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family for the benefit of the sixth is surely competent to deprive the sixth also of his inheritance; if it leaves but one fourth of the estate to the caprice of the testator, it may destroy the efficacy of wills altogether.

It is true, that some considerations of justice and natural right come in to limit the general authority of law. The property which a man does not inherit, but actually creates. by his own industry, seems to be his own by a higher and stronger title than any which society can confer. But it is no infringement of his right to say, that his power over the valuable article thus produced by him shall cease at his death; for the only superiority of his title consists in the fact that the possessor of the property was also its creator, and he who only inherits it from its first owner cannot urge this plea; to defend the right of the heir would be to maintain that a right by inheritance is equal to one by creation, and thus to destroy the original claim of superiority of title. Absolute ownership, however sacred for the time, necessarily terminates at the death of the individual; society deprives him of nothing that is his own, when it refuses him. testamentary power, because nothing that belongs to earth can be enjoyed beyond the grave, and he who has nothing can be deprived of nothing.

Again, the rightful authority of the legislature over the division of property is limited by the trusts and expectations that have been created by immemorial usage and the previously existing state of the law. The conduct, the hopes, the calculations of men are regulated by the customs of the country, by the assumed sanctity of prescription, and by long established institutions. The laws which regulate the descent of property are fundamental in their character; they are classed with the first principles of the constitution, like those which determine the form of the executive government, whether it shall be republican, aristocratic, or monarchical, and excepting insignificant changes of forms and details, they are never altered but on grand emergencies, or after a stormy revolution. A person of fortune adapts the education of his children to their presumed future enjoyment of his large estates; and although his own absolute right to his lands and goods certainly terminates at his death, these children suffer flagrant wrong, if their honest expectations are deceived, and they are compelled to adopt a course of life VOL. LXVII. No. 140.

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for which they were not trained. Society is under an implied contract with all who are members of it not to make sudden or wanton changes in its own fundamental statutes, on whose presumed inviolability great hopes have been cherished, and plans devised the execution of which was to extend through future generations. Thus, if the French law of descent were suddenly introduced into this country, a great outcry would be raised, not merely against the policy, but the justice, of the measure; though no one thinks of impugning the law as it actually exists in France on any higher ground than that of expediency. The right of regulating the descent of property by will, of rewarding a favorite child, and disinheriting a stubborn or vicious one, has come to be considered as a necessary incident of ownership; it would be urged, that the government might as well rob a man directly of his wealth, as deprive him of the power of giving it away as he sees fit, whether the gift is to take effect during his lifetime, or after his decease. Yet nothing can be more clear than that a man necessarily abandons his earthly property at the grave; and if any wrong is done in the distribution of it, that wrong is not suffered by the deceased, who is beyond the sphere of injury from his fellow-man, but by those whom he leaves behind. If his nearest of kin have any absolute right to it beyond the limits of prescription and positive statute, in preference to all other persons in the community, and to the community itself, we have yet to learn on what foundation this right is based, and by what civilized nation, or in what code of laws, it has ever to the full extent been recognized. There is an implied contract between society and the individual, that he shall be protected in the exclusive enjoyment of his earnings, the fruits of his own labor, so long as he is capable of enjoying them; when that capacity ceases, the contract is dissolved, the obligations of society have been fulfilled, and what is left behind without a natural owner comes into the common stock, to be distributed or appropriated in mass solely from a regard to the greatest good of the greatest number.

These considerations are applicable to all property, whether real or personal; but they are most conclusive in the case of the ownership of land. Without going into the question respecting the manner in which territory was first parcelled out and appropriated to exclusive use, or whether the origi

nal division took place by express compact or by silent sufferance which gradually became prescriptive right, there is no doubt that the land first belonged in common to all men, and that the appropriation of it by individuals is now admitted to be equitable only because it is believed to be expedient. The earth was given to be the habitation, and to provide for the subsistence, of all men, and it was at first enjoyed in common. The ocean and the air are so used even now; the former is the common highway of nations, because its vast extent affords room for all, while the right of navigating straits, narrow seas, and inlets into the land, is sometimes limited, under the pretext that one government must have the entire control of them in order to prevent interference and disputes, or to provide for its own safety, or to repay itself for disbursements required in order to make the navigation of them safe for all. These are reasons of mutual convenience, and perfectly similar reasons are alleged to justify the division of land, and the appropriation of it by individual owners. That appropriation of it in the first instance was certainly a usurpation, for it must have taken place without the consent and even without the knowledge of the vast majority of those who up to that period had enjoyed it in common, each one of whom had consequently as good a right to it as he who first fenced it in. If it could be proved that this division did not promote the general welfare, or that it produced on the whole more harm than good, every person might claim either a share of the land, or the privilege of cultivating the whole of it in common with others, as his natural birthright. In fact, a portion of the land is always given up for general use as a highway, because it is for the common advantage that all should have the privilege of passing over it. The farms contiguous to the highway could not equitably be held as private property, except from a similar regard to the common interest.

The general advantages of the institution of property are so obvious, that it may be said to exist by universal consent. Without it, mankind would relapse into barbarism, nay, into the condition of the wild beasts; for even a tribe of savages cannot live together without exclusive ownership of their rude tools, arms, clothing, and habitations. No one would submit to the labor of tilling the ground, because others would have an equal right with him to reap the harvest. No

man would even erect a hut, if his neighbours could claim possession of it as soon as it was completed. Prudence and frugality would be impossible virtues; no provision for the future would be made, if those who wasted and spoiled were allowed to enjoy that provision as well as those who saved it. No society could be organized; for the only bond of association is the possession of certain property and rights, from the enjoyment of which those who are not members of the society are excluded. Universal want would lead to universal war, and that condition of mankind which Hobbes imagined as the inevitable result of the evil principles of human nature, when not checked by despotism, would become a fearful reality.

To guard against these tremendous evils, the sacredness of property is recognized, government is instituted for its protection, and laws are made to facilitate its increase, to regulate its use, and to provide for the distribution of it, when the death of its producer or former owner leaves it to the disposal of his survivors. The rule almost universally adopted in the last case is to distribute it among those who are nearest of kin to the deceased, though in very different proportions, according to the different policy of the law in different countries. A man's nearest relations are commonly said to be his natural heirs, not because they have any natural or indefeasible right to his estates, but because they are nearest to his affections, and if his will were to be consulted, they would generally succeed to the ownership. The strongest natural claim to property thus left vacant is surely that of the community at large, to whom, if it be land, it originally belonged, and under whose protection and by whose aid, whether it be real or personal, it was accumulated. claim, in fact, is universally admitted, as they assume the power of giving the property away by designating the persons who shall inherit it, and the proportions which they shall respectively hold. And there is no doubt that society acts wisely in consulting the wishes of the original proprietor, by limiting the succession to his own family or his nearest connections. Industry and economy are thus promoted, as every one is encouraged to labor and to save up to the close of his life, since those who are dearest to him are to have the sole benefit of his accumulations. If he had only a life interest in his estate, if society at large, or individuals who were en

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tire strangers to him, were to be his heirs, his exertions would be limited to the attainment of a fortune barely sufficient to supply his own wants. He would spend both income and principal, and be reckless of the future, so that he had enough left for the necessities of his own declining years. Family ties also would be weakened or destroyed by a law giving the inheritance to strangers; children would have less motive to reverence their parents, who could not labor to promote the welfare of their offspring except for the brief remaining period of their own existence; and as the admirable constitution of our moral nature is such, that we always love those most upon whom we have conferred the greatest benefits, parental affection under these circumstances. would be very sensibly diminished. Besides, such a law could be executed only very imperfectly. Invention stimulated by affection would be constantly on the rack to evade it, by fraudulent transfers and sales effected during the lifetime of the first owners, and the attempt to prevent such practices would lead to intolerable inquisition into private and domestic concerns, and to endless litigation.

It is from the wisest reasons, therefore, from the most judicious regard to the general welfare, that the law gives the property of a person deceased intestate to the nearest of kin. Still, there is room for a wide discretion in determining the principles on which the estate shall be divided among those who stand in the same degree of relationship to the first proprietor. Shall any regard be paid to the wishes of the deceased in this respect? Shall all share alike? Or what preference shall be shown to the sons over the daughters, or to the first-born over his brothers and sisters? These are grave questions, and on the answers to them, more, we had almost said, than on all other causes united, the form of government and the welfare of the people, the whole political and social framework of society, in every country, must ultimately depend. Notwithstanding their immense importance, these questions have not, till of late years, been much discussed either by legislators or political economists. That the extremes of opulence and destitution should exist in the same community, a few revelling in the enjoyment of immense fortunes while millions around them are suffering from the want of all the comforts, and even of the necessaries, of life, is the great reproach of modern civilization. Men have

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