The Sun.
London, England, 1837-04-05 00:00:00

LAW OF PRIMOGENITURE.

Mr. EW A RT rose to renew the motion which he made
in vain last session—that landed property should be made
subject to the same laws as personal property, and that in
cases where the deceased left no will (and where there was
no settlement to the contrary) landed property should, like
personal property, be equally distributed among the
children or the next relations of the deceased. He believed
this to be a subject which, if it did not now interest, would
some day certainly interest the nation. As the merits of
feudal prejudice and error were dispelled, it would be clearly
seen how this proposal was fraught with justice, good policy,
and truth. Last year when he made this motion he re-
ceived no answer, or, if his opponents gave him an answer,
they were guiltless of giving him any reason. The Attor-
ney and Solicitor-Generals ought really to blush for the so-
phistry with which they met the proposition ; and, if he
thought the Attorney and Solicitor-Generals could blush, he
should have respectfully asked them to do so on that occa-
sion. First, he would ask them whether it would not,
in frequent instances, prevent injustice, and carry into
effect the real intentions of the deceased ? The Solicitor-
General said last year that this measure would only meet
one case in a hundred. If he had pursued his inquiries dur-
ing the recess he would find that he had been mis-
taken. Such cases were familiar. But he would only re-
fer the Law Officers of the Crown to a most able treatise
(in which their reasoning was triumphantly refuted) by
Mr. Bailey, the distinguished author of the " Rationale of
Political Representation." That gentleman had pointed
out cases, which in any town in the kingdom it was easy to
do, of gross injustice resulting from bestowing all the
freehold landed property on the eldest son only. As this
was a matter of allegation and proof, he (Mr. Ewart) would
cite the cases put by that genleman, and leave the Attor-
ney and Solicitor-Generals to deal with them as they could.
One case was this : " J. P. purchased a freehold public-
house, and some cottages adjoining, for 1,5001; and bor-
rowed on mortgage 8001. He died suddenly, intestate,
leaving seven children. The eldest son took out letters of
administration, sold all the personal property, and after
liquidating the few simple contract debts of the deceased,
paid off with the remaining proceeds the mortgage on the
freehold estate, and took possession of it as heir at law.
His brothers and sisters were left entirely destitute, and
were obliged to have recourse to the parish." I ask the
Attorney and Solicitor-Generals whether this is not a case
in which justice, and the probable intentions of the de-
ceased, were defeated ; and I respectfully pause for their
reply. Again : " A. 8., a thriving manufacturer, bought
the fee simple of the premises on which he carried
on his business. He expended a considerable sum in im-
provements, and, in doing so, contracted debts. Had he
lived he would in all likelihood have discharged these debts,
and realised a handsome fortune. But he died suddenly,
intestate, leaving two sons. Nearly the whole personal
property went in paying off the debts contracted in impro-
ving the freehold ; and unless the elder, on coming of age,
acts with a justice beyond _the law, his brother will be lft
in a state of destitution." Again, I put this practical case,
founded on fact, to the Attorney and Solicitor-Generals,
and I wait for their demonstration of the justice of the ex-
istine- law. But I abstain from citing further cases. I refer
my Hon. and Learned Friends to the book, and to the ir-
refragable,assertion which it contains, that instances such as
these abound. I proceed to another legal point, and I ask
the Attorney and Solicitor-Generals this question—would
it, or would it not, be a public good that the law respec-
ting the two species of property should be uniform ? What
can be more absurd than that, of two species of property dif-
fering not in essence but in name, one should descend all to
the eldest son, while the other is divided equally among the
children ? Such is the law as it stands at present. A
man possesses a freehold, and a leasehold property for
999 years. What is the essential difference between the
two ? Yet the freehold property goes exclusively to
one—the 999 years' lease is equally distributed among
all the children.—(Hear, hear.) But the author already
cited had put this absurd inconsistency of the law in mak-
ing the descent vary according to the tenure (or rather
according to the name) of the property in so striking a
point of view, that he (Mr. Ewart) could not do better
than give his description to the House :—" A merchant
dies without a will ; he leaves a share in an old inland na-
vigation Company worth 2,000/. ; this (by the inconsistency
of the law) is deemed freehold estate ; consequently, the
eldest son takes it all. He leaves, further, 2,0001. worth
of shares in a modern canal ; this is all deemed personal
property, and goes among his children equally. He leaves
a freehold mansion worth 4,0001., subject to a perpetual
rent-charge ; this goes entirely to the eldest son. And he.
leaves a warehouse worth 4,0001., built on land leased for
999 years ; this is divided equally among the children."
Again he (Mr. Ewart) asked the Honourable and Learned
Gentlemen whether the law should not be uniform ?
Did they admit it ? They would not say that the per-
sonal property should all go to the eldest son, like landed
property. Then they could only come to the same con-
clusion with himself (Mr. Ewart), and make landed pro-
perty (in cases of intestacy) descend in the same just and
equal Manner with the personal estate of the deceased.
Another question on the legal bearing of this proposal lie
would put to the Honourable and Learned Gentlemen. It
was this—would it not be better that all property, landed
like personal, should pass through the executor or adminis-
trator, instead of passing the real property through the
heirs of the deceased, acid the personal property through his
executor ? The executor and administrator are easily
found ; they are recognised representatives ; the heirs may
be scattered in different localities, or they may be unknown ;
this uncertainty involves litigation. Uniformity and eco-
nomy would be at once consulted by using, for both species
of property, the same channel of conveyance, and adopting
as the representative both of landed and personal property,
the executor or administrator of the deceased. On this
point, also, he (Mr. Ewart) expected the answer of his Hon.
and Learned Friends ; and unless their affection for Chancery
suits dimmed their intellectual vision (which he could not
believe) he should have their answer in the affirmative. But
it was by no means to mere legal amendment that the ope-
ration of this change would be confined. It was better for
the commerce of the country that land should be subject
to the same laws, chargeable with the same obligations, and
descendable in the same manner as personal property ; that
it should have the same rules of interchange and distribu-
tion, and be endowed with 'no qualities of artificial accu-
mulation. In a more comprehensive and political view of
the question he would ask what civilised nation had not
approached, more or less, to the principle of equal distri-
bution ? Such had been, in a greater or less degree, the
law of the ancients ; such was the law of the most enlight-
ened modern nations. " In the code of Justinian," says
Gibbon, in his celebrated view of the Roman law, in the
44th chapter of his " Decline and Fall," " the insolent
prerogative of primogeniture was unknown ; the two sexes
were placed on a just level ; all the sons and daughters
were entitled to an equal share of the patrimonial estate."
The same view is taken by the most eminent writers on the
science of legislation. He would refer them to the pages
of Filangieri and of Bentham. Or, if they wished for an
authority to which both parties would look with reverence,
I he would cite the words of Adam Smith, who said (in his

Wealth of Nations"), " This natural law of seecession
took place among the Romans, who made no more distmc-
tion between elder and younger, between male and female,
in the inheritance of lands, than we do in the distribution of
moveables. In the disorderly feudal times; the security of
a landed estate depended on its greatness. Hence the ori-
gin of the law of premogeniture. In the present state of
Europe, the proprietor of a single acre is as perfectly secur.:
of his possession as the proprietor of a hundred thousand.
And this is manifestly the view taken of the origin of primo-
geniture taken by Burke in his " History of England." But,
perhaps, Gentlemen preferred a legal authority on this subject
If so, let them turn to the pages of Blackstone. In the second
volume they will find this passage, " The too great accu-
mulation of property is the natural consequence of our doc
trine of succession by primogeniture, to which the Athe-
nians were strangers. Of this accumulation the ill effects
were felt even in feudal times ; but it should always be
strongly discouraged in a commercial country, whose wel-
fare depends on the number of moderate fortunes engaged
in the extension of trade ?" Let me ask (said the Hon.
Gentleman) whether the sense of property, the feeling
that he has something which he can call his own, is not a
natural bond which links a man, be he rich or poor, to fibe
country of his birth ? We acknowledge the truth of thul
principle in the case of the rich ; why should we renounce
it in.the case of the poor ? The feeling of proprietorship
is the parent of social freedom and of personal indepen-
dence. In countries like Norway, and France, and Ame-
rica, where it abounds, you will readily trace its results in
the elevated independence of the people. The word
" poor" may be familiar there, but the word " pauper" is
unknown. Is it or is it not wise to extend to as many
of the people as possible an interest in the well-being of the
community ? If such a policy be generally wise, it is much
more so in times like these, when education and habits
of good order are extending, and giving an additional
guarantee for the independence and virtue of the less
wealthy portion of the people. But, he would ask, were
they not themselves recognizing this principle in adopting
the allotment system? This system of letting out small
portions of land to the labouring class was generally ap-
proved ; and if good conduct and independence were the.
result of leasing small holdings, the principle must hold
equally good, and even be more apparent, when the labourer
is a small proprietor instead of being a small tenant. But
it is not the independent character alone, it is to the moral
and social fcelirg engendered by the systems of equal and
unequal partibility of property that the legislator ought to
look. All experience and the evidence of all writers tell
us that, where the system of primogeniture prevails, the
had passions, the more selfish motives are encouraged,
while domestic peace and social harmony are the offspring
of the principle of equal partibility. He might be mistaken
(and he hoped he was) ; but it was his opinion that
when history came to trace effects to their real causes, to
investigate not only the outward laws, but the inward man-
ners and habits of the people, much of .what was monstrous
in the social and political condition of this country
would be traced to the prevalence of the law and cus-
tom of primogeniture.—(Hear, hear, hear.) Around this
false principle the evil passions, human interest, selfish
motives, the darker feelings which injustice engendered,
grew, to taint and poison the atmosphere around them.
Around the opposite principle of equal partibility you find
the household virtues, the endearing affections of domestic
life—unestranged by the insolent injustice of an unequal
law—the gentler feelings, which at once bind together,
and bless and adorn society. With this impression on his
mind he moved " That leave be given to bring in a Bill,
providing that in cases of intestacy (and in the absence of
any settlement to the contrary) landed property be equally
divided amongst the children or the nearest relatives of
the deceased."
The ATTORNEY-GENERAL felt bound to oppose
the motion upon several grounds ; first, because the law as
it at present stood appeared to him to require no amend-
ment : second, because the suggestion of the Hon. Mem-
ber, unless carried much further than he proposed to go,
would enable him to gain nothing ; third, because, instead i
of simplifying the law, it would tend only to embarrass t ;
and fourth, because, to be carried into effect, it would re"
quire a totally new code, destroying the distinction that at
present existed (and upon which all the laws of Bagland
affecting property were based) between real and persqnal
property. Independently of these objections, it did Mr
appear that the measure was in any way called for by the
public. There had been no meetings to consider of it, no
petitions to demand it. It was, in fact, a mere speculative
question, and one upon which he thought the House
ought not at that moment to waste its time.
The question was then put, and the House divided--
For the motion
Against it .....
Majority
DUTY ON SOAP.
Mr. GILLON rose to bring forward the motion of whiele
he had given notice, for the abolition of the Duty on Soap,
It was his duty in the first place to show that the state of
the revenue was such as to admit of the reduction he pro-
posed, and which he admitted was considerable. It ap-
peared, then, that the surplus revenue on the 6th of Ja-
nuary last amounted to 2,570,957/., and that the duty upon
soap in the course of the year produced a gross revenue of
977,067/. ; a net revenue, after deducting the drawback-,
the expense of collection and other charges, of 779,0671.
So that after deducting the whole clear revenue paid into
the Exchequer arising from the duty on Soap, there re-
mained a very considerable surplus of revenue available to
the Right Hon. Gentleman for relieving the people from
any other particular burden which might press heavily
upon them. Another reason why the duty on Soap should
be repealed was, that whereas the duty had gone on rapidly
increasing with regard to other articles connected with the
Excise, the duty on Soap was rapidly decreasing. The
strongest proof of this was to be found in the fact, that the
quantity of Soap on which duty had been charged in 1836
was less than 1835 ; whilst the increase of consumption
on other excisable articles—as bricks, glass, malt, paper,
spirits, &c.—had caused a surplus, even after the reduction
of the paper duty, of about 1,200,0001.
Quantities charged with duty in 1832, before
reduction of duty
Ditto, in 1834

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