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FAMILY SETTLEMENTS

not have his living. But this device of perpetuities has taken this power from the father likewise, and has tied and made subject the parents to their cradle, and so, notwithstanding he has the curse of his father, yet he shall have the land of his grandfather."

Family settlements are injurious to parental control, for the eldest son stands in a superior position to his father. His succession is fixed beyond his father's control; his father's interest in the land is less than his own. Should, as is too frequently the case, family dissensions arise the father knows that his expenditure on the land will be for the benefit of the son with whom he has quarrelled; the son sees or imagines he sees his father by act or by neglect injuring the land that must come to him.

The land is settled on an unborn person without any regard to his character or disposition; he may be a spendthrift, a drunkard, a man devoid of all sense of his duty as a landlord, but the land must come to him. His younger brothers may be far more fitted to deal with the land than he; their father might, if he had the power, choose them as the heirs of his land, rather than his eldest son, the prodigal; but the deed of the grandfather, who knew nothing of the future circumstances of the family, but who bound the land so that it should come to a particular child then unborn, be he the greatest scoundrel in England, and the most unfit to manage a landed property, prevails, to the injury of the land and its tenants, the family and all its branches, and even of the eldest son himself, who has frequently been strengthened in his evil courses by the sense that do what he would the land must be his at the last.

Secure in this prospect, but poor till his father's death, he anticipates his inheritance by encumbering the property, and receives his land so burdened by the debts of his youth that all hope of spending on it the capital necessary for its development, or making savings with which to provide for his wife and younger children without further encumbering the land, is gone. And the family plunges deeper and deeper into debt, while still the posthumous vanity of their ancestor, possibly approved by their own family pride, ties them to the land they cannot or will

not either sell to free themselves from debt, or do justice to while they hold it.

The system of primogeniture in English family settlements has a further evil effect on the younger branches of the family. Dr Johnson's defence of primogeniture was that it secured there should only be one fool in the family, the eldest son who had no need to work for his living, as he saw before himself a safe future. But though the younger sons must in most cases earn their livelihood, the training they have received has not been such as to fit them for work. They have been brought up in the same mode of life as their elder brother the heir, have had the same, frequently useless, public school and university career and then find themselves left to face the world, almost entirely dependent on themselves for their own living, but unfitted by their training for earning it, while their elder brother, not by the fitness of things but by the accident of birth, inherits all the family land. The greatness of the family is secured by immolating its younger members on the family altar. This system has in past generations provided a crowd of claimants for public. employment as of right, and the church and the public services have been flooded with younger sons, not for their competency, but because the system which produces cannot support them, but turns them on the country.

Then, until the passing of Lord Cairns' Act, the land was frequently burdened with restrictions as to its use, intended to protect the family interests against the individual, but resulting in the prevention of the proper development of the land. Long leases could not be granted, lest the heir should receive his land tied by the engagements of his predecessor; yet without long leases, great improvements could not be undertaken by the tenants. Capital could not be spent in experiments or doubtful ventures, however productive a successful result might be; mineral wealth could not be developed; drainage works could not be undertaken without complicated and expensive loans. The interests of the family in the land must be protected even though the interests of the family might suffer in the process; the risks that a good man of business would encounter for the profits that a good man of business would

foresee must be sacrificed to the humdrum safety of cultivation on the old lines, however out of date.

The custom of primogeniture is so involved in the system of family settlements that many of the previous arguments apply equally against both, though the objections on the ground of injury to the family itself apply more especially to the custom which enriches one son and leaves his brothers in poverty.

The law of primogenitary succession in intestacy, which is the leading restriction on succession in the present day to which objection can be taken, stands on rather a different footing. By itself it has a tendency to encourage alienation, by transferring land to a single owner, without any restraint on his ownership. But its existence, so far as it tends to support the custom of primogeniture, is undesirable. The rule was introduced by feudal necessity, and perpetuated by legal ingenuity, rather than by historical and national policy. It is peculiar to England, and in England it has its only root in the feelings of the landed aristocracy. As has been well said, "the system is a very artificial one; you may make a fine argument for it, but you cannot make a loud argument, an argument which would reach and rule the multitude. The thing looks like injustice'." If a great landowner dies without a will, it is thought natural that his lands should go by law to his eldest son, for such a succession is the custom of great landowners. But in many poor families with a little land, and among middle-class landowners who do not aim at founding a family, primogenitary succession is never thought of, and it is here when the landowner has neglected to make a will, or when his will is for some reason or other invalid, that great injustice is caused by the opposition of the line of succession provided by law to the private circumstances and probable wishes of the dead man. The cases are small and attract but slight attention, but the injustice is keenly felt in each family, and there are few solicitors who cannot supply instances from their own practice where the rule has worked to produce hardship. A solicitor at Birmingham, the owner of much small house-property, had

1 Bagehot, English Constitution, Pref. p. xxxi.

made a will dividing it among his sons and daughters in equal shares; owing to changes in his family he desired to alter his will and gave instructions for that purpose to his younger son, the property being still to be equally divided. The son drew the will; it was duly signed and witnessed; and then, the father and younger son being alone in the father's study, the son said: "you had better destroy your old will." The father took the will out, tore it across, and put it back in his desk. On his death, the two wills were examined, but the new will, and not the old one, was torn across. The eldest son claimed all the land as in an intestacy, and the case was tried before a jury, there being only the evidence of the younger son, who was an interested witness, as to the circumstances under which the will was torn. Fortunately for the testator's intentions, the jury came to the conclusion that the second will was not torn animo revocandi, and it therefore stood; but if the son had not been with the father when the will was torn, and if the law of intestacy had operated, the father's wishes would certainly have been defeated, the State making a disposition of his land for him on his death which he himself would not have made in his life1.

The different rules of succession for real and personal property appear the more indefensible, when the artificiality of the distinction between them is remembered. Railway and canal shares are usually personalty, while New River shares are realty; leases for 999 years are personalty, while leases for life are realty.

The existence of the law of primogeniture in intestate succession helps to support the custom of Primogeniture in testamentary succession and settlement. A striking illustration of this was seen when in the United States the law of Primogeniture was abolished, for a custom of equal division of land grew up, in spite of the powers of settlement possessed by American landowners.

Primogenitary succession in intestacy, which among small landowners is not the rule, and among great landowners works

1 From private information.

mischief by helping to support a mischievous system should be abolished.

The arguments in favour of family settlements and primogeniture are difficult to state fairly, because as has been said, being surviving peculiarities of feudal law, they can be defended only by those ingenious arguments which being manifestly begotten of after thought, appear convincing only to persons who need no conviction."

It is said in the first place that "a man has a right to do what he likes with his own," or in the form of the Duke of Richmond's continual question to witnesses before the Royal Commission, "Would it not be very tyrannical to prevent a father and son making what arrangement they please as to the land?" But this right is subject to the legal rights of others and to the condition that the use a man makes of his property shall not be prejudicial to the State. Nothing is more common than State interference with land, either in taking it for the purposes of the State, or in preventing it from being so used as to injure either the State or individual citizens. "A man's right to do what he likes with his own" is continually limited in this way by the State during his life; much more so after his death. He cannot take his property out of this world, but it has been considered conducive to industry and in accord with public policy to allow him to prescribe to whom his land should pass on his death; whether he should be allowed to impose restrictions, which the State would enforce, on the use of the land after his death, must depend on whether such restrictions are on the whole for the benefit of the community. The State has constantly interfered with dispositions of land at death; by the Statutes of Mortmain, it has prohibited their being made for ecclesiastical purposes; in the case of charitable devises, it has stepped in to change the dispositions which the testator had made; and in the very case of Settlement of land, it has already in the Rules against Perpetuities declined to sanction restrictions on the land which extend beyond a certain period. Any question of further restrictions on the power of disposition over landed property must be a question of degree of public convenience, and not of right, and as a question of public