The Online Library of Liberty

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• To the Right Honourable the Earl of Lauderdale.
• Letters of Sidney. On Inequality of Property.
• Letter I.: To the Editor of the Scots Chronicle.
• Letter II.: To the Editor of the Scots Chronicle.
• Letter III.: To the Editor of the Scots Chronicle.
• Letter IV.: To the Editor of the Scots Chronicle.
• Letter V.: To the Editor of the Scots Chronicle.
• Letter VI.: To the Editor of the Scots Chronicle.
• Letter VII.: To the Editor of the Scots Chronicle.
• Letter VIII.: To the Editor of the Scots Chronicle.
• Letter IX.: To the Editor of the Scots Chronicle.
• Letter X.: To the Editor of the Scots Chronicle.
• Letter XI.: To the Editor of the Scots Chronicle.
• Letter XII.: To the Editor of the Scots Chronicle.
• Letter XIII.: To the Editor of the Scots Chronicle.
• Letter XIV.: To the Editor of the Scots Chronicle.
• Letter XV.: To the Editor of the Scots Chronicle.
• Letter XVI.: To the Editor of the Scots Chronicle.
• Letter XVII.: To the Editor of the Scots Chronicle.
• Letter XVIII.: To the Editor of the Scots Chronicle.
• The Effects of War On Commercial Prosperity.

LETTER XI.

TO THE EDITOR OF THE SCOTS CHRONICLE.

SIR,

November 4. 1796.

When a man dies, his natural right of property seems to be completely at an end; and if it did not instantly devolve on another, his possessions would be considered as unappropriated, and consequently as belonging to the first occupant. In no country, however, with which we are at all acquainted, does this take place; the extinction of the right in one person, is always the commencement of the right in another, who is, by custom or law, pointed out as the proper successor. Many authors have considered this right of succession, as arising altogether from the positive regulations of society, and have consequently asserted, that whatever rules are established, are perfectly just, having been enacted by that legislative power which must, in all cases, decide on what is most expedient for the public* . This opinion is undoubtedly favourable to new regulations respecting succession; for what has been established may certainly be altered, whenever that power, which had the right to enact the law, becomes convinced, that it is contrary to the general good, which it was intended to promote. But the rules of succession, however in other respects they may vary from each other in different countries, all agree in this, that the effects of the deceased pass to those with whom he was most intimately connected while alive. Such a coincidence can scarcely arise from investigations and inferences respecting utility, but will, probably, be found to proceed from more obvious considerations; from those principles of natural law which are imprinted on the human heart, which may be obscured, but are never altogether obliterated, by the passions, prejudices, and follies of men.

† In rude ages, property is held in common by all the members of the family, and the father is nothing more than the administrator. When the father dies, the eldest of the family succeeds to the administration of the common good, but the property is, as formerly, vested in the whole. At this time, there is not properly any transference of possessions by death; the former rights are continued, but no new right is begun. Accordingly, in the early law of many nations, we find that children, who have left their father’s house, and whose use of the common property has been terminated, have no part of the succession; while strangers, when adopted, and, by that means, brought into the family, succeed along with the other members. In civilized countries, however, where alienation, and various other acts of uncontrouled power over property, are daily practised, the idea of common possession is lost; and the father, being considered as the sole proprietor, each succession is the beginning, not the continuation, of a right. But this change is brought about very gradually, and the rule of members of a family, that is, in ordinary cases, nearest relations, inheriting, is continued as an old established custom.

The rule, thus introduced, is supported from other natural feelings. In most instances, the nearest relations have been partly supported from the funds of the deceased, and would be greatly impoverished by his death, if his property were to pass to strangers. Their situation is different from that of others; by their succeeding, no person can be reduced to poverty, or forced to alter his way of life; but if they were cut off from the inheritance, they would be in a worse situation than formerly, and they would be at once deprived of their fortune and their friend. They have also been much connected with the deceased; they have interchanged offices of kindness with him, and they are associated with him in the minds of the neighbours, so much, that the transfer of the property to them seems a more natural, and a less violent change, than if it were to devolve on strangers. To this we may add, that, being usually around his deathbed, they have it in their power to begin their possession immediately after his death, even before that event can be known to such other persons as might wish to acquire the inheritance.

When, from these considerations, it has become customary for relations to succeed, we are naturally led, by habit, to consider it as a just rule, and without attending to the particular sympathies and associations from which the early decisions proceeded, to apply it to all cases which afterwards occur. The same rules are farther supported, in civilized nations, by those considerations of public utility from which some authors have deduced their origin. Nothing could be so inconvenient, or could cause such disorders in society, as laying open successions to the first occupant; and it is perhaps impossible to devise a rule of more general and certain application, than that founded on consanguinity, which is already in force, and which is recommended to mankind by so many natural feelings, and by immemorial custom.

The principles, then, of legal succession, seem very similar to those on which the right of property itself is founded; and we ought to be cautious in admitting exceptions to principles so strongly recommended to our attention. Particular circumstances, however, have introduced many irregularities, which appear to me neither just nor expedient. In my next letter, I propose to examine the most important of these deviations, and to endeavour to show that they ought all to be abandoned, and that legal succession should again be brought back to its great original principle, the equal participation of the property of the deceased among his nearest relations.—I am,

Sir,
Your’s, &c.

Sidney.

[* ]Blackstone’s Commentaries, Book II. chap. 1.

[† ]I must again repeat my acknowledgements to Professor Millar’s lectures.