the varying success and failure of the great Families to maintain their estates intact and secure their transmission to their heirs.

Instead of following the whole course of legislation and custom in respect to Primogeniture in England and its effect upon the Family, it will be sufficient for the present purpose to select some of the more characteristic moments as illustrations. The first of these is the creation of entails in 1285 by the Act known as de donis conditionalibus. This was a measure introduced by the greater feudal lords and the Crown to secure that the estates granted by them should pass intact to the direct descendants of the man to whom they were originally granted, and failing the direct heir should revert to the lord, "the owner of land which had been granted to him, and his heirs could no longer alienate the estate or burden it with debt, either wholly or partially, for longer than his lifetime; he became the mere life user of the property, and after his death it passed to his eldest son, who then found himself in the same legal position. On the other hand, the estate could not be confiscated for high treason for longer than the lifetime of the present owner." A clause of special importance this to the feudal lord, who naturally resented seeing his property confiscated by the Crown because of his tenant's misbehaviour.

Economically the effect of the law was reactionary. It secured, indeed, the feudal lords in their rights over their tenants, and against any possible diminution of the extent of their influence in so far as this arose out of landed property. But it also, at a time when there was a great movement towards the more intensive cultivation of land, secured that estates should remain under the control of one line of men, quite irrespective of their capacity or desire to improve them. And its effect upon family relations and the education of the young would seem to have been still worse. Bacon writes of this in terms which seem to justify all Le Play's arguments in favour of maintaining a father's authority by preserving his liberty of bequest: "Entails began by a statute made in Edw. I.'s time; by which also they are so much strengthened, as the tenant in tail could not put away the land from the heir by any act of conveyance or attainder, nor let it nor encumber it longer than his own life. But the inconvenience thereof was great; for by that means, the land being so sure tied upon the heir as his father could not put it from him, it made the son to be disobedient, negligent, and wasteful, often marrying without the father's consent, and to grow insolent in vice knowing that there could be no check of disinherison over him. It also made the owners of land less fearful themselves to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt the heir in his inheritance. It hindered men that had entailed lands, that they could not make the best of their lands by fine and improvement; for that none, upon so uncertain an estate as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land that might yield rent improved : and, lastly, these entails did defraud the Crown and many subjects of their debts; for that the land was not liable longer than his own lifetime; which made that the king could not safely commit an office of account to such whose lands were entailed, nor other men trust them with loans of money." ⁶

This represents the high-water mark in England of what we may call the subjection of the Family to its property, its inability to handle it freely in the interests of the living, and at the same time of the greater security of the Family itself against dissolution or obscurity. Notwithstanding the great and obvious disadvantages of the situation, the nobles were strenuously opposed to any legislative change, because of the protection afforded to them against confiscation by the Crown; and when they desired greater freedom in dealing with their land, they contented themselves with evading the law by means of legal subtleties. But as time passed on the nobles ceased to be the pillars of the State; the Crown came to regard the great Families as rivals rather than allies, and under Henry VIII. permanent entails were made finally impossible in England.⁷ Laws were passed also which made it possible for landowners both to sell their land during their lifetime, and to dispose of it by will at death : "So it came to pass that from the end of the fifteenth to the end of the seventeenth century landowners had practically complete freedom of dealing with their land, both during life and at death. But those are the two centuries in which, for the first time in England, the transition to more intensive occupation of the land took place to any extent, while at the same time England could boast of a numerous and free class of small farmers."

In saying this Brentano probably attributes more prosperity to the freeing of the land than is warranted by the industrial history of England. One great feature of the earlier part of the period in question was the rapid growth of sheep-farming, in consequence of which many small holders were turned out of their farms, and the land thrown into great sheep-walks. But when once the land was freed there was always the probability of its being put to good use, since those who could not make it support them would sell to those who could.

Under the Tudors, then, the policy of the Crown was directed towards weakening the great Families, and in this policy it looked for its main support to the people. Hence the legislation prohibiting entails, which had for its effect the loosening of that tie between a Family and its property which previously served to maintain the ascendency of a noble Family against the weakness due to division, or against the dissoluteness of any one member.

But under the Stuarts the policy was again reversed; once more the aristocracy prevailed and were able to legislate in their own interests. For us the significant feature of the change lies in the reintro duction of entails; in England under the modified form of "Settlements" in the reign of Charles II., and in Scotland as permanent entails under James II. In both cases Brentano attributes the movement in the first instance to the need felt by the nobles of protecting their estates against confiscation for high treason: "But even after the need of protecting themselves against confiscation for high treason had passed, both the new-fashioned English and the oldfashioned Scottish entails could not fail to be acceptable to large proprietors. The limitations on alienation and indebtedness which they imposed upon the proprietor undoubtedly served to enrich at least one member in the family in each generation. And the more aristocratic the Government of Great Britain became, the greater would be the influence of this one member if he were very rich."

During the last century the Family has lost much of its political importance in England. It is true that the ideas of the Crown and of the Royal Family are inseparably connected in the English mind; but the Crown, as represented by the Royal Family, no longer needs to maintain its supremacy either through the assistance of, or in conflict with, the other great Families of the nation. On the other hand, the possibilities of being involved in high treason are so remote, that the great Families no longer need to protect their estates from confiscation by devices of settlement and entail. Nor is there any serious political rivalry between them and the people. The Cecils may continue to have periods of predominance in political administration; the House of Elder Sons may now and again succeed in placing a check upon some popular legislative proposal; but all are well aware that their influence is maintained only in the interests of the nation as a whole, and cannot be permanently at variance with the popular will. If any serious conflict of interests remains between the persistence of the aristocratic principle of Primogeniture and the democratic principle of the equality of brothers, we must look for it in the spheres of social and economic life rather than of politics.

It was in relation to the land question that an economic conflict first became pressing and obvious. Adam Smith represented it as follows: "In Europe the law of primogeniture and perpetuities of different kinds, prevent the division of great estates, and thereby hinder the multiplication of small proprietors. A small proprietor, however, who knows every part of his little territory, who views it with all the affection which property, especially small property, naturally inspires, and who upon that account takes pleasure not only in cultivating but in adorning it, is generally of all improvers the most industrious, the most intelligent, and the most successful. The same regulations, besides, keep so much land out of the market that there are always more capitals to buy than there is land to sell, so that what is sold always sells at a monopoly price. The rent never pays the interest of the purchase money, and is besides burdened with repairs and other occasional charges to which the interest of money is not liable. If landed estates, however, were divided equally among all the children, upon the death of any proprietor who left a numerous family, the estate would generally be sold. So much land would come to market that it could no longer sell at a monopoly price. The free rent of the land would go nearer to pay the interest of the purchase money, and a small capital might be employed in purchasing land as profitably as in any other way."

Here then was a clear case of conflict between the Family and the community, in so far as the Family found it essential to its maintenance to preserve its hold upon the land by means of Primogeniture, and in so far as any considerable section of the community was in fact debarred from making its livelihood upon the land. Why was it that such a clear conflict was so slow to lead to any reconciling change? Brentano suggests the following causes.

In the first place, the French Revolution with all its terrors had included the abolition of Primogeniture and entails. Hence there was a reaction in England, a reaction perhaps of feeling rather than of reason, in favour of leaving the old order undisturbed notwithstanding its disadvantages.

In the second place, the class of small cultivators which Adam Smith had in mind, and which would mainly have profited by the breaking up of landed estates, had already disappeared to a large extent.

Again, the increasing tendency towards cultiva tion on a large scale, due to the introduction of new methods, was all in favour of large estates rather than small holdings. The significance of this change may be estimated by comparing the following passages from A. Smith and Froude, the latter written just a hundred years after the former.

A. Smith, bk. iii. chap. ii. (1776)-" It seldom happens, however, that a great proprietor is a great improver. To improve land with profit, like all other commercial projects, requires an exact attention to small savings and small gains, of which a man born to a great fortune, even though naturally frugal, is very seldom capable. The situation of such a person naturally disposes him to attend rather to ornament which pleases his fancy, than to profit for which he has so little occasion. The elegance of his dress, of his equipage, of his house, and household furniture, are objects which from his infancy he has been accustomed to have some anxiety about. The turn of mind which this habit naturally forms, follows him when he comes to think of the improvement of land. He embellishes perhaps four or five hundred acres in the neighbourhood of his house, at ten times the expense which the land is worth after all his improvements; and finds that if he was to improve his whole estate in the same manner, and he has little taste for any other, he would be a bankrupt before he had finished the tenth part of it. There still remains in both parts of the United Kingdom some great estates which have continued without interruption in the hands of the same family since the times of feudal anarchy. Compare the present condition of those estates with possessions of the small proprietors in their neighbourhood, and you will require no other argument to convince you how unfavourable such extensive property is to improvement."

Froude, On the Uses of a Landed Gentry (1876)— "And the farther what is called the land monopoly is carried, the more, that is, the small estates are absorbed in the large, the better these duties will be performed. I don't know how it may be in Scotland, but I know that in England you can tell by the look of the country which you are passing through whether it belongs to a large landowner or a small one. Compare an estate owned by one man with a hundred thousand a year, and a similar estate divided among a hundred owners with a thousand a year each. On which of these will the working tenants find themselves best off? The one great man's establishment may be expensive, but after all it is but one. The expenses of the most splendid household will not reach a hundred thousand a year, or half that sum, or a quarter of it. The great man is on a pedestal. If he is evil spoken of, his pedestal becomes a pillory. Therefore he does not press his rights when he might press them. The customs of the manor are generally observed. Farm buildings are kept in good condition, fences are in good repair, cottages have roofs which will keep the rain out. You find churches, you find schools, you find everything which public opinion demands or approves. Turn to the estate which is divided between the hundred less conspicuous proprietors. Will an equal margin of income be forthcoming for improvements? Will there be the same consideration for tenants and labourers? There cannot be, because a hundred private establishments have to be supported instead of one, and a hundred families struggling to maintain the position of gentry with inadequate means. By them every farthing which their estate will yield is required for their ordinary expenditure. They are embarrassed. They must borrow. Their obvious duties are left undone. You read the story in unmended fences, in broken gates, in decaying farmhouses. At length a crisis comes, and unless entail interferes the land is sold to some one who can better afford to keep it."

Froude's estimate of the advantages of large estates may be an exaggerated one, but it certainly represents one of the reasons why there has not been more change in the direction of subdividing landed property. Still another reason may be found in the fact that the enormous growth of manufacturing industries and commerces, bringing life in the towns and the possibilities of early marriage, afforded more attractive opportunities to the mass of the people than the cultivation of small holdings, and so prevented any popular demand for legislation. Moreover, in England at any rate, and to some extent in Scotland, the exclusion of the people from the possession of the land does not necessarily mean its exclusion from the occupation and cultivation of the land; and should any considerable demand arise for "small holdings" from people capable of cultivating them, it is unlikely that any vested interest will be allowed to stand in the way of the satisfaction of that demand. The policy of "back to the land" is likely to find a far more serious obstacle in the almost complete estrangement of the present generation from a country life, than in the scarcity of available land. The latter can always be overcome, if need be, by legislation; the former only by a change in deeplyrooted habits and capacities.

Nevertheless, in the first half of the last century the monopoly became serious. At the beginning of the century it was shown that more than half the land in Scotland was entailed in a few hands, and hardly any was to be purchased. An attempt was made to modify Scottish entails to the less strict and less permanent form of English Settlements, but it was rejected by the House of Lords.

Under the English system of Settlements the entail is broken every generation and the land resettled; an opportunity being thus afforded to provide, at the heir's expense, for the widow and younger children, as well as for improvements of the property. For a long time this was regarded, says Brentano, as the ideal system of inheritance, as a pillar of the constitution, both by the members of the aristocracy themselves and by those who stood outside. But it could not permanently stand the test of changing public opinion and economic development. In 1873 the New Domesday Book was compiled, to ascertain the facts about the ownership of land. It appeared that in England and Wales four-sevenths of the land was owned by 4000 persons, and almost a half by 2250; while in Scotland one man alone possessed 1,326,600 acres, and almost a quarter of the land belonged to twelve persons, and half of it to seventy. details, when looked into, do in part bear out what the agitators complained of. The House of Lords does own more than a third of the whole area of Great Britain. Two-thirds of it really belongs to great peers and commoners, whose estates are continually devouring the small estates surrounding them. The remaining third, in and about the great towns, is subdivided, and the subdivision is continually increasing, but the land there also is still falling mainly into the hands of the rich."⁸ It is little wonder that public opinion was impressed and sought for some means to check the growing monopoly. And public opinion was reinforced by the increasing difficulties of the landowners themselves. They were finding that their land demanded more and more investment of capital, while it was becoming more and more burdened with charges in favour of others than the heir. The conflict between the interests of the younger children and those of the eldest son, who would chiefly benefit from improvement of the estate and needed capital to work it to advantage, became acute; and it is principally to this conflict and its effect upon the minds of the landowners themselves that Brentano attributes the "Settled Land Act" of 1882. By this Act the owner for the time being of a Settled Estate is enabled to lease or sell at his discretion the whole or part of his estate, having regard to the interest of all parties entitled under the Settlement. The only part excepted from his discretion of sale is the principal residence with the park belonging to it. "This does not mean that the right to make Family Settlements and to entail property has been abolished. That continues as before. But for the purposes of entail land is treated exactly as other forms of capital. Entailed land can be converted at any moment into any other kind of property. Thus the fettering of the land by entails is abolished." ⁹

With this great change there disappeared the principal reason for which the law of intestacy enforcing Primogeniture with respect to land had been maintained. It could no longer be argued that the inviolable connection between a Family and its landed property was the necessary basis of an aristocracy; and in both Houses of Parliament bills have been approved, though they have not passed into law, which would have introduced the equal division of land, as of other property, in cases of intestacy.¹⁰ With respect to land, therefore, Primogeniture still persists, as a custom recognised though not enforced by law. It is not unlikely to continue; for with the Settled Land Act there disappeared not only the reason for it, but also the principal reason

against it. The ability of the owner to part with land which he cannot profitably cultivate removes the chief source of conflict between the supposed interests of the Family and those of the community; and that being so, the public is little inclined to interest itself in the domestic question whether a father will treat all his children alike, or favour the eldest at the expense of the others.

Thus the question is losing its economic significance and seems chiefly of domestic interest; but socially it still retains importance. There can be no doubt that there tends to be a different type of social organisation, as well as the development of a different type of character, where a pre-eminent position in the Family is secured to the eldest son by endowing him more liberally with money, and by giving him a different education from the rest of the rising generation. "It would be difficult," writes Mr. Courtney, "to exaggerate the tenacity with which this system has driven its roots into English society, and the importance of its influence over the working of the constitution. Profoundly conservative forces abide and flourish under it. Although the institution of County Councils and the reform of District Councils have taken away many of the administrative functions of county magistrates, their judicial influence is practically intact, and it is from the owners of land that the magistrates are mainly recruited. What has been called the squirearchy is thus maintained over great parts of England, and an order has been established, entrance into which is an object of ambition to members of the industrial and commercial classes as they grow wealthier, and continuance in which is jealously guarded on the part of those who have been born into it. The power of keeping together and handing down from father to son a sufficient endowment of property is almost a necessary accompaniment of the existence of any hereditary honours; and the security of the House of Lords, in which legislative privileges are hereditary along with titles of honour, would be seriously menaced if it were not buttressed by the influences derived from the possession of large estates spread throughout the country."¹¹

Whether such a system is in the interests of the community is a question which has been argued from many points of view, and will continue to be argued so long as the system endures. The further question of how far it is in the interests of the favoured eldest son himself, and of how far injustice is inflicted upon the younger sons, involves further consideration.

Notes