with great advantages for agriculture, emigration, and the segregation of the people from each other, without throwing over our manufacturing industry, at least for half a century to come, the broad shield of an effective protecting tariff. We shall need this shield only while we are passing through the term of our pupilage and apprenticeship, which, for a nation, of course, is always a protracted one; we shall need it, to adopt Burke's phrase, only while we are in the gristle, and have not yet hardened into the bone, of manhood. When we have enjoyed, as England has already enjoyed, the benefit of a strict protective policy for over a century, for the purpose of completing our education in manufactures, then we shall be ready to do what England at last has done,- to throw down all barriers, and to invite the world to compete with us in the application of industry and skill to any enterprise designed to satisfy the wants of man.

CHAPTER XXV.

THE DISTRIBUTION OF PROPERTY AS AFFECTED BY THE LAWS REGULATING THE SUCCESSION то THE ESTATES OF PERSONS DECEASED.

THE question respecting the distribution of property, which has chiefly been discussed only in the abstract by politicians and Political Economists, has now become one of practical interest and of the gravest importance. The sacredness of the institution has been generally recognized. That the accumulation of wealth in the hands of individuals was indispensable, in order that the aggregate property of the nation might. increase, and for the maintenance of order, the prevention of endless disputes, the encouragement of industry and enterprise, and the promotion of all the higher interests of society, was a fact that few were bold enough to deny. The inheritor of an estate usually claims it even as a natural right; he seldom thinks of defending his possession of it merely on the ground

of general expediency. He holds that he is indebted for it, not to government, or legislation, or the general consent of the community, but to those general principles of morality and natural law which protect his person and insure him the free use of his faculties and his time. Consequently, he invokes the aid of the law, the assistance of society, whenever he is molested in the enjoyment of his property. His doctrine is, that government did not give it to him, but that government is bound to take good care that he be not unjustly deprived of it.

Yet nothing is more certain than that all inherited property is actually enjoyed by the gift of law and the consent of soci ety. A natural right is not limited by the boundaries of states; yet a second son in France claims an equal share of his parent's real estate, in the same manner, and for the same reason, that the eldest son in England claims the whole. An American is entitled to dispose of his whole property by will, according to his own judgment or caprice; he may endow a college or a cat with it, if he sees fit, to the total exclusion of his natural heirs. But this posthumous privilege, this post mortem enjoyment of wealth, is strictly limited in France; if a testator has one child, he can dispose of but half of his property; if he has two children, only a third, and if three, only a fourth, of his estate is subject to his own will. The respective shares of the sons and daughters are accurately determined, and a man cannot, even by gift during his lifetime, do any thing to contravene the effect of this law. the wealth of a country, in the course of a must descend by inheritance or bequest, and as this descent is everywhere regulated by legislation, it follows that inherited property is the creature of law; its distribution is effected by government, or by the general consent of society, and is regulated by considerations of expediency alone. It sounds strange, but it is true, that the same authority which in England upholds the right of primogeniture, and in Scotland gives the privilege of perpetual entail, and in France deprives a testator of the power of giving away more than a small frac tion of his property by will, might, with equal justice, decree that a man's whole estate on his decease should escheat to the state, or come under the disposal of the legislature, to be applied equally for the benefit of the whole nation. The legisla

Now, as most of single generation,

tive power does not enact that the whole people shall be equal and joint heirs of all property which is vacated by death, simply because it believes that it is more for the interest of the whole people that the estate should be inherited only by the children of the deceased, or should descend exclusively to the oldest son. The law which disinherits five children out of one family for the benefit of the sixth, is surely competent to deprive the sixth also of his inheritance; if it leaves but one fourth of the estate to the caprice of the testator, it may destroy the efficacy of wills altogether.

It is true, that some considerations of justice and natural right come in to limit the general authority of law. The property which a man does not inherit, but actually creates by his own industry, seems to be his own by a higher and stronger title than any which society can confer. But it is no infringement of his right to say, that his power over the valuable article thus produced by him shall cease at his death; for the only superiority of his title consists in the fact that he, the possessor of the property, was also its creator, and one who only inherits it from its first owner cannot urge this plea; to defend the absolute right of the heir, would be to maintain that a right by inheritance is equal to one by creation, and thus to destroy the original claim of superiority of title. Absolute ownership, however sacred for the time, necessarily terminates at the death of the individual; society deprives him of nothing that is his own, when it refuses him testamentary power, because nothing that belongs to earth can be enjoyed beyond the grave, and he who has nothing can be deprived of nothing.

Again, the rightful authority of the legislature over the descent of property is limited by the trusts and expectations that have been created by immemorial usage and the previously existing state of the law. The conduct, the hopes, the calculations of men, are regulated by the customs of the country, by the assumed sanctity of prescription, and by long established institutions. The laws which regulate the descent of property are fundamental in their character; they are classed with the first principles of the constitution, like those which determine the form of the executive government, whether it shall be republican, aristocratic, or monarchical; and, excepting insignificant changes of forms and details, they are never altered but

on grand emergencies, or after a stormy revolution. A person of fortune adapts the education of his children to their presumed future enjoyment of his large estates; and although his own absolute right to his lands and goods certainly terminates at his death, these children suffer flagrant wrong, if their honest expectations are deceived, and they are compelled to adopt a course of life for which they were not trained. Society is under an implied contract with all who are members of it, not to make sudden or wanton changes in its own fundamental statutes, on whose presumed inviolability great hopes have been cherished, and plans devised the execution of which was to extend through future generations. Thus, if the French law of descent were suddenly introduced into this country, a great outcry would be raised, not merely against the policy, but the justice, of the measure; though no one thinks of impugning the law, as it actually exists in France, on any higher ground than that of expediency. The right of regulating the descent of property by will, of rewarding a favorite child, and disinheriting a stubborn or vicious one, has come to be consid ered here as a necessary incident of ownership; it would be urged, that the government might as well rob a man directly of his wealth, as deprive him of the power of giving it away as he sees fit, whether the gift is to take effect during his lifetime or after his decease. Yet nothing can be more clear, than that a man necessarily abandons his earthly property at the grave; and if any wrong is done in the distribution of it, that wrong is not suffered by the deceased, who is beyond the sphere of injury from his fellow-man, but by those whom he leaves behind. If his nearest of kin have any absolute right to it, beyond the limits of prescription and positive statute, in preference to all other persons in the community, and to the community itself, we have yet to learn on what foundation this right is based, and by what civilized nation, or in what code of laws, it has ever, to the full extent, been recognized. There is an implied contract between society and the individual, that he shall be protected in the exclusive enjoyment of his earnings, the fruits of his own labor, so long as he is capable of enjoying them; when that capacity ceases, the contract is dissolved, the obligations of society have been fulfilled, and what is left behind without a natural owner comes into the

common stock, to be distributed, or appropriated in mass, solely from a regard to the greatest good of the greatest number.

These considerations are applicable to all inherited property, whether real or personal; but they are most conclusive in the case of the ownership of land. Without going into the question respecting the manner in which territory was first parcelled out and appropriated to exclusive use, or whether the original division took place by express compact, or by silent sufferance which gradually became prescriptive right, there is no doubt that the land first belonged in common to all men, and the appropriation of it by individuals is now admitted to be equitable only because it is believed to be expedient. The earth was given to be the habitation, and to provide for the subsistence, of all men, and it was at first enjoyed in common. The ocean and the air are so used even now; the former is the common highway of nations, because its vast extent affords room for all; while the right of navigating straits, narrow seas, and inlets into the land, is sometimes limited, under the pretext that one government must have the entire control of them in order to prevent interference and disputes, or to provide for its own safety, or to repay itself for disbursements required in order to make the navigation of them safe for all. These are reasons of mutual convenience; and perfectly similar reasons are alleged to justify the division of land, and the appropriation of it by individual owners. That appropriation of it in the first instance was certainly a usurpation, for it must have taken place without the consent, and even without the knowledge, of the vast majority of those who, up to that period, had enjoyed it in common, each one of whom had consequently as good a right to it as he who first fenced it in. If it could be proved that this division did not promote the general welfare, or that it produced on the whole more harm than good, every person might claim either a share of the land, or the privilege of cultivating the whole of it in common with others, as his natural birthright. In fact, a portion of the land is always given up for general use as a highway, because it is for the common advantage that all should have the privilege of passing over it. The farms contiguous to the highway could not equitably be held as private property, except from a similar regard to the common interest.