Miscellaneous Writings and Speeches — Volume 4Macaulay, Thomas Babington Macaulay, Baron
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Miscellaneous Writings and Speeches — Volume 4
Macaulay, Thomas Babington Macaulay, Baron
English essays
Now, Sir, if this be so, let justice be done, cost what it may. I am
not prepared, like my honourable and learned friend, to agree to a
compromise between right and expediency, and to commit an injustice for
the public convenience. But I must say, that his theory soars far beyond
the reach of my faculties. It is not necessary to go, on the present
occasion, into a metaphysical inquiry about the origin of the right of
property; and certainly nothing but the strongest necessity would lead
me to discuss a subject so likely to be distasteful to the House. I
agree, I own, with Paley in thinking that property is the creature of
the law, and that the law which creates property can be defended only
on this ground, that it is a law beneficial to mankind. But it is
unnecessary to debate that point. For, even if I believed in a natural
right of property, independent of utility and anterior to legislation, I
should still deny that this right could survive the original proprietor.
Few, I apprehend, even of those who have studied in the most mystical
and sentimental schools of moral philosophy, will be disposed to
maintain that there is a natural law of succession older and of higher
authority than any human code. If there be, it is quite certain that
we have abuses to reform much more serious than any connected with the
question of copyright. For this natural law can be only one; and the
modes of succession in the Queen's dominions are twenty. To go no
further than England, land generally descends to the eldest son. In Kent
the sons share and share alike. In many districts the youngest takes the
whole. Formerly a portion of a man's personal property was secured to
his family; and it was only of the residue that he could dispose by
will. Now he can dispose of the whole by will: but you limited his
power, a few years ago, by enacting that the will should not be valid
unless there were two witnesses. If a man dies intestate, his personal
property generally goes according to the statute of distributions; but
there are local customs which modify that statute. Now which of all
these systems is conformed to the eternal standard of right? Is it
primogeniture, or gavelkind, or borough English? Are wills jure divino?
Are the two witnesses jure divino? Might not the pars rationabilis
of our old law have a fair claim to be regarded as of celestial
institution? Was the statute of distributions enacted in Heaven long
before it was adopted by Parliament? Or is it to Custom of York, or to
Custom of London, that this preeminence belongs? Surely, Sir, even those
who hold that there is a natural right of property must admit that rules
prescribing the manner in which the effects of deceased persons shall be
distributed are purely arbitrary, and originate altogether in the will
of the legislature. If so, Sir, there is no controversy between my
honourable and learned friend and myself as to the principles on which
this question is to be argued.
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