¶1I fully concur in the opinion of my brother Wiwslow in this case. I add this note merely to avoid any misapprehension as to my relation to the case. Several months ago I had occasion to pay a small inheritance tax under the legislative enactment in question. I made such payment voluntarily and without any protest, and with no expectation that the same would be paid back, — without regard to the question whether the act was void or valid. I neither make nor have any claim for such repayment. Such being the facts, I participated in the hearing and the decision of the case.
¶2I join with my brethren in the decision in this case, but would be better satisfied if the court had considered and expressed an opinion upon the proposition urged by counsel for respondents in support of the judgment and challenged by counsel for appellants, that such legislation *224as that in question, barring any discriminating features, can be supported upon the theory that there is unlimited legislative authority to appropriate to public ownership a proportion or the whole of a person’s possessions upon the occasion of his death. The court was contented to express a doubt as to that. The prevalence of the contrary doctrine is such that a good degree of judicial courage was required to go even that far. However, haying reached the region of doubt on a proposition so well maintained by the authorities, it were better, as it seems, in view of the dangerous character thereof, had the court judicially solved the doubt as to this jurisdiction, and if the decision were against the proposition, to have distinctly and vigorously repudiated it.
¶3If, after the development of personal liberty for all the centuries that have preceded us and the embodiment in our constitutional system of the accumulated wisdom of those who- have endeavored to so intrench its principles in a written, binding declaration, as to protect the citizen from assaults by what would otherwise be, even, absolute power to destroy, if it were so willed, to do with one’s property or property rights whatever it might see fit, such system is still so inefficient that there is no- limitation whatever upon sovereign authority to confiscate to public ownership private property in the event of the decease of the owner thereof, that it may take from him and from his natural successors one of the prime essentials to- his and their “pursuit of happiness,” — then the fathers of the republic, state and national, have failed, most signally, in their efforts to construct a perfect system of government, able to give life to some of the fundamental principles included in their declared intention. As said in the opinion of the court, the idea seems to have first found significant- lodgment in the decisions of American courts, that there is no constitutional limitation upon legislative power to convert private property upon the death of the owner, except that laws in that *225regard shall bear equally upon all, in Eyre v. Jacobs, 14 Grat. 422. Tbe pronouncement there made has been copied time and again into the decisions of other courts, those of the supreme court of the United States not being an exception. In no ease, however, has the decision as to the validity of any law, or as to the right or wrong of any alleged cause of action, turned upon such doctrine. It has been used merely arguendo, — put forward as a reason with others, sufficient in themselves, to sustain the law in question and the judgment rendered.
¶4In the initial case to which we have referred, as well as in the eases that followed, the right to have one’s property pass in some way to a private successor or successors was spoken of as wholly a creature of the law,' not in any sense a natural right or one having any constitutional protection. We cannot believe it to be possible that a privilege regarded in all civilized nations as one of the most valuable of individual possessions, that of transmitting in succession in the family relation, the accumulations of private energy, and of the successors in such relation to take, if deemed worthy by the owner of the property, should be considered in no sense a natural right, and to be without any constitutional protection ; that, in the effort to put limitations upon legislative power, as to that one object, it was not safeguarded at all; that the lawmaking power here, as to that, is as absolute as the parliament of England; that it is “so absolute that it cannot be confined, either for persons or causes, within any bounds.” Sir Edw. Coke, 4 Inst. 36. No such power could exist in any state in this Union upon any subject, it seems, except upon the occasion of a primary meeting to form a constitution, entirely unrestrained by the national constitution.
¶5To limit the power of the people themselves, acting in a legislative capacity through their representatives, is one of the prime objects of a written constitution. Experience *226shows that without such limitation the inherent rights of the people, for which the fathers battled and which they so signally vindicated, would not long withstand the assaults of the people themselves. In our judgment the right to inherit is one of those inherent rights. General language was used in the fundamental declaration of rights, which formed the basis for every constitutional declaration in that regard that followed and is found in the various state constitutions. It was designed to be broad enough to- cover every principle of natural right, of abstract justice.
‘AH men are created equal. They are endowed by their Creator with certain unalienable rights. Among these are life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.’
¶6Our own constitutional declaration varies but little from that:
“All men are bom equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
¶7It seems that within those broad and comprehensive words is plainly lodged protection for the citizen as to every natural right and every principle of justice that is deemed essential to the consummation of the legitimate objects of human existence, including enjoyment, under proper regulations, of all the characteristics of the social instinct, to individual happiness, not * elsewhere found protected in the constitution; that, rightly construed and applied, it ties the hand of legislative power in regard to dealing with the transmission of property by inheritance other than by reasonable regulations, including reasonable burdens to pay the costs of administering the law and the'power of taxation, exercised without discrimination, upon the right to take by inheritance.
¶8*227Can there be any reasonable doubt about what has been :said, viewing the language jof the declaration of rights from the standpoint of those who originated it ? The very purpose they sought to accomplish was to put an end to legislative interferences with inherent rights, — those rights which it was supposed all men ought to be freely permitted to' enjoy under reasonable regulations, and which concern the individual happiness of the members of a law-abiding community; those rights which the people, at the time of making •such declaration, were in full possession of, one of which was the privilege to transmit property in succession. Who will venture to assert that the pursuit of happiness, in the constitu'tional sense, would not be seriously, most grievously interfered with, by taking away the inducement to exertion and the hope and expectation of transmitting the fruits thereof to others?
¶9It is wrong to suppose that there is no constitutional rei-straint upon legislative interference with the right to transmit property by inheritance, because no express limitation in that regard can be found in the constitution, as seems to have been the view of the Virginia court in the initial treatment of the subject to which we have referred. That instrument would be found to be sadly insufficient in many respects if it were not given effect in spirit as well as in letter. Any legislation which clearly invades those general prinei- . pies that are expressed within the scope of the language to which we have referred is as much inhibited by the constitution as if it were restrained by dear and unmistakable language, in the literal sense thereof. People ex rel. O’Connell v. Turner, 55 Ill. 280. In a note by Judge Redeield to that case, in 10 Am. L. Reg. (N. S.), 373, some doubt is, apparently, expressed as to whether there is “living power enough in those abstractions of the state constitutions, which have heretofore been regarded as mere 'glittering generalities,’ to enable the courts to enforce them, against the enact-*228meats of the legislature, and thus declare that all men are not only created free and equal, but remain so, and may enjoy life and pursue happiness in their own way, provided they do not interfere with the freedom of other men in the pursuit of the same objects.” But that they may be successfully invoked to annul unreasonable legislative interferences, which are inconsistent therewith, there can be no reasonable doubt. For a significant example of the force of that part of the constitution under discussion, we may point to the fact that the institution of African slavery was abolished in the state of Massachusetts by its constitutional declaration that “all men are created free and equal and have certain natural, essential, and unalienable rights;” and that it was there held that such declaration nullified all laws existing at the time it was adopted by the people, inconsistent therewith. 10 Bancroft, Hist. U. S. pp. 365, 366.
¶10In discussing the scope of the term “liberty and the pursuit of happiness,” Tiffany, Const. Law, §§ 28, 29, says, in effect, that the right to seek happiness implies the right to acquire and enjoy that upon which happiness depends and to enjoy it in a way to promote the most complete human contentment, to satisfy completely the physical needs, and those of the intellect and affection as well; that without such privileges there can be no perfect happiness, therefore the recognition of the right to seek happiness as inherent in all men, implies the right to1 seek all the essentials of happiness, to satisfy the natural longings of our human nature so far as-that is consistent with a perfectly regulated social system.
¶11The doctrine which I take issue with is- a relic of feudalism, which not only cannot, in the nature of things, have any legitimate place in our constitutional system, but, in our judgment, is plainly rejected by the language of our state constitution, not only in the declaration of inherent rights to which we have referred, but by another to which we will now call attention. The old idea of o-ur English ancestry *229was that lauded estates were uot tbe subject of absolute-private ownership; that tbe private possessor merely beld sucb au estate under a species of tenure, requiring personal fealty to tbe “lord paramount” as a condition thereof; that upon tbe death of sucb possessor, if tbe property was permitted to pass on to bis successor, sucb permission was by tbe grace of tbe paramount proprietor, and that tbe process of transmission involved, in theory at least, a resumption of full title by tbe paramount proprietor and a bestowal again of tbe qualified title upon tbe successor, imposing upon him as an incident of bis right tbe burden of fealty to tbe lord paramount tbe same as that carried by tbe former private possessor. Tbe law neither made a will for tbe deceased proprietor in case of bis dying intestate, nor executed one if be died testate, as' a mere agent or intermediary to assist in tbe transmission of tbe property. What was done in tbe name of tbe law was done as tbe sovereign éxercise of proprietary right of property. TJnder sucb a system no natural or absolute right of property, with power to transmit it as an incident thereof, could be recognized. Sovereign authority, in dealing with tbe question of succession, as regards landed estates, in theory, dealt with public rights. Our separation from all governmental connection with that system, and its necessary incidents, involved a radical change as regards the power of arbitrary sovereign interference with those things that are deemed necessary to life, liberty and tbe pursuit of happiness, other than by reasonable regulations. Realty to sovereign power, under our system, springs from citizenship, not from tbe ownership of property. There is no basis left for a public proprietary right in private property. Tbe supposed sovereign paramount right to property, and notion that tbe possessor thereof was a mere conditional bolder, with no absolute right to have the same pass on to a private successor under some reasonable regulation, is one of those relics of tbe past intended to be abrogated by *230our constitutional system, as is evidenced by the care that was taken to declare in our state constitution that ájl lands shall be deemed allodial. Our own declaration on the subject, found in sec. 14, art. I, is similar to those in state constitutions generally. That is inconsistent with the theory that the state, upon the death of the owner of property, acts by, proprietary right of control in any sense in passing the title thereto along to a private successor. It is consistent only with absolute ownership of property, the ownership indicated in the ordinary muniments of title by language to the effect, expressed or implied, that the grantee is to hold the title thereto to himself, his heirs and assigns forever,— an absolute ownership, having as a necessary incident, the power, express or implied, under proper regulations, to name a successor, with the right of kindred to have such power exist, leaving for sovereign authority, as its legitimate function in case of intestacy, to make a will, so to speak, distributing the property of the deceased along the lines of his presumed intention as embodied in the statutes, providing for a continuance of private ownership in such cases. Hammett v. Philadelphia, 65 Pa. St. 146—153.
¶12The subject to which this opinion is devoted would admit of very extensive treatment. It is not my purpose to . do more at this time than to take issue, most decidedly, with the theory that the right to transmit property by inheritance, and the right of next of kin and the immediate members of one’s family to take by inheritance, have no constitutional protection. If what I say shall have some influence to stay the further intrenchment of an error which, carried to the possibilities thereof, would entirely destroy what all value as one of their most sacred possessions, the writing of this short and very imperfect discussion of the subject will not have been in vain. It. is significant that the bases of the error, from first to'last, have been, the idea that the right to transmit property is in no sense a natural right, in viewing *231the right to- deal with the subject from the standpoint of systems of government entirely different from our own, and in failing to apply, in testing legislative power, those implied limitations expressed in the constitution by necessary inference. True, under the English system there is not supposed to be any natural, individual right to dispose of property by will, or to have the same transmitted to a successor by inheritance — no right that is above sovereign control to take it entirely away. But there are no inherent rights under that system that are entirely above sovereign power of interference, as represented by the king in theory but exercised in fact by parliament. Parliament is as absolute there as the people would be here, acting in their sovereign capacity, in the absence of any constitutional limitation. We deny the proposition that the right to transmit property under reasonable regulations is in no sense a natural right. It is such a right, and clearly one of the essentials to individual happiness. Unless that can be gainsaid, the doctrine we contend against has no rea’sonable basis to stand upon. A careful reading of the best considered cases where the subject has been treated will show, as before indicated, that the error we contend against was used arguendo, without considerate intention to state more than that the right to. transmit property by loill is clearly a creature of the statute, and that it, and the right to transmit property to a surviving alien, at all, may be wholly taken away by legislative enactment. That was the doctrine announced by Chief Justice TaNby in Mager v. Grima, 8 How. 490, and it seems to have been the idea, in the main, of Justice BkowN, when he wrote the opinion in U. S. v. Perkins, 163 U. S. 625, in saying:
“Though the general consent of the most enlightened nations has, from the earliest historical period, recognized a natural right in children to inherit property of their parents, we know of no legal principle to prevent the legislature from *232taking away or limiting tbe right of testamentary disposition or imposing snob conditions on its exercise as it may deem conducive to public good.”
¶13My conclusions are tbat tbe species of legislation under discussion cannot be justified upon tbe ground tbat there is no natural right whatever to transmit property by inheritance; tbat tbe ownership of property does not in any sense rest on a conditional bestowal thereof in tbe first instance by sovereign authority, subject to sovereign resumption of ownership upon the death of the owner thereof if the sovereign so wills; that a succeeding private owner of property by- inheritance does not come to the possession of the same in any sense as a beneficiary of a sovereign head. The absolute title of the constitution must necessarily be considered, I think, as a title by right absolute, as absolute as any right which is subject, as all are, to reasonable regulations, or having, as incidental thereto; not the mere privilege, hut the right in some way to have the property pass to a private successor in case of the death of the owner and the right of kindred to have it so pass. We repeat what has been said: that is one of the prime essentials of the pursuit of happiness declared in the constitution to- be an inherent possession of all men. Who could define the constitutional meaning of that term and leave out any of those tilings universally supposed to be necessary accompaniments of civilized society? The social instinct suggests at once that it must include, as incidental to the right to- dwell together in the family relation, the right, not only to acquire and enjoy property in the physical sense, but to have the mental enjoyment of transmitting it to others in the family relation under such reasonable regulations as legislative wisdom may see fit to -impose. A legislative appropriation, as by sovereign proprietary right upon the death of the owner thereof, is a clear invasion of the spirit of the constitution, and is inconsistent with all our notions of constitutional liberty. That does not mili*233tate at all against the power to reach and tax the right to take property by inheritance or to take the same as devisee •or legatee. The taxing power as to such property rights, the same as any other, is so firmly established on principle and •authority, and reasonable legislative efforts to that end are •so praiseworthy, that no one will venture to question the right itself. It needs no support now, if it ever did, by the idea that there is a constitutional right, vested in sovereign authority, to confiscate property upon the death of the owner, — that death can make that which was before private property, public property.