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the decision of such questions many considerations beside those of political economy, it is not foreign to the plan of this work to suggest, for the judgment of thinkers, the view of them which most recommends itself to the writer's mind.
No presumption in favor of existing ideas on this subject is to be derived from their antiquity. In early ages, the property of a deceased person passed to his children and nearest relatives by so natural and obvious an arrangement that no other could ever have been thought of in competition with it. In the first place, they were usually present on the spot; they were in possession, and if they had no other title, had that, so important in an early state of society, of first occupancy. Secondly, they were already, in a manner, joint owners of his property during his life. If the property was in land, it had generally been conferred by the state on a family rather than on an individual ; if it consisted of cattle or movable goods, it had probably been acquired, and was certainly protected and defended, by the united efforts of all members of the family who were of an age to work or fight. Exclusive, individual property, in the modern sense, scarcely entered into the ideas of the time; and when the first magistrate of the association died, he really left nothing vacant but his own share in the division, which devolved on the member of the family who succeeded to his authority. To have disposed of the property otherwise, would have been to break up a little commonwealth, united by ideas, interest, and habits, and to cast them adrift on the world. These considerations, though rather felt than reasoned about, had so great an influence on the minds of mankind, as to create the idea of an inherent right in the children to the possessions of their ancestor; a right which it was not competent to himself to defeat. Bequest, in a primitive state of society, was seldom recognized ; a clear proof, were there no other, that property was conceived in a manner totally different from the conception of it in the present time.
But the feudal family, the last historical form of patriarchal life, has long perished, and the unit of society is not now the family or clan, composed of all the reputed descendants of a common ancestor, but the individual; or at most a pair of individuals, with their unemancipated children. Property is now inherent in individuals, not in families; the children, when grown up, do not follow the occupations or fortunes of the parent; if they participate in his pecuniary means, it is at his pleasure, and not by a voice in the ownership and government of the whole, but generally by the exclusive enjoyment of a part; and in this country at least (except as far as entails or other settlements are an obstacle) it is in his power to disinherit even his children, and leave his fortune to strangers. More distant relatives are in general almost as completely detached from the family and its interests as if they were in no way connected with it. The only claim they are supposed to have on their richer relations is to a preference, cæteris paribus, in good offices, and some aid in case of actual necessity.
So great a change in the constitution of society must make a considerable difference in the grounds on which the disposal of property by inheritance should rest. The reasons usually assigned by modern writers for giving the property of a person who dies intestate, to the children, or nearest relatives, are, first, the supposition that in so disposing of it, the law is more likely than in any other mode to do what the proprietor himself would have done, if he had done anything; and secondly, the hardship to those who lived with their parent and partook in his opulence, of being cast down from the enjoyments of wealth into poverty and privation.
There is force in both these arguments. The law certainly ought to do, for the children or dependents of an intestate, whatever it was the duty of the parent or protector to have done, but from accident or negligence or worse causes he failed to do. Whether it would be possible, by means of a public administrator of intestate estates, to take cognizance of special claims and see justice done in detail, is a question of some difficulty into which I forbear to enter. I shall only consider what might with best reason be laid down as a general rule.
We may first remark, that in regard to collateral relations, it is not, unless from special and peculiar causes, the duty of any one to make a pecuniary provision for them. No one now expects it, unless there happen to be no direct heirs; nor would it be expected even then, if the expectation were not created by the provisions of the law in case of intestacy. I see, therefore, no reason why collateral inheritance should exist at all. Mr. Bentham long ago proposed, and other high authorities have agreed in the opinion, that if there are no heirs either in the descending or in the ascending line, the property, in case of intestacy, should escheat to the state. There is no good reason why the accumulations of some childless miser should on his death (as every now and then happens) go to enrich a distant relative who never saw him, who perhaps never knew himself to be related to him until there was something to be gained by it, and who had no moral claim upon him of any kind, more than the most entire stranger. Where collaterals have real claims, those claims are personal, and the proper mode of paying regard to them is by bequest. That duty may be neglected, but is not more likely to be so in the case of relatives than of strangers, who may have just as strong claims of the same nature. If any near relatives, known to be such, were in a state of indigence, a donation, or a small pension, according to circumstances, might, in case of intestacy, be assigned to them when the state appropriated the inheritance. This would be a justice, or a generosity, which they do not experience from the present law, since that gives all to the nearest collaterals, however great may be the necessities of those more distant.
The claims of children are of a different nature; they are real, and indefeasible. But even of these, I venture to think that the measure usually taken is an erroneous one; what is due to children is in some respects underrated, in others, as it appears to me, exaggerated. One of the most binding of all obligations, that of not bringing children into the world unless they can be maintained in comfort, and brought up with a likelihood of its continuance, is both disregarded in practice and made light of in theory in a manner disgraceful to human intelligence. On the other hand, when the parent possesses property, the claims of the children upon it seem to me to be the subject of an opposite error. Whatever fortune a parent may have inherited, or still more, may have acquired, I cannot admit that he owes to his children, merely because they are his children, to leave them rich, without the necessity of any exertion. I could not admit it, even if to be so left were always, and certainly, for the good of the children themselves. But this is in the highest degree uncertain. It depends on individual character. Without supposing extreme cases, it may be affirmed that in a majority of instances the good not only of society but of the individuals would be better consulted by bequeathing to them a moderate, than a large provision. This, which is a common-place of moralists ancient and modern, is felt to be true by many intelligent parents, and would be acted upon much more frequently, if they did not allow themselves to consider less what really is, than what will be thought by others to be, advantageous to the children.
The duties of parents to their children are those which are indissolubly attached to the fact of causing the existence of a human being. The parent owes to society to
endeavor to make the child a good and valuable member of it, and owes to his children to provide so far as depends on him, such education, and such appliances and means, as will enable them to start with a fair chance of a successful life. To this every child has a claim; and I cannot admit, that as a child he has a claim to more. There is a case in which these obligations present themselves nakedly, without any extrinsic circumstances to disguise or confuse them : it is that of an illegitimate child. To such a child it is generally felt that there is due from the parent, the amount of provision for his welfare which will enable him to make his life on the whole a desirable one. I hold that to no child, merely as such, anything more is due, than what is admitted to be due to an illegitimate child ; and that no child for whom thus much has been done, has, unless on the score of previously raised expectations, any grievance, if the remainder of the parent's fortune is devoted to public uses, or to the benefit of individuals on whom in the parent's opinion it is better bestowed.
In order to give the children that fair chance of a desirable existence, to which they are entitled, it is generally necessary that they should not be brought up from childhood in habits of luxury which they will not have the means of indulging in after-life. This, again, is a duty often flagrantly violated by possessors of terminable incomes, who have little property to leave. When the children of rich parents have lived, as to a certain degree it is natural they should do, in habits corresponding to the scale of expenditure in which the parents indulge, it is generally the duty of the parents to make a greater provision for them, than would suffice for children otherwise brought up. I say generally, because even here there is another side to the question. It is a proposition quite capable of being maintained, that to a strong nature, which has to make its way against narrow circumstances, to have known early some VOL. I.