Thomas Hodgskin- Natural and Artificial Rights of Property Constrasted

7/27/2019 Thomas Hodgskin- Natural and Artificial Rights of Property Constrasted

1/196


2/196


3/196

ADVERTISEMENT.

T_g present letters, except verbal alterations, wexewritten in the year 1829, and consequently in ignoranceof those political cor.vulsions which have le__the authorto think that this is a proper time to publish them. Inhis opinion, the contest now going on in society, thepreternatural throes and hearings which frightfully con-vulse it from one end to the other_ arise exclusively andaltogether from the right of property_ and can be neitherunderstood nor relieved, but by attending to the greatdistinction he has endeavoured to establish betweenthe natural and the leg-al right of property. Whether.his voice be listened to or not is of trifling moment; butit is of infinite importance to every man to listen to thevoice of nature, let who will be its interpreter.To elucidate some vf the following remarks, it is rightto add, that the present is only an episode in a largerwork relating to criminal law. Le_slators are yet com-pletely ignorant of the first elements of criminal legisla-tion, and the correct and philosophic answer to ttmmeaning question, "What is crime. 2'" throws down atone blow the _hole theoretical structure of penalenactments. By a deduction from principles not hereenunciated, the author has satisfied himse!f t_at all law-making, except gradually and quietly to repeal all exist-mg laws, is arrant humbug. Such being his weRweighed and long cherished oonviction, he cannot pos-sibly feelanyrespectfortitles, dignities, oYees, indi-viduals, or acts which have and can have no otherpossible claim to approbatlon_ than the supposition


4/196

ii.that le_slation and its consequences are of vital im-portance to the welfare of society, l-re mentions thiscircumstance, to account for some, perhaps, strong ex-pressions and peculiar opinions, while he hopes bydemonstrating, that even property is uo_.regulated anddetermined by human laws, to prepare the mind of thereader to admit the general principle, that society canexist and prosper without the lau'maker, and copse-quently without the taxgatherer. He is quite aware.that such a conclusion, generally adopted, must be thework of time. and of a mightier artist than ever wrotewith pen, but he is not without hope, that the presentand his meditated work, should he find leisure and etr-cooragement to undertake the publication, may contri-bute to what he thinks so desirable a result.He is aware alsoj, that speculations of this kind haveno charm for the multitude. He t,as learnt, by expe-rience, that books of this description are not and can-not be much read. Popular displays of popular errors,or of these truths which have been long enough knownto form a part ef the general creed, pretended illustra-tions of the progress of society, drawn up in the formof novels, pictures of individual life, biographies, as itwere, of any particular state or condition, may have astrong charm for many readers, and sell so extensively,as to procure an ample remuneration fer author, pub-lis_er, and bookseller. But works unfolding a dawningtruth, which is afterwards to become a part of the gene-ral stock of knowledge, which lay claim to increase theextent of abstract moral science, which announce a dis-covery, and because it is a discovery, or an extensionof kno_vledge, it cannot be immediately understood,much less immediately popular_works of this kind ocannot be much read : and therefore, wi_h the i;rudence

of a tradesman and the calculation of a poor man, he hasput a large price on this book, and printed only a smallnumber of copies, in order that he may not lo_e a great :

.F


5/196

t_oIlL

._um by his speculation. The book _il], undoubtedly, becompared, as to size and price, with nameroDs popularbooks of the classes lust me_,tioned, and will be triedby the price of those which are expected to sell to theextent of several thollsand copies. Compared, there-fore, to volumes of the "' Library of Entertaining Know-]edge, or of the '" Fami,'v Library,," it must appear out-rageously high priced. 'i'his will, bowever_ sl.ew that itis not intended for the poor. It is not likely, indeed, tobe popular with any class. It flatters co passion*_ Itneither proves that" the wealth of the rich is ]n the orderof the nature, I.or justifies the desire of spoliation in thepoor. It ex..cour,_ges no hopes of _rJd'_ng a speedy remedyfor present evi:s, and seet,.:s destined to find no favonnwith any one class, because all look only tothe law eitherfor |;rotection or improvement. F]a_ering no popularprejudice, and basilig itself o,l no W-pular creed, it appealsto reasen ; and the autl:or ",,no,v_.- the judges in thatcourt are fear, and too ]ud6Ient to inquire diIigently intothe ca_:ses u hich are breeght before it. Such as thebook is, conscious of meaning _e]!, however the execu-tioxl may have fallen sho:-t, or gone _-ide of his inten-tim_s, t[ae author commi'.s his prod._ction to the mercyof the law and the justice of his com_trymc_n.


6/196


7/196

CONTENTS.Letters. Page.

FIRST Reasons for addressing 3fr. Brougham.--His Lawcommission.-- 1ts inutility.--The necessity of in-quiry into first principles.--THw RIGHT OFPaO-P__rr is one of these principles, and the founda-tion of the poliileal edifice.--Important differenceof opinion between Mr, Locke and Mr. Bentham,as to the origin of this fight - - - ]SECOND . Mr. Locke's opinion of this fight adopted andconfirmed.wProofs of its existence at all times

and plaees.--Proof that M. Dumont is wrong inascribing a sense of security to le_slation 23THXRD . _Vhat is the law!--$Vho are the law makers, tm

The law is a great scheme of rules intended topreserve the power of governm2nt, secure thewealth of the landowner, the priest, and the ea-pitalist_ but never to secure his produce to thelabourer.--The law-maker is never a labourer,and has no natural right to any wealth.--Hetakes no notice of the natural fight of property.--Blanifold miseries which result from his ap-propriating the produce of labour, and from thelegal right of property being in opposition to thenatural ..... 44

FOraTH. Ori_n of the right ofproperty in land_--Changeswhich it is undergo.=ng._The quantity of landrequired to raise subsistence gradually dimi-nishes.--Important principle overlooked by Mr.Malthus and his followers.--Appropriation ofl_nd in Europe - - - 61

FIRTH False pretexts and real objects of the le_slator._Proofs that his real object of preserving hispower_ has not been attainecL_I-Ie has failed tosecure the superiority of the landlords_ and thelegal rights of the clergT._The revenue of thestate.--The _bolJtion of slavelT_ and the riseand progress of the middle classes, contrary tothe legislator's wiU._IHustra_on of the usurylaws,_Altcration in the right of.property 76


8/196

CONTENTS.

SIXT_[ Identity of Lord Bacon and Mr. Locke's philoso-phy.wLaw-makers in establishing a right ofproperty only copy a previous usage.--Examplesof the test acts and Catholic emancipation.mThe press.mLast act of legislation.--Examplesof Peter the Great and Joseph II.--Of the mid-dle ages.--Of forgery.--An example in the timeof Athelstan.--In modern Mexico.--Attempts toabolish _dlleinage on the continent.--The Frenchrevolution .... 105SEVENTH[ The existing right of property is guaranteed by _)opinion, not by law.--Source of the opposite

mistake.--Protection afforded by law againstgovernments._IllustrafionfTul'kvyand BH-t_in. -- Illustrations of opinion gllaxanteeingrights, not taws._Tenants at will in Englandand Italy.--Property of tradcl_._Domesticrights._All rights are guaranteed by opinion 130EmnTa Not intended to go deeply into this subject.raThe "'sufferings and crimes of the oppressed labourer _overlooked.--The pains and penalties-suffered _:

by the oppressors only adverted to.--Mr. Combe:s ;"description of the present state of society._Fraud, forgery, and overtrading, all result froman artificial right of property.--No le#slativeremedy suggested for these evils, becausc legisla- ::tion has no influence over natural laws.--So-ciety a natural phenomenon._Conclusion 147 !-POSTSCRIPT Change in the situation of theLord Chancellor.--Reasons for belie_-ing that his former liberalityof sentiment was assumed.--The Lord Chancel-lor's attack upon the author.--Changes in Eu-rope.wAs they have not led to social happiness,men will and necessarily must inquire into theRight of Property.--Other proofs of this neces-sity.wAnswer to the statement_ that these doc-trines lead to no legal improvement.--It hasbeen shewn that property is not regulated by ihuman laws, and therefore society is not._Thepower which has regulated it in past times mustbe trustedin future.--Souree of the alarm as to ;:property, and reasons for belie,-ing it unfounded,_Conclusion - - 164

P


9/196

LETTER THE FIRST.INTRODUCTORY.

Reasons for addressing Mr. Brougham. His Law commis-sion--Its inutility. The necessity of inquiry into firstprinciples--Tnz Ut61tT Or' PROPERTY is one of theseprinciples, and the foundation of tile political edifice.Important difference of opinion between Mr. Locke and_lr. Bentham, as to the origin of this right.

To H. BROUGHAM, Esq. M.P.F.R.S. &e.

SIR_The only circumstance I can allege asan excuse foraddressing you, is the conspicuous man-ner in which you some time ago stepped forward as

a reformer of the law. Every such attempt involvesthe safety of our property and the security of ourpersons, and gives every man in the kingdom a titlet6 canvass your proceedings. If they are right, weare bound to aid, and if wrong, to oppose you.He who has not access to your ear, may adopt this me-thod of reaching your understanding, and pleading"in face of the public, he cannot be met by a non-suit. Your power rests on your reputation, and hav-ing assumed the character of a lead6r to conduct usout of the quagmire of law, you can neitherreject ourassistance, nor escape from our opposition. I do notconfl'ont you however as an antagonist, I am merely art


10/196

2inquirer, who wish, havin$ at hcart, It'ke'yo ursetf--tt_ewelfare of manwto point out some of the obstaclesin your path, and to suggest that it does not lead tothe firm ground and pleasant fields we desire to reach.That I may add to the confusion, many voices nowvociferating different counsel--ls not improbable;but 1 have set before me a grand object which con-ceals every thing else from my view, and makes meindifferent whether I promote your views or lessenyour fame.1 find, with astonishment, on looking" back atdates, that it was so long ago as February 7th, 1828,_hat you made your celebrated speech on the present .s*.ate ofthe law. Youthen moved "That an humbleaddress be presented to His Majesty, praying that hex:.-i,_lbe graciously pleased to issue a commission forinquiring into the defects occasioned by time al_d 'vtherwise in ihe laws of this realm, and into themeasures necessary for removing the same." Yourmotion was only half granted, because those who haver.mre power than you have, are opposed to improve-ment: but if you thought that it would produce anygood, except, as your speech justifies, the general dis-repute into which the law has fallen, you are nodoubt by this time satisfied that you were mistaken.Your motion was founded in error. It implies, con-lrary even to the tenor of same of your arguments,_hat the law was once appropriate and excellent.I ll-adapted as it is to the present state of society, thelaw never was abstractedly so good nor so well ad-_.in!stered as in the reign of George IV. It hasbeen carried forward by the prog'ress of society.Time has not occasioned defects, but improvements,in the laws, though the legislator who always aimsat prcservin_ the institutions of a past age, has nt_tsuffered the laws to keep pace with society. Timlatter has exteaded and improced more rapidly if:an


11/196

3the former, suggesting the important truth that"your laws have not regulated its course, and do notpreserve social order. It has out-run and out-grownall the cunning political devices of men, teaching usthat the institutions which are now supposed to be wis_and which the lawgiver struggles to make consistent,will, ere long, like th_se that have already passedaway--like monachism and the trial by ordealmbe-come the mockery and scorn of mankind. Sir, thevital principle of society which distinguishes it fromevery other part of the ealthly creation, that ofsteady progression in improvement, carrying with iLall that pertains to it, prevents time from corruptinglaws as it destroys neglected buildings. Either yourmotion was founded on a mistake, or you wished, likeother law makers and law interpreters, to mystifymankind and cherish their veneration for the ignorantlegislator, by ascribing follies, of which he alone isthe author, to a pure abstraction. A motion foundedon such an error can be of no benefit except to thecommissioners appointed to inquire and report.Should their _ecommendations be useful, they willhardly be carried into effect for two or three gene-rations ; and in the mean time such pompous investi-gations into evils of which men have a practicalconviction, merely substitute the hope of improve-ment for impatience under legal vexations. Theyserve to foil public indignation, turning it aside, andblunting the appetite for reform. That they will leadto any. substantial good, can only be believed bythose who deny lhe authority of experience, andconceive the law, which has always been acknow-legedly mischievous in practice to be admirable inprinciple.I am disposed to think that the inquiries andrecommendations of your commissioners are morelikely to do harm than good; and I shall explain


12/196

4why I think so. Your late friend and preceptor,Mr. Stewart, whose bland manners, eloquent lan-guage, and humane disposition, obtained for him agreater reputation as a philosopher than he deserved,turning away dismayed, as he frequently, did fromthe search after truth, because he was afraid, likemany other purblind, timid mortals, of its conse-quences;--Mr. Dugald Stewart remarks that "inorder to lay a solid foundation for the science of poli-tics, theflrst step ought to be, to ascertain that formof society which is perfectly agreeable to nature andto justice, and what are the principles of legislationnecessary for maintaining it.'" lte had previouslysaid that "it is easy for the statesman to form toh]mself a distinct and steady idea of the ultimateobjects at which a wise legi.s.lator ought to aim, andto foresee that modification of the social order towhich human affairs have of themselves a tendencyto approach."* He adds that "they are to be themast (the only) successful statesmen who paying alldue regard to past experience, search for the rulesof their conduct chiefly in the peculiar circumstancesof their own times, and in an enlightened anticipationof the future history of mankind."t You admit, Sir.that society has a course of its own** which le_sla-tion is compelled to follow, and every statesman,every law maker, every law promoter, must domischief who does not frame his enactments by an"enlightened anticipation" of that course in future.Every new law must of necessity be injurious whichis not adapted to "that form of society which is per-

* Elements of the Philosophy of the Iluman Mind, byMr. Stewart. Vat. I, p,tge 251, 2at e',L+ Ibid.

Brou_ham's speech on the preseat state of theLaw,_Attthentie edition, p 109,I[


13/196

: feetly agreeable to nature and justice." Every onei ofyour commissioners then must work evil if he havenot a distinct and steady idea of the "ultimate objectsat which a wise legislator ought to aim." Among"these gentlemen 1 do not recognize one who hasmade the principles which regulate the progress ofsociety the object of his study. They are, I believe,men of detail, men profoundly versed in all thetechnicalities of eonveyancinff, profoundly attachedeven, it is to be apprehended, to those technicalitieswhich are to them a means of attaining" reputationand wealth, but among them there is not I believeone philosopher.* Their recommendations I take it,

_ will only g'o to amend some of these technicalities,: --some trifling' discrepancies of detail--and they' will assume as correct that principle which scienceteaches to be an error. As far as their authoritycan go, they will recommend the continuance of error,and they will contribute to perpetuate it, by pruningaway some of its most revolting consequences.There is one means indeed by which they maydo good. All men are instinctively obedient to pub-lie opinion. The force of circumstances operatesupon all mankind. It influences the sentiments, andeven fashions the minds, of the most dignifiedmembers of the Bench and the Bar_ as well of themeanest of our species. Under the influence of cir-cumstances, and in obedience to public opinion, yourcommissioners, forgetting" the details of their profes-sion, may perchance endeavour to bring our anoma-lous law into accord with the prevalent feelings ofthe ag'e" but their respect for it will not allow themto go so far as even present eimeumstances dictate,

* Mr. John Campbell is reported to have said of LordEldon, and this may be said of all lawyers, that they are sowell ae luainted with what the law is, that they have no coneeption of what it ought to be.


14/196

6and still less will their recommendations be gu idealby an enlightened anticlpation of the future. Thelaws enacted by their advice, will only be so manyadditional noxious statutes imposed on mankindby authority, to be swept out of existence at thefirst convenient opportunity.*I might quote many other authorities besidesyour own and that of Mr. Stewart, to prove thatsociety has a coarse of its own, and that it is thehighest duty of the le_slator to study that course,and ascertain the laws which guide it, before heframes new statutes; but I am convinced by the pas-sage of your speech, which 1 have just referred to,that you are already satisfied of this important truth,and l know that you have a high respect for theauthority of your late venerable teacher. But beingconvinced of this important fact, have you everexamined the first principles o_,"legislation, in re-lation to the natural laws which Eve birth tosociety and carry it onward to perfection, t, Haveyou," to use the language of Lord Bolingbroke, "anddeceive neither yourself nor me, have you in thecourse of these thirty years once examined the firstprinciples, and fundamental facts on which all thesequestions depend, with an absolute indifference ofjudgment and with a scrupulous exactness? Withthe same that you have employed in dealing withthe various consequences drawn from them, and thedifferent opinions about them? Have you not takenprinciples for granted in the whole course of yourproceeding.2 Or if you have looked now and then

Since the observations of the text were written, thecommissioners have published t_vo reports, and you are wellaware--though you have praised them--that they do not fal-sify my pre:lictions. They recommend the tinkering up ofsome of the defects of the law, but they throw no light on itsprinciples. "l'hese_ the ommissioner-_--goodeasy men--takefor granted.


15/196

!7

on the state of the proofs brought to maintain them,have you not done it as a mathematician looks overa demonstration formerlymade, to refresh his memory,not to satisfy any doubt._* If, as I am at_aid, fromyour multifarious pursuits, though you have some-times left politics and law to court philosophy, youranswer must be in the negative--what assurancecan even you supply, that another costly commission,, and other remedies for legal errors, will not in a fewmonths or years be required? What ffqarantee canyou give us that all this expense, all this fretfulnessand feverishness of change, will not be sufferedin vain ?

But if you have not s_udied the natural princi-ples which regulate society, do you believe that thebankers and merchants, whose lives are passed in acounting--house--that country gentlemen, who areminutely acquainted with horses and dogs, with goodliving, and the duty of punishing poachers.., thattreasury clerks, wl:o by performing sundry mechani-cal evolutions, come at length to sit on the treasurybenches--that captains and colonels who are greatat manceuvring a ship or a regiment_that lords ofthe bed-chamber, whose tive_ are passed amidst thefrivolous dissipation of London and Paris--do youbelieve that the members of the motley group,which,when collected at Westminster, the public honoursas the legislature of this coun'.ry, have meditat(dnight and day on these principles, and on the greati_terests they continually try to model after theirown image of " n'_erlbctto i- With one or two exceF-tions, they are so ignorant that they have yet to learnthe existence of any natural laws regulating so-tieD,. They believe that it is held tog-ether by the

* "Of the true use of Retirement and Study," with oneo." lwo verbal a!!era':ons.


16/196

8statutes at large; and they know no other lawswhich influence its destiny than those decreed bythemselves and interpreted by the judges. If thelegislature have not examined these principles, havethey been examined by the practical lawyers engagedin the commission, whose whole soul is engrossed bythe details of their profession? Has this work beendone even by the public,who eagerly call for new regu-lations and who worship an idol under the name oflaw, more extensively mischievous than the Molochof antiquity? For the pul_lie there is much excuse.Continually occupied in providing for their ownanimal wants, and the craving wants of the state,they have no time for deep investigation ; and theyare only to blame for relying implicitly on others,who, though, at least, as ignorant as themselves,arrogantly claim to govern and instruct them. Ifneither the public nor the legislature be acquaintedwith the ultimate objects at which the latter oughtto aim, how is it possible that our tinkering mode ofmaking laws, merely fastening .together the linkswhich time is eontiliually snapping, can adapt ourcorroded and worn-out system to the future form andcondition of society? Never were the discrepanciesbetween the state of the law and the condition ofsociety greater than at present. Never was the con-viction so general that the laws must now be exten-sively altered and amended. Rapidly therefore asthe gentlemen at Westminster work, making threeor four hundred laws per year, repeating their taskssession after sessionmactively as they multiply res-trainls, or add patch after patch, they invariably findthat the call for their labours is continually renewed.The more they botch and niend, the more numerousare the holes. Knowing nothing of natural princi-ples, they seem to fancy that society--the most glo-rious part of creation, if individual man be the noblest

)


17/196


18/196


19/196

!1: pear ignorant of any thing before other men. He

may be too apprehensive of learning that his power isnot quite so beneficial as he wishes to believe it. He= may be aware that inquiry would strike at its root.: A philosopher, indeed, might say, inquire into: what ? Into the past condition of society? Le_slators: would not surely make laws for that. Into thefoture_ condition of society._ There are no means for con-ducting the inquiry with success "/'he progress ofthe past may east its shadow before, so that you may: have a rough notion that soeiety is to go on increas-:: ing in people, in wealth, and ":nknowledge, as it hasincreased in past time; but what shape that increase is

_ to take, how rapid is to t e the progress, and what are to be the new relations, both anaong" individuals and among nations, it will call into existence--what ne_trades, what new arts, may ari_e_what new habits,manners, customs, and opinions, will be formedwhat is the precise outline society will assume, withall the fillings-in of the picture to the. most minutetouches ;--all these things, to which laws ought tobe adapted, cannot possibly be known: and inquiryinto them,with a view of making laws to accord withthem, must necessarily make the whole business of le-gislation appear in its true character to mankind----amockery of their interests, and a fraud on their under-standings. Will legislators inquire, then, into thepresent ? It is a line withoutbreadth_the negationboth of the past and the future--one of which passesinto the other, while you are talking" of inquiring.and before you can make your laws to catch it. In-quiry either into the past, the future, or the present,is adverse to the principles of legislation ; and it isnot, therefore, extraordinary that legislators shoulddecree, as they always have done, without previousinvestigation.Although I am convinced that all legislation


20/196

12must be injurious, till all the natural princlpleswhich govern society be investigated, yet I have nointention, on this occasion, of extending my re-searches so far. I aim not at laying "a solid founda-tion for the art of politics," by ascertaining all theprinciples of legislation necessary to maintain "thatf_rm of society which is most agreeable to nature;" Iam contented with a far humbler task, and mean totontine my remarks to one only of these natural princi-ples, and to one only of the branches of le_slation.That one, however, you are aware, is of vital import-ance. Political orffaMzation depends very much onthe mode in which property is distributed. Whereverthe right of property is placed on a proper foun-dation, slavery, with all its hateful consequences,is unknown:--wberever this foundation is rotten,freedom cannot exist, nor justice be administered.--Moreover, we have Mr. Locke's authority for saying--others, as Cicero,* having" said the same thing"before---" That the great and chief end of men'_"uniting into commonwealths, and putting them-selves under government, is the preservation oftheir property, to which, in the state of nature,there are many things wanting.t A yet livingwriter, for whose authority you also profess great re-spect,_ Mr. Bentham, tells M. Dumont to expresshis opinion in these words_" Pour mieux sentir lebienfait de laloi, cherchons _ nous faire une id6enettede la propri6t6. Nous verrons qu'il n'y a point depropri6te naturelle, qu'elle est uniquement l:ouvragedes lois."_" L'idee de la propri6ta consiste darts uneattente 6tablie, dans la persuasion de pouvoir retirertel ou tel avantage de la chose selon la nature du cas.

_' De Offic. Lib. ii. cap. 2l.Civil Government, p 19.4.See Mr. Brougham's _peech._N'ote to _a#e 84.


21/196

_.,I 13Or, cette attente, eette persuasion ne peuvent gtreque l'ouvrage de la ]oL Je n6 puis compter sur lajouissance de ce queje regarde comme mien, que surla promesse de la loi qui me le garantit." "La pro-" pribtb et la loi sont n_es ensemble et mouront en: semble. Avant les lois, point de propriktk. Otez les_, lois toute p,'opribtk cease "*_ The vast importance of the right of property,in Mr. Bentham's opinion, is also expressed in thispassage. "C'est ce droit qui a vaineu l'aversion natu-reile du travail, qui a clonn6 _t l'homme l'empire dela terre, qui a fait cesser la vie errante des peuples,q,ti a formb l'amour de la pattie et celui de laposteritL Jouir promptement, jouir sans peine,voil ]e desir universel des hommes. C'est ee de-sir qui est terrible, puisqu' il armeroit tous eeux quin'ont rien eontre eeux qui ont qnelque chose. Maisle droit qui restreint ee desir est le plus beau triomphede l'humanit6 sur elle m_me."t

The benefits here ascribed to the right of pro-perty as ereated by law, are much exaggerated ; butthe passage, which has been adopted by several au-thors of distinction, as well as the one I shall nowquote from Mr. Mill's writings, shews distinctly thatin their opinion the right of property is the key-stoneof society. " The end, says Mr. Mill, to be ob-tained through government as the means, is tomake that distribution of the scanty materials ofhat, pines..,, which would ensure the greatest sum ofit to the members of the eommunity, taken altoge-ther, preventing every individual or eombination ofindividuals from interfering with that distribution, or

* Traitt_s de l.egislation_Tom, l; page 179, 9.ha ed._M. Dumont's "'Je regarde comme mien" obviously appliesto that which he now regards as his, which is, probably, notnaturally his own.-I"Ibid, page 18'_,


22/196


23/196

15_'i The co_-st now _o;,,_, whether it br_k out into_!i open rebellion or ghde into notice, in the form of_ a smuff_-ler, on the frontiers and shores of king:: doms--whether it be simply heard in a demand lbra reduction of taxation, or come in tho thunder of: popular indignation, hurling princes from theirii thrones, is merely a contest to obtain wealth. Wheni this is the case between governments and their sub-eers, you will readily believe that it is also thecase between different classes of the people. The

peasant hates the noble, and tl_e noble fleeces thepeasant, because the one desires to keep and the other to get wealth. The priest grasps at and thinks-of it alone, while he holds up his idol-god ; for theGod of onr priests is not the God of nature_notthat great Being, who fills and sustains all, who

i spreads life and happiness throughout creationbut a malicious and revengeful being, born of thebarbarous fancies of a cruel and barbarous peo-ple; and while tile priest holds up the idol-godi of a foreign and a despised race, to terrify thevulgar, he makes searching demands on our pockets.If he did n-t, if there were no tithes, no hierarchy, nosplendid colleges to be sustained, no man would trou-

ble himself either to uphold or gainsay the dogmas,in the name of which the priest fleeces the people.As the contests between individuals, between classes,and between subjects and their rulers, all relate towealth, you may be sure, that no topic can in prac-tise, be pregnant with more important results_The right of property, wbieh is now arming theland-owner and tile capitalist ag'ainst the peasantand the artizan, will, in truth, be the one great, sub-_bect of contention for this and tl_e next generation ;efore which, it needs no prophetic vision to foretel,the squabbles of party politicians, and the ravingsof imolerant fanatics will die away unnoticed at.Munheard.


24/196


25/196

17nature, to do which he must know them; the otherdenies that there are any such laws, which in fact it_authors do in express terms, and they look on ca-, actments as determining the welfare and destiny ofi mankind. A more important difference of opinioni_ cannot exist. Either principle lies at the very found-t_ ation of the whole political edifice. Mr. Locke'sI! view is, in my opinion, more correct than Mr. Ben-

_ tham's, though at present among" legislators, andi those who to be legislators, the latter is by farspirethe most prevalent. Practical men universally adopt__ it; for they always decree, and never inquire intothe laws of nature. The prevalence of Mr. Ben=tham's opinion, makes it necessary to illustrate andi_ enforce that of Mr. Locke, in so far as it is limited

to asserting that a right of property is not the off-! spring of legislation.1 cannot, however, pass by the opinion, that allthe rights of man are derived from the legislator,_ without noticing its absurdity. This is the maini principle---the incorrect and insecure foundationof all the logical consequences, called the system ofi Mr. Bentham, of which I am afraid neither you nor. the world in general is aware.--and which beingremoved, the whole of that unsightly fabric tumblesvalueless to the ground. The materials of this vastbuilding, its crabbed deductions from false premises--are of such a rude and uncouth description, that noother edifice can be constructed out of them ; andwhen once the foundation is removed, there theywill lie till time sweeps them away, encumbering a

portion of the mind of society which might, but forthese errors, have borne the choicest fruits, or servedfor the erection of a splendid temple of truth.

w See both Mr. Bentham's " Introduction to Morals andl,egislation" and M. Dumont's '" Trait_s."


26/196


27/196

5

i Other philosophers have wisely represented go-vernment and law as necessary evils, imposing--forsome imagined, though incomprehensible, generalgood--restrictions on the natural rights and naturalfreedom of individuals, which they might dispensv_v_th as they grew enlightened and wise: but2_Iessrs. Bentham and Mill, both being eager to exer-! cise the power of legislation, represent it as a benefi-cent deity which curbs our naturally evil passions and

; desires (they adopting the doctriue of the priests, thatthe desires and passions of man are naturally evil)---which checks ambition, sees justice done, and encou-rages virtue. Delightful characteristics! which have: the single fault of being contradicted by every page ofhistory. Hitherto, it has been generally supposed thatthe whole world was given to the human race, withdominion over all other created things, for them to useand enjoy in every way, abstaining from nothing_restricted in nothing" consistent with their own happi-ness_bound mutually to share the blessings providedfor them, because mutual assistance begets nmtual love--supplies physical wants easier and better, andpromotes moral and intellectual improvement ;_thatthe rights and duties of men grow out of the greatscheme of creation, which is sometimes misinter-preted, and rarely understood, by human sag-acity,_sometimes marred, and never mended, by humanwisdom. But, now, in compliment to politicalpower, and to Mr. Bentham's theory, that we may findan apology for our own infirm and base submission,wemust believe that men had naturallyno right topiekupcock les on the beach :or gather berries from the hedge---no right to cultivate the earth, to invent and makecomfortable clothing, to use instruments to providemore easily for their enjoyments no right to improveand adorn their habitatmus--nay, uo right to have ha-bitatioas_no right to buy or sell, or move from place


28/196


29/196

so unhallowed a feast! Poor human beings ! Howwere you cast away--thrust out from the protectionof Divine Providence, which extends its fosteringcare to the meanest things of creation, till that betterdi_-inity, a decree-manufacturer, took you under hischarge! Such deductions would be shocking, ifthey were not eminently absurd ; and yet, Sir, you,who know on what principles Mr. Bentham reasons,must admit that they are the legitimate results of asystem denominated, from the seat and centre ofcivilization, the Philosophy of Westminster.o me, this system appears as mischievous as itis absurd. The doctrines accord too well with the

:" practice of law-givers, they cut too securely all thegordian knots of legislation, not to be readily adopt-ed by all those who, however discontented they maybe with a distribution of power, in which no sharefalls to them, are anxious to become the tutelaryguardians of the happiness of mankind. They lif_legislation beyond our reach, and secure it from cen-sure. Man, having naturally no rights, may be expe-rimented on, imprisoned, expatriated or even exter-minated, as the legislator pleases. Life and propertybeing his gift, he may resume them at pleasure; andi hence he never classes the execdtions and wholesaleslaughters, he continually commands, with murder--nor the forcible appropriation of property he sancti-ons, under the name of taxes, tithes, Kc.,with larcenyor high-way robbery. Filmer's doctrine of the divineright of kings was rational benevolence, compared tothe monstrous assertion that "all right is factitious,and only exists by the will of the law-maker."* But

, though this may be comfortable doctrine for le_sla- tots, it will not satisfy the people; and in spiteSee Mr. Mill's article on Jurisprudence: Supp. to theEncy. Brit.


30/196


31/196


32/196

24work. But after much and anxious deliberation,1 am satisfied that it is not possible to meliorateour political condition, or even to save society fromconvulsions, more terrible perhaps than have everbeen known, unless all classes attain correct notionsof the natural right of property, and endeavour gra-dually to adapt their conduct and social institutions towhat nature decrees. Allow me, however, at once todeclare (as there have been in al most every age indi-viduals, such as Beccaria and Rousseau -and sects,some existing at present, such as Mr. Owen's co-operative societies, the Saint Simonians in France, andthe Moravians, who have asserted that all theevils of society arise from a right of property, theutility of which they have a_cordingly and utterlydenied) allow me to separate myself entirely fromthem, by declaring that I look on a right of pro-perry--on the right of individuals, to have and toown, for their own separate and selfish use and en-joyment, the produce of their own industry, withpower freely to dispese of the whole of that in themanner mostagreeable to themselves, as essential tothe welfare and even to the continued existence ofsociety. If, therefore, I did not suppose, with 5fr.Locke, that nature establishes such aright--if I werenot prepared to shew that she not merely establishes,but also protects and preserves it, so far as never tosuffer it to be violated with impunity---I should atonce take refuge in Mr. Bentham's impious theory,and admit that the legislator who established andpreserved a right of property, deserved little lessadoration than the Divinity himself. Believing',however, that nature establishes such a right, I canneither join those who vituperate it as the source ofall our social misery, nor those who claim for thelegislator the high honour of being "the author ofthe finest triumph of humalJity over itself."


33/196


34/196


35/196


36/196


37/196


38/196

3O

established by nature, we see also that she takesmeans to make known the existence of that right. Itis as impossible for men not to have a notlon of aright of property, as it is for them to want the ideaof personal identity. When either is totally absentman is insane.Nature, or God--for I use these terms as one---having thus established a right of property, and

having effectually provided for our attaining a know-ledge of its existence, we must ask, has she, inde-pendently of all human le_slation, provided menwith motives mutually to respect this right, andmutually to abstain from any actions that wouldweaken or destroy the sense of security? She has.As far as we know, the great mass of mankind seemto have been created nearly equal to each other: atleast, the members of every single community are sonearly equal in capacity and skill, that it must be atall times more difficult for one man to take, by force,from another what the latter has already made, thanto make something similar for himself. In the lattercase, he bus only to overcome the resistance of natlare,who invites rather than repels his exertions; in theformer, he must surmount all the opposition of anequal, who, if openly conquered, may secretly finda means of reven_e. Nature creates the maiority ofindividuals nearly equal in bodily stren_h, skill, andcapacity, and gives to all nearly the same facilities foracquiring knowlege; and thus, making it generallymore difficult and dangerous to take from another,than for each, by his labour, to pro,/ide for himself,she creates in all men motives to respect that rightof property which she, by bestowing on labour allits produce, every where establishes, and every wheremakes known.

Moreover, you will observe, as a general rule,that the inequality of productive power in indi-


39/196

31

viduals, by which one might obtain greater wealththan another, exciting, as is supposed, the cupi-dity of those who are comparatively destituteis almost always accompanied by corresponding"means of defending its acquisitions. The samestrength or skill which enables one man to catchmore game or fish, or create more wealth, than hisless skilful or weaker compatriot, will enable himto defend his acquisitions, i'his rule also holdsgoodwith nations, the most wealth:." being the most skil-fill, the most ingenious, and the most powerful. Bytracing analogies and harmonies of th[s description inthe moral world, we acquire a s_roa_" conviction ofthe folly of setting up our wisdom in oppositionto the benevolent decrees by which every part ofereation appears to be equally reg..dated. When wecannot, as in this case, easily trace such reg'ula-tions, we may infer them. '" We see," says LordBoling'broke, " in so many instances, a .just propor-tion of thing's, according" to their several relations t_one another, that philosophy should lead us to con-elude this proportion preserved, even where we can-not discern it."*

By some persons it seems to be supposed thatmotives, like those I have just alluded to cau onlyexist in savage life, that they disappear in the pco-gress of society, and that it has become, at pre_,mt,raore easy, generally speaking', to take from another,than to produce for one's sell'. Ot_e object I proposeis to shew that this suppvsition is incorrect, a.Jd thatthe principles just mentioned are so powerful in thei:operation that they have silently overcome thegreatest obstacles thrown in their way by legislation.With reference to the source of the error fallen intoby these persons, it may not be pcemature, even at

t Of the true Use of Retiremea/ and Study.


40/196


41/196


42/196

34

makes, has been conferred on him by the statutes andthe judges. Poor simple man! he never supposesthat his right is even guaranteed by the law ; though incase it were infringed, he would appeal to the law as alast, but still ruinous, resource to compel those whoinfringed his right to make him a compensation.Ideas of property are truly instinctive, and are ac-quired by children long before they ever hear of law. Ifthey do not belong to the mind, as the legs and thetongue belong to the body, like the habit of walk-ing or speaking, they are so early acquired, and socontinually present to us that they appear innate.The continual possession and use by one person ofany one thing, generates in another the idea that it be-longs to the former. Tl, e manner in which each indi-vidual acquires what he possesses, leaving him free ornot from apprehension in the enjoyment of it, informshim whether or not it properly belongs to him or toanother. Such ideas are neither created nor confirmedby decrees_ but, as the source of apprehension isalways tile opposition of those whom _e have injured,the enjoyment of that which is acquired accordingto law being free from such apprehension, becausethere is no one powerful enough to overturn the law,is also free, though it be unjustly acquired, from anynotion of wrong. The general consent, then, when ex-pressed in laws, does not establish right, but being tilecllief means of informing individuals what is regarded asright, it may and does, when wrong itself, preventthem from knowing what is right, and it makes in-justice legal.

These quotations from Mr. Locke, and these re-marks, have probably established the following truths.Without the intervention of any law, contract, or agree-ment between individuals, as to what shall belongto each, Nature produces, in each the idea of indi-viduality, which she extends to ownership, by bestow-


43/196

ing on each individual, and exclusively, whatever heproduces.* She provides a principle of general security,by making it easier for all men to obtain from her,than to plunder from one another. And she begetsantecedently to all law an expectation in every one thathe shall be able to enjoy what he produces. Allthe fruits of industry she bestows on industry, andbestows them in proportion commensurate to the labourand skill employed. All these truths show the founda-tion of a natural right of property. It is the right ofeach individual to own for his separate and selfish usewhatever he can make.

You do 2Jot requite to be informed, though I maystate the fact for the benefit of less enlightened per-sons, that all the wealth of the world, the whole meansof subsistence, whatever contributes to clothe and tofeed man, is the produce of labour, and is annuallycreated and annually consumed. Even those useful in-struments, such as ships, houses, &c. which last for se-veral _-ears, require to be continually kept in repair bythe hand of labour, which is tantamount to contiaualproduction. The field that has been once cleared andploughed, is soon overrun with useless weeds, if it be

* Should an objectl.on be raised to this statement, oathe ground that at present, owing to the great extent of di-vision of labour, no individual completes any one thing ofhimself, I shall reply, that the mutual shares of any twopersons engaged in producing an article, as fur example_cotton-cloth, is se!tled by contract or bargain between them,the weaver buying the yarn from the spinner, as the spinnerbuys tile raw material from the merchant importer. If anyquestion be raised, as to the share of any two or morex_orkmen engaged in the same work, or as to their wagesrespectively, I shall answer, that this too must be settled by"the parties themselves, and is not now in any case the sub-ject of legal enactment.


44/196

$6

not continually cultivated. There is no other wealth inthe world but what is created by labour, and by it con-tinually renewed. This principle, now universally ac-knowledged, makes the right of property appear moreabsolute and definite than it was in Mr. Locke's compre-hension, because the right to own laud is in fact only theright to own wt,at agricultural or other labour produces.Tile natural law of appropriation, therefore, exists infull force at all times and places i and at this momentconstitutes a rule for appropriating every part of thewealth which is continually created. The wantswhich can only be gratified by labour always exist,or are always renewed, the necessity to gratify them bylabour is never suspended; and now, as at the be-ginning, nature bestows on the labour intended togratify these wants whatever it can produce. Thusa right of property is founded on principles that are uni-versal, and always in operation ; and even at this dayin our very art(ficial communities, by extending ob-servation over long periods, we shall be convinced thattheycontilme in force, and continually subvert the in-stitutions of the human lawgiver.If this view be correct, a right of property ought tobe known and established among all n:ankind; and itmay, I believe, be affirmed that no people, however rude,have yet been discovered, or ever ,_'ere known, amongwhom a right of property, in the things they had madeby their industry, was not established. Major Collinssays, in his work on _New South Wales, a country inwhich there is the nearest approach to the absence of aright of property I have ever read of, "that the savagesleft.their spears and things of that kind lying about,but they had a strong notion of ownership, and re-sisted the appropriation of these things by the peopleof Captain Phillips' vessel." They comprehended theright cf proFerty which springs from labour _ but agri-


45/196

37culture not being known amongst them, and they nothaving vested any labour in the soil, they had not es-tablished a right of property in land.Savages have been discovered who had no ideas ofreligion or of God, or only such as were copied fromtheir own wretched existence and untamed passionsbut even of their community each member was as sen-sible that the stone hatchet he had made, the canoe hehad hollowed out with it, or the bow he had boughtwith a hatchet of his own making, was his, as are themembers of the most law-regulated community, thatthey have a right to enjoy what the law confirms inthe possession of each person. So certain havevoyagers and travellers been of this fact, that theyhave not thought inquiry concerning it necessary, anymore than inquiry to ascertain if savages comprehendedidentity and individuality. They have asked if thesavage had any knowledge of God, but that he hadideas of thine and mine they have always taken forgranted. Even those tribes, like the people of NootkaSound, who were so delighted with the possessionsof the Europeans, that they furtively appropriatedwhatever they could ]av their hands on, were sensiblethat they took what did not belong to them. Theyrespected a right of property among themselves, andacknowledged, though they did not respect, that right inthe strangers.

Similar to the people of Nootka the Esquimauxseem latterly to have thought that they might take thecargoes of one of Captain Franklin's boat_ ;* but the man-herin which they attempted it, intimated a clear con-viction on their part that the things did not belong tothem. A comparison between civilized and uncivilizedmen, as to the re_oect of each for a right of property,

* See the narrative of this intelligent voyager's secondexpedition.


46/196


47/196

!

i39

natural, to refrain fi'om seizing what has been alreadyappropriated, implies knowledge, and restraint, and isa habit of action, formed by a continual apprehensionof suffering, if we do not so refrain. Such a habit couldnot have been formed among the people just mentioned,in regard to the wealth of the Europeans ; and couplingthis with the fact, that every thing useful which theyhad befo,e seen had been readily _4elded to theirwishes, we cannot be surprised that their desire topossess the new objects they beheld was stronger thantheir respect for property.Originally whatever one man thought useful, such as.wild-fowls and game,he might appropriate without wrong"lug another ; but by an act of appropriation the originalrelation of man to the spontaneous productions of natureis altered ; and after they are appropriated, to take themwould be to injure another. At present, the greatmass of objects is appropriated, and the relation thusestablished must be learnt. As new arts, as new in-struments are invented, new wealth is created; andas men are multiplied filling the whole earth, sup-plying their mutual wants by mutual exchange, theoriginal relation gradually ceases, and disappears al-together. There is now hardly any thing about us onwhich the labour of man has not been employed, andof course hardly any thing except fish and game toappropriate. Between the originM and present con-dition of mankind, the alteration--from all which ex-isted, though scanty, being unappropriated, to all whichexists, though abundant, being appropriated,wmust havebeen gradual, and could not have been provided forbefore hand by the legislator. Not only was he ne-cessarily ignorant that the alteration was to take place,but when it did occur he was mistrustful of its utility.New branches of industry, and the new wealth theycreate,--as for example--printing, have generally beenlooked on by him with great suspicion. He supposes


48/196

4O

that social order and happiness depend upon his en-actments, and what does not flow from them, mustin his opinion be evil. All novelties lie beyond hisprevious statutes, and must necessarily form nopart of the organization which springs from him. Butwe have just seen, that as new wealth is formed, and aslabour multiplies the conveniences of life, minglingwith all the things of creation, and modif)'ing them soas to adapt them to the supply of our wants, a newrelation between man and all surrounding objects is call-ed into existence. As the legislator cannot before handprovide means to secure the enjoyment of this newrelation, it is fair to presume that nature, who plansthe whole frame work of socigty, and gives rise tonew arts, and new wealth, provides such means. In-deed, it may be boldly asscrted from this view ofthe legislator's limited knowlcdge, that if nature didnot at all times provide motires for respecting the newrelation of man to tile work of his hands, as it is con-tinually called into existence by tile creation of newwealth, society could not hoId together. On e:_-amining the subject we actually find, which is one ofthe many. beautiful harmonies of the moral world, thatas the relation alters between man and appropriatedobjects,_as the change takes place from savage tocivilized life, (which, looking at its universality, wemust regard as dependent on natural laws) so a power-ful motive arises for forming a habit of restraint, andfor respecting the new right of property, which fscontinually called into existence. As mankind aremultiplied, the moral influence of the mass increasesover individuals, and each one, feeling the impossibilityof resisting a great many, is humbly submissive to thegeneral voice, and therefore prone to respect that rightof property, which is acknowledged by all.There is then, I conclude, a natural right of pro-pert},, founded on the fact that labour is necessary


49/196


50/196


51/196

43

out answering the questious regularly, but by describ-ing that right of property which the law does gua-ranteeand protect. At present I sign myself, withmuch diminished respect.A L,_so t:__-tt.


52/196

44

LETTER THE THIRD.

THE LEGAL RIGHT OF PROPERTY.

What is the law ?--Who are the law makers ?--The law is agreat scheme of rules intended to preserve the power of go-vernment, secure the wealth of the landowner, the priest, andthe capitalist, but never to secure Ms produce to the labourer.--The law-maker is never a labourer, and has no naturalright to any wealth.--He takes no notice of the natural rightof property.--Manifold miseries which result from his ap-propriating the produce of labour, and from the legal rightof property beingirt opposition to the natmal.

TO H. BROUGHAM# ESQ. M.P.F.R.S#, he.

Sir,When we inquire, casting aside all theories andsuppositions, into the end kept in view by legislators,or examine any existing ]aws, we find that the firstand chief object proposed is to preserve the uncon-strained dominion of the law over the minds and bodies

of mankind. It may be simplicity in me, but I protestthat I see no anxiety to preserve the natural right of pro-perty but a great deal to enforce obedience to the legis-lator. No misery indeed is deemed too high a price topay for his supremacy, and for the quiet submission ofthe people. To attain this end many individuals, andeven nations, have been extirpated. Perish the peo-


53/196


54/196

46

continually told, the dominion of the law, not the natu-ral right of property, must be upheld. Every writer,in our newspapers, whether he writes about a rebellionin Ireland, or killing partridges, loudly and continuallyrepeats this maxim of our masters.* Society, it issaid, will fall into anarchy, the human race will firstrelapse into barbarism, and then pass out of existenceif law be not obeyed. By a most ridiculous analogy_the precept of self preservation, the dictate of the holyand delightful imptllse by wt,ich we cherish our happyanimal existence, is transferred to the institutions ofbarbarous men. Self preservation is said to be thefirst duty of corporate bodies, as of individual animals,as if the ignorant contrivauces of,men less instructed thanwe are, deserved the veneration justly due to theworks of the Almighty.We are on this principle, singularly enough, con-tinually called on to preserve the institutions of the le-gislator by violating the principle from which the ana-logy is derived. In many cases, the corporate exist-ence decreed by the legislator can only be maintainedby putting individuals out of existence, and men aremassacred that governments may be upheld. Lookingat this question practically, let us coolly inquire whatis this said law, before which every thing, whether it bethat which is holy in affection, or ought to be heldsacred among men, and before which even the laws ofnature must quail, and wither and perish._The law, to preserve which is said to be the firstduty of communities, as to preserve life is that of indi-viduals, is a set of rules and practices laid down andestablished, partly by the legislator, partly by custom,

'_ January 1832. This is well exemplified by the laledebates on Irish tithes, which the sapient Commons, par-ticularly Mr. John Weyland, insisted on the propriety, what-ever might be the cost, of preserving the paramount dominionof the law.


55/196

41

and partly by the judges, supported and enforced by alli the power of the government, and intended as far asour subject is concerned, to secure the appropriation ofthe whole annual produce of labour. Nominally theserules and practices are said to have for their objectto secure property in land ; to appropriate tithes, andto procure a revenue for the government; actually and:, in fact they are intended to appropriate to the law-makers._ the produce of those who cultivate the soil, prepareclothing, or distribute what is produced among tile dif-ferent classes, and among different communities. Suchis law.( It is a not less important question, who is the: law-maker, who made, who makes, who enforcesobedience to these rules and practices ? Can he showa title bestowed upon him by nature, derived from tholaws of his organization, and the constitution of theuniverse, to have and to own, and to appropriate allthe wealth that is created ? Now it is an impbrtantfact,but it is so obvious that one is sneered at tbr drawinga deduction from it, that the law has always been, andis at present made, by men who are not labourers. Itis actually made by those who derive from nature no

title whatever to any wealth. But as law in fact is onlya general name for the will of the law-maker, being, theexpression of his desire to have wealth, and retainpower and dominion, it is clear that in making laws forthe appropriation of property, he will not, consistentlywith nature, give to every one what he produces.This object always has been, and. now is, so to disposeof the annual produce as will best tend to preserve hispower. Nature rewards industry and skill, the legis-lator be he who he may, is utterly regardless of the con-nection between industry and plenty. Let us lookcloser at who is the legislator, and what is his object inmaking laws.In some countries the power of making laws is vested


56/196

48

in a king; in others in an aristocracy; and in others,though they are few, the great body of the communityhas a direct share in legislation. Some times a parti-cular class of men, as the ministers of religion, hasmade regulations for the whole society. In no part ofEurope, however, which is the main fact for our con-sideration, had the producers of wealth, in any form orshape, any direct share in legislation for many agesNor have they yet as such any direct share. Our o_vncountry does not differ in this respect, at least not inprinciple, from most of the countries of Europe. O_,eman has a right to assist in making laws, because he isa king, another because he is a peer, a third because heis a bishop, a fourth because he legally owns a large es-tate, and a fifth because he ser_'ed l,is time to a particulartradesman in a particular place, or because he was bornthere of parents who were born there befm'e him ; butno man merely because he is a producer of wealth, hasatry right to assist in making the la_'s which appro-priate, or attempt to appropriate, the whole of hisproduce.Laws being made by others than the labourer, andbeing al_'ays intended to preserve the po_ver of thosewho make them, their _'eat and chief aim for manyages, was, and still is, to enable those who are notlabourers to appropriate weahh to tl,emselves. Inother words, the great object of law and of governmenthas been at,d is, to establish and protect a violationof that natural right of property they are described intheory as being intended to guarantee. This chief pur-pose and principle of legislation is the parent crime, fromwhich continually flow all the theft and fraud, all thevanity and chicanery, which torment mankind worsethan pestilence and famine. They only, but kindly andspeedily, destroy them. The first and chief violation ofthe rigt, t of property, which pervadesand disturbs allthe natural relations of o_vnership, confusing, at. per-


57/196


58/196

5Oarising from some of the most extensive naturalcalamities."* Perhaps they are far greater. Na-ture may annihilate, but she never tortures. Equallybenevolent and wise, she warns us by pain againstinjury; so she instructs her children; and whenevershe finds either the race or the individual incorrigible,--when pain ceases to be useful,--she mercifully puts a,_end to existence. Not so the le_slator. He hasinflicted on mankind for ages the miseries of revenuelaws,--greater than those of pestilence and famine,and sometimes producing both these calamities, with-out our learning the lesson which nature seems tohave intended to teach, viz. the means of avoidingthis perpetual calamity. Revenue laws meet us atevery" turn. The.x:"embitter our mea!s, and disturbour sleep. They excite dishonesty, and check en-terprize. They impede division of labour, and createdivision of interest. They sow strife a_d enmityamongst townsmen and brethren : and the_ frequentlylead to murders, that are not the less atrociousbecause they are committed in battle with smugglers,or consummated on the gallows. The preservation ofgovernme]_t, it is said, tnust be purchased at whateversacrifice; and it is impossible to enumerate thevexatious statutes and cruel penalties, by which itspreservation is sought to be attained. Government,as such, l_roduces nothil_g, and all its revenuesare exacted by violating the natural right of property. This I put do_rn as the first point aimed atby alllaws. That all this misez3' is gratuitously in-flicted; that the power of the government ]s _otpreserved according to the wish of the legislator,bymeans of the reverJue raised, is perhaps a trifle in theaccount, but it is one which I shall hereafter at-tempt to render important, shewing lhat the folly

* Cons'itutionofMa%byGeorgeCombe,page 2_1.


59/196

51of making and of submitting to revenue laws, is justequal to the pain they inflict.Among the legislative classes embodied into,and constituting the government, we must place thelanded aristocracy. In fact, the landed aristocracy andthe government are one--the latter bein.g nothing moretitan the organized means of preserving the powerand privileges of the former. After securing a re-venue for the government,--the landed aristocracysacrificing to this even a part of their private pro-perty, or rather taking a portion fl'om rent, which theyappropriate as taxes, transferring their cash from onehand to the other,--after securing a revenue to thestate, the laws have been made with a view to gua-rantee the possessions and the wealth of the land-owners. Numberless are the statutes andthe decisionsat common law, having the force of statutes, intendedsolely to secure their rights and prMleges. Subject tosupporting the government--the instrument for pro-tecting their privileges--they may do what they pleasewith the land. In some countries also, by the transmittedremnant of an ancient practice, founded on the fact thatthe labourers "beionged like cattle to the landowners,the latter are obliged to maintain all the peopleborn on their land; otherwise they might quartertheir sick and destitute slaves on other landowners.With these exceptions, the landowner may leavehie land uncultivated, or he may let it on what condi--' tions he pleases, and the law is always ready to support: him with its powerful aid. His right to possess the land,

ii not to possess the produce of his own labour, is as ad-mirably protected as can be efl'ected by the law. Anothermast not even walk on it, and all the wild animals andfruit it bears are said by the law to be his. Nature makes, it a condition of man having land, that he must occupyand cultivate it, or it will yield nothing. The instant! he ceases his labour, she decks it with flowers_ and

,


60/196

52

stocks it with the birds and animals which she delightsto clothe and feed} exacting no payment but theirhappiness. The mere landowner is not a labourer,and he never has been even fed but by violating thenatural right of property. Patiently and perseveringly,however, has the law endeavoured to maintain hisprivileges, power, and wealth. To support the go-vernment the aristocracy has sometimes made lawstrenching on its own privileges, but after enforcingsubmission to government, the next object of the lawhas been to preserve the dominion and power ofthe aristocracy over the land.In most countries the ministers of religionsupport the government, and inculcate obedience tothe law. For this they receive a share of legislation,and of the annual produce of labour. The laws, atleast of this country, after providing a revenue for thegovernment, and securing the wealth of the aris-tocracy, seek to bestow a liberal allowance on thepriesthood. We can neither eat nor drink, be neitherlegally born nor buried, neither married nor enter intothe community of our fellows, without paying theparson. He who objects to comply with his demands,and to give him what the law,_not what nature, or thefree-will of the labourer, bestows on him,_must sufferunder denunciations of future punishment ; and, whatis more compulsory he is scourged through ecclesi-astical and other courts, till he be turned nakedand flayed upon the world. Such is tile charity of thosewhose office it is to preach tr.eekness and forbearance.Thelaw grants tithes, and enforces the payment of them. It_ves the soil, and a power to exact rent to the landlord,and a revenue to the government i but in all these, thegreat and leading objects of law, I see no protectionfor the natural right of property. On the contrary,not one of them can be thought of without trenching onthis natural right.


61/196

,53

At present, besides the government, the aris-tocracy, and the church, the law also protects, to acertain extent, the property of the capitalist, of whomthere is somewhat more difficulty to speak correctlythan of the priest, the landowner, and the administererof the law, because the capitalist is very often also a la-bourer. The capitalist as such, however, whether he be aholder of East India stock, or of a part of the nationaldebt, a discounter of bills, or a buyer of annuities,has no natural right to the large share of the annualproduce the law secures to him. There is sometimesa conflict between him and the landowner, some-times one obtains a triumph, and sometimes tile other ;both however willingly support the government andthe church; and both side against the labourer tooppress him; one lending his aid to enforce com-bination laws, while the other upholds game laws,and both enforce the exaction of tithes and of the re-venue. Capitalists have in general formed a most inti-mate union with the landowners, and except when theinterest of these classes clash, as in the case of tile cornlaws, the law is extremely punctilious in defending theclaims and exactions of the capitalist.

In all these circumstances which in relationo to the right of property may be considered as theleading objects of legislation, I see no guarautee or:: protection of the natural right of property. The: end for which men are said by Mr. Locke to unite intocommonwealths, and put themselves under govern-i- ment, is in practice unknown to the law. The naturalright of property far frombeingprotected, is systematl-_.; tally violated, and both govermnent and law seem to existchiefly or solely, in order to protect and organize themost efficacious means of protecting the violation. On_ the men who produce a bushel of malt, nature bestow8'_ it every grain_ the law instead of ,uaranteein to. g g

I them its full use and enjoyment, takes three-fourths


62/196

54of it from them. To those by whose combined la-bour the ground is cultivated, and the harvest ga-thered in, nature gives every sheaf and every stalkwhich they choose to collect } the law, however,takes almost the whole of it away. Under thefalse pretence of protecting them in the use andenjoyment of the produce of their labour, it takesso large a portion of it for those who make and ad-minister tile law, that what it leaves, did it secure that,would scarcely be worth having_ but the system, for ad-ministering which payment is demanded, is so com-pletely one of extortion, that the actual labourer is onlyallowed to retain for his own use as small a portion aspossible of the munificent' gift with which naturerewards his exertions. Under one miserable pretext oranother, the wisdom of politicians continually thwartsthe decrees of the Almighty. To ensure a nationalsuperiority, or the welfare of men's souls, are maximsequally efficacious in their eyes to justify violating thenatural right of property.When we look at the great number of laws restrict-ing industry, and at the great number intended to exacta revenue for the government, rent for the landowner,tithes for the priests, and profit for the capitalist,we feel more surprised that industry should havesurvived the immense burdens laid on it, tban thata few thieves should prefer living by open plunder,risking the punishment of the laws, to a life ofunrewarded labour. That men yet labour at all, is anadmirable contradiction of the law-makers' base as-sertion, I say base, because it is made for a basepurpose--that men are naturally averse from labour.The legislator has been careful to punish com-binations of workmen, careful to compel the labourerto work, careful to enforce the payment of tithes andtaxes, but, I protest that I never yet heard of a lawwhich had for its object to secure to the labourer


63/196

_: 55the undisturbed, unfettered, unlimited enjoyment of thegifts which nature bestows on him, and him alone.I do not believe, indeed, that any law can effect thisfor ever}, law effecting appropriation is, in principle, analteration or a violation of the natural right.*The important and .vet perhaps trite fact towhich ] wish by these remarks to dh'ect your attentionis, that law and governments are intended, and alwayshave been intended, to establish and p.roteet a right ofproperty, different from that which, m common withMr. Locke, 1 say is ordained by nature. The right ofproperty created and protected by the law, is the arti-ficial or legal right of property, as contra-distinguishedfi'om th_ natural right of property. It may be thetheory that government ought to protect the naturalr!ght ; in practice, government seems to exist only toviolate it. Never has the law employed any meanswhatever to protect the property nature bestows on in-dividuals; on the contrary, it is a great system ofmeans devised to appropriate in a peculiar and unjust

* Ihave just been carefully looking over the reports ofthe proceedings of the legislature for some years past, and [find ia them nt)thing to contradict the statements of the text.It has been busily engaged, session after session, in makinglaws to augment the reven,e,--strenuously rest, sting everyeffort even Io circumscribe its exactions ;--in passing acts

: to amend corn laws and keep up rents, to build new churches,and tQ provide greater emeluments for the clergy ; ii) creatingjobs of all kinds for the behoof of the aristocracy ; in short,: continuall 3 engaged in devising means to preserve its own::, power, and secure wealth to those who disdain every employ-;: merit that creates the objects of their cupidity. When lfiad/_ the legislaturecontinually so occupied, not merely for getting:_ or overlooking that which is said by Mr. Locke to be the_?! motive for men uniting into a commonwealth, but act-:_ tag in direct opposition thereto, I must come to one of two:_ conclusions, viz. either all philosophy is arrant nonsense, and._. nature is a cheat, or your annual legislation is the vilest im-_ position that ever was tolerated bv the too easy credulity ofmankind,


64/196


65/196

_; 57?

If there be one command of that Power which_: created and sustains the universe, and which bringsabout all the consequences of man's actions more:: clear than another--and infinitely clearer than anycommands that were delivered, as is said on Mount: Sinai, or propagated at any time in the past-awaykingdom of Jerusalem, it is that which bestows on eachindividual whatever his hands can catch, can fashion or:. createz Nature or God, whichever the reader pleases,

for the two words signify the same everliving First: Cause, commands, and ahvays has commanded, thatindustry should be followed by wealth, and idleness bydestitntion. But political society is formed on theprinciple of violating this command. Those whopretend to teach and enforce the commands of theDeity, the priest and the law-maker, go about con-tinually to violate them. Nay, it may be stated thattheir very existence, prescribing conduct, and exact-ing the wealth of others, to support their power ofprescribing conduct, is a violation of the commands ofGod. Away, then, with that delusion, with that hy-pocrisy which, pretending to explain to us these com.mands, and to enforce them, begins by denying that one: amongst them which is the most certain, the mostclearly expressed, the most easily understood, and'. the most universally recognized Laws and con-stitutions--political organisation altogether, being": founded on a violation of the natural right of property,_i is the source of most, if not all the evils, moral and

:_ physical, which yet afflict our race ; but which, I verilybelieve, we are speedily destined to get rid of, sub-stitutin_ the government of God for the rule of_, _gnorant perverse men._:_. The stale pretext that nature has not establishedany right of property, and the stale excuses for violatingthe natural right, continually made by unthinking


66/196


67/196

_ 59L

_ _ature establishes a right of property, the correctnessof their opinions, did she suffer the right, which I say she_ establishes, to be ever infringed, much less abrogated,_ with impunity. Mark, with impunity is the importanti consideration, because we can trespass on physicallaws, but not with impunity. Both in the material andmoral world the commands of nature are only known tous through our own pleasures and pains. If we runour head against a post, she warns us by the pain thatii it is harder than our skull, and commands us to makeuse of our eyes ; if we throw ourselves from a heightshe breaks our bones, as a punishment, or puts an endto the existence, which would become unbearable_. from our own carelessness or folly. When we examine, the question of property, we shall in like manner findi that much misery is caused by our opposing tile natu-ral right of property. Nature warns us against thatby pare, in the same manner as she warns us to: respect the laws of gravity.We shall also find on examination that the artificialright of property is continually modified by the natural'i right. Nature therefore suffers us not to abrogate her: decrees in the moral world; and she suffers us not to_ violate them with impunity. She only permits us at our

own cost to inflict pain on ourselves, or do wrong for aseason, which we can do, as well by violating ph)sical as_ bysviolating moral laws. Protesting continually against:_ our rebellion, and warning us continually by its evil:_ consequences, she ultimately, in her own good time, re-asserts her authority. She is as absolute in the moral,_, as in the physical world; governing and regulatingevery part of it with the most thorough mastery, butkindly compassionate to the infancy of her children,she allows them a long probationto learn her commands.:_ The least knowledge of history is sufficient to satisfyus that her decrees as to property, have always been iaoperation, are now overthrowing every conflicting in*


68/196


69/196

61

LETTER THE FOURTH.

ON THE RIGHT OF PROPERTY 1N LAND.

Origin of the right of properly iu land.--Changes which it isundergoing.--The quantity of land required to raise sub-sistence gradually diminishes.--Imporlant principle over-looked by .Mr. Mallhus aiid his followers.--Appropriation ofland in Europe.

TO H. BROUGHAM, ESQ.j M.P. F.R.$, _'_C.

Sir,The right of property in land is now to be brieflyexamined, and you will rcadily believe'that I reject noconclusions because they militate, as the very principleI shall borrow from Mr. Locke, seems to militateagainst the power assumed by modern governments,over the soil He says accurately, "' as much land as aman tills, plants, and improves, cultivates, and can use,the product of so much is his property."--" This is themeasure of propcrty in land, which nature has well setbv the extent of man's labour, and the conveniences of]i]'e ; no man's labour could subdue or appropriate all,nor could his enjoyment consume more than a small


70/196


71/196

63that a species of appropriation (suitable to the periodwhen only a few human beings wandered over theearth) must be injurious when every part of it iscrowded with our fellow creatures. In fact, thesort of appropriation adapted to a nation of hunters,would be impossible in a nation of manufacturers andagriculturists. What sort of a subsistence, for ex-ample, could a hunter obtain within twelve milesof St. Paul's ? In the multiplication of mankind,therefore, in improvements in skill and knowledge,as well as in diversities of soil and climate, we findprinciples x_hich continually modify tile appropriationof land,-and alter the quantity to which a man can pro-perly devote his labour. They extend their influenceover the future, as well as over the past. Themanner iu which the multiplication of mankind thusmakes a species of appropriation, once sanctioned bytheir circumstances and condition, now injurious totheir welfare, is deserving the serious attention of thelegislator.In the earliest known periods mankind were fewin numbers, and equally ignorant and destitute. Fromthe begim_iog of history to the present day,_from MountArarat to Melville I_land, the first known condition ofsociety is that of scattered and wandering savagesdestitute of arts, of knowledge, and of skill Man waseverywhere originally, if ancielit history, and modernvoyages are to be credited, a wild hunter, or fisher, con-tending with beasts as ferocious as himself, for a scantysubsistence.* l-le had no fixed habitat;.on, and whereverhe was driven by his necessities, or tempted by the pro-babilitv of obtail_iug the means of subsistence, thitherhe wanclered. When the earth was thinly inhabited, each

* For the condition of mankind in the earliest periodsnf the world, consult Goguet, O_izin of l,a_s, &e., Vol. 1. :For the condition of the _cal-huatiog E


72/196


73/196

65

appearance, living in moveable houses or wagons, willundoubtedly recur to you as an illustration. In thisstate of society, the right of property inland wouldnot be limited by the quantity which a man could digand cultivate, but by the quantity necessary for thepasturage of his cattle, including a large portionto lie continually fallow, and recover its naturalherbage.Subsequently men became agriculturists, and thena comparatively small space sufficed to supply eachone with the means of subsistence. They fixed theirhabitations, and around them they fixed landmarks,each one appropriating as much land as he was ableconsistently with the rudeness of original agriculture,to till, plant, and cultivate, and as he deemed necessaryto supply his family with food. Of course, the agm-cu]turist not only required a less spot of ground thanthe shepherd, or the hunter, but, in order to prosecutehis art, he was obliged to remain in one spot. That spot,within which he limited his labours _ that small spot,which he and his family cultivated, he called his_ andthen the right of property over ]and, became more ab-solute as it was more restricted, than when men werehunters or shepherds. Each individual found a decreas-ing extent of surface suffice to supply his wants, as thecondition of mankind was changed from that of huntersto shepherds, and from that of shepherds to agricul-turists. No person can deny the almost universality ofthese great and successive changes in the condition ofour species_ and, looked at in this comprehensivemanner,--extending our view over many ages and conntries,--we learn this most important truth ; namely, thatas the condition of man changed from a shepherd to ahunter, and from that to an agriculturist so the quantityof land required to supply him with the means tf sub..sistence, became less and less.

But it is also obvious, that skilful agriculture


74/196


75/196

67each individual to own land, on Mr. Locke's principle,ought to be gradually limited to an ever narrowing, everdecreasing space.Perhaps you may suppose, that the collectingof many small farms into the hands of one farmer,--aprocess which for some yeaxs was going on in this coun-try, though it appears now to have stopped,-- is an excep-tion to these remarks. I am speaking, however, of thequantity of land from which increasing skill obtains asumcient quantity of subsistence, and of the decreasingsurface to which, as labour becomes skilful, it will benecessarily confined, not of the quantity of land whicha capitalist, or farmer, commanding the service of anygiven number of labourers, finds it at present most con-venient to hire. The size farms ought to be of, in thepresent condition of society, is quite a distinct questionfrom the quantity of land necessary to supply an indi-vidual with the means of subsistence, and therefore de-termining the natural right of property in laud ; but, Iapprehend, that even the same rule will hold with re-gard to farms. As more labour is required for any givensurface, it become

Thomas Hodgskin- Natural and Artificial Rights of Property Constrasted

Documents

Transcript of Thomas Hodgskin- Natural and Artificial Rights of Property Constrasted