Blackwood's Edinburgh Magazine, Volume 64, No. 393, July 1848

THE LAWS OF LAND

A Treatise on the Succession to Property vacant by Death. By J. R. M'Culloch, Esq. London: Longmans, 1848.

Mr M'Culloch's book introduces us to a question much debated in this age of class jealousy. As soon as we open it, we are straightway environed with "a barbarous noise of owls and cuckoos, asses, apes, and dogs," amid whose jargon of phrases rises loudest and most frequent the cry of "commercial principles." It is a great grievance, it seems, that land should not be disposed of according to "commercial principles;" that hill and holt, and moor and dale, should not pass from seller to buyer with the same readiness as candles and calicoes. Truly we have enough, and more than enough, of these same commercial principles in all walks of thought. Even the pulpit is not free from them. Politics are positively smothered with them. Ethical science, with the shallowisms of Paley and Bentham round her neck, struggles feebly with them. The book-keeper is abroad every where, with an indestructible faith in double entry. The Spirit of the Age wears a pen behind his ear, and sits on a high stool with three legs. That the prevailing commercial principles should have been so long excluded from the absolute possession of our laws of land, and that those laws should have preserved to a time like this so much of their feudal character, is a notable proof of the adaptation of the laws to the general requirements of the community, and of the steadiness of that social system which is so essentially linked to the maintenance of these laws.

The cry of complaint to which we have above alluded, is inspired by many diverse motives. As Mr Cochrane's ragged followers flocked to Trafalgar Square to denounce the income-tax, so many a man takes up the shout against the law of primogeniture and entail, as tying up lands and restricting their sale, who never had the wherewithal to purchase a single acre if all broad England was in the market. On the other hand, the purse-proud citizen, sore that ready money is not yet quite at the top of the tree, and that he does not receive the same consideration at St James's as in Change Alley, delights to have some grievance whereon he can vent his spleen; and really, in some stolid instances, persuades himself that he is kept out of the land which his gold could buy, through the agency of aristocratical laws, as if George Robins had been a mythical personage, or the advertisements of Farebrother, Clark, and Lye were a mockery and delusion.

But the largest class of assailants are those who come to the debate fortified with certain specious economical arguments, generally derived from a one-sided view of some particular effect of these restrictive laws. To the demolition of these objectors Mr M'Culloch's work is more immediately addressed; and very effectually, in our opinion, does it accomplish its end. He has not, perhaps, treated the subject so widely as it might have been treated: he has not entered into the indirect social influences that might be traced to our system of the laws relating to land; but the economical part of the question he has grasped most completely, and supported by most able and practical reasoning.

We must, we suppose, look for the text of the work, not where the text is usually found, but at the end. The following sentence, which is almost the concluding one, may be taken as the leading proposition of the work: —

"A powerful and widely-ramified aristocracy like that of England, not resting for support on any oppressive laws, and enjoying no privileges but which are for the public advantage, is necessary to give stability and security to the government, and freedom to the people. And our laws in regard to succession being well fitted to maintain such an aristocracy, and, at the same time, to inspire every other class with the full spirit of industry and enterprise, to change them would not be foolish merely, but criminal, – a lèse majesté against the public interests." – P. 172.

It must not, however, be supposed from this remark, that any portion of the work is appropriated to a set defence of government by means of an aristocracy. By an aristocracy we mean the deposition of political power in the hands of men of leisure and education, as opposed to the tendency of the Reform Bill, to transfer the governing functions to the "practical" men of the trading and moneyed interests, and the analogous claims of Chartism, founded on Jack Cade's complaint, that the "king's council are no good workmen." In England, we are pretty sure to have an aristocracy – that is, the influences which affect government and legislation will emanate principally from that class which is socially at the head of the nation; and the question is, whether we are to have a mere moneyed aristocracy, or one qualified by those mixed and undefinable conditions which, more than any thing else, act to keep down the growing and eager ascendency of wealth per se. Among the safeguards of such an aristocracy as we have described, not the least powerful is to be found in the laws discussed in the work before us. Mr M'Culloch, as we have said, assumes the importance to the country of preserving the present characteristics of British aristocracy; and he therefore proceeds at once to show how the laws on which he treats operate for this preservation, and to rebut the objections advanced against them on the score of their relations to other classes of the community.

One of the most frequent of these objections is, that the laws in question tend to diminish the productiveness of the land, and thereby inflict a serious injury on the community at large; that they prevent, in many instances, the landlord from granting leases to his tenant beyond the term of his own life; that the tenant, in consequence, is not willing to incur the outlay of drainage and other expensive improvements, because he is not secured by a lease; while the landlord, on the other hand, will not enter into these expenses, because he does not feel the same interest in his limited estate which he would in the unconditional fee-simple.

Note first of all the logic of this argument. The tenant, it seems, will not spend his money in draining without a lease. As, however, a lease would suffice to induce him so to do, we might naturally suppose that the landlord's estate for life, or in tail, would be at least an equal inducement. These reasoners, however, aver, that the landlord is only to be tempted by the unrestricted fee. According to this progressive scale, it might be fairly, argued, that the tenant, on becoming lessee for years, would still require the landlord's life-interest; and the latter, when seised of the fee, would decline the requisite expense, except on a guarantee of immortality, and justify himself by Horace's authority, —

But the general scope of an argument may be just, though clumsily stated and fallaciously supported. We are, however, at no loss for experiments on the largest scale whereby to test the theory here noticed. We have English agriculture, subjected to a limited law of entail, contrasted on the one hand with Scottish agriculture, under a law of perpetual entail, and on the other with that of France and its compulsory gavelkind. Mr M'Culloch has taken an elaborate view of the question in its relation to the tillage of the soil in these three countries respectively, more especially in France. We find, from the result of his investigation, that, —

"The average produce per acre of the crops of wheat in England and Wales in good years, has been carefully estimated at thirty-two bushels an acre, and it is certainly not under thirty bushels. But in France the produce of wheat, even in the richest and best cultivated departments, is little more, according to the official returns and the best private authorities, than twenty bushels an acre; and at an average of the entire kingdom, it hardly amounts in a good year to fourteen bushels. This result is completely decisive. It shows that one acre of land in England yields, from its being better farmed, considerably more wheat than two acres in France: and if we took barley or oats, turnips, beef, or wool for a standard, the difference in our favour would be seen to be still greater… If labour were taken for a standard instead of land, the result would be still more in our favour. One man and one horse in England produce more corn and other agricultural produce than three men and three horses in France. Labour in the latter is misapplied and wasted." – P. 117.

Again: —

"While two husbandmen in France furnish a surplus of food above their own consumption adequate for one individual, the same number of English husbandmen furnish a surplus for no fewer than four individuals; showing, that, as measured by its capacity of providing for the other classes of the population, English is to French agriculture as four to one." – P. 121.

So much for the comparison of French and English agriculture. Let us now turn to Scotland: —

"In an Appendix to the 'Sketches of the History of Man,' published in 1774, Lord Kames says, 'The quantity of land that is locked up in Scotland by entails has damped the growing spirit of agriculture. There is not produced sufficiency of corn at home for our consumption; and our condition will become worse and worse by new entails, till agriculture and industry be annihilated.' Now the extent of land under entail in Scotland has been certainly more than doubled, perhaps more than trebled, since this paragraph was written, and yet agriculture and manufactures have made a more rapid progress in Scotland in the interval, and especially during the last thirty years, when entails were most prevalent, than in England or in any other country whatever." – P. 71.

Lord Kames, in this respect, seems to have had the same subtle ingenuity in prophesying counter to the event, as distinguishes Mr Cobden.

The first part of Mr M'Culloch's volume contains a cursory historical view of the earliest regulations of succession and inheritance. Thus, at p. 16, he traces the right of primogeniture, or preference of the eldest son, to the Mosaic law. We are far from maintaining that the specific details of the code promulgated on Sinai are a model of law for all nations; on the contrary, they were no doubt intended to be such as a wise human law-giver would frame, and consequently more or less applicable according to the changes and differences of social organisation. But we do hold that these laws indicate to mankind principles which are to be observed in all times and by all nations. Thus, the septennial release of debts, the return of every man to his possession in the year of jubilee, the prohibition of interest upon loans except to an alien, even the poor man's portion in the field and vineyard, may or may not be regulations adapted to a particular existing state of society. But they enunciate a principle of mercy and forbearance towards the poor and unfortunate, of which, we fear, our political economists and commercial legislators are too apt to lose sight. In conformity with this view, when we hear the right of primogeniture assailed as contrary to the law of nature, (by the way, where is this much-talked-of law of nature to be found?) we may safely appeal to the express recognition by the Jewish law of "the right of the first-born as the beginning of his father's strength," to show that the custom of primogeniture is at all events not repugnant to instinctive justice or the common-sense of mankind. The old Saxon law of gavelkind might be better adapted to a superabundance of land and a thin population; the preference of the youngest son, by the custom of Borough-English, might well prevail among the far progenitors of the Saxon race on the steppes of Scythia,1 when the elder brothers would be sent forth to roam over the boundless plain with their flocks and herds, the youngest remaining at home to be the prop of his father's old age. But in a settled and cultivated country, and among an advanced people, we maintain succession by primogeniture to be the most consonant, as a matter of theory, to the social feelings and requirements of man; and we think our author has fully established his position as to the beneficial character of its practical results.

In the course of his historical survey, Mr M'Culloch has of course touched on the principle of succession under the Roman law, but more lightly than we should have expected in reference to a system which has entered so largely into our Scottish law, and which is still accepted as a model framework of legal principles in most of the universities of Christendom. And the slight notice taken traces an analogy between the feudal and civil principles of succession, which we think is altogether incorrect. Our author, in speaking of the Roman law of succession, appears to confound in some measure the Roman term hæres with the English word heir. The civilian definition of hæres is qui ex testamento succedit in universum jus testatoris. In Scotland the word heir has much the same import: – "The law deems it reasonable," says Erskine, (Inst. book iii. tit. 8, §. 2) "that every fiar shall have the power by deed, during his life, to declare who shall have the lands after his death: and the person so favoured is called the heir." Whereas the feudal notion of the word heir preserved in the English law, is of one upon whom the estate is cast, after the death of his ancestor, by act of law and right of blood. In other words, hæres is he who is appointed by the will of the deceased to succeed to his civil rights, and, in default of such appointment, the person indicated by a certain general law. But the heir (in English law) is the next and worthiest of blood, appointed by the common-law to succeed to his ancestor; although this rule of succession may be set aside by the appointment or will of the ancestor, if possessed of the fee-simple. Bearing in mind this distinction, we shall perceive the cause of Mr M'Culloch's error when he says —

"The Furian, the Voconian, and the Falcidian laws were passed, the first two under the republic, and the latter under Augustus, to secure the interests of children by limiting the power of fathers to make settlements to their prejudice." P. 6.

Now, the Voconian law, so far from protecting the interests of children, frequently operated in the case of daughters to prejudice them; – of this we have a remarkable instance in the case of Annius Asellus, dwelt upon by Cicero, in the second action against Verres, Orat. i., c. 41 – 44. The law prevented all registered or assessed (censi) citizens of Rome from appointing a female as their hæres. Again, the Furian and Falcidian laws were passed to secure the person nominated as hæres from being prejudiced by the excessive amount of legacies under the will. Hence, if a man died leaving only daughters, he was prohibited by the Voconian law from appointing any of them as his hæres; and the other two laws restrained him from appointing a nominal hæres, and leaving his property to his daughters by way of legacies (legata.)

In truth, the English notion of heirship, as succession by right of blood, seems to be entirely due to the northern nations and the feudal system. Under both systems, however, it is observable how the progress of legislation and society has been to increase the privileges and diminish the duties of the constituted successor. For as, in tenure by chivalry, the heir was rather the person to whom, in consequence of proximity of blood, the lord might look for the performance of the military services, than the fortunate acquirer of the property, so the Roman hæres was regarded more in the light of one on whom devolved the religious, civil, and private duties of the deceased; frequently so burdensome that the inheritance was altogether refused, until the heir was guarded by such laws as the Furian and Falcidian.

While we are in the humour of finding fault, we may notice a passage in which we think Mr M'Culloch has not dealt fairly with the English law. It is as follows: —

"In one respect the law of intestacy appears to stand much in need of revision. It is interpreted so as to give, in many cases, more to the eldest son than the real estate and his share of the personalty. Suppose, for example, that a person dies intestate, leaving an estate worth (say) L.100,000, with a mortgage made by him upon it for half its value, or £50,000, and leaving also £50,000 of personal property, in this case the real estate is obviously worth only £50,000; and consistently with the principles previously laid down, the eldest son should succeed to the estate burdened with its debt, and the personal property be divided among the children generally. But a different rule has been permitted to grow up. The personal property of persons dying intestate is the first fund for their debts, though secured upon their estates; and it is the surplus only, if there be any, after these debts are paid, that is divisible among the children, who, in the above case, would be entitled to nothing. This appears to be in all respects a most objectionable arrangement." – P. 41.

We cannot see any anomaly here. "It is a rule in equity," says Cruise, (Digest, tit. xv. c. 4,) "that where a person dies, leaving a variety of funds, one of which must be charged with a debt, that the fund which received the benefit by the contracting the debt shall make satisfaction." This seems to us perfectly just and reasonable, according to the principles of the English law. In the case put by Mr M'Culloch, the personalty of £50,000 obviously owes its existence to the mortgage debt; and it is, therefore, fairly applied to the discharge of that debt. But, cessante ratione, cessat etiam lex; this only applies where the deceased was himself the mortgager. Where the lands came to him mortgaged, his personal estate will not be liable, even though he may have made a covenant to pay it. We may refer the legal reader to the judgment of Lord King, delivered, with the assistance of Lord Chief-Justice Raymond and the Master of the Rolls, in Evelyn v. Evelyn, 2 P. Wms. 659. Compare Cope v. Cope, 1 Salk. 449. Shafto v. Shafto, 2 P. Wms. 664.

Although the custom of primogeniture and the law of entail exercise a similar influence on our social state, yet, as they may be said in some measure to go by a different path towards the same end, Mr M'Culloch has treated them separately. With respect to the first, he begins by rebutting Adam Smith's sweeping denunciation: – "Nothing can be more contrary to the real interest of a numerous family, than a right which, in order to enrich one, beggars all the rest of the children." Wealth of Nations, p. 171.

"On the contrary," says Mr M'Culloch, "we are well convinced that much of the industry and of the superior wealth and civilisation of modern Europe, may be ascribed to the influence of the custom of primogeniture in determining the succession to estates; and that, were it abolished, or superseded by the opposite custom of equally dividing landed property among all the children, or even among all the sons, they would suffer universally by the change, the youngest as well as the oldest; while it would most seriously compromise the interests of every other class." – P. 28.

The truth is, that the right of primogeniture is rather to be regarded as having for its object the benefit of the community, than the interest of the particular family. If a man has £50,000 a-year and five sons, it may appear, at first sight, decidedly more conducive to "the greatest possible happiness of the greatest possible number," that each of these five sons should have £10,000 a-year, than that one should possess the whole, or bulk, of the paternal property, and the other four be left to buffet their way through the world. But it is for the interest of the nation that its aristocracy should be founded in old families, fortified and graced by historical associations; and these are only to be kept up by a devolution of their lands according to the feudal rule. But, as regards the interest of the particular family, it will appear on consideration that, in ninety-nine cases out of a hundred, this also is most effectually promoted by the law of primogeniture. By means of this law, the main stock of the family is left in its full strength as a nucleus round which the younger branches are united, and from which their members derive alike a great portion of their status in society, and inducement to advance themselves in their respective pursuits; and, on the other hand, the professions of the country are exalted and dignified by the infusion into their ranks of men of birth and education, who are, at the same time, dependent on those professions for their advancement. Sir Matthew Hale, as quoted by Mr M'Culloch, forcibly describes the results of the opposite system. "This equal division of inheritance," he says, speaking of the old times of Saxon gavelkind, "did by degrees bring the inhabitants to a low kind of country living; and families were broken; and the younger sons which, had they not had these little parcels of land to apply themselves to, would have betaken themselves to trades, or to military, or civil, or ecclesiastical employments, neglecting those opportunities, wholly applied themselves to those small divisions of land; whereby they neglected the opportunities of greater advantage of enriching themselves and the kingdom." And if it should be urged that Sir Matthew Hale could do little more than form an à priori judgment of the social condition of England in the days of the Confessor, it should be remembered that the picture here drawn is precisely applicable to the state of France at the present day, and may easily be traced to its similar system of partition. An important public result of the same system, as regards the landholders in the exercise of their functions as citizens, may also be observed in that country. The large body of landed proprietors, amounting to between four and five millions, so far from being the leaders of the people, are, perhaps, the most inert and uninfluential class of the whole community. They pay the bulk of the taxes, and grumble accordingly; but beyond a vague dread of aristocracy – not unnaturally founded, perhaps, on the traditions of the vexatious privileges swept away in 1791 – they seem disposed calmly to acquiesce in all the proclamations, charters, and chimeras that maybe thrust upon them by busier handlers of the tools of government, and behold revolutions concocted in Paris, and bursting over their heads, apparently without the remotest conception that it any wise rests with them to control or guide the convulsion.

"It has sometimes been contended that the custom of primogeniture is injurious, from its interesting the leading families of the country in the support of expensive public establishments, in which their younger branches are most commonly placed." – P. 38.

This objection also Mr M'Culloch brings to the test of experiment, and shows that this bias, if it really exist, is little perceptible, and that the aristocracy have shown much more zeal to discharge the functions of the ill-paid offices of the army and navy, than to get into their hands the lucrative situations connected with the administration of justice. It was certainly not the immediate interest of the aristocracy, for instance, to maintain the offices of the six clerks in Chancery, the profits on which were estimated for compensation at sums varying, we believe, from £2500 to £1000 per annum.

The law of entail is traceable to the same human instincts as the law of primogeniture. The clannish feelings of the northern nations, their notion of representation by blood, and the territorial character of their citizenship, all combined to produce an anxiety to perpetuate the old stocks in the homes of their fathers. Nor is this desire of posthumous control over the transmission of lands the product, as is sometimes alleged, of an artificial state of society. Man's possessory instinct essentially connects itself with the future —Serit arbores quæ alteri prosint sæculo. The justice of gratifying this wish by general laws of the community is not more impeachable than that of guarding the indefeasible possession of the owner during his lifetime. It remains to be seen how far the sanction of entails is consistent with the good of the nation in general.