9 JUNE 1866, Page 5


It.STRUGGLE against primogeniture in England seems at first sight a very hopeless affair, one in which the chances are fairly expressed by Wednesday's division in favour of the law, 281 to 84, or more than three to one. That curious form of natural selection has in its favour a thousand years of a history so grandly successful that the sun never loses sight of English soil and one Englishman in every five suffers from chronic hun- ger,—the mental habit of the governing class,—a rooted belief that it is essential to an aristocratic society,—and, strange to say, a latent, intangible, but exceedingly potent superstition. Thousands of persons will, if strongly pressed, tell you' hat the Old Testament, which from Seth to Solomon is one con- tinuous record of the triumphs of younger sons, regards primo- geniture as divine. The root of that strange idea is, we imagine, the Hebrew order that in the division of an estate the first- born shall have not all, but a double portion—a rule possibly based on the fact that on the father's death the elder women of the family fell to the care of the eldest son, who, being burdened with their support, received an additional share. The Mosaic code on this point is now never quoted in the House of Commons, but as it falls in with a preconceived view, it has its weight in the counties, where the most powerful class of all considers the law absolutely essential to its existence. It is all very well to talk about the untouched right of bequest, but the squires, the men with estates of from three to eight thousand a yeas, all feel that the law gives them a moral sanction in setting aside their children's claims. Younger sons do not worry them much ; they can get along some- how, or emigrate if they cannot, but the fate of their daughters tries them till, but for the law, the household pressure would overcome even hereditary prejudice. They feel this, and feeling also that the position of the " property " in the county is a sacred thing not to be lowered without criminality, they resent the removal of any buttress, however imaginary, to their own selfish pride. For except as far as the influence of the law on the moral tone of proprietors is concerned, its effect is altogether imaginary. There is noseal entail left in England, and the great properties are kept to- gether not by any law about intestacy, but by settlements made in accordance with an aristocratic sentiment. Nobody proposes to disturb them, or to interfere with the freedom of bequest, or to do anything except allow the property of a man who has expressed no wish to the contrary to be distributed according to the idea of equity applied to every other kind of possession. We do not say the natural idea. Mr. Bright on Wednesday pushed that theory a great deal too far, so far that, if he is right, freedom of bequest ought to be abolished at once. He evidently held that for a man not to distribute Iris property among his children was a crime. "The law," he said, "destroys in peoples' minds the sense of right and wrong ; induces in a multitude of cases every year the execu- tion of wills and devises of property contrary to all natural right ; and makes, in many oases, the last act of a man's life the great crime of his being." That is dramatic, but it is also just a little nonsensical. Not one will in fifty is the "last act of a man's life," the majority being made shortly after the birth of the first child, and if it is immoral to distribute property according to the owner's wish the State ought to abolish the right of so bequeathing it. Why grant to the sentient owner that right to com- mit a crime which Mr. Bright would refuse to the unconscious dead? Vere de Vere leaves his land to the eldest son; that, says Mr. Bright, is a crime, but still he will not prevent it ; Vere de Vere breaks his neck at a leap and the land goes to the eldest son, and that result, which involves no crime, Mr. Bright will prevent. Very possibly he at heart prefers the perpetual entails created by most Continental laws—which are all based on the postulate that the unit of ownership is not the man, but the family—but then he should say so, and not use argu- ments which reach twice as far as he professes a wish to go. And if that is his view, he must also consent to the renewal of the patria potestas in some form, or family order will very soon be a thing of the past. The truth is that the right of pro- perty in land is a right created by the State, and not by nature at all, and the State has a right to decide what law of descent will best contribute to the general welfare. No law that outrages the instinctive sense of justice can tend to national welfare, and this law does no doubt outrage it. The claim of the children,though not absolute, else that of natural children would be equally strong, is good against all but the State, and if so, the claim of one must be as good as that of another. We all allow that the father who makes a favourite on any but moral grounds, beats one child for acts overlooked in another, is an unjust man, and if so, surely he who pampers one to starve another is a fortiori unjust also. The law decrees that, unless very carefully prevented by formal deeds, that injustice shall be committed, and is therefore immoral. The immorality does not consist in denying the claim of the children on the father, but in denying that such claim as exists belongs to one child as much as another. Indeed if a preferential natural right exists, it is that of the daughters, who are bred up deliberately not to work, and then denied the means of living without work.

The unfairness of the law is, as we have said, clear, and its evil effect, is, in our judgment, clearer still. We have never resisted the aggregation of property, as Mr. Mill, for example, would, holding that there are certain functions of social life which can never be performed except by men rich to wanton- ness, and which it is well should be performed, but this law aids such aggregation very little. It applies only to blocks of land, and in a family which cares for such aggregation does not

operate once in three centuries, need not indeed operate at all. A simple exception to Mr. Locke's Bill, leaving the law as it stands in the case of the death of an unmarried miner, who can have no children trained to believe in their own prosperity and can make no will, would make the power of bequeathal

and settlement absolutely continuous, so that a family, if it pleased, could go on impoverishing all its branches but one for ever. The argument advanced by Sir Roundell Palmer, that England desires to keep up an aristocracy, has therefore no application, while the more popular one, that primogeniture improves cultivation, is absurdly overstrained. That which descends under the law is not the right to cultivate, but the right to exact rent from the cultivator, and that rent can be divided, and is divided every day in the shape of dowers, life- rents, and mortgage payments without a division of farms. Breweries are divided every day, but nobody cleaves the tubs. Interest compels all the owners to appoint a dictatorship, which does the best it can ; and so it would be with estates ; and if big farms yield the most, big farms would be maintained. All that would be lost by division is the feudal supremacy of owner over cultivator, of the man who spends over the man who toils, and that ought to be lost, and will be lost, whatever becomes of primogeniture, the moment tenant farmers learn to com- bine for independence. A vast mass of human misery is in fact maintained because country gentlemen will have it that the manufacture of wheat and fat cattle cannot be conducted on the same conditions as any other manufacture. Tills. misery is often very real. The advocates of primogeniture are accustomed to say that younger sons get on better than elder—a capital argument for making them all alike younger sons—but they conveniently forget just one-half of the facts. Half the younger sons, to use an expressive Irishism, are- daughters, who do not get on very well, but rescue themselves very often by sale, or lead lonely, useless, and dependent lives— lives made, it may be, endurable by custom, but indefinitely less happy than a fair division, even were it only in the shape- of a rent-charge, would have made them. The sum of human misery in the shape of poverty artificially inflicted on women is very great, strflieient of itself to throw the onus probandi upon those who support the law.

"What is the use of all that I" chuckles the county baronet; "right or wrong, the law will not be altered while there is a Peerage in England," and we quite acknowledge- that primogeniture is probably destined to last a good many years. It has, as Mr. Henley showed, got a new lease of life recently from the immense multiplication of what auctioneers call "residential estates," goad houses with little parks round them, which will no more divide than a picture of them by Turner would. But we would just remind the Peers that they have no one guarantee for the law which the Continental aristocracies had not, and that they have never yet faced, or been called on to face, the real assault. That will come from the tillers of the soil. It is the custom in England to say that Englishmen, not being Celts, do not feel the land hunger, but we would advise any Peer who thinks so to consult the first two-horse farmer or auctioneer he can find, and inquire what he thinks on the point. He will reply that land sold in small parcels fetches ten pounds an acre more than land in large farms, that peasants who have saved money never think of any investment but land, and that little yeomen, when forced to sell, die of brandy and broken hearts. A national idiosyncrasy, which vanishes the moment its possessor quits his native soil, is not a very trustworthy bulwark, and in America, or Canada, or Australia, the Englishman will do anything rather than pay rent, will, as in Prince Edward's Island, rather encounter military force. If the agriculturists ever move the middle classes will, on this point, have an army behind them which may ask for much more than Mr. Locke King's very moderate request, that the law shall not formally consecrate inequality among brethren.