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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
sible unbroken. And it is open to every traveller in the United States to observe how completely the rapidly-accumulating wealth, arising from the vast resources of that country, gives to the social life of the actual possessors of wealth, all, or nearly all, the characteristics that it could have in that country under the most rigid custom of primogeniture.
M. De Tocqueville speaks with evident regret of the consequences of the law or custom of subdivision of inheritances, in destroying family attachments to places and people ; in removing “an imperishable witness of the past and a precious pledge for the future ;" in extinguishing one great stimulus to perpetuate virtue and renown; in dissipating the laboriously-collected stores of cultivation and refinement, and obstructing the onward progress of the highest civilisation, by continually compelling steps that had been already gained to be retraced anew.
He attributes to it, also, a deeper moral taint, and a greater wrong to the highest interests of mankind. He says, and says truly, that when you have destroyed in the minds of the wealthy and prosperous all those more elevating influences which can so powerfully affect the human heart, you leave it to be absorbed by selfishness, or to limit its sympathies within the narrow field of one generation. And when you have removed all the higher objects of love and reverence, and all the purer incentives to exertion, you leave little more than the basest of all incentives, the love of money.
Strong is the language of Goldsmith in denouncing those who,
polluting honour at its source, Give wealth to sway the mind with double force." In this country we hold the united benefits derived from
all the inheritances of antiquity and all the material, intellectual, and moral conquests of modern times, by the tenure of making them all subservient (as far as human wisdom permits) to the highest interests and the individual happiness of the whole body of the community.
I have said in the text (pp. 23, 86) that there is no need to repeat the well-known refutations of those theories which rest the claim to a participation in political power on “the rights of man.” The full discussion which these abstract questions of government underwent at the end of the last century has finally disposed of them as matters of practical value, in the convictions of all educated men in this country. But no one can be conversant with the sort of literature which for the last twenty years has been addressed to the passions, and which takes advantage of the comparative want of knowledge of large masses of our population, without seeing in it another example of the facility with wbich exploded errors can be revived among a new generation unacquainted with their previous existence. I therefore offer this circumstance as the excuse for the length of the following extracts. It is not every one who may chance to read this volume who has at hand the writings of those who dealt with these questions when, in the last century, they agitated the whole of Europe. And I venture to hope that no one will object to see, in connection with the subject of this book, a few of those passages which were bequeathed to the admiration of posterity
by orators and statesmen who have placed the foundations of our own political system on the basis of true philosophy and irrefragable reasoning.
The following is the eloquent exposition of Burke, of the real rights of man, in contradistinction to his pretended rights, as a member of civil society :
"The pretended rights of these theorists are all extremes; and in proportion as they are metaphysically true they are morally and politically false. The rights of men are a sort of middle, incapable of definition, but not impossible to be discerned. The rights of men in governments are their advantages; and these are often in balances between differences of good ; in compromises sometimes between good and evil, and sometimes between evil and evil. Political reason is a computing principle; adding subtracting, multiplying, dividing, morally, and not metaphysically or mathematically, true moral denominations.
“ By these theorists the right of the people is almost always sophistically confounded with their power. The body of the community, whenever it can come to act, can meet with no effectual resistance; but until power
and right are the same, the whole body of them has no right inconsistent with virtue, and the first of all virtues, prudence. Men have no right to what is not reasonable, and to what is not for their benefit.
“ Whilst they are possessed by these notions it is vain to talk to them of the practice of their ancestors, the fundamental laws of their country, the fixed form of a Constitution whose merits are confirmed by the solid test of long experience and an increasing public strength and national prosperity. They despise experience. They have the rights of man.' Against these, they say, there can be no prescription; against these no argument
is binding; these admit no temperament and no compromise; anything withheld from their full demands is so much fraud and injustice. Against these, their rights of men, let no Government look for security in the length of its continuance, or in the justice and lenity of its administration. The objections of these speculatists, if its forms do not quadrate with their theories, are as valid against an old and beneficent Government as against the most violent tyranny or the greatest usurpation. They are always at issue with Governments, not on a question of abuse, but a question of competency and a question of title.
“ Far am I from denying in theory—full as far is my heart from withholding in practice (if I were of power to give or to withhold)—the real rights of men. In denying their false claims of right, I do not mean to injure those that are real, and are such as their pretended rights would totally destroy. If civil society be made for the advantage of man, all the advantages for which it is made become his right. It is an institution of beneficence, and law itself is only beneficence acting by rule. Men have a right to live by that rule; they have a right to do justice, as between their fellows, whether their fellows are in politic function or ordinary occupation. They have a right to the fruits of their industry, and to the means of making their industry fruitful. They have a right to the acquisitions of their parents; to the nourishment and improvement of their offspring; to instruction in life, and consolation in death. Whatever each man can separately do, without trespassing on others, he has a right to do for himself; and he has a right to a fair portion of all which society, with all its combinations of skill and force, can do in his favour. In this partnership all men have equal rights,