The New-Jersey gazette — Burlington [N.J.], 1784-11-01 00:00:00, page 1

“ This may help to remove the scruples of many
“ well meaning persons, who set up mistaken confci
“ ence againtt the rules of law. If a man disinherit
" his son by a will duly executed, and leave the estate
" to a stranger, there are many who confider this pro
" ceeding as contrary to natural justice, whilst others
“ adhere so scrupulously to the supposed intention of
" the dead, that if a will for lands be attested by two
" witnesses only, instead of three, which the laws of
" England require, they are apt to imagine that the
" heir at law is bound in conscience to relinquish his
" title to the devifee. But both of them proceed upon
" erroneous principles ; as if on the one hand, the son
" had a right by nature to his father's lands; or, as
" if on the other hand, the owner was by nature en
" titled to dired the fucceflion of his property after
" his decease. Whereas the law of nature suggests,
" that on the death of the possessor, his possessions
" should again become common, and open to the firft
" Occupant (as is the practice of the savages of Ame
" rica) unless otherwise ordered for the fake of civil
" peace, by the positive law of society. The munici
" pal law of England direds them to vest in such per
" son as the owner shall by will, attested by certain
" requisites, appoint; and in defect of such appoint
" ment, to go to some particular person, who, from
“ the result of certain local constitutions, appeals to
"be his heir at law. Hence, when the appointment
" shall be regularly made, there cannot be the shadow
" of right in any one but the person appointed; and
“ where the necessary requisites be omitted, the right
" of the heir at law is equally strong, and stands on
“ as good a footing as the right of the devifee would
" have done, had these requisites been observed." —
Thus in England, generally, the eldest son takes the
inheritance of real estate; in Kent and some other
places, each son is entitled to an equal share ; but in
divers ancient boroughs, the youngest son succeeds to
the land. The child born out of marriage is ex
cluded from personal, as well as real, without any
fault on his part; and the son of the fame father, by
a second wife, cannot inherit his half brother's land,
tho' it belonged to their common progenitor. (See
From the Freeman's Journal.
Mr. Pr INTER,
ME N of confined education and narrow
views, tho' of the best dispositions, often
lead our Legislatures into great mifchiefs
by patronifing the cases of individuals,
which, if relievable by law, belong to the judicial de
partment; but which, if they be not remediable by
the courts of justice, ought rather to be passed by,
than aided by laws for the particular purpose, made
after the hardship, seeming or real, has happened, left
a practice of interposition of this nature corrupt the
principles of justice, and gradually unhinge all pro
perty. For the rich and powerful, whose influence is
commonly most operative over large bodies of men,
building upon precedents of this nature, which mo,
tives of compassion have produced, will abuse them
to the oppression and ruin of the weaker members of
the community, till at length the rules of law be more
noted " for the breach, than the observance of them,"
and the government of the state, by this improper and
dangerous exercise of power, become the capricious
and unsteady domination of man, and not be, as it
ought, the prevalence of fettled and equal justice.—
As this abuse of the legislative authority is perhaps
most apparent in cases of fucceflion, and last wills, the
evils of it (hall be illustrated, by instances of that na
ture, taken from the neighbouring states. But before
these be given, it may be of use to state the nature of
inheritance from the most refpe&able authority.
Judge Blackstone, in his commentaries upon the
laws of England, vol. ii. page ii. having said that all
fucceflion and rights of inheritance, are mere creatures
of the municiple laws, and accordingly regulated by
them in different countries, with a variety that ap
proaches nearly to caprice, and as if it were thereby
intended to point out the absolute right of the legisla
tive power every where to dire& the successions of the
dying, at sovereign will and pleasure, proceeds as fol
loweth :
NEW-JE RSEY GAZETTE.
[Vol. VII.]
TRENTON: Printed by ISAAC COLLIN S, Printer to the State.
MONDA Y, November I, 1784.
* Upon faring at Westminster Hall, that the
King nnas deceived, the judges repeal the royal
grant, thus obtained.
Montesquieu's Spirit of Laws, Chapter vi. on this
fubjed.)
Three cases of fucceflion altered by ex pofi faßo
laws, since the American revolution, have occurred
to the writer's observation. Some years since, the
Legislature of New-Jersey, from the alleged hardship
of the case, passed an aft to aid and eftablilh a writ
ing, purporting to be the testament of one Abraham
Vaneft, of Somerset county. This testament was not
signed by the deceased, and of course was not a valid
will for lands, as our neighbour state had adopted
the regulations on this fubjed, required in England
by the statute of frauds and perjuries. 29 Car. 2.
ch- 3-
Another instance, in order of'timeThas taken place
in the state of Maryland, where a person, dying intes
tate, without issue, about November, 1781, seized of
a large plantation of the value of 3000 or 40001. his
land defeended to his brother, who, as heir at law,
became seized of this freehold, fubjed to the widow's
rights of dower, as absolutely as if he had purchased
and paid for it with his own money. But the lawful
business of the heir, four months after, calling him
abroad, the widow took advantage of his absence to
set up pretensions against the inheritance, and actually
obtained an ad of the Legislature, confiding of two
houses, enabling her to fclF'the land in order to fa
tisfy her claims upon it, and afterwards to pocket
one half of the residue. The injured brother did not
return before the end of thirteen months. He was
furprized to find that his fair inheritance was de
feated, and his lifter-in-law purchaser of the land fold
by herfelf. Fortunately for Maryland, the heir at
law was too high spirited to submit tamely to
such an outrage ; for otherwise the precedent would
have been most mifehieVOus. His complaints re
sounded through the state ; and the Legislative body,
upon understanding the truth of the fads, seemed dis
posed to redress him. But in such calcs, the diffi
culty is how to support the dignity of the Assembly
thus imposed on, * which will not allow the confec
tion of error. He was, however, remedied indirectly.
The widow was induced to sign a bond to abide the
award of teferrees, on the footing of the estate, be
fore the intervention of the Aflembly; and this arbi
tration have restored the inheritance, except as to
some small abatements in favour of the widow, part
of which, perhaps, the Chancellor of Maryland might
have hesitated to make. For the third instance, J let
us return to New-Jersey. This refpeds the will of
James Hamilton, Esq. formerly Governor of Penn
sylvania, who, tho' no stranger to the requisites to a
devise of lands beyond the Delaware, yet in publifli
ing this instrument, forgot to call upon more than two
witnesses to fubferibe it. The Legislature of our lif
ter state, composed in like manner of two branches,
however, without much difficulty, declared this im
perfed will fufficient to pass the real estate, thus di
vesting the heir or heirs at law.
Our sister state has by these two a&s virtually re
pealed her rules of defeent. Better Ihe had actually
reicinded the statute of frauds, and considered all wills
in writing, supported by legal testimony, as convey
ances of land, according to our practice in Pennsylva
nia; for now what is to hinder that nuncupative tes
taments, that is to fay, verbal wills, shall not be aided
in like manner. No instance of legislative interposi
tion in England, can be produced, as 1 am told, in fa
vour of the most pitiable case, out of the multitude
of houeft wills, let aside by the rigid adherence of the
courts of law and equity there, to the statute of frauds
and perjuries, passed near a century since. If in Great-
Biitain they cftablifh the severest rules in any case,
these are ftridly adhered to. Thus under the famous'
marriage ad (26 Geo. 2. cap. 33 ) the children of
paupers have been treated as bastards, and denied the
Settlements of their parents, because the forms of mar
riage, required by law, had not been complied with.
t It is said, that another instance has lately oc
curred in Monmouth count,.
THE
Pennsylvania, since emancipation from her subordi
nation to Britain, happily affords no instance of le
gislative intermeddling in the private rights of succes
sion. Last year, indeed, an attempt of this kind was
made by some well meaning members of the late house,
in behalf of Mary Dunn, whose husband, Slaughtered
by the savages, died intestate, and who was likely to
become chargeable to the township wherein the inha
bited. The deceased had acquired a trad of unculti
vated back land, and a bill was published, purposing
to fell it for the poor woman's support. But some
bye-standers urging upon the more prudent Assembly
men, the consideration of the torrent of inconveni
ence, which would lush in through such an opening
as this would be, the bill was dropped, and the heir
at law was refeued from the injury with which he was
threatened.
It is remarkable that in Scotland no testament is
allowed; but instead thereof, a disposition may be
made to equal effed, if the person making the fame
appears at church and at market afterwards. That is,
the instrument must not be executed in the last sick
ness, or extremity of the donor, left in the hours of
weakness, impositions be practifed; a precaution pro
bably firft instituted to pievent the artifices of the po
pifli clergy.
The examples, which have been given above, re
relate to the fubjed of inheritances. 3 here are, how
ever, many others, upon which the legislative branch
may be led into equal inconvenience. In Pennsylva
nia, particularly, from the defed of a court of equity,
the applications to the General Affcmbly for their
Ipecial interference are multiplied. Upon this ground,
the lapse resulting from the loss of title deeds for
lands, or the want of deeds in cases where the pur
chaser has paid his money, but cannot obtain the con
veyance he is entitled to, are very improperly consi
dered as proper fubjeds of legislative affittance; for
the power given by the confutation to the fup'te.me
court and the county courts of common-pleas, to per
petuate evidence, furnishes to such persons every te
lief that ought to be afforded. In this way, the tes
timony recorded would have the proper efftd it ought
to have, and no more, when it Should become nec-cf
fary to resort to it. As to loft or defaced deeds,
there is less cause to interpose, because the applicant
might have recorded his title. Relieving pnfonets
for debt, and married persons, injured by the infide
lity of their partners, belong to the judicial branch.*
Such personal difeufiious are seldom heard by laige
assemblies, without the taint of partiality, prejudice,
or undue favour, unavoidable in such bodies. The
restraint laid in 1781, and continued last year upon
the ultimate process for debts, contradicting as it doth
the late definitive treaty.between the United States
°l America and Gieat-Britain, which Secures to the
Subjects of both the fulled remedy for their legal de
mands on each other, is very deftiu&ive to the credit
of this country in foreign parts, and may provoke re
prisals. And shall foreigners; shall the Subjects of
George the 111. enjoy an unfettered right to recover
theii dues, and our own citizens be retrained? Ex
froft facto laws to lessen the rights of the credritgr
whatever be said for them, aie incompatible with the
Ration we have taken among the nations, and incon
sistent with foreign commerce.
It mull be conceded, tliat we derived one benefit to
this country, from our late dependence on Great Bri
tain, among many and great inconveniencies, which,
with time, would have risen to an insupportable Size!
Our laws going to England foi the royal approbation',
the attorney general of that kingdom, or other offi
cer to whom they were referred, led by the habits
of attention to private rights, which prevail in England
seldom failed to report against every ex /<?/? fall? iJ
terpofition of this nature by the colony Legislatures.
Hence we were prevented from mifchiefs of this kind.
Time and experience, in a commercial country, and
under governments like ours, will infallibly bring our
lawmakers to equal tenderness in this relped, 'with
what is observable in the countries of Europe, where
property is best fecuied. The Americans may fora
* In Scotland and in Nerj-En^lard these cuto
are fully relived in this ^ea,.
[Numb. 338.]