Page:The Green Bag (1889–1914), Volume 25.pdf/342

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The Editor's Bag more readily be fulfilled, and what we have to offer is, broadly speaking, a con firmation rather than a criticism of his view. The idea that international arbitra tion cannot achieve its hopes till the far distant day when an international legis lature is established is surely a mistaken one. It suggests, however, the allimportant point that the quasi-legisla tive function is essential to the vitality of the international court, and must not be disregarded as a consequence of that spirit of legalism which overreaches itself in the effort to take the law out of inter national politics. THE RIGHT OF TESTACY VICE-PRESIDENT MARSHALL'S recent assertions regarding the right of testamentary disposition at tracted considerable attention. He said that "the right to inherit and the right to devise are neither inherent nor con stitutional, but upon the contrary they are simply privileges given by the state to its citizens." The right of a man to dispose of his property by will is of the same nature as his right of ownership in the property itself. If his right to own property is absolute it is but a corollary that he may not only control the disposition of his property while he lives, but may also choose who shall succeed him after he is dead in the title he enjoys. But if his right of property is a limited right it may obviously be limited either with respect to the distribution he may make of his possessions while he lives or with respect to any posthumous distribution of his wealth. From the point of view of so-called "natural" law, there is no such thing as an absolute right of private property. Property is, to be sure, an attribute


which distinguishes man from brutes. Miraglia says: "An animal can join itself to an object by a physical bond and can grieve for it if he is deprived of it, but he is not able to create the moral bond which distinguishes property from possession." Property, while it is one of the things governed by law, must not be misconceived as distinctly a legal institution. Property is the creature of economic forces of distribution, and a positive economic life, positive in the sense that there is a visible physical embodiment of economic purpose, is a distinctive attribute of mankind. Prop erty, as thus used in a general sense, may signify not individual but collective property. Sociologists are wont to lay stress on the collectivistic aspects of primitive society. In ancient Rome and Greece there was a tradition of a Golden Age in which private property was non existent. Property is frequently asserted to have gone through a collective stage before the egoistic one was attained. It is unnecessary for our purpose to show that there was ever a time in which there was not a trace of private property, for if private property existed in the slightest degree it was so different from private property as we now know it that the relative and limited character of the right in the earliest times is self-evident. In the course of evolution, as society progressed, property became more and more individualized as a consequence of economic development, and a changing economic system and a changing natural justice gradually built up the right of private property as we know it, without however making of it an absolute right which the community could not regulate and restrict. There is a parallel development in the progress from intestacy to testacy. At first the collective idea, as represented by the family, prevailed, the property