poetic fictions; but their relations are evidence of what the laws and customs were at the times they wrote, and the general opinion of their high antiquity.

These rights must have been long established in ancient Italy; for we find them both regulated in the laws of the twelve tables. The first law of the fifth table is,—“ After the death of the father of a family, let the disposition be made of his estate, and his appointment concerning the guardianship of his children be observed."-The second-"If he dies intestate, and has no children, let his nearest relation be his heir; if he have no near relation, let a man of his name be his heir," that is, of his family name, the family being supposed to be descended from one common stock. Here the right of making a disposition, by will, is necessarily supposed to be already known and long established,-and the right of the next of kin to the successon seems to have been extended, rather than introduced by this law.

Among the ancient Germans, according to Tacitus, children were heirs and successors to their parents. If there were no children, then the next of kin succeeded, first the brothers of the deceased; if no brothers, then the uncles of the father's side, and next the uncles of the mother's side. Honors were also hereditary in families, as they were in Gaul and Britain, in the time of Julius Cæsar ;-but Tacitus says that wills were not in use among the Germans. I think, however, there is reason to question the accuracy of his information on this point. For with the Anglo Saxons, in addition to the law of inheritance found among their German ancestors, the custom of making a testamentary disposition, although under certain restrictions, prevailed, and there is every reason to believe that they brought this custom with them from the forests of Germany, rather than that they adopted it from the miserable remnant of ancient Britons, whom they had reduced to a state of the most abject slavery.

It was, perhaps, unnecessary to be thus particular; for I believe no nation where property is considered to be absolute

* 160 to 166 + De Moribus Germanorum.

in the owner, has been found, however rude, among whom the right of children to inherit to their deceased parents has not prevailed, as well as the right of the possessor to make some sort of testamentary disposition. A custom in any nation, has its origin in the common feelings and sentiments of the people; and if we find the same custom prevailing universally among all nations, it is a proof that the same feelings and sentiments are universal, and may generally be admitted as a proof that the custom is a law of nature upon the subject which it embraces. It is true, that circumstances very general may produce a perversion of feeling and sentiment, on certain subjects, equally general. Such were the ancient laws of war, which gave to the conqueror, a right to take the lives of the vanquished, and consequently, on sparing their lives as a favor, to hold or dispose of them in perpetual slavery— a perversion which might easily be accounted for, if here necessary.

To a final decision, whether a custom be founded in natural principles, it is necessary to bring it to the unerring test, its tendency to general utility. The question is, if it relate to a particular society only-Is its general tendency to promote the interest of that society without injury to others? If it relates to the whole human race,-Is its general tendency to promote the interest, the happiness of mankind? The good tendency of the laws and customs which we have been advocating, is seen, felt, and acknowledged by all. Judge Blackstone, and all the writers upon general law, fairly acknowledge, that they are necessary to the general good, the general peace and happiness of mankind, although they contend that they are mere civil institutions. But we may go farther and connect both these rights with natural principles. We will first examine the right to make a testamentary disposition ;—and I think it is fairly and fully included in that sole and despotic dominion, which, as Judge Blackstone expresses it, one man claims and exercises over the external things of this world, to the exclusion of every other individual in the universe; and which we have clearly shewn to be a natural right. It cannot be contended that this dominion, so despotic and absolute, is only a right of use for the present

necessities, convenience, or pleasure of the possessor.-No, it comprehends equally in itself, the right equally natural, of a disposition of the property by sale, gift, or exchange, to take effect immediately or at any future time, or upon contingency either in possession or reversion, in his life time, or at his death, which may lawfully be the contingency. Nor can it be justly subject to any other limitations, than such as the public good requires, a limitation to which every right of man is subject by the laws of social nature. But as we have seen, so far is the public good from opposing this claim of right, that it imperiously requires its allowance.

The natural right of the children and kindred, especially of the children, to succeed to the inheritance of the deceased, is, if possible, still more clear. The union of parents and children forms a society the most intimate and the most purely natural. The reciprocal right and duties, parental and filial, are derived solely from the relations of nature, and are in their origin independent of the modifications of art or of civil institutions. Not only the members of the several families, but others forcibly feel what I have ventured to call the individuality of these little communities of nature. The perception may be resembled to that of the members to form the body. All the members of a family, one of these little communities, feel the tenderest interest in the good or evil, moral or natural, that befalls each other;-no one hesitates when he observes an instance of a contrary disposition, to pronounce it unnatural. When a child is arrived at maturity ready to branch into a new family, it is perceived, from the natural connexion, to be the duty of the parent, according to his ability, and with a due regard to the subsisting or growing relations of the family, to contribute to the advancement of such child. If a parent, in common cases, neglect to contribute, every one conceives him to be guilty, though not of a civil, yet of a moral crime ;—He is at once believed to be under the dominion of avarice, or some other vicious passion, that has stifled the voice of nature. On the whole we may with propriety adopt the elegant and forcible language of Mr. Christian upon the subject. "The affection of parents toward their children is the most powerful and universal principle, which nature has implanted

in the human breast, and it cannot be conceived, even in the most savage state, that any one is so destitute of that affection and of reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of a deceased parent.

When there are no children, the same natural relations, differing in degree, extend to the next of kin, whether ascending, descending, or collateral, who on the same natural principles have a right to succeed as heirs to the possessions of the deceased. In proportion to the distance the relations are less strongly marked; and although the inconvenience arising from the numerous claimants that may appear in the more remote degrees, has sometimes been thought a good reason for a limitation; yet it has generally been agreed to allow the claim as far as the relations can be traced. The relations, however remote, clearly carry a right preferable to that of a total stranger. If then, the right of property be a natural right; if those are natural rights, that commence in natural principles, then the right of making a testamentary disposition, and the right of the children and next of kin, according to their several degrees, to succeed to their parent and kinsman, are natural rights; they have their inception in natural principles, are admitted and approved by the universal sentiments of mankind, and they abide the sure test of all the laws of nature, their general tendency to promote the peace and happiness of human society.

It may be suggested, however, by some, that if the right of the children be founded in the laws of nature, those laws are immutable, and, consequently, the right; which must necessarily abridge, or wholly supersede the parent's right of disposal in this case. The laws of nature are determined in their application by the existing relations. The relations remaining under the same combinations and modifications, the result will be the same, and, consequently, the same law will invariably apply. The relations are subject to different arrangements.-They may be enlarged, diminished, or wholly cease. In all these cases the result will vary, and, consequently, the law will vary in application precisely as the relations themselves; or we may say, the cases vary, and therefore come under different rules of the same general law.

The parent, during his life, has a full right to direct the use and disposal of his property. That he is under a natural, or moral obligation to provide for his household and to advance his children with his property as his occasions admit, and their circumstances require, no more effects his rights than any moral obligation affects the freedom of moral action. The right of the children, during the life of the parent, constitute claims of a moral nature only, of the admission of which, he is by nature made the sole judge. There are other claims on his property beside those of his children. His property is subject civilly, to all claims of right both of the public and individuals—it is subject to other claims of a moral nature, of which he is also the sole judge. He may think it his duty to give some of his property for the public use, for the relief of distress, for the encouragement of learning and virtue, the reward of humanity or exemplary instances of filial piety. It is subject during his life to all his occasions, natural, civil, and moral, and a disposition to take effect after his death is no more inconsistent with the rights of the children than a disposition for the same purposes, while living. In such cases a parent may misjudge, he may do wrong, but it is generally an affair of too much delicacy to endure the divisions of the civil law.

On the death of the parent, the relation in which he stood while living, being determined, the right of the children, as far as respects the property of which no disposition has been made remains, and that right, which before was only contingent and of a moral nature, is now perfected and realized; and when the just demands of others are satisfied, all the children have an equal claim and an equal right to the remaining property of their common parent. If nature dictates any preference, it is generally in favor of the younger, and not of the elder, branch. It appears not unreasonable, that when any of the younger children are left in a state of helpless infancy, the common property left by the parent, should assist in some degree in making the provision for their support and education, which, were he living, he would consider not as an advancement, but an indispensable obligation of nature.

Thus, upon a careful examination of the right of descent,