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ing fault, we may notice a passage
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 in much need of revi- Smith's sweeping denunciation :-"No
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) £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
lock, 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 civilization of modern Europe, may consistently with the principles previous- be ascribed to the influence of the cusly laid down, the eldest son should suc- tom of primogeniture in determining the ceed 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burdened with its debt, succession to estates ; and that, were it and the personal property be divided abolished, or superseded by the opposite among the children generally.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 debts, though secured upon their estates; as well as the oldest; while it would aud it is the surplus only, if there be any, most seriously compromise the interests after these debts are paid, that is divisi- of every other class.”—P. 28. ble among the children, who, in the The truth is, that the right of priabove case, would be entitled to nothing. mogeniture is rather to be regarded as This appears to be in all respects a most having for its object the benefit of the objectionable 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, cessanle 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 Évelyn 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. 664.
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 expensive public establishments, in birth and education, who are, at the which their younger branches are most same time, dependent on those pro
commonly 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 adthe younger sons which, had they not ministration of justice. It was cerhad these little parcels of land to ap- tainly not the immediate interest of ply 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
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 potion 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 anxremembered that the picture here iety 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 tious privileges swept away in 1791– has 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 in any which prevent them from passing from wise rests with them to control or the heirs to whom they are limited; guide the convulsion.
this having been, of old, the result of It has sometimes been contended
an entail properly so called, though it that the custom of primogeniture is in- now requires a more complicated mode jurious, from its interesting the leading of settling, and can only endure (so as families of the country in the support of to render the lands inalienable) for a
life or any number of Hves 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 landed estate, and extend of the influence of tying up lands from his influence by those good offices and alienation.
local duties which lie so immediately Measuring the practice of entails by open to a man in that capacity. As the rule of utility, Mr. M'Culloch se- an almost necessary consequence, he lects two points as the principal topics sought for power through the demoof discussion.
Hralization 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 lavishing industry and ambition the strongest and his gold in this manner, he obtained safest excitement in the prospect of not only political eminence for himself, founding an imperishable name and a but also that power which led to propowerful family, and of being remember. consulates and proprætorships among ed and venerated by endless generations as their chief and benefactor. And, in the his heirs, and thus gave them the opsecond place, it is said that entails form portunity of repairing, by fresh exacthe only solid bulwark of a respectable tions, his diminished revenues. aristocracy, and prevent generations Hence we should rather view the from being ruined by the folly or mis- law of entail as an inducement to a fortunes 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 a 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 naught all the expostulations of self- maný an ancient line from being indulgence:
thrust from its home of centuries to a “ Tun' mare transilias ? tibi tortâ can- strange spot, and this not only among nabe fulto
the titled and wealthy, but
the Cæna sit in transtro? Veientanumque geomanry 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.
lated in a great measure to that of " A Bill for the amendment of the Law England. There is, however, an ex- of Entail in Scotland,” and endorsed ception which he would make to the with the names of the Lord-Advocate, rule against perpetuity of entails. It Sir George Grey, and Mr. Solicitoris with regard to the peerage, in which General for Scotland. Whatever diffimatter we cordially agree with him. culties Mr. M*Culloch feels with regard There were, in ancient times, instances to relaxing the fetters of entail, it is of barons who were degraded from obvious that the contrivers of this bill their dignity on account of their lack are in nowise hampered by them. They of sufficient revenue to support their go to work in the most off-hand manner hereditary title. The independence possible. A short and unobtrusiveand the dignity of the House of Lords looking bill is to drive clean through would be alike maintained by an en- all the existing settlements and deeds actment enabling, or even obliging, all of tailzie, with their complicated train peers to tie up by perpetual entail a of clauses irritant and resolutive, as certain portion of their estates to ac- if no mortal was concerned in the company the title.
Such anomalies matter, and estates were the proper as that of an Earl of Buchan (Lord toys of law-makers. Erskine's father, see Lord Campbell's The fact of the quantity of alienable Lives of the Chancellors) living in the land dininishing in a commercial uppermost flat of a sixteen-story country, while trade and population house, would thereby be avoided with are increasing, is no doubt a state of considerable advantage to the national things which calls for a remedy, since interests.
there must at some period or another Mr. M‘Culloch, therefore, who quotes be a failure of land adequate to meet Sir William Temple and Dr. Johnson the requirements of realized fortunes. on the same side, would preserve the If, in the judgment of reasonable and law of perpetual entail for the Scot- practical observers, the difficulty could tish peerage, and extend it also to be met by making all future entails that of England. In other respects he subject to be barred by a process is, as we have above stated, in favour analogous to that existing in England, of a considerable modification of the we should think there could be no Scottish law of entail. He admits, hesitation in affirming it to be the however, the difficulty of dealing with most just and most expedient course existing entails.
to introduce such a change, and leave
the existing settlements in their con“ These have established a right of templated perpetuity. If, however, it property not only in the actual possessors can be clearly established that already and their families, but, speaking gene- too much land is locked up in the rally, in a wide circle of collateral heirs; nor could the rights of the unborn heirs northern kingdom, and that the soil be affected without annulling the clauses now free from entail is insufficient to in a great number of settlements, and satisfy the requirements of future also in marriage-contracts and other buyers, then we should say that the deeds inter vivos. It is, therefore, hardly utmost care and skill were required possible materially to relax the fetters in framing enactments which should of entails with strict justice to all par- adapt themselves to the justice of ties, though it might perhaps be slowly particular cases, and should, as far and gradually effected without inflicting as might be, save existing and vested any very serious hardship on any individual. We incline to think that this interests in their delicate multiplicity might be most easily brought about by skill were required, it would be in a
and connexion. If ever such care and saving the rights of living heirs of entail, and of such heirs as may be born measure which interferes more extenunder existing marriage-contracts. The sively with vested rights-usually with interests of the possible heirs that might good reason a sacred thing in the ey be prejudiced by the adoption of some of the law-than any which appears in such rule as this, are of so very unsub- the statute-books of the three kingstantial a description that they might doms. A statute to convert the Irish safely be neglected.”—P. 78.
tenants into owners of the fee-simple At the time we write, a measure is of their several holdings (a project pending before Parliament, entitled which has been talked of), would
scarcely be a more startling invasion à voluntary or (as the Scotch say) of the rights of property as they are gratuitous conveyance. Tailzies, howusually recognised. We do not, how- ever, to which no clauses are annexed, ever, intend to impeach the general do not prevent the heir from conveyprovisions of the bill. If, as we before ing the lands in any manner he observed, so important a change was pleases. Now, as the object of this found to be necessary, it is right to bill is to relax the bonds of perpetual make it; and it is no more than was inalienability, we presume that only effected in England by a more gradual those tailzies which are guarded by process—the subtle fictions of the law. the irritant and resolutive clauses are courts, which virtually got rid of the within its purview. If so, the general statute De Donis. But we can anti- expression “ deed of tailzie should cipate nothing but uncertainty and have been distinctly limited. If that multiplied litigation, from the appa- expression should be held to comprerently crude and careless project now hend all deeds of tailzie, which it must before us.
of course do when taken by itself, then An instance of the loose wording of the proposed act will exercise a very this bill strikes the reader in the very extensive disabling power, by refirst section. It proposes to enact stricting the unlimited right of aliena"that where any estate in Scotland tion under tailzies of simple destishall be entailed by a deed of tailzie, nation,* and the right of alienation dated on or after the first day of for value under tailzies with prohiMarch one thousand eight hundred and bitive clauses only introduced, to the forty-eight, it shall be lawful for any peculiar form and instrument pointed heir of entail, born after the date of out by this biil, and which we supsuch tailzie, being of full age, and in pose was devised in analogy to the possession of such entailed estate in forms substituted for fines and recovirtue of such tailzie, to acquire such veries by the statute 3 & 4 Will. IV. estate in fee-simple, by applying to the c. 74. Court of Session, &c.” Now, what is We have already seen how Mr. this estate which the heir of entail is M‘Culloch would deal with the diffito acquire in fee-simple ? · The estate- culty of disturbing the devolution of tail, for so it is by hypothesis. But to lands already limited in perpetual talk of acquiring an estate-tail in fee- entail-namely, by“ saving the rights simple is nothing better than down- of living heirs of entail, and of heirs right nonsense. An estate-tail is, by born under existing marriage-conthe origin of the word, cut or carved tracts." We think our author has (taillé) out of the fee-simple. You not, in this passage, expressed himmay talk of converting or enlarging self with due legal perspicuity and the part into the whole, but you can precision. The phrase “living heirs not talk of acquiring the part in the of entail ” is somewhat vague and unentirety of the whole. This is not all; certain; we presume Mr. M‘Culloch the bill plunges at once in medias res, intended the living issue of the heir without favouring us with any sort of of entail in possession, and all living definition of the important phrase, heirs-substitute and their living issue. “heir of entail," in this and other Again, what are existing marriageclauses. The same expression in contracts ? Probably those marriagethe statute 1 Jac. VII. c. 32, has contracts are intended, which are already (see Sandford's Entails, p. annexed to marriages solemnized 231) given rise to no small question. before the introduction of a ing and litigation, which promise to system. Both these suggestions, as be renewed in abundance should this we have interpreted them, might measure pass into a law. Again, per- with justice and advantage have petual inalienability is not an incident formed part of the new law. It is to all estates-tail. Lands merely true that this would, at all events bound by what are called the prohi- for a considerable period of time, stop bitive clauses, may be alienated for a short of that assimilation of the Scotvaluable consideration, though not by tish law to the English which seems
* See Erskine’s Institutes, B. iii. tit. 8, §§ 21-25.