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2. Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving antiently to his wife and children their reasonable part of his effects. Page 491

3. The goods of intestates belonged antiently to the king; who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust, in the times of popery, the legislature compelled them to delegate their power to administrators expressly provided by law.

.

493

4. All persons may take a testament, unless disabled by, I.

Want of discretion. II. Want of free will. III. Criminal conduct.

496-7

5. Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, I. Written. II. Nuncupative. 499, 500

6. An executor is he, to whom a man by his will commits the execution thereof.

502

7. Administrators are, I. Durante minore ætate of an infant executor or administrator; or durante absentia; or pendente lite. II. Cum testamento annexo; when no executor is named, or the executor refuses to act. III. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. IV. Administrators de bonis non; when a former executor or administrator dies without completing his trust. 503-507

8. The office and duty of executors (and, in many points, of administrators also) are, I. To bury the deceased. II. To prove the will, or take out administration. III. To make an inventory. IV. To collect the goods and chattels. V. To pay debts; observing the rules of priority. VI. To pay legacies, either general or specific; if they be vested, and not lapsed. VII. To distribute the undevised surplus, according to the statute of distributions. 508--520

CORRIGENDUM.

Page 286, note (25), column 3, after the word "being," in the 11th line from the bottom of the page, read "indebted to an accountant of, or debtor to, the King, by contract originally made between the bankrupt and the said debtor or accountant to the King."

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER I.

OF PROPERTY IN GENERAL.

THE former book of these Commentaries having treated Rights of things, at large of the jura personarum, or such rights (1) and duties or rights of do

(1) Before proceeding to the exami- a different idea or collection of ideas,

If we

nation of " commentaries upon rights," it may not be unprofitable to inquire, whether the word "right" conveys a definite and single meaning. can establish one fixed and invariable sense, in which the word is to be understood whenever it occurs, we shall have no ambiguity to apprehend: but if it shall appear, that the word is sometimes used to represent one mental conception, and sometimes to shadow out

VOL. II.

it will behove us to be very careful, lest the convertible property of the term should lead us into confusion; and we should fix in our minds the various imports which, by a laxity in the use of language, the word may convey, in order that, whenever we find it employed in the work before us, we may be able to determine in what sense its application is proper, and satisfy ourselves, that the author is not attempting to B

minion.

as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or,

put a change upon us, or unconsciously passing one upon himself, by drawing inferences which follow, very speciously, from the use of the word in one sense, but which are sophistical, if that be not its appropriate, or declared, import and meaning in the particular instance.

Some pains employed in studying this point, will, perhaps, not be a loss of time. Strict definitions, it is true, require close attention in those who at tempt to lay them down, and no slight degree of dry labour in those who examine their accuracy. Yet, in every discussion, if the meaning of the material words used, and, still more obviously, of those words which propose the subject of discussion, be not precisely agreed upon, as a preliminary, the argument may be continued interminably, but idly; unless the disputants are candid enough to recommence, where, as Lord Bacon suggests, they ought to have begun, namely, by settling their verbal differences.

Locke, too, has intimated, that logic and criticism would become very different things from the imperfect instruments of reasoning which we now experience them to be, if words, as the signs made use of for the understanding of things, and as the instruments of knowledge, were distinctly weighed and duly considered.

If further authority be necessary to justify the solicitation of the reader's attention to the previous question now respectfully proposed to him, another able dialectician has said, that, discourse carried on without fixing the

meaning of the terms employed, is "like the mere gabbling of the brute creation." With submission, however, this comparison is not perfectly accurate. We have no right to assume that any of the inferior animals ever use the range of oral sounds they do possess, so vaguely and indeterminately, that their own species can misunderstand what those sounds mean. The wants of the brute creation are few, gross, and palpable, and their ideas can extend no further; for, the act of thinking necessarily implies aspiration after some object or other. To express all the perceptions, then, of which animals devoid of reason are capable, a limited number of sounds may, without danger of indeterminateness, suffice: if oral accents be, as Aristotle tersely says, merely ovμßoλa radnμarav where the sensations are few, the signs of those sensations need not be many; and where the " ingenious contrivances of language" are not required or implied, it seems gratuitous to impute the abuse of a faculty, the use of which is not, in fact, enjoyed. But man is not thus circumscribed: in him, a wondrous com. pound of matter and of spirit, are united the wants of animal nature, with a lofty aspiration after those acquirements and pure gratifications, which his spiritual part, even whilst clogged by its corporeal adjunct, makes him feel to be necessary for immortal happiness; but the precise nature of which, notwithstanding his strong volition, he is unable distinctly to conceive; and his own uncertain glimpses of which he, of course, cannot make distinct to others.

those rights which a man may acquire in and to such external things as are unconnected with his person. These

The inadequacy of human language to express such aspirations, or any combination of feelings into which they partially enter, may, however, be readily admitted; yet, it may be asked, how happens it that a similar imperfection should so frequently occur in discussions, of which the sole subjects are man's mere earthly concerns? The answer, if given after due deliberation, will probably be, that, want of perspicuity is much too generally referred, by self-complacent apologists, to the inherent imperfections of language; when, in fact, the obscurity would be more properly ascribed, not to the want of a medium of clear exposition, but, to the carelessness of the speaker, who has not been at the trouble of elaborating his thoughts into distinctness. Vague notions can only be vaguely enuntiated; the mirror of language can but obscurely reflect, what, even to our mental vision, is exhibited darkly: but it seems almost a self-contradictory proposition to say, that the language of any country, civilized or uncivilized, can remain insufficient for the expression of all the ideas clearly conceived by the natives of that country: the vocabularies of different nations differ, no doubt, greatly in their extent; but not more than the wants (including the mental as well as the corporeal wants) of the respective nations; and where those wants multiply, there, to the extent necessary for their exposition, will words also be multiplied.

The theologians, who hold that language is a faculty, the full use of which was imparted to man at his crea

tion; and the metaphysicians, who contend that words are the instruments of thought, cannot, consistently, refuse assent to the conclusion last stated; and it will, probably, not be disputed even by those who, more soberly, deem that speech is an art, which man was gifted with powers to work out, but which he was left to form into a system, and give a compass thereto, for himself; and who further consider words to be merely the signs of thoughts previously conceived, but not indispensable instruments, without which no mental operations could be carried on. To a being constituted as man is, the convenience of a medium for the communication of whatever is distinctly imagined, if not amounting to an absolute necessity, approaches so very nearly to it, that, we may safely rest assured, the power of remedying a want so pressing will never remain long unexercised.

In fact, the most frequent cause of ambiguity in language is, not the want of terms proper, if we would seek them out, for the expression of all our distinct ideas; but, the use of generalizing expressions, when limitations are necessary to express our meaning with exactness. Where the occasion upon which they are spoken, or the context of a composition in which they are found, sufficiently denotes the qualified sense in which words are used, preciseness in formally excluding different interpretations would, no doubt, be pedantic; and so tedious a course would be inconsistent with the convenient despatch of the ordinary business of life: but where a long and important

are what the writers on natural law stile the rights of dominion, or property; concerning the nature and original

investigation is about to be commenced, it is only a prudent economy of time to examine, in the first place, whether the subject is proposed in words, of which the meaning is so certain and invariable, as to be clear of all ambiguity. Is that the case with the word right? or is that word used, at different times, to express different associations of ideas? and if so, have all those different meanings something in common, which may be referred to as the primary sense of the word? Provided we can get at this fundamental meaning, we shall have little difficulty in dealing with its secondary adjuncts, and in classing them intelligibly: for, " unum imprimis observandum est; propterea quod significatorum multitudo uni eidemque voci attributa sæpius est, principem omnium significatum indagari oportere censeo, ad quem, tanquam ad tesseram signaque, cæteras reducere legiones;-unius namque vocis una tantum sit significatio propria ac princeps; cæteræ aut communes, aut accessoria, aut etiam spuriæ." (Scaliger, de Causis Linguæ Latinæ, lib. 13.)

It is, indeed, not possible to "tie down popular phrases to any constant signification;" but, we may do something towards marking out limits, beyond which even the vagrant licence of common discourse will hesitate to ramble, if we can determine the primary and fundamental sense of a word, and fix this as a standard, with which all its varying acceptations may be compared, and to which they may all be referred, as to a common origin; a total forgetfulness of which ought to be held inadmissible.

The primary meaning of the word "right" appears to have been sagaciously hunted out by Horne Tooke. In his Ersa Irigora, ii. cc. 1, 2, he has traced the word to its root. It is very true, that pretended etymologists have, often, absurdly mistaken their dreams and conjectural guesses for profound meditations and demonstrative proofs; it is, therefore, only prudent to examine all etymological reasoning with extreme circumspection. "A reference to the etymology of a word," as Horne Tooke was well aware, "is trifling, unless the meaning of the word and the cause of its imposition can be discovered by such reference. And having once obtained that satisfaction, all etymological pursuit beyond it is equally trifling: it is childish curiosity, in which the understanding takes no part, and from which it can derive no advantage." Still, etymology is, when rightly conducted, incontrovertibly a science; and there would be little wisdom in rejecting the use of a science, because it has been abused by trifling sciolists. The familiar modern acceptation of a word, when usage has appropriated it to a single, determinate meaning, may be all that is positively essential to be known, however widely that modern sense may have departed from the original signification of the term: but, when the same word is, in common discourse, loosely employed, sometimes to signify one assemblage of ideas, and at other times to denote a varied combination of thoughts, we shall make a great step towards removing ambiguity, if we can determine what was the original import of the

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