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the influence of the custom of primogeniture in determining the succession to estates; and that, were it abolished, or superseded by the opposite custom of equally dividing landed property among all the children, or even among all the sons, they would suffer universally by the change, the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.
Every lawyer knows that the progress of legal decisions in England has been adverse to entails, and that although the statute De Donis continues on the statute-book, yet it was long ago rendered almost nugatory by the introduction of fines and recoveries. Hence the term entail is now popularly applied to denote the strict settlement of lands, under provisions which prevent them from passing from the heirs to whom they are limited; this having been, of old, the result of an entail properly so called, though it now requires a more complicated mode of settling, and can only endure (so as to render the lands inalienable) for a life or any number of lives in being, and twenty-one years afterwards. This more popular meaning of the word entail is that which Mr M'Culloch follows – his object being to treat of the influence of tying up lands from alienation.
Measuring the practice of entails by the rule of utility, Mr M'Culloch selects two points as the principal topics of discussion.
"In the first place, it is alleged in favour of entails that they stimulate exertion and economy; that they hold out to 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 solid bulwark of a respectable aristocracy, and prevent generations from being ruined by the folly or misfortunes of an individual." – P. 78.
The first of these propositions is, no doubt, partially true; but the motive put forward has not, we think, as a matter of experience, the force that might, at first sight, be attributed to it. Perhaps the keenest accumulators of wealth have not been those who have fixed their capital in a landed estate. The man of business habits and judicious speculation is drawn to make his fortune in obedience to a passion which is partly developed, and at all events fostered, by the pursuit of his life. It cannot be said to arise altogether from a notion of benefiting posterity, of being the founder of a house – the man of whom future Fitztomkynses shall be ashamed – that John Tomkins, merchant, sets at nought all the expostulations of self-indulgence:
"Tun'
