impossible to trace. But, surely, a man of a liberal turn of mind, who has no interest in legal contests, and who prefers solid gold to a trinket, would not hesitate to collect these scattered wrecks of property, and to convert them to a more civilized, rational, and profitable purpose. On the other hand, any man of an independent spirit would pay more than a fair price, would pay liberally, to be exonerated from so base a burden. If, however, a vassal's chains sit easy upon him, let him wear them. What is here meant to to be intimated is, that he ought to have, in liberality, if not in law, a fair opportunity of throwing

them off

3208. The rights of feudality, or manorial rights, are, at present, if not in their origin, very different from those last mentioned. In the day of their establishment, they appear to have been founded in wisdom and a degree of political necessity; and, by the correcting hand of time, they arrived at a high degree of political perfection. The simple and easy mode of transferring property, which the feudal system estab lished, was well adapted to the illiterate age in which it had its rise. Even in these lettered days, and among the ruins of feudal rights, the copy of a court-roll is considered as the clearest title a man can have to his possession! what a hint is this to modern legislators! The value of feudal rights is to be estimated by the quit rents, fines, heriots, escheats, and amerciaments, which long custom and a train of circumstances have attached to the given court. And beside what relates to the appropriated lands of the manor, the lord has a profit arising from the commonable lands (if any lie within it) as lord of the soil; which cannot be broken without his permission. Hence the fossils and minerals, which it covers, belong to him; as well as the timber which grows upon the waste, and the waters that are annexed to it. He is moreover, in ordinary cases, lord of the game which inhabits or strays upon this manor. This, however, being a right of pleasure, rather than of profit, has no fixed standard of estimation.

3209. The right of tithe, when attached to an estate, is the most desirable of abstract rights, arising out of landed property. For, as far as the right extends, (whether to a lay rectory, or a vicarial impropriatorship) the lands which it covers become, in effect, tithe free; as every judicious proprietor incorporates the rents of the tithe with those of the lands out of which it is payable: thus (if the right, as it generally is, be rectorial) freeing them wholly from the encumbrance of tithes, as a tax on improvements, and as an obstacle to the growth of corn. The value of tithes, as has been intimated, is so various, that nothing but local information can enable a valuist to estimate them with sufficient truth.

3210. The right of advowson, or the privilege of appointing a pastor, to propagate religion and morality upon an estate, properly enough belongs to its possessor; as no other individual is so intimately concerned in the moral conduct of its inhabitants.

3211. The right of representation or election, or the appointment (in whole or in part) of a legislator, to assist in promoting good order, in the nation at large, equally belongs to the owner of territorial surface.

CHAP. III.

Of the Purchase or Transfer of Landed Property.

3212. In bargaining for an estate there are two methods in use; the one by public biddings, and the other by private treaty. In either a certain degree of caution is requisite ; and in both an accurate valuation is the best safeguard.

3213. Among the preliminaries of purchase, by private contract, the particulars which may be required to be furnished by a seller, are first to be enumerated. These are; the quantities of the several pieces of the lands on sale, together with the maps, or rough drafts, of the same: the tenure under which they are holden: some assurance as to the title of the seller, and his right of alienation: the tenancy under which the several farms are let; and, if on lives, the ages of the nominees; if for a term of years, the number unexpired; if at will, the notices (if any) which the tenants have had.

3214. An abstract of the covenants under which they are let; particularly on those which relate to taxes and repairs, to the expenditure of produce, to the ploughing of grass lands, &c.

3215. The existing rents and profits receivable; whether for tenanted lands, appurte nances, or abstract rights; with the estimated value of the demesne, and the wood lands in hand; together with the estimated value of the timber growing upon the estate on sale, as well as of the minerals and fossils which it may contain: the outgoings to which the estate is liable: the proposed time of the delivery of possession: the price and the mode of payment expected.

3216. The particulars of instructions to be given to a surveyor, or other valuer, of an estate to be purchased, may next be particularized; it will be right, however, to premise, that much, in this respect, depends on the probability of purchasing, and on the time allowed for making the estimate.

3217. In cases of sale by public auction, where there can be no certainty as to purchase, and where the time for valuation is limited, a rough estimate of each farm, and a general idea of the value of the timber and other appurtenances, may be all that can be prudently ascertained.

3218. But, in a sale by private contract, where the refusal of an estate is granted, and time allowed for deliberate survey, a more minute investigation may be proper, especially when there is every reason to believe that a bargain will take place. For the same report will not only serve as a guide to the purchase, but will become a valuable foundation on

which to ground the future management of the estate. For these, and other reasons, a purchase by private contract is most to be desired, by a gentleman who is not in the habit of personally attending public sales, and is unacquainted with the business of auction rooms.

3219. The particulars to be required from a surveyor, or surveyors, are principally these: the rental value' of each field or parcel of land, with the state in which it lies, as to arable, meadow, pasture, or woodland: the value of the timber and other appurtenances: the characteristic, and the state of management of each farm or tenement, with the eligibility of its occupier, together with the state of repair of buildings, gates, fences, watercourses, and roads: the amount of the encumbrances and outgoings: and, lastly, the probable value of the improvements of which the estate may appear to be capable; whether by ordinary or extraordinary means.

3220. The subjects of treaty after these particulars of information are procured are few. The two statements have been duly compared, so that no misunderstanding can take place between the parties, the price, with the times and mode of payment, are the principal matters of agreement. A clear understanding respecting the custody of title deeds, and the expenses of conveyance, require, however, to be enumerated among the preliminaries of purchase.

3221. The business of negociation is best carried on by letters, which become vouchers of facts. Whatever is done by interview, requires to be reduced to writing, and to be read by, or to, the parties, before they separate, that no possibility of misconception may arise. And, added to these precautions, it is proper, in large purchases, and when abstracts of intricate title deeds are to be made out, and examined, that a legal contract, or memorandum of agreement, should be entered into, for the mutual satisfaction and surety of the parties.

$222. This contract, and the deed of conveyance, (namely the instrument which is legally to transfer the property from the seller to the purchaser,) may be said to conclude and ratify the business of purchase; and in this part of it legal assistance is essentially necessary, to examine existing deeds, and see that the seller has a legal right and clear title to the land, and a legal power to dispose of it, as well as to draw up, or examine, the fresh deed of conveyance, and see that it is sufficient to transfer the property, legally and adequately, to the purchaser.

3223. The preservation of titles may be adverted to before dismissing this subject. In Scotland, deeds of conveyance, and other deeds, are registered in one magnificent building, whose internal economy is as admirably adapted to its design, as its outward form is beautiful. And, in England, there are two counties (Yorkshire and Middlesex) which are termed register counties; in which abstracts of deeds are preserved, and so arranged as to be readily referred to. Hence, in cases where the original deeds are destroyed, or lost, these registered abstracts are sufficient evidences of their having existed, and capable of securing the titles of estates to their rightful owners; and are moreover valuable, in preventing fraudulent practices, particularly respecting mortgages. Nevertheless, the other counties of England remain, from reign to reign, destitute of these advantages.

BOOK II.

OF THE LAYING OUT, OR GENERAL ARRANGEMENT OF LANDED ESTATES.

3224. The laying out of an extensive landed estate embraces a variety of subjects, and requires extensive information and enlarged views of political, agricultural, and even of moral improvement. In new countries, such as America, where an estate is laid out ab origine, this is more particularly the case; but the observation will also apply to many parts of the British isles, where estates, long since appropriated, require re-arrangement and improvement.

3225. Among the different objects of attention in laying out or re-arranging a landed estate, one of the first is its consolidation, or the rounding off or simplifying the outline so as the whole may be brought into a compact form. This envis de s'arrondir seems to have existed, and the proximity and intermixture of property to have been felt as an evil by landed proprietors in all ages. Ahab desired the field of Naboth, because it was near to his house; and Marvel, the attorney (Massinger's New Way to Pay Old Debts, &c.) advised his client to "hedge in the manor of Master Frugal," because "his land, lying in the midst of yours, is a foul blemish."

3226. In consolidating property in Britain, an equally desirable object is the appropriation of commonable lands, which, in England, can only be effected under the autho

rity of a special act of the legislature; but is accomplished with less difficulty in Scotland, and is rarely necessary in Ireland.

3227. The arrangement of the interior of an estate naturally follows the determination of the ring-fence, and the complete possession of all that is within. Here the first thing will probably be to determine the demesne lands, or site of the proprietor's residence, and the extent of territory he means to attach to it and retain in his own occupation. Then follows the intersection of the estate with roads, and probably a canal; the choice or determination of the sites for towns, villages, manufactories, and mines, mineral quarries, or fisheries, if such exist naturally. Lastly, the grounds to be planted being determined on, the remaining part of the property will consist of the lands to be let out for cultivation by farmers, or other tenants of the soil. In conformity with this view of the subject, we shall consider, in succession, the consolidating of estates, the appropriating of commonable lands, the choice of demesne, road-making, canal-making, the establishment of villages and manufactories, the working of mines and quarries, the establishment of fisheries, the formation of plantations, the planting of orchards, and the laying out of farms and farm-lands.

СНАР. І.

Of consolidating Detached Property.

3228. The advantages of a compact estate over one whose lands lie scattered and intermixed with other men's properties, are evident. The management, whether of detached farms, as part of an estate, or scattered fields, as parts of a farm, is conducted with inconveniency: beside the unpleasant altercations to which intermixed lands are liable to give rise. The different methods of compressing landed property into the required state, are by exchange, by purchase, and by sale.

3229. Where the lands of two proprietors lie intermixed with each other, an amicable exchange is the most eligible. And were it not for the childish piques and petty jealousies which so frequently take root between neighboring proprietors (and are cherished perhaps by their officious friends), lands of this description could not long exist; the evil, in almost any case, being easily removed. Each party having chosen one, or, in extensive concerns, two referees; and the two or four so chosen, having named a third or fifth, the required commission is formed; and bonds of arbitration being signed, the commissioners proceed, as under an act of appropriation of commonable lands, to assign each proprietor his rightful share, in the most profitable situation which the given circumstances will permit. This mode of proceeding might be adopted by the most distant parties, or the most inveterate enemies; and, doubtlessly, with advantage to the property and peace of mind of each.

3230. Where an estate or a farm is disjointed, by the intermediate lands of others, it is not only pleasurable to be possessed of them, but profitable to purchase them, even at a higher price than they are intrinsically worth; consequently at much more than their value, as detached lands, to their proprietor. Yet such is often the waywardness and ill-judged policy of the holders of lands so situated, that they will rather continue to hold them with disadvantage, than sell them at a fair price. An equitable way of determining a matter of this sort is to ascertain the value of the lands to the holder, as detached lands, and likewise their value to the candidate, as intermixed lands; and to let the mean between the two values be the selling price. By this method, both parties become actual and equal gainers. If the possessor of such lands should lie in wait for an exorbitant offer, the most efficient mode of proceeding is to offer a high number of years' purchase on their fair rental value, indifferently considered, in the situation in which they lie, and to propose to settle such rental value by arbitration. This is a sort of offer which every honest man can readily understand; and if the holder has any character to lose in his neighborhood, he cannot refuse it; if he has not, a calculation of the difference between the rent he is receiving and the interest of the money offered, consequently of the annual loss which he is sustaining by not accepting the offer, will, sooner or later, bring him to a sense, if not of his duty as a member of society, of his own interest.

3231. It is, in general, right management to dispose of the detached parts of an estate, and to add to the main body. The whole is then more easily superintended, and managed at less expense; while small properties, if suitable steps be taken, and proper seasons of disposal caught, will generally fetch more than larger parcels, of equal rental value, timely and judiciously purchased.

3232. In selling, as in purchasing estates, two methods present themselves. They may be sold by auction or by private contract. To raise a sum of money expeditiously, the

former may be the most eligible; though attended with more expense and more notoriety than the latter; which, for the purpose under view, and when expedition is not necessary, will generally, if properly conducted, he found preferable. To conduct a sale of detached lands with judgment and reputation, the first step is to have them deliberately valued by at least two men of character and ability, and to divide them into parcels or lots, according to situation, and so as to render them of superior value to adjacent proprietors. Then fix upon each parcel such value as it is fairly worth to the owner of the lands with which it is naturally united; and give him the refusal of it. Such parcels as are not disposed of in this way, may either lie open to private contract, or be sold by public auction; the motive for selling being, in either and every case, openly declared. It is to be remarked, however, that for a sale by auction, a fresh arrangement of lots will be required: the principle of allotment being in this case the reverse of the former. At an auction, a certain degree of competition is requisite to raise the article on sale to its full value; and it is no more than common prudence in the seller to make up his lots in such a manner as will bring together the greatest number of competitors.

CHAP. II.

Of appropriating Commonable Lands.

3233. Commonable lands, or such as lie intermixed or are occupied in common by the inhabitants according to certain laws and customs, may be considered in regard to their origin and kinds, and their appropriation or division.

SECT. I. Of the Origin and different Kinds of Commonable Lands.

3234. A very few centuries ago, nearly the whole of the lands of Britain lay in an open, and more or less in a commonable state. (See Fitzherbert on the Statute Extenta Maneri.) Each parish, or township, (at least in the more central and northern districts) comprised different descriptions of lands; having been subjected, during successive ages, to speci fied modes of occupancy, under ancient and strict regulations, which time had converted to law. These parochial arrangements, however, varied somewhat in different districts; but, in the more central and greater part of the kingdom, not widely; and the following statement may serve to convey a general idea of the whole of what may be termed common-field townships, throughout England.

3235. Each parish or township was considered as one common farm; though the tenantry were numerous. (See also Blackstone's Commentaries, art. Tithing of Townsh.) Round the village in which the tenants resided, lay a few small enclosures, or grass yards, for rearing calves, and as baiting and nursery grounds, for other farm stock. This was the common farmstead, or homestall, which was generally placed as near the centre of the more culturable lands of the parish or township as water and shelter would permit.

3236. Round the homestall lay a suit of arable fields, including the deepest and soundest of the lower grounds, situated out of water's way, for raising corn and pulse; as well as to produce fodder and litter for cattle and horses, in the winter season; and, in the lowest situation, as in the water-formed base of a rivered valley, or in swampy dips, shooting up among the arable lands, lay an extent of meadow grounds, or ings, to afford a supply of hay, for cows and working stock, in the winter and spring months. 3237. On the outskirts of the arable lands, where the soil is adapted to the pasturage of cattle, or on the springy slope of hills, less adapted to cultivation, or in the fenny bases of valleys, which were too wet, or gravelly lands, thrown up by water, which were too dry to produce an annual supply of hay with sufficient certainty, one or more stinted pastures, or hams, were laid out for milking cows, working cattle, or other stock which required superior pasturage, in summer.

3238. The bleakest, worst-soiled, and most distant lands of the township, were left in their native wild state, for timber and fuel, and for a common pasture, or suit of pastures, for the more ordinary stock of the township, whether horses, rearing cattle, sheep, or swine; without any other stint, or restriction, than what the arable and meadow lands indirectly gave, every joint-tenant, or occupier of the township, having the nominal privilege of keeping as much live stock on these common pastures, in summer, as the appropriated lands he occupied would maintain in winter.

3239. The appropriated lands of each township were laid out with equal good sense and propriety. That each occupier might have his proportionate share of lands of different qualities, and lying in different situations, the arable lands, more particularly, were divided into numerous parcels of sizes, doubtless, according to the size of the given township, and the number and rank of the occupiers.

3240. The whole was subjected to the same plan of management, and conducted as one common farm, for which purpose the arable lands were divided into compartments,

or " fields," of nearly equal size, and generally three in number, to receive, in constant rotation, the triennial succession of fallow, wheat (or rye), and spring crops (as barley, oats, beans, and peas): thus adopting and promoting a system of husbandry, which, howsoever improper it is become, in these more enlightened days, was well adapted to the state of ignorance, and vassalage, of feudal times; when each parish or township had its sole proprietor; the occupiers being at once his tenants and his soldiers, or meaner vassals. The lands were in course liable to be more or less deserted by their occupiers, and left to the feebleness of the young, the aged, and the weaker sex. But the whole township being, in this manner, thrown into one system, the care and management of the live stock at least, would be easier and better than they would have been under any other arrangement. And, at all times, the manager of the estate was better enabled to detect bad husbandry, and enforce that which was more profitable to the tenants and the estate, by having the whole spread under the eye at once, than he would have been, had the lands been distributed in detached unenclosed farmlets; besides avoiding the expense of enclosure. And another advantage arose from this more social arrangement, in barbarous times: the tenants, by being concentrated in villages, were not only best situated to defend each other from predatory attacks; but were called out, by their lord, with greater readiness, in cases of emergency. Therefore, absurd as the common-field system is, in almost every particular, at this day, it was admirably suited to the circumstances of the times in which it originated; the plan having been conceived in wisdom, and executed with extraordinary accuracy, as appears in numberless instances, even at this distance of time.

3241. Uninhabited tracts or forests. In different parts of Britain there were and still are extensive tracts of land, some of them of a valuable quality, which lie nearly in a state of wild nature, which were never inhabited, unless by freebooters and homebred savages. These uninhabited tracts are styled forests; and heretofore, many or most of them have been attached to the crown; and some of them are still under royal patronage. Whether they were originally set out for royal pastime, merely, or whether the timber which stood on them was of peculiar value, or whether, at the time of laying out townships, those tracts were impenetrable woods, inhabited by wild beasts, and, when these were destroyed, or sufficiently overcome to render them objects of diversion, were taken under the protection of the crown, is not, perhaps, well ascertained. There were also tracts of that description in different parts of England, but which appear, evidently, to have been enclosed from a state of woodland or common pasture; though it is possible they may have been nominally attached to neighboring parishes. Of this description, principally, are the Wealds of Kent and Sussex, and many other old enclosed lands, in different parts of the kingdom, whose fields or enclosures are of irregular shapes, and their fences crooked. These woodland districts are like the forest lands, divided into manors, which have not an intimate connexion or correspondence with parishes or townships: a further evidence, that they were in a wild state, when the feudal organization took place. 3242. In the western extreme of the island, the common-field system has never, perhaps, been adopted; has certainly never been prevalent, as in the more central parts of England. There, a very different usage would seem to have been early established, and to have continued to the present time, when lords of manors have the privilege of letting off the lands of common pastures, to be broken up for corn; the tenant being restricted to two crops; after which the land is thrown open again to pasturage. And it is at least probable, that the lands of that country have been cleared from wood, and brought into a state of cultivation, through similar means. At present, they are judiciously laid out, in farms of different sizes, with square straight lined enclosures, and with detached farmsteads, situated within their areas; the villages being generally small and mean; the mere residences of laborers. Circumstances these are, which strongly evince that the common field system never took place, in this part of the island, as it did in the more central parts of England. Ireland, also, has been enclosed (though not fenced) from time immemorial.

3243. The feudal organization having lost its original basis, has itself been mouldering away, more particularly during the last century. A great majority of the appropriated common-field lands, and commons have been partially, or wholly enclosed; either by piecemeal, each proprietor enclosing his own slip, a very inconvenient mode of enclosure, or by general consent, the whole of the proprietors agreeing to commit their lands to the care and judgment of arbiters, or commissioners, who, restoring the fields to their original intirety, reparceled them out, in a manner more convenient to the several proprietors, and laid each man's portion, which had consisted of numberless narrow slips, in one or more well shaped grounds.

$244. In England this requires to be effected by a separate act of parliament for each enclosure. In these acts commissioners are named, or directed to be chosen by the proprietors, who, according to certain instructions in the act or law, and the general principles of equity, divide the township among all who have an interest in it. It appears by the statute books, that from the year 1774 to the year 1813, no fewer than two thousand six hundred and thirty-two acts of enclosure have been passed; the average in the first twenty years being thirty-seven, and in the last twenty years ninety-four.