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CHAPTER VIII: The Methods of Transferring Property, Contracts, Succession, Testaments. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

Edition used:

Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER VIII

The Methods of Transferring Property, Contracts, Succession, Testaments.

I. Property may be transferred, either by the voluntary deed of the former proprietor, or without any deed of his, by appointment of law either natural or civil: and in each of these ways it is transferred either among the living, or upon the event of death.

By the deed of the proprietor among the living, property is transferred either gratuitously in donations; or for valuable consideration in commerce, wherein a price, or goods of equal value, or rights, are transferred in consideration of it. This power of alienating, we formerly shewed, is included in the right of property. We treat of contracts and commerce hereafter.

II. By the deed of the proprietor upon the event of death property is transferred in testaments or last-wills. According to the law of nature “any declaration of a man’s will how his goods should be disposed of upon the event of his death,” is a valid testament; provided there be sufficient documents or proof made of this will. For that of which no proof can be made must be deemed as if it were not.1

The nature of property itself, and the known intention of mankind in their acquiring goods beyond their own use, that they may contribute to the happiness of such as are dearest to them, shew that the wills of the deceased which contain nothing iniquitous should be observed. ’Tis cruel and inhuman, and destructive to industry to hinder men to transfer as they incline what they have acquired by their innocent labours, and that upon any contingency. It would be disagreeable and often highly inconvenient to oblige men while they are living, and perhaps in good health, to make irrevocable conveyances of their property to their kinsmen <or friends>: It would also be cruel to deprive the dying of this satisfaction that their acquisitions should be of advantage to their <kinsmen or> friends: it would be inhuman <and unjust> toward the surviving friends, the heirs or legatees, to frustrate or intercept the kindnesses intended them by the deceased. Without regard therefor to the metaphysical subtilities of such as object, that ’tis absurd men should then be deemed to will and act when they become incapable of will or action, we conclude that the law of nature grants this power of disposing by will.2

But as many obligations both of a perfect kind, and such as are pretty near of equal sanctity, must be discharged out of our goods, all just debts must be paid, <damages repaired,> our children, or indigent parents maintained: wills are therefor justly made void as far as they interfere with these obligations. Nay tho’ there were no surviving parents or children, ’tis reasonable that other near indigent kinsmen, who have given no just cause for their being thus neglected, should be admitted to certain shares of the fortune of the deceased, even contrary to an inhuman capricious will. The law of nature too as well as civil laws invalidate any thing in wills which may be detrimental to the community; and enjoin that wills be made with such solemn forms {and circumstances} as may be necessary to prevent forgeries: and, where these forms are omitted without necessity, deems the will to be void.

III. Property is transferred among the living, even against the will of the proprietor, by appointment of <natural> law, for the performance of whatever the proprietor was strictly bound to perform, and yet declined. This branch will be more fully explained when we treat of contracts, and the rights arising from damage done either injuriously or without a crime{, and the manner of prosecuting our just rights* }.

Upon the event of death, without any deed of the proprietor, property is transferred by the law in the successions to the intestate.3 The natural grounds of which are these: ’tis well known that the intention of almost all mens acquisitions beyond their own use, is to profit those whom they love. This universally known intention of mankind is a continual declaration of their will <where nothing opposite is clearly testified>: now according to the general temper of mankind, our children and near kinsmen are dearest to us, and ’tis for them we universally endeavour to obtain not only the necessary supports, but even the pleasures and ornaments of life. Nay {God and} nature, by making these tyes of blood bonds also of love and goodwill, seems to have given our children and kinsmen if not a perfect {claim or} right, yet at least one very near to perfect, to obtain not only to the necessary supports, but even the conveniencies of life from their wealthy parents or kinsmen, unless they have forfeited it by their vitious behaviour. ’Tis therefor cruel to deprive men of this general consolation upon the event of sudden death, against which no man can take certain precautions, that the fruits of their industry shall fall to their children or kinsmen. And ’tis plainly cruel and unjust to defeat these rights of children and kinsmen which {God and} nature have given them <and cheat the just expectations of benevolence from kinsmen>.

Nay where the custom has prevailed of admitting children and kinsmen to succeed; ’tis justly presumed that this was the very intention of the deceased <if there is not any witness against it>. And this right of succession has the same foundation in justice with testaments.

Where there are no children or very near relations, like arguments of humanity would plead for friends, if it were known that any such had been singularly dear to the deceased. But where by custom or law the remotest kinsmen are preferred to friends; ’tis presumable that this was the intention of the person deceased, unless proof can be made of his hatred to his kinsmen. The causes of this law or custom prevailing every where, are these; that nature almost universally endears our kinsmen to us; that ’tis easy to compute the degrees of kindred, but impossible those of friendship; and that we so frequently see that men who seemed most to delight in the company of friends and not of kinsmen, yet when they declare their own will about their goods, they leave them almost always to kinsmen.

Kinsmen should succeed according to their proximity, those of equal degrees equally. First our children, among whom grandchildren by a child deceased should be admitted, at least to the share their parents would have had: nay sometimes humanity would appoint them a greater share, where many such orphans are in straits. Along with children some share is due to indigent parents, at least as to the necessaries of life; nay <good> brothers in distress should have some share. When there are no children or parents surviving, brothers and sisters <surviving>, with the children of any such deceased, at least for their parents share, should be admitted: and when none such survive, cousin-germans by brothers or sisters, and their posterity.

IV. The constitution and civil laws and customs of some states may require that a far larger share of the goods of persons deceased should go to sons or other heirs male, than what goes to daughters, or to females in the same degrees with the males, and to the eldest of males beyond what goes to the younger. And yet there can scarce be any reason for that vast difference made on these accounts in many nations. The law of nature scarce makes any difference among persons in equal degrees on account of sex or seniority: nor does it establish the lineal succession, where some one must always as it were sustain the person of the deceased and succeed to his real estate. This succession is wholly a{* } human contrivance, often absurd and iniquitous. In the first degree all other differences yield to that of the sex. But in the second and remoter degrees, both the preeminence of sex in the successors themselves and seniority, <and even the closeness of relationship> give place to the preeminence of sex and the seniority of the deceased parent, so that an {infant-} grand-daughter or great grand-daughter <or even the infant daughter of the latter> by an eldest son deceased takes place of a grandson <or of a great grandson> {of mature years and wisdom} by a second son, nay of the second son himself <of mature years and wisdom>.4 And the like happens among nephews and nieces and their children, in succeeding to the fortunes of their uncles{: and in the successions of cousins-germain or more remote}.

[1. ]On the first three paragraphs, see System 2.8.7, vol. I, p. 352.

[2. ]In the corresponding page of System (2.8.7, vol. I, p. 354), Hutcheson adds a note referring to “some improper use of metaphysicks in this subject” and to the notes on Pufendorf, De iure nat. 4.10, by Jean Barbeyrac.

[* ]{Chap. XV of this book.}

[3. ]See the corresponding section of System 2.8.8, vol. I, pp. 355–57.

[* ]{This lineal succession to private fortunes has manifestly been introduced by the Feudal laws of the Lombards.}

[4. ]Here the translator follows System (p. 357) more closely than the Latin text.