SECTION II.

Descent of Intellectual Property.

There is the same reason, and as strong reason, why a man's intellectual property should descend to his relatives, as there is why his material property should do so.

What is the ground, on which the law allows any man's property to go, at his death, to his wife, children, or other relatives? This, and nothing else, viz.: the law presumes that he acquired it for them, and intended it for their benefit. In short, it presumes that it was his will that it should go to them, rather than to mankind at large. And this is a reasonable presumption, (in the absence of express evidence to the contrary,) because, during life, men usually labor for, and devote their property to the support and welfare of, their immediate families and relatives, in preference to strangers. And it is natural that, at death, they should wish their property still to be devoted to the same ends, for which they produced and employed it while living. This presumption is so natural and reasonable, so well grounded in the nature and experience of mankind at large, and withal so consistent with a man's moral duties, that nothing is suffered to overcome it, in law, except undoubted evidence that a man expressed a different will, while living, and in the possession of his reason.

Although men sometimes will that, at their death, their property shall go to others than their nearest relatives, it is nevertheless nearly or quite an unheard of event, that a man should wish his property to go to mankind at large, in preference to his immediate friends. There is, therefore, no ground, in law, for such a presumption, in the absence of express evidence. And there is no more reason why a man's intellectual property should go to the public, at his death, than there is why his material property should go to them.

It has been said, that, admitting a man to have an absolute property in his ideas, during life, it is a wrong to society to allow the transmission of this right by inheritance, for this reason, viz.: It is said that the right of property naturally terminates with the life of the proprietor; that, in the case of material property, society allow the right to be transmitted to relatives, for the reason that, otherwise, the property, being left without an owner, would become the property of those who should first seize upon it; that it would thus give rise to violent scrambles among those who should be attempting to seize upon it; that, to prevent this violence, society decrees that the property shall go to the immediate family of the deceased; but that, as there could be no scramble or violence to get possession of an idea, at the death of the proprietor, there is no necessity, and therefore no justification, for allowing the principle of inheritance to apply to intellectual property; and that, consequently, such property should become free to all.

This objection is entirely fallacious; and the reason assigned, why material property is allowed to go to the relatives of the deceased, is not the true one. Society do not establish the principle of inheritance arbitrarily, as the objection supposes, to avoid occasions for violent scrambles for the property of the dead; for such scrambles could as well be averted by decreeing that the property should escheat to the government, as by decreeing that it should go to the relatives of the deceased. And if the property have no rightful owner, it perhaps ought to go to the public, and to the government as the representative of, and trustee for, the public. But the principle of inheritance is a principle of natural law, founded on the presumption that, where a deceased person has left no evidence to the contrary, it was his will, (so long as he had his reason, and therefore so long as his will was of any legal importance,) that in that moment, (whenever it might arrive,) in which his property could no longer be useful to, nor be controlled by, himself, all his rights in it should vest in his family. And such a will, or consent, is, in its nature, as valid and sufficient, and the law justly holds it to be as effectual, to convey the right of property, as any consent which a man gives, when in full health, to the conveyance of his right of property for a pecuniary consideration.

The universal nature of mankind, and their nearly or quite universal conduct, throughout life, and in their latest moments of reason, furnish so strong evidence that such is the will of all men, in regard to their property, that governments dare not disregard it—dare not confiscate the property of a deceased person, who left relatives living within any reasonable limit of consanguinity. And mankind in general would as soon rebel against a government, which they knew would confiscate their property at their death, and thus plunder their families of the provision they had made for them, as they would against one that should confiscate it while they were living. There is no species of robbery, which the general sense of mankind would consider more atrocious, on the part of government, than that of confiscating the property of the dead.

"The property of the dead." That is not an accurate expression. It is not the property of the dead, but of the living; for the right of property passed to the living at or before the moment of the death of the original proprietor.

If, then, the principle of inheritance be a principle of natural law, it is as applicable to intellectual, as to material, property.