1O The Fence Question in the South. 



" It is true that the French farmers are citizens of a Republic, and are owners of the soil on 

 which they live ; but it is a Republic without the traditions of freedom; a soil divided among 

 them by violence before they had reached the point of citizenship. * * * * * 

 There the home known to the American farmer is not found. The American farm house is 

 almost unknown. Th^ peasantry gather for the night iuto crowded towns away from their 

 lands and go forth by day to till their few outlying acres. (Problem of American Landhold- 

 ing,im.") 



In less advanced nations, as Russia and Poland, until within a very few years, 

 all cultivated lands have been uninclosed, patches of open pasture and plowed 

 lands appearing here and there in the interminable forest and wilderness 

 tracts. But Herbert Barry an intelligent English traveller in his " Russia in 

 1870 " finds it among the earliest results of the abolition of Russian serfdom, 

 that " the fields are better fenced." 



In Spain the lands are everywhere open, and in Sweden there are but few 

 fences. Italy to day has no more fences than in the days of the Roman 

 Empire, when the avocation of the herdsman gave him his place in classic 

 poetry. Says a writer : " Tityrus and Menalcas would have had something 

 else to do than sit under a wide spreading beech tree, and blow their rustic 

 reeds, if the want of inclosures had not rendered their services indispensable 

 to prevent their flocks from straying." 



It will thus be seen that the absence of fences belongs to the earliest times 

 and the rudest husbandry, or to present systems that reflect past op- 

 pressions ; and that inclosed fields have a most important relation to the pro- 

 gress of civil liberty, which protects and enhances for the individual proprietor 

 his enjoyment of exclusive possession of soil. 



THE FENCE IN AMERICA. 



The spirit of the English people, and the early history and meaning of 

 English land enclosures, was already well shaped at the period when offshoots 

 from the home country made the English settlements in America. The Eng- 

 lishman's love of land owning, and pride in his separate possession of the 

 soil, was intensified by the finding fuller scope in the wildernesses of a 

 new continent to be tamed and portioned. There were no old military 

 tenures to narrow and impair such possession, for these had passed away in 

 England. 



By the original patents from the crown to the first American colonies, 

 shown in the charters of Maryland, Virginia, Georgia and the Carolinas, as 

 the parents of all tenures in the Southern states, the lands were granted to 

 the patentees not as a feature of political government, in the old feudal 

 meaning, but only as the source of the rules of holding and transmitting real 

 property between man and man. Thus the people of the state became the 

 original source of titles, and all land was made allodial, or free, and fence 

 laws were among the first to appear in the colonial statute books, as they 

 still are among the first in our new territories. (See laws of Colorado 1877 : 

 Oregon 1854 : Arizona 1877 : Idaho 1878.) 



COMMON LAW AND FENCE PRESCRIPTIONS. 



Ancient Brehon statutes in Ireland, the foundation of English law, estab- 

 lished careful regulations and penalties pertaining to the trespassing and 

 injury done by beasts, but contained no fence prescriptions. 



At the common law no man is bound to fence his lands against the cat- 

 tle of another. An owner of cattle must keep his beasts strictly upon 

 his own land, and he becomes a trespasser if they go upon the land of 

 another, whether such land is fenced or not. In other words, at com- 

 mon law the owner of animals must fence them in his neighbor is not bound 



