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fore ceafe upon death, confidering men as abfolute indivi duals, and unconnected with civil fociety: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased poffeffed. But as, under civilized governments which are calculated for the peace of mankind, fuch a constitution would be productive of endless disturbances, the univerfal law of almost every nation (which is a kind of fecondary law of nature) has either given the dying perfon a power of continuing his property, by difpofing of his poffeffions by will; or, in cafe he neglects to difpofe of it, or is not permitted to make any difpofition 11 at all, the municipal law of the country then steps in, and declares who fhall be the fucceffor, reprefentative, or heir, of the deceased; that is, who alone shall have a right to enter upon this vacant poffeffion, in order to avoid that confufion, which it's becoming again common would occafion *. And farther, in cafe no teftament be permitted by the law, or none be made, and no heir can be found fo qualified as the law requires, ftill, to prevent the robust title of occupancy from again taking place, the doctrine of efcheats is adopted in almost every country; whereby the fovereign of the state, and those who claim under his authority, are the ultimate heirs, and fucceed to thofe inheritances, to which no other title can be formed,
THE right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devifing by teftament. We are apt to conceive at firft view that it has nature on it's fide; yet we often mistake for nature what we find established by long and inveterate cuftom. It is certainly a wife and effectual, but clearly a political, establishment; fince the permanent right of property, vested in the ancestor himself, was no na
k It is principally to prevent any vacancy of poffeffion, that the civil law confiders father and fon as one person; fo that upon the death of either, the in
heritance does not fo properly defcend, as continue in the hands of the furvivor. Ff. 28. 2. 11.
tural, but merely a civil, right (3). It is true, that the tranfmiffion of one's poffeffions to pofterity has an evident tendency to make a man a good citizen and a useful member of fociety: it fets the paffions on the fide of duty, and prompts a man to deferve well of the public, when he is fure that the reward of his fervices will not die with himself, but be tranfmitted to those with whom he is connected by the dearest and moft tender affections. Yet, reasonable as this foundation of the
(3) I cannot agree with the learned Commentator, that the permanent right of property vested in the ancestor himself (that is, for his life), is not a natural, but merely a civil right.
I have endeavoured to fhew (Note 1,) that the notion of property is univerfa!, and is fuggefted to the mind of man by reafon and nature, prior to all pofitive inflitutions and civilized refinements. If the laws of the land were fufpended, we should be under the fame moral and natural obligation to refrain from invading each other's property, as from attacking and affaulting each other's perfons. And I am obliged alfo to differ from the learned Judge, and all writers upon general law, who maintain, that children have no better claim by nature to fucceed to the property of their deceased parents than ftrangers; and that the preference given to them, originates folely in political establishments. (See the Editor's dif tinctions between natural and pofitive laws, Vol. i. p. 58. n. 7.) I know no criterion by which we can determine any rule or obligation to be founded in nature, than it's univerfality; and by inquiring whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reason of mankind. The affection of parents towards their children is the most powerful and univerfal principle which nature has planted in the human breaft; and it cannot be conceived, even in the most savage state, that any one is fo deftitute of that affection and reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.
Hæredes fuccefforefque fui cuique liberi, feems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though pofitive inftitutions may have thought it prudent to leave the parent the full difpofition of his property after his death, or to regulate the fhares of the children, when the parent's will is unknown.
right of inheritance may feem, it is probable that it's imme diate original arofe not from fpeculations altogether fo delicate and refined, and, if not from fortuitous circumstances, at least from a plainer and more fimple principle. A man's children or nearest relations are ufually about him on his [ 12 ] death-bed, and are the earliest witneffes of his deceafe. They became therefore generally the next immediate occupants, till at length in procefs of time this frequent ufage ripened into general law. And therefore alfo in the earlieft ages, on failure of children, a man's fervants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham exprefsly declaring, that fince God had given hint no feed, his ftew "ard Eliezer, one born in his houfe, was his heir '."
WHILE property continued only for life, teftaments were ufelefs and unknown; and, when it became inheritable, the inheritance was long indefedfible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that fo ftrict a rule of inheritance made heirs difobedient and head-ftrong, defrauded creditors of their juft debts, and prevented many provident fathers from dividing or charging their eftates as the exigence of their families required. This introduced pretty generally the right of difpofing of one's property, or a part of it, by teftament; that is, by written or oral inftructions properly witneffed and authenticated, according to the pleafure of the deceafed; which we therefore emphatically ftile his will. This was established in fome countries much later than in others. With us in England, till modern times, a man could only difpofe of one third of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign' of Henry the eighth; and then only of a certain portion: for it was not till after the restoration that the power of devifing real property became fo univerfal as at present (4).
1 Gen xv. 3.
(4) By 32 Hen. VIII. c.1. all focage lands were made devifable, and two thirds of lands of military tenure: when thefe at the re
WILLS therefore and teftaments, rights of inheritance and fucceffions, are all of them creatures of the civil or municipal laws, and accordingly are in all refpects regulated by them; every diftinct country having different ceremonies and requifites to make a teftament completely valid: neither does any thing vary more than the right of inheritance under different national establishments. In England particularly, this di- [ 13 ] verfity is carried to fuch a length, as if it had been meant to point out the power of the laws in regulating the fucceffion to property, and how futile every claim muft be, that has not it's foundation in the pofitive rules of the ftate. In perfonal eftates the father may fucceed to his children; in landed property he never can be their immediate heir, by any the remoteft poffibility in general only the eldeft fon, in fome places only the youngeft, in others all the fons together, have a right to fucceed to the inheritance: in real eftates males are preferred to females, and the eldeft male will ufually exclude the reft; in the divifion of perfonal eftates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.
THIS one confideration may help to remove the feruples of many well-meaning perfons, who fet up a miftaken confcience in oppofition to the rules of law. If a man difinherits his fon, by a will duly executed, and leaves his eftate to a franger, there are many who confider this proceeding as contrary to natural justice; while others fo fcrupuloufly adhere to the fuppofed intention of the dead, that if a will of lands be attested by only two witnesses instead of three, which the law requires, they are apt to imagine that the heir is bound in confcience to relinquifh his title to the devifee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the fon had by nature a right to fucceed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the fucceffion of
ftoration were converted into focage tenure, all lands became devifable, fome copyholds excepted. P. 375.
[ 14 ]
Book II. his property after his own decease. Whereas the law of nature fuggefts, that on the death of the poffeffor the estate should again become common, and be open to the next occupant, unless otherwife ordered for the fake of civil peace by the pofitive law of fociety. The pofitive law of fociety, which is with us the municipal law of England, directs it to vest in fuch perfon as the last proprietor shall by will, attended with certain requifites, appoint; and, in defect of fuch appointment, to go to fome particular perfon, who from the refult of certain local conftitutions, appears to be the heir at law. Hence it follows, that, where the appointment is regularly made, there cannot be a fhadow of right in any one but the perfon appointed: and, where the neceffary requifites are omitted, the right of the heir is equally strong and built upon as folid a foundation, as the right of the devifee would have been, fuppofing fuch requifites were observed.
BUT, after all, there are fome few things, which, notwithstanding the general introduction and continuance of property, muft ftill unavoidably remain in common; being fuch wherein nothing but an ufufructuary property is capable of being had: and therefore they ftill belong to the first occupant, during the time he holds poffeffion of them, and no longer. Such (among others) are the elements of light, air, and water; which a man may occupy by means of his windows, his gardens, his mills, and other conveniences : fuch alfo are the generality of those animals which are said to be ferae naturae, or of a wild and untameable difpofition: which any man may feise upon and keep for his own use or pleasure. All these things, fo long as they remain in possesfion, every man has a right to enjoy without disturbance; but if once they escape from his cuftody, or he voluntarily abandons the ufe of them, they return to the common stock, and any man else has an equal right to seise and enjoy them afterwards.
AGAIN; there are other things, in which a permanent property may fubfift, not only as to the temporary ufe, but