Front Page Titles (by Subject) CHAPTER 14.: The Rights of Gift and Bequest - The Principles of Ethics, vol. 2
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CHAPTER 14.: The Rights of Gift and Bequest - Herbert Spencer, The Principles of Ethics, vol. 2 
The Principles of Ethics, introduction by Tibor R. Machan (Indianapolis: LibertyClassics, 1978). Vol. 2.
Part of: The Principles of Ethics, 2 vols.
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The Rights of Gift and Bequest
308. Complete ownership of anything implies power to make over the ownership to another; since a partial or entire interdict implies partial or entire ownership by the authority issuing the interdict, and therefore limits or overrides 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 of sustentation of the individual and of the species, from which the fundamental principles of ethics are deducible, we see that while individual preservation depends on the habitual maintenance of the natural relation between efforts and the products of efforts, the preservation of the species depends 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 assigned 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; and leaves all other persons unaffected in so far as their liberties to act are concerned. Though the handing over something possessed, by A to B, may affect C, 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. But 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 Elizabeth, 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 to others.
309. The right of gift implies the right of bequest; for a bequest is a postponed gift. If a man may legitimately 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 transfer, but provides that the transfer shall take effect only when his own power of possession ceases. And his right to make 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 exists, 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 male 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 neighboring peoples, inheritance by the eldest son includes even his father's wives, except 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 thus possessed by these higher of the African races. In Asia, the custom of Arabs, Todas, Ghonds, and Bodo and Dhimáls requires equal division among the male sons. Sisters' 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 German, customs did not admit a right of testament”; and Koenigswarter 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 personality could be bequeathed, 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 industrialism, 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, the 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 personality, 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 removal 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 of leaving defined portions of what he owns to specified recipients; it does not follow that he is ethically warranted in directing what shall 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 possession 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 subsequent generations for what purposes, or under what restrictions, they are to use the earth's surface or the things on it.
This conclusion is 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 prerequisite to maintenance of the species is that each individual shall receive the benefits and suffer the evils of his own conduct–if the prerequisite 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 requirement for its ultimate justification; then, the implication is that, being a condition to the maintenance 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 specification of the uses to which it shall be put.
311. Here, however, we come upon certain qualifications arising from the fact that among human beings there are other relations than those between adult citizens–the relations of parents to offspring. We have seen that the ethics of the state and the ethics of the family are opposed in 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, difficulties would rarely arise; since the deaths of parents would not occur until children were adults, and property bequeathed 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 fulfill 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 sustentation 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 other person: such continued possession by the parent as is thus implied, lapsing when the offspring become adult. This bequest of property in trust for the benefit of children, necessitates a fixing of the age at which they may 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 the benefit of children, may rightly last up to that age at 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 subhuman 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 immature children; a kindred derivation of any further right to prescribe the uses of bequeathed property appears impracticable. Nothing beyond a quite empirical compromise seems possible. On the one hand, ownership of property after death is unwarranted 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 in 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 be 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 personality, however, the case is different. Property which is the product of efforts, and which has resulted either from the expenditure of such efforts upon raw materials for which equivalents (representing so much labor) have been given or from the savings out of wages or salaries, and is thus possessed in virtue of that relation between 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 society, either as represented by certain of its members or 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 alternative if the purposes are not regarded as beneficial. Still, as 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 rendered 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 defense and social order; it becomes a question of policy in what way the needful appropriations shall be made; and if it appears convenient that part of the required revenues should be raised by percentages on bequeathed property, no ethical objection can be urged.
Subject to this qualification, 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 individual has become greater; and has reached the fullest legislative assertion under our own free institutions and the American ones derived from them. Directions 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 embodied in laws of mortmain and the like, harmonize with ethical inferences.