XIV. The Rights of Gift and Request

CHAPTER XIV. THE RIGHTS OF GIFT AND BEQUEST. § 308. Complete ownership of anything implies power to make over the ownership to another j since a partial or entire interdict implies partial or entire ownership by the authority issuing the interdict, and therefore limits or over... rides the ownership. Hence, if the right of property is admitted, the right of gift is admitted. The last has, indeed, as deep a root as the first. If we refer back to those conditions to sustentation of the indi ~ vidual and of the species, from which the fundamental principles of ethics are deducible, we see that while indi vidual preservation depends on the habitual maintenance of the natural relation between efforts and the products of efforts, the preservation of the species cl epends on the transfer of parts of such products, in either prepared or crude forms, from parents to offspring. The ability to give away that which has been acquired, consequently underlies the life of every species, including the human species.

Of course there cannot be aS8igned the same warrant for the right of gift to others than offspring. Of this, while we say, in the first place, that it is a corollary from the right of property, we may say, in the second place, that it is also a corollary from the primary principle of justice. The joint transaction of giving and receiving, directly concerns only the donor and the recipient j and leaves all other persons THE RIGHTS OF GIFT AND BEQUEST. 119 unaffected in so far as their liberties to act are concerned. rrhough the handing over something possessed, by A to B, may affect 0, D, E, &c., by negativing certain activities which they proposed to pursue; such activities, contingent on events that might or might not happen, cannot be 'included among those activities which may not be hindered without aggressing upon them. Their spheres of action remain intact. If the right of gift to others than offspring had to be decided upon from an expediency point of view, strong reasons might be assigned for concluding that unrestrained giving should not be allowed. One who duly weighs the evidence furnished by the Charity Organization Society, as well as by individuals who have investigated the results of careless squandering of pence, will be inclined to think that more misery is caused by charity (wrongly so-called) than by all the crimes which are committed; and will perhaps infer that benefit would result if almsgiving were forbidden. Bnt in this case, universal belief in the right is so strong that no one .dreams of denying it for reasons of apparent expediency.

Legislation clearly acknowledges this corollary from the law of equal freedom. Without going back in search of a law asserting the right of gift, which probably does not exist, it suffices to name the implied recognition among ourselves by an act of Elizabe~h, which, while it asserts that a deed of gift is good against the grantor, makes it invalid if put in bar of the claims of creditors: implying, in fact, that while a man may give that which is his own, he may not give that which, in equity, belongs t? others. § 309. The right of gift implies the rjght of bequest; for a bequest is a postponed gift. If a man may legiti mately transfer what he possesses to another, he may legitimately fix the time at which it shall be transferred. When he does this by a will, he partially makes the 120 JUSTICE. transfer, but provides that the transfer shall take effect 'Jnly when his own power of possession ceases. And his right to n1ake a gift subject to this condition, is included in his right of ownership; since, otherwise, his ownership is incomplete.

One of the implications is that a testator cannot equitably be restrained in the distribution he makes of his property, in so far as the choice of recipients is concerned, or the amounts assigned to such recipients. If other men in their corporate capacity direct that he shall give to A or shall not give to B, or shall give to A, B, and others in such and such proportions, then other men make themselves part .. owners of his property: it shall be turned to purposes which they will and not to purposes which he wills. And to the extent that his power of bequest is thus interfered with, property is taken out of his possession while he still lives. One of the illustrations of the general truth that the civilized man has greater freedom of action than the partially .. civilized man and the uncivilized man, is the fact that the right of bequest, scarcely recognized at first, has gradually established itself. Before law existR, custom, no less peremptory than law, habitually prescribes the" modes in which property descends. Among sundry Polynesians there is primogeniture, and in Sumatra equal division among Ina1e children. Hottentots and Damaras enforce primogeniture in the male line. On the Gold Coast, and in some parts of Congo, relatives in the female line inherit. Among the Eghas and neighbouring peoples, inheritance by the eldest son includes even his father's wives, exoept his mother. In Timbuctoo, the prescribed share of a son is double that of a daughter; while sometimes among the Ashantis, and habitually among the Fulahs, slaves and adopted children succeed: some freedom of bequest being thllS possessed by these higher of the African races. In Asia.. the custom of THE RIGHTS OF GIFT AND BEQUEST. 121 Arabs, Todas, Ghonds, and Bodo and Dhimals, requires equal division among' the male sons. Sister's sons inherit the property of a Kasia; and only accounts of Karens and Mishmis mention a father's ability to dispose of his goods as he pleases. Similarly was it with the European races in early times. Tacitus writes of the primitive Germans that "there are no wills;'~ Belloguet concludes that (( Celtic, like Gern1an, customs did not admit a right of testament;" and KCBnigswarter says the like of the Saxons and Frisians: The original ownership by the village community passed into family-ownership; so that estates could not be alienated from children and other relatives.

In the Merovingian period personalty could be hequeathed, but land only if heirs were lacking. Feudalism, inheriting these usages, and requiring that each fief should furnish its contingent of men-at-arms properly led, regulated the mode of descent of land for this purpose; and, in so far, negatived the power of bequest. But the growth of· in dustrialism, with its freer forms of social· relations, has brought increased freedom in the disposition of property; and it has 'brought this in the greatest degree where industrialism has most subordinated militancy, namely, among ourselves and the .Americans. In France, tho State decides for the testator .how part of his property shall be distributed among relatives; and there exists a like limitation of his power in other European States. But here, freedom of bequest, in respect of personalty, is uninterfered with in so far as distribution goes; and though, in respect of such realty as is entailed, the power of the proprietor is suspended, and becomes operative only under certain conditions, yet there is a manifest tendency towards rernoval of this last restriction.

§ 310. But while, along with the right of gift, the right of bequest is implied by the right of property,-while a man's ownership may justly be held to include the right t22 JUS~ICE. of leaving defined portions of what he owns to specified recipients; it does not follow that he is ethically warranted in directing what shan be done by the recipients with the property he leaves to them. Presented in its naked form, the proposition that a man can own a thing when he is dead, is absurd; and yet, in a disguised form, ownership after death has been largely in past times, and is to a considerable extent at present, recognized and enforced by the carrying out of a testator's orders respecting the uses to be made of his bequests. For any prescribing of such uses, implying continuance of some power over the property, implies continuance of some possession; and wholly or partially takes away the posses sion from those to whom the property is bequeathed. Few will deny that the Earth's surface, and the things on it, should be owned in full by the generation at any time existing. Hence the right of property may not equitably be so interpreted as to allow any generation to tell sub sequent generations for what purposes, or under what restrictions, they are to use the Earth's surface or the things on it.

This conclusion }8 no less forced on us if we refer back to the derivation of the right of property from the laws of life. For if, as we have seen, a pre-requisite to maintenance of the species is that each individual shall receive the benefits and suffer the evils of his own conduct-if the pre-requisite to continued sustentation is that when effort has been expended the product of that effort shall not be intercepted or taken away-if the right of property has this biological requirem.ent for its ultimate justification; then, the implication is that, being a condition to the maint8nance of life, it ceases with the cessation of life. Strictly interpreted, therefore, the right of gift, when It takes the form of bequest, extends only to the distribution of the bequeathed property, and does not include specifipation of the uses to wbicb it shall be put.

THE. RIGHTS OF GIFT AND BEQUEST. 123 § 311. Here, however, we come upon certain qualifica .. tions arising from the fact that among human beings there are other relations than those between ~dult citizens-the relations of parents to offspring. We have seen that the ethics of the State and the ethics of the Fam ily are opposed ir: nature' and hence when, as happens at the death of a parent, the ethics of both enter into the question, a compromise has to be effected. It may, indeed, be held that were human life normal, instead of having the abnormalities due to its transitional state, difficuHies would rarely arise; since the deaths of parents would not occur until children were adults, and property bequeatbed to them might pass at once into their possession without restrictions. But as, under existing conditions, the deaths of parents often occur at times when children are unable to take care of themselves and their property, it results that, to fulfil parental obligations as far as possible, parents must so specify the uses of bequeathed property as to further their children's welfare during immaturity. Inasmuch as the products acquired by efforts are possessed, not for self-sustentation only, but for sus tentation of offspring, it follows that when self-sustentation is prematurely ended, the acquired products may rightly be bequeathed for the sustentation of offspring; and the use of them for this purpose, being no longer possible to the parent, may be given in trust to some othe'r person: such continued possession by the parent as is thus implied, lapsing when the offspring become adult.

This bequest of proper.ty in trust for the benefit of children, necessitates a fixing of the age at which they ITlay be judged capable of taking care of themselves and their possessions; and in fixing this age ethical considerations give us no help. All we may infer from them is that such continued ownership of property by a dead parent as is implied by prescribing the uses to be made of it for tho benefit of children, may rightly last up to that age at 124 JUSTICE. which ordinary experiences lead men to think that the immaturity of children has ended-an age necessarily indefinite; since it varies with each type of mankind, is differently estimated by peoples of the same type, and is unlike in different individuals. § 312. A more perplexing question here arises. Derived though the ultimate law, alike of sub-hunlan justice and human justice;, is from the necessary conditions to self preservation and the preservation of the species; and derived from this as are both the right of possession during life and that right of qualified possession after death implied by bequests in trust for imnlature children; a kin dred derivation of any further right to prescribe the uses of bequeathed property appears impracticable. Nothing beyond a quite empirical compromise seenlS possible. On the one hand, ownership of property after death is un warranted by the ultimate principle of justice save in the case just named. On the other hand, when property has been acquired, perhaps by unusual industry, perhaps by great skill iIi business (implying benefit to others as well as to self) or perhaps by an invention permanently valuable to ,mankind, it is hard that the owner should be wholly deprived of power to direct the uses to be made of it after his death: especially where he has no children and must leave it unbequeathed or bequeath it to strangers.

Evidently a distinction is to he made. One who holds land subject to that supreme ownership of the community which both ethics and law assert, cannot rightly have such power of willing the application of it as involves permanent alienation from the community. In respect of what is classed as personalty, however, the case is different. Pro perty which is the product of efforts, and which has resulted either from the expenditure of such efforts :tpon raw materials for which equivalents (representing so much labour) have been given or from the savings out of wages TH~ .RIGHTS OF GIFT AND BEQUEST. 125 or salaries, and· is thus possessed in virtue of that relation be,tween actions and their consequences on the maintenance of which justice insists, stands in another category. Such property being a portion of that which society has paid the individual for work done, but which he has not consumed, he may reasonably contend that in giving it back to sociBty, either as represented by certain of its members 0r by some incorporated body, he should be allowed to specify the conditions under which the bequest is to be accepted. In this case, it cannot be said that anything is alienated which belongs to others. Contrariwise, others receive that to which they have no claim; and are benefited, even when they use it for prescribed purposes: refusal of it being the alter native if the purposes are not regarded as beneficial. Still, ns bequeathed personal property is habitually invested, power to prescribe its uses without any limit of time, may result in its being permanently turned to ends which, good though they were when it was bequeathed, have been ren dered otherwise by social changes. Hence an empirical compromise appears needful. We seem called upon to say that a testator should have some power of directing the application of property not bequeathed to children, but that his power should be limited; and that the limits must be settled by experience of results.

§ 313. Since social self-preservation takes precedence of individual self-preservation, it follows that there exists a warrant for such qualification of the right of bequest as arises from the need for meeting the cost of protecting the society against other societies, and protecting individuals against other individuals. Granting that under existing conditions it is relatively right that the community, through its governmental agency, should appropriate the property of each citizen to the extent requisite for maintaining national c~efence and social order; it becomes a question of policy in what way the needful appropriations shall be 126 JUSTICE. made; and if it appears convenient that part of the required revenues should be raised by per-centages on bequeathed property, no ethical objection can be urged. Subject to this qnalificatio'l1, we see that the foregoing deductions from the law of equal freedom are justified by their correspondence with legislative provisions; and that there has been a progressive increase in the correspondence between the ethical and the legal dicta. The right of gift, not everywhere admitted in old times, has been in later times tacitly recognized by .Acts which limit it to property that is equitably a man's own. The right of bequest, scarcely existing in early social stages, has been established more and more in proportion as the freedom of the indio vidual has become greater; and has reached the fullest legislative assertion under our own free institutions and. the American ones derived from them. Directi.ons for the uses of property left to immature children, which we have seen to be ethically warranted, have become authorized by law.

And such restrictions on the power of ordering what shall be done with property otherwise bequeathed, as are em bodied in laws of mortmain and the like) harnlonize with ethical inferences.