Footnotes 5: Entail,
146 It was for this reason that Jefferson authored the 1776 Virginia act to abolish entails, one of his proudest achievements. "A Bill directing the Course of Descents," Boyd, 2:391-93; Thomas Jefferson, "Services to My Country" [ca. 1800], Ford, 9: 164.
147 See Adam Smith, WEALTH OF NATIONS, I:384 (criticizing entails as "founded on the most absurd of all suppositions, the supposition that every successive generation has not an equal right to the earth, and to all that it possesses: but that the property of the present generation should be restrained and regulated according to the fancy of those who had died perhaps five hundred years ago"). Sloan indicates that Jefferson had a copy of the 1784 London edition in his second library. See also Adam Smith, Lectures on Jurisprudence, ed. R.L. Meek et al. (Oxford, 1978) 69-70 ("An eminent lawyer says there can be nothing more absurd than this custom of entails. . . . There is no maxim more generally acknowledged than that the earth is the property of each generation. That the former generation should restrict them in their use of it is altogether absurd; it is theirs together as well as it was their predecessors in their day").
148 Adam Smith, Lectures on Jurisprudence at 468 (emphasis supplied). As to Smith's influence on Jefferson
and the other founders, see Herbert Sloan, Principles and Interest, n. 121-126 and accompanying text pp 72-73.
See also Katz, "Republicanism and the Law of Inheritance"; Carole Shammas et al., Inheritance in America
from Colonial Times to the Present (New Brunswick, N.J., 1987), 63-79.
149 Herbert Sloan, Principles and Interest, 60.
150 Paine, Thomas, "Agrarian Justice" (1797) in The Complete Works of Thomas Paine, Foner ed. (1945) 398 ( "[T]he earth, in its natural uncultivated state, was, and ever would have continued to be, the COMMON PROPERTY OF THE HUMAN RACE. In that state every man would have been born to property. He would have been a joint life-proprietor with the rest in the property of the soil, and in all its natural productions, vegetable and animal.")
154 Madison to Jefferson P. 651. See also Henry George, PROGRESS AND POVERTY at 334-337 (articulating the land/improvement distinction at some length: "What constitutes the rightful basis of property? . . . Is it not, primarily, the right of a man to himself, to the use of his own powers, to the enjoyment of the fruits of his own exertions? . . . the recognition of private property in land is a wrong. For the right to the produce of labor cannot be enjoyed without the right to the free use of the opportunities offered by nature, and to admit the right of property in these is to deny the right of property in the produce of labor. When non-producers can claim as rent a portion of the wealth created by producers, the right of the producers to the fruits of their labor is to that extent denied. . . . The real and natural distinction is between things which are the produce of labor and things which are the gratuitous offerings of nature; or, to adopt the terms of political economy, between wealth and land. These two classes of things are in essence and relations widely different, and to class them together as property is to confuse all thought when we come to consider the justice or the injustice, the right or the wrong of property.")
155 Although the term 'inalienable' is the standard modern usage, the Declaration of Independence employed
the phrase "unalienable rights," and this article will follow the example of the Declaration.
156 Grotius, JURISPRUDENE OF HOLLAND, Ed. and trans. R. W. Lee (Oxford: 1926-1936) I: 73.
157 Pipes, PROPERTY AND FREEDOM at 31 ("These passages . . . may well be the earliest articulation in intellectual history of the theory that liberty is "inalienable" property, thereby laying the foundation of the concept of inalienable rights.")
158 Virginia Declaration of Rights (1776), Art. 1 (emphasis supplied). See also id., Preamble ("A
Declaration of Rights made by the good people of Virginia in the exercise of their sovereign powers, which rights
do pertain to them and their posterity, as the basis and foundation of government")(emphasis supplied).
159 See "Declaration of Rights and Grievances" (1765) (Stamp Act Congress) in Schwartz, THE
ROOTS OF THE BILL OF RIGHTS at I: 196, 197. ("His Majesty's liege subjects in these colonies are intitled
to all the inherent rights and liberties of his natural born subjects within the kingdom of Great Britain.");
Journals of the House of Burgesses of Virginia, 1761-1765, ed. by Kennedy (Richmond, 1907) 302-304 (declaring
in response to the Stamp Act that "As our Ancestors brought with them every Right and Privilege they could
with Justice claim . . . their Descendants may conclude, they cannot be deprived of those Rights without Injustice");
160 See First Charter of Virginia (1606) in B. P. Poore, The Federal and State Constitutions, Colonial
Charters and Other Organic Laws of the United States (1878), Vol. 2, pp. 1888-93 (the king declares "for
Us, our Heirs, and Successors . . . that all [colonists] . . . and every of their children . . . shall have
and enjoy all Liberties, Franchises, and Immunities . . . to all Intents and Purposes, as if they had been .
. . within this our Realm of England"). See also similar or identical guarantees in the charters of New
England, Massachusetts Bay, Maryland, Connecticut, Rhode Island, Carolina, and Georgia. See also "Maryland
Act for the Liberties of the People" (1639) in Archives of Maryland: Proceedings and Acts of the General
Assembly of Maryland, 1637-1664, ed. by W. H. Browne (1883) I: 41, ("all the Inhabitants of this Province
. . . Shall have and enjoy all such rights liberties immunities priviledges and free customs within the Province
as any naturall born subject of England . . ..").
161 See Declarations and Resolves of the First Continental Congress (1774), in Schwartz, I, pp 215,
216 ("That the inhabitants of the English Colonies in North America . . . have the following Rights: Resolved
. . . That they are entitled to life, liberty, & property . . . Resolved, . . . That our ancestors, who
first settled these colonies, were at the time of their emigration from the mother country, entitled to all
the rights, liberties, and immunities of free and natural-born subjects, within the realm of England. Resolved,
. . . That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that
they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them . . . .");
The Rights of the Colonists and a List of Infringements and Violations of Rights (1772), in The Writings of
Samuel Adams (1906) H. A. Cushing, ed., II: 350-69 ( "1. Natural Rights of the Colonists as Men - "In
short it is the greatest absurdity to suppose it in the power of one or any number of men at the entering into
society, to renounce their essential natural rights, or the means of preserving those rights . . . If men through
fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of
reason and the great end of society, would absolutely vacate such renunciation . . ."
162 Giles Hickory [Noah Webster] III American Magazine (NY) 2/88.
163 See United States Declaration of Independence (1776), par. 2 ("[W]henever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute
new Government . . ."). See also "South Carolina's Ratification Proclamation" (May 23, 1788)
in Bailyn at 2: 556 ("The [state's] right to regulate elections to the Foederal Legislature, and to direct
the manner, times, and places of holding the same is, and ought to remain to all posterity, a fundamental right");
"Jefferson to Richard Henry Lee" (May 8, 1825) in THE WRITINGS OF THOMAS JEFFERSON at 16: 118-19 ("All
[the Declaration's] authority rests then on the harmonizing sentiments of the day, whether expressed in conversation
. . . or in the elementary books of public right").
164 Howard, Commentaries on the Constitution of Virginia (1974) 56.
165 U.S. CONST., Preamble ("We the People . . . to ourselves and our Posterity, do ordain and establish
this Constitution . . .).
166 Sutton, REVOLUTION TO SECESSION: CONSTITUTION MAKING IN THE OLD DOMINION (1987) 20-21 (also on the committee was Patrick Henry).
167 Joseph Ellis, American Sphinx: The Character of Thomas Jefferson (Random House, New York: 1998) 56-65 ("On the eve of writing the Declaration, Jefferson was thinking not about John Locke's theory of natural rights or Scottish common sense philosophy. He was thinking about Virginia's new constitution.")
169 United States Declaration of Independence (1776), par. 2 (emphasis supplied).
170 Id. at 63. See "Speech by James Wilson in the Pennsylvania Ratifying Convention" (December, 4, 1787) in Jensen, Kaminski, and Saladino, eds., Documentary history of the Ratification of the Constitution, II: 472-73 (quoting second paragraph of the Declaration and proclaiming "This is the broad basis on which our independence was placed; [and] on the same certain and solid foundation this system [the Constitution] is erected.")
171 See supra, Part II-A-5-Locke.
172 Proclamations of "unalienable" rights persisted well into the founding years of the new republic. See "Patrick Henry's reply to Governeur Randolph" (June 7, 1788), in Bailyn, THE DEBATE ON THE CONSTITUTION at 623 ( invoking during the Virginia ratification convention the "poor little humble republican maxim . . . [that] all men . . . have certain inherent rights, of which, when they enter into society, they cannot by any compact deprive or divest their posterity"); "Virginia Ratification of the Federal Constitution" in Bailyn at 557 (language identical to the above quote by Henry offered in support of the state's recommendation for a Bill of Rights -- first recommendation, first right proposed.)
173 Many of the Declaration's signers would later participate in the federal constitutional
convention and play significant roles in the ratification debates for both the constitution and the bill of
rights. For these reasons, constitutional scholars tend to treat the language and philosophy of the Declaration
as uniquely important "legislative history" relevant to interpretation of the Constitution. See Scott
Gerber, TO SECURE THESE RIGHTS: THE DECLARATION OF INDEPENDENCE AND CONSTITUTIONAL INTERPRETATION. (New York
University Press, New York: 1995) ("the natural-rights political philosophy of the Declaration of Independence
. . . [is] the most obvious choice for interpreting the Constitution"; Martin Diamond, "The Declaration
and the Constitution"; Black, "Further Reflections on the Constitutional Justice of Livelihood,"
86 Colum. L. Rev. 1103, 1105-08 (1986) ("If any human rights at all are shielded against denial or disparagement
by the command of the Ninth Amendment, then there could be no . . . place as good to begin a search for their
ground as in the Declaration or in the Preamble"); Carrasco and Rodino, "'Unalienable Rights,' The
Preamble, and the Ninth Amendment: The Spirit of the Constitution," 20 Seton Hall L. Rev. 498 (1990) 504.