DISPOSAL OF PROPERTY BY WILL-ENTAILS - FRENCH LAW OF SUCCESSION-PRIMOGENITURE.*

It is abundantly obvious, that the esential interests of society require, not only that an individual should have the unrestricted power of disposing of his property during his own life, but that he should feel assured of its descending to his relations or friends in the event of his death. No man can take any interest in the fate, or will ever exert himself to augment the fortune, of an unknown successor. But when he is assured that he is not labouring for a stranger, when he knows that the fruits of his industry and parsimony are to be enjoyed after his death by his children or friends, he feels, as it were, his existence indefinitely extended, and continues, with unimpaired energy, to exert himself to the latest period of life for the benefit of those who are to perpetuate his family and name, and whose welfare is perhaps still dearer to him than his own. The power of transmitting property to children or friends connects the future with the present. Without it, no one would amass a greater fortune than he expected to be able to consume, and no undertaking would be entered upon which did not promise an adequate return during the lifetime of the projector. But in civilized societies, the plans of the capitalist are not circumscribed by the brief duration of human life. He amasses wealth sufficient to maintain many individuals in a state of affluent independence,-he plants forests under whose shade he can never expect to recline, he raises edifices fitted and intended to outlive many generations,-and executes innumerable improvements of which posterity can alone reap the benefit. And he does all this because he is enabled to transmit his property to those with whom he is connected by the tenderest ties, and in whose welfare he feels the deepest interest.

In the earlier ages of society, a man's children or relations are uniformly held to be his only heirs; and it is only in periods of comparative refinement that the advantage of the libera testamenti factio, or of giving to every individual an uncontrolled power of disposing of his succession, and of leaving it to strangers in preference to the heirs of his own body, or his relations, can be fully perceived and acted upon. Thus, we learn from Plutarch, that in Athens there was no power to devise property from the natural heirs previously to the age of Solon; and that legislator confined the privilege to those who died without issue, "preferring in this case," says his biographer, "the tie of friendship to that of kindred, and choice to necessity." Rome, three centuries elapsed before a citizen could dispose of his property by a deed mortis causa, except such deed were sanctioned by the comitia calata, or assembly of the people; and in that case the will, as Montesquieu has remarked, was not really the act of a private individual, but of the legislature. The same practice was followed by the ancient Germans. "Hæredes successoresque," says Tacitus, "sui cuique liberi, et nullum testamentum si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi." By the common law of England, for several centuries after the Conquest, no estate, except it were only for a term of years, could be disposed of by testament and in Scotland, up to a comparatively recent period, almost all a man's heritage, and a great part of the land he

* Considerations on the Law of Entail.-Vol. xl. p. 351. July, 1824.

+ Esprit des Lois. liv. 27. § 1.

De Mor, Germ. § 21.

had purchased, if he possessed such only, were unalienable from the lineal heir.

But in almost every civilized and refined society, this strict rule of legal succession has been gradually relaxed; and in some countries individuals have been allowed to dispose of their whole property by will to strangers, to the exclusion of their children and relations. This, however, is an extension of the power of bequeathing, of the expediency of which much difference of opinion is entertained. It is contended, that no one who has any property to dispose of should be allowed to throw his children destitute on society,that the fear of total disinheritance should not be rendered an instrument of tyranny in the hand of fathers,-and that, before allowing a man to leave any portion of his fortune to strangers, he should be compelled to make an adequate provision for the individuals he has been the means of bringing into the world; and to whom, independently altogether of any considerations of personal merit or demerit, he is under the most sacred obligations. But, though it must be allowed that the question is not quite free of difficulty, still we are clearly of opinion, that they are right who argue in favour of the unlimited power of bequeathing to strangers. None but the strongest possible reasons can ever justify a legislature in giving their sanction to any measure having a tendency to weaken the spirit of industry and economy in the people. It is plain, however, that if you interfere to regulate the disposal of property, you must unavoidably do this: if you enact, that however undutifully a man's children may have behaved, they shall notwithstanding be entitled to a certain proportion of his fortune, you will certainly paralyse his exertions, and must, for the same reason, render the whole society less anxious about the accumulation of wealth, which they are not to be permitted freely to enjoy, or dispose of at their pleasure. Neither is it possible to secure a certain provision to children without rendering them, in so far, independent of their parents, and weakening that parental authority which, though it may occasionally be abused, is yet, in the vast majority of instances, exercised in the mildest and most indulgent manner, and with the most beneficial effect. The more, therefore, inquire into this subject, the more we shall be satisfied that it is always the safest policy to abstain as much as possible from making the relations of private life the objects of legislative enactments. The humanity of the law is but a sorry substitute for parental affection. If children be ordinarily well behaved, if they be not extremely deficient either in filial affection or common prudence, the principles and instincts inherent in our nature afford a sufficient security, that very few parents will ever be disposed to leave their property to others, to their exclusion. The interference of the Legislature in their behalf is therefore as unnecessary as it is pernicious. In those countries in which the greatest latitude is given to the power of bequeathing, the instances are extremely rare in which an affectionate and dutiful family have suffered from the circumstance of their father being allowed to leave his fortune to others and it would undoubtedly be most impolitic to attempt to obviate an evil of such rare occurrence, by exempting children from the constant iufluence of a salutary check on their vicious propensities, and compelling a man to bestow on profligacy, extravagance, or idleness, that property which is at once the result and the appropriate reward of virtue, economy, and industry.

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That a certain preference should be given, in testamentary dispositions, to the first-born son-to him who is earliest qualified to assist the labours

of his father, and who, in the event of his death, is the natural guardian and protector of the rest of the family, is agreeable to the most obvious suggestions. In the patriarchal ages, this preference was very strongly marked; and several important privileges were attached to the circumstance of primogeniture. But in the Republican States of antiquity, where equality of fortunes and subdivision of property were considered as objects of the first importance,* little consideration seems to have been attached to this prerogative. At Athens, the sons succeeded equally to the paternal property. the daughters depending for their dowry on the liberality and kindness of their brothers. At Rome, when the father died intestate, all the children, females as well as males, were equally called to the inheritance of his possession. And it is believed, that, previously to the Conquest, landed property in England was divided equally among the sons.

In modern Europe, however, the succession to landed estates has been generally regulated by the law of primogeniture. During the violence and confusion of the middle ages, almost all commercial and manufacturing industry was either suspended or destroyed. Land was the only species of property that had any thing like even tolerable security; and this security, deficient as it was, could only be enjoyed by the possessors of large estates, who could arm and bring together a considerable number of vassals and retainers to support and defend their rights. It was plainly, therefore, the interest of the landed proprietors to prevent their estates being split into small portions, and to transmit them entire to their successors. And as the military and other feudal services due by the possessors of fiefs to the Crown could be more easily and conveniently paid by one than by many feudatories, both parties found it for their advantage to prevent the subdivision of estates, by introducing and establishing the law of primogeniture, and the custom of entails-institutions which have given a new aspect to society in modern Europe.

Dr. Smith contends, that entails were altogether unknown to the ancients, and that they were only introduced to preserve a certain lineal succession, of which the law of primogeniture first gave the idea. There are good grounds, however, for doubting the correctness of this opinion. When the right of bequeathing property to any particular heir has once been recognized, the step seems easy and natural to the recognition of the right of the proprietor to name an indefinite series of heirs, and to proscribe the conditions on which they shall be entitled to hold the property. The fidei commissa, or trust-settlements of the Romans, were devised for the express purpose of retaining the estates of the individual making the settlement in the line of succession he had pointed out. In the latter ages of the empire, it was common to insert prohibitive and irritant clauses in the fidei commissa, exactly similar to those inserted in modern entails; and, as such settlements were sanctioned by law, they had the effect to entail property for the four generations to which their duration was limited.

Lycurgus divided the Spartan territory into a certain number of portions (sortes), which it was forbidden either to increase or diminish by succession, purchase, marriage, or otherwise; and, to obvinte the inconveniences that might, in such circumstances, have resulted from the increase of population, the atrocious practice of exposing infauts was permitted. (See Cragius de Republica Lacedæmoniorum, p. 299.) At Athens and Rome, the maintenance of the equal division of landed property was, as every one knows, one of the pricripal objects of their early legislators. In Judea, all the lands reverted to their original possessors at the end of every fifty years This is a point respecting which there is some difference of opinion among critics. We have followed the statement of Sir William Jones, in his valuable Commentary on the Orations of I‹æus. See his Werks, vol. iv page 201, 1to ed.

The right of entail is founded by lawyers on the maxim of the civil law, that unusquisque est rei suæ moderator et arbiter," or, that every individual has the natural right of absolutely disposing of whatever property he may have acquired by his industry. But it is absurd to suppose, that there can be any natural right to do any thing inconsistent with the general advantage of society. The question respecting the expediency of entails can only be decided by the test of utility-by a comparison of their effects, or of the advantages and disadvantages resulting from them. We shall very briefly advert to what seem to us to be the principal points that ought to be attended to in making this comparison.

In the first place, it is alleged in favour of entails, that they stimulate exertion and economy,-that they hold out to honest 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 sure and solid bulwark of a respectable aristocracy, and prevent generations being ruined by the folly or misfortunes of an individual.

Now, admitting, as we unreservedly do, that the prospect of being able to found a powerful family, and of securing that property, which had been accumulated by a long course of active, laborious, and successful exertion, from the risk of being squandered by the inconsiderate projects or extravavagance of any future individual, must act as a very powerful spur to the industry and ambition of the original founder of a family, it is obvious it can have no tendency to produce such effects in any of his successors. An heir of entail is in a great measure emancipated from the salutary influence and control of parental authority. His chance of succeeding to the property held by his father does not depend on the circumstance of his having deserved it-of his being industrious or idle, dissipated or sober. The succession to entailed estates is not regulated by the principle of detur digniori. Their occupiers have no power to change the established order of succession; they cannot exclude the worst to make room for the best of their sons; but must submit to see the properties of which they are in possession descend, as in fact they generally do, to the most worthless, undutiful, and depraved of their children or relations. Granting, therefore, that the institution of entails has a tendency, as it undoubtedly has, to make one generation active, frugal, and industrious, it is demonstrably clear that it must exempt every subsequent generation-that is, every subsequent heir of entail-from feeling the full force of some of the most powerful motives to such conduct. A system of entail causes the succession to property to depend, not on the good or bad conduct of the individual, but on the terms of a deed, written perhaps a couple of centuries before he was in existence! Its effect is, therefore, to substitute a system of fatalism in the place of an enlightened discrimination,-to throw property equally into the hands of the undeserving as of the deserving; and it is plainly impossible it can do this without weakening the motives which stimulate men to act the part of good citizens, and strengthening those of an opposite description. When therefore, we refer, as we ought, to the simple and decisive criterion of utility, it is immediately seen that the industry of one generation is not to be purchased by the idleness of all those that are to come after it; and that it is hardly less injurious to allow an individual to appoint his remotest heirs.

than it would be to deprive him of the power of nominating those who are to be his immediate successors.

As to the second point, there can be no doubt that a system of entail affords the best attainable security for the permanence of property in particular families; and, as political power and influence must generally be founded on property, it might perhaps be advisable to allow the right of entail, to a certain extent, in countries where there are hereditary legislators.* Even this, however, is a point involved in considerable difficulty. In England, where the power of entail has long been circumscribed within very narrow limits, it is found that the law of primogeniture is of itself sufficient to preserve property, for many generations, in the hands of a single family. But although the power of entailing property on a noble family should be conceded, there can be no reason whatever why this power should not be restricted within certain limits, and made to vary with the entailer's rank in the peerage; or why it should be extended to others. A system of inviolable and perpetual entail is highly injurious to the best interests of society; and though the constitution of the country may be such as to require the privilege to be granted, under proper modifications, to a particular class, it is quite impossible it can ever be such as to require it should be granted to all. The stale can never interfere to protect families, deprived of the prerogative of hereditary legislation, from the casualities to which they are naturally subject, by sanctioning a system of inviolable entail, without producing the most injurious results. It is the duty of every wise government to adopt such regulations as may have the effect to call forth the utmost degree of industry and economy among all classes of its subjects; but most certainly it is no part of their business to inquire whether the frugality of those on the dicky, and the extravagance of those in the coach, bid fair to make them change places; and still less to attempt to prevent that change taking place, by artificially protecting the property of the latter.

It is sometimes objected to entails, that they take land out of the market, or place it, as the lawyers say, extra commercium. We do not, however, think that this is in itself of much consequence. It is of no importance who are or who are not the proprietors of land; but it is of the last degree of importance, that land should receive all the improvement of which it is susceptible, and that no system should be adopted which has any tendency to prevent the fullest development of its productive powers. There can be no question, however, that a system of entail has this effect. It prevents individuals who have no taste for agricultural pursuits, and who are ignorant of rural affairs, from disposing of their lands to others; while, by fixing the destination of the property, and preventing its being mortgaged in security for loans, it lessens both the desire and the power to execute improvements. "Compare," says Dr. Smith," the present condition of great entailed estates with the possessions of the smaller proprietors in their neighbourhood, and you will require no other argument to convince you how unfavourable entails are to improvement." (ii. 87.)

We are happy to have it in our power to corroborate the view we have now taken of the effect of entails by the very highest authority. Lord Bacon,

Napoleon did this. In order to counteract the effects of the law of equal succession established in France, he instituted the system of majorats, by which a senator could entail an income of 40,000 francs a year (1,6007.) on his eldest son. This, however, was one of the most unpopular acts of Napoleon's administration.