things do; and that other kinds of property, houses and carriages, for example, belong to individuals in some sense in which land does not. Probably the more intelligent and honest writers, who are throwing out vague hints to this effect, would recoil with horror from the idea of depriving the present proprietors of the land which they have obtained by heirship or purchase; but would desire for the future, not only the abrogation of the laws which encourage the accumulation of landed property, but also the enactment of other laws which would prevent such accumulation. If we understand them, they would at least place restrictions on man as the owner of a field which they would not impose on him as the owner of a house or a printing-press.

In one part of the British dominions, where the old Norman laws still prevail, such a distinction between landed and personal property is in force. The owner is permitted to bequeath the latter, but not the former. While he lives, he can give away his land at his pleasure, or sell it, and dispose of the proceeds according to his judgment or his caprice; but if he die seized of it, the law undertakes its appropriation, dividing it among his children or nearest heirs. The design of this law is, the prevention of the undue enlargement of landed estates; an object certainly of very high importance in a territory so limited as the Channel islands; but it does not follow that it is incumbent or wise to compass that object by means of law.

We can, perhaps, conceive of a case in which the well-known rule-lex suprema salus populi-would justify this limitation of testamentary bequests; but the case we submit would be an exceptional one. As a general rule, it is to be condemned, because no necessity has been shown for it; condemned, therefore, with a thousand other examples of over-governing. Property should, we grant, circulate freely; like water, if it become stagnant, it becomes mischievous; but if there be perfect freedom of barter and sale, it will so circulate, as is manifest from the ingenious devices to which the aristocracy of England have recourse in order to keep it stationary. It will be time enough to have laws to force the division of landed property, when it has been found in practice that the necessities and convenience of society are not of themselves sufficient to insure the result desired.

The restriction is objectionable, also, because it is probably sought on the ground of a distinction between landed and other possessions, which cannot be sustained. The land, it is said, is the gift of God; a house, or a garment, the creation of man. Allowing the distinction, the reader will perceive, that it is not the land as given by God, which the possessor is forbidden to

bequeath, but that land as it has been cultivated by man. The stones and the wood of which a house is built are as truly the gift of God as the soil; but the builder, by shaping and arranging, and cementing them, has given them a value increased a hundred fold. A similar remark applies to the land. Where it exists as God gave it-for example, in the prairies of America or of Australia-no man dreams of a law to compel its division. Legislation aims rather at accumulation. An acre of land in its wild state may be worth half-a-crown. Cultivation and population make it worth a hundred pounds. Why the half-crown should not be given by will is not apparent, and surely it is unreasonable to subject the ninety-nine pounds seventeen and sixpence to such limitation. The Norman law of inheritance, which has been explained, is therefore, we submit, unsound in principle, and a law for which no necessity has been shown.

Taking it, then, for proved, that a limitation of testamentary bequests cannot be based upon varieties in the species of property possessed, ought man to have the unrestricted power of bequeathing his whole property at his pleasure?

6

Among the Romans the power of a father over his children was absolute and perpetual: absolute, for in his father's house the son, in his adult age, was a mere thing,' his property being his father's, who could also sell, or punish, or kill him at his pleasure; perpetual, for it terminated only with the death of the father, during whose life the son, though he became consul, remained in the bonds of filial subjection. And though the law was mitigated with the increase of civilization, it continued to the very last distinguished by singular sternness; for it is affirmed in the Justinian code that there are no other men who have such power over their children as Roman citizens.* For this stringency in the law in relation to their persons, the Roman youth found a slight compensation in the law of inherit

ance.

The jurisprudence of the Romans,' says Gibbon, appears to have deviated from the equality of nature, much less than the Jewish, the Athenian, or the English institutions. On the death of a citizen, all his descendants, unless they were already freed from his paternal power, were called to the inheritance of his possessions. The insolent prerogative of primogeniture was unknown; the two sexes were placed on a just level; all the sons and daughters were entitled to an equal portion of the patrimonial estate; and if any of the sons had been intercepted by a premature death, his person was represented, and his share was divided by his surviving children. On the failure of the direct line, the right of succession must diverge to the collateral branches.'

Gibbon's 'Decline and Fall,' c. 44.

In the early times of the Roman state, the inheritance was so determined by heirship, and not by will, that a citizen was compelled to show cause for departing from the rule of heirship; and if he had failed to do this, the will was invalid. By the laws of Justinian, neither son nor daughter could be disinherited, excepting for certain crimes, and unless the offence were specified in the will. And further, unless a fourth part of the inheritance were secured to the children, they might appeal from the decision of the father to the judgment of the magistrate, such fourth part, moreover, being payable before the legacies; so that if the estate were not found commensurate with the testament, the deficiency fell upon the legatees, not the heirs.

At Athens, a childless father only could make a will.

And English law has recognised very considerable limitations to testamentary bequests:

By the common law, as it stood in the reign of Henry II., a man's goods were to be divided into three equal parts, of which one went to his heirs or lineal descendants, another to his wife, and the third was at his own disposal; or if he died without a wife, he might then dispose of one moiety, and the other went to his children; and so e converso, if he had no children, the wife was entitled to one moiety, and he might bequeath the other; but, if he died without either wife or issue, the whole was at his own disposal. This continued to be the law of the land at the time of Magna Charta. In the reign of King Edward III., this right of the wife and children was still held to be the universal or common law. Sir Henry Finch lays it down expressly, in the reign of Charles I., to be the general law of the land. But this law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels, though we cannot trace out when first this alteration began.'-Bk. ii. c. 32.

Our present inquiry is, whether any such limitations as have been described ought to be imposed by law. We will assume that where there is neither wife nor child, a man should be left to do what he will with his own. In the case of a wife, we submit that this power ought to be limited. During her husband's life she helps to obtain, or assists him in the care and due appropriation of, his property; and has a legal, founded on an obviously natural right to alimony. She is, in truth, a sharer in her husband's property equitably and legally; and the limitation, therefore, of the husband's power of bequest, so far as to forbid him to alienate all his possessions from his widow, is not a limitation of the rights of property, but the assertion of them. In the case of children, it may be argued that the father is the means of bringing them into existence; that if he have property, by means of it he places them, from infancy, in a peculiar posi

tion in society; and that he ought not to be allowed to do them the injustice of capriciously leaving them in poverty.

Still we apprehend it were wise to leave the control of the father over his property absolute. As a counterpoise to the supposed claim of the child, it were easy to plead the trouble and expense he has entailed on the parent. By the rule of affection, the children's claim takes precedence of every other; but that rule the law cannot properly pretend to enforce; and if the plea of equity be put in, it is barred by the considerations already advanced. Indeed, justice and expediency seem alike to condemn the limitation of the father's power of bequest: justice, for if the child have given to him a legal hold on the property of the father, he is, without the consent of the owner, made the proprietor of that which he has not helped to obtain, and of which he may be wholly undeserving; while the mischievous indiscretion is committed of rendering him independent of his natural governors; expediency, for in England, where the power of bequest is unlimited, we never hear of the capricious disinheritance of children on behalf of strangers. The intensely strong ties of natural affection, combined with the wish which every man feels to act rightly when he is about to die, afford a sufficient guarantee for the pecuniary interests of children in the testamentary arrangements of their parents, a guarantee unincumbered by the dangers which a legal provision would create.

First ascertaining, then, what share of the husband's possessions can fairly be considered as belonging to the wife, and of which, as he has not the right, he ought not to have the power, to deprive her, there should, we apprehend, be secured to him the absolute power of bequeathing, at his pleasure, every other shilling he may be seized of at the time of his decease.

The third question yet remains. Ought society, besides securing the transfer of the property, to undertake to carry out the wishes of the testator as to the subsequent uses of that property ?

'By the Roman law,' says Gibbon, the power of the testator expired with the acceptance of the testament, each Roman of mature age and discretion acquiring the absolute dominion of his inheritance; and the simplicity of the civil law was never clouded by the long and intricate entails which confine the happiness and freedom of unborn generations.' English law adopts the very opposite principle. It allows a testator to affix almost any project to the property he is leaving behind him, and undertakes to render the property the means of carrying out such project in perpetuity. Is this right? We apprehend not, and that the Roman principle is the sound one.

The present state of English law is obviously inconsistent.

It will not ensure to man the fulfilment of any wish he may have as to the appropriation of his property, but only of such wish as the state may deem legitimate. If the purpose be in the judgment of the state immoral, though the donor should have deemed it most sacred, the bequest is void; and it has been ruled that a will may be set aside on the ground of absurdity. Either the state has not gone far enough, or it has gone too far. If it assume to judge in some cases whether the bequest is for the good of society, it should exercise such judgment in all cases; if not in all, then in none. If it is to enter on this sphere of moral judgment, it should compass it; if it do not compass, it should not touch, it. The endowment of all religious sects is the logical sequence of the position in which the English government now stands in relation to national endowments: the office of judge of the utility of all wills, the logical sequence of its present position in relation to testamentary bequests. The dictate of truth in both cases is, neither to stand still nor to advance, but to undo that which has been done. At present, if a wealthy man leave ten thousand pounds for the spread of socinianism, the state undertakes to use that sum for that purpose; but if it be bequeathed for the promulgation of atheism, the state refuses to execute the trust. We submit that it would be wise in the state to escape from this and similar inconsistencies by declining all trusteeship, and undertaking only to insure the transfer of the property with all its powers, from the deceased to the donee.

Especially as, by the existing system, the community suffers itself to be fettered by limitations to which the individuals composing that community would scorn to submit. They who leave property by will, seldom permit the first testament to be final. Their opinions change, their circumstances also, and the circumstances of those around them. Man is far from possessing infallibility in his judgment of the present, and to prescience he can make no pretension. Were a testator to live ten years longer than he does, it is highly probable that what proves to be his last will, would not be the last; and if therefore society will accept at the hands of a dying man the power of appropriating his property, it ought to possess the correlative power which the owner would never have surrendered, of changing its appropriation. No wise man, at the age of thirty, would so tie up his property that without extreme difficulty he could not in after life alter the use of it. He would say 'No! I wish to have the power of using it according to changes which may arise, but which I cannot foresee.' Why should society subject itself to the bondage which the individual would not endure?