SECT. I.—: RIGHT OF PROPERTY.

We should occupy the reader’s time to no good purpose were we to state the different theories that have been advanced by jurists, and writers on public law, to account for the origin of the right of property. It appears to be sufficiently obvious. All the rude products furnished by nature have to be appropriated; and not one in a hundred, perhaps, of these products is, in its natural state, capable either of supplying our wants or ministering to our comforts. Hence the necessity of applying labour to appropriate natural products, and to fashion Edition: current; Page: [26] and prepare them so as to be useful; and hence, also, the source of the right of property.

If a number of individuals be set down together on the shore of an unoccupied and unappropriated island, each will have quite as good a right as another to take the game or the fruit. But those who do so, or who, through their skill and industry, appropriate a portion of the common stock, will obviously be entitled to the exclusive use of such portion. We shall not undertake to decide whether there be or be not a principle inherent in man that at once suggests to every individual not to interfere with what has been produced or appropriated by others; it is sufficient to know that the briefest experience would point out to every one the necessity of establishing and respecting such a principle. If A climb a tree and bring down fruit, which, as soon as he comes to the ground, is seized by others, he will do nothing of the sort again till he be pretty well assured that he will not be exposed to a repetition of such violence, nor will others engage in the like undertakings till they have the same assurance. No doubt, therefore the right of property has a very remote origin. The necessity for its establishment is so obvious and urgent, that it must have been all but coeval with the formation of societies. All have been impressed with the reasonableness of the maxim which teaches, that the produce of a man’s labour and the work of his hands are exclusively his own. Even among the rudest savages the principle of meum and tuum is recognized; the bows and arrows of the huntsman, and the game he has killed, being regarded by him as his own, and his right to their exclusive possession being respected by his fellows. The right of property is, no doubt, perfected only by slow degrees. Thus, among hunters, the feræ naturæ on which they subsist, not being bred under the care or inspection of owners, are, so long as they run wild in the forest, the common property of the tribe, and only become private property after they have been captured by individuals. As society advances, the right of property expands. The modern Edition: current; Page: [27] Tartars, like the ancient Scythians, estimate their wealth by the number of their cattle. Their right to the animals which they have domesticated and reared is deemed inviolable; but the pasture grounds belong, like the hunting-grounds of the Indians, to the whole society; and as the flocks are driven from one place to another, the grounds may be successively depastured by the cattle of every different individual. The moment, however, that men began to renounce the pastoral for the agricultural mode of life, a right of property in land began to be established. The soil cannot be cultivated, its fertility cannot be increased, nor can it be made to produce those crops which yield supplies of food and other necessaries, without continuous labour and attention. Hence the origin of property in land. Nothing, it is plain, would ever tempt any one to engage in a laborious employment; he would neither domesticate wild animals nor clear and cultivate the ground, if, after months and years of toil, when his flocks had become numerous and his harvests were ripening for the sickle, another were allowed to step in and rob him of the fruits of his industry. The utility, or rather necessity, of regulations fitted to secure to individuals the produce they had raised, and the ground they had cultivated and improved, is so very obvious, that they existed in the most remote ages. The author of the book of Job sets those who removed their neighbours’ landmarks at the head of his list of wicked men; and the earliest Greek and Roman legislators placed these marks under the especial protection of the god Terminus, and made their removal a capital offence.1

It is obvious from these statements that the law of the land is not, as Paley has affirmed, the real foundation of the right of property. It rests on a more ancient and a more solid basis. It grows out of the circumstances under which man is placed. Every people emerging from barbarism has established this right. And as it could not be overthrown or set aside without Edition: current; Page: [28] depopulating the earth, and throwing mankind back into primæval barbarism, it has been guarded by the strongest sanctions. It is, in truth, the foundation on which the other institutions of society mainly rest; for, as Cicero has stated, it was chiefly that property might be protected that civil government was instituted. Hanc enim ob causam maximè, ut sua tuerentur, respublicæ civitatesque constitutæ sunt. Nam etsi duce naturæ, congregabantur homines, tamen spe custodiæ rerum suarum, urbium præsidia quærebant.2 Where property is not publicly guaranteed, men must look on each other as enemies rather than as friends. The idle and improvident are always desirous of seizing on the wealth of the laborious and frugal; and, did not the strong arm of the law restrain them from prosecuting their attacks, they would, by generating a feeling of insecurity, effectually check both industry and accumulation, and sink all classes to the same level of hopeless misery as themselves. The security of property is, indeed, quite as indispensable to accumulation as to production. Where it is protected, an individual who produces as much by the labour of one day as is sufficient to maintain him two, is not idle during the second day, but accumulates the surplus above his wants as a reserve stock; the advantages which the possession of stock or capital brings along with it, being, in the great majority of cases, more than sufficient to counterbalance the desire of immediate gratification. But, wherever property is insecure, we look in vain for the operation of this principle. “It is plainly better for us,” is then invariably the language of the people, “to enjoy while it is in our power, than to accumulate property which we will not be permitted to dispose of, and which will either expose us to the extortion of a rapacious government, or to the depredations of those who exist only by the plunder of their more industrious neighbours.”

It must not, however, be imagined that the security of property is violated only when a man is not allowed to enjoy Edition: current; Page: [29] or dispose at pleasure of the fruits of his industry: it is also violated, and perhaps in a still more unjustifiable manner, when he is prevented from using the powers given him by nature, in any way, not injurious to others, he considers most beneficial for himself. Of all the species of property which a man can possess, the faculties of his mind and the powers of his body are most particularly his own; and these he should be permitted to enjoy, that is, to use or exert, at his discretion. And hence this right is as much infringed upon when a man is interdicted from engaging in a particular branch of business, as when he is unjustly deprived of the property he has produced or accumulated. All monopolies which give to a few individuals the power to carry on certain branches of industry to the exclusion of others, are thus really established in violation of the property of every one else. They prevent them from using their natural capacities or powers in what they might have considered the best manner; and, as every man not a slave is held to be the best, and, indeed, only judge of what is advantageous for himself, the most obvious principles of justice and the right of property are both subverted when he is excluded from any employment. In like manner, this right is violated when any regulation is made to force an individual to employ his labour or capital in a particular way. The property of a landlord would be violated were he compelled to adopt any system of cultivation, even though it were preferable to that which he was previously following; the property of a capitalist would be violated were he obliged to accept a particular rate of interest for his stock; and the property of a labourer would be violated were he obliged to employ himself in any particular occupation, or for a fixed rate of wages.

The finest soil, the finest climate, and the finest intellectual powers, can prevent no people from becoming barbarous, poor, and miserable, if they have the misfortune to be subjected to a government which does not respect and maintain the right of Edition: current; Page: [30] property. This is the greatest of calamities. The ravages of civil war, pestilence, and famine, may be repaired; but nothing can enable a nation to contend against the deadly influence of an established system of violence and rapine. The want of security, or of any lively and well-founded expectation among the inhabitants of their being permitted freely to dispose of the fruits of their industry, is the principal cause of the wretched state of the Ottoman dominions at the present time, as it was of the decline of industry and arts in Europe during the middle ages. When the Turkish conquerors overran those fertile and beautiful countries in which, to the disgrace of the European powers, they are still permitted to encamp, they parcelled them among their followers, on condition of their performing certain military services, on a plan corresponding in many important particulars, to the feudal system of our ancestors. But excepting such as have been assigned to the church, or left to it in trust, none of these possessions are hereditary. The others revert, on the death of the present possessors, to the sultan, the sole proprietor of all the immovable property in the empire. The majority of the occupiers of land in Turkey, having, in consequence of this vicious system, no adequate security that their possessions will be allowed to descend at their death, to their children or legatees, are comparatively careless of futurity; and as none can feel any interest in the fate of an unknown successor, no one ever executes any improvement of which he does not expect to reap all the advantage during his own life. Hence, the carelessness of the Turks in regard to their houses: they seldom construct them of solid or durable materials; and it would gratify them to be assured that they would fall to pieces the moment after they have breathed their last. Under this wretched government palaces have been changed into cottages, and cities into villages. The long-continued want of security has gone far to extinguish the very spirit of industry, and to destroy not only the power, but even the desire to emerge from Edition: current; Page: [31] barbarism.1 “The miserable condition of the Sultan’s territories is not to be attributed to the disposition or habits of the people, but to the inefficiency of the government, the insecurity of private property, and the total disregard to every principle of political economy.”2

Had it been possible for arbitrary power to profit by the lessons of experience, it must long since have perceived that its own wealth, as well as the wealth of its subjects, would be most effectually promoted by maintaining the inviolability of property. Were the Turkish government to establish a vigilant system of police—to secure to each individual the power freely to dispose of the fruits of his labour, and to substitute a regular plan of taxation for the present odious system of extortion and tyranny, industry would revive; capital and population would be augmented; and moderate duties, imposed on a few articles in general demand, would bring a much larger sum into the coffers of the treasury than all that is now obtained by force and violence. The stated public burdens to which the Turks are subject are light compared with those imposed on the English, the Hollanders, or the French. But the latter know that when they have paid the taxes due to government, they will be permitted to dispose at pleasure of the residue of their wealth; whereas the subjects of Eastern despotisms who have paid the stated contributions, have no security that the pacha, or one of his satellites, may not forthwith strip them of every remaining farthing! Security is the foundation, the principal element of every well-digested system of finance. When maintained inviolate, it enables a country to support, without much difficulty, a very heavy load of taxes; but where there is no Edition: current; Page: [32] security, where property is a prey to rapine and spoliation, to the attacks of the needy, the powerful, or the profligate, the smallest burdens are justly regarded as oppressive, and uniformly exceed the means of the impoverished and spiritless inhabitant.

Mr. Brydone tells us that in his day it was customary for the more intelligent Sicilians with whom he conversed respecting the natural riches of their celebrated island and its capacities of improvement, to observe,—“Yes, if these were displayed, you would have reason, indeed, to speak of them. Take a look of these mountains, they contain rich veins of every metal, and many of the Roman mines still remain. But to what end should we explore them? It is not we that should reap the profit. Nay, a discovery of any thing very rich might possibly prove the ruin of its possessor. No, in our present situation, the hidden treasures of the island must ever remain a profound secret. Were we happy enough to enjoy the blessings of your constitution, you might call us rich indeed. Many hidden doors of opulence would then be opened which now are not even thought of, and we should soon reassume our ancient name and consequence.”1

The Jews have been supposed to afford an instance of a people whose property was long exposed to an almost uninterrupted series of tyrannical attacks, and who, notwithstanding, continued to be rich and industrious. But when rightly examined, it will be found that the case of the Jews forms no exception to the general rule. The strong prejudices of which they have been the objects have, in most countries, prevented their acquiring property in land, and have also excluded them from participating in their charitable institutions. Having therefore, no extrinsic support on which to depend, in the event of their becoming infirm or destitute, they had a powerful additional motive to be industrious and parsimonious; and being driven from Edition: current; Page: [33] agriculture, they were compelled to addict themselves to commerce and the arts. In an age when the mercantile profession was generally looked upon as mean and sordid, and when, of course, they had comparatively few competitors, they, no doubt, made considerable profits; though these have been greatly exaggerated. It was natural that those indebted to the Jews should represent their gains as enormous; for this inflamed the existing prejudices against them, and afforded a miserable pretext for defrauding them of their just claims. There are a few rich Jews in most of the large cities of Europe; but the majority of that race have ever been, and still are, as poor as their neighbours.

Let us not, therefore, deceive ourselves by supposing that it is possible for any people to emerge from barbarism, or to become wealthy, prosperous, and civilized, without the security of property. Security is indispensable to the successful exertion of the powers of industry. Where it is wanting, it is idle to expect either riches or civilization.1 “The establishment of property is, in fact,” to borrow the statement of one of the ornaments of the English church, “the source from which all the arts of civilization proceed. Before this establishment takes place, the indolent suffer no inferiority, the active receive no gain; but from the date of the recognition of property to the individual, each man is rich, and comfortable, and prosperous, setting aside the common infirmities which flesh is heir to, according to his portion of effective industry or native genius. From this period he is continually impelled by his Edition: current; Page: [34] desires from the pursuit of one object to another, and his activity is called forth in the prosecution of the several arts which render his situation more easy and agreeable.”1

It is clear from what has been previously stated, and from the nature of the thing, that nothing can become property unless it be susceptible of appropriation; and, on this ground, it has sometimes been objected to the game laws, that they make a property of that which, being incapable of appropriation, should belong to the community, or the captors. In support of this view of the matter, the rule of the Roman law has been appealed to, where it is laid down—Feræ igitur bestiæ, et volucres, et pisces, et omnia animalia quæ mari, cælo, et terra nascuntur, simulatque ab aliquo capta fuerint, jure gentium statim illius esse incipiunt; quod enim ante nullius est, id naturale ratione occupanti conceditur.2 But it is distinctly laid down in the article, whence we have borrowed this paragraph, that the proprietor of an estate has full power to prohibit any one from entering on it to kill wild animals. Without this proviso, there could not indeed have been, under the Roman law, such a thing as a property in land; and this is, in truth, all that is required to make game property. A partridge or hare is mine so long as it remains on my estate; but the moment it transfers itself to another estate it becomes the property of its owner. Poachers are punished not because they have killed wild animals, but partly and principally because in doing so they invade the right of property by killing it on lands belonging to other parties, on which they have no right to enter, and partly because they have not paid the tax demanded by government from all who kill game.

The interests of society sometimes require that a portion, or the whole, of the landed property of one or more individuals should be appropriated to some public purpose, as the formation Edition: current; Page: [35] of a road, canal, &c. But property should never be wantonly taken for such purposes, nor till the advantages to be obtained by its cession have been established before some competent tribunal; and when this has been done, full compensation should be made to those who are called upon to make a sacrifice for the promotion of the public interests.

Before dismissing this subject, we may observe, that Rousseau and the Abbé Mably have made an objection to the right of private property, which has been, in some measure, sanctioned by Beccaria and others.1 They allow that its institution is advantageous for the possessors of property; but they contend, that it is disadvantageous for those who are poor and destitute. It condemns, they affirm, the greater portion of mankind to a state of misery, and provides for the exaltation of the few by the depression of the many. The sophistry of this reasoning is so apparent, as hardly to require being pointed out. The right of property has not made poverty, but it has powerfully contributed to make wealth. Previously to its establishment, the most civilized nations were sunk to the same level of wretchedness and misery as the savages of New Holland and Kamtchatska. All classes have been benefited by the change; and it is mere error and delusion to suppose that the rich have been benefited at the expense of the poor. The right of property gives no advantage to one over another. It deals impartially by all. It does not say, Labour and I shall reward you; but it says, “Labour, and I shall take care that none be permitted to rob you of the produce of your exertions.” The protection afforded to property by all civilized societies, though it has not made all men rich, has done more to increase their wealth than all their other institutions put together. The truth, however, is, that differences of fortune are as consonant to the nature of things, and are as really a part of the order of Providence, Edition: current; Page: [36] as differences of sex, complexion, or strength. No two individuals will ever be equally fortunate, frugal, and industrious; and supposing an equality of fortunes were forcibly established, it could not be maintained for a week: some would be more inclined to spend than others; some would be more laborious and inventive; and some would have larger families. Hence the contradictory nature of all attempts to enforce an equality of property. By attacking that security which is a sine quâ non of all industry, the success of the levelers would be destructive alike of wealth and civilization. The establishment of a right of property enables exertion, invention and enterprise, forethought and economy, to reap their due reward. But it does this without inflicting the smallest imaginable injury upon anything else. There may be institutions which tend to increase those inequalities of fortune that are natural to society, but the right of property is not one of them. Its effects are altogether beneficial. It is a rampart raised by society against its common enemies—against rapine and violence, plunder and oppression. Without its protection, the rich would become poor, and the poor would be totally unable to become rich—all would sink to the same bottomless abyss of barbarism and poverty. “The security of property,” to use the just and forcible expressions of an able writer, “has overcome the natural aversion of man from labour, has given him the empire of the earth, has given him a fixed and permanent residence, has implanted in his breast the love of his country and of posterity. To enjoy immediately—to enjoy without labour, is the natural inclination of every man. This inclination must be restrained: for its obvious tendency is to arm all those who have nothing against those who have something. The law which restrains this inclination, and which secures to the humblest individual the quiet enjoyment of the fruits of his industry, is the most splendid achievement of legislative wisdom—the noblest triumph of which humanity has to boast.”1

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