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The objection to this account is, that consent can never be presumed from silence, where the person whose consent is required knows nothing about the matter; which must have been the case with all mankind, except the neighbourhood of the place where the appropriation was made. And to suppose that the piece of ground previously belonged to the neighbourhood, and that they had a just power of conferring a right to it upon whom they pleased, is to suppose the question resolved, and a partition of land to have already taken place.
Another says, that each man's limbs and labour are his own exclusively; that, by occupying a piece of ground, a man inseparably mixes his labour with it; by which means the piece of ground becomes thenceforward his own, as you cannot take it from him without depriving him at the same time of something which is indisputably his.
This is Mr Locke's solution; and seems, indeed, a fair reason, where the value of the labour bears a considerable proportion to the value of the thing; or where the thing derives its chief use and value from the labour. Thus game and fish, though they be common, whilst at large in the woods or water, instantly become the property of the person that catches them; because an animal, when caught, is much more valuable than when at liberty; and this increase of value, which is inseparable from, and makes a great part of the whole value, is strictly the property of the fowler, or fisherman, being the produce of his personal labour. For the same reason, wood or iron, manufactured into utensils, becomes the property of the manufacturer; because the value of the workmanship far exceeds that of the materials. And upon a similar principle, a parcel of unappropriated ground, which a man should pare, burn, plough, harrow, and sow, for the production of corn, would justly enough be thereby made his own. But this will hardly hold, in the manner it has been applied, of taking a ceremonious possession of a tract of land, as navigators do of newdiscovered islands, by erecting a standard, engraving an inscription, or publishing a proclamation to the birds and beasts; or of turning your cattle into a piece of ground, setting up a landmark, digging a ditch, or planting a hedge round it. Nor will even the clearing, manuring, and ploughing of a field give the first occupier a right to it in perpetuity, and after this cultivation and all effects of it are ceased.
Another, and, in my opinion, a better account of the first right of ownership, is the following: that, as God has provided these things for the use of all, he has of consequence given each leave to take of them what he wants; by virtue, therefore, of this leave, a man may appropriate what he stands in need of to his
own use, without asking or waiting for the consent of others; in like manner as, when an entertainment is provided for the freeholders of a county, each freeholder goes, and eats and drinks what he wants or chooses, without having or waiting for the consent of the other guests.
But then this reason justifies property, as far as necessaries alone, or, at the most, as far as a competent provision for our natural exigencies. For, in the entertainment we speak of— allowing the comparison to hold in all points-although every particular freeholder may sit down and eat till he be satisfied, without any other leave than that of the master of the feast, or any other proof of that leave than the general invitation, or the manifest design with which the entertainment is provided; yet you would hardly permit any one to fill his pockets or his wallet, or to carry away with him a quantity of provision to be hoarded up, or wasted, or given to his dogs, or stewed down into sauces, or converted into articles of superfluous luxury; especially if, by so doing, he pinched the guests at the lower end of the table.
These are the accounts that have been given of the matter by the best writers upon the subject; but were these accounts perfectly unexceptionable, they would none of them, I fear, avail us in vindicating our present claims of property in land, unless it were more probable than it is, that our estates were actually acquired at first in some of the ways which these accounts suppose; and that a regular regard had been paid to justice, in every successive transmission of them since; for if one link in the chain fail, every title posterior to it falls to the ground.
The real foundation of our right is THE LAW OF THE LAND.
It is the intention of God, that the produce of the earth be applied to the use of man: this intention cannot be fulfilled without establishing property; which is consistent, therefore, with his will, that property be established. The land cannot be divided into separate property without leaving it to the law of the country to regulate that division: it is consistent, therefore, with the same will, that the law should regulate the division; and, consequently, 'consistent with the will of God,' or 'right,' that I should possess that share which these regulations assign me.
By whatever circuitous train of reasoning you attempt to derive this right, it must terminate at last in the will of God; the straightest, therefore, and shortest way of arriving at this will, is the best.
Hence it appears, that my right to an estate does not at all depend upon the manner or justice of the original acquisition; nor upon the justice of each subsequent change of possession. It is not, for instance, the less, nor ought it to be impeached, because the
estate was taken possession of at first by a family of aboriginal Britons, who happened to be stronger than their neighbours; nor because the British possessor was turned out by a Roman, or the Roman by a Saxon invader; nor because it was seized, without colour of right or reason, by a follower of the Norman adventurer, from whom, after many interruptions of fraud and violence, it has at length devolved to me.
Nor does the owner's right depend upon the expediency of the law which gives it to him. On one side of a brook, an estate descends to the eldest son; on the other side, to all the children alike. The right of the claimants under both laws of inheritance is equal, though the expediency of such opposite rules must necessarily be different.
The principles we have laid down upon this subject apparently tend to a conclusion of which a bad use is apt to be made. As the right of property depends upon the law of the land, it seems to follow, that a man has a right to keep and take everything which the law will allow him to keep and take, which in many cases will authorise the most flagitious chicanery. If a creditor upon a simple contract neglect to demand his debt for six years, the debtor may refuse to pay it: would it be right, therefore, to do so, where he is conscious of the justice of the debt? If a person who is under twenty-one years of age contract a bargain—other than for necessaries-he may avoid it by pleading his minority; but would this be a fair plea, where the bargain was originally just? The distinction to be taken in such cases is this: with the law, we acknowledge, resides the disposal of property; so long, therefore, as we keep within the design and intention of a law, that law will justify us as well in foro conscientiæ, as in foro humano, whatever be the equity or expediency of the law itself. But when we convert to one purpose a rule or expression of law which is intended for another purpose, then we plead in our justification, not the intention of the law, but the words—that is, we plead a dead letter, which can signify nothing; for words without meaning or intention have no force or effect in justice; much less words taken contrary to the meaning and intention of the speaker or writer. To apply this distinction to the examples just now proposed: in order to protect men against antiquated demands, from which it is not probable they should have preserved the evidence of their discharge, the law prescribes a limited time to certain species of private securities, beyond which it will not enforce them, or lend its assistance to the recovery of the debt. If a man be ignorant or dubious of the justice of the demand made upon him, he may conscientiously plead this limitation; because he applies the rule of law to the purpose for which
it was intended. But when he refuses to pay a debt, of the reality of which he is conscious, he cannot, as before, plead the intention of the statute, and the supreme authority of law, unless he could shew that the law intended to interpose its supreme authority, to acquit men of debts, of the existence and justice of which they were themselves sensible. Again, to preserve youth from the practices and impositions to which their inexperience exposes them, the law compels the payment of no debts incurred within a certain age, nor the performance of any engagements, except for such necessaries as are suited to their condition and fortunes. If a young person, therefore, perceive that he has been practised or imposed upon, he may honestly avail himself of the privilege of his nonage to defeat the circumvention. But if he shelter himself under this privilege to avoid a fair obligation, or an equitable contract, he extends the privilege to a case in which it is not allowed by intention of law, and in which, consequently, it does not in natural justice exist.
[The following passages from Mr J. S. Mill's Principles of Political Economy, contain a more just and philosophical explanation of the Institution of Property than the one given above:
'The institution of property, reduced to its essential elements, consists in the recognition, in each person, of a right to the exclusive disposal of what he or she has produced by their own exertions, or received by gift or fair agreement, without force or fraud, from those who produced it. The foundation of the whole is, the right of producers to what they themselves have produced. It may be objected, therefore, that the institution as it now exists, recognises rights of property in individuals over things which they have not produced. For example-it may be said the operatives in a manufactory create, by their labour and skill, the whole produce; yet instead of its belonging to them, the law gives them only their stipulated hire, and transfers the produce to some one who has merely supplied the funds, without perhaps contributing anything to the work itself, even in the form of superintendence. The answer to this is, that the labour of manufacture is only one of the conditions which must combine for the production of the commodity. The labour cannot be carried on without materials and machinery, nor without a stock of necessaries provided in advance, to maintain the labourers during the production. All these things are the fruits of previous labour. If the labourers were possessed of them, they would not need to divide the produce with any one; but since they have them not, an equivalent must be given to those who have, both for the antecedent labour, and for the abstinence by which the produce of that labour, instead of being expended on indulgences, has been reserved for this use.
The capital may not have been, and in most cases was not, created by the labour and abstinence of the present possessor; but it was created by the labour and abstinence of some former person, who, by gift or contract, transferred his claims to the present capitalist ; and the abstinence at least must have been continued by each successive owner, down to the present. The terms of co-operation between present labour and the fruits of past labour, are a subject for adjustment between the two parties. Each is necessary to the other. The capitalist can do nothing without labourers, nor the labourers without capital. It may be said, they do not meet on an equal footing: the capitalist, as the richer, can take advantage of the labourer's necessities, and make his conditions as he pleases. He could do so, undoubtedly, if he were but one. The capitalists collectively could do so, if they were not too numerous to combine, and act as a body. But as things are, they have no such advantage. Where combination is impossible, the terms of the contract depend on competition; that is, on the amount of capital which the collective abstinence of society has provided, compared with the number of the labourers. If the labourers compete for employment, the capitalists on their part compete for labour, to the full extent of the circulating capital of the country. A joint administration on account of the state, would not make the fund go further, or afford better terms to the labourers, unless either by enforcing, on the society collectively, greater abstinence, or by limiting more strictly the number of the labouring population. It is impossible to increase the quotient that falls to the share of each labourer, without either augmenting the dividend, or diminishing the divisor.
' The right of property includes, then, the freedom of acquiring by contract. The right of each to what he has produced, implies a right to what has been produced by others, if obtained by their free consent, and without fraud; since the producers must either have given it from good-will, or exchanged it for what they esteemed an equivalent, and to prevent them from doing so would be to infringe their right of property in the product of their own industry.
'Before proceeding to consider the things which the principle of individual property does not include, we must specify one more thing which it does include; and this is, that a title, after a certain period, shall be given by prescription. According to the fundamental idea of property, indeed, nothing ought to be treated as such which has been acquired by force or fraud, or appropriated in ignorance of a prior title vested in some other person; but it is necessary to the security of rightful possessors, that they should not be molested by charges of wrongful acquisition, when by the