any repetition of the attempt. This irrational hostility to improvement, in a case in which their own interest would be the most benefited by it, must be ascribed to an intense timidity on the subject of their titles, generated by the defects of the very law which they refuse to alter; and to a conscious ignorance, and incapacity of judgment, on all legal subjects, which makes them helplessly defer to the opinion of their professional advisers, heedless of the fact that every imperfection of the law, in proportion as it is burthensome to them, brings gain to the lawyer. In so far as the defects of legal arrangements are a mere burthen on the landowner, they do not much affect the sources of production; but the uncertainty of the title under which land is held, must often act as a great discouragement to the expenditure of capital in its improvement; and the expense of making transfers, operates to prevent land from coming into the hands of those who would use it to most advantage; often amounting, in the case of small purchases, to more than the price of the land, and tantamount, therefore, to a prohibition of the purchase and sale of land in small portions, unless in exceptional circumstances. Such purchases, however, are almost everywhere extremely desirable, there being hardly any country in which landed property is not either too much or too little subdivided, requiring either that great estates should be broken down, or that small ones should be bought up and consolidated. To make land as easily transferable as stock, would be one of the greatest economical improvements which could be bestowed on a country; and has been shown, again and again, to have no insuperable difficulty attending it. Besides the excellences or defects that belong to the law and judicature of a country as a system of arrangements for attaining direct practical *Lord Westbury's recent Act is a material mitigation of this grievous defect in English law, and will probably lead to further improvements. ends, much also depends, even in an economical point of view, upon the moral influences of the law. Enough has been said in a former place,+ on the degree in which both the industrial and all other combined operations of mankind depend for efficiency on their being able to rely on one another for probity and fidelity to engagements; from which we see how greatly even the economical prosperity of a country is liable to be affected, by anything in its institutions by which either integrity and trustworthiness, or the contrary qualities, are encouraged. The law everywhere ostensibly favours at least pecuniary honesty and the faith of contracts; but if it affords facilities for evading those obligations, by trick and chicanery, or by the unscrupulous use of riches in instituting unjust or resisting just litigation; if there are ways and means by which persons may attain the ends of roguery, under the apparent sanction of the law; to that extent the law is demoralizing, even in regard to pecuniary integrity. And such cases are, unfortunately, frequent under the English system. If, again, the law, by a misplaced indulgence, protects idleness or prodigality against their natural consequences, or dismisses crime with inadequate penalties, the effect, both on the prudential and on the social virtues, is unfavourable. When the law, by its own dispensations and injunctions, establishes injustice between individual and individual; as all laws do which recognise any form of slavery; as the laws of all countries do, though not all in the same degree, in respect to the family relations; and as the laws of many countries do, though in still more unequal degrees, as between rich and poor; the effect on the moral sentiments of the people is still more disastrous. But these subjects introduce considerations so much larger and deeper than those of political economy, that I only advert to them in order not to pass wholly unnoticed things superior in importance to those of which I treat. + Supra, p. 68. CHAPTER IX. THE SAME SUBJECT CONTINUED. § 1. HAVING spoken thus far of the effects produced by the excellences or defects of the general system of the law, I shall now touch upon those resulting from the special character of particular parts of it. As a selection must be made, I shall confine myself to a few leading topics. The portions of the civil law of a country which are of most importance economically (next to those which determine the status of the labourer, as slave, serf, or free), are those relating to the two subjects of Inheritance and Contract. Of the laws relating to contract, none are more important economically than the laws of partnership, and those of insolvency. It happens that on all these three points, there is just ground for condemning some of the provisions of the English law. With regard to Inheritance, I have, in an early chapter, considered the general principles of the subject, and suggested what appear to me to be, putting all prejudices apart, the best dispositions which the law could adopt. Freedom of bequest as the general rule, but limited by two things: first, that if there are descendants, who, being unable to provide for themselves, would become burthensome to the state, the equivalent of whatever the state would accord to them should be reserved from the property for their benefit and secondly, that no one person should be permitted to acquire by inheritance, more than the amount of a moderate independence. In case of intestacy, the whole property to escheat to the state which should be bound to make a just and reasonable provision for descendants, that is, such a provision as the parent or ancestor ought to have made, their circumstances, capacities, and mode of bringing up being considered. The laws of inheritance, however, have probably several phases of im provement to go through, before ideas so far removed from present modes of thinking will be taken into serious consideration; and as, among the recognised modes of determining the succession to property, some must be better and others worse, it is necessary to consider which of them deserves the preference. As an intermediate course, therefore, I would recommend the extension to all property, of the present English law of inheritance affecting personal property (freedom of bequest, and, in case of intestacy, equal division): except that no rights should be acknowledged in collaterals, and that the property of those who have neither descendants nor ascendants, and make no will, should escheat to the state. The laws of existing nations deviate from these maxims in two opposite ways. In England, and in most of the countries where the influence of feudality is still felt in the laws, one of the objects aimed at in respect to land and other immoveable property, is to keep it together in large masses: accordingly, in cases of intestacy, it passes, generally speaking (for the local custom of a few places is different), exclusively to the eldest son.. And though the rule of primogeniture is not binding on testators, who in England have nominally the power of bequeathing their property as they please, any proprietor may so exercise this power as to deprive his successors of it, by entailing the property on one particular line of his descendants: which, besides preventing it from passing by inheritance in any other than the prescribed manner, is attended with the incidental consequence of precluding it from being. sold; since each successive possessor, having only a life interest in the property, cannot alienate it for a longer period than his own life. In some INHERITANCE. other countries, such as France, the law, on the contrary, compels division of inheritances; not only, in case of intestacy, sharing the property, both real and personal, equally among all no the children, or (if there are children) among all relatives in the same degree of propinquity; but also not recognising any power of bequest, or recognising it over only a limited portion of the property, the remainder being subjected to compulsory equal division. Neither of these systems, I apprehend, was introduced, or is perhaps maintained, in the countries where it exists, from any general considerations of justice, or any foresight of economical consequences, but chiefly from political motives; in the one case to keep up large hereditary fortunes, and a landed aristocracy; in the other, to break these down, and prevent their resurrection. The first object, as an aim of national policy, I conceive to be eminently undesirable: with regard to the second, I have pointed out what seems to me a better mode of attaining it. The merit, or demerit, however, of either purpose, belongs to the general science of politics, not to the limited department of that science which is Each of the two here treated of. systems is a real and efficient instrument for the purpose intended by it; but each, as it appears to me, achieves that purpose at the cost of much mischief. § 2. There are two arguments of an economical character, which are urged in favour of primogeniture. One is, the stimulus applied to the industry and ambition of younger children, by leaving them to be the architects of This argument their own fortunes. was put by Dr. Johnson in a manner more forcible than complimentary to an hereditary aristocracy, when he said, by way of recommendation of primogeniture, that it "makes but one fool in a family." It is curious that a defender of aristocratic institutions should be the person to assert that to inherit such a fortune as takes away any necessity for exertion, is generally fatal to activity and strength of mind: in Some writers, however, look upon emulate the splendour of the richest landlords; so that the custom of primogeniture seems to render all classes more industrious, and to augment at the same time, the mass of wealth and the scale of enjoyment." The portion of truth, I can hardly say contained in these observations, but recalled by them, I apprehend to be, that a state of complete equality of fortunes would not be favourable to active exertion for the increase of wealth. Speaking of the mass, it is as true of wealth as of most other distinctions-of talent, knowledge, virtnethat those who already have, or think they have, as much of it as their neighbours, will seldom exert themselves to acquire more. But it is not therefore necessary that society should provide a set of persons with large fortunes, to fulfil the social duty of standing to be looked at, with envy and admiration, by the aspiring poor. The fortunes which people have acquired for themselves, answer the purpose quite as well, indeed much better; since a person is more powerfully stimulated by the example of somebody who has earned a fortune, than by the mere sight of somebody who possesses one; and the former is necessarily an example of prudence and frugality as well as industry, while the latter much oftener sets an example of profuse expense, which spreads, with pernicious effect, to the very class on whom the sight of riches is supposed to have so beneficial an influence, namely, those whose weakness of mind, and taste for ostentation, make "the splendour of the richest landlords" attract them with the most potent speli. In America there are few or no hereditary fortunes: yet industrial energy, and the ardour of accumulation, are not supposed to be particularly backward, in that part of the world. When a country has once fairly entered into the industrial career, which is the principal occupation of the modern, as Principles of Political Economy, ed. 1843, p. 264. There is much more to the me effect in the more recent treatise by the same author, On the Succession to Property vacent by Death. war was that of the ancient and mediaeval world, the desire of acquisition by industry needs no factitious stimu lus: the advantages naturally inherent in riches, and the character they as sume of a test by which talent and success in life are habitually measured, are an ample security for their being pursued with sufficient intensity and zeal. As to the deeper consideration, that the diffusion of wealth, and not its concentration, is desirable, and that the more wholesome state of society is not that in which immense fortunes are possessed by a few and coveted by all, but that in which the greatest possible numbers possess and are contented with a moderate competency, which all may hope to acquire; I refer to it in this place, only to show, how widely separated, on social questions, is the entire mode of thought of the defenders of primogeniture, from that which is partially promulgated in the present treatise. The other economical argument in favour of primogeniture, has special reference to landed property. It is contended, that the habit of dividing inheritances equally, or with an ap proach to equality, among children, promotes the sub livision of land inte portions too small to admit of being cultivated in an advantageous manner. This argument, eternally reproduced, has again and again been refuted by English and Continental writers. It proceeds on a supposition entirely at variance with that on which all the theorems of political economy are grounded. It assumes that mankind in general will habitually act in a manner opposed to their immediate and obvious pecuniary interest. For the division of the inheritance does not necessarily imply division of the land; which may be held in common, as is not unfrequently the case in France and Belgium; or may become the property of one of the coheirs, being charged with the shares of the others by way of mortgage; or they may sell it outright, and divide the proceeds, diminish its productive power, it is the When the division of the land would direct interest of the heirs to adopt INHERITANCE. some one of these arrangements. Sup-incomes when at the highest, and if posing, however, what the argument any change of circumstances diminishes assumes, that either from legal difficul their resources, some time elapses beties or from their own stupidity and fore they make up their minds to rebarbarism, they would not, if left to trench. Spendthrifts in other classes themselves, obey the dictates of this are ruined, and disappear from society; obvious interest, but would insist upon but the spendthrift landlord usually cutting up the land bodily into equal holds fast to his land, even when he parcels, with the effect of impoverish- has become a mere receiver of its rents ing themselves; this would be an ob- for the benefit of creditors. The same jection to a law such as exists in desire to keep up the "splendour" of the family, which gives rise to the France, of compulsory division, but can be no reason why testators should be custom of primogeniture, indisposes discouraged from exercising the right the owner to sell a part in order to set of bequest in general conformity to the free the remainder; their apparent are rule of equality, since it would always therefore habitually greater than their be in their power to provide that the real means, and they are under a perdivision of the inheritance should take petual temptation to proportion their place without dividing the land itself. expenditure to the former rather than That the attempts of the advocates of to the latter. From such causes as primogeniture to make out a case by these, in almost all countries of great facts against the custom of equal divi- landowners, the majority of landed sion, are equally abortive, has been estates are deeply mortgaged; and shown in a former place. In all coun- instead of having capital to spare for tries, or parts of countries, in which improvements, it requires all the inthe division of inheritances is accom- creased value of land, caused by the panied by small holdings, it is because rapid increase of the wealth and popusmall holdings are the general system lation of the country, to preserve the of the country, even on the estates of class from being impoverished. the great proprietors. ture. Unless a strong case of social utility can be made out for primogeniture, it stands sufficiently condemned by the general principles of justice; being a broad distinction in the treatment of one person and of another, grounded There is no solely on an accident. need, therefore, to make out any case of economical evil against primogeniSuch a case, however, and a very strong one, may be made. It is a natural effect of primogeniture to make the landlords a needy class. The object of the institution, or custom, is to keep the land together in large masses, and this it commonly accomplishes; but the legal proprietor of a large domain is not necessarily the bona fide owner of the whole income which it yields. It is usually charged, in each generation, with provisions for the other children. It is often charged still more heavily by the imprudent expenditure of the proprietor. Great landowners are generally improvident in their expenses; they live up to their § 3. To avert this impoverishment, recourse was had to the contrivance of entails, whereby the order of succession was irrevocably fixed, and each holder, The land having only a life interest, was unable to burthen his successor. thus passing, free from debt, into the possession of the heir, the family could not be ruined by the improvidence of its existing representative. The economical evils arising from this disposition of property were partly of the same kind, partly different, but on the whole greater, than those arising from primogeniture alone. The possessor could not now ruin his successors, but he could still ruin himself: he was not at all more likely than in the former case to have the means necessary for improving the property: while, even if he had, he was still less likely to employ them for that purpose, when the benefit was to accrue to a person whom the entail made independent of him, while he had probably younger children to provide for, in whose favour he |