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of the feelings and experiences of wealth, is on the whole an advantage both in the formation of character and in the happiness of life. But ordinary rules of conduct are not framed to suit strong natures, and it is mostly true, that children have a just ground of complaint, who have been brought up more luxuriously than they are afterwards enabled to live. Their claim, therefore, is good to a provision bearing some relation to the mode of their bringing up. But this too is a claim which, though just in itself, is particularly liable to be stretched further than its reasons warrant. The case is exactly that of the younger children of the nobility and landed gentry, the bulk of whose fortune passes to the eldest son. The other sons, who are usually numerous, are brought up in the same habits of luxury as the future heir, and they receive, as a younger brother's portion, generally what the reason of the case dictates, namely, enough to support, in the habits of life to which they are accustomed, themselves, but not a wife and children. It really is no grievance to any man, that for the means of marrying and of supporting a family, he has to depend on his own exertions.
A provision, then, such as is admitted to be reasonable in the case of illegitimate children, of younger children, wherever, in short, the justice of the case, and the real interests of the individuals and of society, are the only things considered, is, I conceive, all that parents owe to their children, and all, therefore, which the state owes to the children of those who die intestate. The surplus, if any, I hold that it may rightfully appropriate to the general purposes of the community. I would not, however, be so far misunderstood as to be supposed to recommend that parents should not do more for their children than what, merely as children, they have a moral right to. In some cases it is imperative, in many laudable, and in all allowable, to do much more. For this, however, the means are afforded by the liberty of bequest. It is due, not to the children but to the parents, that they should have the power of showing marks of affection, of requiting services and sacrifices, and of bestowing their wealth according to their own preferences, or their own judgment of fitness.
$ 4. Whether the power of bequest should itself be subject to limitation, is an ulterior question of no little importance. Unlike inheritance ab intestato, bequest is one of the attributes of property; the ownership of a thing cannot be looked upon as complete without the power of bestowing it, at death or during life, at the owner's pleasure; and all the reasons which recommend that private property should exist, recommend pro tanto this extension of it. But property is only a means to an end, not itself the end. Like all other proprietary rights, and even in a greater degree than most, the power of bequest is liable to conflict with objects still more important. It does so, when, not content with bequeathing an estate to A, the testator prescribes that on A's death, it shall pass to his eldest son, and to that son's son, and so on forever. No doubt, persons have occasionally exerted themselves more strenuously to acquire a fortune, from the hope of founding a family in perpetuity; but the mischiefs to society of such perpetuities outweigh the value of this incentive to exertion, and the incentives in the case of those who have the opportunity of making large fortunes, are strong enough without it. A similar abuse of the power of bequest is committed when a person, who does the meritorious act of leaving property for public uses, attempts to prescribe the details of its application in perpetuity; when in founding a place of education (for instance) he dictates, forever, what doctrines shall be taught. It being impossible that any one should know what doctrines will be fit to be taught after he has been dead for centuries, the law ought not to give effect to such dispositions of property, unless subject to the perpetual revision (after a certain interval has elapsed) of a fitting authority.
These are obvious limitations. But even the simplest exercise of the right of bequest, that of determining the person to whom property shall pass immediately on the death of the testator, has always been reckoned among the privileges which might be limited or varied, according to views of expediency. The limitations, hitherto, have been almost solely in favor of children. In England the right is in principle unlimited, almost the only impediment being that arising from a settlement by a former proprietor, in which case the holder for the time cannot indeed bequeath his possessions, but only because there is nothing to bequeath, he having merely a life interest. By the Roman law, on which the civil legislation of the continent of Europe is principally founded, bequest originally was not permitted at all, and even after it was introduced, a legitima portio was compulsorily reserved for each child ; and such is still the law in some of the continental nations. By the French law since the Revolution, the parent can only dispose by will, of a portion equal to the share of one child, each of the children taking an equal portion. This entail, as it may be called, of the bulk of every one's property upon the children collectively, seems to me as little defensible in principle as an entail in favor of one child, though it does not shock so directly the sentiment of justice. It is questionable whether parents should be compelled to leave to their children even that provision which, as children, I have contended that they have a moral claim to. Children may forfeit that claim by general unworthiness, or particular ill-conduct to the parents; they may have other resources or prospects; what has been previously done for them, in the way of education and advancement in life, may fully satisfy their moral claim; or others may have claims superior to theirs. If they are of age and strength to provide, however humbly, for themselves, the maintenance of some authority in the parent by the power of disinheriting, is perhaps expedient. But however the case may be as to a mere provision, I hold that justice and expediency are wholly against compelling anything beyond. That a person should be certain from childhood of succeeding to a large fortune, independently of the good will and affection of any human being, is, unless under very favorable influences of other kinds, almost a fatal circumstance in his education.
The extreme restriction of the power of bequest in French law, was adopted as a democratic expedient, to break down the custom of primogeniture, and counteract the tendency of inherited property to collect in large masses. I agree in thinking these objects eminently desirable ; but the means used are not, I think, the most judicious. Were I framing a code of laws according to what seems to me best in itself, without regard to existing opinions and sentiments, I should prefer to restrict, not what any one might bequeath, but what any one should be permitted to acquire, by bequest or inheritance. Each person should have power to dispose by will of his whole property; but not to lavish it in enriching some one individual, beyond a certain maximum, which should be fixed sufficiently high to afford the means of comfortable independence. The inequalities of property which arise from unequal industry, frugality, perseverance, talents, and even opportunities, are inseparable from the principle of private property, and if we accept the principle, we must bear with these consequences of it; but I see nothing objectionable in fixing a limit to what any one may acquire by the mere favor of others, without any exercise of his faculties, and in requiring that if he desires any further accession of fortune, he shall work for it. I do not conceive that the degree of limitation which this would impose on the right of bequest, would be felt as a
burthensome restraint by any testator who estimated a large fortune at its true value, that of the pleasures and advantages that can be purchased with it; on even the most extravagant estimate of which, it must be apparent to every one, that the difference to the happiness of the possessor between a moderate independence and five times as much, is insignificant when weighed against the enjoyment that might be given, and the permanent benefits diffused, by some other disposal of the four fifths. So long indeed as the opinion practically prevails, that the best thing which can be done for an object of affection is to heap on him to satiety all the external good things of life, there might be little use in enacting such a law, even if it were possible to get it passed, since if there were the inclination, there would generally be the power of evading it. The law would be unavailing unless the popular sentiment went energetically along with it; which (judging from the tenacious adherence of public opinion in France to the law of compulsory division,) it would in some states of society and government be very likely to do, however much the contrary may be the fact in England and at the present time. If the restriction could be made practically effectual, the benefit would be great. Wealth which could no longer be employed in enriching a few, would either be devoted to objects of public usefulness, or if bestowed on individuals, would be distributed among a larger number. While those enormous fortunes which no one needs for any purpose but ostentation or improper power, would become much less numerous, there would be a great multiplication of families in easy circumstances, with the advantages of leisure, and all the real enjoyments which wealth can give, except those of vanity; a class by whom the services which a nation is entitled to expect from its leisured classes, either by their direct exertions or by the tone they give to the feelings and tastes of the public, would be rendered in a much more