"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