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author of Tract 90, above cited. Our Reformers, he assumies, considered themselves (as they certainly did) to be in agreement with 'catholic antiquity;' and then, having laid down what-in his opinion—Catholic Antiquity decides, he proceeds to wrest the language of our Reformers into a conformity with this; just as the other Writer forces their language into an agreement with his view of Scripture.
It is curious to observe that this is, almost word for word, the plea upon which the Arians of the last century endeavoured to justify themselves in subscribing the Formularies of our Church. Those Formularies, they admitted, contained some expressions which seemed to countenance (what they called) the vulgar notions about the Trinity; but then the Protestant churches require men to comply with their Forms merely on account of their being agreeable to Scripture, and consequently in such sense only wherein they are agreeable to Scripture ;'l and as it seemed evident to them (the Arians) that the Athanasian doctrine was quite repugnant to Scripture, they necessarily concluded à priori,' that it was not, to them, the just meaning of our Formularies.
THE fundamental question upon this subject is, whether Wills
1 are of natural or of adventitious right? that is, whether the right of directing the disposition of property after his death belongs to a man in a state of nature, and by the law of nature, or whether it be given him entirely by the positive regulations of the country he lives in ?
The immediate produce of each man's personal labour, as the tools, weapons, and utensils, which he manufactures, the tent or hut that he builds, and perhaps the flocks and herds which he breeds and rears, are as much his own as the labour was which he employed upon them, that is, are his property naturally and absolutely; and consequently he may give or leave them to
i Clarke's Introduction to The Scripture-doctrine of the Trinity.
whom he pleases, there being nothing to limit the continuance of his right, or to restrain the alienation of it.
But every other species of property, especially property in land, stands upon a different foundation.
We have seen, in the Chapter upon Property, that, in a state of nature, a man's right to a particular spot of ground arises from his using it, and his wanting it; consequently ceases with the use and want : so that at his death the estate reverts to the community, without any regard to the last owner's will, or even any preference of his family, further than as they become the first occupiers after him, and succeed to the same want and use.
Moreover, as natural rights cannot, like rights created by act of parliament, expire at the end of a certain number of years ; if the testator have a right, by the law of nature, to dispose of his property one moment after his death, he has the same right to direct the disposition of it for a million of ages after him ; which is absurd.
The ancient apprehensions of mankind upon the subject were conformable to this account of it: for, wills have been introduced into most countries by a positive act of the State ; as by the Laws of Solon into Greece; by the Twelve Tables into Rome; and that not till after a considerable progress had been made in legislation, and in the economy of civil life. Tacitus relates, that amongst the Germans they were disallowed; and what is more remarkable, in this country, since the Conquest, lands could not be devised by will, till within little more than two hundred years ago, when this privilege was restored to the subject, by an act of parliament, in the latter end of the reign of Henry the Eighth.
No doubt, many beneficial purposes are attained by extending the owner's power over his property beyond his life, and beyond his natural right. It invites to industry; it encourages marriage; it secures the dutifulness and dependency of children : but a limit must be assigned to the duration of this power. The utmost extent to which, in any case, entails are allowed by the laws of England to operate, is during the lives in existence at the death of the testator, and one-and-twenty years beyond these; after which, there are ways and means of setting them aside.
From the consideration that wills are the creatures of the municipal law which gives them their efficacy, may be deduced a determination of the question, whether the intention of the testator in an informal will be binding upon the conscience of those, who, by operation of law, succeed to his estate. By an informal will, I mean a will void in law for want of some requisite formality, though no doubt be entertained of its meaning or authenticity: as, suppose a man make his will, devising his freehold estate to his sister's son, and the will be attested by two only, instead of three, subscribing witnesses ; would the brother's son, who is heir at law to the testator, be bound in conscience to resign his claim to the estate, out of deference to his uncle's intention ? or, on the contrary, would not the devisee under the will be bound, upon discovery of this flaw in it, to surrender the estate, suppose he had gained possession of it, to the heir at law ?
Generally speaking, the heir at law is not bound by the intention of the testator: for the intention can signify nothing, unless the person intending have a right to govern the descent of the estate. That is the first question. Now this right the testator can only derive from the law of the land: but the law confers the right upon certain conditions, with which conditions he has not complied; therefore, the testator can lay no claim to the power which he pretends to exercise, as he hath not entitled himself to the benefit of that law, by virtue of which alone the estate ought to attend his disposal. Consequently, the devisee under the will, who, by concealing this flaw in it, keeps possession of the estate, is in the situation of any other person who avails himself of his neighbour's ignorance to detain from him his property. The will is so much waste paper, from the defect of right in the person who made it. Nor is this catching at an expression of law to pervert the substantial design of it: for I apprehend it to be the deliberate mind of the legislature, that no will should take effect upon real estates, unless authenticated in the precise manner which the statute describes. Had testamentary dispositions been founded in any natural right, independent of positive constitutions, I should have thought differently of this question : for then I should have considered the law rather as refusing its assistance to enforce the right of the devisee, than as extinguishing or working any alteration in the right itself.
And after all, I should chuse to propose a case, where no consideration of pity to distress, of duty to a parent, or of gratitude to a benefactor, interfered with the general rule of justice.
The regard due to kindred in the disposal of our fortune (except the case of lineal kindred, which is different) arises either from the respect we owe to the presumed intention of the ancestor from whom we received our fortunes, or from the expectations which we have encouraged. The intention of the ancestor is presumed with greater certainty, as well as entitled to more respect, the fewer degrees he is removed from us; which makes the difference in the different degrees of kindred. For instance, it may be presumed to be a father's intention and desire, that the inheritance which he leaves, after it has served the turn and generation of one son, should remain a provision for the families of his other children, equally related and dear to him as the oldest. Whoever, therefore, without cause, gives away his patrimony from his brother's or sister's family, is guilty not so much of an injury to them, as of ingratitude to his parent. The deference due from the possessor of a fortune to the presumed desire of his ancestor, will also vary with this circumstance: whether the ancestor earned the fortune by his personal industry, acquired it by accidental successes, or only transmitted the inheritance which he received.
Where a man's fortune is acquired by himself, and he has done nothing to excite expectation, but rather has refrained from those particular attentions which tend to cherish expectation, he is perfectly disengaged from the force of the above reasons, and at liberty to leave his fortune to his friends, to charitable or public purposes, or to whom he will : the same blood, proximity of blood, and the like, are merely modes of speech, implying nothing real, nor any obligation of themselves.
There is always, however, a reason for providing for our poor relations, in preference to others who may be equally necessitous, which is, that if we do not, no one else will; mankind, by an established consent, leaving the reduced branches of good families to the bounty of their wealthy alliances.
The not making a will is a very culpable omission, where it is attended with the following effects: where it leaves daughters, or younger children, at the mercy of the oldest son ; where it
distributes a personal fortune equally amongst the children, although there be no equality in their exigencies or situations ; where it leaves an opening for litigation ; or lastly, and principally, where it defrauds creditors; for, by a defect in our laws, which has been long and strangely overlooked, real estates are not subject to the payment of debts by simple contract, unless made so by will; although credit is, in fact, generally given to the possession of such estates : he, therefore, who neglects to make the necessary appointments for the payment of his debts, as far as liis effects extend, sins, as it has been justly said, in his grave; and if he omits this on purpose to defeat the demands of his creditors, he dies with a deliberate fraud in his heart.
Anciently, when any one died without a will, the bishop of the diocese took possession of his personal fortune, in order to dispose of it for the benefit of his soul, that is, to pious or charitable uses. It became necessary, therefore, that the bishop should be satisfied of the authenticity of the will, when there was any, before he resigned the right which he had to take possession of the dead man's fortune in case of intestacy. In this way wills, and controversies relating to wills, came within the cogni. sance of ecclesiastical courts; under the jurisdiction of which, wills of personals (the only wills that were made formerly) still continue, though, in truth, no more now-a-days connected with religion, than any other instruments of conveyance. This is a peculiarity in the English laws.
Succession to intestates must be regulated by positive rules of law, there being no principle of natural justice whereby to ascertain the proportion of the different claimants : not to mention that the claim itself, especially of collateral kindred, seems to have little foundation in the law of nature.
These regulations should be guided by the duty and presumed inclination of the deceased, so far as these considerations can be consulted by general rules. The statutes of Charles the Second, commonly called the Statutes of Distribution, which adopt the rule of the Roman law in the distribution of personals, are sufficiently equitable. They assign one third to the widow, and two thirds to the children ; in case of no children, one half to the widow, and the other half to the next of kin ; where neither widow nor lineal descendants survive, the whole to the next of kin, and to be equally divided amongst kindred of equal degree,