command or the leading influence in the state. A due regard for equality of rights, then, only requires that wealth should be open to the attainment of all, that it should never be made inalienable or indivisible by its present holder, never be locked up by legal proceedings which bind future generations, but be left to circulate freely as air, and to find its natural level, as water does, by diffusion in broad seas and oceans. The acquisition of it will thus be a natural test of character, ability, and intelligence, and political power can nowhere be more safely lodged than in the hands of its possessors. In a country where no one is poor except by his own fault, where misery is not as necessarily inherited by one class as immense wealth is by another, where pauperism never exists except as a consequence of folly, indolence, or crime, the holders of property may justly claim the exclusive control of the state. They will not need to have this power expressly given to them by laws and constitutions; it will naturally and inevitably fall into their possession, so much of it, at least, as they shall deem necessary for their own security and happiness.

Admitting these general principles, then, that property ought to be made inviolable, that it should descend only to the family or kindred of the deceased, and be distributed among them from a regard, not to their private interests, but to the welfare of the whole community, (though these two ends in the long run will be identical,) we come to inquire into the policy of the different laws by which, in different countries, this distribution is effected. We take it for granted, that great inequality of wealth in any country is a great national evil, to be avoided or lessened by the use of all just means which are consistent with the security of property itself. If such inequality be permitted to continue or increase, except from inevitable necessity, the conduct of the legislators who foster or permit it becomes criminal in the extreme; upon their heads are justly chargeable the privation and wretchedness, the moral and intellectual degradation, the famines and plagues, which it brings upon millions of their fellow-beings.

The only systems of law regulating the succession to property which need here be considered are those which obtain respectively in England, in the United States, and in France; and the social condition of the people in these three countries

may be taken as a guide to the effects of these laws, and of the customs and institutions which are encouraged or created by them, and with which they are necessarily connected. The general policy of the law is sure to direct the inclinations and habits of the people, so that the law is justly chargeable with the effects, not only of what it directly enjoins, but of what it permits, exemplifies, and fosters.

Thus, in England, the right of primogeniture applies only to the real property of intestates; but the effect of the example and sanction of the law is, to induce even those who make wills to devise the larger share of all the property, and very often the whole of the real estate, to the oldest son. Entails are allowed during the lifetime of any number of persons actually in being, and till the first unborn heir shall be twenty-one years old;* and further, any heir of entail may grant leases which will be good against the future owners of the estate for three lives. Numerous other impediments are created to the sale or division of real estates, and the people are thus encouraged to carry out the policy of the law by settlements, trust processes, and other legal devices; so that, at any one time, the real property of the kingdom is as safely tied up and guarded against the extravagance or wilfulness of the actual possessor, as if perpetual entail were permitted there, as it was till recently in Scotland. It is estimated, that more than one half of all the real estate in the latter country was thus protected for ever against division or alienation from particular families. In France, on the other hand, where the law requires the larger portion of the property to be distributed equally, the people readily acquiesce in the principle, and very seldom exercise their power of increasing the share of a favorite child by the small portion which they are allowed to give according to their own judgment or fancy; if we may judge from the Paris returns, not more than one person out of seven makes a will at all, and but one in eighteen of these testators gives the reserved portion to one of his legal heirs, so as to lessen the number of

*“An English gentleman," says McCulloch, “may entail an estate on any heir, or series of heirs, during the longest life of certain parties named or clearly specified in the deed, and alive when it was made, and till twenty-one years after the death of the last surviving nominee. It is immaterial whether the parties taken as nominees be parties on whom the estate may or may not devolve."

parts into which the estate is divided, the others preferring to bestow it upon strangers. In both countries, then, the consent of the people carries out the general policy of the law, favoring or preventing the distribution of property, just as the legislature determines in those cases which are settled by the law alone, without regard to the wishes of the owners.

Here in America, the law takes the middle course between the English and the French policy. The custom of gavelkind is the rule, unequal distribution is the exception. Entails are generally more restricted than in England, perpetual entails being never allowed; and all minor restrictions on the division or sale of landed estates being taken away, the partition or transfer of real property is effected about as easily as that of movables. On the other hand, the law does not oblige a parent to distribute his property equally, but he may make what distinctions he chooses, and may virtually disinherit all his children, if he sees fit. But the custom follows the law; many persons do not make a will, but allow the law to take its course. A testator seldom makes a very unequal distribution among his children; but if he is childless, he often disposes of his property according to fancy, the expectations of more distant heirs not being much regarded.

From the operation of these laws in the three countries, we might naturally expect that there would be monstrous inequalities in the distribution of wealth in England, while in France and this country, property would be as nearly at a level in the community as it can be brought by the influence of legislation. It is true, that the several systems must have time to operate before their full effects can be perceived. The French system did not come into full effect till the revolution of 1789; it was one, and the most effective of all, of the sweeping measures adopted at that epoch for the sole purpose of breaking the power of the feudal aristocracy. Only two generations having elapsed since that time, it might be supposed that the splitting of landed estates and the general subdivision of property have not yet been carried out there to their full extent, but that the equalization of wealth is destined to go much further.

This may be doubted; here in New England, where the law of equal partition, applied directly only to the property of intestates, but governing in fact the descent of nearly all prop

erty, has been in force for more than two centuries, the land is by no means so much subdivided as in France; and we have probably more persons of large fortune, in proportion to the whole population, than can be found in any department of that country. If the farm is already so small that it will not support more than one family with the average degree of comfort among landholders of the same class, one of the heirs will buy out the others, who will use the price of their shares as means for establishing themselves in some non-agricultural employment, or in some other locality. In truth, it is demonstrable that there must be this limit to the division of estates; for if the ground owned and cultivated by a small proprietor be insufficient for the support of his family, his poverty will oblige him to sell it, and the purchaser, of course, must be a person more wealthy than himself. It is idle, then, to talk of the risk of the whole country falling into the hands of a set of pauper proprietors; the first symptoms of pauperism will oblige them to alienate their lands, and capitalists will reunite the farms which had been injured by excessive subdivision. The ability to purchase can never be wanting, as all the natural causes of inequality of wealth operate without check during each complete generation; for during this period, they are not counteracted by laws regulating the succession to property. We can, therefore, readily admit the conclusion which has been drawn from statistical evidence,* that the smaller properties in France have not sensibly diminished in size during the last thirty years. Possibly these small estates may increase in number through the breaking up of larger ones; but they will not be

* M. Legoyt, in an article published in the "Dictionary of Political Economy," in 1854, says that he has examined the state of the case for 122 cantons belonging to twenty-seven departments, taken indifferently from the north, south, east, west, and centre of France, and has established the following results. Forty-eight cantons, belonging to eleven different departments, were divided, in 1815, into 2,754,885 estates or separate properties; and in 1847, they had only 2,438,062 such estates, being a diminution of thirteen per cent in thirty-two years. In the seventy-four other cantons, belonging to sixteen departments, there were 2,846,971 separate properties in 1815, and in 1847 there were 3,096,235, being an increase of less than nine per cent in thirty-two years. Taking the aggregate for the 122 cantons, which comprise nearly a third part of all France, it appears that there were 5,601,856 estates in 1815, and only 5,534,297 in 1847, being a diminution of over one per cent. It is very evident, then, that the morcellement or subdivision of landed property in France has reached its limit, and has probably begun to decline.

more contracted in dimension, for, if smaller, they would not support a single family.

Among the ancients, as a general rule, all property, on the death of the owner, descended as a matter of course to his children, or, if he had none, to his nearest relatives. In Athens, Solon confined the privilege of making a will to such as had no children; before his time, the estate was necessarily divided among the nearest of kin. In Rome, for a long period, children could be disinherited only by a will made in an assembly of the people, so that the act was not so much that of an individual as of the legislature. In the later ages of the Empire, the law required all the children of the testator to be named in the will, and if any one of them was disinherited, that special reasons should be given for such treatment. And the heir thus excluded might bring an action to test the validity of these reasons; if they were found insufficient, the will was set aside, and the disinherited child was admitted with the others to what the law termed their "legitimate portion" of the paternal estate. Before the Code and the Pandects were compiled, this portion amounted to one fourth of the whole. Justinian decreed, that, if there were not more than four children, they should succeed as of right to a third part of the property; if more than four, they received at least one half. Among the Germans, also, as we are informed by Tacitus, the children were protected in their natural heirship, and the right to devise property away from them was not allowed. Hence it appears that the French law of compulsory partition is no innovation; the voice of antiquity generally is in its favor, as consonant with reason and the natural sense of equity.

The right of primogeniture, and the privilege of entailing estates, or devising them to a series of heirs, any one of whom has only a life-interest in the property, without the power of alienating it or burdening it with debt, had their origin in the feudal system. Before the rise of feudalism, it is true, males were in some instances preferred to females, and the eldest son had some advantages over his brethren; thus, according to the Jewish law, he had a double share, a peculiarity which was borrowed from the Mosaic code for a short time by the first settlers of New England. In Anglo-Saxon times, even in Old England, all the property, whether real or personal, was divided