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" WASHINGTON, D. C., January 7, 1887. "MELVILLE W. FULLER, Esq.
“Dear Sir:-I have just received your kind invitation to attend the meeting of the Illinois State Bar Association, to be held on the 11th and 12th instant. I regret that I cannot accept on account of our being hardly pressed with the business of the court, especially as I see that memorial addresses are to be delivered upon Judge Davis and other eminent persons.
"Very truly yours,
"JOSEPH P. BRADLEY."
"25 WALTON PLACE. "FRANK H. JONES, Esq., Secretary.
“Dear Sir:-I beg to thank the committee for their invitation to be present at the Annual Banquet of the State Bar Association, and to express my regret that my engagements here make it impossible for me to be away from Chicago this week.
"Very truly yours, "CHICAGO, Jan. 10, 1887.
"ROBERT T. LINCOLN."
Justices Miller, Field, Matthews and Blatchford, expressed their regrets at their inability to attend the sittings of the Association.
Mr. H. S. Greene read a paper on this subject.
On motion of Mr. Hurd, the thanks of the Association were tendered, and a copy of the address requested for publication.
REPORT OF SPECIAL COMMITTEE ON LAW REFORM.
Mr. Hurd, of the special committee on Law Reform, reported the following:
At the last annual meeting of this Association, we had the honor of recommending, on behalf of the Committee on Law Reform, a change in the statutes of wills and descent of property, so as to limit the amount one might take by will or by descent from the same person. After some discussion, the subject was re-committed to us for a more full presentation of reasons in favor of the recommendation.
We purposely refrained, in our report, from giving more than suggestions of a possible plan of limitation, preferring rather to consider the feasibility of the proposal apart from the details that belong to its final adoption. We did not advocate any plan that would carry an estate away from the kin of the decedent, but one that would distribute it more widely among them, in other words, break it up into smaller portions than is done in the great estates at the present time, hoping in this way to counteract the growing tendency to mass the wealth of the country in few hands, and keep it on in its course of augmentation through succeeding generations.
For the purpose of illustration, we said the amount a child should take might be limited to, say $500.000; and the amount one standing in the next degree of kinship might take, say $100,000; that those standing in the first degree of kinship should, if the estate is sufficient, be first paid to the full amount of the limitation applicable to that degree. If there were more than sufficient to pay these, the overflow should go to those standing in the next degree of kinship with a like limitation, and so on until the estate is exhausted. If there should happen to remain a surplus after satisfying all known heirs, the balance might go to the State as intestate estates now do when there are no heirs, a thing that seldom happens.
To make the statement more plain, let us suppose an estate to amount to $1,000,000, and the heirs to be as follows: In the first degree a child, and in the second, three brothers, and in the third, ten other persons. The estate would be divided thus: $500,000 to the child; $100.000 each to the three brothers, and the remaining $200,000 among the ten persons in the third degree of kinship, in equal shares, or $20,000 to each; so that, instead of making the one child ruinously rich, four persons would have handsome fortunes, and ten would be given a good start in the world.
We did not propose any restriction upon devises for educational or charitable purposes. It is worthy of note. however, that Virginia, Maryland and New York, and perhaps other States, have enacted laws restricting the amount that may be given by will for charitable purposes.
Upon the question whether such a law would not be evaded by gift inter vivos, and especially in anticipation of approaching death, we think it sufficient to say that the law could be so framed as to avoid all gifts that were in their nature testamentary or were made with intent to defraud the law. It is most likely the law would induce more liberal giving inter vivos, both to assist dependents and for benevolent purposes.
The short discussion at the last meeting of this Association, that followed our recommendation, brought out prominently two questions:
1st. Is the disposition of property upon the death of the owner within the control of the legislative power of the State ?
2d. Would it be well to make the change proposed ?
Upon the first question it will not be necessary to spend much time. There has never been a time in the history of the law in this country, when the disposition of property by descent or by will was not regulated by statute. Each State is free to adopt such laws on the subject as it may think best. And no State, so far as we know, has seen fit to impose any constitutional restriction upon the exercise of this power. Mr. Reeves, in his “Treaties on the Law of Descents," in the United States, says: "After the Revolution, the several States composing the confederacy, enacted laws regulating the transmission of real property by descent, not only differing from, but utterly opposed to, the common law of England. The English law of descents had its foundation in principles of feudal policy, in no measure applicable to the existing state of things in this country, and calculated to cherish an aristocratic spirit, hostile to our republican forms of government. When we became a nation, we found ourselves divideu into a number of distinct separate sovereignties, each possessing the power to enact laws affecting the property within its own jurisdiction, with which the national government, binding all the States together with political bands, had not the remotest concern. Having rejected the English laws of descent, each State passed laws to regulate the descent of real property for itself, all of them differing greatly from this branch of the common law of England, and each differing from the other." He proceeds to point out some of the differences, and says: “So a jurist, who is most perfectly acquainted with the law of descent in his own State, may be wholly incompetent to give an opinion that may be relied upon, respecting the law of descent in any other State.”
Both in England and in this country the power to dispose of property by will is the creature of the statute. Mr. Williams, in his work on Real Property, says: "The right of testamentary alienation of lands, is a matter depending upon act of Parliament," and Mr. Redfield says: "The right of testamentary disposition of property is unquestionably one of the results of cultivated social life and dependent upon municipal law." When we look into the statutes of wills of the different States, we find them almost as variant as the statutes of descent. In some of the States an infant may make a will; in others he can not. In some a married woman has the same capacity to dispose of her property that her husband has of his; in others she is not capable of making a will of any but her "separate property," technically so-called. These statutes are continually undergoing changes. In this state they have quite recently undergone very important
changes. No will has any validity that is not executed, witnessed and proved in the way pointed out by statute, and unless the person making it is expressly included among those empowered to make a will. Even as to those who are empowered to make testamentary disposition of their property.their powers is not unrestricted. A husband or wife cannot will away his or her property so as to deprive the other of a certain share of it, which the statutes of descent give to the survivor. Thus, when the decedent leaves no child or descendants of a child, the surviving husband or wife will take onehalf the real and personal estate in spite of the will of the deceased. There are many other restrictions which lawyers will readily call to mind. There is no constitutional restriction upon the right of the Legislature to make and change these laws to suit the wishes of the people, nor is there any vested right standing in the way. Mr. Proffatt, in his work on Wills, says: “It is claimed that the jus disponendi is a necessary incident of property, an inseparable quality, but if, by the term, we understand a right of disposal while a man lives, we can admit that it belongs to ownership; but it is quite a different thing when a man ceases to live, for then, naturally, he ceases to have dominion, and if he has a natural right to dispose of his goods for a short time after death, why not for a million of years? It is not a natural inherent right of the individual to dispose of his property after his decease; it is no more or less than a right given by positive law, a right which is founded on convenience and concession."
2d. Would it be well to make the change proposed ?
That there is a most serious and a growing discontent among the people having its cause in the relations of property to our social and political welfare, no one will deny. The question upon which we must expect a wide difference of opinion is, just where does the fault lie, and how can it be remedied? We do not profess that we shall be able to answer either of these questions satisfactorily, but we think we shall be able to give some substantial reasons why the recommendations referred to would at least have a favorable tendency, extending with increasing efficiency far into the future.
To prevent the accumulation of large estates in particular families through inheritance and devises, has always been regarded as one of the distinguishing features in the policy of this country. If we look into the matter a little, we shall find that it lays at the very foundation of our system of government, and exercises a most salutary influence upon our social and political welfare, scarcely less powerful than the elective franchise itself; and without which a free ballot would be inconsistent with the permanence of a democratic government. De Tocqueville, speaking of this feature in our policy, says: “I am surprised that ancient and modern jurists have not attributed to these laws a greater influence on human affairs; for they exercise an incredible influence upon the social state of the people, a steady and uniform operation, affecting, as it were, generations yet unborn. Through their means man acquires a kind of preternatural power over the future lot of his fellow-creatures. When the legislator has once regulated the law of inheritance, he may rest from his labor. The machine once put in motion will go on for ages, and advance, as if self-regulated, toward a point indicated beforehand. When framed in a particular manner this law unites, draws together, and vests property and power in a few hands; it causes aristocracy, so to speak, to spring out of the ground. If formed on opposite principles (as in the United States), its action is still more rapid; it divides, distributes and disperses both property and power. Whichever be the tendency, it goes on of its own force, grinding to powder every obstacle in its way." He contends in substance, that the effect of our laws of inheritance (and he intends to include among these the laws against entailment, primogeniture and perpetuities) constantly tends to equality of condition among the people, and coupled with the equality at the polls, gives a peculiar direction to public opinion, a peculiar tenor to the laws; imparts new maxims to the governing authorities and peculiar habits to the governed, modifies whatever it does not produce.
We do not wish to he understood as agreeing with the notion that it is either practi. cable or desirable to produce an equality as property, much less a community of ownership or enjoyment; on the contrary we indorse to the fullest extent what is said by Chancellor Kent in his Commentaries: “The sense of property is graciously bestowed on mankind, for the purpose of rousing them from sloth and stimulating them to action; and so long as the right of acquisition is exercised in conformity to the social relations and the moral obligation which spring from them, it ought to be sacredly protected.
"The natural and active sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erection of charities, and the display of the benevolent affections."
"A state of equality as to property is impossible to be maintained, for it is against the laws of our nature; and if it could be reduced to practice, it would place the human race in a state of tasteless enjoyment and stupid inactivity, which would degrade the mind and destroy the happiness of social life. Where the laws allow a free circulatior to property by the abolition of perpetuities, entailments, the claims of primogeniture, and all inequalities of descent, the operation of the steady laws of nature will, of themselves, preserve a proper equilibrium, and dissipate the mounds of property as fast as they accumulate.”
The difficulty is that the laws, as they now stand, fall short of accomplishing what they were designed to do, and what they once did sufficiently well. They are too slow to keep up with this time of invention, steam and lightning. They were well enough when it was of rare occurrence that a man accumulated a million dollars in a long business life; but now when the possibilities of amassing wealth are almost limitless; when one may, if he possesses the requisite skill and credit, control the markets of the civilized world, give personal and momentary direction to his widely separated agencies without moving from his desk, and amass millions in a single year, the conditions are altogether cbanged, and call for a corresponding change in the laws of property, such a change as will keep us in the way originally marked out as likely to produce the most happy results for all concerned.
The reasonable limits of this discussion will not permit of a mention of all the evils that may flow from the creation and maintenance of great estates in this country. The one consideration that is uppermost, is the safety of property itself. The relations of property to our social and political welfare are so intimate, and the laws that control them are so far reaching, that they demand the most careful scrutiny and the earliest attention. The happiness of our people and the perpetuity of our government are bound up in this question. The great question is, how may we put a stop to the growing animosity between labor and capital ?
The committee did not in their recommendation favor such a change in the laws of inheritance as would affect the great majority of estates, but only those that are obnoxious to the spirit of our institutions, the “abnormally large fortunes.” such as absorb and take out of circulation large blocks of wealth, giving to the possessors an undue prominence and influence in the affairs of the country and constituting conspicuous marks of envy and suspicion. It cannot be denied that the creation of these colossal fortunes is accompanied by a tendency to decrease the number of smaller ones and to greatly increase the number of those persons who have no property at all or who have so little that they take sides with those who have none. The absorption by a few dealers of all the business in their line, means the killing out of the small dealers, the decrease in the number of the employer and independent class and the increase of the employed and dependent class. How few men control the entire railroad system of this country, and what an immense power they possess and what facilities they have for increasing their wealth and power. They make the market in stocks to-day, and break it to-morrow; are every time the gainers, but over against these few gainers stand the great army of losers, not wiser, perhaps, but in a great deal fitter frame of mind to join the ranks of those that think things are some way out of joint. All this results in discontent, and the number of the discontented is steadily and rapidly increasing. We are not alone in our apprehensions. They are in the minds of all thinking men. No less a dignified and intelligent body than the House of Bishops of the Episcopal Church, in their late convention, at Chicago, thought the subject worthy of the most prominent place in their pastoral letter. They say: "Under the conditions of modern civilization, new dangers spring from the inequalities of the social state, the increaso of poverty, discontent and pride being as marked as the accumulations of fortunes and
the growth of luxury. How shall this discontent and misery be remedied; wealth recognize its stewardship; affluence own the brotherhood of man, and the less favored and successful be rendered cheerful and contented with their lot ?"
That the church can do much by its teachings and its ministrations, there is no doubt, but it is for the State to correct the sources of this unhappy condition of things. The law is the express principle upon which the machinery of State works out the great results of organized society. As the principle is, so must the results be.
It is not pretended that what we propose is a cure-all, but it is a movement in the right direction. It pertains to the fundamental principles of our government. It will turn the tendency to aristocracy and classes to that of democracy and equality of opportunities in the struggle of life.
The first thought is that this measure is antagonistic to property rights; on the contrary it is to conserve them. Ours is a democracy in which majorities rule. Our policy has been and must continue to be to keep property in the majority, or, in other words, keep the majorities on the side of property. Let us contemplate for a moment the state of things that would come about, if those who are attributing all their miseries to the individual ownership of property, should suddenly find themselves in the majority at the polls. Their most sagacious leaders are already directing their attention to this point of attack, as far more likely of suceess, and infinitely safer to the agitator himself, than dynamite.
A leader among the non-property class speaking of this movement in Chicago. says:
“We are already at work. Every labor organization in the city is now a political club. The first work to be done, is to whip the small shop and store keepers into line. There are the small grocers and dry goods stores, the butcher shops, fancy stores, saloons, shoe stores and a hundred and one other small dealers. These parties were not with us last fall. The strength of their vote is in the neighborhood of 20,000. A raid is to be made on them. They make a living out of the working class, and if they are to continue to do it, they will have to vote with the party that supports them. And I can tell you that these people will be shown that they cannot afford to say no. The great question in the political world now is Capital v. Labor. It is the only issue that can divide political parties. The issues that created the Democratic and Republican parties are dead. In less than ten years it will be the United Labor party and the United Capital party, and the question will be fought out on that line. Then will come the social revolution, I suppose. The world will be turned upside down, capital will be put under where it ought to be-made subservient to man, and not man subservient to capital, as is now the case. Yes, sir, the world has got to face this issue, and, as Chicago is the most radical place in the world, its most advanced point will always be located here."
That there is a strong movement in this direction, no careful observer can have failed to see. To return and move in the opposite direction while property owners are largely in the majority, may easily be done. It must be done by appealing to the selfinterest of the people, and not by running counter to it. This is a land of abundance. We profess that it is one of opportunities and incentives. Let us keep good this profession. By so doing we shall keep the majorities on the side of property, and the poison of the socialist, nihilist and anarchist doctrines will not take effect. Their animosity to individual and exclusive ownership of property and to laws for its protection grows out of the fact that they do not happen to be the individuals who own it, and envy of those who do. There is nothing in the doctrine of these men that has any root in the human affections. No man in his natural sympathies would be willing to put his earning in a common pot, to be doled out to him from a common crib, or to be driven to his daily toil by a common overseer-the practical outcome of socialism. It is as much an affection of the human heart to desire the exclusive possession and enjoyment of property as it is to love one's own offspring, for whose well-being he would gather it around him. It is envy of those who have property that lies at the bottom of all the socialistic and nihilistic talk, and not an unwillingness to enjoy its comforts. It is the talk of those who have nothing but want something, and would turn everything upside down to get it.