THE THEORY OF PROPERTY.
A study of the primitive forms of property is essential in order to form a solid foundation for the theory of property. Without understanding the real facts, the majority of jurists and economists have based property on hypotheses which are contradicted by history, or on arguments which lead to a conclusion quite opposite to what they `wished to establish. They strove to shew the justice of quiritary property, such as the Roman law has bequeathed to us; and they succeeded in proving quite another thing,that natural property, such as it was established among primitive nations, was alone in accordance with justice.
To shew the necessity of absolute and perpetual property in land, jurists invoked universal custom, quod ab omnibus, quod ubique, quod semper. "Universal consent is an infallible sign of the necessity and consequently of the justice of an institution," says M. Leon Faucher.(1) If this is true, as the universal custom has been the collective ownership of laud, we must conclude that such ownership is alone just, or alone conformable to natural law.
Dalloz in his Répertoire, at the word Propriété, and Portalis, in his Exposé des motifs du Code civil, assert that without the perpetual ownership of land the soil could not be cultivated; and, consequently, civilization, which rests on agriculture, would be impossible. History shews that this assertion is not true. Full ownership, as applied to the soil, is an institution of quite recent creation. It was always the exception; and cultivation executed by the proprietor himself has been still more exceptional. Agriculture commenced and was developed under the system of common ownership and periodic partition. In the provinces of the Roman empire the soil was only occupied by title of usufruct. "In solo provinciali," says Gaius, II. 7, "dominium populi Romani est vel Caesaris, nos autem possessionem tantum et usufructum habere videmur." In the middle ages, the free-allod was the exception; the precarium, and the beneficium, the fief,that is, a sort of hereditary usufruct,was the rule; and agricultural labour was executed by "mainmortables" serfs, who, so far from being owners of the soil they cultivated, were not even owners of their own moveables, for the right of succession was denied them. Even now, in England, houses are commonly built on land held by a mere temporary lease; and the soil is cultivated, as in most other countries, by lessees, whose occupancy is only secured for a few years, and by tenants at will. For man to plough and sow, it needs but to secure him the fruit of his labour; and for this, possession for a year is, in strictness, sufficient. This we see m Java, and even nearer home, in the Belgian and French Ardennes, or in the wastes of Westphalia. For the execution of lasting improvements, and even for the introduction of intensive, scientific cultivation, there is no necessity for more than a lease of from nine to eighteen years. We see this everywhere. In short, the cultivation of the soil has nearly always been accomplished by the temporary possessor, hardly ever by the perpetual proprietor.
Another very common mistake is to speak of "property" as if it were an institution having a fixed form, constantly remaining the same; whereas in reality it has assumed the most diverse forms, and is still susceptible of great and unforeseen modifications.
We will examine the different systems which have been put forward in explanation of the origin and justice of property. There are six principal ones. The Roman law gives this definition of property: Dominium est jus utendi et abutendi re suâ, quatenus juris ratio patitur. The definition of the Code civil français is fundamentally the same: "Property is the right of disposing of and of enjoying things in the most absolute manner, provided that no use is made of them prohibited by laws and regulations."
1. Roman jurists and most modern ones have considered occupancy of things without an owner as the principal title conferring property. Quod enim nullius est id, ratione naturali, occupanti conceditur, says the Digest. This theory can be easily maintained, so long as it only has to do with moveables which can be actually seized and detained, like game taken in the chase, or goods found; but it encounters insurmountable difficulties directly we attempt to apply it to the soil. In the first place, history shews that the earth is never regarded by men as res nullius. The hunting ground of hunting tribes, or the pastures of pastoral nations, are always recognised as the collective domain of the tribe; and this collective possession continues, even after agriculture has begun to fertilize the soil. Unoccupied land has therefore never been regarded as without an owner. Everywhere, in former times as in our own, it was considered as belonging to the commune or the State, so that there was no room, in former times any more than in our own, for acquisition by occupancy.
Most of the partisans of this theory do allow a sort of primitive community, communio bonorum primaeva. But they add, that in order to obtain individual ownership of things which they took possession of, all men tacitly agreed to renounce, each for himself; this undivided right over the common domain. If it is the historic origin of property, that they seek to explain in this way, history knows of no such agreement. If it is meant as a theoretical and logical origin, in this case they lapse into the theory of contract, which we shall examine further on.
M. Thiers, in his work De la Propriété borrows the idea of Cicero, who, comparing the world to a theatre, asserts that every one makes the place he occupies his own: Theatrum cum commune sit, recte tamen dici potest ejus eum tocum quem quisque occupavit. The example goes against the theory which he is endeavouring to establish: for, in the first place, the spectator is only in possession of his place, and his possession merely gives him a temporary right and not the perpetual ownership; and, secondly, he occupies hut one place. Hence no one could at best make his own more than the portion of the soil which he actually retains and can cultivate. M. Renouard, in his excellent work, Du Droit industriel, recognises this: "Of strict natural right, the occupation of land presents serious difficulty in execution. It only gives a right over the soil actually held in possession." Without this limit, in fact, a single man might, by some manifest sign of his intention, occupy a whole province.
Occupation is a fact resulting from chance or force. There are three of us on an island large enough to support us all, if we have each an equal part: if, by superior activity, I occupy two-thirds of it, is one of the others to die of hunger, or else become my slave? In this case the instinct of justice has always commanded an equal partition. Hence we do conceive of a right of acquisition, anterior and superior to the simple fact of apprehension, which it is called upon to limit and regulate.
Most jurists should answer the question, whether the soil can be the subject of exclusive and perpetual ownership, in the negative. "For the sovereign harmony," says M. Renouard, "has exempted from the grasp of private ownership the chief of those things without the enjoyment of which life would become impossible to those who should be excluded in case of their appropriation." The soil is obviously among the number of such things, as also is the air and water. For man cannot live on sunlight and dew, and the possession of some portion of productive capital is necessary for him to obtain his means of support. The general principles of jurists, accordingly, commend the universal custom of primitive nations, which reserved to the tribe the collective ownership of the soil.
According to Cousin, property is the necessary consequence and condition of liberty. Liberty is sacred; property should be no less so. But liberty is only respected when conformable to the law; so property can only be respected when determined by justice. "Liberty and property demand and support each other," says M. Renonard. Undoubtedly; but as all should be free, so should all be proprietors. "Property," says this eloquent jurist, "is the condition of personal dignity." In that case it is not allowable to make a privilege of it, unless we wish to see the mass of mankind degraded and enslaved.
2. The second theory of property would make labour its basis. This is the one adopted by economists, because, since Adam Smith, they have attributed to labour the production of wealth. Locke was the first to expound this system clearly, in his treatise on Civil Government, c. IV. Briefly, this is a summary of what he says on the subject
God gave the soil to mankind at larger but as no one enjoys either the soil or that which it produces unless he be owner, individuals must be allowed the use, to the exclusion of all others.
Every one has an exclusive right over his own person. The labour of his body and the work of his hands therefore are likewise his property. No one can have a greater right than he to that which he has acquired, especially if there remain a sufficiency of similar objects for others. My labour, withdrawing objects from the state of community, makes them mine. But the right of acquisition must be limited by reason and equity. "If one exceeds the bounds of moderation and takes more than he has need of; he undoubtedly takes what belongs to others."
The limit indicated by Locke is, for moveable things, the amount which we may take without allowing them to spoil. For land the limit is the amount which we can cultivate ourselves, and the condition that there be left as much for others as they require. "The measure of property," he says, "nature has well set by the extent of man's labour and the conveniences of life: no man's labour could subdue, or appropriate all; nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to intrench upon the right of another, or acquire to himself a property, to the prejudice of his neighbour, who would still have room for as good and as large a possession. This measure, we see, confines every man's possession to a very moderate proportion, and such as he might appropriate to himself, without injury to anybody."
So according to Locke the great principle is this: "Every one ought to have as much property as is necessary for his support."
The necessity of private property results "from the conditions of human life, which require labour and some material on which it may be exercised."
As Locke admits on the one hand an equality of right in all men (ch. L § 1), and on the other hand the necessity for every man to have a certain portion of material, on which to live by his labour, it follows that he recognizes a natural right of property in every one.
This theory is certainly more plausible than that of occupation. As M. Röder very justly remarks in his work, Die Grundzüge des Naturrechts, § 79, labour establishes between man and the objects which he has transformed a far closer connexion than mere occupation, whether symbolical or even actual. Labour creates value; accordingly it seems just that he who has given birth to it, should also enjoy it. Moreover, as no one can legitimately retain more than that which he can cultivate, there is a limit which prevents usurpation. But no legislation ever allowed that labour or specification was alone a sufficient title to establish property. He who is not already owner of the land or the material transformed, acquires nothing by his labour but a right to compensation or to remove the buildings and plantations set up on another man's land. Kant had already remarked that the cultivation of the soil was not sufficient to confer the ownership. "If labour alone," says M. Renouard (Du Droit industriel, p. 269), "conferred a legitimate ownership, logic would demand that so much of the material produced, as exceeds the remuneration of such labour, should be regarded as not duly acquired."
Nay more: according to this theory the owner would manifestly have no right to the full value of land let to a tenant. The tenant would become co-proprietor in proportion as the land was improved by his labour; and, at the end of a certain number of years, the proprietor would entirely lose all right of ownership. In any case, he could never raise the rent; for to do so, would be to appropriate the profits of another's labour, which would obviously be a robbery.
If labour were the only legitimate source of property, it would follow that a society, in which so many labourers live in poverty and so many idlers in opulence, is contrary to all right and a violation of the true foundation of property.
The theory so imprudently adopted by most economists, and even by M. Thiers in his book, De la Propriété would therefore be a condemnation of all our modern organization. Jurists have violently opposed the theory. The summary of their objections may be found in M. Warnkoenig's work, Doctrina juris philosophica, p. 121, and in the Naturrecht of Ahrens. If labour is the source of property, why should the Institutes and the Code civil have said nothing of it?(2) It may be said that labour ought to be the source of all property, but this principle would be condemnatory of the existing organization of society.
3. In order to explain why men abandoned the primitive community, it has been asserted to have been in consequence of a convention, and thus property would be the product of contract. This theory has even less to sustain it than the preceding.
In the first place, when we seek to derive a right from a fact, we are bound to establish the reality of that fact, otherwise the right has no foundation. Now, if we go back to the historic origin of property, we find no trace of such a contract. Moreover, this convention, which we should have to seek in the night of past ages, cannot bind existing generations, and consequently cannot serve as the basis of property at the present time. Convention cannot create a general right, for it itself has no value, except so far as it is conformable to justice. If property is legitimate and necessary, it must be maintained; but a decision taken by our remote ancestors will not entitle it to respect.
Kant holds that specification creates a provisional ownership, which only becomes final by the consent of all the members of the society. Kant does not maintain that this consent was a historic fact: he speaks of it as a juristic necessity, or a fact the justice of which commands respect. But the moment we introduce the idea of justice, we are demanding of the general principles of law the sanction of human institutions, and to what purpose is it then to invoke a convention which has never occurred? It is enough to shew that property is conformable to right.
4. Without having recourse to abstract notions of justice or to the obscurities of historic origins, many writers of very different shades have maintained that property is the creature of law.
"Banish governments," says Bossuet, "and the earth and all its fruits are as much the common property of all mankind as the air and the light. According to this primitive natural right, no one has an exclusive right to anything, but every thing is a prey for all. In a regulated government no individual may occupy anything Hence arises the right of property, and, generally speaking, every right must spring from public authority."(3)
Montesquieu uses nearly the same language as Bossuet: "As men have renounced their natural independence to live under political laws, they have also renounced the natural community of goods to live under civil laws. The former laws give them liberty, the latter property."(4)
Mirabeau said, in the tribune of the Constituent Assembly, "Private property is goods acquired by virtue of the law. The law alone constitutes property, because the public will alone can effect the renunciation of all and give a common title, a guarantee for individual enjoyment." Tronchet, one of the jurists who contributed most to the formation of the Code civil, also said: "It is only the establishment of society and conventional laws that are the true source of the right of property." Touillier, in his commentary on the Droit civil français, admits the same principle. "Property," according to Robespierre, "is the right of every citizen to enjoy the portion of goods guaranteed to him by the law." In his Treatise on Legislation, Bentham says: "For the enjoyment of that which I regard as mine, I can only count on the promises of the law which guarantees it to me. Property and the law were born together, and will perish together. Before law, there was no property; banish law, and all property ceases." Destutt de Tracy expresses the same opinion; and more recently, M. Laboulaye, in his Histoire de la propriété en Occident, formulates it with great exactness: "Detention of the soil is a fact for which force alone can compel respect, until society takes up the cause of the holder. The laws not only protect property, they give birth to it The right of property is not natural but sociaL" It is certain, in fact, as M. Maynz remarks, that "the three legislations (Roman, German aud Slavonic) which now divide Europe, derive from the State exclusively the absolute power over goods which we designate by the word property or ownership."(5)
If M. Laboulaye and other authors of his opinion only intended to speak of a state of fact, they are right. If I have gathered fruits or occupied a spot of land, my right hand at first, and subsequently the power of the state, guarantee me the enjoyment thereof. But what is it that my strong hand or the power of the state ought to guarantee to me? what are the proper limits of mine and thine? is the question we have to determine. The law creates property, we are told; but what is this law, and who establishes it? The right of property has assumed the most diverse forms: which one must the legislator sanction in the cause of justice and the general interest?
To frame a law regulating property, we must necessarily know what this right of property should be. Hence the notion of property must precede the law which regulates it.
Formerly the master was recognised as owner of his slave; was this legitimate property, and did the law, which sanctioned it, create a true right? No: things are just or unjust, institutions are good or bad, before a law declares them such, exactly as two and two make four even before the fact be formulated. The relations of things do not depend on human will. Men may make good laws and bad laws, sanction right or violate it, right exists none the less. Unless every law is maintained to be just, we must allow that law does not create right. On the contrary, it is because we have an idea of justice superior to laws and conventions, that we can assert these laws or conventions to be just or unjust.
At every moment of history and in every society, conformably to the nature of mankind, there is a political and social organization, which answers best to the rational requirements of man, and is most favourable to his development. This order constitutes the empire of right. Science is called in to discover it, and legislation to sanction it. Every law which is conformable to this order is good and just; every law which is opposed to it is bad and iniquitous.
It cannot be maintained that in human society, as in the physical Universe, the existing order is necessarily the best, unless we pretend that all social iniquities are legitimate, because they are necessary, and that every attempt at reform is a folly, if not an attack on natural law. In this case, we should also have to admit that slavery, confiscation and robbery are just directly they are enjoined by law; and then the greatest attacks on right would have to be regarded as the true right. The law does not create right; right must dictate the law.
5. According to certain economists such as Roscher, Mill, and Courcelle-Seneuil, human nature is such as to require property, for without this there would be no stimulus to labour or saving. M. Adolph Wagner calls this system the economic theory of nature. Roscher formulates it thus: "Just as human labour can only arrive at complete productivity when it is free, so capital does not attain to full productive power except under the system of free private property. Who would care to save, and renounce immediate enjoyment, if he could not reckon on future enjoyment?" (Roscher, Syst. I. § 77 and 82.)
"Landed property," says Mill, "if legitimate, must rest on some other justification than the right of the labourer to what he has created by his labour. The land is not of man's creation; and for a person to appropriate to himself a mere gift of nature, not made to him in particular, but which belonged as much to all others until he took possession of it, is primâ facie an injustice to all the rest The private appropriation of land has been deemed to be beneficial to those who do not, as well as to those who do, obtain a share. And in what manner beneficial? Let us take particular note of this. Beneficial, because the strongest interest which the community and the human race have in the land is that it should yield the largest amount of food, and other necessary or useful things required by the community. Now, though the land itself is not the work of human beings, its produce is; and to obtain enough of that produce somebody must exert much labour, and, in order that this labour may be supported, must expend a considerable amount of the savings of previous labours. Now we have been taught by experience that the great majority of mankind will work much harder, and make much greater pecuniary sacrifices, for themselves and their immediate descendants than for the public. In order, therefore, to give the greatest encouragement to production, it has been thought right that individuals should have an exclusive property in land, so that they may have the most possible to gain by making the land as productive as they can, and may be in no danger of being hindered from doing so by the interference of any one else. This is the reason usually assigned for allowing the land to be private property, and it is the best reason that can be given.
Human institutions ought, in fact, to be alike just, and such as to procure the greatest possible happiness for the greatest number. But, as M. Adolph Wagner very well remarks, quiritary property in land is not indispensable for the good cultivation of the soil. In fact we see on all sides, perfectly cultivated lands, which belong to the State, to corporations, to village communities, and to great landowners, but are farmed by temporary occupants. It cannot therefore be maintained that private property in the soil is an economic necessity. As Mr Mill very truly says, if the end aimed at in establishing private ownership of the soil is to create the most powerful motive for realizing its good cultivation, the ownership should always be assigned directly to the cultivators. In any case, according to Mill, the increased value of the soil, resulting from national activity, should be reserved to the nation, and not granted to sinecurists, who reap the advantage in the form of an increased rental.
The "natural-economical" theory has this great advantage, that by basing property on general utility, it allows of successive improvements in existing institutions by the elimination of what is contrary to equity and the general interests, and by modifications consonant with new wants and technical advances.(6)
6. The sixth system regards property as a natural right. In the present day all the advocates of property vie with one another in repeating that it is a natural right; but there are but few of them who understand the import of these words. The philosophical jurists of Germany have however explained it very well. Fichte's theory on the point is this. The personal right of man as determined by nature is to possess a sphere of action sufficient to supply him with the means of support. This physical sphere should therefore be guaranteed to every one, conditionally however on his cultivating it by his own labour. Thus all should labour, and all should also have wherewith to labour. Here are the actual words of Fichte in his excellent work on the French Revolution, Beiträge zur Berichtigung des Urtheils über die französische Revolution: "The transformation (bildung) of materials by our own efforts is the true juridical basis of property, and the only natural one. He who does not labour cannot eat, unless I give him food; but he has no right to be fed. He cannot justly make others work for him. Every man has over the material world a primordial right of `appropriation,' and a right of property over such things only as have been modified by him." In his book on natural law, Grundlage des Naturrechts, Fichte says every man has an inalienable right to live by his labour, and consequently to find the means of employing his hands.
Immanuel Fichte, the son of the great philosopher, maintains similar theories in his book on Ethics, System der Ethik (2 B., 2 Th., § 93). The right of possession, according to him, is a direct right, inalienable and antecedent to all law. Property is possession conformable to law, and guaranteed by public power. It is instituted for the general good, from whence it follows that the proprietor not only may not misuse his property, but is even juridically bound to use it well. "We come," says Fichte, "to a social organization of property. It will lose its exclusively private character to become a true, public institution. It will not be enough to guarantee to every one his, property legally acquired; we must enable him to obtain the property which ought to accrue tohim in exchange for his legitimate labour." "Labour is a duty towards oneself and towards others: he who does not work, injures another, and consequently deserves punishment" (§ 97). Every one ought to be possessed of property, says Hegel in his Rechtsphilosophie § 49; "Jeder muss Eigenthum haben." Schiller has rendered the same idea in two lines, which contain the whole philosophy of history:--
Etwas muss er sein eigen nennen,
Oder der Mensch wird mordin und brennen.
"Man must have something that he may call his own, or he will burn and slay."
The same theory is expounded even more completely in the excellent manual on natural law (Naturrecht) by M. H. Ahrens. According to this eminent jurist, "law consists in the group of conditions necessary for the physical and spiritual development of man, so far as these conditions are dependent on human will. Property is the realization of the sum of the means and conditions necessary for the development, physical or spiritual, of each individual, in the quality and quantity conformable to his rational wants. The right of property includes the conditions and means for the acquisition, retaining, and employment of property, and comprises at the same time the judicial actions given to the proper person, for the recovery, the establishment, or the exercise of ownership."
"For every man property is a condition of his existence and development. It is based on the actual nature of man, and should therefore be regarded as an original, absolute right which is not the result of any outward act, such as occupation, labour or contract. The right springing directly from human nature, the title of being a man is sufficient to confer a right of property."
The proof of the truth of this doctrine is that the very persons, who do not recognise it or who would condemn it, have admitted principles which necessarily lead to it.
"Property," says Portalis, "is a natural right; the principle of the right is in ourselves." But if it is a natural right,a right, that is, resulting from the very nature of man, it follows that we can deprive no man of it. The reason of the existence of property indicated by Portalis, implies property for all. In order to support himself, he says, man should be able to appropriate a portion of the soil to cultivate by his labour. Precisely so: but by man we must understand all men; for all, in fact, are unable to exist except by appropriation of some kind. Hence it follows from the system of Portalis, that the right of appropriation is general, and that no one ought to be deprived of it.
"Property," says Dalloz (Répert. gén. V. Propriété), "is not an innate right, but it springs from an innate right. This innate right, which contains property in the germ, is liberty; and from liberty property flows of necessity." If Dalloz is right, it follows that every man entitled to freedom is also entitled to property.
"Every member of the human race," says M. Renonard, "requires to be escorted by and invested with properties, which shall adhere to him and form his proprietary domain." Very well; but then social institutions must be so regulated, that by the exercise of his right of appropriation every one may attain to the escort and investiture of property.
The instinctive respect for this natural right to property residing in every man serves as a basis for the right to assistance, which is simply its equivalent, and which all legislatures, and notably that of England, have sanctioned. If the primordial right of appropriation be denied, we must allow that Malthus was right: the man who has no property, has not the slightest right to turn it to account: "at the banquet of nature no place is reserved for him; he is really an intruder on the earth. Nature bids him take himself off, and she will not be slow to put this order into execution herself." Nothing can be more true. If man cannot claim the "domain of appropriation," which M. Renouard talks of, he no longer has any right to assistance.
We occupy an island, on `which we live by the fruits of our labour; a shipwrecked sailor is cast on to it: what is his right? May he invoke the universal opinion of jurists, and say: You have occupied the soil in virtue of your title as human beings, because property is the condition of liberty, and of cultivation a necessity of existence, a natural right: but I too am a man, I too have a natural right to cultivate the soil. I may therefore, on the same title as you, occupy a corner of this land to support myself by my labour.
If the justice of this claim is denied, there is no course but to throw the new comer back into the waves, or, as Malthus says, to leave to nature the task of ridding the earth, on which there is no spot to shelter him, of his presence.
If in fact he has not the right to live by the fruits of his labour, still less can he claim to live on the fruits of other people's labour, in virtue of an assumed right to assistance. Undoubtedly we may assist him or employ him at a salary, but this is an act of benevolence, not a juridical solution of the question. If he cannot claim a share in the productive stock to live by his labour on it, he has no right at all. It is no violation of justice to allow him to die of hunger. Need we say that this solution, which seems to be that of the official school of jurists and economists, is contrary alike to the innate sentiment of justice, to natural right, to the primitive legislation of all nations, and even to the principles of those who adopt it?
In the Greek language, in which etymologies often disclose a complete philosophy, the words for just and justice, , , involve the notion of equality of distribution or equal partition. By natural law is understood either, as in the seventeenth and eighteenth centuries, the sum of the laws which human instinct follows in "the state of nature;" or, as in our day, the laws which are conformable to the nature of man, and which reason discloses. Natural law in both these acceptations sanctions the right of property recognized in all.
We have in fact shewn, we believe, that all nations had in primitive times an organization which secured to every man a share in the productive capital. Analysis also shews us that property is the indispensable condition of the existence, the liberty and the development of man. Innate sentiments of justice, primitive right and rational right, all agree therefore in imposing on every society the obligation of so organizing itself as to guarantee to every one the legitimate property which should belong to him.
"Natural rights," remarks M. Renonard, "are, as their name indicates, those which being indissolubly attached to the nature of human beings, spring from it, and live by it alone. They are the condition, not the concession, of positive laws, to which they are antecedent, and for which they form the basis." (Du droit industriel, p. 173.)
Rights are absolute,(7) insomuch as they conduce to perfect order; but their form is modified, because man, the subject of rights, changes. The most perfect order, constituting the obligatory domain of justice, is not the same for savages and civilized nations. A form of property, which in one place secures the greatest production and the most equitable distribution, may have very different results elsewhere; and in this case it is no longer right. What is the best form of property at any given moment we can only learn from the study of man's nature, of his wants and sentiments and the ordinary consequences of his acts. This highest order is "right," because it is the shortest and most direct road to perfection. All that in this order should belong to each member of the human race, is his individual right. The task for which every one is most apt, and in which he can be of most use to his neighbours and himself, ought to be assigned to him, and the instruments of labour necessary to this occupation, in the degree in which they exist, form his legitimate patrimony. So long as men knew of no means of subsistence but the chase, pasturage or agriculture, this patrimony was a share in the soil, a part of the allmend. In the middle ages in the towns, where industry was developed and organized, it was a place in the corporation with a share in the ownership of all that belonged to this community. The equalizing movement, which agitates modern society so profoundly, will probably end in obtaining new recognition of the natural right of property, and even a guarantee for its exercise, by means of institutions in harmony with the existing necessities of industry and the prescriptions of sovereign justice. Obviously there can be no attempt at securing to every one a share in the soil, but simply an instrument of labour or a sphere for its exercise.
There must be for human affairs an order which is the best. This order is by no means always the existing one; else why should we all desire change in the latter? But it is the order which ought to exist for the greatest happiness of the human race. God knows it, and desires its adoption. It is for man to discover and establish it,
The following is the letter of Mr Mill, mentioned in the Preface, in the original French in which it was written by him:--
Avignon, le 17 novembre 1872.
J'ai lu vos articles dans la Revue des Deux-Mondes, du 1er juillet, 1er aoüt et 1er septembre. Votre esquisse de l'histoire de la propriété territoriale, et votre description des différentes formes que cette institution a revêtues à différentes époques, et dont is plupart se conservent encore dans quelque endroit, me somblent trèspropres au but que vous avez en vue, et que je poursuis aussi depuis longtemps, celui de faire voir que la propriété n'est pas chose fixe, mais une institution multiforme, qui a subi de grandes modifications et qui est susceptible d'en subir do nouvelles avec grand avantage. Vos trois articles appellent et font désirer un quatrième, qui traiterait do l'application pratique do cette leçon à la société actuelle. C'est ce qu'on trouvera sans doute dans votre livre.
Quant à l'institution des Allmends, du moins comme elle existe à présent, vous en avez si peu dit dans vos articles que je ne la connais jusqu'ici quo par votre lettre. Il faudrait en avoir bien étudié l'opération pour être en état do juger do son applicabilité à l'Angleterre. Mais je no crois pas quo l'on puisse nier que los réformes à faire dana l'institution de la propriété consistent surtout à organiser quelque mode de propriété collective, en concurrence avec la propriété individuelle: reste le problème de la manière de gérer cette propriété collective, et l'on ne peut trouver la meilleure manière qu'on essayant de celles qui se présentent; peut-être même est-il à désirer que plusieurs de ces modes existent ensemble, afin d'obtenir les avantages de chacun, et d'en compenser les désavantagés. Il me semble donc, qu'à titre d'expérience le système des Allmends, constitué de la manière quo vous proposez, pourrait être mis en pratique en Angleterre avec avantage. Jusqu'ici los hommes politiques do la classe ouvrière anglaise ne se sont pas portés vers une pareile solution de la question: ils préfèront que la propriété collective soit affermée, soit à des cultivateurs capitalistes, soit A des associations coopératives de travaillours. Ce dernier mode a été essayé avec succès, et il jouit déjà d'une certaine favour. La petite propriété, au contraire, n'a guère de partisans que quelques économistes et quelques philanthropes; la classe ouvrière parait la repousser, comme une manière de multiplier le nombre de ceux qul seraient intéressés à s'opposer à une nouvelle institution de la propriété territoriale. Pareil reproche ne petit guère s'adresser au système des Allmends, et j'espère que ce système sera pleinement exposé et discuté dans votre volume.
Je vois avec plaisir que vous prenez un peu l'habitude d'écrire pour l'Angleterre. Vous y trouverez un public beaucoup mieux préparé qu'autrefois pour profiter de ce que vous avez à lui dire, et un penseur belge est dans une position de haute impartialité à l'égard des chases du continent d'Europe, qui le rend particulièrement propre à en donner de saines appréciations à des lecteurs qui sent souvont réduits croire sur parole.
Agréez cher Monsieur, l'expression de ma haute consideration et de ma sincère amitié.
J. S. MILL.
In England the history of each estate, where known to us, reveals this constant tendency to concentration. Here is an example:
"The occupation of the land on a farm called Holt, in the parish of Clapham, Sussex, consisting of 160 acres, has been traced since the thirteenth century up to the present time. During the thirteenth and fourteenth centuries this farm, which is now occupied by one tenant, wee a hamlet; and there is a document in existence which contains twenty-one distinct conveyances of land in fee, described as parcels of this land. In 1400 the number of proprietors began todecresse; by the year 1520 it had been reduced to six; in the reign of James I. the six wore reduced to two; and soon after the Restoration the whole became the property of one owner, who lot it as a farm to one tenant." Quarterly Review, No. 81, p. 250.
It was not till he had nearly completed the revisal of the proofs of this work that the author was acquainted with the very instructive writings of M. Alb. H. Post, judge at Bremen, Die Gescklechtgenossenschaft der Urzeit, and Die Anfange des Staats-und-Rechts- lebens. In these writings M. Post has brought together various examples of the collective ownership of the soil among primitive nations, which have not been noticed in this volume. According to Nicolas de Damas (Bachofen, Das Mutterrecht, p.21) the Galactophagi owned all property in common. Among the Galactophagi, says Strabo (7, 300), everything was common property, except their weapons; and Nicolas de Damas tells us the same thing of the Sardolybians (Bachofen, Das Mut., p. 21).
In many cases the primitive joint ownership is even found applied to the produce, as among the Iroquois (Waitz, Anthropologie der Naturvölker, III, p. 128); at Lukunor in the Caroline Islands (Waitz, v.2, p.117); among the Malays (Waltz, v.5,141,149); among most Negro tribes; among the Kabardes of the Caucasus, according to Bastian; in Alasca (Whymper, Travels in Alasca, p. 255); at Samoa (Turner, Nineteen Years in Polynesia, p. 284); in Circassia (Bell, Tagebuch, S. 153); among the tribes of Brazil (Von Martins, Rechtszustände der Ureinwohner Brasiliens, p. 34); in the islands of the New Hebrides (Meinicke, Die Inseln des Stillen Oceans, i. p. 202); among the tribes of the Dravidian race; in India, and among the tribes of North-West Africa (Munzinger, Ostafricanische Studien, p.493).
Pp. 10, note, 19, 21, 23, 24, 26. For J. von Reussler, read J. von Keussler. P. 83. For Rowalewaky, read Kowalewsky. P. 113,1. 15. For Le sol de la culture en Prusse, read Le sol et la culture; and add the German title, Der Boden des preussischen Staates.
1. Dictionnaire de l'Economie polit., voce Propriété.
2. M. Thiers, it is true, has not been stopped by certain contradictions. "To every one," he says, " for his labour, because of his labour and in proportion to his labour. We may therefore say dogmatically: The indestructible basis of the right of property is labour." Further on he adds: "In order to labour, man must first seize the material for his labour, that is the land, the indispensable material of agricultural labour, which makes occupation the first act necessary to the commencement of property, and labour the second." Finally he says again: "Every society originally presents the phenomenon of an occupation more or less violent, gradually succeeded by the phenomenon of regular transmission by way of exchange for the legitimate fruits of some labour." Thus the robber need only exchange his spoil for "the legitimate fruit of some labour," to become the legal proprietor. Property has, therefore, for its origin, according to M. Thiers, now labour, now occupation, now robbery legitimated by exchange! Elsewhere he describes a man fishing and growing corn, who says: "This fish for which I have fished with so much patience, and this bread which I have made with such exertion, to whom do they belong?" The human race will answer: "They are mine."De la Propriété, p. 58. And everywhere human laws will attribute the greater part of this fish or this bread, not to him who has gathered them by his toil, but to him who has granted the labourer permission to fish or to till Thus evidently M. Thiers destroys the basis of quiritary ownership, which he strives to defend.
3. Polit. tirée de l'Ecrit., Lib. i. Art. 5, 4 propos.
4. Esprit des Lois, Lib. xxvi. c. 15Léon Faucher (see Propriété in the Dictionnaire de l'Economie politique) replies that this primitive community of goods has never been found in a state of nature. The most savage tribes, he says, know mine from thine. Undoubtedly: but Montesquieu was speaking of landed property; and this was collective in primitive times everywhere.
5. Mayns, Cours de droit romain, 2e Edit. p. 682.
6. The theory of property has never been so well treated as in the excellent work of M. Adolph Wagner, and M. Erwin Nasse, Lehrbuch der politischen Oeconomie, i. Grundlegung.According to M. Wagner we must always distinguish between the objects to which property is applied, because it should not be the same for arable laud, forests, mines, streams. capital and produce. M. Wagner adopts the "legal" theory, that is to say, he derives property from the law. Undoubtedly it is the decree of the legislator which establishes property and the right of inheritance: but what ought the legislator to decree? This is the question we have to decide. We must therefore go back to the necessities which determine what should be law. M. A. Samter, a banker of Königsberg, adopts the same system as M. Wagner. Sec his remarkable works, Die Social-Lehre and Gesellschaftliches-und-privat-Eigenthum, Leipzig. 1877. M. Samter is of opinion that the soil, as well as mines and roads, should belong to the state and the communes, so as to counterbalance the power of private property, the rights of which are much greater, more exclusive and less limited than formerly.
7. Rights are only absolute within the limits determined by reason and general utility. Property is never an absolute right in the sense of conferring an arbitrary power. The power of disposing of objects is always limited by the same end for which property was originally introduced, that is general utility, or, as the Roman law expresses it, extends quatenus juris ratio patitur. The first German civil jurist, Ihering, thus epitomizes the facts of history: "There is no such thing as absolute property,as property, that is, independent of the consideration of the interests of the community; and history has taken care to inculcate this maxim into the minds of all nations."Geist des röm. Rechts, i. 67.