« AnteriorContinuar »
MR. M-CULLOCH's book introduces The cry of complaint to which we us to a question much debated in this have above alluded, is inspired by age of class jealousy. As soon as we many diverse motives. As Mr. Cochopen it, we are straightway environed rane's ragged followers flocked to Trawith
a barbarous noise of owls and falgar Square to denounce the incomecuckoos, asses, apes, and dogs," amid tax, so many a man takes up the whose jargon of phrases rises loudest shout against the law of primogeniture and most frequent the cry of “com- and entail, as tying up lands and remercial principles.” It is a great stricting their sale, who never had the grievance, it seems, that land should wherewithal to purchase a single acre not be disposed of according to “com- if all broad England was in the market. mercial principles;" that hill and holt, On the other han the purse-proud and moor and dale, should not pass citizen, sore that ready money is not from seller to buyer with the same yet quite at the top of the tree, and readiness as candles and calicoes. that he does not receive the same conTruly we have enough, and more sideration at St. James's as in Change than enough, of these same commer- Alley, delights to have some grievance cial principles in all walks of thought. whereon he can vent his spleen; and Even the pulpit is not free from them. really, in some stolid instances, perPolitics are positively smothered with suades himself that he is kept out of them. Ethical science, with the shal- the land which his gold could buy, lowisms of Paley and Bentham round through the agency of aristocratical her neck, struggles feebly with them. laws, as if George Robins had been a The book-keeper is abroad every- mythical personage, or the advertisewhere, with an indestructible faith in ments of Farebrother, Clark, and Lye, double entry. The Spirit of the Age were a mockery and delusion. wears a pen behind his ear, and sits on But the largest class of assailants a high stool with three legs. That are those who come to the debate forthe prevailing commercial principles tified with certain specious economical should have been so long excluded arguments, generally derived from a from the absolute possession of our one-sided view of some particular laws of land, and that those laws effect of these restrictive laws. To should have preserved to a time like the demolition of these objectors Mr. this so much of their feudal character, M'Culloch's work is more immediately is a notable proof of the adaptation of addressed; and very effectually, in our the laws to the general requirements opinion, does it accomplish its end. of the community, and of the steadi- He has not, perhaps, treated the subness of that social system which is so ject so widely as it might have been essentially linked to the maintenance treated: he has not entered into the of these laws.
indirect social influences that might be *A Treatise on the Succession to Property vacant by Death. By J. R. M'CUL. LOCH, Esq. London: Longmans, 1848.
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
large; that they prevent, in many “A powerful and widely-ramified aris. instances, the landlord from granting tocracy like that of England, not resting leases to his tenant beyond the term for support on any oppressive laws, and of his own life; that the tenant, in enjoying no privileges but which are for consequence, is not willing to incur the public advantage, is necessary to give the outlay of drainage and other expenstability and security to the government, and freedom to the people. Ånd 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 not spend his money in draining with
argument. The tenant, it seems, will from this remark, that any portion of out a lease. As, however, a lease the work is appropriated to a set de- would suffice to induce him so to do, fence of government by means of an aristocracy. By an aristocracy we landlord's estate for life, or in tail,
we might naturally suppose that the mean the deposition of political power would be at least an equal inducein the hands of men of leisure and
ment. These reasoners, however, education, as opposed to the tendency aver, that the landlord is only to be of the Reform Bill, to transfer the go, tempted by the unrestricted fee. Acverning functions to the “ practical” cording to this progressive scale, it men of the trading and moneyed inte might be fairly argued, that the tenant, rests, and the analogous claims of Chartism, founded on Jack Cade's still require the landlord's
on becoming lessee for years, would complaint, that the “king's council and the latter, when seized of the fee, are no good workmen.” In England, would decline the requisite expense, we are pretty sure to have an aristo- except on a guarantee of immortality, cracy—that is, the influences which and justify himself by Horace's auaffect government and legislation will
thority, emanate principally from that class which is socially at the head of the
“Tanquam nation; and the question is, whether Sit proprium quidquam puncto quod mobilis we are to have a mere moneyed aristo
Permutet dominos, et cedat in altera jura." cracy, or one qualified by those mixed and undefinable conditions which, But the general scope of an argumore than anything 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 gress in Scotland in the interval, and view of the question in its relation to especially during the last thirty years, the tillage of the soil in these three when entails were most prevalent than countries respectively, more especially in England or in any other country
whatever."-P. 71. in France. We find, from the result 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 de it hardly amounts in a good year to fourteen bushels. This result is completely tails of the code promulgated on Sinai 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 organization. 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 horse in England produce more corn and observed in all times and by all naother agricultural produce than three tions. Thus, the septennial release men and three horses in France. La- of debts, the return of every man to bour 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 towards the poor and unfortunate, of individuals ; showing that, as measured 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 agricul- that the custom of primogeniture is at ture. 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 gravelworse 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 population; the preference of the more than trebled, since this paragraph youngest son, by the custom of Bowas written, and yet agriculture and ma- rough-English, might well prevail nufactures have made a more rapid pro- 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 chil. be the most consonant, as a matter of dren 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, Oral. 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 froin 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 ha res ; 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 :
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 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 hares 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 Jaw) 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.