Property in land differs in its origin from property in any commodity produced by human labor. The product of labor naturally belongs to the laborer who produced it. . . . But the same argument does not apply to land, which is not the produce of labor, but is the gift of the Creator of the world to mankind. Every argument used to give an ethical foundation for the exclusive right of property in land has a latent fallacy.

— MR. JUSTICE LONGFIELD, Cobden Club Essays, 1st Series, Part I., Chap. 10, p. 72.

CHAPTER X.

Property in land differs in its origin from property in any commodity produced by human labour. The product of labour naturally belongs to the labourer who produced it. If he works for wages, his employer is entitled to the product as assignee of the labourer. The substance of the contract is, that the employer pays a certain present sum as wages in exchange for the future uncertain product of the labour.

But the same argument does not apply to land, which is not the product of labour, but is the gift of the Creator of the world to mankind. Every argument used to give an ethical foundation for the exclusive right of property in land has a latent fallacy. It omits a portion of the value which ought not to be left out of consideration. I shall call attention to one or two of them.

First comes the argument founded on the rights of labour. Land, it is said, is worthless until it is cleared and cultivated, and it properly belongs to the man who has improved it, or brought it into cultivation. There would be some force in this argument if land was worth nothing beyond the value of the labour laid out upon it; but if this is not the case, the argument is subject to this objection, that it permits one man to improve another man’s estate, and then hold it as his own. This is what is called improving a man out of his property. Here is some land very convenient and suitable as a site for building: it belongs to no person as private property, and therefore I, as a member of the community, am a part owner of it Another person takes possession and builds a valuable house on it, and then claims the land as exclusive property on account of his buildings and improvements; am not I thereby improved out of my estate? I was a part owner once, and now I have no interest whatever in it I^and of very indifferent quality in the neighbourhood of a town frequently is sold or let for a large sum as a site for building, before a single penny has been bud out in reclaiming it Although it is of no present use, still its capacity for being built on gives it a present value.

In this case the original value can be estimated, and in fact it is often separated from the additional value which the land derives from the buildings placed on it. It is the ground-rent which a tenant would be willing to pay on condition of getting a grant of the land in perpetuity.

But without any reference to building land, it is easy to find large quantities of land in Ireland of which the value cannot be attributed to any labour expended on them. Indeed, some of the land is probably of less value than if it had been left in a state of nature; and yet it is private property.

It might at first appear as if the argument against the right to property in land, as founded on labour, applied equally to the case of manufactured articles. The raw material did belong to the community, which is deprived of it by the individual who manufactures it, and converts it into his own exclusive property. This objection would be valid if the raw material was in limited quantities; and if the labourer, for the purpose of the manufacture, seized upon a greater proportion than his share would be as a member of the general community. But this never happens. As a matter of fact, the value as well as the right of property in a manufactured article is derived from the labour employed in producing it; and the title could generally be shown through the most important stages. It is equally certain that neither the title to property in land nor the chief part of its value is founded upon labour. It was in general claimed as property before any labour was laid out on it

The right arising from the first discovery is sometimes alluded to as a possible foundation for the right of property in land. But this must refer to the right of the whole community, and not to the right of any private individual. When once a party lands upon an island, the whole island is substantially discovered. They all know the land is there, although they have not actually walked over every foot of it. But suppose the case of a discovery made by an individual. A party of men and women discover an uninhabited island, and take possession of it. Good water for drinking is scarce, and different persons go in various directions. One man, either by superior intelligence or better fortune, discovers a well which yields an ample supply. This does not give him a right to exclude the rest of the party. They must possess the same natural right which they had before the discovery, to use the well if they can find it. The right of the first discoverer is merely to keep his secret, or to sell it to the community for the best price which he can obtain for it.

The case bears some analogy to the patent laws, and thereore I may allude to an argument which is sometimes used in their defence. A man invents some process, and it is said that if the public makes use of this process he is deprived of the fruits of his industry and inventive talent But this assumes the very point in dispute: it assumes that one of the natural fruits of a discovery is the right to prohibit every other person from doing the same thing. This is not a well-founded assumption. His natural right is only to use it himself. The first man who broke a cocoa-nut and found the inside eatable would have a right to eat it himself, but he would have no right to insist that no other man in the world should ever eat any other cocoa-nut without his permission.

The fact of possession is sometimes given as the origin cH private property in land. The man who gets first under the shade of a tree has a right to remain there undisturbed. He cannot be removed without a breach of the peace; and this right seems to be acknowledged by the inferior animals. It is sometimes added that the mere fact of taking possession is of itself an act of labour, and therefore that the right of property thereby conferred is within the general rule, that labour creates a right to property.

To this it may be replied, that this right, if it existed, would only last as long as the possession in which it originated. It could not extend over a large estate, nor be transferred to another person. As to the acknowledgment of the right by the lower animals, even if we were disposed to learn ethics from their example, there is great reason to doubt the fact It probably exists only so far as the beast in possession has sufficient strength to make it inconvenient for any other beast to disturb him.

When it is said that the mere taking of possession is an act of labour, it should be noticed that even if it deserves the name of labour, it is not of that sort which can confer a title to property. The only labour which can give a title to property is that labour which has created the value of the property that it claims.

The foundation of the right to property in land is not ethical, but political. Its origin is expediency. In order that it may be cultivated to the most advantage, it is necessary that the cultivator should be secured in the enjoyment of the fruits of his intended industry. For this purpose it is necessary that the person who is permitted to use the land should be permitted to enjoy it for a certain length of time, to make it his interest to cultivate it in the most productive manner. This pericd varies with the increase of foresight and agricultural knowledge.

It is easy to conceive a state of things in which men did not look beyond the passing year. They sowed and they reaped without any knowledge or care whether the land was left in a better or worse condition.

But the inconvenience of a frequent repartition of land is quickly perceived, and this is best avoided by permitting land to be held in absolute ownership, subject to such taxes and regulations as the State shall from time to time think it reasonable to impose.

It seems just that land should be charged with the duty of maintaining the poor, so that no man should be destitute on account of the existence of private property in land. Those who are able to support themselves owe that power to that general wealth and civilisation which could not have existed without the establishment of private property in land; and those who are not able to support themselves, receive from the poor-rates a better subsistence than they could extract from their share of the land of the country if undivided and unreclaimed.

But the rights of the present owners do not depend upon the truth of any theory respecting the origin of proprietorial rights. It is a rule of natural justice that says, that if I encourage a stranger to buy from a wrongful owner property that is really mine, I cannot justly press my own claims against the purchaser. This is the case with land in every settled country. The present owners either themselves purchased the land, or derive their rights under those who purchased it with the sanction of the community, represented by the authority of the State. In many cases, the State itself received part of the purchase-money from stamp-duties on the purchase deeds.

In this manner the title of the landlord appears to be perfect as well against the nation at large as against every member of it. But there is one person in particular who cannot claim the land without the most shameless dishonesty; and that is the tenant who has obtained a temporary possession of the land by means of a contract with the landlord.

I wish for a farm. I see one that suits me. I apply to the person in possession, who claims to be the owner, and I agree to take a lease of it for twenty-one years, or as tenant from year to year at a rent of ^50 a year, and to give him back the farm when the lease expires. Nothing can be clearer than that I can claim no right to that land beyond what is given to me by the lease. It either belongs to the landlord who bought, or to the nation at large, but certainly not to me. If it belongs to the landlord, I can claim nothing but my bargain, viz., possession for twenty-one years. If it belongs to the community at large, my right is still less. It would be strange that I should claim more than my bargain, because I made the bargain with the wrongful owner.

I have put the case of a tenant obtaining the possession of land by a contract with the landlord, and on that possession, on that contract, resting his claim to hold the land for a larger period or at a smaller rent But there are other cases in which the tenant has done something more, and in which he has some equitable rights, which, although they are rather vague, are yet, I think, capable of being ascertained, settled, and conceded by carefully-considered legislation. The two chief cases are—first, where the tenant has made such permanent improvements on the land as were necessary for its efficient cultivation, or for his decent and wholesome habitation; secondly, where the tenant has, to the reasonable knowledge of the landlord, paid the outgoing tenant money for his interest in the farm.

In the former case, it must be supposed that the tenant made the improvements, or erected the buildings, in the belief that he would be permitted to enjoy them. It is incredible that any man should build a house if he was assured that another should enjoy all the benefit, either by turning him out, or by charging him rent for it The same argument applies to the case of a purchase of a precarious interest The landlord who permits the purchase of a mere tenancy-at-will must be considered as encouraging the belief that the purchaser thereby acquires a substantial interest in the land.

A third case in which the tenant seems to be entitled to something more than the law gives him, is where he has made a reasonable bargain with the apparent owner of the land There is a common-sense distinction between a purchaser and a tenant which the law does not sufficiently recognise. The man who buys an estate, and the man who takes a farm in order to earn his bread by its cultivation, are treated by law in the same manner, and are subject to the complicated laws of real property. These laws are troublesome and inconvenient so far as they affect purchasers, but are oppressive and unjust where they disturb the title of a tenant.

It may be said that it is not easy to distinguish between a tenant and a purchaser. A man takes a lease of land for a thousand years at a rent of a penny an acre. Is he not to be considered a purchaser, although he takes the land for a limited term, and is subject to a rent? Add a penny to his rent, and take a year away from his term, he is still a purchaser. Continue this process, and you may have him paying a rent of £4 2S. 6d an acre, and with a term of only ten years. He is then clearly a tenant At what step in the process did his position change from a purchaser to a tenant?

Such an argument has no practical force. It must be met by drawing an arbitrary line at some reasonable point. Say that a tenant, whose rent is not less than three-fourths of the value, and whose term does not exceed forty-one years, shall not be disturbed in consequence of any settlement or encumbrance affecting his landlord’s interest.

It is inconsistent with justice that a man should hold land at a certain rent, and for a certain term, without any claim except that he took the land for a different term and for a different rent A man takes a farm to-day, and demands that a law shall be made which would enable him to sell his lease next day for several hundred pounds. This is to give him a property which he did not purchase or earn, merely because he threatens to commit murder if he is kept to his engagements.

However, no demand founded in justice ought to be refused, merely on account of the improper manner in which it is demanded. I must not refuse to pay a creditor because he presents his account or demands payment in an uncivil manner.

I have made these observations on the origin of property in land to show that the State retains the power of modifying it from time to time in accordance with the general interests of the community. This right of private property in land Ls a political, not a natural institution. “Nam propria? telluris herum, natura neque ilium, Nee me, nee quenquam statuit”

What justice requires is that changes in the law should not be directed against any particular persons, but that all who are in similar circumstances should be treated in the same manner. A land-tax of ten per cent would not be unjust if it was thought necessary for the security of the kingdom; and there would be as little injustice in a law which modified the rights of property for the same object, even although the result should be equivalent to a tax by causing some diminution in the value of the property.

It is sometimes supposed that a change in the law would be unjust to purchasers under the Landed Estates Court I see no grounds for that opinion. The Act of Parliament which constituted the Court did not give a guarantee against future legislation. To do that is beyond the power of Parliament What the conveyance of the judges gives is the perfect right to the land, subject only to the adverse rights mentioned in the deed, and to such obligations as may afterwards be imposed, either by the purchaser or by the authority of Parliament It may almost be said that the latter comes within the former case, as the House of Commons is the lawful representative of the purchaser.

It could hardly be contended that the purchaser with a Parliamentary title should be exempt from all Acts passed for the relief of the poor, or that the area of poor-law taxation should not be altered, and yet such changes might have the effect of giving his poorer tenants a substantial interest in his estate.

What the purchaser has a right to insist on is, that no law shall be specially directed against him, and that no rights shall be set up which were in existence at the time of his purchase, but were omitted from the deed of conveyance. But in common with all the subjects of the realm, he must take subject to all regulations that may be made by lawful authority, whether they increase or diminish the value of his property. The purchaser, by the fact of his purchases, places himself in a new relation to a certain number of persons, which imposes on him some very important duties, and it is for the State to determine whether those duties shall be enforced by law or trusted to his own conscience for their fulfilment

The following changes might be made in the law of real property, and they do not violate any natural or political right

First, the Law of Primogeniture should be abolished, and all the children of the same parents, and their descendants should have equal rights to the land of their direct or collateral ancestor. Under the influence of this new law absenteeism would quickly disappear. Some of the children of an absentee would sell the estate which descended on them, and for which, not having seen it, they could entertain no special affection.

No lease nor agreement between landlord and tenant should be liable to any stamp duty.

No settlement or encumbrance should prevent the owner of land in possession from having the following power:— First, he may make any lease for any term not exceeding forty-one years at a rent not less than three-fourths of the full value, or competition rent Second, he may take a fine on granting a lease. Third, he may agree that the tenant shall be entitled to tenant-right as above defined. Fourth, he may agree with his tenant to give him compensation for improvements.

If a lease is made for a shorter term than forty-one years, the landlord should not be permitted to distrain for rent.

If a lease is made for a shorter term than forty-one years, and without tenant-right, all poor-rate and county-cess should be borne by the landlord.

No proceedings should be taken to recover any arrear of rent which accrued more than a year before the commencement of the proceedings.

In the absence of a written agreement, the tenancy should determine on the first of November, and require a year’s notice to quit

The arbitrator should have power to award Parliamentary tenant-right to any tenant who had fairly earned it by his outlay.

The tenant should be entitled to the trees he planted, without the necessity of registering them.