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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 aro 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
except to an alien, even the poor Again :
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 individuals ; showing that, as measured
towards the poor and unfortunate, of by its capacity of providing for the other
which, we fear, our political econoclasses of the population, English is to
mists and commercial legislators are French agriculture as four to one.”
too apt to lose sight. In conformity P. 121.
with this view, when we hear the
right of primogeniture assailed as So much for the comparison of contrary to the law of nature, (by the 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 tlan 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 fecsent 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 pripciples 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 hares, and leaving his prohæres with the English word heir. perty to his daughters by way of The civilian definition of hæres 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, . 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 bis 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 revis Smith's sweeping denunciation:-“No. sion. 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
beggars all the rest of the children.” person dies intestate, leaving an estate 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. But a
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 lex; 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 branclies 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 which 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 honies 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 unintiuential 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 of the country in the support of expensive to render the lands inalienable) for a life or any number of lives in being, way in which a Roman citizen of and twenty-one years afterwards. great wealth could establish the influThis more popular meaning of the ence of his family. He could not, like word entail is that which Mr M.Cul- an English gentleman, connect his loch follows-his object being to treat name with a lauded estate, and extend of the influence of tying up lands from his influence by those good oflices and alienation.
local duties which lie so immediately Measuring the practice of entails open to a man in that capacity. As by the rule of utility, Mr M'Culloch an almost necessary consequence, he selects two points as the principal sought for power through the demotopics of discussion.
ralisation and corruption of the holders “ In the first place, it is alleged in fa
of the suffrage-causes which contrivour of entails that they stimulate exer- buted more than any other to the tion and economy ; that they hold out to downfall of the republic. By lavishindustry and ambition the strongest and ing his gold in this manner, he obtainsafest excitement in the prospect of found- ed, not only political eminence for himing an imperishable name and a powerful self, but also that power which led family, and of being remembered and
to proconsulates and proprætorships venerated by endless generations as their chief and benefactor. And, in the second
among his heirs, and thus gave them place, it is said that entails form the only
the opportunity of repairing, by fresh solid bulwark of a respectable aristo- exactions, his diminished revenues. cracy, and prevent generations from being law of entail as an inducement to a
Hence we should rather view the ruined by the folly or misfortunes of an individual.”—P. 78.
man to perpetuate his thousands in The first of these propositions is, no
broad acres than to acquire his fortune doubt, partially true; but the motive in the first instance. And, in conforput forward has not, we think, as a mity with this view, it may be obmatter of experience, the force that served, that it is more generally the might, at first sight, be attributed to
son or other successor than the archiit. Perhaps the keenest accumulators
tect of the fortune himself who conof wealth have not been those who verts the accumulated wealth into this have fixed their capital in a landed permanent form, estate. The man of business habits
Mr M Culloch's second point-the and judicious speculation is drawn to preservation of families by means of make his fortune in obedience to a
entails is one of wider interest and passion which is partly developed, and
more general importance. In a bustat all events fostered, by the pursuit ling mercantile community like ours, of his life. It cannot be said to arise
we cannot too jealously guard any altogether from a notion of benefiting institution which, directly or indiposterity, of being the founder of å rectly, tends to preserve distinctions house-the man of whom future Fitz due to something more than mere tomkynses shall be ashamed that wealth. And there can be no doubt John Tomkins, merchant, sets at
that the system of entails has saved nonght all the expostulations of self-many an ancient line from being indulgence:
thrust from its home of centuries to a “Tun' mare transilias ? tibi tortâ cannabe strange spot, and this not only among fulto
the titled and wealthy, but among the Cæna sit in transtro ? Veientanumque yeomanry and“ statesmen.” In Engrubellum
land, of course, a family may freExhalet vapidâ læsum pice fissilis quently perish through the possession obba?"
of an estate in fee-simple passing into Enormous fortunes were accumulated the hands of an unthrifty representaduring the declining days of the Ro- tive of the line, as the settlements reman republic. But entails being then quire constant renewal. But in Scotunknown, and the Roman nobility land the system of perpetual entail having no territorial position, these exercises a much more potent influfortunes, usually acquired by oppres- ence in their behalf. Mr M'Culloch, sion and extortion in the provinces, though he rebuts many of the objecwere squandered in largesses and cor- tions urged against the Scottish law, is ruption at home. There was no other nevertheless anxious to see it assimi