Can a Generation Own the Earth?

Thomas-Jefferson

“The earth belongs always to the living generation.”

These are not Thomas Jefferson’s most famous words, but they are quite famous among students of politics. They have been used for generations to justify radical political change. And, like the soaring rhetoric of the preamble to the Declaration of Independence, these Jeffersonian words have gained him great renown as a friend to political progress and enemy to “the dead hand of the past.”

Jefferson, of course, was the president who praised the French Revolution, even apologizing for its murderous Reign of Terror. He was the public opponent of slavery, whose abstract condemnations were counterbalanced by his actions as a master who often sold his charges literally “down the river.” (It was George Washington who quietly freed his slaves through an iron-clad last will and testament.) Jefferson was the one who stated that “in every country and every age, the priest has been hostile to liberty” and sought to institute a “wall of separation between church and state” to be found nowhere in our Constitutional documents or the mainstream tradition of practice in the colonies or young republic.

Still, Jefferson has his fans, including among conservatives. Conservative Jeffersonians can point out that he constantly argued for small, limited government, especially at the federal level. And he both praised and sought to defend the prerogatives of state and local government.

What, then, should we make of Jefferson, and of his grand pronouncements regarding politics and public life?

One possibility is that he was wont to let his pen run away with him; he may simply have written things that sounded good, but did not really fit with life’s practical realities, or with his deeper understanding of human nature and the social order. This might excuse his sometimes bloodthirsty comments, such as that the tree of liberty must be “refreshed” with the blood of patriots and tyrants. As to the hypocrisy regarding slavery, that can only be explained by pointing to the human failings of a man who loved books, wine, and other luxuries and was under no social pressure to put his anti-slavery principles into action.

But what should we make of a statement, like that regarding each generation “owning” the earth, that seems purely political, that has public meaning and purpose seemingly unconnected with apologies for specific acts or events? Do we “own” the earth while we are here, then pass it on to the next generation to do with as it pleases? Why, and how so?

First, it is helpful to note the circumstances in which the letter in which Jefferson made this statement was written. It was a letter to James Madison, written while Jefferson was in Paris, during 1789—in the midst of the French Revolution. While Jefferson stated that his purpose in writing was merely to develop an idea that had come into his head, he makes clear the context in which he was thinking by referencing the debts owed by the French monarchy to foreign lenders. The French Revolutionary regime had repudiated its debts, telling its creditors that the revolutionary regime could not be bound to pay off loans made to support the monarchy it was abolishing.

So, as was often the case, Jefferson was writing as an apologist for the French Revolution, that murderous conflagration that claimed to be making society anew, which ended by consuming its own children, along with tens of thousands of “enemies of liberty” before embarking on a mad campaign to subjugate all of Europe. Nonetheless, where finances are concerned, we should not be too harsh in condemning Jefferson’s claim. Lenders who feed into the profligacy of a regime should not be surprised if a new regime is less than forthcoming in paying debts from which the nation got no benefit, and which the lender should have been more cautious (and honorable) than to advance. The French monarchy was deeply corrupt, and sensible lenders should have known better than to fund the staggering debts it incurred. Moreover, the United States itself took a long time, and went through much trouble, before paying off debts incurred even during its own struggle with Britain.

In his letter, however, Jefferson makes grand, abstract statements about the debts of a previous generation being by “natural right” nugatory after nineteen years. That is, he is making a broad statement leaving no room for legitimate differences and prudential accommodations in taking specific circumstances into account. Still, as a policy and moral stricture on the government incurring debt, Jefferson might be conceded to have something of a moral point; the perpetual debts established by the British monarchy, which Alexander Hamilton would seek to establish in the new United States might be seen as empowering a monied aristocracy at the expense of the common folk who bear the burden of public debts.

But Jefferson does not address debts only. He also is writing in a time of constitutional revolution, seeking to justify repudiation of the laws and governmental forms of the previous generation. Not only debts, but constitutions and laws are, for him, violations of natural right if continued past nineteen years. Here is the central paragraph:

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 objects of government. The constitution and the laws of their predecessors extinguished them, 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 expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right.

Jefferson’s use of the lawyerly term “usufruct” is, frankly, a mess, here. It is a term from the (continental) civil law, not the Anglo-American common law. But its closest meaning, in our context, would be to a life estate. Someone with a “usufruct” has a right to use the property assigned to him, including for profit, including by farming or raising livestock. But he may not lay waste to the property or, unless specifically allowed, use up non-renewable resources (such as by mining). Edmund Burke, the great philosopher and statesman on the other end of the political spectrum from Jefferson, referred to each generation as holding its property—indeed, all of society—in trust, as with a life estate holding no right to lay waste what it owed to succeeding generations. But, for Burke, the emphasis was on the duty to maintain continuity with the past such that succeeding generations could take their inheritance secure in the knowledge that they could hold it as an inheritance, as part of a tradition of thought and practice that settled reasonable expectations and provided guidance on how to live in peace.

For Jefferson, meanwhile, the “usufruct” is seen as license for each generation to do as it pleases, limited only by the duty not to lay waste—a duty, of course, flagrantly ignored by the French Revolutionaries, who sought to make the world anew and ended up leaving to their followers a nation, and a continent, in flames.

Moreover, for Jefferson, the usufruct of each generation was not merely a limit on the authority of preceding generations, but a repudiation of it. No law or constitution, to his mind, could rightfully be even intended to last longer than nineteen years. The right of a succeeding generation to amend such constitution or law was insufficient, in his view, because flaws in representation and various forms of corruption make repeal too difficult. Better, on Jefferson’s view, to recognize the right of each “generation” (in truth, as he recognizes, generations do not begin and end at any given point in time, but flow one into another) to simply ignore precedent and change fundamental laws as it wills.

What Jefferson demands, in this letter as in all too much else, is ignorance, even contempt for the past. The desire for a “fresh start” was appealing to many in our own founding generation because so much was assumed to be part of what one naturally would make use of in that “fresh start.” Long-held institutions, beliefs, and practices regarding public morals, limitations on political power, and procedural due process, to go no further, provided a way of life that allowed for revision of political forms (e.g. the transition from a putative monarchy to fully republican government) without danger of true revolution. Sadly, events from the French Revolution on through the horrors of Marxist revolutions in the twentieth century have shown that fresh starts, when taken seriously, entail clean sweeps of institutions, and people, who are deemed corrupt holdovers from the past. The result is all too much blood; blood that does not refresh, but rather drowns the tree of liberty.

This column first appeared September 10 on Imaginative Conservative and is reprinted with permission.

Bruce Frohnen

By

Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source.

  • Michael Paterson-Seymour

    Jefferson certainly believed the central doctrine of the Enlightenment that the future would be unlike the past, that it would be better, and that the experience of ages may instruct and warn, but cannot guide or control

    He also shared, with the Jacobins, a detestation of corporations: “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 offices, authorities and jurisdictions, to hereditary orders, distinctions and appellations, to perpetual monopolies in commerce, the arts or sciences, with a long train of et ceteras; 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…”

    In short, private property was sacred, but corporate endowments were the property of the nation – Les biens nationaux – bestowed or revoked at pleasure.

    • ColdStanding

      Yet, if one claims that the quick hold sway, and not the dead… what would stop (one now living) from saying that it is indeed a good policy to give endowments to corporations beyond the span of human life, as under the ancien régime, waving the hand saying we may safely ignore (the now dead) Jefferson?

      Nothing. So, has he hit the nail on the head or merely nailed his opponents? Has he grasped the truth of the matter or merely weakened an already tottering opponent?

      • Michael Paterson-Seymour

        But, of course, the next generation could reverse the law again.

        Jefferson follows Rousseau in recognizing that laws are an expression of will and, whilst a man’s reasons may persuade a future generation, his will cannot bind them, unless they choose to concur in it

        • ColdStanding

          It is unlikely that reason will persuade, when they themselves have abandoned hope in the utility of reason (because their opponents have so successfully held that ground?) and made recourse to what power might be obtained by exercise of the will alone.

          Have they not said: “To hell with the future! I’m getting mine right now.”?

  • http://itascriptaest.wordpress.com/ Ita Scripta Est

    John Courtney Murray was always at pains to distinguish the French and American revolutions- the later being the “good revolution.” Contra Murray and Weigel the radical Enlightenment nature of the American revolution is evident here with Jefferson.

    • Michael Paterson-Seymour

      Hilaire Belloc captured the spirit of the French Revolution, when he said, ““The scorn which was in those days universally felt for that pride which associates itself with things not inherent to a man (notably and most absurdly with capricious differences of wealth) never ran higher; and the passionate sense of justice which springs from this profound and fundamental social dogma of equality, as it moved France during the Revolution to frenzy, so also moved it to creation.

      Those who ask how it was that a group of men sustaining all the weight of civil conflict within and of universal war without, yet made time enough in twenty years to frame the codes which govern modern Europe, to lay down the foundations of universal education, of a strictly impersonal scheme of administration, and even in detail to remodel the material face of society—in a word, to make modern Europe—must be content for their reply to learn that the Republican Energy had for its flame and excitant this vision: a sense almost physical of the equality of man.”

      Now, a passion for equality, a hatred for noble and clerical privilege is often tolerant of despotism, believing that, if the central power is weak, the secondary powers will run riot and oppress. That is the real difference between the two revolutions. The French have always believed, like Lacordaire, that “”Between the weak and the strong, between the rich and the poor, between the master and the servant, it is freedom which oppresses and the law which sets free.”

    • Piusfan

      The American revolution, indeed, was a radical experiment that doesn’t cease to be radical only because subsequent revolutions were even more radical. Commendable for Crisis to post at least some candid, critical material about Jefferson, though much more still needs to be done in this department, both with Jefferson and other founders. What was birthed here was nothing short of the abrogation of the commonwealth polity with objective morals and virtues, to be supplanted with materialist-oriented Lockean logical positivism and implicit mob rule.
      Our recent pontiffs’ WWII mentality has driven infatuation with and appeasement of modern secularized democracy, a critical ingredient in the unprecedented crisis that has engulf the Church, taking us down the road toward the liberal errors authoritatively condemned by Pope Pius IX. Let us pray for the fullness of Holy Tradition.

      • Adam__Baum

        Yep, more Catholic than the Pope, eh Mad Max?

        • http://itascriptaest.wordpress.com/ Ita Scripta Est

          Right and Americanism is a “phantom heresy”,

          • Adam__Baum

            As opposed to the real heresy of Catholic Puritanism.

            • http://itascriptaest.wordpress.com/ Ita Scripta Est

              “Real heresy”? Okay Adam you’re a clown. Have fun bowing down five times a day to the Constitution.

              • Adam__Baum

                Project much?

  • Billy Bean

    I am inadequate to address the conflicts of vision that are evident in the comments on this piece. But I would recommend Benjamin Wiker’s book Worshipping the State as a balanced treatment of the outworking of the Enlightenment/Christian compromise that was America’s founding, as evidenced in her founding documents. Of course, any compromise between the absolute claims of divine revelation (both special and natural) and the absolute claims of the secular state are doomed to eventual failure. That failure is what we have been experiencing in America since the ascendancy of modern liberalism.

  • crakpot

    Property you inherit from your parents is completely different from the consents and prohibitions to government power written by those once governed but now dead.

    As to inheritance, what is right is that we respect our parents’ last will. If they want you to keep it in the family but preserve most of it and its minerals for future generations, you should do so. If they leave it up to you, you are free to develop, or to sell it to someone else, who will someday will it to his children.

    As to consent of the governed, our current problem is not that the Constitution is too strict; it is that it’s protections are so ignored. Our duty as parents is to alter the destructive force our form of government has become, before our children have no choice but to take up arms to abolish it.

  • pmains

    Even if the assertions and implications this article article is jam-packed with could be convincingly argued for, this article is nothing but an invitation for an interminable flame-war. Indeed, it could be much like the 30 Years War, largely a conflict between Catholics and Protestants. The English Crown’s weak-kneed support for Dutch Protestants during that war was a crucial component of the powder keg that led to several English wars of religion disguised as political revolutions.

    Which gets me to just one loose end the author leaves dangling out there: why was Jefferson concerned about priests? Maybe because the Stuarts whom he despised, were Catholics, crypto-Catholics and Catholic sympathizers, backed by Ireland’s Catholics in what was considered a plot against English freedom. The Whig triumphalist view of history — not entirely baseless — was that Catholics were evil monarchists with a hierarchical Church that oppressed people. Good reformed Protestants had egalitarian churches, believed in freedom and democracy and had restored the republican spirit that had been missing since the Norman Conquest. Jefferson was very invested in this narrative.

    And don’t get me started on Frohnen’s glossing over of the slavery issue. Jefferson changed his mind after discovering the (ill-gotten) benefits of owning slaves, but we quote his anti-slavery rhetoric as though he was spouting it until his dying day. That’s an easy thing to do with somebody who’s dead. We compress them in time. Jefferson was neither the demi-god of American fable nor the two-faced cynic or sophist that Frohnen perhaps inadvertently portrays him as.

    Then there’s the bizarre tangent about usufruct. It’s a Latinate word, which simply means exactly what it sounds like. “Use of the fruit.” The word pops up frequently in Anglo-American history. In particular, it rises in relationship to the Anglo-Saxon period (See Stubbs’ Constitutional History, Volume 1), of which Jefferson was a student. Indeed, the idealization of the Anglo-Saxon period is key to the Whig view of history. So, if we want to understand what Jefferson meant, what I just alluded to is a better path to take than that which Frohnen followed.

    I don’t think that Frohnen fails to understand all or any of this, but maybe he should have confined himself to a less ambitious article here, and then tried to flesh out the other ideas in subsequent articles. Or perhaps made this part of a series, because there is so much more to say. Heck, if he had said, “buy my book,” or, “this idea is discussed in more depth here,” then I could say, “well, he doesn’t care to relitigate something that has already been argued in such-and-such a forum.” As it stands, this article opens can after can of worms, rather than stating a thesis and then convincingly supporting it.

  • Valentin

    The one argument for freedom I can think of is that God created us to be free creatures but that is because freely deciding to be with God is better than when it is the only option and as such we have a duty to do what is right and follow the examples of good priests and seek to become saints rather than blowing our lives disrespecting the many blessings God has given us and yet people continually abuse what they have.

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