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traced to our system of the laws re- proceeds at once to show how the laws lating to land; but the economical on which he treats operate for this part of the question he has grasped preservation, and to rebut the objecmost completely, and supported by tions advanced against them on the most able and practical reasoning. score of their relations to other classes
We must, we suppose, look for the of the community. text of the work, not where the text One of the most frequent of these is usually found, but at the end. The objections is, that the laws in question following sentence, which is almost tend to diminish the productiveness the concluding one, may be taken as of the land, and thereby inflict a the leading proposition of the work:- serious injury on the community at
“ A powerful and widely-ramified aris- large ; that they prevent, in many tocracy like that of England, not resting instances, the landlord from granting for support on any oppressive laws, and leases to his tenant beyond the term enjoying no privileges but which are for of his own life ; that the tenant, in the public advantage, is necessary to give consequence, is not willing to incur stability and security to the government, the outlay of drainage and other expenand freedom to the people. And our laws sive improvements, because he is not in regard to succession being well fitted secured by a lease; while the landlord, to maintain such an aristocracy, and, at on the other hand, will not enter into the same time, to inspire every other class these expenses, because he does not with the full spirit of industry and enter- feel the same interest in his limited prise, to change them would not be fool, estate which he would in the unconish merely, but criminal, –a lèse majesté ditional fee-simple. against the public interests.”—P. 172.
Note first of all the logic of this It must not, however, be supposed argument. The tenant, it seems, will from this remark, that any portion of not spend his money in draining withthe work is appropriated to a set de- out a lease. As, however, a lease fence of government by means of an would suffice to induce him so to do, aristocracy. By an aristocracy we we might naturally suppose that the mean the deposition of political power landlord's estate for life, or in tail, in the hands of men of leisure and would be at least an equal induceeducation, as opposed to the tendency ment. These reasoners, however, of the Reform Bill, to transfer the go- aver, that the landlord is only to be verning functions to the “practical” tempted by the unrestricted fee. Acmen of the trading and moneyed inte- cording to this progressive scale, it rests, and the analogous claims of might be fairly argued, that the tenant, Chartism, founded on Jack Cade's on becoming lessee for years, would complaint, that the “ king's council still require the landlord's life-interest; are no good workmen." In England, and the latter, when seised of the fee, we are pretty sure to have an aristo- would decline the requisite expense, cracy—that is, the influences which
except on a guarantee of immortality, affect government and legislation will and justify himself by Horace's auemanate principally from that class thority, which is socially at the head of the
Tanquam nation; and the question is, whether Sit proprium quidquam puncto quod mowe are to have a mere moneyed aristo
bilis horæ cracy, or one qualified by those mixed
Permutet dominos, et cedat in altera jura." and undefinable conditions which, But the general scope of an argumore than any thing else, act to keep ment may be just, though clumsily down the growing and eager ascen- stated and fallaciously supported. We dency of wealth per se. Among the are, however, at no loss for experisafeguards of such an aristocracy as ments on the largest scale whereby we have described, not the least to test the theory here noticed. We powerful is to be found in the laws have English agriculture, subjected discussed in the work before us. Mr to a limited law of entail, contrasted M'Culloch, as we have said, assumes on the one hand with Scottish agrithe importance to the country of pre- culture, under a law of perpetual enserving the present characteristics of tail, and on the other with that of British aristocracy; and he therefore France and its compulsory gavelkind. Mr M'Culloch has taken an elaborate in Scotland in the interval, and especially view of the question in its relation to during the last thirty years, when entails the tillage of the soil in these three were most prevalent, than in England countries respectively, more especially or in any other country whatever.” in France. We find, from the result P. 71. of his investigation, that,
Lord Kames, in this respect, seems
to have had the same subtle inge“The average produce per acre of the crops of wheat in England and Wales in nuity in prophesying counter to the good years, has been carefully estimated event, as distinguishes Mr Cobden. at thirty-two bushels an acre, and it is
The first part of Mr M-Culloch's certainly not under thirty bushels. But volume contains a cursory historical in France the produce of wheat, even in view of the earliest regulations of sucthe richest and best cultivated depart- cession and inheritance. Thus, at ments, is little more, according to the p. 16, he traces the right of primoofficial returns and the best private au- geniture, or preference of the eldest thorities, than twenty bushels an acre ; son, to the Mosaic law. We are far and at an average of the entire kingdom, from maintaining that the specific deit hardly amounts in a good year to four- tails of the code promulgated on Sinai teen bushels. This result is completely decisive. It shows that one acre of land
are a model of law for all nations ; in England yields, from its being better on the contrary, they were no doubt farmed, considerably more wheat than intended to be such as a wise human two acres in France : and if we took law-giver would frame, and consebarley or oats, turnips, beef, or wool for quently more or less applicable aca standard, the difference in our favour cording to the changes and differences would be seen to be still greater. .... of social organisation. But we do If labour were taken for a standard in- hold that these laws indicate to stead of land, the result would be still mankind principles which are to be more in our favour. One man and one observed in all times and by all nahorse in England produce more corn and tions. Thus, the septennial release other agricultural produce than three of debts, the return of every man to men and three horses in France. Labour in the latter is misapplied and his possession in the year of jubilee, wasted.”—P. 117.
the prohibition of interest upon loans Again :
except to an alien, even the poor
man's portion in the field and vine“While two husbandmen in France yard, may or may not be regulations furnish a surplus of food above their own adapted to a particular existing state consumption adequate for one individual, of society. But they enunciate a the same number of English husbandmen principle of mercy and forbearance furnish a surplus for no fewer than four towards the poor and unfortunate, of individuals ; showing that, as measured which, we fear, our political econoby its capacity of providing for the other mists and commercial legislators are classes of the population, English is to French agriculture as four to one.”- too apt to lose sight. In conformity P. 121.
with this view, when we hear the So much for the comparison of contrary to the law of nature, (by the
right of primogeniture assailed as French and English agriculture. Let way, where is this much-talked-of us now turn to Scotland :
law of nature to be found ?) we may “In an Appendix to the Sketches of safely appeal to the express recogthe History of Man, published in 1774, nition by the Jewish law of "the Lord Kames says, " The quantity of land right of the first-born as the beginthat is locked up in Scotland by entails ning of his father's strength," to show has damped the growing spirit of agri- that the custom of primogeniture is at culture. There is not produced sufficiency all events not repugnant to instinctive of corn at home for our consumption; and justice or the common-sense of manour condition will become worse and kind. The old Saxon law of gavelworse by new entails, till agriculture and kind might be better adapted to a industry be annihilated. Now the extent of land under entail in Scotland has been superabundance of land and a thin certainly more than doubled, perhaps more population; the preference of the than trebled, since this paragraph was youngest son, by the custom of Bowritten, and yet agriculture and manufac- rough-English, "might well prevail tures have made a more rapid progress among the far progenitors of the
Saxon race on the steppes of Scythia,* aside by the appointment or will of when the elder brothers would be the ancestor, if possessed of the feesent forth to roam over the boundless simple. Bearing in mind this distincplain with their flocks and herds, the tion, we shall perceive the cause of youngest remaining at home to be the Mr M'Culloch's error when he saysprop of his father's old age. But in
“ The Furian, the Voconian, and the à settled and cultivated country, and Falcidian laws were passed, the first two among an advanced people, we main- under the republic, and the latter under tain succession by primogeniture to Augustus, to secure the interests of childbe the most consonant, as a matter of ren by limiting the power of fathers to theory, to the social feelings and re- make settlements to their prejudice." P.6. quirements of man; and we think our Now, the Voconian law, so far from author has fully established his posi- protecting the interests of children, tion as to the beneficial character of frequently operated in the case of its practical results.
daughters to prejudice them ;-of this In the course of his historical sur- we have a remarkable instance in the vey, Mr M‘Culloch has of course case of Annius Asellus, dwelt upon by touched on the principle of succession Cicero, in the second action against under the Roman law, but more Verres, Orat. i., c. 41–44. The law lightly than we should have expected prevented all registered or assessed in reference to a system which has (censi) citizens of Rome from appointentered so largely into our Scottish ing a female as their hæres. Again, law, and which is still accepted as a the Furian and Falcidian laws were model framework of legal principles passed to secure the person nominated in most of the universities of Chris- as hæres from being prejudiced by the tendom. And the slight notice taken excessive amount of legacies under traces an analogy between the feudal the will. Hence, if a man died leaving and civil principles of succession, only daughters, he was prohibited by which we think is altogether incorrect. the Voconian law from appointing any Our author, in speaking of the Roman of them as his hæres; and the other two law of succession, appears to confound laws restrained him from appointing in some measure the Roman term a nominal hæres, and leaving his prohæres with the English word heir. perty to his daughters by way of The civilian definition of hares is qui legacies (legata.) ex testamento succedit in universum In truth, the English notion of heirjus testatoris. In Scotland the word ship, as succession by right of blood, "heir has much the same import:- seems to be entirely due to the * The law deems it reasonable," says northern nations and the feudal sysErskine, (Inst. book iii. tit. 8, s. 2) tem. Under both systems, however, " that every fiar shall have the power it is observable how the progress by deed, during his life, to declare of legislation and society has been who shall have the lands after his to increase the privileges and dideath: and the person so favoured is minish the duties of the constituted called the heir." Whereas the feudal successor. For as, in tenure by chinotion of the word heir preserved in valry, the heir was rather the person the English law, is of one upon whom to whom, in consequence of proximity the estate is cast, after the death of of blood, the lord might look for the his ancestor, by act of law and right performance of the military services, of blood. In other words, hæres is he than the fortunate acquirer of the prowho is appointed by the will of the perty, so the Roman hæres was redeceased to succeed to his civil rights, garded more in the light of one and, in default of such appointment, on whom devolved the religious, civil, the person indicated by a certain and private duties of the deceased; general law. But the heir (in English frequently so burdensome that the law) is the next and worthiest of inheritance was altogether refused, blood, appointed by the common-law until the heir was guarded by such to succeed to his ancestor ; although laws as the Furian and Falcidian. this rule of succession may be set While we are in the humour of find
* We suspect this custom may be traced in the Scythian legends of Herodotus. See his 4th book, chapters v., vi., and x.
ing fault, we may notice a passage in as they may be said in some measure which we think Mr M'Culloch has to go by a different path towards the not dealt fairly with the English law. same end, Mr M'Culloch has treated It is as follows :
them separately. With respect to the “ In one respect the law of intestacy first, he begins by rebutting Adam appears to stand much in need of revi- Smith's sweeping denunciation:-“Nosion. It is interpreted so as to give, in thing can be more contrary to the real many cases, more to the eldest son than interest of a numerous family, than a the real estate and his share of the per- right which, in order to enrich one, sonalty. Suppose, for example, that a person dies intestate, leaving an estate beggars all the rest of the children." worth (say) L.100,000, with a mortgage
Wealth of Nations, p. 171. made by him upon it for half its value, or “On the contrary,” says Mr M'Cul. £50,000, and leaving also £50,000 of per. loch,“ we are well convinced that much sonal property, in this case the real estate of the industry and of the superior wealth is obviously worth only £50,000 ; and and civilisation of modern Europe, may consistently with the principles previously be ascribed to the influence of the cuslaid down, the eldest son should succeed tom of primogeniture in determining the to the estate burdened with its debt, succession to estates ; and that, were it and the personal property be divided abolished, or superseded by the opposite among the children generally.
custom of equally dividing landed prodifferent rule has been permitted to grow perty among all the children, or even up: The personal property of persons among all the sons, they would suffer dying intestate is the first fund for their universally by the change, the youngest as debts, though secured upon their estates; well as the oldest ; while it would most and it is the surplus only, if there be any seriously compromise the interests of after these debts are paid, that is divis- every other class.”—P. 28. ible among the children, who, in the above The truth is, that the right of pricase, would be entitled to nothing. This mogeniture is rather to be regarded as appears to be in all respects a most ob- having for its object the benefit of the jectionable arrangement.”—P. 41.
community, than the interest of the We cannot see any anomaly here. particular family. If a man has " It is a rule in equity,” says Cruise, £50,000 a-year and five sons, it may (Digest, tit. xv. c. 4,) " that where a
appear, at first sight, decidedly more person dies, leaving a variety of funds, conducive to "the greatest possible one of which must be charged with a happiness of the greatest possible debt, that the fund which received the number," that each of these five sons benefit by the contracting the debt should have £10,000 a-year, than that shall make satisfaction.” This seems
one should possess the whole, or bulk, to us perfectly just and reasonable, of the paternal property, and the other according to the principles of the Eng- four be left to buffet their way through lish law. In the case put by Mr the world. But it is for the interest M'Culloch, the personalty of £50,000 of the nation that its aristocracy obviously owes its existence to the should be founded in old families, formortgage debt; and it is, therefore, tified and graced by historical associafairly applied to the discharge of that tions; and these are only to be kept debt. But, cessante ratione, cessat etiam
up by a devolution of their lands les; this only applies where the de- according to the feudal rule. But, as ceased was himself the mortgager. regards the interest of the particular Where the lands came to him mort- family, it will appear on consideration gaged, his personal estate will not be that, in ninety-nine cases out of a hunliable, even though he may have made dred, this also is most effectually proa covenant to pay it. We may refer moted by the law of primogeniture. the legal reader to the judgment of By means of this law, the main stock of Lord King, delivered, with the assist- the family is left in its full strength as ance of Lord Chief Justice Raymond a nucleus round which the younger and the Master of the Rolls, in Evelyn branches are united, and from which v. Evelyn, 2 P. Wms. 659. Compare their members derive alike a great Cope v. Cope, 1 Salk. 449. Shafto v.
portion of their status in society, and Shafto, 2 P. Wms. 661.
inducement to advance themselves.in Although the custom of primogeni- their respective pursuits; and, on the ture and the law of entail exercise a other hand, the professions of the similar influence on our social state, yet, country are exalted and dignified by the infusion into their ranks of men of public establishments, in which their birth and education, who are, at the younger branches are most commonly same time, dependent on those pro- placed.”—P. 38. fessions for their advancement. Sir This objection also Mr M‘Culloch Matthew Hale, as quoted by Mr brings to the test of experiment, and M'Culloch, forcibly describes the re- shows that this bias, if it really exist, sults of the opposite system. “This is little perceptible, and that the arisequal division of inheritance," he says, tocracy have shown much more zeal speaking of the old times of Saxon to discharge the functions of the illgavelkind,“ did by degrees bring the paid offices of the army and navy, inhabitants to a low kind of country than to get into their hands the lucraliving; and families were broken ; and tive situations connected with the the younger sons which, had they not administration of justice. It was cerhad these little parcels of land to apply tainly not the immediate interest of themselves to, would have betaken the aristocracy, for instance, to mainthemselves to trades, or to military, tain the offices of the six clerks in or civil, or ecclesiastical employments, Chancery, the profits on wbich were neglecting those opportunities, wholly estimated for compensation at sums applied themselves to those small divi- varying, we believe, from £2500 to sions of land; whereby they neglected £1000 per annum. the opportunities of greater advantage The law of entail is traceable to the of enriching themselves and the king- same human instincts as the law of dom.” And if it should be urged that primogeniture. The clannish feelings Sir Matthew Hale could do little more of the northern nations, their notion than form an à priori judgment of the of representation by blood, and the social condition of England in the territorial character of their citizendays of the Confessor, it should be ship, all combined to produce an anremembered that the picture here xiety to perpetuate the old stocks in drawn is precisely applicable to the the homes of their fathers. Nor is this state of France at the present day, desire of posthumous control over the and may easily be traced to its similar transmission of lands the product, as system of partition. An important is sometimes alleged, of an artificial public result of the same system, as state of society. Man's possessory regards the landholders in the exercise instinct essentially connects itself with of their functions as citizens, may also the future-Serit arbores quæ alteri be observed in that country. The prosint sæculo. The justice of gratilarge body of landed proprietors, fying this wish by general laws of the amounting to between four and five community is not more impeachable millions, so far from being the leaders than that of guarding the indefeasible of the people, are, perhaps, the most possession of the owner during his inert and uninfluential class of the lifetime. It remains to be seen how whole community. They pay the bulk 'far the sanction of entails is consistent of the taxes, and grumble accordingly; with the good of the nation in but beyond a vague dread of aristo- general. cracy-not unnaturally founded, per- Every lawyer knows that the prohaps, on the traditions of the vexa- gress of legal decisions in England has tious privileges swept away in 1791– been adverse to entails, and that, they seem disposed calmly to acquiesce although the statute De Donis conin all the proclamations, charters, and tinues on the statute-book, yet it was chimeras that may be thrust upon them long ago rendered almost nugatory by by busier handlers of the tools of the introduction of fines and recovegovernment, and behold revolutions ries. Hence the term entail is now concocted in Paris, and bursting over popularly applied to denote the strict their heads, apparently without the settlement of lands, under provisions remotest conception that it any wise which prevent them from passing from rests with them to control or guide the heirs to whom they are limited; the convulsion.
this having been, of old, the result of "It has sometimes been contended that an entail properly so called, though it the custom of primogeniture is injurious, now requires a more complicated mode from its interesting the leading families of settling, and can only endure (so as
"he country in the support of expensive to render the lands inalienable) for a