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the forbearing lender, is a punishment which it inflicts on him for his forbearance ; while the power which it gives him of avoiding that loss, by prosecuting the borrower upon the instant of failure, is a reward which it holds out to him for his hardheartedness and rigour.
"It may indeed be, in many cases, impossible for the borrower to pay the interest at the day; but what is the obvious inference ? That the creditor should not have it in his power to ruin the debtor for not paying at the day, and that he should receive a compensation for the loss occasioned by such failure. The spirit of our existing laws is precisely the reverse of this. The creditor has it in his power to ruin him, and he has it not in his power to obtain such a compensation. On the contrary, if the debtor has recourse to law, and resolves to fight his creditor through all the windings of mischievous delay, he purchases a respite at ten times, perhaps at a hundred times, the expense of compound interest; while, of the money thus thrown away, no part falls to the share of the individual he has injured, but is consumed by the legal agents who conduct the litigation."*
SECT. IV.-ON SUBJECTING THE COMMERCE OF LAND TO THE
REGULATION OF LAW.]
(Interpolation from Notes.)- I proceed next, agreeably to the arrangement formerly laid down, [Political Economy, Vol. I. p. 45,] to make some remarks on the expediency of restraints on the Commerce of Land.
The pre-eminent importance of landed property, and the various effects connected with its distribution, will justify me sufficiently for treating of it separately from the other constituents of National Wealth. From the observations which I formerly bad occasion to make, it appears how intimately this subject is connected with the advancement of that species of wealth which gives existence to all the others, furnishing to the various classes of manufacturers and artists, both the mate
* [Defence of Usury, Letter xi.; Works, Vol. III. p. 18.]
rials of their subsistence, and the rude materials on which their industry is employed. “ Il faut cependant observer,” to borrow the words of a French writer, “ que le laboureur fournissant à tous l'objet le plus important et le plus considérable de leur consommation, (je veux dire leurs aliments, et de plus la matière de presque tous les ouvrages,) a l'avantage d'une plus grande indépendance. Son travail, dans l'ordre des travaux partagés entre les différents membres de la Société, conserve la même primauté, la même pré-éminence qu'avait, entre les différents travaux qu'il était obligé dans l'état solitaire de consacrer à ses besoins de toute espèce, le travail qui subvenait à sa nourriture. Ce n'est pas ici une primauté d'honneur ou de dignité; elle est de nécessité physique. Le laboureur peut absolument parlant se passer du travail des autres ouvriers, mais aucun ouvrier ne peut travailler si le laboureur ne le fait vivre."* This general proposition I endeavoured to illustrate in a former part of my course.† The remarks which I have now to offer, relate entirely to the policy of different nations, with respect to the distribution and commerce of landed property.
In the codes of the ancient legislators, one of the leading objects of attention appears to have been to secure as great an equality as possible in the appropriation of lands, by establishing various expedients to obviate the effect of those circumstances which have a tendency to disturb this equality.–For this purpose, Moses prohibited the perpetual alienation of landed property, and ordered that every fiftieth year, the land which had been sold during the preceding period should return to the former proprietor or his family.I—In the laws of the Athenians, we meet with a variety of provisions, plainly proceeding from the same views as influenced the Jewish legislator. Such were those which restricted the citizens in the power of making testaments,—those which established an equal division of property among the male children,—those which put it out of the power of the same person to succeed to two inheritances,—and many other regulations of a similar nature. On the subject of the laws of succession among the Greeks, a great deal of most important light has been thrown by Sir William Jones, in the Commentary annexed to his Translation of the Speeches of Isæus.
* [Turgot, Sur la Formation et la † [Supra, Political Economy, Vol. I. Distribution des Richesses, & v.; Euvres, (Works, Vol. VIII.) p. 258, seq.] Tom. V. p. 6.)
[Leviticus, xxv. 10.)
Among the ancient Germans, according to a passage in Tacitus, there appear to have been some regulations which tended to accomplish the same object, by a process still more simple and direct. The nation was considered as the proprietor of all the lands, which individuals held for a time; and at the end of each year, a new distribution of land was made, according to the varying circumstances of the population. It is remarkable, as Mr. Hume observes in his History of England, that “ among the Irish, as far down as the seventeenth century, land was divided in a similar way. If any of the sept died, his portion was not shared out among his sons, but the chieftain, at his discretion, made a new partition of all the lands belonging to that sept, and gave every one his share.”+
The earliest laws of the Romans deserve attention in the same point of view. By an examination of these, it is evident that their leading idea was to prevent the original number of proprietors from being diminished. This was more particularly the case with their laws relating to the succession of females, which have been very ingeniously illustrated by Montesquieu. I
In modern times, the state of society which arose in Europe after the subversion of the western empire, gave rise to a very opposite policy, by suggesting as a necessary expedient against the rudeness and violence of the time, two institutions, which have both had a most extensive influence, not only on the distribution of land, but on the whole system of modern manners. These are the right of Primogeniture and the practice of Entails.
That a certain preference should be given by a parent to his first-born, who, in the order of nature, is marked out as the protector and guardian of his younger children, is so agreeable to the most obvious suggestions of the mind, that it is not sur* (Germania, cap. xxvi.]
# [Esprit des Loix, Liv. xxvii. Partie + [Chap. xlvi. James I.]
II. p. 167, ed. Genève, 1749.)
prising we should find traces of it in the history of the earliest ages. In the accounts of the primitive times, given in the Sacred Writings, the influence of the prerogative that has always been attached to seniority, is strongly illustrated by the stories of Jacob and Esau, and of Leah and Rachel. The same preference, too, occurs in the Pagan mythology, where, in consequence of this very circumstance, Jupiter is invested with the supremacy. This preference, however, does not seem to have existed among the Greeks, Romans, Britons, and Saxons, all of whom divided the land indiscriminately among the children. At Athens, the sons succeeded equally; but the daughters were endowed by their brothers. What share of the inheritance was allotted to the daughters, or whether it was regulated by any fixed rule, does not appear. Sir William Jones, in the learned Commentary mentioned above, thinks that this was left entirely to the affection and liberality of the brothers. By the Roman law, all the children, both male and female, were called equally to the inheritance of their father's possessions.
From the custom of Gavelkind in Kent, which divides the land equally among all the sons, Selden concludes, that this was the general custom of the realm before the Norman Conquest, retained in this district, in consequence of the successful struggle which was made by the inhabitants to preserve their ancient liberties. The same opinion, also, is sanctioned by Sir William Blackstone.* Spelman, in his Glossary, under the word Gaveletum (Gavelkind,) refers the origin of this custom to Germany. “Prisca Anglo-Saxonum consuetudo e Germania delata, qua omnes filii ex æquis portionibus, patris adeunt hæreditatem ; (ut filiæ solent, prole mascula deficiente.) Fratres similiter, defuncto sine sobole fratre; et nullo existente fratre, sorores pariter.” But it appears to be somewhat doubtful what the rules of succession in Germany really were. Mr. Barrington, in his Observations on the Statutes, with many others, follows on this point the opinion of Spelman, relying entirely on the following passage of Tacitus, which certainly does not warrant any such conclusion :-“ Hæredes tamen successoresque sui * [Treatise on the Law of Descents : Law Tracts, Vol. II. pp. 189-248, orig. edit.)
cuique liberi : et nullum testamentum. Si liberi non sunt, proximus gradus in possessione fratres, patrui, avunculi. Quanto plus propinquorum, quo major adfinium numerus, tanto gratiosior senectus: nec ulla orbitatis pretia."* It is not here said that the property was divided equally among the children, nor does it contain one expression at all inconsistent with the supposition, that the children first succeeded singly and in the course of their ages, in defect of these, the brothers, and on their failure, the uncles. On the other hand, another passage from Tacitus is quoted by Dr. Gilbert Stuart,† in proof of the right of primogeniture among them, which it seems to me impossible to explain away:-“ Inter familiam, et penates, et jura successionum, equi traduntur: excipit filius, non, ut cetera, maximus natu, sed prout ferox bello et melior.” This testimony in favour of the eldest son, Dr. Stuart remarks, is the more strong, as being included in an exception to the general rule.
But whatever may have been the origin of the law of gavelkind, there cannot well be any diversity of opinion about its expediency as a political institution, more particularly when it is considered in connexion with that system of Political Economy which has been dictated by the circumstances of modern Europe. Of this, indeed, no proof more striking can be produced than the prosperous state of agriculture in the county where it still exists,-an effect which, as I mentioned formerly, [Vol. I. p. 168,] Mr. Arthur Young seems disposed to ascribe to the want of manufactures. The following information on this point, stated by Mr. Marshall in his Rural Economy of the Southern Counties, is extremely interesting and valuable:“In the district of Maidstone, even among the tenantry, are found men of wealth and respectability ; qualities for which the yeomanry of Kent have long been proverbial.
“ Out of the Law of Gavelkind, this valuable order of men have principally risen. And seeing the present flourishing state of their county, after seven hundred years of experience, the wisdom of that law appears in a strong light. For although * (Germania, cap. xx.)
rities, Book I. chap. ii. sect. ii. p. 220, + [View of Society in Europe ; Autho- edit. 1778.]