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Mr M'Culloch has taken an elaborate view of the question in its relation to the tillage of the soil in these three countries respectively, more especially in France. We find, from the result of his investigation, that,—

in Scotland in the interval, and especially
during the last thirty years, when entails
were most prevalent, than in England
or in any other country whatever."
P. 71.

Lord Kames, in this respect, seems to have had the same subtle ingenuity in prophesying counter to the event, as distinguishes Mr Cobden.

The first part of Mr M'Culloch's volume contains a cursory historical view of the earliest regulations of succession and inheritance. Thus, at p. 16, he traces the right of primogeniture, or preference of the eldest from maintaining that the specific deson, to the Mosaic law. We are far

"The average produce per acre of the erops of wheat in England and Wales in good years, has been carefully estimated at thirty-two bushels an acre, and it is certainly not under thirty bushels. But in France the produce of wheat, even in the richest and best cultivated departments, is little more, according to the official returns and the best private authorities, than twenty bushels an acre; and at an average of the entire kingdom, it 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 in England yields, from its being better farmed, considerably more wheat than two acres in France and if we took barley or oats, turnips, beef, or wool for a standard, the difference in our favour would be seen to be still greater.

If labour were taken for a standard in-
stead of land, the result would be still
more in our favour. One man and one
horse in England produce more corn and
other agricultural produce than three
men and three horses in France. La-
bour in the latter is misapplied and
wasted."-P. 117.
Again :-

"While two husbandmen in France furnish a surplus of food above their own consumption adequate for one individual, the same number of English husbandmen furnish a surplus for no fewer than four individuals; showing that, as measured by its capacity of providing for the other classes of the population, English is to French agriculture as four to one."P. 121.

So much for the comparison of French and English agriculture. Let us now turn to Scotland :

"In an Appendix to the Sketches of the History of Man,' published in 1774, Lord Kames says, "The quantity of land that is locked up in Scotland by entails has damped the growing spirit of agriculture. There is not produced sufficiency of corn at home for our consumption; and our condition will become worse and worse by new entails, till agriculture and industry be annihilated.' Now the extent of land under entail in Scotland has been certainly more than doubled, perhaps more than trebled, since this paragraph was written, and yet agriculture and manufactures have made a more rapid progress

are a model of law for all nations; on the contrary, they were no doubt intended to be such as a wise human law-giver would frame, and consequently more or less applicable according to the changes and differences of social organisation. But we do hold that these laws indicate to mankind principles which are to be observed in all times and by all nations. Thus, the septennial release of debts, the return of every man to his possession in the year of jubilee, the prohibition of interest upon loans except to an alien, even the poor man's portion in the field and vineyard, may or may not be regulations of society. adapted to a particular existing state

principle of mercy and forbearance But they enunciate a towards the poor and unfortunate, of which, we fear, our political economists and commercial legislators are too apt to lose sight. In conformity with this view, when we hear the contrary to the law of nature, (by the right of primogeniture assailed as way, where is this much-talked-of law of nature to be found?) we may safely appeal to the express recognition by the Jewish law of "the right of the first-born as the beginning of his father's strength," to show that the custom of primogeniture is at all events not repugnant to instinctive justice or the common-sense of mankind. The old Saxon law of gavelkind might be better adapted to a superabundance of land and a thin population; the preference of the youngest son, by the custom of Borough-English, might well prevail among the far progenitors of the

Saxon race on the steppes of Scythia,* when the elder brothers would be sent forth to roam over the boundless plain with their flocks and herds, the youngest remaining at home to be the prop of his father's old age. But in a settled and cultivated country, and among an advanced people, we maintain succession by primogeniture to be the most consonant, as a matter of theory, to the social feelings and requirements of man; and we think our author has fully established his position as to the beneficial character of its practical results.

In the course of his historical survey, Mr M'Culloch has of course touched on the principle of succession under the Roman law, but more lightly than we should have expected in reference to a system which has entered so largely into our Scottish law, and which is still accepted as a model framework of legal principles in most of the universities of Christendom. And the slight notice taken traces an analogy between the feudal and civil principles of succession, which we think is altogether incorrect. Our author, in speaking of the Roman law of succession, appears to confound in some measure the Roman term hæres with the English word heir. The civilian definition of hæres is qui ex testamento succedit in universum jus testatoris. In Scotland the word heir has much the same import:"The law deems it reasonable," says Erskine, (Inst. book iii. tit. 8, §. 2) "that every fiar shall have the power by deed, during his life, to declare who shall have the lands after his death and the person so favoured is called the heir." Whereas the feudal notion of the word heir preserved in the English law, is of one upon whom the estate is cast, after the death of his ancestor, by act of law and right of blood. In other words, hæres is he who is appointed by the will of the deceased to succeed to his civil rights, and, in default of such appointment, the person indicated by a certain general law. But the heir (in English law) is the next and worthiest of blood, appointed by the common-law to succeed to his ancestor; although this rule of succession may be set

:

aside by the appointment or will of the ancestor, if possessed of the feesimple. Bearing in mind this distinction, we shall perceive the cause of Mr M'Culloch's error when he says

"The Furian, the Voconian, and the Falcidian laws were passed, the first two under the republic, and the latter under Augustus, to secure the interests of children by limiting the power of fathers to make settlements to their prejudice." P. 6.

Now, the Voconian law, so far from protecting the interests of children, frequently operated in the case of daughters to prejudice them ;-of this we have a remarkable instance in the case of Annius Asellus, dwelt upon by Cicero, in the second action against Verres, Orat. i., c. 41-44. The law prevented all registered or assessed (censi) citizens of Rome from appointing a female as their hæres. Again, the Furian and Falcidian laws were passed to secure the person nominated as hæres from being prejudiced by the excessive amount of legacies under the will. Hence, if a man died leaving only daughters, he was prohibited by the Voconian law from appointing any of them as his hares; and the other two laws restrained him from appointing a nominal hæres, and leaving his property to his daughters by way of legacies (legata.)

In truth, the English notion of heirship, as succession by right of blood, seems to be entirely due to the northern nations and the feudal system. Under both systems, however, it is observable how the progress of legislation and society has been to increase the privileges and diminish the duties of the constituted successor. For as, in tenure by chivalry, the heir was rather the person to whom, in consequence of proximity of blood, the lord might look for the performance of the military services, than the fortunate acquirer of the property, so the Roman hæres was regarded more in the light of one on whom devolved the religious, civil, and private duties of the deceased; frequently so burdensome that the inheritance was altogether refused, until the heir was guarded by such laws as the Furian and Falcidian.

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 which we think Mr M'Culloch has not dealt fairly with the English law. It is as follows:

"In one respect the law of intestacy appears to stand much in need of revision. It is interpreted so as to give, in many cases, more to the eldest son than the real estate and his share of the personalty. Suppose, for example, that a person dies intestate, leaving an estate worth (say) L.100,000, with a mortgage made by him upon it for half its value, or £50,000, and leaving also £50,000 of personal property, in this case the real estate is obviously worth only £50,000; and consistently with the principles previously laid down, the eldest son should succeed to the estate burdened with its debt, and the personal property be divided among the children generally.

But a different rule has been permitted to grow up. The personal property of persons dying intestate is the first fund for their debts, though secured upon their estates; and it is the surplus only, if there be any, after these debts are paid, that is divisible among the children, who, in the above case, would be entitled to nothing. This appears to be in all respects a most objectionable arrangement."-P. 41.

We cannot see any anomaly here. "It is a rule in equity," says Cruise, (Digest, tit. xv. c. 4,)" that where a person dies, leaving a variety of funds, one of which must be charged with a debt, that the fund which received the benefit by the contracting the debt shall make satisfaction." This seems to us perfectly just and reasonable, according to the principles of the English law. In the case put by Mr M'Culloch, the personalty of £50,000 obviously owes its existence to the mortgage debt; and it is, therefore, fairly applied to the discharge of that debt. But, cessante ratione, cessat etiam lex; this only applies where the deceased was himself the mortgager. Where the lands came to him mortgaged, his personal estate will not be liable, even though he may have made a covenant to pay it. We may refer the legal reader to the judgment of Lord King, delivered, with the assistance of Lord Chief-Justice Raymond and the Master of the Rolls, in Evelyn v. Evelyn, 2 P. Wms. 659. Compare Cope v. Cope, 1 Salk. 449. Shafto v. Shafto, 2 P. Wms. 661.

Although the custom of primogeniture and the law of entail exercise a

similar influence on our social state, yet,

as they may be said in some measure to go by a different path towards the same end, Mr M'Culloch has treated them separately. With respect to the first, he begins by rebutting Adam Smith's sweeping denunciation:-"Nothing can be more contrary to the real interest of a numerous family, than a right which, in order to enrich one, beggars all the rest of the children." Wealth of Nations, p. 171.

"On the contrary," says Mr M'Culloch, "we are well convinced that much of the industry and of the superior wealth and civilisation of modern Europe, may be ascribed to the influence of the custom of primogeniture in determining the succession to estates; and that, were it abolished, or superseded by the opposite custom of equally dividing landed property among all the children, or even among all the sons, they would suffer universally by the change, the youngest as well as the oldest; while it would most seriously compromise the interests of every other class."-P. 28.

The truth is, that the right of primogeniture is rather to be regarded as having for its object the benefit of the community, than the interest of the particular family. If a man has £50,000 a-year and five sons, it may appear, at first sight, decidedly more conducive to "the greatest possible happiness of the greatest possible number," that each of these five sons should have £10,000 a-year, than that one should possess the whole, or bulk, of the paternal property, and the other four be left to buffet their way through the world. But it is for the interest of the nation that its aristocracy should be founded in old families, fortified and graced by historical associations; and these are only to be kept up by a devolution of their lands according to the feudal rule. But, as regards the interest of the particular family, it will appear on consideration that, in ninety-nine cases out of a hundred, this also is most effectually promoted by the law of primogeniture. By means of this law, the main stock of the family is left in its full strength as a nucleus round which the younger branches are united, and from which their members derive alike a great portion of their status in society, and inducement to advance themselves in their respective pursuits; and, on the other hand, the professions of the country are exalted and dignified by

the infusion into their ranks of men of
birth and education, who are, at the
same time, dependent on those pro-
fessions for their advancement. Sir
Matthew Hale, as quoted by Mr
McCulloch, forcibly describes the re-
sults of the opposite system. "This
equal division of inheritance," he says,
speaking of the old times of Saxon
gavelkind, “did by degrees bring the
inhabitants to a low kind of country
living; and families were broken; and
the younger sons which, had they not
had these little parcels of land to apply
themselves to, would have betaken
themselves to trades, or to military,
or civil, or ecclesiastical employments,
neglecting those opportunities, wholly
applied themselves to those small divi-
sions of land; whereby they neglected
the opportunities of greater advantage
of enriching themselves and the king-
dom." And if it should be urged that
Sir Matthew Hale could do little more
than form an à priori judgment of the
social condition of England in the
days of the Confessor, it should be
remembered that the picture here
drawn is precisely applicable to the
state of France at the present day,
and may easily be traced to its similar
system of partition. An important
public result of the same system, as
regards the landholders in the exercise
of their functions as citizens, may also
be observed in that country. The
large body of landed proprietors,
amounting to between four and five
millions, so far from being the leaders
of the people, are, perhaps, the most
inert and uninfluential class of the
whole community. They pay the bulk
of the taxes, and grumble accordingly;
but beyond a vague dread of aristo-
cracy-not unnaturally founded, per-
haps, on the traditions of the vexa-
tious privileges swept away in 1791—
they seem disposed calmly to acquiesce
in all the proclamations, charters, and
chimeras that may be thrust upon them
by busier handlers of the tools of
government, and behold revolutions
concocted in Paris, and bursting over
their heads, apparently without the
remotest conception that it any wise
rests with them to control or guide
the convulsion.

"It has sometimes been contended that the custom of primogeniture is injurious, from its interesting the leading families of the country in the support of expensive

public establishments, in which their younger branches are most commonly placed."-P. 38.

This objection also Mr M'Culloch brings to the test of experiment, and shows that this bias, if it really exist, is little perceptible, and that the aristocracy have shown much more zeal to discharge the functions of the illpaid offices of the army and navy, than to get into their hands the lucrative situations connected with the administration of justice. It was certainly not the immediate interest of the aristocracy, for instance, to maintain the offices of the six clerks in Chancery, the profits on which were estimated for compensation at sums varying, we believe, from £2500 to £1000 per annum.

The law of entail is traceable to the same human instincts as the law of primogeniture. The clannish feelings of the northern nations, their notion of representation by blood, and the territorial character of their citizenship, all combined to produce an anxiety to perpetuate the old stocks in the homes of their fathers. Nor is this desire of posthumous control over the transmission of lands the product, as is sometimes alleged, of an artificial state of society. Man's possessory instinct essentially connects itself with the future-Serit arbores quæ alteri prosint sæculo. The justice of gratifying this wish by general laws of the community is not more impeachable than that of guarding the indefeasible possession of the owner during his lifetime. It remains to be seen how far the sanction of entails is consistent with the good of the nation in general.

Every lawyer knows that the progress of legal decisions in England has been adverse to entails, and that, although the statute De Donis continues on the statute-book, yet it was long ago rendered almost nugatory by the introduction of fines and recoveries. Hence the term entail is now popularly applied to denote the strict settlement of lands, under provisions which prevent them from passing from the heirs to whom they are limited; this having been, of old, the result of an entail properly so called, though it now requires a more complicated mode of settling, and can only endure (so as to render the lands inalienable) for a

life or any number of lives in being, and twenty-one years afterwards. This more popular meaning of the word entail is that which Mr M'Culloch follows-his object being to treat of the influence of tying up lands from alienation.

Measuring the practice of entails by the rule of utility, Mr M'Culloch selects two points as the principal topics of discussion.

"In the first place, it is alleged in favour of entails that they stimulate exertion and economy; that they hold out to industry and ambition the strongest and safest excitement in the prospect of founding an imperishable name and a powerful family, and of being remembered and venerated by endless generations as their chief and benefactor. And, in the second place, it is said that entails form the only solid bulwark of a respectable aristocracy, and prevent generations from being ruined by the folly or misfortunes of an individual."-P. 78.

The first of these propositions is, no doubt, partially true; but the motive put forward has not, we think, as a matter of experience, the force that might, at first sight, be attributed to it. Perhaps the keenest accumulators of wealth have not been those who have fixed their capital in a landed estate.

The man of business habits and judicious speculation is drawn to make his fortune in obedience to a passion which is partly developed, and at all events fostered, by the pursuit

of his life. It cannot be said to arise

altogether from a notion of benefiting posterity, of being the founder of a house-the man of whom future Fitztomkynses shall be ashamed-that John Tomkins, merchant, sets at nought all the expostulations of selfindulgence:

"Tan mare transilias ? tibi tortâ cannabe

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way in which a Roman citizen of great wealth could establish the influence of his family. He could not, like an English gentleman, connect his name with a landed estate, and extend his influence by those good offices and local duties which lie so immediately open to a man in that capacity. As an almost necessary consequence, he sought for power through the demoralisation and corruption of the holders of the suffrage-causes which contributed more than any other to the downfall of the republic. By lavishing his gold in this manner, he obtained, not only political eminence for himself, but also that power which led to proconsulates and proprætorships among his heirs, and thus gave them the opportunity of repairing, by fresh exactions, his diminished revenues. law of entail as an inducement to a Hence we should rather view the man to perpetuate his thousands in broad acres than to acquire his fortune in the first instance. And, in conformity with this view, it may be observed, that it is more generally the son or other successor than the architect of the fortune himself who converts the accumulated wealth into this permanent form.

Mr M'Culloch's second point-the preservation of families by means of entails-is one of wider interest and more general importance. In a bustling mercantile community like ours, we cannot too jealously guard any institution which, directly or indirectly, tends to preserve distinctions due to something more than mere wealth.

And there can be no doubt that the system of entails has saved many an ancient line from being thrust from its home of centuries to a strange spot, and this not only among the titled and wealthy, but among the yeomanry and " statesmen." In England, of course, a family may frequently perish through the possession of an estate in fee-simple passing into the hands of an unthrifty representative of the line, as the settlements require constant renewal. But in Scotland the system of perpetual entail exercises a much more potent influence in their behalf. Mr MCulloch, though he rebuts many of the objections urged against the Scottish law, is nevertheless anxious to see it assimi

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