consideration; because the children were supposed to have a right to the succession on the death of the parent; though Grotius considers disposition by will to be one of the natural rights of alienation. (a) In the early periods of the English law, a man was never permitted totally to disinherit his children, or leave his widow without provision. (b) Testaments were introduced by Solon into the Athenian commonwealth in the case in which the testator had no issue; and the Roman law would not allow a man to disinherit his own issue, sui et necessarii hæredes, his natural and domestic heirs or children, and their descendants, without assigning some just cause in his will. The reason of the rule in the civil law was, that the children were considered as having a property in the effects of the father, and entitled to the management of the estate. The querela inofficiosi testamenti was an action introduced in favor of the children, to rescind wills made to their prejudice, without just cause. (c) But the father could charge his estate with his debt, and so render the succession unprofitable; and the children, could, in that case, abandon the succession, and so escape the obligation of the debts. In England the right of alienation of land was long checked by the oppressive restraints of the feudal system, and the doctrine of entailments. All those embarrassments have been effectually re moved in this country; and the right to acquire, to hold, to * 328 enjoy, to alien, to devise, and to transmit property by inheritance, to one's descendants, in regular order and succession, is enjoyed in the fulness and perfection of the absolute right. Every individual has as much freedom in the acquisition, use, and disposition of his property, as is consistent with good order and the reciprocal rights of others. The state has set bounds to the acquisition of property by corporate bodies; for the creation of those artificial persons is a matter resting in the discretion of the government, who have a right to impose such restrictions upon a gratuitous privilege or franchise, as a sense of the public interest or convenience may dictate. With the admission of this exception, the legislature has no right to limit the extent of the acquisi (a) De Jure Belli, b. 2, ch. 6, sec. 14. (b) 1 Reeves's Hist. of the English Law, 11. Vide infra, vol. iv. p. 503. tion of property, as was suggested by some of the regulations in ancient Crete, Lacedæmon, and Athens; (a) and has also been recommended in some modern utopian speculations. 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. (b) * When * 329 the laws allow a free circulation to property by the abolition of perpetuities, entailments, the claims of primogeniture, and all (a) Arist. Politics, by Gillies, b. 2, ch. 8. Potter's Antiq. of Greece, vol. i. p. 167. (b) Harrington, in his Oceana, declared an Agrarian law to be the foundation of a commonwealth; and he undoubtedly alluded to the common interpretation and popular view of the Agrarian laws in ancient Rome, and not to the new and just idea of M. De Niebuhr, that those laws related only to leases of the public lands belonging to the state. History of Rome, vol. ii. 116–131. The public lands belonging to the state in ancient Rome, and which kept enlarging with every conquest, were, in the early periods of its history, leased out, and mostly for pasturage, to occupiers who were tenants at will to the state. And as large accessions of new citizens accrued, there would be new allotments, which necessarily involved the sacrifice of many existing interests. The burghers or patricians had the exclusive use of these lands while unallotted, not exceeding 500 jugera to each individual; but when they were divided by Agrarian laws into small lots for cultivation, the plebeian commoners took them, and this gave the Agrarian law such great and just popularity. Dr. Arnold (History of Rome, vol. i. 160) concludes that "if amongst Niebuhr's countless services to Roman history any single one may claim our gratitude beyond the rest, it is his explanation of the true nature and character of the Agrarian laws." Montesquieu, in his Spirit of Laws, b. 5, ch. 3, 4, 5, 6, frequently suggests the necessity of laws in a democracy establishing equality and frugality. All schemes of that kind are essentially visionary, though they may not be quite as extravagant as some of the reveries of Rousseau, Condorcet, or Godwin. In the code of laws compiled by King James, in 1606, for the new colonies in America, a community of property and labor, for five years from the settlement of each colony, was established. This was a temporary expedient; but the experiment upon this theory, in the colony of Virginia, proved it to be an intolerable restriction, leading to idleness and immorality, and to be destructive of all the ordinary motives to human industry. (Stith's History of Virginia. Robertson's America, b. 9. Bancroft's History, vol. i. p. 161.) The experiment of a community of lands, goods, and labor at New Plymouth, made in the first years of the colony, was found to be injurious even with that small, simple, and pious band of emigrants; and the institution of separate property, in 1623, had a sudden and very beneficial effect in exciting a spirit of industry. (Morton's New England Memorial, 93. Baylie's Historical Memoir, vol. i. pp. 120, 158.) The state of equality does not suit the present condition of man, and whenever it has been attempted, it has checked civilization and led to immorality, and destroyed freedom of action and enjoyment. Mr. Young, the learned editor of the "Chronicles of the Pilgrim Fathers," Boston, 1841, says, (p. 84,) that the joint-stock association of the pilgrims was a partnership, forced upon them by necessity, and dissolved as soon as possible, and that there never was any community of goods among them, as that phrase is commonly understood. 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. Civil government is not entitled, in ordinary cases, and as a general rule, to regulate the use of property in the hands of the owners, by sumptuary laws, or any other visionary schemes of frugality and equality. The notion that plain, coarse, and abstemious habits of living are requisite to the preservation of heroism and patriotism, has been derived from the Roman and classical writers. They praised sumptuary laws, and declaimed vehemently against the degeneracy of their countrymen, which they imputed to the corrupting influence of the arts of Greece, and of the riches and luxury of the world, upon the freedom and spirit of those "lords of human kind," who had attained universal empire * by means of the hardy virtues of the primitive ages. (a) *330 But we need only look to the free institutions of Britain and her descendants, and the prosperity and freedom which they cherish and protect, to be satisfied that the abundant returns of industry, the fruits of genius, the boundless extent of commerce, the exuberance of wealth, and the cultivation of the liberal arts, with the unfettered use of all these blessings, are by no means incompatible with the full and perfect enjoyment of enlightened civil liberty. No such fatal union necessarily exists between prosperity and tyranny, or between wealth and national corruption, in the harmonious arrangements of Providence: Though Britain, like ancient Tyre, has her "merchants who are princes, and her traffickers the honorable of the earth," she still sits "very glorious in the midst of the seas, and enriches the kings of the earth with the multitude of her riches and of her merchandise." Nor have the polished manners and refined taste (a) No author was more distinguished than Sallust for his eloquent invectives against riches, luxury, and the arts, which he considered as having corrupted and destroyed the Roman republic. Among other acquired vices, he says, the Romans had learned to admire statues, pictures, and fine-wrought plate. Sal. Cat. c. 11. Juvenal painted the mighty evils of luxury with the hand of a master. In a satire devoted to the delineation of extreme profligacy, he relieves himself for a moment by a brief but lively sketch of the pure and rustic virtues of the old Romans. He recurs again to the desolations of wealth and luxury, and rises to the loftiest strains of patriotic indignation: Savior armis Luxuria incubuit, victumque ulciscitur orbem. Sat. 6, v. 291, 292. for which France has been renowned in modern ages, or even the effeminate luxury of her higher classes and of her capital, been found to damp her heroism, or enervate her national spirit. Liberty depends essentially upon the structure of the government, the administration of justice, and the intelligence of the people, and it has very little concern with equality of property and frugality of living, or the varieties of soil and climate. (b) * Every person is entitled to be protected in the enjoy- * 331 (b) The sumptuary laws of ancient Rome had their origin in the Twelve Tables, which controlled the wastefulness of prodigals, and unnecessary expenditure at funerals. The appetite for luxury increased with dominion and riches, and sumptuary laws were from time to time enacted from the 566th year of the city down to the time of the emperors, restraining, by severe checks, luxury and extravagance in dress, furniture, and food. They were absurdly and idly renewed by the most extravagant and dissipated rulers; by such conquerors as Sylla, Julius Cesar, and Augustus. The history of those sumptuary laws is given in Aulius Gellius, b. 2, ch. 24. See, also, Suet. J. Cæsar, sec. 43. And T. Arnold's History of the later Roman Commonwealth, ch. 4. During the middle ages, the English, French, and other governments were, equally with the ancient Romans, accustomed to limit, by positive laws, the extent of private expenses, entertainments, and dress. Some traces of these sumptuary laws existed in France as late as the beginning of the last century, and in Sweden in the latter part of it. Hallam on the Middle Ages, vol. ii. p. 287, (406, 8th edit.) Catteau's View of Sweden. Dodsley's Annual Register, 1767. The statute of 10 Edw. III. entitled statutum de cibariis utendis, was the most absurd that ever was enacted. It prescribed the number of dishes for dinner and supper, and the quality of the dishes. Dr. Adam Smith, in his Wealth of Nations, justly considers it to be an act of the highest impertinence and presumption for kings and rulers to pretend to watch over the economy and expenditure of private persons. The wages of labor, and the prices of commodities and economy in dress, were regulated by law in the earliest settlement of Massachusetts. Winthrop's Hist. of New England, by Savage, vol. i. p. 31, note. Ibid. vol. i. pp. 116, 140, 143. Laws of Massachusetts, 1641, 1647, and published in the digest of colony statutes, 1675. Such "good orders," says Hubbard, "expired with the first golden age in this world." But he was mistaken, for in 1777 there was a report made by a committee in Congress, recommending to the several states to regulate, by law, the price of labor, manufactures, and internal produce, and the charges of innholders. Journals of Congress, November 22d, 1777. In pursuance of the suggestion, it appears, that, in 1778, there were Acts of the legislature of Connecticut and New York, (and probably of other states,) limiting the price of labor, and the products of labor and tavern charges. The statute of New York was suspended within three months after it was passed, and repealed within the same year. Corporation ordinances, in some of our cities, have frequently regulated the price of meat in the market. Such laws, if of any efficacy, are calculated to destroy the stimulus to exertion; but in fact they are only made to be eluded, despised, and broken. And yet the regulation of prices in inns and taverns is still the practice in New Jersey and Alabama, and perhaps in other states; and the rates of charges, are, or were until recently, established in those states by the county court, and affixed up at inns, in like manner as the rates of toll at toll-gates and bridges. ment of his property, not only from invasions of it by individuals,1 but from all unequal and undue assessments on the part of government. It is not sufficient that no tax or imposition can be imposed upon the citizens, but by their representa* 332 tives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed. (a)1 A just and perfect system of taxation is still a desideratum in civil government; and there are constantly existing well-founded complaints, that one species of property is made to sustain an unequal, and, consequently, an unjust pressure of the public burdens. The strongest instance in New York, and probably in other states, of this inequality, was in the assessments of taxes upon waste and unproductive lands; and the oppression upon this description of real property has been so great as to diminish exceedingly its value. This property is assessed in each town, by assessors residing in each town, and whose interest it is to exag (a) Property taken and appropriated to public uses or easements, as highways, bridges, turnpikes, railroads, and the erections necessary or incident thereto, and buildings for public uses, as court-houses, churches, school-houses, &c., are not a proper subject for taxation, and are generally exempt as being works for public use and benefit. Inhabitants of W. v. W. R. R. Corp. 4 Metcalf, 564. The constitution of Arkansas declares a sound principle, in saying that all property subject to taxation shall be taxed according to its value, and the value to be ascertained by laws making the same equal and uniform, and no one species of property should be taxed higher than another species of property of equal value. Art. 9. In New Hampshire, the law gives a very efficient power to the collector of taxes. The collector is not bound to search for property on which to distrain, but if the party does not pay the tax on due notice, the collector may arrest his person, unless he produces property sufficient, and with an indemnity as to title, if required. Kinsley v. Hall, 9 N. Hamp. 190. 1 An assault and battery to repossess one's self of goods wrongfully taken is civilly justifiable, provided, no unnecessary force is used. Blades v. Higgs, 10 Com. B. (N. S.) 713. 1 The right of the legislature to delegate the power of taxation for local purposes to municipal corporations seems well settled. Stein v. Mayor, &c., of Mobile, 17 Ala. 234. S. C. 24 Ala. 591. People v. Mayor, &c, of Brooklyn, 4 Comst. 419. "Domicil” and “residence" are not synonymous. A person can have two places of residence, but he can have but one domicil. Where a person resides part of the year in the country, and part of the year in the city of New York, and has his place of business in the city, he was properly assessed as a resident of the city, under the Act of 25th March, 1850. Bartlett v. The Mayor, 5 Sandf. (N. Y.) 44. See, also, Douglass v. Mayor, &c., of New York, 2 Duer, 110. Hood's Estate 21 Penn. 106. |