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tual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a ciril, 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 collate- press laws of inheritance for the guidrals, and he plainly intimates that it ance of the Jews, in Numbers xxvii. has more in the case of lineal descend- 8, 9, but it would be hasty to infer, ants. On the whole, therefore, Paley's that these laws were merely of positive opinion can by no means be cited as in institution, and then first enuntiated. perfect accordance with the doctrines Philo has remarked, that the Jewish of our author, in the text above. And lawgiver has enumerated some only the justice of a child's claim to the of the rules of succession, leaving others inheritance of his father's possessions, to be supplied by right reason. The appears to have the countenance of passage of Scripture referred to is that authority, which, if the expression learnedly discussed by Selden, in his thereof be clearly understood, is defini- Treatise de Success. Hebræ. cc. 12. 27. tive. In Gen. xv. 4, we are told, that Heineccius observes, (in book 1, c. after Abraham had declared one of his 11, s. 297), any preference in respect household to be his heir, “Behold, the of inheritance, which makes an word of the Lord came unto Abraham, equal division among equals, proceeds saying, this shall not be thine heir, but from municipal law, pact, or private he that shall come out of thy bowels disposition; therefore, that is not of the shall be thine heir." It is believed, law of nature. But he adds (in sect. there is nothing in the Scriptures im- 303), right reason acknowledges the plying, that this was not previously the right of succession in kindred; though, general rule of succession; or that the as these things belong rather to the pleasure of the Almighty then declared, permissive, than to the preceptive, part was restricted to that particular in- of the law of nature, much must be stance. In all such cases, it seems here left to civil legislature to fix and difficult to disconnect natural feeling determine by their laws, as the end (which is the voice of God speak- and interest of their states may require. ing in us,') from natural justice. (22) But see ante, note (2). Moses, no doubt, laid down some ex
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 when property useless and unknown: and, when it became inheritable, the became inhe
ritable, the heir inheritance was long indefeasible, and the children or heirs at-law was at at law were incapable of exclusion by will. Till at length first incapable it was found, that so strict a rule of inheritance made heirs will; but this disobedient and headstrong, defrauded creditors of their just convenient, gave debts, and prevented many provident fathers from dividing rise to the right
of disposing of or charging their estates as the exigence of their families re- it by testament. quired. 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.
(23) Yet Abraham could not know chance of occupancy was open alike. that Eliezer would certainly be an at- The conclusion, then, to be drawn from tendant on his death-bed, and the ear- the text in question, rather seems to be, liest witness of his decease; the pa- that a man's right to nominate his heir, triarch, therefore, when declaring Elie- when he had no children, was estazer his heir, must have had in contem- blished in Abraham's time. See ante, plation some other title than the doubt- note (21), and post, chap. 32 of this ful one which might, or might not, volume, with the notes thereto; and accrue to Eliezer by occupancy. Elie. also Turnbull's learned note to Heizer was only one of Abraham's numer- neccius, book 1, c. 11, s. 291. our household, to all of whom the
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 Until after the Henry the eighth; and then only of a certain portion: for restoration, the
it was not till after the restoration that the power of devising power of devising real proper- real property became so universal as at present (24). ty not universal.
Wills, therefore, and testaments, rights of inheritance and Wills, &c., regulated by the successions, are all of them creatures of the civil or municicivil or munici- pal laws, and accordingly are in all respects regulated by pal laws.
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 [ * 13 ] 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
(24) See post, p. 375. The statutes thor's attempt to defend this rule, of 32 Hen. III. c. 1, and 34 Hen. VIII. which is peculiar to our own system. c. 5, allowed all persons having an Blackstone thinks the rule founded on estate in fee simple, in any manors, good legal reason, and is of opinion, lands, tenements, or hereditaments, that the right of transmitting property holden by socage tenure, to dispose has no foundation in the law of nature; thereof by will; and the statute of 12 but see ante, notes (2) and (21), and Cha. II. c. 24, by converting all military the note next below. tenures into socage, enabled all tenants Mr. Preston, commenting upon in fee simple to devise the whole of the passage in the text, says, “by it their landed property, with the excep- must be understood, that the father tion of their copyhold tenements. Dis. cannot succeed to his son, merely in positions of copyhold estates by will the character and relation of father. were not effectual without a previous In any other sense, it is not by any surrender of such estates to the uses of means accurate to say the father canthe copyholder's will, until the statute not, by any the remotest possibility,' of 55 Geo. III. c. 192, enacted, that succeed to the son as his immediate thenceforth that formality should not heir. It seems to have been Blackbe necessary to give validity to testa- stone's intention to deny that there mentary dispositions of such estates.
were any possible means by which the (25) But see ante, notes (2) and father could succeed as immediate heir (21); and post, the 32d chap. of his to his son.
A contrary doctrine, howvolume, with the notes thereto.
ever, is clearly established. It has (26) See post, in chap. 14, the au- 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; To what proin landed property he never can be their immediate heir, by dreny a father
perty of his chil any the remotest possibility (26): in general only the eldest may succeed. son, in some places only the youngest, in others all the sons Right of succes- .
sion by children. 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 they were) have ceased, should give cousin of the son. When a father way to the restoration of a code of would be entitled to be heir, as cousin laws, regulating real property in a to the son, if he did not sustain the manner more simple and more accordrelation of father, he is not excluded ant with natural feeling. The present merely on the ground that he is the writer has taken the liberty of calling father. Suppose then, two cousins to in the attention of the commission, now termarry, and that there is issue of that employed in the investigation of the marriage a son, who purchases lands laws of real property, to this point. and dies; in enquiring for the heir to (27) See ante, note (21). The ground the son, it is a decisive objection to the of the son's disinherison may matericlaim of the father, that he is the fa- ally affect the morality of the transacther, as often as the question is, whe- tion; but, in ordinary cases, unless it ther he shall be preferred to the uncle is held that natural justice may be ador great uncle of the son, on the verse to moral feelings, too universal part of the father. But, let the pater- not to be esteemed a part of our nanal line fail, and then recourse must be ture, there seems to be nothing errohad to the maternal line. In that line neous in the opinion which our author the father may succeed as a cousin to rejects. Paley, (in the 9th chap. of his son.” (Essay on Abst. ii. 449.) the 3rd book of his Treat. on Mor, and Surely it is high time that all this arti- Pol. Phil.) observes, “a child's vices ficial jugglery should have an end, and may be of that sort, and his vicious hathat the
rules of the feudal bits so incorrigible, as to afford much law, the reasons for which (such as the same reason for believing that he
adhere to the supposed intention of the dead, that if a will
after his own decease. Whereas the law of națure 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 tains is, that his discretion is under no