Democracy In America, Alexis de Tocqueville, 1831
We read in Jefferson’s Memoirs as follows:
“At the time of the first settlement of the English in Virginia, when land was to be had for little or nothing, some provident persons having obtained large grants of it, and being desirous of maintaining the splendor of their families, entailed their property . upon their descendants. The transmission of these estates from generation to generation, to men who bore the same name, had the effect of raising up a distinct class of families, who, possessing by law the privilege of perpetuating their wealth, formed by these means a sort of patrician order, distinguished by the grandeur and luxury of their establishments. From this order it was that the King usually chose his councillors of state.”
In the United States the principal provisions of English law respecting inheritance have been universally rejected.
“The first rule that we follow,” says Chancellor Kent, “touching inheritance, is the following: If a man dies intestate, his property goes to his heirs in a direct line. If he has but one heir or heiress, he or she succeeds to the whole. If there are several heirs of the same degree, they divide the inheritance equally among them, without distinction of sex.”
This rule was prescribed for the first time in the state of New York, by a statute of the 23d of February 1786. (See Revised Statutes, Vol. III, Appendix, p. 48. ) At the present day this law holds good throughout the whole of the United States, with the exception of the state of Vermont, where the male heir inherits a double portion. ( Kent’s Commentaries, Vol. IV, p.370. ) Chancellor Kent, in the same work (Vol. IV, pp. 1-22), gives a historical account of American legislation on the subject of entail; by this we learn that previous to the Revolution the colonies followed the English law of entail. Estates tail were abolished in Virginia in 1776, on motion of Mr. Jefferson. ( See Jefferson’s Memoirs. ) They were suppressed in New York in 1786, and have since been abolished in North Carolina, Kentucky, Tennessee, Georgia, and Missouri. In Vermont, Indiana, Illinois, South Carolina, and Louisiana entail was never introduced. Those states which thought proper to preserve the English law of entail modified it in such a way as to deprive it of its most aristocratic tendencies. “Our general principles on the subject of government,” says Kent, “tend to favor the free circulation of property.”
It cannot fail to strike the French reader who studies the law of inheritance that on these questions French legislation is infinitely more democratic than even the American. American law makes an equal division of the father’s property, but only in the case of his will not being known; “for every man,” . says the law ( Revised Statutes, Vol. III, Appendix, p. 51), “in the State of New York, has entire liberty, power, and authority to dispose of his property by will, to leave it entire, or divided in favor of any persons he chooses as his heirs, provided he does not leave it to a political body or any corporation.” The French law obliges the testator to divide his property equally, or nearly so, among his heirs
Most of the American republics still admit of entails, under certain restrictions; but the French law prohibits entail in all cases. If the social condition of the Americans is more democratic than that of the French, the laws of the latter are the more democratic of the two. This may be explained more easily than at first ap- pears to be possible. In France democracy is still occupied in the work of destruction; in America it reigns quietly over the ruins it has made.
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