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calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another; who was ready to give in exchange for it some equivalent, that was equally desirable to the former proprietor. Thus Mutual convemutual convenience introduced commercial traffic, and the nience and the reciprocal transfer of property by sale, grant, or convey- society introance: which *may be considered either as a continuance of duced and counthe original possession which the first occupant had; or as transfer of proan abandoning of the thing by the present owner, and an grant, or con
perty by sale, immediate successive occupancy of the same by the new veyance. proprietor. The voluntary dereliction of the owner, and [ 10 ] delivering the possession to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius, being the only or first man acquainted with such my intention, immediately steps in and seises the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides (19).
(19) Mr. Christian, in his note upon the produce of their toils, no one ever this passage, says, “Upon whatever disputed the validity of the contract, or principle the right to property is found the continuance of the original title. ed, the power of giving and transfer. This (he says) does not seem to be ring seems to follow as a natural con- aptly explained by occupancy, for it sequence;" and so far all his readers, cannot be said that in such a case there probably, will be disposed to agree with is ever a vacancy of possession.” Now, him. But, what he proposes as an in the case put, the hunter and the illustration of his doctrine, will be fisherman respectively, by occupancy thought, perhaps, by some, rather to of the distinct articles which were the darken it. He proceeds thus, “ if the produce of their dissimilar toils, and hunter and the fisherman exchange which articles, before such occupancy,
And also by tes. tamentary disposition:
The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the
were in common to all mankind, had difficulty in understanding Mr. Chris.
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 or, if the dying is not permitted to make any disposition *at all, the muni- person made no
such disposition, cipal law of the country then steps in, and declares who the law declared shall be the successor, representative, or heir of the de- who should be ceased; that is, who alone shall have a right to enter upon representative, this vacant possession, in order to avoid that confusion which its becoming again common would occasion (k). And [*11 ] 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 heritance does not so properly descend, vacancy of possession, that the civil law as continue in the hands of the survivor. considers father and son as one person; Ff. 28. 2. 11. so that upon the death of either, the in
notions with those of Locke and Paley, tures; therefore, municipal laws, which who, in substance reason thus:-As have a tendency to that result, are population increased, unless the rights founded on general principles of naof property were established by positive tural law; by which phrase is meant law, disorders and violence would in- (where the person who utters it has any evitably ensue, destructive of human precise meaning) they are in conforhappiness. But the Creator, doubt- mity with the will of God, (See ante, less, willed the happiness of his crea- note (7).)
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 in- The right of inheritance, or descent to the children and heritance recoge relations of the deceased, seems to have been allowed much than the right earlier than the right of devising by testament. We are apt to devise.
to conceive at first view that it has nature on its side (21);
(20) “ Where no kindred of a de- a strong desire of propagating ceased person are to be found, there their kind, and continuing themselves we see the possessions of a private man in their posterity; and this gives chilrevert to the community, and so in dren a title to share in the property of politic societies come into the hands of their parents, and a right to inherit the public magistrate; but, in the state their possessions. Men are not proof nature, become again perfectly com- prietors of what they have, merely for mon, no body having a right to inherit themselves; their children have a title them, nor can any one have a property to part of it, and have their kind of in them, otherwise than in other things right (joined with their parents') in common by nature." (Locke on Gov. the possession, which comes to be wholly book i. c. 9, parag. 90).
theirs, when death, having put an end The doctrine of escheats is adverted to the parents' use of it, hath taken to more fully hereafter in the 5th and them from their possessions; and this 15th chapters of this volume, and the we call inheritance: men being by notes thereto.
a like obligation bound to preserve what (21) Cicero, it will be recollected, they have begotten, as to preserve themsays,
“ Omni in re, consensio omnium selves, their issue come to have a right gentium lex naturæ putandum est;" and in the goods they are possessed of. a philosopher of equal distinction in our That children have such a right is plain own literature, thus discusses the doc- from the laws of God. For, children trine stated in the text: “If any one being by the course of nature born had begun and made to himself a pro- weak, and unable to provide for themperty in a particular thing, that thing, selves, they have, by the appointment if he disposed not otherwise of it by his of God himself, who hath thus ordered positive grant, descended naturally to the course of nature, a right to be his children, and they had a right to nourished and maintained by their pasucceed to it, and possess it. If com- rents; nay, a right not only to a bare mon consent had established this right, subsistence, but to the comforts and it would make but a positive, and not a conveniencies of life, as far as the connatural right; but where the practice is ditions of their parents can afford it. universal, it is reasonable to think the Hence it comes that, when parents cause is natural. The ground, then, leave the world, and so the care due to I think to be this: God planted in 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 deceased parents than strangers." provisions the parents have made in Mr. Roberts, in his Treat. on Wills, their life-time, are understood to be in- vol. 1, p. 3, observes, “ The succession tended, as nature requires they should, to the heirs of the body, and in the for their children, whom, after them- case of the defect of such representaselves, they are bound to provide for: tives, to the next in proximity of blood, though the parents, by express words, if not a law of nature, seems so to declare nothing about them, nature ap- correspond with its dictates, that hispoints the descent of their property to tory hardly carries us back to a time their children, who thus come to have when the notion and admission of this a title and natural right of inheritance claim did not prevail among mankind. to their fathers' goods, which the rest The suggestions of a common feeling of mankind cannot pretend to.” (Locke appear, therefore, to have made this on Gov. book i. c. 9, parag. 87, 88, 89.) a universal rule of transmission, and “ The right a son has to be maintained to have established it in communities and provided with the necessaries and widely separated by time and place. conveniencies of life out of his father's Thus, the representation in the chanstock, gives him a right to succeed to nel of blood and proximity seems to his father's property for his own good,” have had its foundation higher than any (Ibid. parag. 94.) "I think it clear, positive institutions, though to positive that a right to the use of the creatures institutions we must of course refer the was founded originally in the right a modifications of this rule of succession." man has to subsist and enjoy the con- And see, to a similar purport, the 3rd of veniencies of life, and that the natural Lord Kames's Law Traets, p. 109. right children have to inherit the goods Paley seems to have held a middle of their parents, is founded in the right course; not denying that the claim of lithey have to the same subsistence and neal descendants to inherit their ancescommodities of life out of the stock of tor's property, may have some foundation their parents, who are taught by natu- in the law of nature; but not appearral law and tenderness to provide for ing to think it a claim entitled to very them, as a part of themselves.” (Ibid. great consideration. In the 23d chap. parag. 97.)
of the 3d book of his Mor. and Polit. Locke, then, appears to have viewed Phil. he says, “Succession to intestates this question, as to a child's right of must be regulated by positive rules of inheritance, in a totally different light law, there being no principle of natural from our author. Mr. Christian, though justice whereby to ascertain the proholding opinions on the subject similar to portion of the different claimants; not those of Locke, probably had forgotten to mention that the claim itself, espehim, at the moment when he said, (in his cially of collateral kindred, seems to note on this passage of the text), “all have little foundation in the law of writers upon general law maintain, that nature." children have no better claim by na- Observe, he does not venture to deny ture to succeed ta,the property of their that the claim may have some natural