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the inheritance of private property and other forms of inheritance in economics, politics and biology. For such false analogies are very commonly met with.1 Certain analogies, which are not logical connections, are apt, indeed, to impress the modern mind. It is not, for instance, to be expected that, when "the hereditary principle" has been practically abolished as regards political power, it will be much longer ignored as regards economic power. Yet, as an example of how even an intelligent man could look at inheritance a century and a half ago, we may still read with interest Burke's letter to the Duke of Richmond in 1772. "You people of great families and hereditary trusts and fortunes are not like such as I am, who are but annual plants that perish with our season, and leave no sort of traces behind us. You, if you are what you ought to be, are the great oaks that shade a country, and perpetuate your benefits from generation to generation." More recently one of Meredith's characters found himself able, in the spirit of Burke, to "venerate old families, when they are not dead wood," but the capacity for even this conditional "veneration" is probably growing rarer. For reason begins to suggest that all families are really equally old, though unequally notorious, and even that, the worthier any family may be of "veneration," the less

1 See, for example, the remarks of Schmoller, quoted in Part II, Ch. VI., § 4, above. Even Mr. Hartley Withers (Poverty and Waste, PP. 49-50) after observing that the owner of inherited wealth above all men is bound to be extremely careful of the use that he makes of it ... For he owes everything to the care that his fellow-creatures take of him. He may think that he owes it all to his great-grandfather, but herein he errs," seems to encourage confusion of thought when he continues, a few sentences later, as follows. "When the case has thus been decided against the owner of inherited wealth, and he has been cautioned as a suspicious character, let us then go on to recognise that we are nearly all of us owners, if not of inherited wealth, at least of inherited earning power." For there is no genuine analogy between inherited wealth in this sense, and inherited earning power.

2 Quoted by Hammond, The Village Labourer, p. 24.

its members should need the economic prop of inherited wealth.

But the full realisation and constructive criticism of this institution are surprisingly slow to arrive. "The question of inheritance," said Stein in 1850, "is the question upon the discussion of which the entire future of the social form of Europe will rest during the next two generations." He has proved quite wrong. Many thinkers of high reputation still talk, or remain silent, about the law of inheritance, as though it had fallen immutable from heaven into the Garden of Eden.

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§3. In fact, law and custom regarding inheritance show great variations both in the same country at different times and in different countries at the same time. Law imposes an outer limit and custom an inner limit, within which the effects of the institution operate. The outer limit of law is sometimes crossed by illegal evasion, and the inner limit of custom includes such so-called legal evasion" of the intentions of the legislator, as gifts of property among the living, designed to evade the operation of rules of law. Both law and custom are expressions of public opinion, but expressions in which the same weight is not necessarily attached to different sections of public opinion. A divergence is specially likely to appear in a politically democratic country with a markedly unequal distribution of property.

The law regarding the inheritance of property may be divided into two parts, the fiscal and the non-fiscal law. The fiscal law regulates the taxation of inherited property, whether at the moment of inheritance or at other times. The non-fiscal law regulates the extent to which, if at all, freedom of bequest is permitted, and the rules which determine inheritance, in so far as freedom of bequest does not operate, including rules of intestate succession.

1 Geschichte der Sozialen Bewegung in Frankreich, II., pp. 226-7.

In the next chapter I shall begin by considering the non-fiscal law, and the chief forms, which it has assumed in ancient and modern times.

CHAPTER VI

THE COMPARATIVE NON-FISCAL LAW OF THE
INHERITANCE OF WEALTH.

§1. Under most systems of modern law, when an individual dies, a part of his property, if this exceeds a certain minimum value, is transferred by taxation or other fiscal law to one or more public authorities. In this chapter I shall consider briefly the comparative fate, under different systems of law, of property changing hands at death, in so far as it is not thus transferred to public authorities.

It may seem to some that an enquiry into comparative law is no fit work for an economist. But there is no more reason for economists to leave the law of inherited property to the lawyers, than to leave the law of diminishing returns to the farmers. Moreover, such an enquiry will be approached by the lawyer and the economist from different angles, and this will lead to differences in the appropriate methods of enquiry and in the relative weight which each will attach to different classes of facts.

The lawyer is greatly interested in abnormal, but the economist chiefly in normal, cases. The lawyer leads abnormalities into court; the economist drowns them in large aggregates. There is thus much minute and detailed study, which is appropriate to a purely legal, but not to an economic, treatment of this subject. On the other hand, the economist's conclusions as to the economic effects of law must be modified by considerations of custom, with which the lawyer has no direct concern.1

Though law and opinion, and hence custom, react upon one another. Compare Dicey, Law and Opinion in England, Ch. I.

Again, lawyers have continually distinguished between possession and property, and between legal and equitable ownership, and the whole fabric of trusts and settlements in English law is based on this distinction. But this distinction has little interest for the economist, who wishes primarily to know who is entitled to spend the income from property. Whether such income comes to the individual directly, as legal owner of the property, or indirectly, as a beneficiary under a settlement, (the trustee being legal owner), is generally for the economist only of secondary interest. There is further a difference of terminology, which is of some importance. The economist, whose main interest is in economic effects, will find it convenient to practise an economy of technical terms and to ignore certain distinctions, which are vital to the lawyer, whose main interest is in legal rules. Thus the lawyer gives to the word "inheritance" a more restricted meaning, than that which it is convenient for the economist to adopt. For the economist, to "inherit" will most conveniently mean, to receive the property of another at that other's death, whether under a will, or as a legitim, or under rules of intestate succession. For the lawyer, inheritance under the law of legitim or intestacy is distinguished from bequest under a will, and in England a further distinction is still drawn, in cases of intestacy, between the "heir " to realty and the next of kin," who succeeds to personalty.

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§2. Most Englishmen, who have not studied comparative law, will think it natural that the ownership of their property after their death should be governed by their Last Will and Testament. Most Frenchmen, in like case, will think it natural that the operation of their will should be subject to the law of the Légitime. But many Indians, far from thinking the disposition of property by will to be natural, will find great difficulty in understanding what the mere idea of a will signifies

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