After the death of an individual, how ought his property to be disposed of?
The legislature should have three objects in view:---1st, To provide for the subsistence of the rising generation; 2dly, To prevent the pain of disappointment; 3dly, To promote the equalization of fortunes.
Man is not a solitary being. With few exceptions, every man is surrounded by a larger or smaller circle of companions, united to him by the ties of relationship, marriage, friendship, or services---who in fact share with him the enjoyment of the property which by right belongs exclusively to him. His fortune is commonly, with regard to many of them, the sole source of their subsistence. To prevent the calamities of which they would become the victims, if death, which deprives them of their friend, should also deprive them of the succour which they derive from his fortune, would require a knowledge of what they habitually enjoy, and in what proportion they participate in it. But as these are facts which it would be impossible to establish but by direct proofs---without entering upon embarrassing procedures and infinite disputes, it has been found necessary to refer to general presumptions, as the only base upon which a decision can be established. The habitual part of each survivor, in the possessions of the deceased, may be presumed from the degree of affection which ought to subsist between them; and this degree of affection may be presumed from the proximity of relationship.
If this proximity were the sole consideration, the law of successions would be very simple. In the first degree, with respect to you, are all those who are connected with you, without any intermediate person---your wife, your husband, your father, your mother, and your children. In the second degree, all those whose connexion with you requires the intervention of a single person, or a single couple of intermediate persons---your grandfathers and grandmothers, your brothers or sisters, and your grandchildren. In the third degree come those whose connexion supposes two intermediate generations---your great-grandfathers, your great-grandmothers, your great-grandchildren, your uncles and aunts, nephews and nieces.
But though this arrangement may possess every possible perfection on the side of simplicity and regularity, it would not well answer the political and moral object. It does not answer better to the degree of affection of which it might be thought to furnish a presumptive proof; and would not accomplish the principal object, which is to provide for the wants of the rising generations. Let us therefore leave this genealogical arrangement for the adoption of one founded upon utility. It consists in constantly giving to the descending line, however long, the preference to the ascending or collateral line---in giving the preference infinitely to the descendants of each parent, over all those who cannot be reached without taking another step in the ascending line.
It will happen, however, that the presumptions of affection or of necessity, which serve as the foundation of these rules, will often be defective in practice; and that consequently the rules themselves will diverge from their object. But the power of making a will, as we shall see, offers an efficacious remedy to the imperfection of the general law; and this is the principal reason for preserving it.
Thus much for general principles. But how can they be applied in detail, when it is necessary to decide among a crowd of competitors?
The model of a law upon this subject, will supply the place of a multitude of discussions:
Article I. Let there be no distinction between the sexes. Let what is said with regard to the one, be understood with, regard to the other. The portion of the one shall always be equal to the portion of the other.
Reason---Good of equality. If there be any difference, it ought to be in favour of the weakest---in favour of the females, who have more wants, fewer means of acquisition, and are less able to make use of the means they have. But the strongest have had all the preference. Why? Because the strongest have made the laws.
Article II. After the death of the husband, the widow shall keep a moiety of the common property, unless otherwise provided for by the marriage-contract.
Article III. The other moiety shall be distributed in equal portions among the children.
Reasons: 1. Equality of affection on the part of the father. 2. Equality of co-occupation on the part of the children. 3. Equality of wants. 4. Equality of all imaginable reasons on the one side and on the other.
Differences of age, temperament, talent, strength, &c. may produce some difference with respect to wants in point of fact; but it is not possible for the law to appreciate them: it is for the father to provide for them by means of his right of making a will.
Article IV. If a child die before its father leaving children, his portion shall be distributed among them in equal portions; and so on for all their descendants to infinity.
Remarks.---The distribution by roots, instead of by branches, is preferred for two reasons:---1. In order to prevent the pain of disappointment. That the portion of the elder should be diminished by the birth of each younger child, is a natural event, by which expectation ought to regulate itself. However, in general, when one of the children begins to exercise its reproductive power,---that of the father is generally nearly exhausted. At this period, the children ought to believe themselves arrived at the boundary of the diminutions that their respective portions ought to experience. But if each little grandson or little granddaughter produce a diminution equal to that produced by a son or daughter, the diminution would have no limits; there would be no certain grounds upon which to form a plan of life. 2. Grandchildren have for their immediate resource the property of their deceased father. Their custom of co-occupation detached from their grandfather has been exercised by preference, if not exclusively, upon the funds of paternal industry. It may be added, that they have, in the goods of their mother and of her parents, a resource in which the other children of their grandfather have no share.
Article V. If there be no descendants, the property shall go in common to the father and mother.
Remarks.---Why to the descendants before others?---1. Superiority,of affection. Every other arrangement would be contrary to the paternal feelings. We love those better who depend upon us, than those upon whom we depend. It is more pleasant to govern than to obey. 2. Superiority of wants. It is certain that our children could not exist without us, or some one who should take our place. It is probable that our parents might exist without us, because they have existed before us.
Why should the succession pass to the father and mother, rather than to the brothers and sisters?---1. The relationship being more immediate, a superior affection is presumed. 2. It is a recompense for services rendered, or rather an indemnity for the pains and expenses of education. What forms the relationship between my brother and myself? Our common relation to the same father and the same mother. What renders him more dear to me than any other companion with whom I have passed an equal portion of my life? It is because he is more dear to those who have my first affections. It is not certain that I am indebted to him for any thing, but it is certain that I owe every thing to them. Hence, upon all occasions in which the stronger titles of my children do not intervene, I owe them those indemnities to which a brother cannot pretend.
Article VI. If either of the two be dead, the portion of the deceased shall go to his descendants, in the same manner as it would have gone to the proprietor's own relations.
Remarks.---In poor families which only possess household furniture, it is more desirable that the whole should pass to the surviving father or mother, with the charge of providing for the support of the children. The expenses of the sale, and the dispersion of the property, would ruin the survivor, whilst the portions, too small to serve as a capital, would soon be dissipated.
Article VII. In default of such descendants, the property shall go entirely to the survivor.
Article VIII. If both be dead, the property shall be divided, as before directed, among their descendants.
Article IX. But in such manner, that the portion of the half blood shall only be the half of the portion of the whole blood, when there is any such.
Reason---Superiority of affection. Of the two bonds which attach me to my brother, there is only one which attaches me to my half brother.
Article X. In default of relations in the foregoing degrees, the property shall be applied to the revenue.
Article XI. But on condition of distributing the interest as an annuity among all the relations in the ascending line, in whatever degree, in equal portions.
Remarks.---This part of the law may either be established or not, according to the condition of the country with regard to taxes; but I have been unable to discover any solid objection against this fiscal resource.
The collateral relation who would be excluded, it may be said, may be in want; but this want is an incident too casual for the foundation of a general rule. They have for their natural resource the property of their respective ancestors; and they cannot have fixed their expectations or their plan of life upon this foundation.
On the side even of the uncle, the expectation of inheriting from a nephew can be but feeble, and a positive law would suffice to prevent its existence, or to extinguish it without violence. The uncle has not the titles of the father or grandfather. It is true, that in case of the death of these, the uncle may have taken their place, and filled the place of a father to his nephew. This is a circumstance which deserves the attention of the legislator. The power of leaving legacies may answer the end; but this means of obviating the inconveniences of the general law would be null in case the nephew should die before he became of age---before he had the faculty of making a will. If, therefore, it be desirable to soften this fiscal regulation, the first departure from the rule ought to be in favour of the uncle, either in relation to the principal or the interest.
Article XII. In making division among many heirs, the mass ought to be put up for public sale, saving the right to make any other arrangement, if they are agreed.
Remark.---This is the only method of preventing community of goods---an arrangement of which we have elsewhere shown the pernicious consequences. The goods of inheritance, which may possess a value in affection, will find their true price from the competition of the heirs, and will turn to the common advantage, without occasioning those disputes which produce durable animosities in families.
Article XIII. In arranging the sale and division, every thing shall be referred to the oldest male, of full age, saving to the law to make other arrangements, for fear of misconduct, upon cause stated.
Remark.---Women in general are less apt in affairs of interest and embarrassment, than men. But a certain woman, in particular, may possess a superior aptitude, indicated by the general wish of the relations: she ought to obtain the preference.
Article XIV. In default of a male of full age, every thing should be referred to the guardian of the oldest male, saving the discretionary power given in the preceding article.
Article XV. The succession which falls to the revenue for want of natural heirs, shall in like manner be sold by public auction.
Remark.---Government is incapable of managing the greater portion of specific goods; their management costs too much; they yield little, and are liable to be destroyed. This is a truth which has been established almost to demonstration by Adam Smith.
It appears to me that this project of a law is simple, concise, easy to be understood; that it is little favourable to fraud, to diversity of interpretations; in short, that it is analogous to the affections of the human heart, to the habitual inclinations which arise from the social relations, and that consequently it is calculated to conciliate the approbation of those who judge from feeling, and the esteem of those who can appreciate reason.
Those who reproach this plan With being too simple, and discover, that at this price the law would no longer be a science, may find wherewith to satisfy, and even to astonish themselves, in the labyrinth of the English common law upon successions.
To give to foreigners an idea of these difficulties, it would be necessary to begin by a dictionary altogether new to them; since, when they should see the absurdities, the subtleties, the cruelties, the frauds, which abound in this system, they would imagine that they were reading a satire, and that it was intended to insult a nation, on other accounts so justly renowned for its wisdom,
On the other hand, it would be proper to show what has reduced this evil within sufficiently narrow limits: this is the right of making a will. It is only in successions upon intestacy, that it is necessary to pass through the tortuous routes of the common law. These wills may therefore be compared to the arbitrary pardons which correct the harshness of the penal laws.
[Back to:]