tally 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 the parent's pecuniary means it is at his or her 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 settlements are an obstacle) it is in the power of parents to disinherit even their children, and leave their 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 would have done, if he had done anything; and secondly, the hardship, to those who lived with their parents and partook in their opulence, of being cast down from the enjoyments of wealth into poverty and privation. There is some force in both these arguments. The law ought, no doubt, * See, for admirable illustrations of this and many kindred points, Mr. Maine's pro found work on Ancient Law and its relation to Modern Ideas. to do for the children or dependents of an intestate, whatever it was the duty of the parent or protector to have done, so far as this can be known by any one besides himself. Since, however, the law cannot decide on individual claims, but must proceed by general rules, it is next to be considered what these rules should be. We may first remark, that in regard to collateral relatives, it is not, unless on grounds personal to the particular individual, the duty of any one to make a pecuniary provision for them. No one now expects it, unless there happens 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. With respect to the more remote degrees of collateral relationship, the point is not very likely to be disputed. Few will maintain that there is any 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. But the reason of the case applies alike to all collaterals, even in the nearest degree. Collaterals have no real claims, but such as may be equally strong in the case of non-relatives; and in the one case as in the other, where valid claims exist, the proper mode of paying regard to them is by bequest. 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, 1 exaggerated. One of the most binding of all obligations, that of not bringing children into the world unless they can be maintained in comfort during childhood, and brought up with a likelihood of supporting themselves when of full age, 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. 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 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 The duties of parents to their capable of being maintained, that to a children are those which are indis- strong nature which has to make its solubly attached to the fact of causing way against narrow circumstances, to the existence of a human being. The have known early some of the feelings parent owes to society to endeavour to and experiences of wealth, is an admake the child a good and valuable vantage both in the formation of chamember of it, and owes to the children racter and in the happiness of life. to provide, so far as depends on him, But allowing that children have a just such education, and such appliances ground of complaint, who have been and means, as will enable them to start brought up to require luxuries which with a fair chance of achieving by they are not afterwards likely to obtain, their own exertions a successful life. and that their claim, therefore, is good To this every child has a claim; and to a provision bearing some relation to I cannot admit, that as a child he the mode of their bringing up; this, too, has a claim to more. There is a case is a claim which is particularly liable in which these obligations present to be stretched further than its reasons themselves in their true light, without warrant. The case is exactly that of any extrinsic circumstances to disguise the younger children of the nobility and landed gentry, the bulk of whose | it. But property is only a means to fortune passes to the eldest son. The an end, not itself the end. Like all other sons, who are usually numerous, other proprietary rights, and even in a are brought up in the same habits of greater degree than most, the power luxury as the future heir, and they of bequest may be so exercised as to receive, as a younger brother's portion, conflict with the permanent interests generally what the reason of the case of the human race. It does so, when, dictates, namely, enough to support, not content with bequeathing an esin the habits of life to which they are tate to A, the testator prescribes that accustomed, themselves, but not a wife on A's death it shall pass to his or children. It really is no grievance eldest son, and to that son's son, and to any man, that for the means of so on for ever. No doubt, persons marrying and of supporting a family, have occasionally exerted themselves he has to depend on his own exertions. more strenuously to acquire a fortune A provision, then, such as is ad- from the hope of founding a family in mitted to be reasonable in the case perpetuity; but the mischiefs to society of illegitimate children, of younger of such perpetuities outweigh the children, wherever in short the justice value of this incentive to exertion, and of the case, and the real interests of the incentives in the case of those the individuals and of society, are the who have the opportunity of making only things considered, is, I conceive, large fortunes are strong enough withall that parents owe to their children, out it. A similar abuse of the power and all, therefore, which the state of bequest is committed when a person owes to the children of those who who does the meritorious act of leaving die intestate. The surplus, if any, property for public uses, attempts to I hold that it may rightfully appro- prescribe the details of its application priate to the general purposes of the in perpetuity; when in founding a community. I would not, however, be place of education, (for instance) he supposed to recommend that parents dictates, for ever, what doctrines shall should never do more for their children be taught. It being impossible that than what, merely as children, they any one should know what doctrines have a moral right to. In some cases will be fit to be taught after he has it is imperative, in many laudable, and been dead for centuries, the law ought in all allowable, to do much more. not to give effect to such dispositions For this, however, the means of property, unless subject to the perafforded by the liberty of bequest. It petual revision (after a certain interval is due, not to the children but to the has elapsed) of a fitting authority. 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. are § 4. Whether the power of bequest should itself be subject to limitation, is an ulterior question of great 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 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 favour 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 being 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 favour of one child, though it does not shock so directly the idea of justice. I cannot admit that 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. 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 or her 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, perse- hands of the owner himself, in carrying on * In the case of capital employed in the any of the operations of industry, there are strong grounds for leaving to him the power of bequeathing to one person the whole of the funds actually engaged in a single enterprise. It is well that he should be enabled to leave the enterprise under the control of whichever of his heirs he regards as best fit ted to conduct it virtuously and efficiently; and the necessity (very frequent and incon venient under the French law) would be obviated, of breaking up a manufacturing its chief. In like manner it should be alor commercial establishment at the death of lowed to a proprietor who leaves to one of his successors the moral burthen of keeping up an ancestral mansion and park or pleasure-ground, to bestow along with them as much other property as is required for their sufficient maintenance. 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 over-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 personal purpose but ostentation or improper power, would become much less numerous, there would be a great multiplication of persons 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 having leisured classes is entitled to expect from them, 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 beneficial manner than at present. A large portion also of the accumulations of successful industry would probably be devoted to public uses, either by direct bequests to the State, or by the endowment of institutions; as is already done very largely in the United States, where the ideas and practice in the matter of inheritance seem to be unusually rational and beneficial.* * "Munificent bequests and donations for public purposes, whether charitable or educational, form a striking feature in the modern history of the United States, and especially of New England. Not only is it common for rich capitalists to leave by will a portion of their fortune towards the endowment of national institutions, but individuals during their lifetime make magnificent grants of money for the same objects. There is here no compulsory law for the equal partition of property among children, as in France, and on the other hand, no custom of entail or primogeniture, as in England, so that the affluent feel themselves at liberty to share their wealth between their kindred and the public; it being im § 5. The next point to be consi dered is, whether the reasons on which the institution of property rests, are applicable to all things in which a right of exclusive ownership is at present recognised; and if not, on what other grounds the recognition is defensible. The essential principle of property being to assure to all persons what they have produced by their labour and accumulated by their abstinence, this principle cannot apply to what is not the produce of labour, the raw material of the earth. If the land derived its productive power wholly from nature, and not at all from industry, or if there were any means of discriminating what is derived from each source, it not only would not be necessary, but it would be the height of injustice, to let the gift of nature be engrossed by individuals. The use of the land in agriculture must indeed, for the time being, be of necessity exclusive; the same person who has ploughed and sown must be permitted to reap: but the land might be occupied for one season only, as among the ancient Germans; or might be periodically redivided as population increased: or the State might be the universal landlord, and the cultivators tenants under it, either on lease or at will. But though land is not the produce of industry, most of its valuable qualities are so. Labour is not only requisite for using, but almost equally so for fashioning the instrument. Considerable labour is often required at the commencement, to clear the land for cultivation. In many cases, even when possible to found a family, and parents having frequently the happiness of seeing all their children well provided for and independent long before their death. I have seen a list of bequests and donations made during the last thirty years for the benefit of religious, charitable, and literary institutions in the State of Massachusetts alone, and they amounted to no less a sum than six millions of dollars, or more than a million sterling."-Lyell's Travels in America, vol. i. p. 263. In England, whoever leaves anything, beyond trifling legacies, for public or beneficent objects, when he has any near relatives living, does so at the risk of being declared insane by a jury after his death, or at the least, of having the property wasted in a Chancery suit to set aside the will. |