Until after the

restoration, the

power of devis

ing real proper

ty not universal.

Wills, &c., re

pal laws.

ed in some countries much later than in others. With us in England, till modern times, a man could only dispose 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 devising real property became so universal as at present (24).

Wills, therefore, and testaments, rights of inheritance and gulated by the successions, are all of them creatures of the civil or municicivil or municipal laws, and accordingly are in all respects regulated by them (25); every distinct country having different ceremonies and requisites to make a testament completely valid: neither does any thing vary more than the right of inheritance under different *national establishments. In England particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the

[ 13 ]

(24) See post, p. 375. The statutes of 32 Hen. III. c. 1, and 34 Hen. VIII. c. 5, allowed all persons having an estate in fee simple, in any manors, lands, tenements, or hereditaments, holden by socage tenure, to dispose thereof by will; and the statute of 12 Cha. II. c. 24, by converting all military tenures into socage, enabled all tenants in fee simple to devise the whole of their landed property, with the exception of their copyhold tenements. Dis. positions of copyhold estates by will were not effectual without a previous surrender of such estates to the uses of the copyholder's will, until the statute of 55 Geo. III. c. 192, enacted, that thenceforth that formality should not be necessary to give validity to testamentary dispositions of such estates.

(25) But see ante, notes (2) and (21); and post, the 32d chap. of his volume, with the notes thereto.

(26) See post, in chap. 14, the au

thor's attempt to defend this rule, which is peculiar to our own system. Blackstone thinks the rule founded on good legal reason, and is of opinion, that the right of transmitting property has no foundation in the law of nature; but see ante, notes (2) and (21), and the note next below.

Mr. Preston, commenting upon the passage in the text, says, "by it must be understood, that the father cannot succeed to his son, merely in the character and relation of father. In any other sense, it is not by any means accurate to say the father cannot, by any the remotest possibility,' succeed to the son as his immediate heir. It seems to have been Blackstone's intention to deny that there were any possible means by which the father could succeed as immediate heir to his son. A contrary doctrine, however, is clearly established. It has been held that the father may be im

succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state. In personal estates the father may succeed to his children; in landed property he never can be their immediate heir, by any the remotest possibility (26): in general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance: in real estates males are preferred to females, and the eldest male will usually exclude the rest; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this proceeding as contrary to natural justice (27); while others so scrupulously

mediate heir to his son, as the second cousin of the son. When a father would be entitled to be heir, as cousin to the son, if he did not sustain the relation of father, he is not excluded merely on the ground that he is the father. Suppose then, two cousins to intermarry, and that there is issue of that marriage a son, who purchases lands and dies; in enquiring for the heir to the son, it is a decisive objection to the claim of the father, that he is the father, as often as the question is, whether he shall be preferred to the uncle or great uncle of the son, on the part of the father. But, let the paternal line fail, and then recourse must be had to the maternal line. In that line the father may succeed as a cousin to his son." (Essay on Abst. ii. 449.) Surely it is high time that all this artificial jugglery should have an end, and that the arbitrary rules of the feudal law, the reasons for which (such as

they were) have ceased, should give
way to the restoration of a code of
laws, regulating real property in a
manner more simple and more accord-
ant with natural feeling. The present
writer has taken the liberty of calling
the attention of the commission, now
employed in the investigation of the
laws of real property, to this point.

(27) See ante, note (21). The ground
of the son's disinherison may materi-
ally affect the morality of the transac-
tion; but, in ordinary cases, unless it
is held that natural justice may be ad-
verse to moral feelings, too universal
not to be esteemed a part of our na-
ture, there seems to be nothing erro-
neous in the opinion which our author
rejects. Paley, (in the 9th chap. of
the 3rd book of his Treat. on Mor. and
Pol. Phil.) observes, "a child's vices
may be of that sort, and his vicious ha-
bits so incorrigible, as to afford much
the same reason for believing that he

adhere to the supposed 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 conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society (28). The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person. who from [ 14 ] the result of certain local constitutions, appears to be the heir at law. Hence it follows, that where the appointment is regularly made, there cannot be a shadow of right (29) in any one but the person appointed: and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as solid a foundation, as the right of the devisee would have been, supposing such requisites were observed.

will waste or misemploy the fortune
put into his power, as if he were mad or
idiotish, in which case a parent may
treat him as a madman or an idiot; that
is, may deem it sufficient to provide for
his support, by an annuity equal to his
wants and innocent enjoyments, and
which he may be restrained from alien-
ating.

This seems to be the only case
in which a disinherison, nearly abso-
lute, is justifiable. Let not a father
hope to excuse an inofficious disposition
of his fortune, by alleging, that every
man may do what he will with his own.
All the truth which this expression con-

tains is, that his discretion is under no control of law; and that his will, however capricious, will be valid. This by no means absolves his conscience from the obligations of a parent, or imports that he may neglect, without injustice, the several wants and expectations of his family."

(28) But see ante, note (2); and the conclusion of note (19).

(29) If the author takes his stand upon the legal right, his position is impregnable: as to the question of natu ral right, see ante, notes (21), (23), and (27).

ter, and animals

wherein nothing

tuary property

can be had, re

main common.

But, after all, there are some few things which, notwith- Light, air, wastanding the general introduction and continuance of pro- fera natura, perty, must still unavoidably remain in common; being such being such wherein nothing but an usufructuary property is capable of but an usufrucbeing had; and therefore they still belong to the first occupant, during the time he holds possession 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; such also are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition: which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards.

Again: there are other things in which a permanent pro- Forests, waste perty may subsist, not only as to the temporary use, but lands, &c. also the solid substance; and which yet would be frequently found without a proprietor, had not the wisdom of the law provided a remedy to obviate this inconvenience. Such are forests and other waste grounds, which were omitted to be appropriated in the general distribution of lands; such also are wrecks, estrays, and that species of wild animals. which the arbitrary constitutions of positive law have distinguished from the rest by the well-known appellation of game. With regard to these and some others, as disturbances and quarrels *would frequently arise among individuals, contending about the acquisition of this species of property by first occupancy, the law has therefore wisely cut up the root of dissention (30), by vesting the things them.

(30) At the present day, it affords matter for melancholy reflection, to

VOL. II.

D

think how much Blackstone was mis-
taken, when he held, that, by giving

[ *15 ]

selves in the sovereign of the state: or else in his representatives appointed and authorized by him, being usually the lords of manors. And thus the legislature of England has universally promoted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning to every thing capable of ownership a legal and determinate owner.