quently the security, of the monarchy may not be weakened by division, it must descend entire to one of the children. To which of them so important a preference shall be given, must be determined by some general rule, founded, not upon the doubtful distinctions of personal merit, but upon some plain and evident difference which can admit of no dispute. Among the children of the same family, there can be no indisputable difference but that of sex and that of age. The male sex is universally preferred to the female, and when all other things are equal, the elder everywhere takes the place of the younger. Hence the origin of the right of primogeniture, and of what is called lineal succession." Fortunately for the English nobility, also, the law of England, unlike that of most kingdoms on the Continent, caused the title as well as the property to descend only to the oldest son; the younger children were mere commoners, and therefore did not make hereditary honors cheap by multiplying them, or uniting them with poverty. The younger branches of the family found their own importance enhanced by ministering to the greatness of the head of their house. If they acquired wealth and reputation for themselves, they buttressed the strength of the main trunk in their family pedigree; if they were poor and weak, they were lost in the crowd, and cast no shade on the splendor of the house whence they originated.

But it is not enough to satisfy the pride and ambition of the nobles, that the estate should be kept together, and in the possession of one person. Means must be devised also to prevent it from being alienated, or passing out of the family altogether. The eldest son might be a sot, a spendthrift, or a simpleton, from whose witless grasp the broad paternal acres might slip into the hands of parasites, gamblers, and creditors. To obviate such a misfortune, the property was entailed on a succession of heirs, no one of whom had a right to spend more than its annual income, or to burden it with debt. Besides, attainder for treason or felony might cause a forfeiture of the estate to the crown; but if the present possessor held only a life-interest in it under an entail, the property would pass at his death, in spite of the attainder, to the next heir, whose rights could not be impaired by the criminality of a previous life-holder, any more than by that of a steward or a tenant.

The property was not his, either to be forfeited or to be alienated by sale or debt. Of course, it was for the interest of the crown to prevent entails, but of the nobles and other great landholders to multiply them, and to render them strict and perpetual. Under Edward I., when the power of the barons was nearly at its height, they succeeded in passing the statute entitled De donis conditionalibus, which established a system of perpetual entail, each successive heir receiving the land only under condition, as the lawyers say, of not alienating it, but of transmitting it unimpaired to his successor. Such laws, as Adam Smith remarks, "are founded upon the most absurd of all suppositions, the supposition that every successive generation of men have not an equal right to the earth and to all that it possesses; but that the property of the present generation should be restrained and regulated according to the fancy of those who died, perhaps, five hundred years ago." But the statute of Edward's parliament remained in force for over two centuries, which was more than enough to manifest its injurious results. "The inconvenience thereof was great," says Lord Bacon; " for by that means, the land being so sure tied upon the heir as that his father could not put it from him, it made the son to be disobedient, negligent, and wasteful; often marrying without the father's consent, and to grow insolent in vice, knowing that there could be no check of disinheriting him. It also made the owners of the land less fearful to commit murders, felonies, treasons, and manslaughters; for that they knew none of these acts could hurt the heir of his inheritance. It hindered men that had entailed lands, that they could not make the best of their lands by fine and improvement, for that none, upon so uncertain an estate as for term of his own life, would give him a fine of any value, nor lay any great stock upon the land, that might yield rent improved. Lastly, those entails did defraud the crown and many subjects of their debts; for that the land was not liable longer than his own lifetime; which caused that the king could not safely commit any office of account to such whose lands were entailed, nor other men trust them with loan of money."

These inconveniences, and the decline of the power of the nobles under the Tudors, enabled those arbitrary monarchs to do away practically with the law of perpetual entail; though

not repealed by the legislature, it was nullified by a contrivance of the lawyers and the courts, which enabled the party in possession, by a fictitious suit, to bar the entail, and part with the estate by an ordinary conveyance. This method of destroying perpetuities has been simplified and extended by acts of Parliament during the last quarter of a century, so as to establish the law of entail on its present footing, the owner of real estate being allowed, as already mentioned, only to tie it up during any number of lives already in being, and for twenty-one years after. In Scotland, however, the nobility and gentry having suffered much from forfeiture during the seventeenth century, a law was passed in 1685, authorizing landholders to entail their estates in perpetuity; and five years afterwards, another statute expressly exempted entailed estates from confiscation, on the ground that every man ought to "suffer for his own fault, and not the innocent with or for the guilty." Under these acts, more than half of all Scotland was fettered by strict entail for ever; and though the manifest evils of such restraint caused the statesmen and lawyers of the kingdom to make several vigorous efforts to change the law, the land-owners successfully resisted them till a few years ago, when Parliament passed an act which carried into Scotland all the important features of the English system of entail.

As political power and social influence in England have always followed the ownership of real estate, all the contrivances of legal ingenuity have been brought into play to prevent the division or alienation of landed property, and to preserve

* But the Scotch mode of regulating the distribution of personal property offers a strange contrast with this custom of tying up the real estate. "The law of Scotland," says McCulloch, "in regard to the devising of movables, is at present nearly identical with the old law of England. In the former, if a father die leaving a widow and children, whether of the last or any former marriage, the children succeed to a third part of his movable property as legitim (from the legitima purs of the Romans), and the widow to another third part. If there be no widow, or if she have renounced by her marriage contract the jus relicta, the legitim of the children amounts to half the personal estate. And it is further to be observed, that the right of the children to claim their legitim cannot be defeated by testament; though it may be defeated by the father converting his movable into fixed property, and by his executing a de presenti conveyance of his whole movable estate to others."

This is very nearly the French law of compulsory partition, though applied only to personal property.

the nominal ownership in the family, even after the substance has been dissipated, or the estate so heavily burdened with mortgages and other encumbrances that the ostensible proprietor can derive little or no income from it. Since the right of primogeniture takes effect only in case of intestacy, so that it can be defeated by making a will, and as an entail is valid only for a limited period, it would seem that the property must be frequently liable to pass out of the family. It is possible to make entails effectual for a century or more; but McCulloch says, "this is not often done, and fifty or sixty years may, perhaps, be assumed as their usual average duration." But the aristocratic feeling prevails so generally through successive generations, that no sooner is one deed of entail discharged, than it is renewed by the parties interested in the estate; and thus, with the aid of marriage settlements, trust deeds, and other similar devices, nearly all the landed property in England, at any one moment, is as effectually tied up as if it were subjected to perpetual entail.

Mr. Byles, an English sergeant-at-law, remarks, "estates are kept in families, not by the law of entail, but by the power which exists of creating life-estates." When a land-owner marries, he wishes to make provision for his wife and the issue of the marriage after his death; and to do so, he makes over his estate to the children of the marriage successively, reserving only a life-interest in the property for himself; in legal phrase, "he becomes tenant for life, his son tenant in remainder. As soon as the eldest son comes of age, he can make way with his interest, just as his father could before him; or father and son may join, and sometimes do join, in alienating the estate altogether. But in practice, the more usual course is this: the son is about to marry, and is advised, or chooses, to settle a life-estate on himself, and to provide, after his death, for his wife and the issue of the marriage. He resettles the estate"; that is, he takes it out of the market again, by tying it up against division or alienation for another generation. "And so, in fact, estates are kept together and resettled every generation, by the voluntary act, or, if you please, the family pride, of their owners, and not by the law of entail. Indeed, personal property may be settled by means of life-estates as effectually as landed property, and the fund may be, and often

is, tied up just as long; although such a thing as an estate tail in personal property never existed at any period of our law."

In one respect, indeed, this mode of keeping the property together and preventing it from going out of the family by a perpetual series of marriage settlements, trust-deeds, entails, and other legal devices, is more injurious in its consequences than the mode of tying it up once for all, and for ever, by a perpetual entail. In the latter case, unless power is granted by a special statute for the purpose, there is no power of burdening or encumbering the estate by mortgages, rent-charges, rights of dower, settlement of annuities, long leases at low rents purchased by a heavy payment outright at the commencement of the lease, and other modes of consuming the income in advance, while the estate is nominally intact. When the heir under a perpetual entail comes into possession, he finds that, though he cannot divide or sell the estate, or make any provision from it for his widow or unportioned children, he has, at least, the whole income of it undiminished for his lifetime. He does not find himself in the mortifying and embarrassed condition, of nominally owning an estate of £10,000 a year, with an establishment of corresponding splendor and magnitude to be kept up, while his actual income does not exceed one or two thousand pounds. But this is too frequently his case, if the estate, instead of being under perpetual entail, has been settled and resettled again and again; if one set of fetters upon it has been removed every generation or two, only to make room for another. For at each period of renewal or settlement, there have been debts to be secured, wives to be dowered, daughters and younger sons to be provided for, and loans to be obtained on mortgage in order to erect buildings or effect other improvements. Family pride prevents these charges from being met in the natural manner, by selling a portion of the estate; the whole number of acres must be retained, but under an encumbrance which annually subtracts a fixed sum from the income. At each successive period, as a general rule, the number and amount of these encumbrances are increased, till they at last absorb the greater part of the income. "Nor is even this all," says Mr. Byles; "men like to round their estates. They buy up and engross the little neighboring properties, and charge the whole estate with money to pay for the new pur