THE RIGHT OF PROPERTY AND HEREDITARY PATRIMONY.
As we have seen, primitive nations, in obedience to an instinctive sentiment, recognized in every man a natural right to occupy a portion of the soil, from which he might derive the means of subsistence by his labour; and, accordingly, they divided the collective property of the tribe equally among all the heads of families.
This mode of regarding the right of property has been frequently touched upon, but, I think, it has been expounded by none better than by two philosophers; one French, the other English, who, working independently, have made use of nearly identical terms. They are M. F. Huet in his work le Règne social du christianisme, Bk. III. c. v.: and Mr Herbert Spencer, in his Social Statics, c. ix.(1)
M. Huet writes as follows:--
"Publicists, economists, and statesmen vie with one another m repeating that without property there can be no liberty. Nothing is more unquestionable. Property, or the right of regarding as one's own a determinate portion of matter, of enjoying it or disposing of it at will, without trenching on the rights of another, always constitutes an essential foundation of a true form of society.
"Either words have no meaning or to place property among natural rights implies that the original title of investiture in landed property is the quality of man; that the quality of man engenders of itself, directly, a right to a definite quantity of such propertythe original property, which becomes for every one the source, the foundation and the means of obtaining every other kind.
"It is the most irrefutable consequence of the right of existence; It must be an equal right; for the necessity of the means of existence is alike for all. No one, certainly, should live at the expense of another: but the man, who has not forfeited his right, is entitled to live independently; he has a right to be so placed, as that his labour and his means of existence shall not be dependent on the pleasure of others. However free he may be in person, if he does not, of natural right, possess some capital; if he is not a proprietor, as well as a man and a labourer, he only produces, and only lives by the permission of his fellow-men:actually he is in servitude. It cannot be too often repeatedproperty is an absolute condition of liberty. We may not disregard mankind's first and most sacred of titles, the title to the possession of property."(2)
To carry out this natural right of property, M. Huet proposes that the law should enjoin, "that at every decease, the free portions of the patrimony should go to all the young labourers equally. Succession, constituted on these socialistic principles, would thus reproduce, in each generation, the .fraternity of the primitive partition."
"The morality of succession would be improved by such generalization: the temptations to which the present system exposes needy and eager heirs are only too well known. Each inheritance is a prey for the vilest passions to quarrel over. Too often we hear hateful hopes expressed. Far from weakening the family, the right of inheritance would purify and strengthen it. It creates a feeling of security. The fault or misfortune of the father does not condemn an unfortunate posterity to permanent inferiority. Under this system of real socialism, there exists in fact a general confidence between father and children.
"Now, the children of the poor are cast naked on the bare earth, as though they were born in a savage state. They have no ties, no ancestry. The right of patrimony would connect them once more with the human race. It is a marvellous agrarian law which, without arbitrariness or violence, without putting any limit on property, or despoiling or disturbing any one, secures for ever the independence of the labourers and maintains the long succession of generations on a level of equality."
What M. Huet poposes is nothing else than the system of landed property in force in the primitive village and in the Allmend.
Let us now see what Mr Herbert Spencer says:--
"Given a race of beings having like claims to pursue the objects of their desiresgiven a world adapted to the gratification of those desiresa world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. For if each of them `has freedom to do all that he wills provided he infringes not the equal freedom of any other,' then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And conversely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law.
"Equity, therefore, does not permit property in land. For if one portion of the earth's surface may justly become the possession of an individual, and may be held by him for his sole use and benefit, as a thing to which he has an exclusive right, then other portions of the earth may be so held; and eventually the whole of the earth's surface may be so held; and our planet may thus lapse altogether into private hands. Observe now the dilemma to which this leads. Supposing the entire habitable globe to be so enclosed, it follows that if the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface. Hence such can exist on the earth by sufferance only. They are all trespassers. Save by the permission of the lords of the soil, they can have no room for the soles of their feet. Nay, should the others think fit to deny them a resting-place, these landless men might equitably be expeled from the earth altogether. If, then, the assumption that land can be held as property, involves that the whole globe may become the private domain of a part of its inhabitants; and if, by consequence, the rest of its inhabitants can then exercise their facultiescan then exist evenonly by consent of the landowners; it is manifest, that an exclusive possession of the soil necessitates an infringement of the law of equal freedom.(3) For, men who cannot `live and move and have their being' without the leave of others, cannot be equally free with those others"...
"On examination, all existing titles to such property turn out to be invalid; those founded on reclamation inclusive. It appears that not even an equal apportionment of the earth amongst its inhabitants could generate a legitimate proprietorship. We find that if pushed to its ultimate consequences, a claim to exclusive possession of the soil involves a landowning despotism. We further find that such a claim is constantly denied by the enactments of our legislature. And we find lastly, that the theory of the co-heirship of all men to the soil is consistent with the highest civilization; and that, however difficult it maybe to embody that theory in fact, Equity sternly commands it to be done."
Neither M. Huet nor Mr Herbert Spencer appears to have thought that this right to patrimony or joint-heirship could be put into practice immediately, in the midst of the imperfect and complicated relations of modern society. They have framed an ideal scheme;but the remarkable point is that this ideal is identical with the form of landed property, spontaneously applied by primitive societies of every nation and every country. The future, to which they look forward, would thus only reproduce the past, but in other forms.
1. The necessity of the return of landed property to the collective domain of mankind, has been exhaustively treated by M. le Baron de Colins in his numerous writings, and amongst others in his book, L'Economie politique source des révolutions; by his disciple M. Agathon de Potter in his Economie Sociale, 1874, and in the Revue de la Philosophie de l'avenir, 1876,but the theory of the natural, individual right of property and appropriation is not sufficiently illustrated on juridical grounds.
2. The great German philosopher Fichte has expressed the same idea: "The mission of the State is to keep every one in possession of what belongs to hint to secure him bin property and to guarantee the same to him. The end of human activity is to live, and every individual is entitled to be put into a position to support life. The distribution ought to be effected in- such a way as that every due may live by his labour. If any one is in want of the necessaries of life, it should be the consequence of his own fault and not of the acts of others. The portion which ought to come to every one for this purpose belongs to him of right; and if be is not yet in possession of it, he should have the means of obtaining it. In a State, regulated by reason (Vernunftstaat), he will obtain it. In a distribution effected by force and chance, before the awakening of reason, all have not attained to it, because some have taken more than in due to them. To say, everything will settle itself, every one will always find labour and bread, and to trust in this way to chance, is to act contrary to the demands of justice and right."Fichte, Der geschlossene Handelstaat, B.I., K.I, s. 399, 402,K.7, s. 446.
3. Certain German jurists, such as the eminent Professor Zachariae, condemn the right of exclusive property in the soil in even stronger terms than Herbert Spencer does:" The rent of land," says Zachariae in his work, Büchern vom Staat, "is a reduction of the wages which might belong entirely to the labourer, if the soil were not the object of an absolute monopoly. All the sufferings, against which civilized nations have to struggle, may be referred to the exclusive right of property in the soil as their source." (Alle die Leiden, mit welchen civilisirte Völker zu kämpfen haben, lassen sich auf das Sondereigenthum are Grund und Boden als ihre Ursache zurückführen.) The philosopher Krause (System der Rechtsphilosophie, herausgg. von Karl Röder, 1874), and his eminent disciple, Professor H. Ahrens (Naturrecht), regard property as a natural right and as a necessary condition of man's liberty and individual development. Krause advocated a return to the old German law which sanctions this right.