Sivut kuvina

actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition *at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the ceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion (k). And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the

(k) It is principally to prevent any vacancy of possession, that the civil law considers father and son as one person; so that upon the death of either, the in

notions with those of Locke and Paley, who, in substance reason thus:-As population increased, unless the rights of property were established by positive law, disorders and violence would inevitably ensue, destructive of human happiness. But the Creator, doubtless, willed the happiness of his crea


heritance does not so properly descend,
as continue in the hands of the survivor.
Ff. 28. 2. 11.

tures; therefore, municipal laws, which
have a tendency to that result, are
founded on general principles of na-
tural law; by which phrase is meant
(where the person who utters it has any
precise meaning) they are in confor-
mity with the will of God. (See ante,
note (7).)

or, if the dying person made no

such disposition, the law declared

who should be his successor,


or heir.

[ *11 ]

The right of in

nized earlier

law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed (20).

The right of inheritance, or descent to the children and heritance recog relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side (21);

than the right

to devise.

(20)"Where no kindred of a deceased person are to be found, there we see the possessions of a private man revert to the community, and so in politic societies come into the hands of the public magistrate; but, in the state of nature, become again perfectly common, no body having a right to inherit them, nor can any one have a property in them, otherwise than in other things common by nature." (Locke on Gov. book i. c. 9, parag. 90).

The doctrine of escheats is adverted to more fully hereafter in the 5th and 15th chapters of this volume, and the notes thereto.

(21) Cicero, it will be recollected, says, "Omni in re, consensio omnium gentium lex naturæ putandum est;" and a philosopher of equal distinction in our own literature, thus discusses the doctrine stated in the text: "If any one had begun and made to himself a property in a particular thing, that thing, if he disposed not otherwise of it by his positive grant, descended naturally to his children, and they had a right to succeed to it, and possess it. If common consent had established this right, it would make but a positive, and not a natural right; but where the practice is universal, it is reasonable to think the cause is natural. The ground, then, I think to be this: God planted in

men a strong desire of propagating their kind, and continuing themselves in their posterity; and this gives children a title to share in the property of their parents, and a right to inherit their possessions. Men are not proprietors of what they have, merely for themselves; their children have a title to part of it, and have their kind of right (joined with their parents') in the possession, which comes to be wholly theirs, when death, having put an end to the parents' use of it, hath taken them from their possessions; and this we call inheritance: men being by a like obligation bound to preserve what they have begotten, as to preserve themselves, their issue come to have a right in the goods they are possessed of. That children have such a right is plain from the laws of God. For, children being by the course of nature born weak, and unable to provide for themselves, they have, by the appointment of God himself, who hath thus ordered the course of nature, a right to be nourished and maintained by their parents; nay, a right not only to a bare subsistence, but to the comforts and conveniencies of life, as far as the conditions of their parents can afford it. Hence it comes that, when parents leave the world, and so the care due to their children ceases, yet its effects are

yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effec

to extend as far as possible, and the provisions the parents have made in their life-time, are understood to be intended, as nature requires they should, for their children, whom, after themselves, they are bound to provide for: though the parents, by express words, declare nothing about them, nature appoints the descent of their property to their children, who thus come to have a title and natural right of inheritance to their fathers' goods, which the rest of mankind cannot pretend to." (Locke on Gov. book i. c. 9, parag. 87, 88, 89.) "The right a son has to be maintained and provided with the necessaries and conveniencies of life out of his father's stock, gives him a right to succeed to his father's property for his own good," (Ibid. parag. 94.) "I think it clear, that a right to the use of the creatures was founded originally in the right a man has to subsist and enjoy the conveniencies of life, and that the natural right children have to inherit the goods of their parents, is founded in the right they have to the same subsistence and commodities of life out of the stock of their parents, who are taught by natural law and tenderness to provide for them, as a part of themselves." (Ibid. parag. 97.)

Locke, then, appears to have viewed this question, as to a child's right of inheritance, in a totally different light from our author. Mr. Christian, though holding opinions on the subject similar to those of Locke, probably had forgotten him, at the moment when he said, (in his note on this passage of the text), "all writers upon general law maintain, that children have no better claim by nature to succeed to the property of their

deceased parents than strangers."

Mr. Roberts, in his Treat. on Wills, vol. 1, p. 3, observes, "The succession to the heirs of the body, and in the case of the defect of such representatives, to the next in proximity of blood, if not a law of nature, seems so to correspond with its dictates, that history hardly carries us back to a time when the notion and admission of this claim did not prevail among mankind. The suggestions of a common feeling appear, therefore, to have made this a universal rule of transmission, and to have established it in communities widely separated by time and place. Thus, the representation in the channel of blood and proximity seems to have had its foundation higher than any positive institutions, though to positive institutions we must of course refer the modifications of this rule of succession." And see, to a similar purport, the 3rd of Lord Kames's Law Tracts, p. 109.

Paley seems to have held a middle course; not denying that the claim of lineal descendants to inherit their ancestor's property, may have some foundation in the law of nature; but not appearing to think it a claim entitled to very great consideration. In the 23d chap. of the 3d book of his Mor. and Polit. Phil. he says, "Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion of the different claimants; not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the law of nature."

Observe, he does not venture to deny that the claim may have some natural

tual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right (22). It is true, that the transmission of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society: it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined, and, if not from for

foundation, even in the case of collaterals, and he plainly intimates that it has more in the case of lineal descendants. On the whole, therefore, Paley's opinion can by no means be cited as in perfect accordance with the doctrines of our author, in the text above. And the justice of a child's claim to the inheritance of his father's possessions, appears to have the countenance of that authority, which, if the expression thereof be clearly understood, is definitive. In Gen. xv. 4, we are told, that after Abraham had declared one of his household to be his heir, "Behold, the word of the Lord came unto Abraham, saying, this shall not be thine heir, but he that shall come out of thy bowels shall be thine heir." It is believed, there is nothing in the Scriptures implying, that this was not previously the general rule of succession; or that the pleasure of the Almighty then declared, was restricted to that particular instance. In all such cases, it seems difficult to disconnect natural feeling (which is the voice of God speaking in us,') from natural justice. Moses, no doubt, laid down some ex

press laws of inheritance for the guidance of the Jews, in Numbers xxvii. 8, 9, but it would be hasty to infer, that these laws were merely of positive institution, and then first enuntiated. Philo has remarked, that the Jewish lawgiver has enumerated some only of the rules of succession, leaving others to be supplied by right reason. The passage of Scripture referred to is learnedly discussed by Selden, in his Treatise de Success. Hebræ. cc. 12. 27.

Heineccius observes, (in book 1, c. 11, s. 297), any preference in respect of inheritance, which makes an unequal division among equals, proceeds from municipal law, pact, or private disposition; therefore, that is not of the law of nature. But he adds (in sect. 303), right reason acknowledges the right of succession in kindred; though, as these things belong rather to the permissive, than to the preceptive, part of the law of nature, much must be here left to civil legislature to fix and determine by their laws, as the end and interest of their states may require. (22) But see ante, note (2).

tuitous circumstances, at least from a plainer and more simple principle. A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses [ 12 ] of his decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also, in the earliest ages, on failure of children, a man's servants 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 expressly declaring, that " since God "had given him no seed, his steward Eliezer, one born in "his house, was his heir (1) (23).

While property continued only for life, testaments were useless and unknown: and, when it became inheritable, the inheritance was long indefeasible, and the children or heirs at law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, by written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically stile his will. This was establish(1) Gen. xv. 3.

When property became inhe

ritable, the heir

at-law was at first incapable will; but this convenient, gave being found inrise to the right of disposing of it by testament.

(23) Yet Abraham could not know that Eliezer would certainly be an attendant on his death-bed, and the earliest witness of his decease; the patriarch, therefore, when declaring Eliezer his heir, must have had in contemplation some other title than the doubtful one which might, or might not, accrue to Eliezer by occupancy. Elie zer was only one of Abraham's numerous household, to all of whom the

chance of occupancy was open alike.
The conclusion, then, to be drawn from
the text in question, rather seems to be,
that a man's right to nominate his heir,
when he had no children, was esta-
blished in Abraham's time. See ante,
note (21), and post, chap. 32 of this
volume, with the notes thereto; and
also Turnbull's learned note to Hei-
neccius, book 1, c. 11, s. 291.

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