was equally defirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by fale, grant, or conveyance: which may be confidered either as a continuance of the original pof-, [ 10 ] feffion which the first occupant had; or as an abandoning of the thing by the prefent owner, and an immediate fucceffive occupancy of the fame by the new proprietor. The voluntary dereliction of the owner, and delivering the poffeffion to another individual, amount to a transfer of the property; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be yested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property and Titius being the only or firft man acquainted with fuch my intention, immediately steps in and seises the vacant poffeffion: thus the confent expreffed by the conveyance gives Titius a good right against me; and poffeffion, or occupancy, confirms that right against all the world befides (2).

THE most univerfal and effectual way of abandoning property, is by the death of the occupant: when, both the actual poffeffion and intention of keeping poffeffion ceafing, the property which is founded upon fuch poffeflion and intention, ought also to cease of course. For, naturally speaking, the inftant a man ceases to be, he ceases to have any dominion: elfe, if he had a right to difpofe of his acquifitions one moment beyond his life, he would also have a right to direct their difpofal for a million of ages after him; which would be highly abfurd and inconvenient. All property muft there

(2) Upon whatever principle the right to property is founded the power of giving and transferring feems to follow as a natural confequence; if the hunter and the fisherman exchange the produce of their toils, no one ever difputed the validity of the contract, or the continuance of the original title. This does not feem to be aptly explained by occupancy, for it cannot be faid that in fuch a cafe there is ever a vacancy of poffeflion.

fore ceafe upon death, confidering men as abfolute indivi duals, and unconnected with civil fociety: for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased poffeffed. But as, under civilized governments which are calculated for the peace of mankind, fuch a conftitution would be productive of endless disturbances, the univerfal law of almost every nation (which is a kind of fecondary law of nature) has either given the dying perfon a power of continuing his property, by difpofing of his poffeffions by will; or, in cafe he neglects to difpofe of it, or is not permitted to make any difpofition [11] at all, the municipal law of the country then steps in, and declares who fhall be the fucceffor, reprefentative, or heir, of the deceased; that is, who alone fhall have a right to enter upon this vacant poffeffion, in order to avoid that confusion, which it's becoming again common would occafion *. And farther, in cafe no teftament be permitted by the law, or none be made, and no heir can be found fo qualified as the law requires, ftill, to prevent the robuft title of occupancy from again taking place, the doctrine of efcheats is adopted in almost every country; whereby the fovereign of the state, and thofe who claim under his authority, are the ultimate heirs, and fucceed to those inheritances, to which no other title can be formed.

THE right of inheritance, or defcent to the children and relations of the deceafed, feems to have been allowed much earlier than the right of devifing by teftament. We are apt to conceive at first view that it has nature on it's fide; yet we often mistake for nature what we find established by long and inveterate cuftom. It is certainly a wife and effectual, but clearly a political, establishment; fince the permanent right of property, vefted in the ancestor himself, was no na

k It is principally to prevent any vacancy of poffeffion, that the civil law confiders father and fon as one perfon; fo that upon the death of either, the in

heritance does not fo properly defcend, as continue in the hands of the furvivor. Ff. 28. 2. 11.

tural,

tural, but merely a civil, right (3). It is true, that the tranfmiflion of one's poffeffions to pofterity has an evident tendency to make a man a good citizen and a useful member of fociety: it fets the paffions on the fide of duty, and prompts a man to deferve well of the public, when he is fure that the reward of his fervices will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the

(3) I cannot agree with the learned Commentator, that the permanent right of property vefted in the ancestor himself (that is, for his life), is not a natural, but merely a civil right.

I have endeavoured to fhew (Note 1,) that the notion of property is univerfa!, and is fuggefted to the mind of man by reafon and nature, prior to all pofitive inftitutions and civilized refinements. If the laws of the land were fufpended, we should be under the fame moral and natural obligation to refrain from invading each other's property, as from attacking and affaulting each other's perfons. And I am obliged also to differ from the learned Judge, and all writers upon general law, who maintain, that children have no better claim by nature to fucceed to the property of their deceafed parents than ftrangers; and that the preference given to them, originates folely in political establishments. (See the Editor's diftinctions between natural and pofitive laws, Vol. i. p. 58. n. 7.) I know no criterion by which we can determine any rule or obligation to be founded in nature, than it's univerfality; and by inquir ing whether it is not, and has not been, in all countries and ages, agreeable to the feelings, affections, and reafon of mankind. The affection of parents towards their children is the most powerful and univerfal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that any one is fo deftitute of that affection and reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.

Hæredes fuccefforefque fui cuique liberi, feems not to have been confined to the woods of Germany, but to be one of the first laws in the code of nature; though pofitive inftitutions may have thought it prudent to leave the parent the full difpofition of his property after his death, or to regulate the fhares of the children, when the parent's will is unknown.

right of inheritance may feem, it is probable that it's immediate original arose not from speculations altogether fo delicate and refined, and, if not from fortuitous circumstances, at least from a plainer and more fimple principle. A man's children or nearest relations are usually about him on his [12] death-bed, and are the earliest witnesses of his decease. They became therefore generally the next immediate occupants, till at length in procefs of time this frequent ufage ripened into general law. And therefore alfo in the earliest ages, on failure of children, a man's fervants born under his roof were allowed to be his heirs; being immediately on the spot when he died. For we find the old patriarch Abraham exprefsly declaring, that "fince God had given him no feed, his ftew "ard Eliezer, one born in his houfe, was his heir."

WHILE property continued only for life, teftaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeafible, and the children or heirs. at law were incapable of exclufion by will. Till at length it was found, that fo ftrict a rule of inheritance made heirs difobedient and head-ftrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their eftates as the exigence of their families required. This introduced pretty generally the right of dif pofing of one's property, or a part of it, by teftament; that is, by written or oral inftructions properly witnessed and authenticated, according to the pleasure of the deceased; which we therefore emphatically stile his will. This was established in fome countries much later than in others. With us in England, till modern times, a man could only difpofe of one third of his moveables from his wife and children; and, in general, no will was permitted of lands till the reign of Henry the eighth; and then only of a certain portion: for it was not till after the restoration that the power of devifing real property became fo universal as at present (4).

1 Gen. xv. 3.

(4) By 32 Hen. VIII. c.1. all focage lands were made devisable, and two thirds of lands of military tenure: when these at the re

ftoration

WILLS therefore and testaments, rights of inheritance and fucceffions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requi fites to make a teftament completely valid: neither does any thing vary more than the right of inheritance under different national establishments. In England particularly, this di- [ 13 ] versity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the fucceffion to property, and how futile every claim must be, that has not it's foundation in the positive rules of the state. In perfonal estates the father may fucceed to his children; in landed property he never can be their immediate heir, by any the remoteft poffibility: in general only the eldeft fon, in fome places only the youngest, in others all the fons together, have a right to fucceed to the inheritance: in real estates males are preferred to females, and the eldest male will ufually exclude the reft; in the division of perfonal eftates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed.

THIS one confideration may help to remove the fcruples of many well-meaning perfons, who fet up a mistaken conscience in oppofition to the rules of law. If a man disinherits his fon, by a will duly executed, and leaves his estate to a stranger, there are many who confider this proceeding as contrary to natural juftice; while others fo fcrupulously adhere to the fuppofed intention of the dead, that if a will of lands be attested by only two witneffes instead of three, which the law requires, they are apt to imagine that the heir is bound in confcience to relinquifh his title to the devifee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the fon had by nature a right to fucceed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the fucceffion of

ftoration were converted into focage tenure, all lands became devifable, fome copyholds excepted. P. 375.