Land Tenure

§ 1. In early times, and in some backward countries even in our own age, all rights to property depend on general understandings rather than on precise laws and documents. In so far as these understandings can be reduced to definite terms and expressed in the language of modern business, they are generally to the following effect:—The ownership of land is vested, not in an individual, but in a firm of which one member or group of members is the sleeping partner, while another member or group of members (it may be a whole family) is the working partner.

The sleeping partner is sometimes the ruler of the State, sometimes he is an individual who inherits what was once the duty of collecting the payments due to this ruler from the cultivators of a certain part of the soil; but what, in the course of silent time, has become a right of ownership, more or less definite, more or less absolute. If, as is generally the case, he retains the duty to make certain payments to the ruler of the State, the partnership may be regarded as containing three members, of whom two are sleeping partners105 .

The sleeping partner, or one of them, is generally called the proprietor, or landholder or landlord, or even the landowner. But this is an incorrect way of speaking, when he is restrained by law, or by custom which has nearly the force of law, from turning the cultivator out of the holding by an arbitrary increase of the payments exacted from him or by any other means. In that case the property in the land vests not in him alone, but in the whole of the firm of which he is only the sleeping partner, the payment made by the working partner is not a rent at all, but is that fixed sum, or that part of the gross proceeds, as the case may be, which the constitution of the firm binds him to pay; and, in so far as the custom or law which regulates these payments is fixed and unalterable, the theory of rent has but little direct application.

§ 2. But in fact the payments and dues, which custom is supposed to stereotype, nearly always contain elements which are incapable of precise definition; while the accounts of them handed down by tradition are embodied in loose and vague impressions, or at best are expressed in words that make no attempt at scientific exactness.

We can watch the influence of this vagueness in the agreements between landlord and tenant even in modern England; for they have always been interpreted by the aid of customs, which have ever been imperceptibly growing and dwindling again, to meet the changing exigencies of successive generations. We change our customs more quickly than our forefathers did, and we are more conscious of our changes and more willing to convert our customs into legal enactments, and to make them uniform107 .

At the present day, in spite of minute legislation and carefully drawn agreements, there remains a wide margin of uncertainty as to the amount of capital which the landlord will from time to time invest in maintaining and extending the farm buildings and other improvements. It is in these matters, quite as much as in his direct money relations with the tenant, that the generous and liberal landlord shows himself; and, what is specially important for the general argument of this chapter, alterations in the real net rent required of the tenant are as often made by a quiet readjustment of the shares of the expenses of working the farm that are borne by the landlord and the tenant as by a change in the money rent. Thus corporate bodies and many large private landowners often let their tenants go on from year to year, without any attempt to make the money rents follow the changes in the real letting value of the land; and there are many farms which are not let on lease and yet the rent of which has nominally remained unchanged during the agricultural inflation which culminated in 1874, and during the depression which followed. But in the earlier period the farmer, who knew he was under-rented, could not put pressure on his landlord to lay out capital in drainage or new buildings or even in repairs, and had to humour him as regards the game and in other matters; while just now the landlord, who has a steady tenant, will do many things, that are not stipulated for in the agreement, in order to retain him. Thus, while the money rent has remained stationary, the real rent has changed.

This fact is an important illustration of the general proposition, that the economic theory of rent, the Ricardian theory as it is sometimes called, does not apply to modern English land tenure without many corrections and limitations both as regards substance and form; and that a further extension of these corrections and limitations will make the theory applicable to all forms of Mediæval and Oriental land tenure, in which any sort of private ownership is recognized. The difference is only one of degree.

§ 3. But the difference of degree is very great. This is partly because in primitive times and backward countries the sway of custom is more undisputed; partly because, in the absence of scientific history, shortlived man has little better means of ascertaining whether custom is quietly changing, than the fly, born to-day and dead to-morrow, has of watching the growth of the plant on which it rests. But the chief reason is that the conditions of partnership were expressed in terms which were seldom capable of exact definition and measurement.

For the share of the senior partner in the firm, or the landlord as we may for shortness call him, generally included (either with or without a right to a certain share of the produce) the right to claim certain labour services and dues, tolls and presents; and the amount which he obtained under each of those heads varied from time to time, from place to place, and from one landlord to another. Whenever payments of all kinds made by the cultivator left him a margin beyond the necessaries of life for him and his family, together with those comforts and luxuries which were established by custom, the landlord was likely to use his superior strength to raise the payments in some form or other. If the chief payments were a certain share of the produce, he might increase that share: but, as that could seldom be done without an appearance of violence, he would be more likely to increase the number and weight of his minor imposts, or to insist that the land be more intensively cultivated, and a larger part of it be given to crops that cost much labour and are of great value. Thus changes went on, smoothly for the most part, silently and almost imperceptibly, like the hour-hand of a clock; but in the long run they were very thorough.

The protection which custom afforded to the tenant was not indeed unimportant even as regards these dues. For he always knew pretty well what demands he would have to meet at any particular time. The moral sense of all around him, high and low, protested against any attempt on the part of his landlord to make a sudden and violent increase in the payments and dues, the tolls and fines which were recognized as usual; and thus custom rounded off the edges of change.

It is moreover true that these vague and variable elements of rent were generally but a small part of the whole; and that in those not very rare cases in which the money rent remained fixed for very long periods together, the tenant had a kind of partnership in the soil, which he owed partly to the forbearance of his landlord if it happened that the true net value of the land had risen, but partly also to the constraining force of custom and public opinion. This force in some measure resembled the force which holds raindrops on the lower edge of a window frame: the repose is complete till the window is violently shaken, and then they fall together; and in like way the legal rights of the landlord which had long lain latent were sometimes brought suddenly into action in a period of great economic change.

§ 4. The question whether the payments made by the cultivator for the use of his land should be reckoned in money or in produce is of growing interest with reference to both India and England. But we may pass it by for the present and consider the more fundamental distinction between the “English” system of rental and that of holding land on “shares,” as it is called in the New World, or the “Metayer110 " system as it is called in the Old.

In a great part of Latin Europe the land is divided into holdings, which the tenant cultivates by the labour of himself and his family, and sometimes, though rarely, that of a few hired labourers, and for which the landlord supplies buildings, cattle and, sometimes even, farm implements. In America there are few agricultural tenancies of any kind, but two-thirds of those few are small holdings let out to white men of the poorer class, or to freed negroes, on some plan by which labour and capital share in the produce111 .

This plan enables a man who has next to no capital of his own to obtain the use of it at a lower charge than he could in any other way, and to have more freedom and responsibility than he would as a hired labourer; and thus the plan has many of the advantages of the three modern systems of co-operation, profit sharing, and payment by piece-work112 . But though the metayer has more freedom than the hired labourer he has less than the English farmer. His landlord has to spend much time and trouble, either of his own or of a paid agent, in keeping the tenant to his work; and he must charge for these a large sum, which, though going by another name, is really earnings of management. For, when the cultivator has to give to his landlord half of the returns to each dose of capital and labour that he applies to the land, it will not be to his interest to apply any doses the total return to which is less than twice enough to reward him. If, then, he is free to cultivate as he chooses, he will cultivate far less intensively than on the English plan; he will apply only so much capital and labour as will give him returns more than twice enough to repay himself: so that his landlord will get a smaller share even of those returns than he would have on the plan of a fixed payment.

This is the case in many parts of Europe, in which the tenant has practical fixity of tenure; and then it is only by constant interference that the landlord can keep up the amount of labour he puts on his farm, and keep down the use he makes of the farm cattle for outside work, the fruits of which he does not share with his landlord. But even in the most stationary districts the amount and quality of the stock which custom requires the landlord to provide are being constantly, though imperceptibly, modified to suit the changing relations of demand and supply. And if the tenant has no fixity of tenure, the landlord can deliberately and freely arrange the amount of capital and labour supplied by the tenant and the amount of capital supplied by himself to suit the exigencies of each special case114 . It is obvious then that the advantages of the metayer system are considerable when the holdings are very small, the tenants poor, and the landlords not averse to taking much trouble about small things: but that it is not suitable for holdings large enough to give scope to the enterprise of an able and responsible tenant. It is commonly associated with the system of peasant proprietorship; and we may consider that next.