Economic History Association

Inheritance Laws Across Colonies: Causes and Consequences Author(s): Lee J. Alston and Morton Owen Schapiro Source: The Journal of Economic History, Vol. 44, No. 2, The Tasks of Economic History (Jun., 1984), pp. 277-287 Published by: Cambridge University Press on behalf of the Economic History Association Stable URL: http://www.jstor.org/stable/2120705 . Accessed: 09/05/2011 12:50 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=cup. . Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

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Inheritance Laws Across Colonies: Causes and Consequences LEE

J. ALSTON AND MORTON OWEN SCHAPIRO

We examinein this paperboth the causes and consequencesof inheritancelaws in the colonies. We arguethat the continuationof intestateinheritancelaws over the colonial periodwas due in partto their compatibilitywith economic efficiency.In the North, multigeniturehelped motivate family labor, whereas the passive acceptanceof the Britishinheritancesystem of primogeniturein the South rested on its promotionof large plantationsthat could capture economies of scale. In terms of effects, a strong bequest motive in the colonies adoptingmultigeniture reducedthe variabilityin demographicexperiences across colonies with different inheritancesystems.

SURPRISINGLY little has been written about the laws, practices, and effects relating to an important aspect of colonial economic, legal, and social history: the system of intergenerationaltransfer of wealth.' In this paper we examine the compatibilitybetween intestate inheritancelaws (governingthe disposition of wealth in the absence of a will) and agricultural economic efficiency in colonial America. In addition, we analyze the demographicconsequences of these laws. Inheritancetransfersare divided into two principaltypes-primogeniture (passingall wealth to the eldest son) and multigeniture(dividingthe wealth among all the sons or, possibly, all the children). Partibility (where the land is divided among the children) usually accompanies multigeniture,whereas impartibility(keeping the land as a single piece) accompanies primogeniture.Although the common law regardingthe intergenerationaltransfer of wealth in most of feudal England was primogeniture, County of Kent (in particular, the manor of East Greenwich) had a different system. There they practiced a gavelkind tenure, which essentially was partiblemultigeniturefor sons. Although many of the colonies followed the common law of England,the Kentish laws were extremely importantin other parts of the country. Table 1 presents informationon intestate inheritancelaws in colonial Journal of Economic History, Vol. XLIV, No. 2 (June 1984). C The Economic History Association. All rightsreserved. ISSN 0022-0507. The authorsare AssistantProfessorsof Economics,WilliamsCollege, Williamstown,Massachusetts 01267.The genesis of this paperwas an independentstudy projectby TimothyWrightof the University of Washingtonundertakenfor Lee Alston in 1982. We thank Mary Alston, Stanley Engerman,RobertHiggs, JonathanR. T. Hughes, and Gary Libecapfor numerouscommentson an earlierdraft. ' A noteworthyexception, discussing in detail colonists' rightsin land, is Ch. 6, "Plantingthe Tenures and Inheritance," Jonathan R. T. Hughes, Social Control in the Colonial Economy

(Charlottesville,Virginia,1976).

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TABLE I

INTESTATE INHERITANCE LAWS Location

Inheritance Law

New England Colonies Maine New Hampshire Vermont Massachusetts Plymouth Rhode Island Connecticut

multigeniture multigeniture multigeniture multigeniture multigeniture primogeniture until 1798 (except for 1718-1728) multigeniture

Middle Colonies New York New Jersey Pennsylvania Delaware

primogeniture until 1786 multigeniture multigeniture multigeniture

Southern Colonies Maryland Virginia North Carolina South Carolina Georgia

primogeniture primogeniture primogeniture primogeniture primogeniture

until until until until until

1786 1785 1784 1791 1777

Source: Robert B. Morris, "Primogeniture and Entailed Estates in America," Columbia Law Review, 27 (Jan. 1927), 24-51.

America. The southerncolonies followed the prevailinglaw in England by employing a system of primogeniturein the case of intestacy.2With two exceptions, Rhode Island and New York, the New England and Middle colonies followed the example of Kent by adopting multigeniture, subject to the rights of the survivinghusbandor wife (althoughit was common to follow Mosaic law, which provideda double portionfor the eldest son and, in some cases, a half portionor less for daughters). In all cases, multigeniturewas the law within a brief period following independence and the double portion provision, where in effect, was dropped.3 There have been scattered conjectures about why particularcolonies deviated from the predominant English practice of primogeniture. These can be separatedinto two categories: philosophical/religiousand economic reasons.4 Both interacted to affect colonists' initial prefer2 Widowshad "dower" rightsthat providedthem with a certainportionof land (often one-third of the landed estate), which they could neither give away nor sell. In much of the country, a husbandcould not eliminatedower rights by selling or giving away his land. 3This can be contrastedwith the experienceof Englandwhere, in the event of intestacy,descent to the eldest son lasted until 1926. 4 For the former, see George L. Haskins, "The Beginnings of Partible Inheritancein the American Colonies," The Yale Law Journal, 51 (May 1941-42), 1280-1315; Hughes, Social Control, and Morris, "Primogeniture."For explanationsbased on an economic rationale, see LawrenceM. Friedman,A Historyof AmericanLaw (New York, 1973),PhilipJ. GrevenJr., Four

Generations (Ithaca, 1970), and Marshall Harris, Origin of the Land Tenure System in the United

States (Ames, 1953).

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279

ences for inheritancelaws, and it is difficultto test separatelyfor their impact. We conjecture, however, that with the possible exceptions of New-York and Rhode Island, the maintenanceof the same inheritance law in each colony over the entire colonial period was the result of the consistency of inheritance laws with economic efficiency. We suggest that it was fortuitousthat, in general, religious/philosophicalmotivation concurredwith economic interests. In our model of the colonial legislative process, we assume that since multigeniturerequired active legislation whereas primogeniturewould prevail in the absence of legislation, a necessary but not sufficient conditionfor multigeniturewas a strongcentralgovernment.We further assume that laws are enacted and maintainedif they are in the interests of those with political power-the wealthy residents. The wealthy cared about intestate laws since they were subject to the widely observed reluctance to write a will, uncertaintyabout when death would occur, and the high cost of writing a will. While wills were, nevertheless, apparentlycommon in early colonial history, it was not unusualfor wills generally to follow the provisions of intestate law.5 For example, even when intestate law provides for multigenitureand it is desired that the estate be divided, the division mandatedby law may not be acceptable. Surprisingly,many wills even followed exactly the provisionsof intestacy law.6 Further, there are many cases where it was desired that the eldest son inherit the farm and primogenitureintestacy laws were in effect but intestacy was associated with a type of primogeniturethat was unacceptable.For example, in Virginiawills were sometimes used even when primogeniturewas preferred,since under intestate law the eldest son received the land but none of the slaves or personal property.7 Most importantly,althoughtestacy was a simple matterin the early colonial period, it became increasingly complicated and costly over time. The result was that by the end of the period testate transferswere rare.8 Further evidence consistent with the view that intestacy laws were not superfluouswas the fightthat southernaristocratswaged in an effortto maintainthem and the costs the Puritansincurredto have their charter signed in Kent where a form of multigeniture was legal.9 Obviously, had the legislation been costless to evade, people would not have expended resources to maintainor change the laws. The issue we examine is what factors encouragedthose with economic and political power to maintaina particularinheritancesystem. We hypothesize that legislators acted in the interests of their wealthy 5 See Haskins, "The Beginnings,"and Harris, Origin. See Haskins, "The Beginnings." 7 Ray C. Keim, "Primogenitureand Entail in Colonial Virginia," The Williamand Mary 6

Quarterly, 25 (Oct., 1968), 545-86. 8 See Friedman,A History, pp. 220-21. 9 See H. J. Eckenrode, The Revolution in Virginia (Boston, 1916); Allan Nevins, The American States During and After the Revolution, 1775-1789 (New York, 1924), pp. 442-43; and Charles Ramsdell Lingley, The Transition in Virginia from Colony to Commonwealth (New York, 1910).

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constituents by maintainingthe political power of the elite and sustaining efficientagriculturalunits. Primogeniturepromotedlarge agricultural units that could capture economies of scale-if they existed and fostered the concentration of assets that enabled owners to retain political power. Multigeniture provided motivation for family farm labor. Labor supervision costs of family labor are lower under multigenituresince each child, knowing that he or she will receive a share of the assets in the future, has an incentive to work toward improvingthe estate. Of course, the larger the estate and the fewer the numberof siblings, the greateris the motivationto work hard. Even in largefamilies, however, the free rider problem is minimized by the threat of disinheritance. Multigeniture,although it provides a work incentive, leads to smaller agriculturalproduction units than does primogeniture.To this extent, economies of scale, when present, cannot be captured. Under what circumstances will the benefits of economies of scale outweigh the costs of employing a work force not motivated by the expectation of inheritance?We propose that large plantationsarose in the South-and hence preference for primogeniturein order to prevent fragmentation-because of the South's comparativeadvantagein monitoring slave work effort.'0 The South's comparative advantage in supervisingslave work effort rested on climatic conditions that allowed the cultivation of labor-intensive crops such as rice and tobacco. We maintainthat supervisory costs are lower the greater the proximity of workers and supervisors." Economies of scale in monitoringwere the basis for economies of scale in southern plantationagriculture.In the land-extensivegeneral farmingof the North, supervisionof slave work effortwould be more costly than in the South because tasks tended to be more diverse and there was considerable spatial separation between workers and supervisors. Since the costs of monitoring slave work performancewere less in the South, the South outbid the North for slaves and family farms emerged in the North accompanied with multigenitureto motivate family members to remain on the farm and work with little supervision. 10 Numerousscholars have pointed to the associationbetween plantationsand primogeniture. See, for example, Haskins, "The Beginnings," Lewis C. Gray, History of Agriculturein the

Southern United States to 1860 (Boston, Massachusetts, reprinted 1958), Friedman, A History, and

Harris, Origin. Simply letting the analysis stand with the association between plantationsand primogeniture,however, begs the questionof why the plantationsystem was prevalentin the South and not in the North. We are also not the first to recognize the comparativeadvantage in monitoringslaves in labor-intensivecrops. See especially Gray, History of Agriculture,pp. 458, 463, 469, and 478-480. Yet, no one appears to have linked slave supervision costs to the maintenanceof primogeniture. " See Lee J. Alston, "Tenure Choice in SouthernAgriculture,1930-1960," Explorationsin EconomicHistory, 18 (July, 1981),211-32 and Lee J. Alston and RobertHiggs, "ContractualMix in SouthernAgriculturesince the Civil War: Facts, Hypotheses, and Tests," this JOURNAL, 42 (June 1982), 327-53, for tests of the importance of labor supervision costs in determining contracturalmix in Southernagricultureafter the Civil War.

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Primogeniture, by fostering large estates and agriculturalwealth, permittedeasier access to political power. Political power in turn may yield high psychic or monetary benefits. Across colonies, the greater the ability to transform agriculturalwealth into political power, the greaterthe incentive to favor primogeniture. The above hypotheses imply that: (1) if legislatorswere motivatedby desires to maintain efficient agriculturalunits, we should observe a positive association between primogenitureand plantationsand multigeniture and family farms; and (2) if legislators in the upper tail of the wealth distributionderived their income from agriculture,primogeniture would more likely prevail. Evidence consistent with the motivation to maintainpolitical power and hence, primogeniture, includes the observed tendency for the wealthy in the South to be engaged in agriculture,whereas in the North the very wealthy were more frequently engaged in commerce. Further evidence of the desire to maintainpoliticalpower is found in the debates surroundingthe abolitionof entails and primogeniture.It was the landed aristocratswho advocated the retention of primogeniture.'2 This evidence of a desire for political power does not preclude the existence of a motivation for efficient farm units. Since the southern states favored primogeniture,where both plantationsprevailedand the very wealthy owned plantations, it is an empiricalquestion whether it was the desire for an optimal size farm or the desire for political power that dominated. A test that can differentiatebetween the two hypotheses would be whether plantation owners of multiple estates kept ownershipintact by giving all estates to the eldest son or simplykept the operatingunits intact by giving plantationsto more than one child. The latter observation is consistent with the incentive for primogeniture arising from a desire to maintain the most efficient agriculturalunits, whereas the former observation includes the desire for political power as well as efficiency. The evidence by Ray Keim indicates that in Virginiaplantation owners with multiple units tended to keep plantations intact, with the eldest son often receiving the home plantationand the other plantations and assets distributed among the remaining children.'3 Further evidence consistent with the desire to maintain efficientagriculturalunits is the widespreadadoptionof multigeniturein the North where family farms prevailed. Family farms outcompeted largescale units that relied on hiredlaborbecause, as WilliamN. Parker has noted, "the members of the family were not free; they were bound to the entrepreneurby ties of custom, law, fear and affection."'4 These familialbonds affectingwork incentives arose partly, we argue,from the expectation of inheritance. Bidwell and Falconer, in presenting an 12

Eckenrode, The Revolution, Nevins, The American States; and Lingley, The Transition.

" Keim, "Primogenitureand Entail." 14 WilliamN. Parker,in American Economic Growth by Lance E. Davis, RichardA. Easterlin, WilliamN. Parker,et al. (New York, 1972), quote from p. 395.

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economic rationale for multigeniture in the North, quote Governor Talcott's defense of multigeniturein Connecticutin 1699;". . . much of our lands remain yet unsubdued and must continue so without the assistance of the younger sons, which in reason can't be expected if they have no part of the inheritance . . '15 The existence of primogeniturein New York is also consistent with our model. One might expect that New York, because of its Dutch heritage, would favor multigeniture,because in Holland intestate law mandated equal division of estates. Despite its roots, New York accepted primogenitureafter England usurped Dutch rule. The rationale, we believe, lies with the reliance on nonfamily labor by the wealthy estate holders. As a result of its Dutch ancestry, New York had many large estates called patroonships. The prevalence of these estates is at issue, but there appears little doubt that the patroons were amongst the colony's wealthiest and politically most influentialresidents.'6 One acquired a patroonshipby establishinga colony of fifty or more people over the age of fifteen. By law, these people were bound to stay on the estate of the patroonfor a certain numberof years. The patroons, therefore, did not rely on family labor but instead had a sort of large-scale indentured servant system.'7 Since they did not need to worry about family labor incentive problems and their landed wealth presumably conveyed politicalpower, the passive acceptance of primogeniturein New York is consistent with our model. Rhode Island, on the other hand, may have passively accepted primogeniturenot because it was the inheritance system most consistent with agriculturalefficiency but rather because it lacked a strong central government to take the necessary positive action to enact a multigenitureintestate law. This conjecture is consistent with evidence indicatingthat Rhode Island may not have enforced primogeniture.'8 Before Rhode Island was formed as a colony, it consisted of four independenttownships. CharlesM. Andrews points out that throughout its colonial history, Rhode Island was threatenedfrom the outside by Connecticut, Massachusetts, and Plymouth and from within by the separate townships.'9 We argue, therefore, that the law of primogeni's

Percy Wells Bidwell and John I. Falconer, History of Agriculture in the Northern United

States (Washington,D.C., 1925), p. 63. 6 Even thoughpatroonshipsappearto have declinedin importanceearly in the Colonialperiod, largegrantsof land in the form of manorscontinuedto be made by Stuyvesantand early English governors. See Herbert L. Osgood, The American Colonies in the Seventeenth Century, Vol. 2

(New York, 1904), pp. 31-33. '' It appearsthatthe manorsthatsucceededthe patroonshipssimilarlyreliedon nonfamilylabor. 8 See Morris, "Primogeniture,"p. 78. 9 Charles M. Andrews, Our Earliest Colonial Settlements, reprinted(U.K., 1973). For a summaryof the importanceof town governmentversus a centralcolonial governmentin Rhode Island,see WilliamE. Foster, "Town Governmentin RhodeIsland,"in Johns HopkinsUniversity Studies in Historical and Political Science, Vol. 4 (Baltimore, 1896).

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ture existed in Rhode Island because of a weak central government rather than because of the economic superiority of primogeniture. Despite the existence of large holdings of slaves, many of whom may simply have been held as inventory for the Caribbeanslave trade, the agriculturalsystem of Rhode Island may have been best suited to family-size farms. Edward Channing's claim that multigeniturewas often practiced is consistent with this conjecture.20 Overall, the evidence we have presented is consistent with the hypothesis that the motive of agriculturalefficiency influencedlegislators' preferences for either primogeniture or multigeniture. In the South, primogeniturefostered large estates, able to reap the benefits of economies of scale because of low slave monitoring costs in the cultivationof rice and tobacco. Multigeniturein the North was compatible with family farms and provided a positive work incentive for children. INHERITANCE LAWS AND POPULATION GROWTH

There are a variety of demographiceffects typically associated with the differentinheritancepractices. Scholarshave arguedthat primogeniture should lead to low levels of populationgrowth as all but the eldest son feel pressure to postpone marriage, to eventually have fewer childrenand to move to other areas. On the other hand, multigeniture, by providingopportunitiesfor all of the children, should result in more rapid populationgrowth through little outmigration,a high proportion married,early marriages,and large families.' These demographiceffects were not observed in colonial America, we argue, because the impact of inheritancelaws on populationgrowth was insignificantcomparedto the role played by land availability.When land is easily available, it is possible for younger childrento marryand to set up farms of their own, thereby leading to similar high rates of populationgrowth under multigenitureor primogeniture.If, however, land is scarce, we expect population growth to decline under both systems of inheritance. Under primogeniturethe large families of the eldest sons would be counterbalancedby the small families and outmigrationof the other children. Similarly,multigenituremay encourageall of the children to marryearly but, if available land is scarce and farms are already small and unproductiveas a result of prior fragmentation, economic pressures may lead them to limit their family size. In addition, if parentspracticingmultigenituresought to provide each 20 Edward Channing, "The NarragansettPlanters," in Johns Hopkins University Studies in Historical and Political Science, Vol. 4 (Baltimore, 1896).

See H. J. Habakkuk,"FamilyStructureand EconomicChangein 19thCenturyEurope,"this 15 (Mar. 1955), 1-12, for a particularlyvaluablediscussion of demographiceffects of inheritancepractices. 21

JOURNAL,

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of their children with assets, then the fertility decline associated with land scarcity would be enhanced.22 In an economy dominated by agriculture,this motive would imply providing farmlandor the funds needed to purchase farmland. This "bequest" hypothesis implies a variant of multigeniturein which population growth is constrained by the desire to transfer a farm of some minimum efficient size.23 The ability to satisfy a bequest aspiration falls as land becomes scarcer, thereby decreasing the demand for children so as not to exceed the desired numberof heirs.24 In sum, land availabilitymay alter the typicallyassumeddemographic results of inheritance practices. It has generally been assumed that primogeniturewill lead to lower rates of populationgrowth because of the incentive for postponementof marriagesand outmigrationof all but the eldest son. Under conditions of abundantland, however, we expect that primogeniture and multigeniture will lead to similar rates of population growth. Under primogeniture,because cheap farm land is available, even though sons will not receive an inheritance, marriage need not be postponed or the number of children desired reduced. Similarly, under multigeniturethere is no incentive to limit population growth when land is readily available. Under conditions of land scarcity the incentives under primogeniture will lead to low population growth, and we expect similar population growthpatternsundermultigeniture,if there existed social pressurenot to bequeath inefficientsmall farms. In the latter case, impartibilitywill become the dominant practice, parents will have incentives to reduce fertility, and all sons except the one who receives the farm will have incentives to migrate. If a bequest motive is absent, we expect to observe higher populationgrowth rates under multigeniturethan under primogeniture. Although data limitationsmake it extremely difficultto evaluate our hypotheses systematically, a brief examinationof the availableevidence provides a roughtest of the conjectures presentedabove. This evidence consists of detailed studies of particularareas of the country, as well as populationestimates for each of the colonies. 22 This is the basis of RichardA. Easterlin's, "PopulationChangeand FarmSettlementin the NorthernUnitedStates," this JOURNAL, 36 (Mar.1976),45-75, bequestmodel. He arguesthatthis was the prevailingpractice in the North. We-suggest that the existence of a bequest motive was facilitatedby the availabilityof economic opportunitiesoff the farm. 23 Efficientfarm size is generally associated with impartibilityof land. Partibility,however, wouldoccur if familyfarmswere largeenoughto subdivideinto smalleryet still efficientsize farms. 24 This hypothesisprovides a possible rationalefor the success of land availabilitymeasuresin accountingfor the cross-sectionaland time-seriesvariationin U.S. birthrates. See MortonOwen Schapiro, "Land Availabilityand Fertility in the United States, 1760-1870," this JOURNAL, 42 (Sept. 1982), 577-600. The notion that land scarcity may create pressure to limit fertility is consistent with Frederic Le Play's L'Organizationde la Famille (Paris, 1871) analysis of the decline in birthrates in nineteenth-centuryFrance. He argues that parentswantedto maintaina systemof impartibilitybut were forced into partibilityby the CivilCode. The resultwas a declinein birthrates in orderto minimizethe division of farmland.

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285

Greven, in tracingthe history of four generationsin colonial Andover, Massachusetts, provides valuable insight into the relationshipbetween land availability,inheritancepractices, and populationgrowth.25In the mid-seventeenth century, available land was relatively abundant and large families and little outmigrationcombined to create rapid population growth. The ensuing populationexplosion, however, created land pressures that threatened the ability of parents to continue to provide land for their children. Outmigrationincreased, birth rates fell, and, although some parents were still able to establish their sons on family land, it became increasingly common to establish children in trades. Although partibility was a prominent aspect of inheritance practices when land was readily available, as land became more scarce impartibility became increasingly common. Specifically, it appears that parents were reluctant to partition farmlandbelow a minimumlevel of about thirty acres.26Patricia J. Tracy's study of eighteenth-century Northampton, Massachusetts reinforced Greven's findings.27Her evidence indicates that men marriedthree years later in the eighteenth century than did their counterpartsin the seventeenth century, a period when land was relatively abundant.28 The interpretationof population statistics across colonies and over time is complicated by difficultyin differentiatingbetween the relative impactof naturalincrease, internalmigration,and immigration.Nevertheless, comparing data on the decennial rate of population increase with a measure of land availabilityand informationon intestate inheritance laws provides further insight into the role of these factors in accountingfor populationgrowth. Table 2 presents data on population growth rates and on land availability for most of the colonies during the eighteenth century.29 There is little observable difference in the pattern of growth rates between states with similar settlement levels but differentinheritance laws. The following comparisons are illustrative: 1) New Hampshire, with a settlement level of 10 percent in 1750, where multigenitureruled and Virginia, with a settlement level of 14 percent in 1750, where primogenitureprevailed, had populationgrowth rates for 1750 to 1760 that were approximatelyequal (23 percentand 26 percent, respectively); and 2) Pennsylvania,with a settlement level of 4 percent in 1750,where multigeniturewas adopted and New York, with a settlement level of 3 percent in 1750, where primogeniturereigned, had populationgrowth 25 26

Greven, Four Generations.

Ibid., p. 224.

Patricia J. Tracy, Jonathan Edwards, Pastor: Religion and Society in Eighteenth Century Northampton (New York, 1980). 27

Ibid., p. 102. Our land availabilitymeasureis the ratio of ruralpopulationat time t to the maximumrural populationreachedwhen ruralpopulationinitiallypeaked. See Schapiro,"LandAvailability,"for a more complete descriptionof this land availabilityproxy. 28 29

Alston and Schapiro

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rates that were approximatelyequal duringthe subsequent decade (47 percent and 41 percent, respectively). This simple analysis provides evidence consistent with the hypothesis that the availability of land rather than inheritance laws had the dominant effect on population growth rates.30Had the choice under conditions of land scarcity been between primogenitureand multigeniture without a bequest motive, then we would expect that the demographiceffects of inheritancepractices would have been larger.It seems that the existence of a bequest motive, accompanied as it appears to have been by the maintenance of efficient farm size, played a role in reducingthe potential impact of differences in inheritancepractices. 30 We are presently extending our research to include regression analysis to differentiate statisticallyamongthe variousfactorshypothesizedto influencepopulationgrowth.In this way we will be able to assess more rigorouslythe importanceof inheritancelaws.