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a life or lives in being. The only alteration made in the law of the State of New York by the revised statute of A.D. 1830, was that this statute will not allow the absolute power of alienation to be suspended for a longer period than during the continuance of not more than two lives in being at the creation of the estate.”
“ The English law allows of the limitation to any number of lives in being, and for twenty-one years and nine months afterwards."
Thus far as regards the general course of law on this subject in most of the civilised countries of the world in ancient and modern times. On the questions of social policy and abstract right involved in these various and opposite laws and customs, the opinions of men are likely to continue as various as the laws and customs themselves. On the one hand, it will be argued that the feeling of natural equity is better satisfied by the equal partition of inheritances. Also, when regarded from the political point of view, the practice of equal partition agrees more with the theory that an universal participation in political power is a matter of right, and not a question of expediency. On the other hand, it is denied that there is any
such principle of natural equity involved, as to establish a right or a claim on the part of the children to an equal partition of the father's property; that it is a question of discretion, and of practical wisdom, with a view to the best interests and the ultimate welfare of the whole family; and that the experience of successive generations in any particular country is the index and the guide to the practice most suitable to that country. The practice of our own country is seen to tend to the accumulation of capital, and consequently to all that power, to all those vast enterprises, and to all those great achievements, which accuniu
lated capital can alone produce; it improves and extends agriculture, stimulates and sustains manufactures, diffuses commerce througb 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 re
* Pages 384-5.
gard 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
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.”
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 1844, 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 import
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 pos