Thomas Skidmore, The Rights of Man to Property, 1829.


Of the duration of the Rights of Property.

In the discussion of the rights of property, in the preceding chapter, there has been necessarily much of argument, of a negative and correlative character. It seamed essential, to a right understanding of the subject, that the discussion should tend to show what was property, by shewing what it was not. It may be asked; may not a man expand his lungs and inhale the air; may he not open his eye, and enjoy the light; may not his body occupy the space which it actually does; without any necessity to suppose the existence of legislation? Most certainly. These are functions [78] necessarily attendant on individual existence -- and are enjoyed alike by all; and herein too consists their equality. They are in the nature of the rights of persons, and do not, of necessity, hold, any relation to the rights of property. They are as much entitled, so to be considered, as, what I may call, my negative right, of not being injured by another. About all these there is no dispute. Mankind are all agreed on these points. No controversy exists, and there is no occasion to argue the matter further.

But, as to the possession of the soil and the materials of the world, or rather as to the right of possession, there is much dispute. It is this question which is to be decided. And, in order that it may be decided, correctly, it is proper for me to have shown, as I think I have done, that possession, occupancy, or labor, superadded, have not the faculty of conferring right; and for two obvious reasons; 1st: because rights exist of themselves, without being created or conferred, have always existed -- and always will exist; since no one, of right, can destroy them; and 2d, because those in possession have no right, unless it be accompanied with the consent of those to whom the property belonged; having this, it is altogether useless to endeavor to derive title from possession: and not having this, any supposed title is good for nothing. Any possessor of property, therefore, who should be foolish enough to undertake to derive his title to retain possession, merely from the fact of its [79] being found in his hands -- rather than from the consent of the community, would place his tenure of it upon a very insecure foundation. For if possession is to give title, the act of fraud, or larceny, the violence of the robber, or a licentious mob, might soon confer as good a title to it, on another, as himself possesses. It becomes all then, to be very careful how they resort to such a source for title. If they can find no better, they may soon be without any, and they would then wish they had not looked to that which avails so little.

As it regards my habit, thus far, of contemplating the materials of the world, and these only, as property -- I will only say, that, when government, or society, or legislation, or whatever other synonimous term, we may make use of, shall give me marble, for example, as a material upon which to exercise my industry, at as cheap a rate, as that, at which nature has furnished it, that is, for nothing; I shall have no particular objections, then, to call the labor, which I shall bestow upon it, in converting it into a statue, by the name of property; though I should still be of opinion, that the material only deserves the appellation, the labor, skill &c. being the result of personal faculties, and only increasing its value. Both the material and its value being mine, (the one by way of my original right to property -- the other by right of person) makes it a matter of little consequence what is the name we call them by, so that I do not lose [80] the substance, through any misapplication of terms.

I am as much averse to refinements, as any body, especially unnecessary refinements in discussions which ought to be, and in their nature are of very easy comprehension. But I have been driven into an indulgence of them beyond my wishes, by the clouds of error in which I have found the subject enveloped, and, in self defence, have been obliged to depart from a plainer course, than I had intended to pursue.

Besides, it will be seen, that my view, of the best application of the industry of man, is a separate, single, and exclusive application, such as that which now prevails; an application, that looks for his own individual welfare, almost exclusively. So far, therefore, as regards this industry, it never entered into my contemplation, nor does it now, to allow, in any theory of my own, that the government should take its management under their control, or in any way interfere with it, other than as the prosperity of the whole may require it in relation to commerce with foreign nations. In the very nature of things, I take it to be a truth not to be controverted, that each individual knows better how to apply his own industry, his own faculties, advantages, opportunities, property &c. &c. than government can possibly do; that, therefore, the aggregate result of all these applications, will be much greater, when each is suffered to go on, in his own way, undisturbed, and [81] unmolested, than if the sovereign power should direct the mode of employing the industry of each individual. And the reason is obvious enough. The sovereign power, before it can be able to know what would be the best application, must receive its knowledge by communication from all the members; and before this can be done the occasion will often pass away, which rendered instructions from the Public Authority necessary. Time and labor, therefore, will be lost, which, otherwise would have been saved. And the larger any community is, both as to number and territory, the more injudicious would such a system be.

As, therefore, I did not contemplate that the direction of the industry of the individuals of a community, should come within the limits of their power, except in so far as necessary and useful Public Works, such as Roads, Bridges, Canals, &c. were concerned; it was not necessary for me to examine the subject, any farther than to afford each individual, his equal share, of the materials of the world, on which he dwells, that he may have whereupon to exert his industry, in the pursuit of his happiness.

This, then, is the extent of my object. In some shape or other, this share or proportion must be obtained; and it is proper to continue to obtain it, in such a manner as to afford the least disturbance, and least destruction to the industry of the existing generation. Such is the quality, [82] which any new system, ought to possess, which it may be proposed to introduce.

But there is an imposing obstacle, in the way of accomplishing the introduction of any such new system. This consists in a very general misunderstanding of the term, or duration, of the rights of property. They have been conceived to have a longer existence than is actually due to them and this it will be seen, I think, in the future progress of this work, has been a very prominent and active cause, of the enormous disparity, in possession, or wealth, which now prevails throughout the world. It is an important question then to answer. How long does a man own property?

Let us begin an investigation of this question, in an elementary a manner as possible.

If a world like our own, were made, and there was no inhabitant for it, it could not be property; for, before there can be property, there must be a proprietor: some one to own it.

If such a world were made, and only one inhabitant placed upon it, then would it be property; and the whole of it would be his. There would be no occasion to say a word about rights; he would possess all, in himself, there being none to share with him. If his existence, and that of the world, too, was perpetual, he would own it in perpetuity. He would own it for ever. If he could live only a limited period, he would own the world for such period, and no longer. When he ceased to exist, [83] he would cease to possess or to own, as much so as if, he being yet living, the world itself, were struck out of existence. For it is quite as possible for a man to own, when there is nothing to be owned, as it is for him, who once was; but who is not, now, to own that which does actually exist. Either ceasing to have being, the existence of that relationship, between owner and owned, between possessor and possessed; which we call property, ceases also. It cannot survive the dissolution of that relationship, which constitutes its only feature. His right over the earth while he lived, would be perfect and entire; when he died, his right would die also. For when he is dead, he is nothing but inanimate matter; nothing but dust, which even the winds of Heaven may scatter where they list and which no being short of Omnipotence is able to gather together again. Dust cannot be the owner of dust. It is being, endowed with intelligence, that is capable of owning or possessing. Mind, is its essential requisite. One tree cannot own or have property in another. When mind is absent, there is no proprietor. When matter is absent, there is no property. Matter cannot own matter. It is perverting every thing to suppose such an absurdity.

May not the being, it is asked, who has once owned property, and is now deceased, have his wishes gratified, by having such disposition made of that which was once his, as he may have desired in his life-time? I answer, no; unless he [84] created it; unless, indeed, he brought it into existence with his own hands. And on such a supposition might I not ask, what kind of a creator would he be, who should create a work, that would outlive himself? How much mere reasonable is such a wish than that of the reptile who should have crawled over a fine block of marble in the course of its life-time, and therefore should have desired to dictate its future destiny? How much more reasonable is man? Destined to have only a short existence on this globe, which certainly he has not made, what is he but a tenant at time, who when, his lease of life expires, must resign all pretensions to interfere with, or control his successor, if there is to be one? And if there is to be no successor, of what use is it to contend, that such and such a disposition, shall be made of what was once his property, when there is no one to carry it into effect? Besides if the supposed single owner of the globe, on the supposition that he is to have no successor, is incapable of owning after he is deceased, for such is evidently the fact, since matter cannot have property in matter, why should he be supposed capable of owning, when it is known that a successor is to appear? Does a successor bring into the world any rights but those which belong to himself? Does he confer rights also, on him who has once been, which he could not have had without the appearance of such successor, and that too, to the prejudice of him who confers? Are the predecessor's rights made more, and the [85] successors made less, because both have lived, and lived at different times? If the predecessor could, of right, have had no disposition made of that which he once owned, in the event of there being no successor; could he have such right, in the case a successor should appear? To say that he could, would be to say that he had power over the destiny of his fellow-being, coming after him, when if he had lived at the same time with him, he would have had none at all.

Besides, let me ask, as the successor, on the supposition that there is to be one, is precluded, by absence, from disturbing, or in any way interfering with his predecessor; why, when the latter is absent, that is, when he is deceased, and no longer in being, why should he be allowed to interfere with one, who did not, and could not trouble him? Was it not enough for him, that he enjoyed his term of life, as to him seemed good? that he wrought when he pleased, and rested when he chose? That he added value to the materials of nature by his labor and his skill; and destroyed it again, in the satisfaction of his own wants? If the fruits of his industry increased beyond the amount of his consumption, whose fault was it but his? Besides, if the world is not a desert or a wilderness when he quits it, as perhaps it might have been when he found it, does it grieve him, that he cannot reduce it to that condition again? And having run the career he chose to run, is it unreasonable that his successor should be allowed to do so too? [86] Besides, admitting, a moment, that this first possessor of the earth, had a right to order any given disposition of it, how has he acquired the right over his successor, to compel him to execute it? And suppose him to have the right to compel his successor to execute it, where is his power, in case of disobedience? And if he have no power, may I not ask, what sort of a right is that, which has not power to support it? It is not so with rights among men. All the rights they have, they have power to support. They may not always see, exactly how far their rights extend, but when they do, there is no power able to deny them their enjoyment. But it is not so with the rights of dead men. They are a nullity. They are a mockery of the human understanding.

Again, let me ask what is the purpose of this posthumous dominion over property? It is to give pleasure to the dead? They cannot feel. And besides if they could, such pleasure might be more than compensated by the pain of the living. Is it to avert any calamity, or procure any blessing during life, which otherwise could not be averted or procured, that he should enjoy this dominion? This is not possible, for no effect of this dominion is to happen until its possessor has ceased to be capable of any sensation of either suffering or joy. Is it to gratify vanity by enabling him to say "Such is the property I leave you?" Generous man! I would reply, who leave behind you, what you cannot carry away with you! As much is your [87] generosity to be admired, as the criminal's on the gallows, who, when he is just about to be executed, declares he is determined to commit murder no more!

But, perhaps I shall be told that this supposed first occupant of the globe not only desires to leave it, but his wisdom and experience also, as a legacy to his successor. All this is very good; but where it is made imperative, on any one, to receive wisdom and experience from another, there is very great reason to doubt whether what is called by those names, deserves to be esteemed as such. It may be the height of ignorance and folly. And if it is not made imperative, then it loses the character of a will, and assumes that of a simple request, which is the most that should be desired. But even this request made to the successor, to profit by the wisdom and experience of his predecessor, is altogether as unnecessary as it is impertinent. Whatever of profit is to be gathered from such a source, is open to him, and his self-love will stimulate him to avail himself of it; he will add it to his own acqusitions, and then it may safely be calculated, that the wisdom of the latter is greater than the former, since he possesses the sum of both. It will be evident, then, that the successor is to rule, during the period of his own existence, even on the score of being better qualified to do so. In this view, then, the right, as it has been called, of making a will, of directing how property should be disposed of after death, is without foundation. [88]

For the sake of argument, and for the purpose of canvassing the merits of this question with the utmost severity, let us admit that the wisdom of the two persons, now under consideration, is equal, still, as the case admits of other successors, who have also their equal rights, (rights be it said, too which cannot interfere with the predecessor) these latter would be infringed, if a single individual, merely from the circumstance of prior existence, could overrule what belongs to them, each in his own proper time, as much as it did to the first of the race. For, here, as every where else, it is the first law of justice, that the wish of a majority should prevail over that of a minority; and such a law here cannot be violated, without making one man a monarch over all who succeed him, to the end of time.

Hitherto I have treated this matter as it had reference to the power, I mean the right of power, of the first possessor of the world, over his successor or successors. Let us now examine it in an inverse order. If it has appeared that such possessor cannot confer rights, to have force after his decease, on a being who comes after him, may we not say, even if such successor should happen to think to the contrary, that he cannot and does not receive them? That which cannot be given or granted, cannot be taken or received. The one implies the other. They cannot exist separate. If one falls, so does the other also. It does not mend the matter, that the person supposed to [89] receive believes that he receives, from some validity which he imagines to exist in the will. For rights are not founded on deception; on self-deception, any more than on any other deception. They exist of themselves, of a necessity which it is not possible to evade. To man they belong, in consequence of his being. They are his, because he lives, and because they are necessary to him. When he perishes, they perish with him, inasmuch as they are no longer useful to him, and inasmuch as, in the act of perishing, he returns again to the condition of inanimate matter, which has no rights and can have none; for rights can belong only to living beings. Besides, if deception could give rights, when we speak of the successor or successors, why should it not give rights when we speak of their predecessor? And if it were to be admitted, what consequences might not follow? For example, such predecessor might imagine, contrary to what trust I have amply shewn, that the world henceforward, forever, was entirely at his disposal: that whatever he ordered must take place. Might he not then say to his successors?

"Touch not these premises! I will that this fair domain of nature, on which I have taken my pleasure, shall remain to the wild beasts, and to the fowls of Heaven; that no human being shall exist upon it; and that he shall be driven away so soon as he shall dare to intrude himself upon it." [Altered from Barlow's Address to the privileged orders, p. 31.]

Would such a destiny of the earth, be considered as the emanation of human reason? If not, why then should power be given to create such a destiny? And if not such a destiny, so flagrantly unreasonable, why any destiny, however little unreasonable? Let no ingenious sophist, spreading his webb to catch human rights, pretend, that even as now organized, governments do not fail to take judgment of such wills as emanate from minds which they deem insane, and to declare them void. It is right that they should; but it is also right to correct errors of judgment, which in common acceptation, do not amount to insanity, and pronounce them void too; for every species of injudicious exercise of the power of the testator, is a species of insanity, and it is competent to the community who survives him, and who alone have any interest in such exercise, to remedy it, and it is their duty to do it. In order to do it effectually, it is requisite to supervise every will, and wherein it does not conform to the best interests of the living, for they are the judges of it, and the only party interested; or where it contravenes those interests, to render it null and void; and to supply the deficiencies, created thereby, in such manner as to them shall seem good. Wills, under such circumstances would be a nullity; and the next step to be taken, would be, to declare that they should not be made at all.

It is evident, then, that what cannot be given, cannot be received; that what cannot be received, [91] cannot be retained, but must be given up, to the rightful owner, whenever he shall appear to claim it. Just as the innocent holder of stolen goods, (holder, perhaps, by inheritance) must give them up to the lawful owner, and bear the loss, or seek his remedy, if there be any to be found. If a part only is illegally held, such part only is to be surrendered; the rest retained. There being no right to retain by force or fraud, that which does not belong to the retainer, punishment is due to those who are guilty of such an act.

It is apparent, then from all I have said, that there is no such thing, in a correct consideration of the matter as testator, will or heir; that they are mere fictions of the law; and whether meant or not meant, have had, and ever will have, as long as they shall be suffered to exist, the effect to transfer property from him who has the just and true title to it, to him who has not. If they were not mere fictions; if the power of making a will was a reasonable and natural power; then the son of a soldier, might inherit his father's courage; the son of a poet, his father's inspiration; the son of an artist, his father's skill; the son of a statesman, his father's political talents; and the daughter of a woman, her mother's beauty and accomplishments. Nay more; the daughter might inherit, since she has also the same father, the qualities allowed to the son to inherit; and the son, since he has likewise the same mother, might inherit the qualities ascribed to the [92] daughter. Nor should we stop here. For if the good personal qualities of parents, could descend to the children, so would their bad; and we should not fail to see it happen, that when a son inherited an estate from his father, he would often also inherit a rope about his neck.

It is true I have considered the question, only, with reference to the possession of the earth, by a single individual, at a time; and yet, such are the multitude of absurdities, enormities, and acts of injustice that would result, by admitting the principle that property should be subject, in any degree, to any disposition, decreed or desired, by its former possessor. We are yet to see, whether the matter would be in any measure different, if, instead of there having been placed upon this globe, only this one inhabitant, the number should have been sufficient to compose the population of many nations.

I shall, without further trouble, suppose this number to be divided into as many separate nations, as to them is agreeable; and that they have also, with like good will, apportioned the entire surface and property of the earth in such a manner as to be as nearly equal as they can make it, and to be satisfactory to all.

Now let us take any one of these nations, and apply the reasoning which I have used, with regard to the single possessor, so far as it may be applicable, and so far as it is not, supply the deficiency in such way as circumstances shall require. [93]

If the population of the nation chosen for illustration, be supposed to be immortal, and that there are no more to come among them, the duration of the right of property, as a nation, would be eternal. If there be any reason to controvert this, it will be, that the division of the earth just supposed to be made among the nations, turns out afterwards not to be equal. In such case, it must be admitted, the nations collectively, would have the power to establish equality; and to re-model any appropriation of property to any nation, until this object should be accomplished, or so nearly accomplished, as to amount to a matter of indifference, whether any further attempts to obtain it were made or not. When such equality was established, although the nations jointly, would have, undoubtedly, the right to cause the different nations, to change locality, at such times as might be ordered by themselves; yet as no advantage could, and much disadvantage would, accrue, by such change, there would be no inducement, to order it, and, of course, it would not be done.

Here, as the nation is supposed to be immortal; so also are the individuals; and, of course, there can be no exercise of the power of the will.

Let now our nation remain the same, except that they die at no distant period, and that they have successors.

They would have a right to use their property in common. They could agree to labor in common. They could so order it, that no individual should [94] pluck an apple, without public permission, nor have it without charge. They might thus go on, and expend the term of their existence. It would be perfectly competent to them to adopt such a method of enjoying the property assigned to them, by their sister-nations. Whether it would be the most judicious, and profitable method, is another question. But, deciding upon adopting it, no one could question their right to do so.

Let us see how our previous deductions with regard to the power of wills, will apply here. We have shown that an individual possessor of the world, (and if it were only a portion of it, it would be the same thing,) cannot bestow it, when he is no more. When a nation dies, it is in the same situation: for neither itself, nor the individuals composing it, have power to bestow, to have effect, after they cease to exist. For principles are not changed by any multiplication of the number of objects or persons to whom they may be applied. Justice is the same, whether it be applied to hundreds, or to thousands, or to millions, or to no one. Besides, here are some new problems to be solved. I said that an individual, by permission, might pluck and eat an apple. In its consumption, it would perish, and we should see it no more. But this would not be true of every thing. An arrow, or a bow, would be obtained by permission of the same authority, but it would not perish in its use. It would remain, and might survive its proprietor. It would be his, because obtained of the proper authority; [95] and because such authority has given it to him, in virtue of his equal right with them. If we allow him the right of giving it away, when he is about to die, why not allow him also, to give away his undivided portion of the soil; his undivided portion of any other property which is common to them all? As it might be among us; when a man here, is about to die, why not permit him to will away his portion of the Grand Canal? Of all our public roads and streets? -- Even of our very lamp-posts? These latter, too, being divisible, on the principle that wills are valid, ought certainly, and might easily be specifically devised. Surely no one will pretend to say that the testator has no property in any of these. He most certainly has, for they have been paid for with (what he considers, and what is generally considered) his own money. It is true it is not in the nature of Bank-stock, for he receives no certificate, no scrip, farther than a receipt for payment; but in every other respect there is no difference. If this be denied: if it be said, that he has already given it away to the public, and that it is, therefore, out of his power to give it again; I ask, who are the public? Is he not one of them? Is he not one of the community? If so, he has, at least, given some portion to himself. He is at least an equal owner with his fellow-citizens? Nay, more, according to the prevailing rules for measuring the amount of property belonging to different owners, or claimants, he may be a greater owner, inasmuch as he may have contributed more, than many of his [96] fellow-citizens. Nor is it to be said that it cannot be willed away, with propriety, inasmuch it was given for the purpose of making the testator's other property more valuable. For, may not this testator, having a farm, will it to A, and the same time, give to B, the fences thereon, or a tree or trees? May he not separate and divide his property as he shall think fit? If he may not, he is circumscribed in the exercise of his rights, and if he may be circumscribed at all in this respect, he may be deprived of them altogether.

As the matter now stands, then, if testators arc prevented from willing away, (and that too, every day, forever,) even our very lamp-posts, it is because the governing authority has determined, as far as this description of a man's property is concerned, to be the heir of the dying man. If wills are sacred: if they exist in matter of right, at all, why is this suffered to happen? Why will not the public authority, on any principles which may be agreeable to them, ascertain how much of this canal; of this road or street, or how many of these lamp-posts &c. &c. belong to the dying man in question, and inform him thereof, that he may make disposition of it, as he would of any other portion of his estate? It is no answer, to say, that they are not divisible; at least their value is; and whatever the dividend of the dying man should be determined to be, the Public Power should provide it, and place it at his disposal. It should either do this, or renounce wills altogether; for otherwise, it is not possible to be consistent. [97]

But conclusive, against the propriety or justice of the power of making wills, as this train of reasoning will probably appear to the candid reader, the subject is still capable of a more rigid, and, as it were, a mathematical mode of treatment; such that no man, after having understood it, can possibly have a moment's hesitation in renouncing it forever.

The positions taken by those who defend the validity and the justice of the power of making wills, seem usually to be these:

  1. That men acquire property by their industry, economy, and skill:
  2. That being thus acquired, it is their own to dispose of, henceforward forever, as they shall think fit:
  3. That, as a consequence, no one, majorities or others, have any right to dispossess them of it, or in any way abridge their power to dispose of it, as they shall desire: and
  4. That they ought to have this power, of acquiring and disposing of property, in order to provide for their children, relatives, and friends.

Let us now examine into the truth of these positions. In order to do this effectually, it will be necessary to go back to the first period of man's existence. What shall we find there? Nothing but one wide common; a wilderness, on which man, for the first time, has imprinted his footsteps. Of course it belongs to all equally. It is an undivided property, in which each has equal right; and no [98] one has title to any specific part, or to a proportion, greater than any of his fellows. Let this undivided common be represented by the following diagram, in the shape of a square, since shape is immaterial, denoted by the letters, A, B, C, D, To make the application of arguments to this diagram, free of captious objections, let it be supposed to represent the whole world.

Here, then, we have the whole world before us, and the supposition is that there is a race of beings present, ready to occupy it. How does it appear, that these beings have acquired this property? Is it meant that the mere act of occupying, or rather, of being present upon it, is an act of [99] acquisition? This, surely, cannot be possible. For even this act is not their own. It is not they who have placed themselves upon it. They hare been placed there, by a Power, or by a Necessity, which controlled them, and the property they claim, with a force, which, if they were even to desire it, they could by no possibility resist. How then, is it possible, in the origin, at least, of property among men, to say that they acquire it by industry, economy and skill? Surely, none of these are requisite, in order to place them in possession. The truth is, the origin of all property, in the sense in which I use the word, is very different from this. It is a gift from the Divinity, if there be such a Being, who has made the world and the creatures who inhabit it. It is obtained without the act or deed, of any kind, of those who receive it, and is altogether extraneous and independent of them. Being a gift, as it undoubtedly is, to the whole, in their collective capacity, it belongs as much, if any such there be, to those who are without industry, as to those who are industrious; to those who are prodigal, as to those who are economical; and to those who are destitute of skill, as to those who possess an extraordinary share of it. These distinctions, in truth, do not show themselves among men, in this early stage of their existence; but are the result of the subsequent organization of human society. Men, therefore, who resort to the use of them, in discussions of the rights of property, such as now [100] engage us, should not fail to see, that when they do so, they do not ascend to the origin of things and are, therefore, very much in danger of not understanding themselves, or the subjects they discuss.

In the first entrance of men, into the possession of the property of the world, it is evident, that they acquired nothing, either by industry, economy, skill, or other quality or process, save that of gift from the Being who made all. It is apparent, therefore, that all pretension to the right of making a will, on the ground of acquisition, fails, and must fail, so long as men choose to retain their common property in an undivided state. For, being undivided, what is the particular part or portion, which any one may undertake to will away? He has no authority to say what it shall be; and the majority do not choose to name it. For him to say, as he is about to die, that he wills away his undivided portion, to a certain specified being, would be saying nothing; for this latter would also have, on his appearance on the stage of life, the same undivided portion, as well without this will, as with it; unless, indeed, we make the inadmissible supposition that the people first occupying the globe, should forbid the existence among them of any other beings than themselves. But this is not to be admitted, since,.besides being contrary to the uniform and invariable history of mankind, without a solitary exception, it is altogether incompatible with the rights of those who [101] appear at periods of time subsequent to their own.

It will be said, perhaps, that although the soil, in consequence of its remaining undivided, and being held in common, is not subject to be disposed of, by will, by individuals; yet that moveable property is not in the same condition, but may be bestowed by way of legacy. But it depends, still, upon the pleasure of the community, whether even these shall become personal property. If the majority determine, that every thing moveable as well as immoveable, shall be common, as they have the undoubted right to do, even to articles of dress; then would there be no subject upon which wills could be brought to act; and we should see, in every instance, that the power of making them, is one which can have no existence, in the original and natural condition of man. Contrary, therefore, to prevailing ideas, it is palpable, that the power of making a will is altogether unsupported by nature; that it is the result of the invention of man; is wholly artificial, and capable, when society shall deem it to be pernicious to its happiness, of being totally destroyed and banished forever.

So far then, as wills are vindicated, on the ground that those who acquire property, by industry, economy, and skill, ought to be allowed to convey it to their children, or other legatees, we see that such vindication is without any avail; since it is clear, that no such acquisition, in the [102] first and most natural organization of human society, can ever take place.

It remains to be seen, how far a parent, cut off as we see he is, of the power of making disposal of property, after his death, for the benefit of successors, can make a similar disposal, before his death. This will, of course, include the case of providing for children, during their minority, and it is to this period, that I wish more particularly to confine my remarks. It may be objected, perhaps, that this does not apply to wills; but it is evident, that property given to children or others, before the death of the giver, is only a will by anticipation; and it is not the less so, that the receiver may be yet in his minority. But, in the case before us, where even the father has nothing which he can call his own; nothing which he can separate from what belongs to his fellows and his equals; how is it to be said that he can give to his children? And if he has nothing, which he can say, is his, of what use is it to say, that he may give? To say that the power to give exists, is, to presuppose that there is something to be given. And, on the other hand, if there is nothing to be given, it is certainly, as logical to conclude, that the power to give does not exist.

Those who think they have acquired property in the manner already mentioned, think, of course, that it is, therefore, their own; and that they have, as a consequence, the right to dispose of it, as they shall think proper. By shewing that they have not thus acquired it, at least under one form of [103] society or government, into which men may organise themselves, I have shewn that, as individuals, they have no property at all; but even if I had not so shown it, still the matter would be very little better. For, it is to be observed, such persons contend for the right of the power to dispose of what they call their property, on the ground that they ought to be allowed to give it to their children. But every one will see, on a moment's reflection, that if any property in question, be acknowledged to belong, to a parent, for example, it is his, of course, and his only. It does not belong to any one else, to a child or relative, to a friend or stranger. Such parent, therefore, inasmuch as he may do what he pleases, with his own, on such a theory of the rights of property, without any blame whatever, may starve his child to death. It is into such barbarous absurdities, that men are driven, whenever they contend for such absolute and exclusive ownership of property.

But, in a state of society, in which all moveable, as well as immoveable property; is held in common, let us examine the principle upon which support is rendered to the ascending generation, during their period of helplessness and non-age. If it is to be taken as a principle that the child is to look to its parent, and to its parent only, for support, then we shall not fail to see some appalling consequences springing out of it. This principle, of course, supposes that, the child has no right of his own, to a share, equal or otherwise, of the common property. If it receives any, it receives [104] it from the benevolence of its parent. If this benevolence fails the life of the child fails with it. And that this is an event, very likely to happen under a very possible state of the administration of the affairs of this great community of undivided property, it is very easy to prove. For, a majority of the parents in such community, may happen to have, for example, say three children only, to each family: the remaining part may have from three to twelve. Inasmuch, therefore, as the heads of families only are recognized in the government, it is plain, that each head of a family, for the use and support of all its members, would receive an equal portion of the spontaneous and cultivated fruits of the earth. If now it should happen that a diminished production of these fruits, should disappoint the expectations of this community, what is to become of the most numerous families? There might, perhaps, be enough to sustain, in comfort, the smaller families; and if there were only enough for this, those of greater number, must either suffer or perish! Such is the consequence, the direct and certain consequence, flowing from the principle, that a child has no right to look for support to any one, but a parent! And yet according to the absolute right of ownership in property, to which most men lay claim, even this reliance of the child upon the parent, is not to be accorded to it, since it is incompatible, as I have already shown, with the existence of such absolute right! [105]

If, however, the government should distribute to each family, in proportion to the number of its members, it would be to disavow the principle that a child is to look to its parent for support, and to declare that its claims rested upon the community. And this places the reliance where it ought to be, on the rights of the being receiving support, and not upon the benevolence, of parents or others. These latter are only trustees or agents, whose duty it is to give the support which the Public Authority furnishes. They have no right to withhold it, or falsely to say, that they give it. That these children have it in their own right, and not in the right of their parents, is evident, not only from this, that large families have more than small families, in proportion to their numbers; but also from this, that those children who have lost their parents, nevertheless have as much as those whose parents are living. I know it is not easy to refer, in history, to any nation, which has actually made common property of both moveable and immoveable things; but the truth of my observation is verified, by all history, in the condition of those communities, which come nearest to my supposition.

If, then, the power of making a gift or a will, does not belong to an individual, in a Community which holds all property, moveable or otherwise, in common; it will be well to enquire whether the same power is to be found in a community, in which nothing, or nearly nothing, is held in common, and in which, of course, every thing, or [106] nearly every thing, is held by a personal and exclusive tenure.

Let us take again, our square, the representative of our imaginary world, and under some modification or other, of the original and primary condition of man, make it wholly private property. Let the families, if you please, amount to one hundred, constituting, for argument's sake, the entire population of the human race at this period. Let the square E, F, G, H, be equally divided among these families.

I divide it equally, because I suppose it to be equally valuable in all parts of its surface; and because I take it for granted, that this Community [107] would not allow it to be divided, unequally, if they understood their equal rights, without giving to those who might have less than their equal and natural share, some full and undoubted equivalent for the deficiency. As it is unnecessary to perplex the discussion which engages us, with any consideration of equivalents, they are, therefore, altogether, excluded, and the division is made equal among all.

Now, it is perfectly competent to this Community, so to divide that which is the equal and common property of all; and after having divided it, to apportion one small square, or section, to one family another to another, and so on throughout the whole. But no particular family could, with any propriety lay claim, to any particular square, as its own, for example, square No. 1, or No. 100, in preference to any other. It is a majority of these families, who are to decide, by any method that is just and equal, what particular square or section shall belong to any particular family.

The same authority also, has power to say, for how long a time, any particular square, or section, shall remain in the possession, and be considered as the property, of any particular family. They may limit it, if they choose, to a single year, and then give another square or section to every family, instead of that which they held, the previous year. Nor is history wholly without examples of a practice of this sort.

" At, a time, when [108] 1 money was very scarce, the Egyptians must have been obliged to assign lands to the soldiers; and, afterwards, we may suppose, many disputes took place, relative to the produce, which from the diversity of soil, could not be alike on a given space. To remedy this inconvenience, the legislature ordained that the military portions should circulate continually, passing every year, from one soldier to another, so that the person, who had at first a bad lot, received afterwards a better." [De Pauw's Philosophical Dissertations on the Egyptians and Chinese. Vol. 2d. p. 276.]

Nor is Egypt the only instance we have, in which the term of private property in lands was limited to a single year. Historians inform us that, --

"The state of property in Peru, was no less singular than that of religion, and contributed likewise, towards giving a mild turn of character to the people. All the lands capable of cultivation, were divided into three classes. One was consecrated to the Sun, and whatever it produced, was applied towards celebrating the public rites of religion. The other belonged to the Inca, and was set apart, as the provision made by the community for the support of government. The third and largest share, was reserved for the maintenance of the people, among whom it was parcelled out. No person, however [109] had a right of exclusive property, [exclusive, forever, is here meant,] in the portion allotted to him. He possessed it only for a year, at the expiration of which, a new division was made, in proportion to the rank, the number, and exigencies of each family. All those lands were cultivated by the joint industry of the community. The people, summoned by a proper officer, repaired in a body, to the fields, and performed their common task, while songs and musical instruments cheered them to their labor." [Herrera, quoted by Robertson. History of America, vol. 3d page 166.]

In any such division, among the hundred families, as I have represented, in the diagram, E. F. G. H., it is plain that they, or rather a majority of them, would have the right to fix the time during which any and every particular family, should occupy any particular portion in question. It is evident here, that the whole have not acquired this aggregate property; inasmuch as it is supposed to be the same as that represented by the previous diagram, A. B. C. D. p. 98. It is evident also, that no one of these families, has acquired any particular section of the diagram, E. F. G. H., by any industry, economy, or skill. As in the former case, the property claimed to be owned, or to have been acquired, as well as the person claiming, are where they are, and what they are, not by any act of their own, but by a Power or an Agency, superior to both. All that can be said, is, that, one family has section No. 1, another No. 2, another No. 3, and so on, through all the sections, by common [110] consent; or, in other words, by agreement among themselves. Otherwise, there could be no exclusive possession, by any one, of any particular section. All would be common.

If, then, the time of possession, be limited to a single year, at the expiration of that time, every occupant of a section, ceases to have any title to exclusive possession. It is no longer, what he has called his. If, again; it were limited to ten years; this also is a period,of time which the generation then in being have a right to fix upon, provided it does not exceed the period of their lives; and the right, to the exclusive possession of any particular section, by any particular family, ceases, the moment, the ten years have gone by. Once more, it is competent for the majority to say, that each particular family may retain its designated section during life. And if it were a possible thing that each and every family should die on the same day, then the authority of this whole generation of occupants of the globe, would cease, when they ceased to exist.

How absurd, now, would it not be, where the sections are allowed to be held for one year only; for the occupant of any particular section, to claim to himself the right of nominating his successor; of saying who should occupy next after him, the section which he exclusively owned only by consent of the majority of his fellow-beings? How absurd would it not be, in any one, to hold forth similar pretensions in the case, where possession is limited [111] to ten years? But, certainly, not more so than he, or they, who should endeavour to extend their authority beyond the period of their own existence. All these acts, if they were perpetrated, would be flagrant invasions of right. The two first would infringe upon the sovereignty and rights of the majority of the community; since it is for this body to determine who are to occupy the sections, all vacated as they are, at the expiration of the limitations mentioned: and the last would infringe upon the rights of the succeeding generation who have a right to say for themselves, how this property, which a former generation have lived upon, shall be apportioned among them, without being interfered with by any.

It is to be said, when property is held for the term of a year, that, with regard to one another, the holders, during that time, are absolute and unconditional owners. It is also to be said, that the same thing is true, with regard to the period of ten years; and so also is the remark applicable to any term whatever, so that it does not extend beyond the life-time of the generation. If it does, then it interferes with the rights of the generation that succeeds. With regard to the individuals of any generation, their rights cannot go beyond the limits fixed by a majority of such generation: within those limits the rights of individuals will be absolute and uncontrollable. With regard to a whole generation, it cannot confer rights on any one, or ,ore, of the individuals of which it is composed, [112] extending to an encroachment on the rights of an other generation; for this is a power, a moral power I mean, which it does not possess; and therefore, what it does not possess, it cannot give.

Every one sees the absurdity, where land is held for a year, or for ten years, in equal portions as the sections in my diagram indicate, of any former occupant attempting to dictate who shall be the successor to the section he has formerly occupied; because it is seen to be a palpable invasion and assumption of the public authority; but, although not less enormous, the injustice of one generation, or part of a generation, infringing the rights of a succeeding generation, is not so visible; and merely because, as I take it, the line which separates one generation from another, is not so distinctly seen.

But, let us confine ourselves, as I have chiefly intended to do, to a single generation only, and let us see, if we cannot make plain, as the sun at noon-day, if it be not so already, the absurdity of this power of making a will. Let this community of one hundred families, be supposed to have divided the world among them, in manner the same as shown in our diagram, p. 106. Let us, also, suppose just as is the fact now, that they may die at different times; and that contrary to what happens now, there are to be no successors. If this little community allowed wills to be made, the consequence might be, that successively, as A, B, C, [113] D, E, &c. &c. should die, allowing them to die first, they would or might, by will, give all their sections, or in other words their property, for example, to O, while from O, downwards, they would remain with only the quantity of property originally given them. As between O, and the latter members of the alphabet, during the latter portion of the life time of this generation, there would be a vast inequality; and such an inequality, that, having determined in the first partition of the common soil, to make it equal, they would never have permitted the existence of wills, if they could have foreseen the effects they would produce.

For, it is manifestly absurd to suppose that any community, in the first division of the common property of all, would make equal allotments to all, and afterwards allow another principle to come in, which would destroy this equality. Nations, any more than individuals, cannot, knowingly adopt contradictory principles. They cannot be in favor of equality and inequality, at one and the same time. Yet this is the absurdity, to which the practice of making wills would lead, it they were allowed to exist in a community which should have no successors. The truth is, if such a community had ever existed, or could ever exist, they would be obliged to adopt the principle, that whenever any one or more of the occupants of the sections in question should die, that the sections themselves, on which the occupants [114] had spent their lives, and from which they had drawn the means of their subsistence and happiness, should revert to their survivors, and by a majority of them, be disposed of, as to them should seem good, without any regard, whatever to the wishes or desires of those who had ceased to exist; and this majority, would not fail to appropriate to its individuals equally, the abandoned sections, and all the improvements that had been made upon them.

We have seen, then, whether governments be organized so as to hold all property undivided and common, or to possess it, equally, and separately, that there is no such thing as any one's having acquired property at all, by any thing like his own act or deed, and that of course, he has no right to convey it away, and having pretended to convey it away, it is a false pretence altogether. It is true, however, that if I own, by the consent of the majority of my fellow-beings, for example, section No. I, for one year only, I may convey to another such section, but only for such period of time. So. also, if I own, by the same authority, the same or any other section, I may convey it likewise to another, for ten years, and no longer, if that be the period for which I am allowed to hold it. And once more, it is to be said, that if the majority of the community, of which I am a member, shall have consented that I shall be the exclusive owner of any particular section, during life, that I may dispose of such section, for such period and no [115] longer. The.reason why I have no right to dispose of such sections, for periods of time longer than the community shall have designated, is, that it is not the individual, but the majority who confers the right; for unless they did so confer it, the right to the exclusive occupation of any particular portion of the common property could not exist at all. And the reason why the community itself, viewed as a single and separate generation, have no right to give title, to any one, or more of its members to hold property longer than they shall live, or to give title to others to hold in virtue of such supposed right, is, that they, themselves, do not possess the power to do so. For, as individuals are equal, one with another, so are generations; and to allow a past generation to extend the operation of its laws or its wishes into the present generation, contrary to their consent, is to allow a principle which destroys the existence of equality between one generation and another; inasmuch as a generation which now is, cannot be interfered with, by a generation which is to come, but may interfere with it, unless, indeed, the latter shall prepare to resent and resist it.

It is evidently absurd, therefore, to pretend that acquisition of property from one another, fitter an equal division has been made, can give rights to those acquiring, to dispose of it, for periods of time longer than those who first held it, had the right to convey. Thus, if I should pretend to convey to another, the right to my particular [116] section, for example, for more than a year when I had it from the community for a year only, I should be an impostor, and the person to whom I should pretend to convey, could not be allowed to profit by the imposition. The same would be true, as it regards a period of possession, extending to ten years; or to a life-time. That system which would allow wills to exist, where property is held during life, would allow them, also, to exist where property is held for one year, or ten years: and this would be to sanction a principle no less unjust, and enormous than that the grantee should possess more than the grantor had power to give him : no less than to say, that the lessee should hold over the time agreed to, by the lessor, to the injury of another lessee.

It is apparent then, from the complexion of this discussion, that the whole world, is as it were, a great estate of which the Supreme Being, or Necessity, as the different understandings of men, may incline them to designate, is the owner in fee-simple; and of which, each generation, in its turn successively, is the lessee; the individuals of each generation, having equal rights, one with another, and the generations also, being equal one with another, without interference in any respect whatever.

If this be a correct aspect, in which to view the matter, the truth is established, that the materials of the world are, equally, as it regards the individuals of any particular generation, and as it [117] regards entire generations, one with another, the common property of mankind. The notion prevails to a considerable extent among men who have not reflected much, although the materials of the world belong to others, in all ages, equally with themselves, that still they have the right to transfer to others the result of their labors which remain to them, over and above their own subsistence. But they should recollect, that these labors, which they are so desirous to convey, through the instrumentality of wills, to others, are not a distinct and separate property. They are only to be found united with, and inseparable from, materials which are not their own, but which belong to the great mass of the present and all future generations. How, then, is it to be said, that I may give my labor, or the result of my labor, to others, when I cannot do so, without giving away also, that which is not my own? If we were to allow the principle, that because a man came into possession, even by rightful means, of the materials of the world, or a portion of them, and employed upon them his industry, judiciously or otherwise, that, therefore, the materials as well as the labor so employed upon them, were of right his property; and as such, that he had a right to dispose of them, as to him should seem good; it would go the full length of annihilating, in toto, the rights of every subsequent generation. For, I have only to inclose perhaps, or fertilize a field which a majority of my contemporary fellow-beings [118] shall have given me, in order to make it mine, absolutely mine, and to deny possession of it, if I shall say so, to every human being coming after me, forever. Under this pretext of ownership in property, we could set forests on fire, and consume them, so that future generations should reap no benefit from them. A coal-mine, where circumstances admitted of it, might be burnt up in a similar manner. Clay, since it is a material which after having been submitted to the action of fire, is incapable of being made the same substance again, might, at least, by way of argument, in one age, and from mere wantonness of power, too, be appropriated to uses incompatible with the welfare of succeeding ages. Yet surely, it cannot be pretended that a theory of rights, which leads to such baneful results, can be a just and true theory. It is to be said, indeed, in some instances, that industry is exercised, without being employed upon the materials of the world. The physician, for example, may give me a verbal prescription, which may restore me to health. In return for this prescription, I may render him some personal service, such as that of carrying a message for him, to some distant place. But in this instance, neither of us has any thing to transmit, or to wish to transmit, to posterity. The prescription has cured me of my disease, and nothing remains to me, further than that I am in good health. The message has been carried for him, as he desired, and, so far as the message is concerned, that is all that [119] remains to him. If, in return for the prescription, I paid him in some of the materials of the world, which I had in my possession, I could only transfer to him, such right or dominion to them, as I myself might possess. If I had only, a one year's use of them, this would be all that he could justly receive of me: if it were a ten year's use, that belonged to me, then a ten year's enjoyment is all I could give him. If I had a life-lease in what I gave him, he also would have the same life-lease, and no more.

The principle which the first of all governments in any country, and, indeed, every succeeding government, should adopt and practise, is this. In dividing that which is the equal and common property of all, the apportionments should be equal; and if it is concluded, as it will be, where men understand how best to pursue their own happiness, that a life-lease of property is better than any other, that will be the term preferred to every other. Then will every one understand that he has full liberty to use the materials of which, during his life-time, he is the master, in such a manner as, in his judgment, shall promote his own happiness. He will understand, too, that if the use which he shall make of them, shall be such as to meet, the approbation of those who come after him, they will be disposed to follow his example; but if not, that still the successor has a right to make such other use of the same, as to him shall seem good, with the knowledge that every [120] other person coming after him, too, will be equally free. Society, thus organized, gives notice to all its members, that they are to use their own industry, with a view to their own happiness; and cannot be allowed, on any pretence whatever whether of kindness or otherwise, to interfere with others in the same pursuit. Under these circumstances, then, no one would seek to acquire property for the purpose of making it an instrument (to be placed in the hands of children,) of domination over the children of other parents; and every one would be willing that all, in whatever age or generation they might appear, should have equal possession of the materials of the world, and, of course, of the means of assuring their own happiness.

If any thing can add force to these observations, it is, that as regards the prevailing ideas, as to who are and who are not successors to property, they are altogether founded in error. In a community where the soil, the equal and common property of all, should be divided equally, and the equal portions held by each member, for one year only, what member could say he had a successor? Is there any one on whom he could confer the right of occupying that which, by the death of his own tenure, he is compelled to vacate and abandon? Where the tenure extended to the term of ten years, who then would have a successor? If, indeed, there be any at all, the community itself is the successor; and there is no other. So also is the [121] community the successor, and the sole successor, in the case where the government is so organized, that every member of it holds, property during his life. At his death, it returns to the community, and these, in duty to every member of which it is composed, yield to them, at the suitable age, their share of the common property, and secure to them its enjoyment during their lives. There is, therefore, no such thing, then, as successor, in the meaning in which the word is received among men at the present day. It is only a misunderstanding of our rights that could have tolerated its use or existence among us.

I have spoken, by way of illustration, of men holding their right to property, on the same principle as that of a life-lease. In the further progress of this work, it will be seen, that I do not intend to recommend any restriction on the sale of property in perpetuity; and yet the system which I thus place before the world, will rigidly maintain the principle, that no man or generation of men, have property, or the disposition of property, either as to who shall own, or shall not own it, or as to the use that shall be made of it, one moment after they cease to exist. It is chiefly by the aid of money, that this is to be accomplished. Thus although I may have given to me, by the community of which I am a member, for example, Section No. 46, in our diagram, I may dispose of it to whom I will for a fair consideration, (and for none other); and if at the time of my death, I retain the value [122]

of it, in whatever it may consist, this value is to be surrendered up to the community from whom I received the section, and from the sale of which I obtained it. If it be money, this money is to be given up; and this, it is to be presumed, is of such an amount, as to be able to repurchase the section in question; (or another as good), and is, in fact, in the nature of a mortgage upon it, the right of which is thus handed over to the community, from whom the designation and appropriation to a particular person emanated. It is as if I had given my property away, but some one, no matter who, had given me money enough to repurchase it. But the utility, and force of this explanation, will be better understood as we advance.

In whatever aspect, therefore, we contemplate the operation of wills, either of individuals or of entire communities, in the disposition, as well of that kind of property which is personal and exclusive, as of that which is indivisible and common, we are met by incongruities, absurdities, impolicy and injustice, to such an extent, that it is much to be wondered at, -- that they should ever have been tolerated among men.

In the case of the nation I am next to consider, I have thought proper to contemplate them principally as commencing the occupation of the soil allotted to them, at the same time, and as terminating their existence at the same moment. This, I know, is not the ordinary phenomenon of actual life. But principles apply, as well in this way, as [123] in any other. Besides, I have the advantage, of presenting to the reader's comprehension, one generation of men, occupying the earth, or a portion of it, for a distinct and definite period of time, and then, in a body, giving way for a new generation. In this way, I make it more plainly apparent than I otherwise could, that one generation should not interfere with another, and, in this instance, for this additional reason, because it need not. As to the rights of each individual, in each generation, as it regards those of another of the next, they are shown in the previous case -- where the world was supposed to be owned wholly by one man; there being, however, this difference, that they do not cover and claim so great a quantity of property. There is no other distinction between them. Their rights, their relations are, every way, the same.

Nor, will these rights, either as regards generations, or individuals, suffer any change, if we make the supposition different. Thus, if half of a given population were to die midway of the common period of their lives, and instantly an equal number were to be ready to take their place; they would have the right so to take it, and use the property placed into their possession, as their predecessors had done, for their own good, in conjunction with the survivors of the deceased. And in so occupying property to which they had succeeded, they would have the right to consider, that they do it, in their own original right -- and owe [124] nothing therefor, either to those who have been, to those who are, or to those who may be.

We may go yet farther, and suppose any and every nation, at its first settlement, to have a population as great as ever it can support, and as ever will be desirous to draw support from its soil and other resources. If now, a given, and, as near as may be, an equal portion of its population, be imagined to die off, every day; and if it be further imagined also, that a portion of new individuals, so to call them, arrived at maturity, should appear, equal in number to the deceased, and take their places; this substitution of a new population, thus daily, supplying the waste of human beings produced by death; would make the nation perpetual. And in the operation of this daily substitution, the same principles would bear sway, that I have endeavored to inculcate throughout this work; that of the equal rights of man to the property of the great domain of nature. It is not here the place, to say, how beneficially such principles would act in promoting human happiness, should it be found that this substitution can easily and happily be accomplished. It is enough now, to observe, that they are our rights; that they belong to every human being; that they are not to be contravened, withheld or denied, among a people who understand them, without incurring a terrible responsibility; and that there is every reason to believe that a method will be devised, before the [125] conclusion of this work, which shall assure to every individual, all that his rights and his happiness require.