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 XIII.

TO THE EDITOR OF THE SCOTS CHRONICLE.

SIR,

November 11. 1796.

The right of making a testament, and of devising property after death, seems scarcely to have any foundation in the natural principles of justice. When a man is dead, his dominion over external objects must be completely at an end. He can no longer exercise any of these powers and rights which, from their very nature, must now be exinguished. But the true operations of a testament are to continue the rights of a proprietor after he has ceased to exist, to allow him to alienate after he is obviously incapable to perform any action whatever; and to postpone those rights which are immediately vested in his natural heirs, and which are founded on the natural principles of equity, to some supposed right still attached to the deceased proprietor. It would appear, however, that when all connection between a person and the things of this world is dissolved, the rights founded on this connection can no longer subsist.

But, although the right of property cannot exist after death, it remains entire till that period. When a man feels his approaching dissolution, he has it in his power to give the possession of his whole property to any person whom he may wish to favour, and he may stipulate with that person, that, in case of his recovery, it shall be again restored to him. Even if this condition were not so formally announced as to create a strictly legal obligation, a refusal to re-deliver the property, would appear one of the most criminal instances of ingratitude; and mankind would feel an inclination to explain the circumstances of the transaction, in such a manner as to prevent the kindness which the one party had expressed to the other from turning out to his own detriment. It is to such donations, in the contemplation of death, that we must look for the origin of that power, now recognized by the laws of the greater part of modern Europe, of leaving property by will. In examining, however, the institutions of different nations respecting this power, we do not find the same universal agreement as in the rules of natural succession; the differences which may be remarked are fundamental, testaments being supported in some countries, and altogether unknown in others.

By the Gentoo laws, so far from any testament being permitted, no man is allowed, even during his life, to divide his property unequally among his sons, unless in cases particularly specified* .

In many parts of Greece, testaments were totally discountenanced. They were first introduced at Athens by the laws of Solon; being permitted, however, only to such as had no children† , and who adopted those strangers whom they called to their inheritance‡ .

In Rome, previously to the laws of the Twelve Tables, testaments could be made only in two ways, either by adoption, which, by bringing a stranger into the family, entitled him to all the privileges of a son,—or by procuring a law of the people for each particular case. Afterwards, to avoid the trouble attending this form, they made use of a fictitious sale, in presence of five persons representing the principal tribes; and this, called Testamentum per æs et libram, was the only mode permitted, except in extraordinary cases, during the continuance of the Republic∥ .

Among the northern nations that invaded the Roman Empire, testaments were totally unknown§ ; and some traces of the mode in which wills were introduced, although, in this respect, they were undoubtedly much influenced by an imitation of the Roman jurisprudence, are discernible in the institutions of their descendants.

In Scotland, land cannot, at this moment, be devised by will, although the same effect is produced by a pretended alienation intervivos, reserving to the former possessor a liferent and a power of recal* : nor has a testator a complete power even over his moveable property, unless he dies without leaving either a wife or children† .

The ancient law of England was similar to that of Scotland. “No will was permitted of lands till the reign of Henry VIII; and then only for a certain portion. For it was not till after the Restoration, that the power of devising real property became so universal as at present‡ .” The power of devising moveables was also restricted, as in Scotland, to a third part; the portions of the wife and children being called their “reasonable parts.” This continued the common law of England in the reign of Charles I.; but having been gradually infringed, it subsisted, at the time of the Revolution, only in the province of York, the principality of Wales, and the city of London. It was finally abolished, and the power of making testaments rendered universal, by statutes of William and Mary, and of George I.§ .

“This variety, then,” to use the words of a celebrated lawyer, “may serve to evince, that the right of making wills, and disposing of property after death, is merely a creature of the civil state, which has permitted it in some countries, and denied it in others* .”

Having thus, Sir, shown, that testaments are not supported from the natural feelings of justice and equity, I shall proceed to enquire, whether they are conducive to the general good? The remark which first presents itself, and which, perhaps, ought to be decisive of this question, is, that they are among the most frequent and most powerful causes of inequality of property. When a man has amassed a great fortune, he often becomes defirous of being the founder of a great and opulent family. In pursuance of this desire, he singles out one of his children, one of his relations, or one of his friends, and, leaving to him the whole wealth which he has accumulated, cuts off all his other heirs from his inheritance. His vanity is flattered by considering himself as the source of future splendour, the fountain from which the stream of future grandeur is destined to slow; he enjoys, by anticipation, the respect and gratitude which he foolishly imagines his successors will pay to his memory; he even associates to himself that admiration which attends magnificence, but which the slightest view of human nature might convince him is never extended beyond the person of the actual possessor. It is to such childish vanities, that he often sacrifices his paternal tenderness, his attachment to his other relations, the interests even of those whom he loves.

Some men are induced to disappoint the expectations of their natural heirs, not by this family pride, but by a fond attachment to particular individuals. It will, however, I believe, be seldom found, that testaments are made in favour of the most needy or most deserving of the testator’s relations or friends. Such partialities usually arise from accident, or from unreasonable prejudices, and are nourished by pliancy of temper, or by unworthy dissimulation; not unfrequently, they are the fruits of slight attentions received from the great and powerful. The notice of the rich is more flattering, and too often makes a greater impression on the heart, than even the kind attachment of the poor. The occasional gratification of vanity and pride, in the minds of a great part of mankind, outweighs years of important services and of unremitted attention. And thus testaments often add to those enormous fortunes, which, for the good of mankind, ought in every way, not inconsistent with justice, to be diminished. In as far as inequality of property is contrary to the well-being of society, in so far ought we to condemn testaments, by which, with scarcely a pretence of equity, this inequality is directly promoted. In Holland, where, although testaments are permitted, unequal divisions of property at death are more unusual than in any other country; industry, sobriety, and comfort, are more generally diffused than in any other part of Europe. And this may in a great measure, be accounted for from the right of primogeniture being totally unknown, and from the right of making unequal divisions of property by testament being very seldom exercised. In Switzerland, the same circumstances occur, and the same effects are observable on the morals and happiness, of the people* . I am, Sir,

Your’s, &c.

Sidney.

[* ]Code of Gentoo laws, chap. ii. sect. 10. & 11.

[† ]Plut. Life of Solon.

[‡ ]Petit Leg. Att.

[∥ ]Hein. Inst. lib. II. tit. 10. Esprit de Loix. chap. xxvii.

[§ ]Blackst. Com. book II. chap. xxxii.

[* ]Erskine, book III. tit. ix. sect. 15.

[† ]— book III. tit. viii. sect. 20.

[‡ ]Blackst. Com. book II. chap. i.

[§ ]— book II. chap. xxxii.

[* ]Blackst. Com. book II. chap. xxxii.

[* ]I have been informed that the late king of Prussia prohibited testaments in his dominions, and that the effects are already discernible in the diffusion of property, and in the amelioration of the condition of the people.