Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/452

 438 ///. THE COLONIAL PERIOD reasons for the intestate law in his instructions to Belcher : — " And much of our lands remain unsubdued, and must con- tinue so without the assistance of the younger sons, which in reason can't be expected if they have no part of the inherit- ance; for in this poor country, if the landlord lives, the tenant starves: few estates here will let for little more than for maintaining fences and paying taxes. By this custom of dividing inheritances, all were supply'd with land to work upon, the land as well occupy'd as the number of hands would admit of, the people universally imploy'd in husbandry; thereby considerable quantities of provisions are rais'd, and from our stores the trading part of the Massachusetts and Rhode Island are supply'd, the fishermen are subsisted, and the most of the sugars in the West Indies are put up in casks made of our staves. By means of this custom his Ma j 'ties subjects are here increased, the younger brethren do not de- part from us, but others are rather encouraged to settle among us, and it's manifest that New England does populate faster than the Colonies where the land descends according to the rules of the common law. And such measures as will furnish with the best infantry does most prepare for the de- fence of a people settled in their enemies country. If this custom be, so ancient and so useful, non est aholenda, sed privare debet communem legem." ^ Such were the conditions out of which the intestate law grew, and such were the reasons for its embodiment, after sixty years of customary use, into law. Economists can find evidence here for the study of land-appropriation in a new country; students of the history of law will be interested In the growth of customary law; but for us the interest is of a different character. The law was clearly contrary to the corresponding law in England. Certain disaffected ones in in writing under their hands and seals, in which case such agreement shall be accepted and allowed for a settlement of such estate and be accounted valid in law." Winthrop said the same in his Memorial to the committee of the Privy Council. " The Memorialist begs leave further to observe to your Lordships that the pretended custom of dis- tributing intestate real estates amongst all the children was no other- wise introduced than by the consent of parties when lands in those parts were of little or no value." Talcott Papers, I, p. 394. » Talcott Papers, I, pp. 145-146, Cf. 188-189.