children both survived, divided into three parts, and into two parts if wife only survived, or children only. One part was subject to the disposal of the deceased; the remaining parts belonged to the wife and children respectively. The right to make a will of personalty was to some extent recognized even before the Conquest, and the established law provided a distribution of personalty among wife, children, and next-of-kin where, through improvidence or sudden death, a man died intestate. But only in the event of the testator dying without leaving either wife or children could he dispose of all his personalty by will; and this remained the law of England until the time of Charles I. extension of the right had grown up and been recognized about Blackstone's time, for he writes "This law is at present altered by imperceptible degrees and the deceased may now by will bequeath the whole of his goods and chattels, though we cannot trace out when this alteration began Whatever may have been the custom of later years in many parts of the kingdom, or however it was introduced in derogation of the old Common Law, the ancient method continued in use in the Province of York, the Principality of Wales, and the city of London, until very modern times, when, in order to favour the power of bequeathing and to reduce the whole kingdom to the same standard three statutes have been provided whereby it is enacted that persons within those districts may dispose of all their personal estates by will; and the claims of the widow, children and other relations to the contrary are totally barred. Thus is the old Common Law now utterly abolished throughout all the kingdom of England." (Com. Bk. 2. p).

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But the early testamentary right to dispose of personal property was even more limited. Text writers have recorded that the Church was largely instrumental in spreading the concept of the will and it is said that the ecclesiastical power very early succeeded to the privileges of custody and registration of testaments which several of the heathen temples in Rome had enjoyed (Maine, Ancient Law, p. 168). The interest displayed by the Church in the recognition and enlargement of the power to make testamentary disposition was not altogether unselfish; for even at that time it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. The advantage taken by the first ecclesiastical chancellors of the enact

ment of the Statute of Uses in permitting a use to be disposed of by testament where the land itself could not be, is well known. The decrees of the early Provincial Councils contain anathemas against those who deny the sanctity of wills. The ecclesiastical power benefited largely by them, as well as by intestacy. Besides what the feudal lord took out of an estate for heriots or best good, the second best chattel was reserved for the Church as a mortuary, pro salute animae saue. The testamentary right, hedged in and limited in so many ways, and at best operative upon but a portion of the estate, was consequently of far less importance in early times than after the statute law had removed restrictions upon it.

As to lands, while it is believed, as before stated, that they were devisable before the Conquest, yet, throughout England generally since that date and until the Wills Act of Henry VIII., no estate greater than one for a term of years could be disposed of by testament. The original Wills Act was subsequently extended by a statute of Charles II.

These so-called testamentary rights are thus seen to be neither very ancient nor originally of any great importance or extent. But let us now consider the claim made that they are in some peculiar manner "natural" rights, or such as inhere to property without the necessity of proving any statutory or other foundation for them. In these days when it is recognised that advancing civilization itself means but further and further encroachments upon the primeval liberty of the savage, the legal mind trained to value exactness is apt to experience some impatience when claims for so-called "natural" rights are presented to it for recognition. Do "natural" rights exist at all? If so, where may we find a definition of so vague a concept. They shift and vary with race, latitude and historical periods. No two persons will agree upon them; and, reduced to their final analysis, they will be found to consist in such rights only as a free community is willing to concede to the individuals composing it. The subject is one which has been considered by Sir Henry S. Maine, who supports this view. (Ancient Law, p. 168).

As above indicated, therefore, many respectable authorities appear to confirm the view that the testamentary right was in its origin limited in its scope and of but trifling importance; that prior to the sixteenth century it did not

attach to land at all, and then only to a very imperfect extent until the reign of Charles II., that in reference to personalty, while more ancient, it was for a long time restricted to but a portion of the estate, and that as to both kinds of property, it was largely the creature of statute, and indebted to statute alone for its limited and uncertain existence. We know that from the earliest times and in every country, it has been subordinate to the universally recognized rights of wife and children, which indeed are much more entitled to be regarded as natural rights than any rights of testacy.

That the rank and file of voters throughout the United States would approve of the employment of any constitutional powers of Congress or of the State Legislatures to limit the amount of property transmissible by will or upon intestacy is by no means unlikely. The adoption of the Hughes Transfer Tax Act in New York, with its enormously increased rates was a popular measure and its subsequent repeal through adoption of the Harte Act was brought about, not so much out of regard to the estates of decedents, as because the earlier statute was found after a year's trial to reduce the State's revenue instead of increasing it. The suggested employment of inheritance taxes to reduce "swollen" fortunes and to prevent their transmission beyond one generation, is nothing new. Against the absolute and determined robbery of the rich by the Government of any country, and cases of such spoliation are by no means infrequent throughout our neighbouring Republics south of the equator, protection under any form of law is found practically impossible.

On the part of a section of the professional press there has recently appeared a disposition to conceal or minimize the undoubted power of legislatures over inheritances, as though in fear of encouraging attempts of socalists to confiscate property. If such disposition exists, it can readily be recognised as futile. The defence of property against unfair attack will be effective only when and where it enlists the active interest of the great body of property owners. Hithero it would seem that they have not deemed their interests seriously endangered. But that they will ever supinely permit themselves to be robbed of their possessions by altruistic visionaries or by political bandits under the forms of legislative enactments, does not yet appear probable.

New York.

W. SETON GORDON.