object of these Family Settlements is anything but the aggrandizement of the Family by preventing the alienation of their land.

54. Another great injury which the Public suffer from Family Settlements, is that which has been before referred to under the head of Registration. The length of time during which ownership is suspended brings about complexity of title, so that the land cannot be transferred without inordinate expense. The Law may be adjusted to suit the desires of great Families, but the world will not stand still for them. Deaths, marriages, births, borrowings, bankruptcies, lunacies, disappearances, and other incidents will take place during the suspense of ownership, and the history of the property drags at each remove a lengthening chain. And this operates in three ways. It makes the purchase of small properties difficult on account of the enormous proportion which the expense bears to the purchase-money. It clogs the working of a system of Registration, And as owners of small properties will ane their superiors in wealth, and make Family Settlements for themselves, often fearfully and wonderfully made, the expense of dealing with such properties and the litigation over them crushes them out of existence.

55. I have hitherto made only a bare allusion to a course of legislation begun thirty years ago with a view of palliating some of the evils produced by Strict Settlements to the Families which are the subjects of them. I have spoken of those evils as continuing ones, because, in my judgment, the chief of them do continue without so much as an attempt to mitigate them, and others are only mitigated and not removed. It is a strong testimony to the mischievous nature of Family Settlements that the Legislature has felt itself compelled, amid terrible misgivings on the part of landowners, to provide means of relaxation from the fetters imposed on property by dead men. This has been done by a series of statutes, of which the earliest was passed in 1856, and the latest in 1882. The Act of 1882 was introduced by Lord Cairns, and supported by Lord Selborne who was then Lord Chancellor. It seems to me to go as far in the way of relaxation as can be done consistently with maintaining the principle of Family Settlements. But it does maintain their principle. And as its effect is very commonly spoken of in terms which seem to me almost ludicrous in their exaggeration; as it is said to have done that which its authors, Lords Selborne and Cairns, never dreamed of and would have opposed, and to have cured the evil of settlements at a blow; I will try, not for the first time, to exhibit what it has done and left undone.

56. I will restate briefly the mischiefs above described at greater length as arising to the Families themselves and to the Public. First, as regards Families. There are still the mischiefs which struck the minds of the Judges of the sixteenth century.

(a) The Head of the Family, though in possession of the income, cannot adjust the corpus so as to provide for wife and children according to their needs.

(b) The eldest son to whom the corpus has been secured, probably when he was unborn, certainly with no regard to his character or his needs, is too free from control.

And there are other mischiefs which time has more fully developed. (c) The possessor of the land is impoverished by restrictions unsuitable to various industries.

(d) A limited owner in possession often has no interest in improving what must pass to a successor not chosen by himself;

or even

(e) Such an owner may find it to his interest to do all he can to exhaust the inheritance.

Secondly, as regards the Public. There is the old objection felt in the sixteenth century.

(f) The obligation to trace title back to the origin of the settlement created "trouble among the people": in fact it impeded transfer by insecurity of title.

And we have now to add

(g) The same cause makes all conveyancing dilatory, vexatious and costly, by compelling investigations into remote

events.

(h) The social disadvantage and political danger of artificially accumulating land in a few hands.

(i) The diminution of productiveness by the obstacles to improvement.

57. The main effect of the Settled Estates Acts culminating in 1882, is first to allow the life-owner to make sales and leases of the Settled Estate; and secondly, to allow parts of the corpus to be used in the improvement of the rest, not at the discretion of the lifeowner, but only with the sanction of a legal or official tribunal. I believe I am right in saying that all the other provisions of the Acts, so far as they are enabling ones, will be found subsidiary to the two just stated. The Acts do not in the slightest degree affect the devolution of the property. The proceeds of sales, fines on leases, portions of the rents on mining leases, must be paid to trustees or into Court, there to be held for precisely the same purposes as those to which the land was originally given.

58. Now I have enumerated nine heads of mischief.

How are

they affected by the Settled Estates Acts? There is no pretence or intention of touching those which fall under the important heads (a), (b), (d), (e), (ƒ), and (g). As between the life-owner and his wife and children he cannot consult their needs or welfare any more than before; the eldest son or remainderman is in

the same position as before; the life-owner is as liable as before to be succeeded by one to whom he is indifferent or hostile, and so to be tempted into neglecting or exhausting the property; settlements will last just as long as before, with the old results of complexity of title and impossibility of simple modes of transfer. Head (c) is, I think, effectually remedied. Head (i) is meant to be remedied, and doubtless will be to some extent, though I shall be surprised if the extent is great. First, because the motive to improvement by a lifeowner is no greater than before, as observed with reference to heads. (d) and (e). Secondly, because the sinking of capital in improvements requires official sanction; and that means applications, notices, opposition, attendance at offices, questions, answers, employment of surveyors, failures to obtain consent, and success only after delay, vexation, and great expense. To work smoothly or on a large scale, arrangements essentially private in their character should be worked at the will of the parties most concerned and not by Commissioners or Judges of the High Court of Justice.

59. There remains the important head (h) which relates to the accumulation of masses of land. The Act of 1882 enables the lifeowner to sell at his own discretion, whereas before he could only do it with the sanction of the Court of Chancery. The change is a good one; but how will it affect accumulations, or bring land to sale in small parcels? I understand that its operation as yet has been small. But the state of the market has not been favourable, and anyhow many more years must pass before it can be known whether in this respect the new law has a wide or a narrow effect. The motive to sell is about the same as before. The ordinary motive for selling land is to have free use of the purchase-money; and that the life-owner cannot have. Why should he sell? He may do so with the view of increasing his income by some more lucrative investment; but the range of such investments proper for trustees is limited, and, if much more sought after for trust money, will rise in price, and yield little more than the land. He will not go through a disagreeable and troublesome change for the sake of a trifling gain, especially when accompanied by greater risk. Or he may sell to pay off incumbrances on the settled estate. But that he has been able to do for thirty years under the sanction of the Court; and, though many families have found relief in that way, it has produced no appreciable effect on the distribution of land. He can now do the same thing with some less amount of trouble and expense, and that, though not unimportant, is all. Finally, he may sell part of the settled land to improve the rest; and I have just shown how unlikely it is that such a thing will be done on a large scale.

60. As the process of the Settled Estates Acts is in no case to diminish the value of the settled property: as it is only to diminish

the quantity of settled land, either when the price of what is sold is spent in disencumbering or in improving what is left, or when it is invested in the prescribed securities which then are for all purposes of transmission or devolution to take the quality of land: how is it possible to suppose that it will turn any large quantity of fettered land into free land? Even under the Statute of Entails the Courts held that entailed land might be validly transferred by means of a Recovery if the possessor transferring it compensated his issue* by providing or allowing other land to devolve upon them. That was taking a great liberty with the Statute, because under its terms the issue was entitled to the very land entailed. But, as we have seen (parr. 29, 30, 31), it did not suffice to prevent the mischief of evergrowing fetters on land. It was not until the decision in Taltarum's case, after which entailed estates could be transferred by Recoveries without any compensation at all, that English land was set free.

61. The result is that the effect of the Settled Estates Acts will probably be insignificant except to interpose a little ease for life-owners in possession of settled estates especially when incumbered. Land will never be handled by those who have only a very closely restricted use of the purchase-money with anything approaching the freedom, promptitude or energy of those who can use the money as they please. The Settled Estates Acts have preserved the principle of settlements almost intact, only modifying it in some cases where injury from it accrued to the Families themselves. If indeed they had the effect which some speakers and writers have attributed to them, the effect which Taltarum's case had on entails under the statute, what a satire it would be upon our legislation. We should be convicted of keeping on our statute-book one law under which a testator may suspend full ownership during all existing lives and twenty-one years besides, and of placing by its side another law which says that the moment he has done so the first comer may destroy his work. Judges may do such a thing, as our Judges did in Taltarum's case, and not incur any charge except that of usurping legislative functions; but a Legislature that did it would be guilty of weakness and folly. As it is, we have only gone on the principle which has been common in England, and for which a great deal may be said, of attacking symptoms before dealing with the seat of the malady. The Settled Estates Acts are good as palliatives, and good as proofs of the corruption of the tree that produces such bad fruit, but they are nothing more.

62. With regard to the amount of land which is comprised in Family Settlements we have no evidence, and the most extraordinary

* I pass over the effect of a collateral warranty, though it would add some strength to this argument. Lord Coke calls the learning of warranties "one of the most curious and cunning learnings of the Law." It may be: but one is glad to turn to Law that has less intricacy and more connection with Justice.

discrepancies of opinion have been expressed. I have elsewhere* assigned my reasons for thinking that a very large portion of the land of England was before 1882 legally unsaleable by reason of settlements coupled with other rules of law. Since 1882 nearly all land must be legally saleable, but I have been showing that practically the case is little altered.

63. Lord Coke, as quoted above (par. 29), speaks, probably with some hyperbole, of all the possessions of England being fettered by the Statute of Entails. Yet in those times men could only entail by means of a deed taking effect in their lifetime. It was not till Henry VIII.'s reign that the more handy and powerful instrumentality of wills was called into full effect. The excessive love of the dying lord for his lordship has been a theme both for lawyers and for poets. An eminent conveyancer writes thus: "Perhaps these restrictions most frequently spring from the desire to exert a posthumous control over that which can be no longer enjoyed. Te teneam moriens' is the dying lord's apostrophe to his manor, for which he is forging those fetters that seem by restricting the dominion of others to extend his own."

Pope treats the same strong passion as one of those that rule in death. The Lord of the Manor and his lawyer are conferring together over his will.‡

"I give and devise,' old Euclio said

And sighed, 'My land and tenements to Ned.'
'Your money, sir?' 'My money, sir-what all?
Why, if I must '-then wept-'I give it Paul.'
'The manor, sir?' 'The manor! hold,' he cried.
'Not that I cannot part with that'—and died."

It is true that modern entails keep wearing out, so that land is constantly becoming free as well as fettered; but the powerful motives I have referred to, finding so swift and secret an instrument as a will to work with, are always, as I believe, forging more fetters than time eats away.

64. If I am substantially right in the foregoing remarks, it is proved that our land system produces some very bad effects; that there is no benefit from it to set off against those bad effects; that it has never been established by the Legislature, except so far as it can be extracted from the Statute of 1285; that so far as the Legislature has addressed itself to the subject since 1285, it has been in the direction of freedom and not of restriction; and that its recent efforts to abate the mischief by two separate lines of attack, viz., Registration and Settled Estates Acts, have been, as regards the

"The Dead Hand," pp. 174-6. +"Jarman on Wills," 3rd ed. p. 226.

"Moral Essays," I. 11. 256-261.

§ The motives pointed out by the Poet and the Lawyer must always be taken as working in subordination to the master motive of aggrandizing the Family—a point on which I have observed later on: in parr. 76, 79.