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CHAP. 9.1

PRIMOGENITURE.

295

ested in the continuance. The interests of these persons, the supineness of others, the pride of a third class, and the superstitious attachments of a fourth to ancient things, occasion many laws to remain on the statute books of nations long after their perniciousness has been ascertained.

Thus it has happened in our own country with respect to the gamelaws. It is perfectly certain that they greatly increase the vices of the people, and yet they remain unrepealed. Why? Voluble answers can no doubt be given, but they will generally be resolvable into vanity or selfishness. The legislator who shall thoroughly amend the game-laws (perhaps thorough amendment will not be far from abolition) will be a greater benefactor to his country than multitudes who are rewarded with offices and coronets.

Thus too it has happened with the system of primogeniture. The two great effects of this system are, first, to increase the inequality of property, and next to perpetuate the artificial distinctions of rank.

That the existing inequality of property is a great political and moral evil it was attempted in the third chapter of the preceding essay to show. The means of diminishing this inequality, which in that chapter were urged as an obligation of private life, are not likely to be fully effectual so long as the law encourages its continuance. A man who possesses an estate in land dies without a will. He has two sons. Why should the law declare that one of these should be rich and the other poor? Is it reasonable? Is it just? As to its reasonableness, I discover no conceivable reason why, because one brother is born a twelvemonth before another, he should possess ten times as much property as the younger. Affection dictates equality; and in such cases the dictate of affection is commonly the dictate of reason. We have seen what antecedently to inquiry we might expect, that the practical effects are bad. Civil laws ought, as moral guides of the community, to discourage great inequality of property. How then shall we sufficiently deplore a system which expressly encourages and increases it! Some time ago (and probably at the present day) the laws of Virginia did not permit one son to inherit the landed estates of his father to the exclusion of his brothers. The effect was beneficial, for it actually diminished the disparity of property.* We, however, not only do not forbid the descent of estates to one son, but we actually ordain it. It were sufficient, surely, to allow private vanity to have its own will in "keeping up a family" at the expense of sense and virtue, without encouraging it to do this by legal enactments when it might otherwise be more wise. The descent of intestates' estates in land to the elder son has the effect of an example, and of inducing vicious notions upon those who make their wills. That which is habitual to the mind as a provision of the law acquires a sort of sanction and fictitious propriety, by which it is recommended to the public.

The partial distribution of intestates' estates is, however, only of casual operation. Of the laws which make certain estates inalienable, or, which is not very different, allow the present possessor to entail them, the effect is constant and habitual. To prevent a reasonable and good man from making that division of his property which reason and good

*The Virginians singularly confounded good moral legislation with bad, for they made a law declaring all landed property inviolable. The consequence was what might have been expected: many got into debt, and remained quietly on their estates, laughing at their creditors.

296

PRIMOGENITURE,

[ESSAY III ness prescribe is a measure which, if it be adopted, ought surely to be recommended by very powerful considerations. And what are they,-except that they enable or oblige a man to keep up the splendour of his family? Splendour of family! Oh to what an ignis fatuus, to what a pitiable scheme of vanity, are affection, and reason, and virtue obliged to bow! Where is the man who will stand forward and affirm that this splendour is dictated by a regard to the proper dignity of our nature? Where is he who will affirm that it is dictated by sound principles of virtue? Where, especially, is he who will affirm that it is dictated by religion? It has nothing to do with religion, nor virtue, nor human dignity religion despises it as idly vain; morality reprobates it as sacrificing sense and affection to vanity; dignity rejects it as a fictitious and unworthy substitute for itself. Yet, perhaps, this humiliating motive of vanity is the most powerful of those which induce attachment to the system of primogeniture, or which would occasion opposition to attempts at reform. Perhaps it will be said, that to make the real estate of a man inalienable is really a kindness to his successors, by preventing him from squandering it away; to which the answer is, that there is no more reason for preventing the extravagance of those who possess much property than of those who possess little. No legislature thinks of enacting that a man who has two thousand pounds in the funds shall not sell it and spend it if he thinks fit. In general, men take care of their property without compulsion from the law; and if it is affirmed that the heads of great families are more addicted to this profusion and extravagance than other men, it will only additionally show the mischiefs of excessive possessions. Why should they be more addicted to it unless the temptations of greatness are unusually powerful and unusually prevail?

But it will be said that the system is almost necessary to an order of nobility. I am sorry for it. If, as is probably at present the case, that order is expedient in the political constitution, and if its weight in the constitution must be kept up by the system of primogeniture, I do not affirm that, with respect to the peerage, this system should be at present abolished. But then let the enlightened man consider whither these considerations lead him. If a system essentially irrational and injurious is indispensable to a certain order of mankind, what is it but to show that, in the constitution of that order itself, there is something inherently wrong? Something that, if the excellence of mankind were greater, it would be found desirable to amend? Nor here, in accordance with that fearless pursuit of truth, whether welcome or unwelcome, which I propose to myself in these pages, can I refrain from the remark, that in surveying from different points the constituent principles of an order of peers, we are led to one and the same conclusion, that there is in these principles something really and inherently wrong; something which adapts the order to an imperfect, and only to an imperfect, state of mankind.

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If then we grant the propriety of an exception in the case of the peerage, we do not grant it with respect to other men. Much may be done to diminish the inequality of property, and with it to diminish the vices of a people, by abolishing the system of primogeniture except in the case of peers.

Of so great ill consequence is excessive wealth, and the effect to which it tends, excessive poverty, that a government might perhaps rightly discountenance the accumulation of extreme personal property

CHAP. 10.]

ADMINISTRATION OF JUSTICE.

297

Probably there is no means of doing this, without an improper encroach ment upon liberty, except by some regulations respecting wills. I perceive nothing either unreasonable or unjust in refusing a probate for an amount exceeding a certain sum. Supposing the law would allow no man to bequeath more than a given sum, what would be the ill effect? That it would discourage enterprising industry? That industry is of little use which extends its desires of accumulation to an amount that has no limit. The man of talent and application, after he has so far benefited himself and his country by his exertions or inventions as to acquire such property as would procure for him all the accommodations of life which he could rationally enjoy, may retire from the accumulation of more, and leave the result of his talents to bring comfort and competence to other men. It may be said that a man might still accumulate a larger sum to dispose of before his death. So he might but few would do it. Of those who are ambitious of so much more than conduces to the welfare of themselves and their children, few would continue to toil in order to give it away. Benevolence does not generally form a part of the motives to such accumulation. If once the law refused the bequest of more than a fixed sum, by appropriating the excess to the exigencies of the state, or to measures of public utility, men would learn to set limits to their desires. That restless pursuit of wealth which is pernicious to the pursuer and to other men would be powerfully checked; and he who had acquired enough might habitually give place to the many who had too little. The writer of these pages makes no pretensions to a knowledge of the minute details of moral legislation. It is his business, in a case like this, while enforcing the end only to suggest the means. Other and better means of diminishing the inequality of property than those which have just been alluded to, may probably be discovered by practical men. But of the end itself it becomes the writer of morality to speak with earnestness and with confidence.* It admits of neither dispute nor doubt, that in our own country and in many others there subsist extremes of wealth and poverty which are highly injurious to private virtue and to the public good; and therefore it admits neither of dispute nor doubt, that the endeavour to diminish these extremes is an important (unhappy, that it is also a neglected!) branch of moral legislation.

CHAPTER X.

ADMINISTRATION OF JUSTICE.

IN considering this great subject, the inquirer after truth is presented, as upon some kindred subjects, with one great pervading difficulty. If he applies the conclusions of abstract truth, such is the imperfect condi tion of mankind, that it loses a portion of its practical adaptation to its

* The legal division of the personal property of intestates admits of easy amendment. Two men die, of whom each leaves six thousand pounds behind him. One has a wife and one child, and the other a wife and eight children. It can hardly be rational to give to the widow in both these cases the same share of the property. In one or two nations the law gives a third of the income of the real estates, in addition, to the widow; but better regula tions even than this were easily devised.

298

SUBSTITUTION OF JUSTICE FOR LAW.

[ESSAY III. object. If he deviates from this truth, where shall he seek for a director of his judgment? He is left to roam among endless speculations, where nothing is to be found with the impress of certain rectitude.

The dictate of simple truth respecting the administration of justice is, that if two men differ upon a question of property or of right, that decision should be made between them which justice, in that specific case, requires; that if a person has committed a public offence, that punishment should be awarded which his actual deserts and the proper objects of punishment demand.

But if this truth is applied in the present state of society, it is found so difficult to obtain judges who will apply the sound principles of equity, judges who will exercise absolute discretionary power without improper biases, that the inquirer is fearful to pronounce a judgment respecting the rule which should regulate the administration of justice.

Men, seeing the difficulties to which an attempt to administer simple equity is exposed, have advanced as a fundamental maxim,—that the law shall be made by one set of men, and its execution intrusted to another,thus endeavouring, on the one hand, to prevent rules from being made under the bias resulting from the contemplation of particular cases, and on the other, to preclude the appliers of the rules from the influence of the same bias, by obliging them to decide according to a preconcerted law. But when we have gone thus far,--when we have allowed that questions between man and man shall be decided by a rule that is independent of the merits of the present case, we have departed far from the pure dictate of rectitude. We have made the standard to consist, not of justice, but of law; and having done this, we have opened wide the door to the entrance of injustice. And it does enter indeed!

The consideration of this state of things indicates one satisfactory truth,--that we should pursue the rule of abstract rectitude to the utmost of our power; that we should constantly keep in view, that whatever decision is made upon any other ground than that of simple justice, it is so far defeating the object for which courts of justice are established; and therefore, that in whatever degree it is practicable to find men who will decide every specific question according to the dictates of justice upon that question, in the same degree it is right to supersede the application of inferior principles.

Am I then sacrificing the fundamental principles upon which the morality of these essays is founded? Am I, at last, conceding that expediency ought to take precedence of rectitude? No: but I am saying, that if the state of human virtue is such that not one can be found to judge justly between his brethren, men must judge as justly as they can, and a legislator must contrive such boundaries and checks for those who have to administer justice, as shall make the imperfection of human virtue as little pernicious as he may. If this virtue were perfect, courts of law might perhaps safely and rightly be shut up. There would be a rule of judgment preferable to law; and law itself, so far as it consists of absolute rules for the direction of decisions between man and man, might almost be done away.

Now, in considering the degree in which this great desideratum-the substitution of justice for law--can be effected, let us be especially careful that we throw no other impediments in the way of justice than those which are interposed by the want of purity in mankind. Let us never regard a system of administering justice as fixed, so that its maxims shall

CHAP. 10.]

INADEQUACY OF FIXED RULES.

299

not be altered whenever an increase of purity dictates that an alteration may be made. All the existing national systems of administering justice are imperfect and alloyed; a mixture of evil and good. It were sorrowful indeed to assume that they cannot be, or to provide that they shall not be, amended.

The system in this country, like most systems which are the gradual accretion of the lapse of ages, is incongruous in its different parts. In the decisions that are founded upon legal technicalities, the method of applying absolute uniform law is adopted. In the assessment of damages there is exercised very great discretionary power. In pronouncing verdicts upon prisoners, juries are scarcely allowed any discretion at all. They say absolutely either not guilty or guilty.-Then again, discretion is intrusted to the judge, and he may pronounce sentences of imprisonment or of transportation, varying according to his judgment in their duration or circumstances. The reader should well observe this admission of discretionary power to the judicial court, because it is a practical acknowledgment that considerations of equity are indispensable to the administration of justice, whatever may be the multiplicity or precision of the laws. Our judges are intrusted, on the circuits, with the discretionary power of commuting capital punishments or leaving the offender for execution. This is equivalent to an acknowledgment, that even the most tremendous sanctions of the state are more safely applied upon principles of equity than upon principles of law. Let the reader bear this in his mind.

Of the general tendency and attendant evils of uniform law, some illustrations have been offered in the preceding essay, and some observations have been offered in the chapter on Arbitration, on the advantages of administering justice upon principles of equity, that is, by a large discretionary power. Now it will be our business to inquire into some of the reasonings by which the application of uniform law is recommended, to illustrate yet further the moral claims of courts of equity, and to show if we can that some greater approximation to the adoption of these courts is practicable even in the present condition of mankind.

The administration of justice according to a previously made rule labours under this fundamental objection,-that it assumes a knowledge in the maker of the rule which he does not possess. It assumes that he can tell beforehand, not only what is a good decision in a certain class of questions, but what is the best. And the objection appears so much the more palpable, because it assumes that a party who judges a case before it exists can better tell what is justly due to an offended or an offending person than those who hear all the particulars of the individual case. This objection, which it is evident can never be got over, is practically felt and acknowledged. Every relaxation of a strict adherence to the law, every concession of discretionary power to juries or to courts, is an acknowledgment of the inherent inadequacy and impropriety of fixed rules. You perceive that no fixed rules can define and discriminate justly for specific cases. Multiply them as you may, the gradations in the demands for equitable decision will multiply yet faster; so that you are forced at last to concede something to equity, though perhaps there has not hitherto been conceded enough. Our court of Chancery was originally, and still is, called a court of equity,-the erection of which court is paying a sort of tacit homage to equity as superior to law, and making a sort of tacit acknowledgment how imperfect and inefficient the funda

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