law of every nation upon this subject is, in fact, a secondary law of nature, in this sense, that it follows and is a species of that primary law, which establishes the right of property itself;—and I am persuaded, that it will be found on enquiry, that on this foundation rests the right of the possessor to dispose of his property by will, and the right of the children and next of kin to inherit. Civil institutions, have only confirmed and modified these rights. The right to inherit, is indeed a qualified and subordinate right, subject to the right and occasions of the predecessor.

I am happy to be able to oppose to the author of the Commentaries two authorities of the first respectability. Mr. Christian, in a note on the passage last cited says*—“I am obliged to differ from the learned Judge and all writers upon general law, who maintain that children have no better claim by nature to succeed to the property of their deceased parents than strangers, and that the preference given to them, originates solely in political establishments. I know no other criterion, by which we can determine any rule or obligation to be founded in nature, than by its universality, and by inquiring whether it has not in all countries and ages, been agreeable to the feelings, affections, and reason of mankind." And Vattel, in his treatise on the law of nations,† lays it down as a fixed principle, that "Every man may naturally choose the person to whom he would leave his wealth after his death, as long as his right is not limited by an indispensable obligation; as, for instance, that of providing for the subsistence of his children. The children have also naturally the right of succeeding in an equal proportion to the property of their father."

Our first enquiry will be concerning the early and general acknowledgment of these rights. In every nation, among whom property as a provision for the future has been an object of pursuit, the right of the children to succeed to the property of their deceased parents, is found in their customs, and confirmed by their civil institutions. Neither authentic history nor tradition reaches the origin of those customs and institutions.

*2 Comm. 11. n. 3. † B. 1. C. 20. s. 256.

In the history of the Jews, the most ancient history extant, the right of inheritance is constantly spoken of as a thing well known, and the right of making a testamentary disposition, or of a man to appoint his heir, is frequently implied, and that long before the law of Moses. Abraham is introduced saying,"Thou hast given me no seed, and lo, one born in my house shall be my heir ;*-—alluding to his steward Eliezer ;-the meaning is, that for want of children he had appointed Eliezer to be his heir. "And the word of the Lord came unto him, saying, this shall not be thine heir, but he that shall come forth of thine own bowels shall be thine heir." The following passages also imply, or clearly express, the right of making a testamentary disposition. "And Abraham gave all that he had to Isaac ; but to the sons of the concubines, which Abraham had, he gave gifts, and sent them away from Isaac his son, while he yet lived, eastward into the eastern country." If this was a transaction between the living, it was nevertheless an appointment by the parent, how his property should be enjoyed by his children after his death. Of the same nature was the gift made by Jacob, just before his death, to his son Joseph. "Moreover I have given to thee one portion above thy brethren, which I took from the Amorite with my sword and my bow."‡

In the laws of Moses, given some centuries after, inheritance is often mentioned and alluded to as a well known right, which we must suppose had been long established by custom; for the Jews had not before, any written laws or any civil institutions, except their customs. But no general rule or precept is in that law given on the subject.-There are but two instances, of regulating inheritances, and those only partial. One case is, if a man have two wives, one beloved and the other hated, and they have children, both the beloved and the hated, and the first-born be her's who was hated, then it shall be, when he maketh his sons to inherit, he may not make the son of the beloved first-born before the son of the hated, who is indeed the first-born; but he shall acknowledge him the first born by giving him a double portion of all that he hath; for he is the

*Genesis, Ch. 15. Ch. 25. Ch. 48.

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beginning of his strength; for the right of the first born is his.* This was agreeable to a well known custom among the Jews, and probably a custom of their ancestors in Mesopotamia, For we have an account of Jacob, many ages before, purchasing of his elder brother Esau, his birthright as something valuable in those times. This precept of the law is here given, not for the purpose of establishing the right of the first-born, already known, but to prevent partiality, which might induce the father to violate custom already established. The other instance is that of the daughters of Zelophehad. The father was dead leaving no sons, but daughters, who applied to Moses to be admitted to the inheritance of their father, whereupon the following law was given. "If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter, and if he have no daughters, then ye shall give his inheritance unto his brethren, and if he have no brethren, then ye shall give his inheritance unto his father's brethren, and if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family and he shall possess it; and it shall be to the children of Israel for a statute of judgment as the Lord commanded Moses",†

Before this law, it appears that, among the ancient Jews, daughters were in all cases excluded from the inheritance. The reasons of this exclusion may be found, partly in institutions peculiar to the Jews, and partly in customs common to the age, The nation were divided into tribes and families, a thing very common among the most ancient nations. The lands of their inheritance, were alotted, in distinct portions, to each tribe and family, and were on no account to pass from one tribe to another; but which, were the daughters generally admitted to the inheritance, might frequently happen, by their marriage into different tribes. To prevent this effect of the law recited above, a subsequent law ‡ was given, by which it was ordained, that every daughter that possesseth an inheritance in any tribe of the children of Israel, shall be wife unto one of a family of the tribe of her father, that the children of

* Deuteronomy 21. † Numbers 27. ‡ Numbers 36.

Israel may enjoy every man the inheritance of his fathers;neither shall the inheritance remove from one tribe to another tribe, but every one of the tribes of the children of Israel shall keep himself to his own inheritance.

There was another reason, not only with the Jews, but with the ancients generally, why daughters were excluded from the inheritance, especially where there were any sons. The continuance of the family name was considered as a matter of the utmost importance, and its extinction the greatest curse—a demonstration of the divine anger. But in the common course, the name could be continued in the male line only.*-The female, by her marriage, sunk her family name in that of her husband. It was also the custom for men to purchase their wives. The dowry, frequently mentioned, was not advanced by the father to the daughter or her husband, but by the husband to the father. The wife thus purchased was considered and treated little other, than a favorite slave. Thus Jacob served seven years for each of his two wives,-and David paid to Saul the dowry stipulated for his daughter Michel. This custom is frequently alluded to by Homer, the most ancient profane writer, and indeed by most ancient authors. I will cite but one instance from the Odyssey. It is in the advice given by Minerva under the character of Menort, to Telemachus. "And if your mother is determined to marry, let her return to the house of her illustrious father, and let these the suitors, settle the affair of the marriage, and provide the many valuable presents, which it is meet to give for a beloved daughter."+ Yet, notwithstanding the general custom, the father had the power of appointing that the daughters should inherit with the sons, among many instances of this, one is found in Job, where, in speaking of the daughters of Job, it is said that their father gave them an inheritance among their brethren; which is mentioned as a thing, not in the common course.— Where there were no sons but daughters, the father often gave the inheritance to them on their marriage, to some of his

*The word for male in Hebrew, is Zacar―remembrance, one who supports the memory of the family. + Od. 1 v. 276-277.

kindred; or if a daughter in that case was married to a stranger, the father, to continue his name, adopted the husband into the family.

We further learn from Homer, that the right of the children to the inheritance was admitted among the Greeks before his time, and was supposed to be a common custom among other nations; it had even gone farther than the inheritance of property; for we find his kings, generally deriving, their authority as well as possessions by hereditary right. Allusions to this custom are without number. It will be sufficient to mention two or three. In the second book of the Iliad, the part speaking of the sceptre of Agamemnon says " It was made by Vulcan, and by him presented to Saturnian Jove, by Jove it was given to the god Mercury, by Mercury to Pelops, Pelops gave it to Atreus Thastor,—that is, king of the people; Atreus, at his death, left it to Thyestes, who left it to Agamemnon."* Here its being given by Pelops to Atreus, for he had other sons, seems to mark an appointment in the nature of a devise, and in the other instances being left on the death of the father to the son to mark a course of descent. In the fifth book, on Xanthus and Thoon, sons of Dolops, who were Trojans, being slain by Diomede, we are told, "The father had no other son to whom he might leave his possessions, but his remote kindred shared it amongst them." In the first book of the Odyssey Antinous, expresses himself thus;-"Telemachus son of Ulysses, may the gods never make thee a king in Seagirt Ithaca, which is your paternal right by birth."

The right of making a testamentary disposition, and the right of inheritance were regulated by the laws of Athens ; but these laws only adopted, or probably modified, customs more ancient than their oldest lawgivers, Draco and Solon. Sophocles who lived not far from two centuries after Solon, in his tragedy of Trachinia,† relates that Hercules, when he departed on his last expedition, left a written will directing how, if he should not return, his property should be divided among his family.-As to the facts, they are undoubtedly

*v. 101-109. tv. 160-166.