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established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil, right (23). 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 fortuitous 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 of his decease. * They became therefore generally the next immediate occupants, till at
to their children ceases, yet its effects are 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 father's goods, which the rest of mankind cannot pretend to." (Locke on Gov. book i. c. 9, paras. 87, 88, 89.) "The right a son has to be maintained and provided with the necessaries and conveniences 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 conveniences of life, and that the natural right children have to inheritthe goods of their parents, is founded in the rightthey 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, paras. 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. I. p. 3, observes,"Thesuccession 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 Kaimes'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 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 express 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
enunciated. Philo has remarked that
Heineccius observes, (in book i.
(23) But see ante, note (2),
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 bis 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" (0(24). whm property While property continued only for life, testaments were riubic, the h«r- useless and unknown; and, when it became inheritable, the
»t-l*W WM at . „ _ _ _ . -_ _.
first incapable inheritance was long indefeasible, and the children or heirs
of exclusion by . ~' _ _ . _ .__ wn-i\ i 1
will; but this at law were incapable of exclusion by will. I ill at length
licin^ found in- . _ . r . - . . , , i •
convenient Rare it was found, that re strict a rule of inheritance made heirs of deputing of 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 style his mill. This was established 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 Mwer of cievi.- it was not till after the restoration that the power of devising Jot universal y real property became so universal as at present (25).
(/) Gen. zv. 3.
(24) Yet Abraham could not know rather seems to be, that a man's right
that EHezer would certainly be an to nominate his heir, when he had no
attendant on his death-bed, and the children, was established in Abraham's
earliest witness of his decease; the time. See ante, note (22), and pott,
patriarch, therefore, when declaring chap. 32 of this volume, pp. 489 et
Eliezer his heir, most have had in 'eh, with the notes thereto, and Vol.
contemplation aome other title than I. p. 448; also Turnbull's learned
the doubtful one which might, or note to Heineccius, book i. c. 11, a.
might not, accrue to EHezer by occu- 291.
pancy. Eliezer was only one of Abra- (25) See pott, p. 375. The ate*
ham'a numerous household, to all of tutes of 32 Hen. III. c. 1, and 34
whom the chance of occupancy was Hen. VIII. c. 5, allowed all persons
open alike. The conclusion, then, to having an estate in fee simple, in any
be drawn from the text in question, manors, lands, tenements, or heredi
Wilts, therefore, and testaments, rights of inheritance and wiii», &c, regulated by the civil or munici
successions, are all of them creatures of the civil or munici pal laws, and accordingly are in all respects regulated by them (26); 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 par- [ * 13 ] ticularly, 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 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 To what pro
r * perty of his i
his children ; in landed property he never can be their im- 5ren a father
, .. ... . may succeed.
mediate heir, by any the remotest possibility (27): in general
taments, 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 m fee simple to devise the whole of their landed property, with the exception of their copyhold tenements. Dispositions 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. re enacted, that thenceforth that formality should not be necessary to give validity to testamentary dispositions of such estates.
(26) But see ante, the notes to pp. 1 and II, and pott, pp. 489, et seq. with the notes thereto.
(27) See post, in chap. 14, p. 210, the author's attempt to defend this role. 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, the notes pp. 1 and 11, 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
Risht of succcs- only the eldest Sod, in some places only the youngest, in y c 1 ren. otnerg ajj tjje 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 (28); while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only two wit
an end, and that the arbitrary roles of
(28) See ante, the note to p. 11.
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 habits so incorrigible, as to afford much the same reason for believing that he 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 alienating. This seems to be the only case in which a disinherison, nearly absolute, 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 hit own. All the truth which this expression contains is, that his discretion is under no control of law j 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." See Vol. I. pp. 447, 448.