parts into which the estate is divided, the others preferring to bestow it upon strangers. In both countries, then, the consent of the people carries out the general policy of the law, favoring or preventing the distribution of property, just as the legislature determines in those cases which are settled by the law alone, without regard to the wishes of the owners.

Here in America, the law takes the middle course between the English and the French policy. The custom of gavelkind is the rule, unequal distribution is the exception. Entails are generally more restricted than in England, perpetual entails being never allowed; and all minor restrictions on the division or sale of landed estates being taken away, the partition or transfer of real property is effected about as easily as that of movables. On the other hand, the law does not oblige a parent to distribute his property equally, but he may make what distinctions he chooses, and may virtually disinherit all his children, if he sees fit. But the custom follows the law; many persons do not make a will, but allow the law to take its course. A testator seldom makes a very unequal distribution among his children; but if he is childless, he often disposes of his property according to fancy, the expectations of more distant heirs not being much regarded.

From the operation of these laws in the three countries, we might naturally expect that there would be monstrous inequalities in the distribution of wealth in England, while in France and this country, property would be as nearly at a level in the community as it can be brought by the influence of legislation. It is true, that the several systems must have time to operate before their full effects can be perceived. The French system did not come into full effect till the revolution of 1789; it was one, and the most effective of all, of the sweeping measures adopted at that epoch for the sole purpose of breaking the power of the feudal aristocracy. Only two generations having elapsed since that time, it might be supposed that the splitting of landed estates and the general subdivision of property have not yet been carried out there to their full extent, but that the equalization of wealth is destined to go much further.

This may be doubted; here in New England, where the law of equal partition, applied directly only to the property of intestates, but governing in fact the descent of nearly all prop

erty, has been in force for more than two centuries, the land is by no means so much subdivided as in France; and we have probably more persons of large fortune, in proportion to the whole population, than can be found in any department of that country. If the farm is already so small that it will not support more than one family with the average degree of comfort among landholders of the same class, one of the heirs will buy out the others, who will use the price of their shares as means for establishing themselves in some non-agricultural employment, or in some other locality. In truth, it is demonstrable that there must be this limit to the division of estates; for if the ground owned and cultivated by a small proprietor be insufficient for the support of his family, his poverty will oblige him to sell it, and the purchaser, of course, must be a person more wealthy than himself. It is idle, then, to talk of the risk of the whole country falling into the hands of a set of pauper proprietors; the first symptoms of pauperism will oblige them to alienate their lands, and capitalists will reunite the farms which had been injured by excessive subdivision. The ability to purchase can never be wanting, as all the natural causes of inequality of wealth operate without check during each complete generation; for during this period, they are not counteracted by laws regulating the succession to property. We can, therefore, readily admit the conclusion which has been drawn from statistical evidence,* that the smaller properties in France have not sensibly diminished in size during the last thirty years. Possibly these small estates may increase in number through the breaking up of larger ones; but they will not be

* M. Legoyt, in an article published in the "Dictionary of Political Economy," in 1854, says that he has examined the state of the case for 122 cantons belonging to twenty-seven departments, taken indifferently from the north, south, east, west, and centre of France, and has established the following results. Forty-eight cantons, belonging to eleven different departments, were divided, in 1815, into 2,754,885 estates or separate properties; and in 1847, they had only 2,438,062 such estates, being a diminution of thirteen per cent in thirty-two years. In the seventy-four other cantons, belonging to sixteen departments, there were 2,846,971 separate properties in 1815, and in 1847 there were 3,096,235, being an increase of less than nine per cent in thirty-two years. Taking the aggregate for the 122 cantons, which comprise nearly a third part of all France, it appears that there were 5,601,856 estates in 1815, and only 5,534,297 in 1847, being a diminution of over one per cent. It is very evident, then, that the morcellement or subdivision of landed property in France has reached its limit, and has probably begun to decline.

more contracted in dimension, for, if smaller, they would not support a single family.

Among the ancients, as a general rule, all property, on the death of the owner, descended as a matter of course to his children, or, if he had none, to his nearest relatives. In Athens, Solon confined the privilege of making a will to such as had no children; before his time, the estate was necessarily divided among the nearest of kin. In Rome, for a long period, children could be disinherited only by a will made in an assembly of the people, so that the act was not so much that of an individual as of the legislature. In the later ages of the Empire, the law required all the children of the testator to be named in the will, and if any one of them was disinherited, that special reasons should be given for such treatment. And the heir thus excluded might bring an action to test the validity of these reasons; if they were found insufficient, the will was set aside, and the disinherited child was admitted with the others to what the law termed their "legitimate portion" of the paternal estate. Before the Code and the Pandects were compiled, this portion amounted to one fourth of the whole. Justinian decreed, that, if there were not more than four children, they should succeed as of right to a third part of the property; if more than four, they received at least one half. Among the Germans, also, as we are informed by Tacitus, the children were protected in their natural heirship, and the right to devise property away from them was not allowed. Hence it appears that the French law of compulsory partition is no innovation; the voice of antiquity generally is in its favor, as consonant with reason and the natural sense of equity.

The right of primogeniture, and the privilege of entailing estates, or devising them to a series of heirs, any one of whom has only a life-interest in the property, without the power of alienating it or burdening it with debt, had their origin in the feudal system. Before the rise of feudalism, it is true, males were in some instances preferred to females, and the eldest son had some advantages over his brethren; thus, according to the Jewish law, he had a double share, a peculiarity which was borrowed from the Mosaic code for a short time by the first settlers of New England. In Anglo-Saxon times, even in Old England, all the property, whether real or personal, was divided

equally among the sons, if there were any; if not, among the daughters. "The green network of hedges spread over the face of England, that peculiar charm of English land," is attributed by Mr. Laing to this circumstance; it could have been formed only by a nation of small proprietors, among whom the land was partitioned off by these enclosures into fields of very moderate extent. In Scotland, France, and Germany, where the feudal system gave the original law of real property, these small enclosures do not exist; the face of the country is not marked by permanent lines of division, but expands in broad and unenclosed districts. In England, even down to the time of Henry II., personal property or movables were divided into three equal portions, one of which went of right to the widow, another to the lineal descendants, and the direction of the third only was left to the will of the testator; if there were no children, the widow took one half, and the other half might be disposed of by testament.

But generally, at the time of the Norman conquest, the principles of the feudal system were introduced into the kingdom, and an entire change was made in the rules which determined the succession to the estates of persons deceased. The system which was then established in England, though it has undergone some changes of form, has continued, on the whole, with fewer alterations on essential points than in any other country in Europe. It was eminently favorable to the nobles and the gentry, and its continuance has kept up the power and real influence of the aristocracy in Great Britain, while almost everywhere else, especially during the present century, it has rapidly declined. The aggregation of real property into immense landed estates, and a very unequal distribution of movable goods, have been the economical results of this preservation of the principles of the feudal system relating to the succession, after every other trace of that system had disappeared. England is now as much an aristocratic country, is as much under the dominion of her great barons, as it was in the days of Warwick, "the King-maker"; only the power of the nobles now rests, not on their arms, but on their wealth. In France and most other kingdoms on the Continent, the triangular contest between the people, the nobles, and the sovereign terminated in a partial union of the people and the crown, which

made the latter practically absolute, and enabled it either to crush the aristocracy, or to render it entirely subservient to the throne. But in England, the barons and the gentry wisely espoused the popular cause, and took the lead in wresting from the crown the Great Charter, the Statute of Treasons, the Petition and the Bill of Rights, and the other time-honored muniments of English freedom. Thus they have been more than a match for the crown, and have never entirely lost the support of the people. They have never become unpopular as a class, but have preserved their vast estates and their social weight and influence along with them. Their political privileges have been from time to time abridged; but their "weight in the country," to adopt a phrase which is peculiarly English, is now as great as ever. The aristocracy of France, on the other hand, is extinct, that of Spain is effete, that of Germany and Italy hardly exists except in name. Its influence in these countries has not been great enough to preserve the laws by which alone great landed estates could be kept together and preserved through successive generations; and without such estates, political power is an accident, and titles are an idle distinction. In fact, titles have usually multiplied as the power of the nobles has declined.

Feudal estates were held, for the most part, on condition of rendering military service, and therefore could not pass into the possession of females, except when the male line was extinct. There were obvious inconveniences, also, in the partition of such estates; for in military arithmetic, the sum of all the parts is not equal to the whole. A great baron, who could bring a thousand armed retainers to the wars, was a match for at least twenty of the inferior nobles, each of whom could not muster more than a hundred followers. "The security of a landed estate," says Adam Smith, "the protection which its owner could afford to those who dwelt on it, depended on its greatness. To divide it was to ruin it, and to expose every part of it to be oppressed and swallowed up by the incursions of its neighbors. The law of primogeniture, therefore, came to take place, not immediately indeed, but in process of time, in the succession of landed estates, for the same reason that it has generally taken place in that of monarchies, though not always at their first institution. That the power, and conse