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but the right, founded in a primary law of nature, remains unchanged.

We shall con clude this chapter with a few brief remarks.—If a discovery of the right of property, (if, indeed, such right could have otherwise existed,) was left to reason and experience, instead of being discovered in the natural principle that has been unfolded, and rendered obvious to every one possessed of the common feelings and sentiments of our species, it must, if at all attainable, exact at least a considerable maturity of the reasoning powers. To children and all of weaker intellects, it must be wholly unattainable. Force alone could prevent a constant violation of property; prohibitory laws would be considered, as so many arbitrary impositions. How much better is the plan of nature. Who can forbear to admire the wisdom and goodness displayed in adapting the nature of man to that social and civil state, which he has ever found necessary, not only to his happiness, but to any tolerable existence in life. The Deity has implanted in man the germ of every necessary qualification, and left to him the cultivation. More it is probable, could not be indulged to a moral agent.

СНАРТER III.

Of the right of inheritance and of making a testamentary disposition.

In the preceding chapter, we have found the inception of the right of property in a moral principle of our nature, that susceptibility of moral impressions which is common to all mankind; and have pursued its progress in natural principles, to its general reception, a right of transfer, and its final consummation, in the permanent and exclusive right of the individual; but the right has universally been carried farther, to the right of the owner to make a testamentary disposition, to direct who shall succeed to his property after his death, and to the right of inheritance and succession in next of kin to the deceased. We shall now enquire, how far these rights are founded on natural principles, and how far they are consistent with each other.

Judge Blackstone, who held that the permanent right of property in any one was not a natural, but a mere civil right, consistently with that doctrine tells us, *" All property must therefore cease upon death, considering men as absolute individuals, unconnected with civil society; for then, by the principles before established, the next immediate occupant would acquire a right in all the deceased possessed; but as under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation,-which

*2 Comm. 10.

is a kind of secondary law of nature-has either given the dying person a power of continuing his property, by disposing of his possession by will, or in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in and declares who shall be the successor, representative, or heir of the deceased;" and he further adds,-" The right of inheritance, and descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view, that it has nature on its side; yet we often mistake for nature, what we find 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 a mere civil right.*

The author seems to have been not a little confused upon this subject. He has reckoned the right of private property among the absolute rights, which he says belongs to every individual, whether in society or out of it, and says it is probably derived from nature. Yet he appears to suppose, that in its progress before it could become permanent, it ceased to be a natural, and became a mere civil right. Believing it, therefore, to have become a mere civil right, the creature of civil institutions, he very consistently supposes, that thereafter every legitimate mode of acquisition and disposal, the transfer of the right and mode by which it passes from one to another, must originate solely in the same institutions.

But it has been clearly proved, that the right of property originates in natural principles, independent of civil institutions, and is permanently established in society by the laws of nature, which are the sure foundation of all institutions, civil and political. It is therefore a reasonable conclusion, that the laws of nature reach also future acquisitions and disposals, and embrace the cases under consideration, to the exclusion of that constitution, which, as the author well observes, would be productive of endless disturbances; and that the almost universal

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law of every nation upon this subject is, in fact, a secondary law of nature, in this sense, that it follows and is a species of that primary law, which establishes the right of property itself;-and I am persuaded, that it will be found on enquiry, that on this foundation rests the right of the possessor to dispose of his property by will, and the right of the children and next of kin to inherit. Civil institutions, have only confirmed and modified these rights. The right to inherit, is indeed a qualified and subordinate right, subject to the right and occasions of the predecessor.

I am happy to be able to oppose to the author of the Commentaries two authorities of the first respectability. Mr. Christian, in a note on the passage last cited says*"I am obliged to differ from the learned Judge and all writers upon general law, who maintain that children have no better claim by nature to succeed to the property of their deceased parents than strangers, and that the preference given to them, originates solely in political establishments. I know no other criterion, by which we can determine any rule or obligation to be founded in nature, than by its universality, and by inquiring whether it has not in all countries and ages, been agreeable to the feelings, affections, and reason of mankind." And Vattel, in his treatise on the law of nations,† lays it down as a fixed principle, that Every man may naturally choose the person to whom he would leave his wealth after his death, as long as his right is not limited by an indispensable obligation; as, for instance, that of providing for the subsistence of his children. The children have also naturally the right of succeeding in an equal proportion to the property of their father."

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Our first enquiry will be concerning the early and general acknowledgment of these rights. In every nation, among whom property as a provision for the future has been an object of pursuit, the right of the children to succeed to the property of their deceased parents, is found in their customs, and confirmed by their civil institutions. Neither authentic history nor tradition reaches the origin of those customs and institutions.

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In the history of the Jews, the most ancient history extant, the right of inheritance is constantly spoken of as a thing well known, and the right of making a testamentary disposition, or of a man to appoint his heir, is frequently implied, and that long before the law of Moses. Abraham is introduced saying,— "Thou hast given me no seed, and lo, one born in my house shall be my heir ;*-alluding to his steward Eliezer ;—the meaning is, that for want of children he had appointed Eliezer to be his heir. "And the word of the Lord came unto him, saying, this shall not be thine heir, but he that shall come forth of thine own bowels shall be thine heir." The following passages also imply, or clearly express, the right of making a testamentary disposition. "And Abraham gave all that he had to Isaac ; but to the sons of the concubines, which Abraham had, he gave gifts, and sent them away from Isaac his son, while he yet lived, eastward into the eastern country." If this was a transaction between the living, it was nevertheless an appointment by the parent, how his property should be enjoyed by his children after his death. Of the same nature was the gift made by Jacob, just before his death, to his son Joseph. "Moreover I have given to thee one portion above thy brethren, which I took from the Amorite with my sword and my bow."

In the laws of Moses, given some centuries after, inheritance is often mentioned and alluded to as a well known right, which we must suppose had been long established by custom; for the Jews had not before, any written laws or any civil institutions, except their customs. But no general rule or precept is in that law given on the subject.-There are but two instances, of regulating inheritances, and those only partial. One case

is, if a man have two wives, one beloved and the other hated, and they have children, both the beloved and the hated, and the first-born be her's who was hated, then it shall be, when he maketh his sons to inherit, he may not make the son of the beloved first-born before the son of the hated, who is indeed the first-born; but he shall acknowledge him the first born by giving him a double portion of all that he hath; for he is the

* Genesis, Ch. 15. † Ch. 25. Ch. 48.

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