University of Virginia Library

3398. GENERATIONS, Binding power.—

The question whether one generation of
men has a right to bind another, seems never
to have been started either on this or our side
of the water. Yet it is a question of such consequences
as not only to merit decision, but
place also, among the fundamental principles
of every government. The course of reflection
in which we are immersed here [Paris], on
the elementary principles of society, has presented
this question to my mind; and that no
such obligation can be transmitted, I think
very capable of proof. I set out on this ground,
which I suppose to be self-evident, that the
earth belongs in usufruct to the living; that
the dead have neither powers nor rights over it.
The portion occupied by an individual ceases
to be his when himself ceases to be, and reverts
to the society. If the society has formed
no rules for the appropriation of its lands in
severalty, it will be taken by the first occupants,
and these will generally be the wife and
children of the decedent. If they have formed
rules of appropriation, those rules may give it
to the wife and children, or to some one of
them, or to the legatee of the deceased. So
they may give it to its creditor. But the child,
the legatee or creditor, takes it, not by natural
right, but by a law of the society of which he
is a member, and to which he is subject.
Then, no man can, by natural right, oblige the
lands he occupied, or the persons who succeed
him in that occupation, to the payment of debts
contracted by him. For if he could, he might
during his own life, eat up the usufruct of the
lands for several generations to come; and
then the lands would belong to the dead, and
not to the living, which is the reverse of our
principle. What is true of every member of
the society, individually, is true of them all
collectively; since the rights of the whole can
be no more than the sum of the rights of the
individuals. To keep our ideas clear when applying
them to a multitude, let us suppose a
whole generation of men to be born on the
same day, to attain mature age on the same
day, and to die on the same day, leaving a succeeding
generation in the moment of attaining
their mature age, all together. Let the ripe
age be supposed of twenty-one years, and their
period of life thirty-four years more, that being
the average term given by the bills of
mortality to persons of twenty-one years of age.
Each successive generation would, in this way,
come and go off the stage at a fixed moment,
as individuals do now. Then I say, the earth
belongs to each of these generations during its
course, fully, and in its own right. The second
generation receives it clear of the debts and
incumbrances of the first, the third of the second,

and so on. For if the first could charge it with a
debt, then the earth would belong to the
dead and not to the living generation. Then,
no generation can contract debts greater than
may be paid during the course of its own existence.
At twenty-one years of age, they May
bind themselves and their lands for thirty-four
years to come; at twenty-two, for thirty-three;
at twenty-three, for thirty-two; and at fiftyfour,
for one year only; because these are the
terms of life which remain to them at the respective
epochs. But a material difference
must be noted between the succession of
an individual and that of a whole generation.
Individuals are parts only of a society, subject
to the laws of a whole. These laws May
appropriate the portion of land occupied by a
decedent to his creditor rather to any other, or
to his child, on condition he satisfies the creditor.
But when a whole generation, that is,
the whole society dies, as in the case we have
supposed, and another generation or society
succeeds, this forms a whole, and there is no
superior who can give their territory to a third
society, who may have lent money to their
predecessors beyond their faculties of paying.

What is true of a generation all arriving to
self-government on the same day, and dying
all on the same day, is true of those on a constant
course of decay and renewal, with this
only difference. A generation coming in and
going out entire, as in the first case, would
have a right in the first year of their self-dominion
to contract a debt for thirty-three
years; in the tenth, for twenty-four; in the
twentieth, for fourteen; in the thirtieth, for
four; whereas generations changing daily, by
daily deaths and births, have one constant term
beginning at the date of their contract, and
ending when a majority of those of full age
at that date shall be dead. The length of that
term may be estimated from the tables of mortality,
corrected by the circumstances of climate,
occupation, &c., peculiar to the country
of the contractors. Take, for instance, the
table of M. de Buffon wherein he states that
23,994 deaths, and the ages at which they
happened. Suppose a society in which 23,994
persons are born every year, and live to the
ages stated in this table. The conditions of
that society will be as follows. First, it will
consist constantly of 617,703 persons of all
ages; secondly, of those living at any one instant
of time, one-half will be dead in twenty-four
years, eight months; thirdly, 10,675 will
arrive every year at the age of twenty-one
years complete; fourthly, it will constantly
have 348,417 persons of all ages above twenty-one
years; fifthly, and the half of those of
twenty-one years and upwards, living at any
one instant of time, will be dead in eighteen
years, eight months, or say nineteen years as
the nearest integral number. Then nineteen
years is the term beyond which neither the
representatives of a nation, nor even the whole
nation itself assembled, can validly extend a
debt.

To render this conclusion palpable by example,
suppose that Louis XIV. and XV. had
contracted debts in the name of the French
nation to the amount of ten thousand milliards
of livres, and that the whole had been contracted
in Genoa. The interest of this sum
would be five hundred milliards, which is
said to be the whole rent-roll, or net proceeds
of the territory of France. Must the present
generation of men have retired from the territory
in which nature produced them, and ceded
it to the Dutch creditors? No; they have the
same rights over the soil on which they were
produced, as the preceding generations had.
They derive these rights not from their predecessors,
but from nature. They, then, and
their soil, are by nature clear of the debts of
their predecessors. Again, suppose Louis XV.
and his contemporary generation had said to
the money lenders of Holland, give us money
that we may eat, drink, and be merry in our
day; and on condition you will demand no
interest till the end of nineteen years, you shall
then forever after receive an annual interest
of 12.5 per cent. The money is lent on these
conditions, is divided among the living, eaten,
drunk, and squandered. Would the present
generation be obliged to apply the produce of
the earth, and of their labor to replace their
dissipations? Not at all.

I suppose that the received opinion, that the
public debts of one generation devolve on the
next, has been suggested by our seeing habitually
in private life that he who succeeds to
lands is required to pay the debts of his ancestor
or testator, without considering that this
requisition is municipal only, not moral, flowing
from the will of the society, which has
found it convenient to appropriate the lands become
vacant by the death of their occupant on
the condition of a payment of his debts; but
that between society and society, or generation
and generation, there is no municipal obligation,
no umpire but the law of nature. We
seem not to have perceived that, by the law of
nature, one generation is to another as one independent
nation to another.

The interest of the national debt of France
being in fact but a two thousandth part of its
rent-roll, the payment of it is practicable
enough; and so becomes a question merely of
honor or of expediency. But with respect to
future debts, would it not be wise and just for
that nation to declare in the constitution they
are forming that neither the legislature, nor the
nation itself can validly contract more debt
than they may pay within their own age, or
within the term of nineteen years. And that
all future contracts shall be deemed void as to
what shall remain unpaid at the end of nineteen
years from their date? This would put the
lenders, and the borrowers also, on their guard.
By reducing, too, the faculty of borrowing
within its natural limits, it would bridle the
spirit of war, to which too free a course has
been procured by the inattention of money
lenders to this law of nature, that succeeding
generations are not responsible for the preceding.

On similar ground, it may be proved that no
society can make a perpetual constitution, or
even a perpetual law. The earth belongs always
to the living generation. They may manage
it, then, and what proceeds from it, as they
please, during their usufruct. They are masters,
too, of their own persons, and consequently
may govern them as they please. But
persons and property make the sum of the object
of government. The constitution and the
laws of their predecessors are extinguished,
then, in their natural course, with those whose
will gave them being. This could preserve that
being till it ceased to be itself, and no longer.
Every constitution, then, and every law, naturally
expire at the end of nineteen years. If it
be enforced longer, it is an act of force and
not of right.

It may be said that the succeeding generation
exercising in fact the power of repeal, this
leaves them as free as if the constitution or law
had been expressly limited to nineteen years
only. In the first place, this objection admits
the right, in proposing an equivalent. But

the power of repeal is not an equivalent. It
might be, indeed, if every form of government
were so perfectly contrived that the will of the
majority could always be obtained fairly and
without impediment. But this is true of no
form. The people cannot assemble themselves;
their representation is unequal and vicious.
Various checks are opposed to every legislative
proposition. Factions get possession of the
public councils. Bribery corrupts them. Personal
interests lead them astray from the general
interests of their constituents; and other
impediments arise so as to prove to every practical
man that a law of limited duration is
much more manageable than one which needs a
repeal.

This principle that the earth belongs to the
living and not to the dead, is of very extensive
application and consequences in every country,
and most especially in France. It enters into
the resolution of the questions, whether the
nation may change the descent of lands holden
in tail; whether they may change the appropriation
of lands given anciently to the church,
to hospitals, colleges, orders of chivalry, and
otherwise in perpetuity; whether they May
abolish the charges and privileges attached on
lands, including the whole catalogue, ecclesiastical
and feudal; it goes to hereditary orders,
distinctions and appellations, to perpetual monopolies
in commerce, the arts or sciences,
with a long train of et ceteras; and it renders
the question of reimbursement a question of
generosity and not of right. In all these cases,
the legislature of the day could authorize such
appropriations and establishments for their own
time, but no longer, and the present holders,
even where they or their ancestors have purchased,
are in the case of bona fide purchasers
of what the seller had no right to convey.

Turn this subject in your mind, and particularly
as to the power of contracting debts, and
develop it with that perspicuity and cogent
logic which is so peculiarly yours. Your station
in the public councils of our country gives
you an opportunity of forcing it into discussion.
At first blush it may be rallied as a theoretical
speculation; but examination will prove it to be
solid and salutary. It would furnish matter for
a fine preamble to our first law for appropriating
the public revenue; and it will exclude, at
the threshold of our new government, the contagious
and ruinous errors of this quarter of
the globe, which have armed despots with
means not sanctioned by nature for binding in
chains their fellow men. We have already
given, in example, one effectual check to the
dog of war, by transferring the power of letting
him loose from the Executive to the Legislative
body, from those who are to spend to those who
are to pay. I should be pleased to see this second
obstacle held out also in the first instance.
No nation can make a declaration against the
validity of long-contracted debts so disinterestedly
as we, since we do not owe a shilling
which will not be paid with ease, principal and
interest, within the time of our own lives. Establish
the principle also in the new law to
be passed for protecting copyrights and new
inventions, by securing the exclusive right for
nineteen instead of fourteen years [a line entirely
faded], an instance the more of our taking
reason for our guide instead of English
precedents, the habit of which fetters us with
all the political heresies of a nation, equally
remarkable for its excitement from some errors,
as long slumbering under others. [210] —
To
James Madison. Washington ed. iii, 103. Ford ed., v, 115.
(P. Sep. 1789)