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lated capital can alone produce; it improves and extends agriculture, stimulates and sustains manufactures, diffuses commerce through every sea, and brings back to the doors of a whole nation, prosperity, independence, wealth, and every element of material comfort. In a higher point of view, it gives opportunities for the purest and most refined enjoyments, leads to the most elevated intellectual and moral culture, and carries forward civilisation to the utmost bound attainable under the guidance of and in subordination to that culture. The contrary practice of other countries, in its different degrees, is seen to lead to different results in many particulars. France presents one phase of the effect of the principle of the subdivision of inheritances, which is there compulsory. All independent centres of power and local influence have been swept away by that law, and consequently it has cost no great effort to extinguish her liberties. Under the operation of the same law, poverty has stricken the Grand Duchy of Nassau, the Grand Duchy of Luxembourg, the Rhine Provinces, and every portion of German territory where it prevails. Mr. Justice Kent states very fairly his own opinion upon the subject, which, while candid towards other countries whose law or custom differs from his own, admits the principle that, even in his own country, the custom of “keeping inheritances unbroken” is in a material point of view, desirable. There are very many persons in his country who do not hesitate to add that it would be desirable in a moral and political point of view also.
Mr. Justice Kent's words are:
“The policy of the measure will depend upon circumstances, and is to be considered in reference to the state of society, the genius of the government, the character of the
people, the amount of cultivated land, the extent of territory, and the means and inducements to emigrate from one part of the country to another.” ...
He proceeds to say,—" without undertaking to form an opinion as to the policy of primogeniture under the monarchical government of England,”—that in his own country at least,
“The extraordinary extent of unsettled territories, the abundance of uncultivated land in the market, and the constant stream of emigration from the Atlantic to the interior States, operate sufficiently to keep paternal inheritances unbroken. The tendency of these causes, as experience in the eastern States would seem to confirm, is rather to enlarge than to abridge them; and if the inheritance will not bear partition without injury to the parties interested, the eldest son in some of the States is allowed to elect to take the whole entail to himself, on paying to the other heirs an equivalent to their shares in money, and on his refusal, the same privilege is allowed to the other sons successively."*
NOTE IX. (TO CHAPTER XVI.)
The above review of the actual state of the law of succession in the United States, suggests considerations to a certain extent at variance with the popular impressions on that subject.
It is undoubtedly true that the general practice in regard to the succession of property in that country has, since the separation from England, been to distribute it by will among all the children. And to this practice, M. De Tocqueville, in one of the most instructive chapters of his masterly work (Chapter III., on the Social State of the AngloAmericans), attributes that complete ascendancy of the democratic element, which, having first established itself in the old States of the east and south, has now embraced the whole west, where it must long bear sway without the shadow of a competitor. M. De Tocqueville expresses “ astonishment that public writers, ancient and modern, have not attributed to the laws respecting succession a greater influence over the march of human affairs." He says that the legislator, after having disposed of that law, may, in reference to the basis of power, repose for ages; for after once giving the impulse to the movement the machine acts of its own accord. And with no disguised reference to the state of things in his own country, he represents the action of that principle “as dividing, distributing, scattering, property and power;” “ pounding to pieces, or bursting into fragments everything that resists its passage ; now raising itself up, now prostrate on the soil, until the only substance it presents to sight is that of a moving and impalpable dust, on which sits democracy."
* Pages 384-5.
That this is the true solution of the rapid spread of purely democratic legislation in all the individual States, as recorded by Mr. Justice Kent, in the passages I have quoted, and as seen in what has occurred since he wrote in 1814, there can be no room to doubt; and it remains for time to show how long a highly-conservative system of general government can consist with a thoroughly democratic political organisation of the individual States.
But other reflections are suggested by a reference to the actual state of the law as to successions in the United States, to which I venture to think that some force is to be attributed.
The power of entail still exists in all the States, almost precisely as in this country. One State only, New York, has adopted a limitation upon it, of no essential importance.
It has been seen (Chapter I.) how strongly the feeling in favour of entails prevailed in nearly all the States in the early days of their colonial history—in a few of them even more so than in the parent country; and that in some instances the law dividing the estates of intestates among all the children was not adopted until after the separation. The principle, moreover, of preferring the eldest son in those cases is still, to a certain limited extent, adopted in nearly all the laws of the individual States.
I think it is impossible to deny that these facts indicate the depth and tenacity of the old principle, and that there is something in it that clings to the convictions of men, notwithstanding the plausible theories of more general benevolence, and the sanguine hopes of better government and more diffused prosperity, by which they had been allured.
The fact is, that of late years some of the largest properties accumulated by commerce have, even in the northern States, been distributed by will, very much in accordance with the custom of primogeniture. In the southern States (I judge from the expressions of many gentlemen from that part of the country) no secret is made of the desire to counteract the united effects of the modern law as to intestacy, and the course of events, by keeping the old family estates as much as possible unbroken. And it is open to every traveller in the United States to observe how completely the rapidly-accumulating wealth, arising from the vast resources of that country, gives to the social life of the actual possessors of wealth, all, or nearly all, the characteristics that it could have in that country under the most rigid custom of primogeniture.
M. De Tocqueville speaks with evident regret of the consequences of the law or custom of subdivision of inheritances, in destroying family attachments to places and people ; in removing “ an imperishable witness of the past and a precious pledge for the future ;” in extinguishing one great stimulus to perpetuate virtue and renown; in dissipating the laboriously-collected stores of cultivation and refinement, and obstructing the onward progress of the highest civilisation, by continually compelling steps that had been already gained to be retraced anew.
He attributes to it, also, a deeper moral taint, and a greater wrong to the highest interests of mankind. He says, and says truly, that when you have destroyed in the minds of the wealthy and prosperous all those more elevating influences which can so powerfully affect the human heart, you leave it to be absorbed by selfishness, or to limit its sympathies within the narrow field of one generation. And when you have removed all the higher objects of love and reverence, and all the purer incentives to exertion, you leave little more than the basest of all incentives, the love of money.
Strong is the language of Goldsmith in denouncing those who,
“polluting honour at its source, Give wealth to sway the mind with double force." In this country we hold the united benefits derived from