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' derive their reality especially from the support of the judicial authority.'
Dr Whewell has proposed a fivefold division of rights as the basis of his exposition of legal rights and duties. These are the rights of the person, the rights of property, the rights of contract, the rights of marriage, and the rights of government, or staterights. This seems to form a very convenient arrangement of topics in the department in question; to which department he gives the title Jus, and derives from it the term jural, to express what is enforced by legal sanctions, as distinguished from moral, or what is not enforced by the authority of the state. The name jural is a far more appropriate expression than the term perfect to express what is decreed by law; while moral would still include the duties binding on conscience independently of legal enforcement.]
PART I OF RELATIVE DUTIES WHICH ARE DETERMINATE.
IF you should see a flock of pigeons in a field of corn; and if (instead of each picking where and what it liked, taking just as much as it wanted, and no more) you should see ninety-nine of them gathering all they got into a heap; reserving nothing for themselves but the chaff and the refuse; keeping this heap for one, and that the weakest, perhaps worst pigeon of the flock; sitting round, and looking on, all the winter, whilst this one was devouring, throwing about, and wasting it; and if a pigeon more hardy or hungry than the rest, touched a grain of the hoard, all the others instantly flying upon it, and tearing it to pieces; if you should see this, you would see nothing more than what is every day practised and established among men. Among men, you see the ninety-and-nine, toiling and scraping together a heap of superfluities for one (and this one, too, oftentimes the feeblest and worst of the whole set, a child, a woman, a madman, or a fool), getting nothing for themselves all the while but a little of the coarsest of the provision which their own industry produces; looking quietly on, while they see the fruits of all their labour spent or spoiled; and if one of the number take or touch a particle of the hoard, the others joining against him, and hanging him for the theft.
THE USE OF THE INSTITUTION OF PROPERTY.
There must be some very important advantages to account for an institution which, in the view of it above given, is so paradoxical and unnatural.
The principal of these advantages are the following:-
The earth, in climates like ours, produces little without cultivation; and none would be found willing to cultivate the ground, if others were to be admitted to an equal share of the produce. The same is true of the care of flocks and herds of tame animals.
Crabs and acorns, red deer, rabbits, game, and fish, are all which we should have to subsist upon in this country, if we trusted to the spontaneous productions of the soil; and it fares not much better with other countries. A nation of North American savages, consisting of two or three hundred, will take up, and be halfstarved upon, a tract of land, which in Europe, and with European management, would be sufficient for the maintenance of as many thousands.
In some fertile soils, together with great abundance of fish upon their coasts, and in regions where clothes are unnecessary, a considerable degree of population may subsist without property in land; which is the case in the islands of Otaheite: but in less favoured situations, as in the country of New Zealand, though this sort of property obtain in a small degree, the inhabitants, for want of a more secure and regular establishment of it, are driven oftentimes by the scarcity of provision to devour one another.
II. It preserves the produce of the earth to maturity.
We may judge what would be the effects of a community of right to the productions of the earth, from the trifling specimens which we see of it at present. A cherry-tree in a hedgerow, nuts in a wood, the grass of an unstinted pasture, are seldom of much advantage to anybody, because people do not wait for the proper season of reaping them. Corn, if any were sown, would never ripen; lambs and calves would never grow up to sheep and cows, because the first person that met them would reflect, that he had better take them as they are, than leave them for another.
III. It prevents contests.
War and waste, tumult and confusion, must be unavoidable and eternal, where there is not enough for all, and where there are no rules to adjust the division.
IV. It improves the conveniency of living.
This it does two ways. It enables mankind to divide themselves into distinct professions, which is impossible, unless a man can exchange the productions of his own art for what he wants from others; and exchange implies property. Much of the advantage of civilised over savage life depends upon this. When a man is from necessity his own tailor, tent-maker, carpenter, cook, huntsman, and fisherman, it is not probable that he will be expert at any of his callings: hence the rude habitations,
furniture, clothing, and implements of savages, and the tedious length of time which all their operations require.
It likewise encourages those arts, by which the accommodations of human life are supplied, by appropriating to the artist the benefit of his discoveries and improvements, without which appropriation, ingenuity will never be exerted with effect.
Upon these several accounts we may venture, with a few exceptions, to pronounce, that even the poorest and the worst provided, in countries where property and the consequences of property prevail, are in a better situation, with respect to food, raiment, houses, and what are called the necessaries of life, than any are in places where most things remain in common.
The balance, therefore, upon the whole, must preponderate in favour of property with a manifest and great excess.
Inequality of property, in the degree in which it exists in most countries of Europe, abstractedly considered, is an evil; but it is an evil which flows from those rules concerning the acquisition and disposal of property, by which men are incited to industry, and by which the object of their industry is rendered secure and valuable. If there be any great inequality unconnected with this origin, it ought to be corrected.
THE HISTORY OF PROPERTY.
The first objects of property were the fruits which a man gathered, and the wild animals he caught; next to these, the tents or houses which he built, the tools he made use of to catch or prepare his food; and afterwards weapons of war and offence. Many of the savage tribes in North America have advanced no further than this yet; for they are said to reap their harvest and return the produce of their market with foreigners, into the common hoard or treasury of the tribe. Flocks and herds of tame animals soon became property; Abel, the second from Adam, was a keeper of sheep; sheep and oxen, camels and asses, composed the wealth of the Jewish patriarchs, as they do still of the modern Arabs. As the world was first peopled in the East, where there existed a great scarcity of water, wells probably were next made property, as we learn from the frequent and serious mention of them in the Old Testament; the contentions and treaties about them (Genesis, xxi. 25; xxvi. 18); and from its being recorded, among the most memorable achievements of very eminent men, that they dug or discovered a well. Land, which is now so important a part of property, which alone our
laws call real property, and regard upon all occasions with such peculiar attention, was probably not made property in any country, till long after the institution of many other species of property; that is, till the country became populous, and tillage began to be thought of. The first partition of an estate which we read of, was that which took place between Abram and Lot, and was one of the simplest imaginable: 'If thou wilt take the left hand, then I will go to the right; or if thou depart to the right hand, then I will go to the left.' There are no traces of property in land in Cæsar's account of Britain, little of it in the history of the Jewish patriarchs, none of it found amongst the nations of North America; the Scythians are expressly said to have appropriated their cattle and houses, but to have left their land in common.
Property in movables continued at first no longer than the occupation; that is, so long as a man's family continued in possession of a cave, or whilst his flocks depastured upon a neighbouring hill, no one attempted, or thought he had a right, to disturb or drive them out: but when the man quitted his cave, or changed his pasture, the first who found them unoccupied, entered upon them, by the same title as his predecessor's; and made way in his turn for any one that happened to succeed him. All more permanent property in land was probably posterior to civil government and to laws; and therefore settled by these, or according to the will of the reigning chief.
IN WHAT THE RIGHT OF PROPERTY IS FOUNDED.
We now speak of Property in Land; and there is a difficulty in explaining the origin of this property, consistently with the law of nature; for the land was once, no doubt, common, and the question is, how any particular part of it could justly be taken out of the common, and so appropriated to the first owner, as to give him a better right to it than others; and, what is more, a right to exclude all others from it.
Moralists have given many different accounts of this matter; which diversity alone, perhaps, is a proof that none of them are satisfactory.
One tells us that mankind, when they suffered a particular person to occupy a piece of ground, by tacit consent relinquished their right to it; and as the piece of ground, they say, belonged to mankind, collectively, and mankind thus gave up their right to the first peaceable occupier, it thenceforward became his property, and no one afterwards had a right to molest him in it.