CHAPTER XX.

HEREDITARY LEASES.

There is an ancient form of property, which legislators and economists should not fail to examine, as it may contribute to the settlement of the struggle, which is everywhere going on, between those who cultivate the soil and those who take the rent; this is the hereditary lease, known in Holland under the name of beklem-regt, in Italy as the contratto di livello, and in Portugal as the aforamento. It is also to be found in France, in various provinces, under various names. In Brittany the term is quevaises; in some places domaine congéable; and, in Alsace, erbpacht. As under the feudal system, the full proprietorship is, so to say, carved into two distinct rights: the right of the proprietor, which is actually nothing but a kind of mortgage claim, and the right of the tenant, which is a sort of hereditary usufruct. In Portugal, the aforamento gives the occupier of land the right to hold it in perpetuity, conditionally on his fully performing the terms of the contract. He has to pay regularly a rent fixed once for all, which the proprietor cannot raise. When the land changes bands, the proprietor is entitled to a duty, which is called luctuosa, when the transfer is in consequence of a death; or laudemium when it is the result of a sale. Land held in aforamento is essentially indivisible; hence, when there are several heirs, one must take the whole domain and pay an equivalent to the others, or else the land must be sold. In default of heirs near enough to succeed, the aforamento perishes, and the bare ownership now becomes full ownership. The aforamento is more or less in use throughout Portugal; it is not unknown in Alemtejo, and is common in the Algarves; but, North of the Tagus, it is the mode of tenure generally practised, and to it is attributed the excellent cultivation and the comfort of the cultivators, which distinguishes the province of Minho. The aforamento seems to date from the earliest times of the monarchy; and is supposed to have been first established on the lands of the Benedictine monks.

In Italy the contratto di livello was very general in the middle ages, and still exists in several provinces, especially Lombardy and Tuscany. In ancient documents, from the sixth to the thirteenth century, the libellarii frequently appear. The principal rules of the contract M. Jacini supposes to date from the time of the Roman empire. M. Roscher sees their origin m the emphyteusis, which the middle ages borrowed from the Roman law. The assignment of immoveable property, which the owner could not himself turn to advantage, to cultivators, who engaged to till it for a fixed rent or canon, and a payment of certain duties, laudemium, in case of alienation, was a contract beneficial to both parties; and it is not surprising that large proprietors in the middle ages, who had neither capital nor tenants to cultivate their vast domains, should have had recourse to this means of securing a guaranteed revenue. Livelli are now gradually disappearing in Italy; first, because there, as in Portugal, the legislature and the courts are alike hostile to these perpetual rents, which, they say, recall feudal rights; secondly, because the system of full ownership is now thought the only reasonable one, and every thing in restraint of it is tolerated with impatience.

The beklem-regt, which is general in the Dutch province of Groningen,⁽¹⁾ is exactly similar to the Portuguese aforamento. This is additional evidence in support of Tocqueville's remark, that, in .the middle ages, under an exterior of great diversity, customs were everywhere fundamentally the same. The fact of the beklem-regt and the aforamento presenting, at the present day, identical features in the two extremities of Europe, is a proof that this contract must formerly have been customary in the intermediate countries. It is exactly the same with these ancient institutions as with certain alpine plants, which are only to be found now in the polar regions and on the lofty mountains of Switzerland; but which grew throughout Europe in the glacial period.

The beklem-regt is a right of occupancy, at a fixed rent, which the proprietor can never raise ; the right passes to the heirs in the collateral line as well as in the direct. The tenant, or beklemde meyer, can devise, sell, let, or even mortgage the land without the proprietor's consent; but every time the right of occupancy changes hands by inheritance or sale, the proprietor is entitled to a fine of one or two years' rental. The buildings which are on the land belong as a rule to the tenant, who can claim the price of the materials, if his right of occupancy is at any time extinguished. The tenant pays all imposts: he may not change the form of the property, nor do anything to depreciate its value. The beklem-regt is indivisible: it can never vest in more than one person, so that one only of several heirs has to take it as his portion. In paying the stipulated canon, however, in case of alienationthe propinenthe husband may insert his wife's name, or the wife her husband's, and they then have a right of survivorship. The word propinen. obviously comes from the Greek , to drinkthe formal emptying of the cup. It recalls the practice of the Germans, who, according to Tacitus, ratified all their juridical transactions with a draught of wine. Propinen is the equivalent of the pot de vin, paid in several countries on the renewal of a lease. The annual rent due to the proprietor varies much, and according to the time when the rent was determined, rather than the actual value of the land. It is found at from five or six to thirty or forty forms the acre. The market value of the tenant's right depends on the price of produce, the state of agriculture, and also on the figure of the annual rent About 1822, the value of the beklem-regt had fallen so low, that no purchasers were to be found. Since the opening of the English market, however, the tenant has seen the value of his occupancy increase to such a degree, that he has begun to sub-let to ordinary tenants, a result to be regretted, as henceforth all the advantages of the beklem-regt disappear. When in full ownership, the land is sold at about 2,500 to 3,000 florins the hectare. If the tenant fails, or is in arrears with the annual rent, the beklem-regt is not absolutely extinguished: the creditors have the power of compelling a sale; but the purchaser has first to pay the proprietor all arrears.

The origin of this curious variety of hereditary lease is very obscure. It seems to have sprung up in the middle ages on monastery lands. The soil being then of little value, the monks readily granted to cultivators a certain extent of soil, on condition of their paying a certain annual rent, and also a fine at each death. This arrangement secured a fixed income for the monastery, and also freed it from the management of property, which as a rule produced nothing. The large proprietors and civil corporations also adopted the system. They seem to have reserved the right of ejecting the tenant every ten years but they never exercised it, because they would have had to pay the value of buildings, and would also have had difficulty in finding a new tenant. During the troubles of the sixteenth century, the right became hereditary, or at least was declared such by several decisions. Jurisprudence and custom settled the various points in dispute; a more definite formula was framed and generally accepted, and from that time the beklem-regt, so determined, has existed side by side with the Civil Code. It has always been respected, and been more and more generally adopted throughout the province of Groningen. What surprises one is that this right, which seems so complicated and antiquated, can spread and gain ground even now. The explanation of this strange economic fact is that, in the first place, the proprietor, who wants to grant the beklem-regt over his land, receives a considerable sum, and still retains, at any rate nominally, the ownership. Again, a man who cultivates his own land and is in want of money, can sell the bare right of ownership, retaining the beklem-regt for himself. The most frequent origin, however, of new contracts of this nature is a public sale; because, if the true proprietorship and the hereditary lease are sold separately, a higher sum is realized than if the full property is sold at once. For this reason the polders (land recovered from the sea), where the dams have only been constructed some twenty years, are subject to the beklem-regt.

Whoever has considered the inconveniences of the ordinary lease, will have no difficulty in understanding the advantages of the contract adopted in Groningen. One of the most able writers on this subject, M. Hippolyte Passy, remarks with reason: "There is no kind of lease really favourable to the progress of production, but such as, by well conceived stipulations, makes it to the constant interest of the cultivators to neglect nothing that increases fertility either in the present or the future." Now the beklem-regt fulfils this condition perfectly. The tenant can undertake the most costly improvements: he is sure to derive the full profit from them; and he is not threatened, like the ordinary tenant, with an increase of rent proportional to what he has done to increase the fertility of the land he occupies. The legitimate reward of labour is the produce which it creates; and man labours harder when he is sure of enjoying the fruits of his efforts. The beklem-regt, assuring the cultivators the full enjoyment of any increase in the produce, is therefore the most active stimulus: it encourages the spirit of improvement, which short leases only penalize.

M. Roscher maintains that a tenant will apply more capital to the cultivation of the soil than the proprietor, because the latter has to devote a considerable sum to the purchase of the land, which the former can employ to increase the intensity of cultivation. This remark is specious, but scarcely well-grounded. As a matter of fact, the purchaser of land can raise on mortgage a sufficient sum to improve the cultivation. He will then pay in the form of interest what he would have paid as rent: and will have this immense advantage, that he will profit exclusively by all improvements, without any risk of seeing them turn out so much loss to him at the expiration of the lease. In any case, the beklem-regt is entirely free from the disadvantage pointed out by M. Roscher. The cultivator, purchasing only a hereditary lease, obtains it at a cheaper rate, and can devote to cultivation all the surplus which he would have had to lay out in the purchase of the hare proprietorship, which he now leaves to another. While only laying out a far smaller sum than he would have had to give for the entire property, he is nevertheless sure of enjoying the good results of all the work he may carry out. The belkem-regt therefore unites the advantage, which M. Roscher attributes to the lease, with the security for the future afforded by ownership.

Another objection has been raised against the property in the soil residing in the cultivator. It is said that the proprietor cultivator, certain of his subsistence, and not being stimulated by any rise of rent, sinks into routine, and does not obtain from the soil all that it can produce. This objection reminds one of the quaintly cruel question in Cardinal Richelieu's will: To what extent are we to suffer the people to live in comfort? We cannot believe that property, which gives comfort to the labourer, lulls his activity to rest; and we still think that no one will get more produce out of the soil than its owner. But, even if it were otherwise, the beklem-regt would again, in this case, have the advantage over ordinary ownership; for, as one alone of the children can inherit the holding, the father will be stimulated to obtain from the soil all that it can give, so as to save the portions for his other children; otherwise it would be necessary to sell the hereditary lease to avoid its indivisibility. We may, therefore, assert that the beklemregt is even more favourable than ownership to good cultivation, as allowing the application of more capital, and urging him, who cultivates it, to redouble his efforts to obtain as large a harvest as possible.

As land subject to hereditary lease cannot be divided without the consent of the proprietor, this contract is a natural obstacle to the "morcellement" of lands. It prevents unsuitable cutting up of properties resulting from equal partition, and at the same time does not, like the majorat, or entail, exclude a division recommended by sound economy, for if the division brings a real advantage, it needs only an assignment to the proprietor of some share of the profits to obtain his consent.

Those who, struck by the forewarnings of Malthus, fear the excessive increase of population, are likely to be partisans of the beklem-regt, for the system affords an efficient check to it. The number of holdings is limited; and as the sons of the cultivators are accustomed to live in comfort, they only regard marriage as likely to increase the rent of lands, by reason of a rash competition, tending to produce morcellement. Having a certain amount of education they emigrate or choose a career; and when they take a wife it is because they have the means of supporting her and the children she may bear them. Thus the beklem-regt is alike favourable to the production of wealth, and tends to limit the number of those who have to share it; and so contributes by a double action to increase the prosperity of the population.

But, it will be said, if this system of leases is superior to the ordinary term of years, it is inferior to ownership. Undoubtedly it is, in some respects, as the beklemde meyer has to pay a rent, whereas the owner pays none; but there is one great distinction in favour of the beklem-regt; namely, that under this system, the beklemde meyer cultivates for himself whereas the proprietor would let the land. Suppose the beklem-regt abolished in Groningen, and what would be the result? Here, as in all places where land is very valuable, the owner of half a million francs in the shape of eighty or one hundred hectares of land, would go and live in a town, grant the cultivation of his land to a tenant, and take care to raise his rent regularly every six or nine years.

The effect, therefore, of an anomalous right, borrowed from the middle ages, has been to create in Holland and Portugal, a class of cultivators enjoying all the advantages of ownership, except that they do not retain for themselves the net profit, which is precisely what would have alienated them from cultivation. Instead of tenants fearing to lose their farm, recoiling before every costly improvement, concealing their prosperity and dependent on their master, we find, in Groningen, a class of usufructuaries, proud, independent and simple in habits, but eager for information, appreciating the advantages of education, and neglecting no means of spreading it. They practise agriculture, not as a blind routine or contemptible trade, but as a noble occupation, which brings them fortune, influence, and universal respect. They are economical in their own wants, but prodigal to their estate; ready to make any sacrifice to drain their land, to rebuild or enlarge their farm buildings, and to procure the best machines and the best strains of animals; and content, moreover, with their condition, because their lot depends on nothing but their own activity and forethought.

So long, then, as the beklemde meyer cultivates his own land, the hereditary lease produces good results. But, unfortunately, these results fail so soon as in the exercise of his right of sub-letting, he grants to another the right of cultivating his estate, for a rent which he receives, and out of which he pays the holder of the bare ownership. From this time all the disadvantages of the common lease reappear; and we return to the ordinary conditions, which are found elsewhere, with this difference, that the cultivator has to support two classes of idlers instead of one. Sub-letting was rare in former times, because the profits derived from cultivation were only sufficient to support the family of the beklemde meyer; when he cultivated the land himself; but since the rise in the price of all articles of food, and especially since the opening of the English market, the profits have been so large, that a subtenant can be found ready to pay a rent in excess of that taken by the proprietor. Under-letting thus came into use,a fact which we cannot but regret having to acknowledge.

In the island of Jersey the same mode of tenure is still m force. In France, in the "terriers" of most monasteries and cathedrals, grants of land are found, the nature of which is indicated by the formula damus in perpetuam emphyteusim. This kind of tenure was, therefore, very general. The quevaises likewise had all the characteristics of hereditary leases; but, according to information communicated by M. de Lavergne, the proprietor has gradually acquired the right of ejecting the tenant, on compensating him for the value of the buildings, as determined by an expert.

The bail à domaine congéable is a tenure peculiar to Brittany, where it is especially in force in the usemens of Rohan, Cornouaille, Léon, Broucrec and Tréguier. Its origin is thus explained in Art. 3 of the usemen of Tréguier: "When the proprietor of a house or lands in the country is in want of money, or when he wishes to secure the rent of land at a distance, and not to be troubled with repairs, he grants the land or house in covenant or domaine congéable, on condition of the payment of a rent and the performance of the usual corvées, to be held in perpetuity, subject, however, to the right of the lord to eject the holder at any time, on paying him such compensation as is appraised." "The condition of this lease," says Merlin, "is a clause of this sort: `I grant you the soil IN PRECARIO, and all on the surface in full ownership;' such a tenure is therefore more advantageous to the tenant than the ordinary lease, inasmuch as he does not lose the improvements, as in the ordinary lease."⁽²⁾

Anton, in his History of Agriculture in Germany, quotes numerous examples of hereditary leases, which date back to the twelfth and thirteenth centuries. This contract was also very common in the agricultural colonies founded in Germany in the middle ages, by Flemish and Dutch cultivators. In Prussia, Saxony, Hesse and the greater part of Germany, the erbpacht or hereditary lease was established on State domains at the beginning of the eighteenth century, short leases being then generally condemned. On the other hand, laws of the present century prohibit what is the very essence of this contract, the creation of an unredeemable rent, regarding it as a remnant of feudalism. Still the hereditary lease, under the conditions of the beklem-regt and the aforamento, affords real advantages. A proof of this is the exceptional prosperity which it secures to two regions, that in other respects have absolutely nothing in common, Minho in Portugal and Groningen in the Low Countries. These advantages are indisputable. The aforamento, imposing indivisibility on the soil, checks excessive morcellement: it gives full security to the tenant, and so encourages him to effect all necessary improvements, however costly they may be. It is, therefore, very superior in this respect to the temporary lease, which takes from the farmer every guarantee for the future and every motive for the sinking of capital in the land.

These ancient forms of property have been noticed, because modern societies have not yet arrived at a perfect or definite agrarian organization. The social future is so gloomy that we should seek everywhere, even in the past, for the means of allaying the danger. Undoubtedly these institutions of primitive times can never spring up again; the ideas, the requirements, and the sentiments of the patriarchal age produced them, and alone could perpetuate them. Now, all this has vanished to return no more. Fraternity and the intimate association resulting from it disappeared, first from the village, then from the family. In the present day the isolated individual has to face the joint-stock company or the religious community, which take the place of patriarchal families and communities. What is to prevail finally?Small independent property, such as has existed in France since the Revolution, or latifundia, as at Rome or in England? A very prevalent opinion is that it will be the latifundia, for the same reasons that enable industry on a large scale to crush industry on a small scale; that is to say, the employment of machinery, the superior information of the large employers, and the all-powerfulness of capital. In agriculture, however, the triumph of large enterprises is not so decisive; because agricultural labours, being intermittent, do not so well allow of the application of machinery; and because, further, the limited extent of productive land makes the price of agricultural produce depend on the cost of producing the most expensive.

Yet it is not impossible, that, as many economists believe, the supremacy of capital will lead in the long run to the absorption of small property by the latifundia, just as small artisans succumb in the competition with giant manufacturers. If the final result is destined to lead us once more to an agrarian situation such as existed under the Roman empire, where a few proprietors of enormous wealth live in pride and luxury, too often accompanied by depravity, while beneath them the agricultural, labourer remains plunged in a state of ignorance and misery, and where envy and hatred are continually setting the two classes in antagonism and almost in open war: if such is to be the end, we cannot refrain from casting back a glance of melancholy regret to these primitive epochs, when men, united in family groups by bonds of blood and fraternity, sought by common toil the means of satisfying their few, simple wants, as do the Servians of the present day, ignorant, it is true, of the luxury, but also ignorant of the bitter cares, the cruel doubts and unceasing struggles which agitate modern societies.

1. For details see the Author's Essai sur l'économie rurale de la Nierlande: and for the contratto di livello, his Etudes d'Economie ruraleLombardie.

2. See Merlin, Rép., I. p. 590. and Aulnier, Traité du domaine congéable.In Denmark there are taxes which last during the life of the lessee or Faester: they are called Livfaeste. The Faester has to pay the indfastning (laudemiun), when he gets possession of the land, and also an annual rent, landgilde. He may neither sub-let nor alienate his right of occupancy. Certain properties are necessarily subject to the Livfaeste. This obligation is called Faestetvang.