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The only question remaining is, how this property became actually vested; or what it is that gave a man an exclusive right to retain in a permanent manner that specific land which before belonged generally to everybody, but particularly to nobody.
And, as occupancy gave the right to the temporary use of the soil, so occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it.
Occupancy is the thing by which the title was in fact originally gained. Every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.
Property, both in land and moveables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it; for then it becomes, naturally speaking, of public right once more, and is liable to be again appropriated by the next occupant. So, if one is possessed of a jewel, and casts it into the sea, or on a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize it to his own use ; but if he hides it privately in the earth or other secret place, and it is discovered, the finder acquires no property therein ; for the owner hath not by this act declared any intention to abandon it, but rather the contrary; and if he loses or drops it by accident, it cannot be collected from thence that he designed to quit the possession; and, therefore, in such a case, the property still remains in the loser, who may claim it again of the finder.
And this is the doctrine of the law of England with relation to treasure-trove. But this method of one man's abandoning
his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the beginnings of civil society, and necessarily ceased among the complicated interests and artificial refinements of established governments. In these it was found that what became inconvenient or useless to one man, was highly convenient and useful to another, who was ready to give in exchange for it some equivalent that was equally desirable to the former proprietor. Thus mutual convenience introduced traffic, and the reciprocal transfers of property by sale, grant, or conveyance; which may be considered either as a continuance of the original possession which the first occupant had, or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor.
The voluntary dereliction of the owner, and delivering the possession 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 vested 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 first man acquainted with such my intention, immediately steps in and seizes the vacant possession. Thus the consent expressed by the conveyance gives Titius a good right against me; and possession or occupancy confirms that right against all the world besides.
The most universal and effectual way of abandoning property is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion ; else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him, which would be highly absurd. All property must, therefore, cease upon death, considering men as absolute individuals, and unconnected with civil society; for then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilised governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has given the dying person a power of continuing his property, by disposing of his possessions by will ; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased : that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion. And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country : whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be found.
The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive, at first view, that it has nature on its side; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment: since the permanent right of property, vested in the ancestor himself, was no natural, but merely a civil right. It is true, that the transmission of one's possessions to posterity has an evident tendency to make a man a good citizen, and a useful member of society : it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services 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 right of inheritance may seem, it is probable that its immediate original arose, not from speculations altogether so refined, and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They became, therefore, generally the next immediate accupants, till at length this frequent usage ripened into general law. And therefore also, in the earliest ages, on failure of children, a man's servants, born under his roof, were allowed to be his heirs, being immediately on the spot when he died.
While property continued only for life, testaments were useless and unknown; and, when it became inheritable, the inheritance was long indefeasible, and the children or heirsat-law were incapable of exclusion by will. Till at length it was found that so strict a rule of inheritance made heirs disobedient, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, by written or oral instructions, properly witnessed and authenticated according to the pleasure of the deceased : which is, therefore, emphatically styled his will.
This was established in some countries much later than in others. In England, till modern times, a man could only dispose 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 VIII., and then only of a certain portion ; for it was not till after the Restoration that the power of devising real property became so universal as it is at present.
Wills, therefore, and testaments, rights of inheritance and successions, 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 requisites to make a testament completely valid ; neither does anything vary more than the right of inheritance under different national establishments.
This consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, many consider this proceeding as contrary to natural justice; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only one witness instead of two, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand, the son had by nature a right to succeed to his father's lands; or as if, on the other hand, the owner was by nature entitled to direct the succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor, the estate should again become common, and be open to the next occupant, unless otherwise ordered for the sake of civil peace by the positive law of society.
The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, attended with certain requisites, appoint; and, in defect of such appointment, to go to some particular person, who appears to be the heir-at-law. Hence