Property Essay

prompt in docx

According to David Hume, the primary purpose of real property law is to create a stable social order that minimizes conflict over land. However, laws limiting the use or ownership of real property often impose second class status on some groups. Property rules limited the life choices of white women in early 19th century England and America as illustrated by the fictional works of Jane Austen and Valerie Martin. American law converted white squatters’ possession into ownership and excluded Native Americans from the lands they had possessed.  Property law also allowed racially restrictive covenants that determined where African Americans could live in the early 20th century and allowed private discrimination in the market. These property laws that limited the liberty of these groups were justified because they created a stable social order.

Analyze this statement. Discuss whether the infringements on liberty in ALL THREE of these historical examples is justified by the need for a stable social order. Your analysis must include a discussion of AT LEAST TWO property theorists whom we have studied.

Read Pride and Prejudice Vol. 1, chap. 13 – “Arrival of Mr. Collins,” by following the hyperlink:

www.pemberley.com/janeinfo/pridprej.html

Within Vol. 1, chap. 13, find the hyperlink “entailed away from your own children” and read about entail

Read Vol. 1, chap. 19 – “Mr. Collins proposes”

Read Vol. 1, chap. 22 – “Mr. Collins and Charlotte”

In Vol. 1, chap 22, find the hyperlink “honourable provision for well-educated young women of small fortune” for a discussion of why Miss Lucas accepted the proposal.

 There are three different species of goods, which we are possess’d of; the internal satisfaction of our minds, the external advantages of our body, and the enjoyment of such possessions as we have acquir’d by our industry and good fortune. We are perfectly secure in the enjoyment of the first. The second may be ravish’d from us, but can be of no advantage to him who deprives us of them. The last only are both expos’d to the violence of others, and may be transferr’d without suffering [488]any loss or alteration; while at the same time, there is not a sufficient quantity of them to supply every one’s desires and necessities. As the improvement, therefore, of these goods is the chief advantage of society, so the instability of their possession, along with their scarcity, is the chief impediment.

In vain shou’d we expect to find, in uncultivated nature, a remedy to this inconvenience; or hope for any inartificial principle of the human mind, which might controul those partial affections, and make us overcome the temptations arising from our circumstances. The idea of justice can never serve to this purpose, or be taken for a natural principle, capable of inspiring men with an equitable conduct towards each other. That virtue, as it is now understood, wou’d never have been dream’d of among rude and savage men. For the notion of injury or injustice implies an immorality or vice committed against some other person: And as every immorality is deriv’d from some defect or unsoundness of the passions, and as this defect must be judg’d of, in a great measure, from the ordinary course of nature in the constitution of the mind; ’twill be easy to know, whether we be guilty of any immorality, with regard to others, by considering the natural, and usual force of those several affections, which are directed towards them. Now it appears, that in the original frame of our mind, our strongest attention is confin’d to ourselves; our next is extended to our relations and acquaintance; and ’tis only the weakest which reaches to strangers and indifferent persons. This partiality, then, and unequal affection, must not only have an influence on our behaviour and conduct in society, but even on our ideas of vice and virtue; so as to make us regard any remarkable transgression of such a degree of partiality, either by too great an enlargement, or contraction of the affections, as vicious and immoral. This we may observe in our common judgments concerning actions, where we blame a person, who either centers all his affections in his family, or [489]is so regardless of them, as, in any opposition of interest, to give the preference to a stranger, or mere chance acquaintance. From all which it follows, that our natural uncultivated ideas of morality, instead of providing a remedy for the partiality of our affections, do rather conform themselves to that partiality, and give it an additional force and influence.

The remedy, then, is not deriv’d from nature, but from artifice; or more properly speaking, nature provides a remedy in the judgment and understanding, for what is irregular and incommodious in the affections. For when men, from their early education in society, have become sensible of the infinite advantages that result from it, and have besides acquir’d a new affection to company and conversation; and when they have observ’d, that the principal disturbance in society arises from those goods, which we call external, and from their looseness and easy transition from one person to another; they must seek for a remedy, by putting these goods, as far as possible, on the same footing with the fix’d and constant advantages of the mind and body. This can be done after no other manner, than by a convention enter’d into by all the members of the society to bestow stability on the possession of those external goods, and leave every one in the peaceable enjoyment of what he may acquire by his fortune and industry. By this means, every one knows what he may safely possess; and the passions are restrain’d in their partial and contradictory motions. Nor is such a restraint contrary to these passions; for if so, it cou’d never be enter’d into, nor maintain’d; but it is only contrary to their heedless and impetuous movement. Instead of departing from our own interest, or from that of our nearest friends, by abstaining from the possessions of others, we cannot better consult both these interests, than by such a convention; because it is by that means we maintain society, which is so necessary to their well-being and subsistence, as well as to our own.

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This convention is not of the nature of a promise: For even promises themselves, as we shall see afterwards, arise from human conventions. It is only a general sense of common interest; which sense all the members of the society express to one another, and which induces them to regulate their conduct by certain rules. I observe, that it will be for my interest to leave another in the possession of his goods, provided he will act in the same manner with regard to me. He is sensible of a like interest in the regulation of his conduct. When this common sense of interest is mutually express’d, and is known to both, it produces a suitable resolution and behaviour. And this may properly enough be call’d a convention or agreement betwixt us, tho’ without the interposition of a promise; since the actions of each of us have a reference to those of the other, and are perform’d upon the supposition, that something is to be perform’d on the other part. Two men, who pull the oars of a boat, do it by an agreement or convention, tho’ they have never given promises to each other. Nor is the rule concerning the stability of possession the less deriv’d from human conventions, that it arises gradually, and acquires force by a slow progression, and by our repeated experience of the inconveniences of transgressing it. On the contrary, this experience assures us still more, that the sense of interest has become common to all our fellows, and gives us a confidence of the future regularity of their conduct: And ’tis only on the expectation of this, that our moderation and abstinence are founded. In like manner are languages gradually establish’d by human conventions without any promise. In like manner do gold and silver become the common measures of exchange, and are esteem’d sufficient payment for what is of a hundred times their value.

After this convention, concerning abstinence from the possessions of others, is enter’d into, and every one has acquir’d a stability in his possessions, there immediately arise the ideas of justice and injustice; as also those of property, [491]right, and obligation. The latter are altogether unintelligible without first understanding the former. Our property is nothing but those goods, whose constant possession is establish’d by the laws of society; that is, by the laws of justice. Those, therefore, who make use of the words property, or right, or obligation, before they have explain’d the origin of justice, or even make use of them in that explication, are guilty of a very gross fallacy, and can never reason upon any solid foundation. A man’s property is some object related to him. This relation is not natural, but moral, and founded on justice. ’Tis very preposterous, therefore, to imagine, that we can have any idea of property, without fully comprehending the nature of justice, and shewing its origin in the artifice and contrivance of men. The origin of justice explains that of property. The same artifice gives rise to both. As our first and most natural sentiment of morals is founded on the nature of our passions, and gives the preference to ourselves and friends, above strangers; ’tis impossible there can be naturally any such thing as a fix’d right or property, while the opposite passions of men impel them in contrary directions, and are not restrain’d by any convention or agreement.

No one can doubt, that the convention for the distinction of property, and for the stability of possession, is of all circumstances the most necessary to the establishment of human society, and that after the agreement for the fixing and observing of this rule, there remains little or nothing to be done towards settling a perfect harmony and concord. All the other passions, beside this of interest, are either easily restrain’d, or are not of such pernicious consequence, when indulg’d. Vanity is rather to be esteem’d a social passion, and a bond of union among men. Pity and love are to be consider’d in the same light. And as to envy and revenge, tho’ pernicious, they operate only by intervals, and are directed against particular persons, whom we consider as our superiors or enemies. This avidity alone, of acquiring [492]goods and possessions for ourselves and our nearest friends, is insatiable, perpetual, universal, and directly destructive of society. There scarce is any one, who is not actuated by it; and there is no one, who has not reason to fear from it, when it acts without any restraint, and gives way to its first and most natural movements. So that upon the whole, we are to esteem the difficulties in the establishment of society, to be greater or less, according to those we encounter in regulating and restraining this passion.

’Tis certain, that no affection of the human mind has both a sufficient force, and a proper direction to counter-balance the love of gain, and render men fit members of society, by making them abstain from the possessions of others. Benevolence to strangers is too weak for this purpose; and as to the other passions, they rather inflame this avidity, when we observe, that the larger our possessions are, the more ability we have of gratifying all our appetites. There is no passion, therefore, capable of controlling the interested affection, but the very affection itself, by an alteration of its direction. Now this alteration must necessarily take place upon the least reflection; since ’tis evident, that the passion is much better satisfy’d by its restraint, than by its liberty, and that in preserving society, we make much greater advances in the acquiring possessions, than in the solitary and forlorn condition, which must follow upon violence and an universal licence. The question, therefore, concerning the wickedness or goodness of human nature, enters not in the least into that other question concerning the origin of society; nor is there any thing to be consider’d but the degrees of men’s sagacity or folly. For whether the passion of self-interest be esteemed vicious or virtuous, ’tis all a case; since itself alone restrains it: So that if it be virtuous, men become social by their virtue; if vicious, their vice has the same effect.

Now as ’tis by establishing the rule for the stability of [493]possession, that this passion restrains itself; if that rule be very abstruse, and of difficult invention; society must be esteem’d, in a manner, accidental, and the effect of many ages. But if it be found, that nothing can be more simple and obvious than that rule; that every parent, in order to preserve peace among his children, must establish it; and that these first rudiments of justice must every day be improv’d, as the society enlarges: If all this appear evident, as it certainly must, we may conclude, that ’tis utterly impossible for men to remain any considerable time in that savage condition, which precedes society; but that his very first state and situation may justly be esteem’d social. This, however, hinders not, but that philosophers may, if they please, extend their reasoning to the suppos’d state of nature; provided they allow it to be a mere philosophical fiction, which never had, and never cou’d have any reality. Human nature being compos’d of two principal parts, which are requisite in all its actions, the affections and understanding; ’tis certain, that the blind motions of the former, without the direction of the latter, incapacitate men for society: And it may be allow’d us to consider separately the effects, that result from the separate operations of these two component parts of the mind. The same liberty may be permitted to moral, which is allow’d to natural philosophers; and ’tis very usual with the latter to consider any motion as compounded and consisting of two parts separate from each other, tho’ at the same time they acknowledge it to be in itself uncompounded and inseparable.

This state of nature, therefore, is to be regarded as a mere fiction, not unlike that of the golden age, which poets have invented; only with this difference, that the former is describ’d as full of war, violence and injustice; whereas the latter is painted out to us, as the most charming and most peaceable condition, that can possibly be imagin’d. The seasons, in that first age of nature, were so temperate, if we may believe the poets, that there was no necessity for men to provide themselves [494]with cloaths and houses as a security against the violence of heat and cold. The rivers flow’d with wine and milk: The oaks yielded honey; and nature spontaneously produc’d her greatest delicacies. Nor were these the chief advantages of that happy age. The storms and tempests were not alone remov’d from nature; but those more furious tempests were unknown to human breasts, which now cause such uproar, and engender such confusion. Avarice, ambition, cruelty, selfishness, were never heard of: Cordial affection, compassion, sympathy, were the only movements, with which the human mind was yet acquainted. Even the distinction of mine and thine was banish’d from that happy race of mortals, and carry’d with them the very notions of property and obligation, justice and injustice.

This, no doubt, is to be regarded as an idle fiction; but yet deserves our attention, because nothing can more evidently shew the origin of those virtues, which are the subjects of our present enquiry. I have already observ’d, that justice takes its rise from human conventions; and that these are intended as a remedy to some inconveniences, which proceed from the concurrence of certain qualities of the human mind with the situation of external objects. The qualities of the mind are selfishness and limited generosity: And the situation of external objects is their easy change, join’d to their scarcity in comparison of the wants and desires of men. But however philosophers may have been bewilder’d in those speculations, poets have been guided more infallibly, by a certain taste or common instinct, which in most kinds of reasoning goes farther than any of that art and philosophy, with which we have been yet acquainted. They easily perceiv’d, if every man had a tender regard for another, or if nature supplied abundantly all our wants and desires, that the jealousy of interest, which justice supposes, could no longer have place; nor would there be any occasion for those distinctions and limits of property and possession, which at present are in use among mankind. Encrease to a sufficient degree the benevolence [495]of men, or the bounty of nature, and you render justice useless, by supplying its place with much nobler virtues, and more valuable blessings. The selfishness of men is animated by the few possessions we have, in proportion to our wants; and ’tis to restrain this selfishness, that men have been oblig’d to separate themselves from the community, and to distinguish betwixt their own goods and those of others.

Nor need we have recourse to the fictions of poets to learn this; but beside the reason of the thing, may discover the same truth by common experience and observation. ’Tis easy to remark, that a cordial affection renders all things common among friends; and that married people in particular mutually lose their property, and are unacquainted with the mine and thine, which are so necessary, and yet cause such disturbance in human society. The same effect arises from any alteration in the circumstances of mankind; as when there is such a plenty of any thing as satisfies all the desires of men: In which case the distinction of property is entirely lost, and every thing remains in common. This we may observe with regard to air and water, tho’ the most valuable of all external objects; and may easily conclude, that if men were supplied with every thing in the same abundance, or if every one had the same affection and tender regard for every one as for himself; justice and injustice would be equally unknown among mankind.

Here then is a proposition, which, I think, may be regarded as certain, that ’tis only from the selfishness and confin’d generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin. If we look backward we shall find, that this proposition bestows an additional force on some of those observations, which we have already made on this subject.

First, we may conclude from it, that a regard to public interest, or a strong extensive benevolence, is not our first and original motive for the observation of the rules of justice; [496]since ’tis allow’d, that if men were endow’d with such a benevolence, these rules would never have been dreamt of.

Secondly, we may conclude from the same principle, that the sense of justice is not founded on reason, or on the discovery of certain connexions and relations of ideas, which are eternal, immutable, and universally obligatory. For since it is confest, that such an alteration as that above-mention’d, in the temper and circumstances of mankind, wou’d entirely alter our duties and obligations, ’tis necessary upon the common system, that the sense of virtue is deriv’d from reason, to shew the change which this must produce in the relations and ideas. But ’tis evident, that the only cause, why the extensive generosity of man, and the perfect abundance of every thing, wou’d destroy the very idea of justice, is because they render it useless; and that, on the other hand, his confin’d benevolence, and his necessitous condition, give rise to that virtue, only by making it requisite to the publick interest, and to that of every individual. ’Twas therefore a concern for our own, and the publick interest, which made us establish the laws of justice; and nothing can be more certain, than that it is not any relation of ideas, which gives us this concern, but our impressions and sentiments, without which every thing in nature is perfectly indifferent to us, and can never in the least affect us. The sense of justice, therefore, is not founded on our ideas, but on our impressions.

Thirdly, we may farther confirm the foregoing proposition, that those impressions, which give rise to this sense of justice, are not natural to the mind of man, but arise from artifice and human conventions. For since any considerable alteration of temper and circumstances destroys equally justice and injustice; and since such an alteration has an effect only by changing our own and the publick interest; it follows, that the first establishment of the rules of justice depends on these different interests. But if men pursu’d the publick interest naturally, and with a hearty affection, they wou’d never have dream’d of restraining each other by these rules; [497]and if they pursu’d their own interest, without any precaution, they wou’d run head-long into every kind of injustice and violence. These rules, therefore, are artificial, and seek their end in an oblique and indirect manner; nor is the interest, which gives rise to them, of a kind that cou’d be pursu’d by the natural and inartificial passions of men.

To make this more evident, consider, that tho’ the rules of justice are establish’d merely by interest, their connexion with interest is somewhat singular, and is different from what may be observ’d on other occasions. A single act of justice is frequently contrary to public interest; and were it to stand alone, without being follow’d by other acts, may, in itself, be very prejudicial to society. When a man of merit, of a beneficent disposition, restores a great fortune to a miser, or a seditious bigot, he has acted justly and laudably, but the public is a real sufferer. Nor is every single act of justice, consider’d apart, more conducive to private interest, than to public; and ’tis easily conceiv’d how a man may impoverish himself by a signal instance of integrity, and have reason to wish, that with regard to that single act, the laws of justice were for a moment suspended in the universe. But however single acts of justice may be contrary, either to public or private interest, ’tis certain, that the whole plan or scheme is highly conducive, or indeed absolutely requisite, both to the support of society, and the well-being of every individual. ’Tis impossible to separate the good from the ill. Property must be stable, and must be fix’d by general rules. Tho’ in one instance the public be a sufferer, this momentary ill is amply compensated by the steady prosecution of the rule, and by the peace and order, which it establishes in society. And even every individual person must find himself a gainer, on ballancing the account; since, without justice, society must immediately dissolve, and every one must fall into that savage and solitary condition, which is infinitely worse than the worse situation that can possibly be suppos’d in society. When therefore men have [498]had experience enough to observe, that whatever may be the consequence of any single act of justice, perform’d by a single person, yet the whole system of actions, concurr’d in by the whole society, is infinitely advantageous to the whole, and to every part; it is not long before justice and property take place. Every member of society is sensible of this interest: Every one expresses this sense to his fellows, along with the resolution he has taken of squaring his actions by it, on condition that others will do the same. No more is requisite to induce any one of them to perform an act of justice, who has the first opportunity. This becomes an example to others. And thus justice establishes itself by a kind of convention or agreement; that is, by a sense of interest, suppos’d to be common to all, and where every single act is perform’d in expectation that others are to perform the like. Without such a convention, no one wou’d ever have dream’d, that there was such a virtue as justice, or have been induc’d to conform his actions to it. Taking any single act, my justice may be pernicious in every respect; and ’tis only upon the supposition, that others are to imitate my example, that I can be induc’d to embrace that virtue; since nothing but this combination can render justice advantageous, or afford me any motives to conform my self to its rules.

We come now to the second question we propos’d, viz. Why we annex the idea of virtue to justice, and of vice to injustice. This question will not detain us long after the principles, which we have already establish’d. All we can say of it at present will be dispatch’d in a few words: And for farther satisfaction, the reader must wait till we come to the third part of this book. The natural obligation to justice, viz. interest, has been fully explain’d; but as to the moral obligation, or the sentiment of right and wrong, ’twill first be requisite to examine the natural virtues, before we can give a full and satisfactory account of it.

After men have found by experience, that their selfishness [499]and confin’d generosity, acting at their liberty, totally incapacitate them for society; and at the same time have observ’d, that society is necessary to the satisfaction of those very passions, they are naturally induc’d to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious. To the imposition then, and observance of these rules, both in general, and in every particular instance, they are at first induc’d only by a regard to interest; and this motive, on the first formation of society, is sufficiently strong and forcible. But when society has become numerous, and has encreas’d to a tribe or nation, this interest is more remote; nor do men so readily perceive, that disorder and confusion follow upon every breach of these rules, as in a more narrow and contracted society. But tho’ in our own actions we may frequently lose sight of that interest, which we have in maintaining order, and may follow a lesser and more present interest, we never fail to observe the prejudice we receive, either mediately or immediately, from the injustice of others; as not being in that case either blinded by passion, or byass’d by any contrary temptation. Nay when the injustice is so distant from us, as no way to affect our interest, it still displeases us; because we consider it as prejudicial to human society, and pernicious to every one that approaches the person guilty of it. We partake of their uneasiness by sympathy; and as every thing, which gives uneasiness in human actions, upon the general survey, is call’d Vice, and whatever produces satisfaction, in the same manner, is denominated Virtue; this is the reason why the sense of moral good and evil follows upon justice and injustice. And tho’ this sense, in the present case, be deriv’d only from contemplating the actions of others, yet we fail not to extend it even to our own actions. The general rule reaches beyond those instances, from which it arose; while at the same time we naturally sympathize with others in the sentiments they entertain of us. Thus self-interest is the original motive to the establishment of justice: but a sympathy [500]with public interest is the source of the moral approbation, which attends that virtue.

Tho’ this progress of the sentiments be natural, and even necessary, ’tis certain, that it is here forwarded by the artifice of politicians, who, in order to govern men more easily, and preserve peace in human society, have endeavour’d to produce an esteem for justice, and an abhorrence of injustice. This, no doubt, must have its effect; but nothing can be more evident, than that the matter has been carry’d too far by certain writers on morals, who seem to have employ’d their utmost efforts to extirpate all sense of virtue from among mankind. Any artifice of politicians may assist nature in the producing of those sentiments, which she suggests to us, and may even on some occasions, produce alone an approbation or esteem for any particular action; but ’tis impossible it should be the sole cause of the distinction we make betwixt vice and virtue. For if nature did not aid us in this particular, ’twou’d be in vain for politicians to talk of honourable or dishonourable, praiseworthy or blameable. These words wou’d be perfectly unintelligible, and wou’d no more have any idea annex’d to them, than if they were of a tongue perfectly unknown to us. The utmost politicians can perform, is, to extend the natural sentiments beyond their original bounds; but still nature must furnish the materials, and give us some notion of moral distinctions.

As publick praise and blame encrease our esteem for justice; so private education and instruction contribute to the same effect. For as parents easily observe, that a man is the more useful, both to himself and others, the greater degree of probity and honour he is endow’d with; and that those principles have greater force, when custom and education assist interest and reflexion: For these reasons they are induc’d to inculcate on their children, from their earliest infancy, the principles of probity, and teach them to regard the observance of those rules, by which society is maintain’d, as worthy and honourable, and their violation as base and [501]infamous. By this means the sentiments of honour may take root in their tender minds, and acquire such firmness and solidity, that they may fall little short of those principles, which are the most essential to our natures, and the most deeply radicated in our internal constitution.

What farther contributes to encrease their solidity, is the interest of our reputation, after the opinion, that a merit or demerit attends justice or injustice, is once firmly establish’d among mankind. There is nothing, which touches us more nearly than our reputation, and nothing on which our reputation more depends than our conduct, with relation to the property of others. For this reason, every one, who has any regard to his character, or who intends to live on good terms with mankind, must fix an inviolable law to himself, never, by any temptation, to be induc’d to violate those principles, which are essential to a man of probity and honour.

I shall make only one observation before I leave this subject, viz. that tho’ I assert, that in the state of nature, or that imaginary state, which preceded society, there be neither justice nor injustice, yet I assert not, that it was allowable, in such a state, to violate the property of others. I only maintain, that there was no such thing as property; and consequently cou’d be no such thing as justice or injustice. I shall have occasion to make a similar reflexion with regard to promises, when I come to treat of them; and I hope this reflexion, when duly weigh’d, will suffice to remove all odium from the foregoing opinions, with regard to justice and injustice.

SECTION III.: Of the rules, which determine property.

Tho’ the establishment of the rule, concerning the stability of possession, be not only useful, but even absolutely necessary to human society, it can never serve to any purpose. [502]while it remains in such general terms. Some method must be shewn, by which we may distinguish what particular goods are to be assign’d to each particular person, while the rest of mankind are excluded from their possession and enjoyment. Our next business, then, must be to discover the reasons which modify this general rule, and fit it to the common use and practice of the world.

’Tis obvious, that those reasons are not deriv’d from any utility or advantage, which either the particular person or the public may reap from his enjoyment of any particular goods, beyond what wou’d result from the possession of them by any other person. ’Twere better, no doubt, that every one were possess’d of what is most suitable to him, and proper for his use: But besides, that this relation of fitness may be common to several at once, ’tis liable to so many controversies, and men are so partial and passionate in judging of these controversies, that such a loose and uncertain rule wou’d be absolutely incompatible with the peace of human society. The convention concerning the stability of possession is enter’d into, in order to cut off all occasions of discord and contention; and this end wou’d never be attain’d, were we allow’d to apply this rule differently in every particular case, according to every particular utility, which might be discover’d in such an application. Justice, in her decisions, never regards the fitness or unfitness of objects to particular persons, but conducts herself by more extensive views. Whether a man be generous, or a miser, he is equally well receiv’d by her, and obtains with the same facility a decision in his favour, even for what is entirely useless to him.

It follows, therefore, that the general rule, that possession must be stable, is not apply’d by particular judgments, but by other general rules, which must extend to the whole society, and be inflexible either by spite or favour. To illustrate this, I propose the following instance. I first consider men in their savage and solitary condition; and suppose, that [503]being sensible of the misery of that state, and foreseeing the advantages that wou’d result from society, they seek each other’s company, and make an offer of mutual protection and assistance. I also suppose, that they are endow’d with such sagacity as immediately to perceive, that the chief impediment to this project of society and partnership lies in the avidity and selfishness of their natural temper; to remedy which, they enter into a convention for the stability of possession, and for mutual restraint and forbearance. I am sensible, that this method of proceeding is not altogether natural; but besides that I here only suppose those reflexions to be form’d at once, which in fact arise insensibly and by degrees; besides this, I say, ’tis very possible, that several persons, being by different accidents separated from the societies, to which they formerly belong’d, may be oblig’d to form a new society among themselves; in which case they are entirely in the situation above-mention’d.

’Tis evident, then, that their first difficulty, in this situation, after the general convention for the establishment of society, and for the constancy of possession, is, how to separate their possessions, and assign to each his particular portion, which he must for the future inalterably enjoy. This difficulty will not detain them long; but it must immediately occur to them, as the most natural expedient, that every one continue to enjoy what he is at present master of, and that property or constant possession be conjoin’d to the immediate possession. Such is the effect of custom, that it not only reconciles us to any thing we have long enjoy’d, but even gives us an affection for it, and makes us prefer it to other objects, which may be more valuable, but are less known to us. What has long lain under our eye, and has often been employ’d to our advantage, that we are always the most unwilling to part with; but can easily live without possessions, which we never have enjoy’d, and are not accustom’d to. ’Tis evident, therefore, that men wou’d easily acquiesce in this expedient, that every one continue to enjoy what he is at present possess’d [504]of; and this is the reason, why they wou’d so naturally agree in preferring it

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[505]

But we may observe, that tho’ the rule of the assignment of property to the present possessor be natural, and by that means useful, yet its utility extends not beyond the first formation of society; nor wou’d any thing be more pernicious, than the constant observance of it; by which restitution wou’d be excluded, and every injustice wou’d be authoriz’d and rewarded. We must, therefore, seek for some other circumstance, that may give rise to property after society is once establish’d; and of this kind, I find four most considerable, viz. Occupation, Prescription, Accession, and Succession. We shall briefly examine each of these, beginning with Occupation.

The possession of all external goods is changeable and uncertain; which is one of the most considerable impediments to the establishment of society, and is the reason why, by universal agreement, express or tacite, men restrain themselves by what we now call the rules of justice and equity. The misery of the condition, which precedes this restraint, is the cause why we submit to that remedy as quickly as possible; and this affords us an easy reason, why we annex the idea of property to the first possession, or to occupation. Men are unwilling to leave property in suspence, even for the shortest time, or open the least door to violence and disorder. To which we may add, that the first possession always engages the attention most; and did we neglect it, there wou’d be no colour of reason for assigning property to any succeeding possession
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[506]

There remains nothing, but to determine exactly, what is meant by possession; and this is not so easy as may at first sight be imagin’d. We are said to be in possession of any thing, not only when we immediately touch it, but also when we are so situated with respect to it, as to have it in our power to use it; and may move, alter, or destroy it, according to our present pleasure or advantage. This relation, then, is a species of cause and effect; and as property is nothing but a stable possession, deriv’d from the rules of justice, or the conventions of men, ’tis to be consider’d as the same species of relation. But here we may observe, that as the power of using any object becomes more or less certain, according as the interruptions we may meet with are more or less probable; and as this probability may increase by insensible degrees; ’tis in many cases impossible to determine when possession begins or ends; nor is there any certain standard, by which we can decide such controversies. A wild boar, that falls into our snares, is deem’d to be in our possession, if it be impossible for him to escape. But what do we mean by impossible? How do we separate this impossibility from an improbability? And how distinguish that exactly from a probability? Mark the precise limits of the one and the other, and shew the standard, by which we may decide all disputes that may arise, and, as we find by experience, frequently do arise upon this subject
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[507]

But such disputes may not only arise concerning the real existence of property and possession, but also concerning their extent; and these disputes are often susceptible of no decision, or can be decided by no other faculty than the imagination. A person who lands on the shore of a small island, that is desart and uncultivated, is deem’d its possessor from the very first moment, and acquires the property of the whole; because the object is there bounded and circumscrib’d in the fancy, and at the same time is proportion’d to the new possessor. The same person landing on a desart island, as large as Great Britain, extends his property no farther than his immediate possession; tho’ a numerous colony are esteem’d the proprietors of the whole from the instant of their debarkment.

But it often happens, that the title of first possession becomes obscure thro’ time; and that ’tis impossible to determine many controversies, which may arise concerning [508]it. In that case long possession or prescription naturally takes place, and gives a person a sufficient property in any thing he enjoys. The nature of human society admits not of any great accuracy; nor can we always remount to the first origin of things, in order to determine their present condition. Any considerable space of time sets objects at such a distance, that they seem, in a manner, to lose their reality, and have as little influence on the mind, as if they never had been in being. A man’s title, that is clear and certain at present, will seem obscure and doubtful fifty years hence, even tho’ the facts, on which it is founded, shou’d be prov’d with the greatest evidence and certainty. The same facts have not the same influence after so long an interval of time. And this may be receiv’d as a convincing argument for our preceding doctrine with regard to property and justice. Possession during a long tract of time conveys a title to any object. But as ’tis certain, that, however every [509]thing be produc’d in time, there is nothing real, that is produc’d by time; it follows, that property being produc’d by time, is not any thing real in the objects, but is the offspring of the sentiments, on which alone time is found to have any influence
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We acquire the property of objects by accession, when they are connected in an intimate manner with objects that are already our property, and at the same time are inferior to them. Thus the fruits of our garden, the offspring of our cattle, and the work of our slaves, are all of them esteem’d our property, even before possession. Where objects are connected together in the imagination, they are apt to be put on the same footing, and are commonly suppos’d to be endow’d with the same qualities. We readily pass from one to the other, and make no difference in our judgments concerning them; especially if the latter be inferior to the former

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[510]

The right of succession is a very natural one, from the presum’d consent of the parent or near relation, and from the general interest of mankind, which requires, that men’s possession shou’d pass to those, who are dearest to them, in [511]order to render them more industrious and frugal. Perhaps these causes are seconded by the influence of relation, or the association of ideas, by which we are naturally directed to consider the son after the parent’s decease, and ascribe to [512]him a title to his father’s possessions. Those goods must become the property of some body: But of whom is the question. Here ’tis evident the persons children naturally present themselves to the mind; and being already connected [513]to those possessions by means of their deceas’d parent, we are apt to connect them still farther by the relation of property. Of this there are many parallel instances
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Selection from William Blackstone, Commentaries on the Law of England

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land: why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reason for making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper of useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by holy writ, the all-bountiful Creator gave to man “dominion over all the earth, and over the fish of the sea, [

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] and over the fowl of the air, and over every living thing that moveth **

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]upon the earth.”

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 This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.

These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them had it been possible for mankind to have remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the ancient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein “erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.”

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 Not that this communion of goods seems ever to have been applicable, even in the earliest stages, to aught but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer:

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 or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force: but the instant that he **4]quitted the use or occupation of it, another might seize it, without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own.

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But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world be continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that be quitted possession; if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations in particular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent property in their dwellings, especially for the protection of their young; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man’s house and home-stall: which seem to have been originally mere **5]temporary huts or movable cabins, suited to the design of Providence for more speedily peopling the earth, [5] and suited to the wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that movables of every kind became sooner appropriated than the permanent substantial soil: partly because they were more susceptible of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an established right; but principally because few of them could be fit for use, till improved and ameliorated by the bodily labour of the occupant, which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein.

The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments incident to that method of provision, induced them to gather together such animals as were of a more tame and sequacious nature, and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of water also a very important point. And therefore the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells; the exclusive property of which appears to have been established in the first digger or occupant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, “because he had digged that well.”

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 And Isaac, *[*6about ninety years afterwards, reclaimed that as his father’s property, and after much contention with the Philistines was suffered to enjoy it in peace.

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All this while the soil and pasture of the earth remained still in common as before, and open to every occupant: except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages, and which, Tacitus informs us, continued among the Germans till the decline of the Roman empire.

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 We have also a striking example of the same kind in the history of Abraham and his nephew Lot.

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 When their joint substance became so great that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants; so that it was no longer practicable to dwell together. This contention Abraham thus endeavoured to compose:—“Let there be no strife, I pray thee, between thee and me. Is not the whole land before thee? Separate thyself, I pray thee, from me. 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.” This plainly implies an acknowledged right, in either, to occupy whatever ground he pleased, that was not preoccupied by other tribes. “And Lot lifted up his eyes, and beheld all the plain of Jordan, that it was well watered everywhere, even as the garden of the Lord. Then Lot chose him all the plain of Jordan, and journeyed east; and Abraham dwelt in the land of Canaan.”

*[*7Upon the same principle was founded the right of migration, or sending colonies to find out new habitations when the mother-country was over-charged [7] with inhabitants; which was practised as well by the Phœnicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and driving out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those who have rendered their names immortal by thus civilizing mankind.

As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants: and, by constantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for future supply or succession. It therefore became necessary to pursue some regular method of providing a constant subsistence; and this necessity produced, or at least promoted and encouraged, the art of agriculture. And the art of agriculture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage; but who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art, and labour? Had not therefore a separate property in lands as well as movables been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey, which, according to some philosophers, is the genuine state of nature. **8]Whereas now (so graciously has Providence interwoven our duty and our happiness together) the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting its natural. Necessity begat property; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants,—states, government, laws, punishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all; and leisure was given to others to cultivate the human mind, to invent useful arts, and to lay the foundations of science.

The only question remaining is, how this property became actually invested: or that it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, but particularly to nobody. And, as we before observed that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands, that occupancy gave also the original right to the permanent property in the substance of the earth itself; which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law concerning the reason why occupancy should convey this right, and invest one with this absolute property: Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind that the first occupant should become the owner; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be; for that the very act of occupancy alone, being a degree of bodily labour, is, from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title;—a dispute that savours too much of nice and scholastic refinement.

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 However, both sides agree in this, that occupancy is the [8] thing by which the title was in fact originally gained; every man seizing to his own continued *[*9use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else.2

Property, both in lands and movables, being thus originally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shows an intention to abandon it; for then it becomes, naturally speaking, publici juris once more, and is liable to be again appropriated by the next occupant. So if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize it to his own use. But if he hides it privately in the earth, or other secret place, and it is discovered, the finder acquires no property therein; for the owner hath not by this act declared any intention to abandon it, but rather the contrary: and if he loses or drops it by accident, it cannot be collected from thence that he designed to quit the possession; and therefore in such a case the property still remains in the loser, who may claim it again of the finder. And this, we may remember, is the doctrine of the law of England with relation to treasure trove.

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But this method of one man’s abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in [9] fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and established governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and useful to another, who was ready to give in exchange for it some equivalent that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance; which **10]may be considered either as a continuance of the original possession which the first occupant had, or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property: the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property; and Titius, being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession: thus the consent expressed by the conveyance gives Titius a good right against me; and possession, or occupancy, confirms that right against all the world besides.3

The most universal and effectual way of abandoning property, is by the death of the occupant: when, both the actual possession and intention of keeping possession ceasing, the property which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant a man ceases to be, he ceases to have any dominion: else, if he had a right to dispose of his acquisitions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him: which would be highly absurd and inconvenient. All property must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society: for, then, by the principles before established, the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition **11]at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would

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 occasion. And further, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed.

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Karl Marx – The Communist Manifesto J.S. Mill – Principles of Political Economy

George – Progress and Poverty George – Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

Somerset v. Stewart Bryan v. Walton State v. Mann State v. Boyce

Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Shelley v. Kraemer Bell v. Maryland

Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

Roe – Backlash Cassidy review of Thomas Piketty, Capital in the Twenty-first Century

Ostrom – Sustainable Development Boomer v. Atlantic Cement

Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

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John-Jacques Rousseau

Discourse on the Origin and Foundations of InequalityDiscourse on the Origin and Foundations of Inequality

THE SECOND PART

THE first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people

simple enough to believe him, was the real founder of civil society. From how many crimes, wars and murders,

from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or

filling up the ditch, and crying to his fellows, “Beware of listening to this impostor; you are undone if you once

forget that the fruits of the earth belong to us all, and the earth itself to nobody.” But there is great probability that

things had then already come to such a pitch, that they could no longer continue as they were; for the idea of

property depends on many prior ideas, which could only be acquired successively, and cannot have been formed

all at once in the human mind. Mankind must have made very considerable progress, and acquired considerable

knowledge and industry which they must also have transmitted and increased from age to age, before they arrived

at this last point of the state of nature. …

So long as men remained content with their rustic huts, so long as they were satisfied with clothes made of the

skins of animals and sewn together with thorns and fish-bones, adorned themselves only with feathers and shells,

and continued to paint their bodies different colours, to improve and beautify their bows and arrows and to make

with sharp-edged stones fishing boats or clumsy musical instruments; in a word, so long as they undertook only

what a single person could accomplish, and confined themselves to such arts as did not require the joint labour of

several hands, they lived free, healthy, honest and happy lives, so long as their nature allowed, and as they

continued to enjoy the pleasures of mutual and independent intercourse. But from the moment one man began to

stand in need of the help of another; from the moment it appeared advantageous to any one man to have enough

provisions for two, equality disappeared, property was introduced, work became indispensable, and vast forests

became smiling fields, which man had to water with the sweat of his brow, and where slavery and misery were

soon seen to germinate and grow up with the crops.

Metallurgy and agriculture were the two arts which produced this great revolution. The poets tell us it was gold

and silver, but, for the philosophers, it was iron and corn, which first civilised men, and ruined humanity. Thus

both were unknown to the savages of America, who for that reason are still savage: the other nations also seem to

have continued in a state of barbarism while they practised only one of these arts. One of the best reasons,

perhaps, why Europe has been, if not longer, at least more constantly and highly civilised than the rest of the

world, is that it is at once the most abundant in iron and the most fertile in corn.

It is difficult to conjecture how men first came to know and use iron; for it is impossible to suppose they would of

themselves think of digging the ore out of the mine, and preparing it for smelting, before they knew what would

be the result. On the other hand, we have the less reason to suppose this discovery the effect of any accidental fire,

as mines are only formed in barren places, bare of trees and plants; so that it looks as if nature had taken pains to

keep that fatal secret from us. There remains, therefore, only the extraordinary accident of some volcano which,

by ejecting metallic substances already in fusion, suggested to the spectators the idea of imitating the natural

operation. And we must further conceive them as possessed of uncommon courage and foresight, to undertake so

laborious a work, with so distant a prospect of drawing advantage from it; yet these qualities are united only in

minds more advanced than we can suppose those of these first discoverers to have been.

With regard to agriculture, the principles of it were known long before they were put in practice; and it is indeed

hardly possible that men, constantly employed in drawing their subsistence from plants and trees, should not

readily acquire a knowledge of the means made use of by nature for the propagation of vegetables. It was in all

probability very long, however, before their industry took that turn, either because trees, which together with

hunting and fishing afforded them food, did not require their attention; or because they were ignorant of the use

of corn, or without instruments to cultivate it; or because they lacked foresight to future needs; or lastily, because

they were without means of preventing others from robbing them of the fruit of their labour.

When they grew more industrious, it is natural to believe that they began, with the help of sharp stones and

pointed sticks, to cultivate a few vegetables or roots around their huts; though it was long before they knew how to

prepare corn, or were provided with the implements necessary for raising it in any large quantity; not to mention

how essential it is, for husbandry, to consent to immediate loss, in order to reap a future gain — a precaution very

foreign to the turn of a savage’s mind; for, as I have said, he hardly foresees in the morning what he will need at

night.

The invention of the other arts must therefore have been necessary to compel mankind to apply themselves to

agriculture. No sooner were artificers wanted to smelt and forge iron, than others were required to maintain them;

the more hands that were employed in manufactures, the fewer were left to provide for the common subsistence,

though the number of mouths to be furnished with food remained the same: and as some required commodities in

exchange for their iron, the rest at length discovered the method of making iron serve for the multiplication of

commodities. By this means the arts of husbandry and agriculture were established on the one hand, and the art of

working metals and multiplying their uses on the other.

The cultivation of the earth necessarily brought about its distribution; and property, once recognised, gave rise to

the first rules of justice; for, to secure each man his own, it had to be possible for each to have something. Besides,

as men began to look forward to the future, and all had something to lose, every one had reason to apprehend that

reprisals would follow any injury he might do to another. This origin is so much the more natural, as it is

impossible to conceive how property can come from anything but manual labour: for what else can a man add to

things which he does not originally create, so as to make them his own property? It is the husbandman’s labour

alone that, giving him a title to the produce of the ground he has tilled, gives him a claim also to the land itself, at

least till harvest, and so, from year to year, a constant possession which is easily transformed into property. When

the ancients, says Grotius, gave to Ceres the title of Legislatrix, and to a festival celebrated in her honour the name

of Thesmophoria, they meant by that that the distribution of lands had produced a new kind of right: that is to say,

the right of property, which is different from the right deducible from the law of nature.

In this state of affairs, equality might have been sustained, had the talents of individuals been equal, and had, for

example, the use of iron and the consumption of commodities always exactly balanced each other; but, as there

was nothing to preserve this balance, it was soon disturbed; the strongest did most work; the most skilful turned

his labour to best account; the most ingenious devised methods of diminishing his labour: the husbandman

wanted more iron, or the smith more corn, and, while both laboured equally, the one gained a great deal by his

work, while the other could hardly support himself. Thus natural inequality unfolds itself insensibly with that of

combination, and the difference between men, developed by their different circumstances, becomes more sensible

and permanent in its effects, and begins to have an influence, in the same proportion, over the lot of individuals.

Matters once at this pitch, it is easy to imagine the rest. I shall not detain the reader with a description of the

successive invention of other arts, the development of language, the trial and utilisation of talents, the inequality of

fortunes, the use and abuse of riches, and all the details connected with them which the reader can easily supply

for himself. I shall confine myself to a glance at mankind in this new situation.

Behold then all human faculties developed, memory and imagination in full play, egoism interested, reason active,

and the mind almost at the highest point of its perfection. Behold all the natural qualities in action, the rank and

condition of every man assigned him; not merely his share of property and his power to serve or injure others, but

also his wit, beauty, strength or skill, merit or talents: and these being the only qualities capable of commanding

respect, it soon became necessary to possess or to affect them.

It now became the interest of men to appear what they really were not. To be and to seem became two totally

different things; and from this distinction sprang insolent pomp and cheating trickery, with all the numerous vices

that go in their train. On the other hand, free and independent as men were before, they were now, in consequence

of a multiplicity of new wants, brought into subjection, as it were, to all nature, and particularly to one another;

and each became in some degree a slave even in becoming the master of other men: if rich, they stood in need of

the services of others; if poor, of their assistance; and even a middle condition did not enable them to do without

one another. Man must now, therefore, have been perpetually employed in getting others to interest themselves in

his lot, and in making them, apparently at least, if not really, find their advantage in promoting his own. Thus he

must have been sly and artful in his behaviour to some, and imperious and cruel to others; being under a kind of

necessity to ill-use all the persons of whom he stood in need, when he could not frighten them into compliance,

and did not judge it his interest to be useful to them. Insatiable ambition, the thirst of raising their respective

fortunes, not so much from real want as from the desire to surpass others, inspired all men with a vile propensity

to injure one another, and with a secret jealousy, which is the more dangerous, as it puts on the mask of

benevolence, to carry its point with greater security. In a word, there arose rivalry and competition on the one

hand, and conflicting interests on the other, together with a secret desire on both of profiting at the expense of

others. All these evils were the first effects of property, and the inseparable attendants of growing inequality.

Before the invention of signs to represent riches, wealth could hardly consist in anything but lands and cattle, the

only real possessions men can have. But, when inheritances so increased in number and extent as to occupy the

whole of the land, and to border on one another, one man could aggrandise himself only at the expense of

another; at the same time the supernumeraries, who had been too weak or too indolent to make such acquisitions,

and had grown poor without sustaining any loss, because, while they saw everything change around them, they

remained still the same, were obliged to receive their subsistence, or steal it, from the rich; and this soon bred,

according to their different characters, dominion and slavery, or violence and rapine. The wealthy, on their part,

had no sooner begun to taste the pleasure of command, than they disdained all others, and, using their old slaves

to acquire new, thought of nothing but subduing and enslaving their neighbours; like ravenous wolves, which,

having once tasted human flesh, despise every other food and thenceforth seek only men to devour.

Thus, as the most powerful or the most miserable considered their might or misery as a kind of right to the

possessions of others, equivalent, in their opinion, to that of property, the destruction of equality was attended by

the most terrible disorders. Usurpations by the rich, robbery by the poor, and the unbridled passions of both,

suppressed the cries of natural compassion and the still feeble voice of justice, and filled men with avarice,

ambition and vice. Between the title of the strongest and that of the first occupier, there arose perpetual conflicts,

which never ended but in battles and bloodshed. The new-born state of society thus gave rise to a horrible state of

war; men thus harassed and depraved were no longer capable of retracing their steps or renouncing the fatal

acquisitions they had made, but, labouring by the abuse of the faculties which do them honour, merely to their

own confusion, brought themselves to the brink of ruin.

Attonitus novitate mali, divesque miserque,

Effugere optat opes; et quæ modo voverat odit.55

It is impossible that men should not at length have reflected on so wretched a situation, and on the calamities that

overwhelmed them. The rich, in particular, must have felt how much they suffered by a constant state of war, of

which they bore all the expense; and in which, though all risked their lives, they alone risked their property.

Besides, however speciously they might disguise their usurpations, they knew that they were founded on

precarious and false titles; so that, if others took from them by force what they themselves had gained by force,

they would have no reason to complain. Even those who had been enriched by their own industry, could hardly

base their proprietorship on better claims. It was in vain to repeat, “I built this well; I gained this spot by my

industry.” Who gave you your standing, it might be answered, and what right have you to demand payment of us

for doing what we never asked you to do? Do you not know that numbers of your fellow-creatures are starving,

for want of what you have too much of? You ought to have had the express and universal consent of mankind,

before appropriating more of the common subsistence than you needed for your own maintenance. Destitute of

valid reasons to justify and sufficient strength to defend himself, able to crush individuals with ease, but easily

crushed himself by a troop of bandits, one against all, and incapable, on account of mutual jealousy, of joining with

his equals against numerous enemies united by the common hope of plunder, the rich man, thus urged by

necessity, conceived at length the profoundest plan that ever entered the mind of man: this was to employ in his

favour the forces of those who attacked him, to make allies of his adversaries, to inspire them with different

maxims, and to give them other institutions as favourable to himself as the law of nature was unfavourable.

With this view, after having represented to his neighbours the horror of a situation which armed every man

against the rest, and made their possessions as burdensome to them as their wants, and in which no safety could

be expected either in riches or in poverty, he readily devised plausible arguments to make them close with his

design. “Let us join,” said he, “to guard the weak from oppression, to restrain the ambitious, and secure to every

man the possession of what belongs to him: let us institute rules of justice and peace, to which all without

exception may be obliged to conform; rules that may in some measure make amends for the caprices of fortune,

by subjecting equally the powerful and the weak to the observance of reciprocal obligations. Let us, in a word,

instead of turning our forces against ourselves, collect them in a supreme power which may govern us by wise

laws, protect and defend all the members of the association, repulse their common enemies, and maintain eternal

harmony among us.”

Far fewer words to this purpose would have been enough to impose on men so barbarous and easily seduced;

especially as they had too many disputes among themselves to do without arbitrators, and too much ambition and

avarice to go long without masters. All ran headlong to their chains, in hopes of securing their liberty; for they had

just wit enough to perceive the advantages of political institutions, without experience enough to enable them to

foresee the dangers. The most capable of foreseeing the dangers were the very persons who expected to benefit by

them; and even the most prudent judged it not inexpedient to sacrifice one part of their freedom to ensure the rest;

as a wounded man has his arm cut off to save the rest of his body.

Such was, or may well have been, the origin of society and law, which bound new fetters on the poor, and gave

new powers to the rich; which irretrievably destroyed natural liberty, eternally fixed the law of property and

inequality, converted clever usurpation into unalterable right, and, for the advantage of a few ambitious

individuals, subjected all mankind to perpetual labour, slavery and wretchedness. It is easy to see how the

establishment of one community made that of all the rest necessary, and how, in order to make head against united

forces, the rest of mankind had to unite in turn. Societies soon multiplied and spread over the face of the earth, till

hardly a corner of the world was left in which a man could escape the yoke, and withdraw his head from beneath

the sword which he saw perpetually hanging over him by a thread. Civil right having thus become the common

rule among the members of each community, the law of nature maintained its place only between different

communities, where, under the name of the right of nations, it was qualified by certain tacit conventions, in order

to make commerce practicable, and serve as a substitute for natural compassion, which lost, when applied to

societies, almost all the influence it had over individuals, and survived no longer except in some great

cosmopolitan spirits, who, breaking down the imaginary barriers that separate different peoples, follow the

example of our Sovereign Creator, and include the whole human race in their benevolence.

But bodies politic, remaining thus in a state of nature among themselves, presently experienced the

inconveniences which had obliged individuals to forsake it; for this state became still more fatal to these great

bodies than it had been to the individuals of whom they were composed. Hence arose national wars, battles,

murders, and reprisals, which shock nature and outrage reason; together with all those horrible prejudices which

class among the virtues the honour of shedding human blood. The most distinguished men hence learned to

consider cutting each other’s throats a duty; at length men massacred their fellow-creatures by thousands without

so much as knowing why, and committed more murders in a single day’s fighting, and more violent outrages in

the sack of a single town, than were committed in the state of nature during whole ages over the whole earth. Such

were the first effects which we can see to have followed the division of mankind into different communities. But

let us return to their institutions.

I know that some writers have given other explanations of the origin of political societies, such as the conquest of

the powerful, or the association of the weak. It is, indeed, indifferent to my argument which of these causes we

choose. That which I have just laid down, however, appears to me the most natural for the following reasons. First:

because, in the first case, the right of conquest, being no right in itself, could not serve as a foundation on which to

build any other; the victor and the vanquished people still remained with respect to each other in the state of war,

unless the vanquished, restored to the full possession of their liberty, voluntarily made choice of the victor for

their chief. For till then, whatever capitulation may have been made being founded on violence, and therefore ipso

facto void, there could not have been on this hypothesis either a real society or body politic, or any law other than

that of the strongest. Secondly: because the words strong and weak are, in the second case, ambiguous; for during

the interval between the establishment of a right of property, or prior occupancy, and that of political government,

the meaning of these words is better expressed by the terms rich and poor: because, in fact, before the institution

of laws, men had no other way of reducing their equals to submission, than by attacking their goods, or making

some of their own over to them. Thirdly: because, as the poor had nothing but their freedom to lose, it would have

been in the highest degree absurd for them to resign voluntarily the only good they still enjoyed, without getting

anything in exchange: whereas the rich having feelings, if I may so express myself, in every part of their

possessions, it was much easier to harm them, and therefore more necessary for them to take precautions against

it; and, in short, because it is more reasonable to suppose a thing to have been invented by those to whom it would

be of service, than by those whom it must have harmed.

James Madison

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George – Progress and Poverty George – Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

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Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

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Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

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Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

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Chapter V of Second Treatise of GovernmentChapter V of Second Treatise of Government

Of PropertyOf Property

24. Whether we consider natural reason, which tells us that men, being once born, have a right to their

preservation, and consequently to meat and drink and such other things as Nature affords for their subsistence, or

“revelation,” which gives us an account of those grants God made of the world to Adam, and to Noah and his sons,

it is very clear that God, as King David says (Psalm 115. 16), “has given the earth to the children of men,” given it to

mankind in common. But, this being supposed, it seems to some a very great difficulty how any one should ever

come to have a property in anything, I will not content myself to answer, that, if it be difficult to make out

“property” upon a supposition that God gave the world to Adam and his posterity in common, it is impossible that

any man but one universal monarch should have any “property” upon a supposition that God gave the world to

Adam and his heirs in succession, exclusive of all the rest of his posterity; but I shall endeavour to show how men

might come to have a property in several parts of that which God gave to mankind in common, and that without

any express compact of all the commoners.

25. God, who hath given the world to men in common, hath also given them reason to make use of it to the best

advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of

their being. And though all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as

they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of

the rest of mankind in any of them, as they are thus in their natural state, yet being given for the use of men, there

must of necessity be a means to appropriate them some way or other before they can be of any use, or at all

beneficial, to any particular men. The fruit or venison which nourishes the wild Indian, who knows no enclosure,

and is still a tenant in common, must be his, and so his- i.e., a part of him, that another can no longer have any

right to it before it can do him any good for the support of his life.

26. Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own

“person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may

say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath

mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by

him removed from the common state Nature placed it in, it hath by this labour something annexed to it that

excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no

man but he can have a right to what that is once joined to, at least where there is enough, and as good left in

common for others.

27. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the

wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when

did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home?

or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That

labour put a distinction between them and common. That added something to them more than Nature, the

common mother of all, had done, and so they became his private right. And will any one say he had no right to

those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was

it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary,

man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by

compact, that it is the taking any part of what is common, and removing it out of the state Nature leaves it in,

which begins the property, without which the common is of no use. And the taking of this or that part does not

depend on the express consent of all the commoners. Thus, the grass my horse has bit, the turfs my servant has

cut, and the ore I have digged in any place, where I have a right to them in common with others, become my

property without the assignation or consent of anybody. The labour that was mine, removing them out of that

common state they were in, hath fixed my property in them.

28. By making an explicit consent of every commoner necessary to any one’s appropriating to himself any part of

what is given in common. Children or servants could not cut the meat which their father or master had provided

for them in common without assigning to every one his peculiar part. Though the water running in the fountain

be every one’s, yet who can doubt but that in the pitcher is his only who drew it out? His labour hath taken it out of

the hands of Nature where it was common, and belonged equally to all her children, and hath thereby

appropriated it to himself.

29. Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods who hath

bestowed his labour upon it, though, before, it was the common right of every one. And amongst those who are

counted the civilised part of mankind, who have made and multiplied positive laws to determine property, this

original law of Nature for the beginning of property, in what was before common, still takes place, and by virtue

thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what

amber-gris any one takes up here is by the labour that removes it out of that common state Nature left it in, made

his property who takes that pains about it. And even amongst us, the hare that any one is hunting is thought his

who pursues her during the chase. For being a beast that is still looked upon as common, and no man’s private

possession, whoever has employed so much labour about any of that kind as to find and pursue her has thereby

removed her from the state of Nature wherein she was common, and hath begun a property.

30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to

them, then any one may engross as much as he will. To which I answer, Not so. The same law of Nature that does

by this means give us property, does also bound that property too. “God has given us all things richly.” Is the voice

of reason confirmed by inspiration? But how far has He given it us- “to enjoy”? As much as any one can make use

of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this

is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus

considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how

small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others,

especially keeping within the bounds set by reason of what might serve for his use, there could be then little room

for quarrels or contentions about property so established.

31. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the

earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is

acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so

much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right

to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the

consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind,

commanded man also to labour, and the penury of his condition required it of him. God and his reason

commanded him to subdue the earth- i.e., improve it for the benefit of life and therein lay out something upon it

that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of

it, thereby annexed to it something that was his property, which another had no title to, nor could without injury

take from him.

32. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there

was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never

the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of

does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he

took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land

and water, where there is enough of both, is perfectly the same.

33. God gave the world to men in common, but since He gave it them for their benefit and the greatest

conveniencies of life they were capable to draw from it, it cannot be supposed He meant it should always remain

common and uncultivated. He gave it to the use of the industrious and rational (and labour was to be his title to it);

not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement

as was already taken up needed not complain, ought not to meddle with what was already improved by another’s

labour; if he did it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground

which God had given him, in common with others, to labour on, and whereof there was as good left as that

already possessed, and more than he knew what to do with, or his industry could reach to.

34. It is true, in land that is common in England or any other country, where there are plenty of people under

government who have money and commerce, no one can enclose or appropriate any part without the consent of

all his fellow-commoners; because this is left common by compact- i.e., by the law of the land, which is not to be

violated. And, though it be common in respect of some men, it is not so to all mankind, but is the joint propriety of

this country, or this parish. Besides, the remainder, after such enclosure, would not be as good to the rest of the

commoners as the whole was, when they could all make use of the whole; whereas in the beginning and first

peopling of the great common of the world it was quite otherwise. The law man was under was rather for

appropriating. God commanded, and his wants forced him to labour. That was his property, which could not be

taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we

see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so

far to appropriate. And the condition of human life, which requires labour and materials to work on, necessarily

introduce private possessions.

35. The measure of property Nature well set, by the extent of men’s labour and the conveniency 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 entrench 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 (after the other had

taken out his) as before it was appropriated. Which measure did confine every man’s possession to a very

moderate proportion, and such as he might appropriate to himself without injury to anybody in the first ages of

the world, when men were more in danger to be lost, by wandering from their company, in the then vast

wilderness of the earth than to be straitened for want of room to plant in.

36. The same measure may be allowed still, without prejudice to anybody, full as the world seems. For, supposing a

man or family, in the state they were at first, peopling of the world by the children of Adam or Noah, let him plant

in some inland vacant places of America. We shall find that the possessions he could make himself, upon the

measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind or give them

reason to complain or think themselves injured by this man’s encroachment, though the race of men have now

spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning.

Nay, the extent of ground is of so little value without labour that I have heard it affirmed that in Spain itself a man

may be permitted to plough, sow, and reap, without being disturbed, upon land he has no other title to, but only

his making use of it. But, on the contrary, the inhabitants think themselves beholden to him who, by his industry

on neglected, and consequently waste land, has increased the stock of corn, which they wanted. But be this as it

will, which I lay no stress on, this I dare boldly affirm, that the same rule of propriety- viz., that every man should

have as much as he could make use of, would hold still in the world, without straitening anybody, since there is

land enough in the world to suffice double the inhabitants, had not the invention of money, and the tacit

agreement of men to put a value on it, introduced (by consent) larger possessions and a right to them; which, how

it has done, I shall by and by show more at large.

37. This is certain, that in the beginning, before the desire of having more than men needed had altered the

intrinsic value of things, which depends only on their usefulness to the life of man, or had agreed that a little piece

of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh or a whole

heap of corn, though men had a right to appropriate by their labour, each one to himself, as much of the things of

Nature as he could use, yet this could not be much, nor to the prejudice of others, where the same plenty was still

left, to those who would use the same industry.

Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed as many of

the beasts as he could- he that so employed his pains about any of the spontaneous products of Nature as any way

to alter them from the state Nature put them in, by placing any of his labour on them, did thereby acquire a

propriety in them; but if they perished in his possession without their due use- if the fruits rotted or the venison

putrefied before he could spend it, he offended against the common law of Nature, and was liable to be punished:

he invaded his neighbour’s share, for he had no right farther than his use called for any of them, and they might

serve to afford him conveniencies of life.

38. The same measures governed the possession of land, too. Whatsoever he tilled and reaped, laid up and made

use of before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed and make use of, the

cattle and product was also his. But if either the grass of his enclosure rotted on the ground, or the fruit of his

planting perished without gathering and laying up, this part of the earth, notwithstanding his enclosure, was still

to be looked on as waste, and might be the possession of any other. Thus, at the beginning, Cain might take as

much ground as he could till and make it his own land, and yet leave enough to Abel’s sheep to feed on: a few acres

would serve for both their possessions. But as families increased and industry enlarged their stocks, their

possessions enlarged with the need of them; but yet it was commonly without any fixed property in the ground

they made use of till they incorporated, settled themselves together, and built cities, and then, by consent, they

came in time to set out the bounds of their distinct territories and agree on limits between them and their

neighbours, and by laws within themselves settled the properties of those of the same society. For we see that in

that part of the world which was first inhabited, and therefore like to be best peopled, even as low down as

Abraham’s time, they wandered with their flocks and their herds, which was their substance, freely up and down-

and this Abraham did in a country where he was a stranger; whence it is plain that, at least, a great part of the land

lay in common, that the inhabitants valued it not, nor claimed property in any more than they made use of; but

when there was not room enough in the same place for their herds to feed together, they, by consent, as Abraham

and Lot did (Gen. xiii. 5), separated and enlarged their pasture where it best liked them. And for the same reason,

Esau went from his father and his brother, and planted in MountSeir (Gen. 36. 6).

39. And thus, without supposing any private dominion and property in Adam over all the world, exclusive of all

other men, which can no way be proved, nor any one’s property be made out from it, but supposing the world,

given as it was to the children of men in common, we see how labour could make men distinct titles to several

parcels of it for their private uses, wherein there could be no doubt of right, no room for quarrel.

40. Nor is it so strange as, perhaps, before consideration, it may appear, that the property of labour should be able

to overbalance the community of land, for it is labour indeed that puts the difference of value on everything; and

let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with

wheat or barley, and an acre of the same land lying in common without any husbandry upon it, and he will find

that the improvement of labour makes the far greater part of the value. I think it will be but a very modest

computation to say, that of the products of the earth useful to the life of man, nine-tenths are the effects of labour.

Nay, if we will rightly estimate things as they come to our use, and cast up the several expenses about them- what

in them is purely owing to Nature and what to labour- we shall find that in most of them ninety-nine hundredths

are wholly to be put on the account of labour.

41. There cannot be a clearer demonstration of anything than several nations of the Americans are of this, who are

rich in land and poor in all the comforts of life; whom Nature, having furnished as liberally as any other people

with the materials of plenty- i.e., a fruitful soil, apt to produce in abundance what might serve for food, raiment,

and delight; yet, for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy,

and a king of a large and fruitful territory there feeds, lodges, and is clad worse than a day labourer in England.

42. To make this a little clearer, let us but trace some of the ordinary provisions of life, through their several

progresses, before they come to our use, and see how much they receive of their value from human industry.

Bread, wine, and cloth are things of daily use and great plenty; yet notwithstanding acorns, water, and leaves, or

skins must be our bread, drink and clothing, did not labour furnish us with these more useful commodities. For

whatever bread is more worth than acorns, wine than water, and cloth or silk than leaves, skins or moss, that is

wholly owing to labour and industry. The one of these being the food and raiment which unassisted Nature

furnishes us with; the other provisions which our industry and pains prepare for us, which how much they exceed

the other in value, when any one hath computed, he will then see how much labour makes the far greatest part of

the value of things we enjoy in this world; and the ground which produces the materials is scarce to be reckoned

in as any, or at most, but a very small part of it; so little, that even amongst us, land that is left wholly to nature, that

hath no improvement of pasturage, tillage, or planting, is called, as indeed it is, waste; and we shall find the benefit

of it amount to little more than nothing.

43. An acre of land that bears here twenty bushels of wheat, and another in America, which, with the same

husbandry, would do the like, are, without doubt, of the same natural, intrinsic value. But yet the benefit mankind

receives from one in a year is worth five pounds, and the other possibly not worth a penny; if all the profit an

Indian received from it were to be valued and sold here, at least I may truly say, not one thousandth. It is labour,

then, which puts the greatest part of value upon land, without which it would scarcely be worth anything; it is to

that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is

more worth than the product of an acre of as good land which lies waste is all the effect of labour. For it is not

barely the ploughman’s pains, the reaper’s and thresher’s toil, and the baker’s sweat, is to be counted into the bread

we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and

framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite

to this corn, from its sowing to its being made bread, must all be charged on the account of labour, and received as

an effect of that; Nature and the earth furnished only the almost worthless materials as in themselves. It would be a

strange catalogue of things that industry provided and made use of about every loaf of bread before it came to our

use if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dyeing-drugs, pitch,

tar, masts, ropes, and all the materials made use of in the ship that brought any of the commodities made use of by

any of the workmen, to any part of the work, all which it would be almost impossible, at least too long, to reckon

up.

44. From all which it is evident, that though the things of Nature are given in common, man (by being master of

himself, and proprietor of his own person, and the actions or labour of it) had still in himself the great foundation

of property; and that which made up the great part of what he applied to the support or comfort of his being,

when invention and arts had improved the conveniences of life, was perfectly his own, and did not belong in

common to others.

45. Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it, upon what

was common, which remained a long while, the far greater part, and is yet more than mankind makes use of Men

at first, for the most part, contented themselves with what unassisted Nature offered to their necessities; and

though afterwards, in some parts of the world, where the increase of people and stock, with the use of money, had

made land scarce, and so of some value, the several communities settled the bounds of their distinct territories,

and, by laws, within themselves, regulated the properties of the private men of their society, and so, by compact

and agreement, settled the property which labour and industry began. And the leagues that have been made

between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the

other’s possession, have, by common consent, given up their pretences to their natural common right, which

originally they had to those countries; and so have, by positive agreement, settled a property amongst themselves,

in distinct parts of the world; yet there are still great tracts of ground to be found, which the inhabitants thereof,

not having joined with the rest of mankind in the consent of the use of their common money, lie waste, and are

more than the people who dwell on it, do, or can make use of, and so still lie in common; though this can scarce

happen amongst that part of mankind that have consented to the use of money.

46. The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first

commoners of the world look after- as it doth the Americans now- are generally things of short duration, such as-

if they are not consumed by use- will decay and perish of themselves. Gold, silver, and diamonds are things that

fancy or agreement hath put the value on, more than real use and the necessary support of life. Now of those good

things which Nature hath provided in common, every one hath a right (as hath been said) to as much as he could

use; and had a property in all he could effect with his labour; all that his industry could extend to, to alter from the

state Nature had put it in, was his. He that gathered a hundred bushels of acorns or apples had thereby a property

in them; they were his goods as soon as gathered. He was only to look that he used them before they spoiled, else

he took more than his share, and robbed others. And, indeed, it was a foolish thing, as well as dishonest, to hoard

up more than he could make use of If he gave away a part to anybody else, so that it perished not uselessly in his

possession, these he also made use of And if he also bartered away plums that would have rotted in a week, for

nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed

no part of the portion of goods that belonged to others, so long as nothing perished uselessly in his hands. Again, if

he would give his nuts for a piece of metal, pleased with its colour, or exchange his sheep for shells, or wool for a

sparkling pebble or a diamond, and keep those by him all his life, he invaded not the right of others; he might heap

up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the

largeness of his possession, but the perishing of anything uselessly in it.

47. And thus came in the use of money; some lasting thing that men might keep without spoiling, and that, by

mutual consent, men would take in exchange for the truly useful but perishable supports of life.

48. And as different degrees of industry were apt to give men possessions in different proportions, so this

invention of money gave them the opportunity to continue and enlarge them. For supposing an island, separate

from all possible commerce with the rest of the world, wherein there were but a hundred families, but there were

sheep, horses, and cows, with other useful animals, wholesome fruits, and land enough for corn for a hundred

thousand times as many, but nothing in the island, either because of its commonness or perishableness, fit to

supply the place of money. What reason could any one have there to enlarge his possessions beyond the use of his

family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter

for like perishable, useful commodities with others? Where there is not something both lasting and scarce, and so

valuable to be hoarded up, there men will not be apt to enlarge their possessions of land, were it never so rich,

never so free for them to take. For I ask, what would a man value ten thousand or an hundred thousand acres of

excellent land, ready cultivated and well stocked, too, with cattle, in the middle of the inland parts of America,

where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the

product? It would not be worth the enclosing, and we should see him give up again to the wild common of Nature

whatever was more than would supply the conveniences of life, to be had there for him and his family.

49. Thus, in the beginning, all the world was America, and more so than that is now; for no such thing as money

was anywhere known. Find out something that hath the use and value of money amongst his neighbours, you

shall see the same man will begin presently to enlarge his possessions.

50. But, since gold and silver, being little useful to the life of man, in proportion to food, raiment, and carriage, has

its value only from the consent of men- whereof labour yet makes in great part the measure- it is plain that the

consent of men have agreed to a disproportionate and unequal possession of the earth- I mean out of the bounds

of society and compact; for in governments the laws regulate it; they having, by consent, found out and agreed in a

way how a man may, rightfully and without injury, possess more than he himself can make use of by receiving

gold and silver, which may continue long in a man’s possession without decaying for the overplus, and agreeing

those metals should have a value.

51. And thus, I think, it is very easy to conceive, without any difficulty, how labour could at first begin a title of

property in the common things of Nature, and how the spending it upon our uses bounded it; so that there could

then be no reason of quarrelling about title, nor any doubt about the largeness of possession it gave. Right and

conveniency went together. For as a man had a right to all he could employ his labour upon, so he had no

temptation to labour for more than he could make use of. This left no room for controversy about the title, nor for

encroachment on the right of others. What portion a man carved to himself was easily seen; and it was useless, as

well as dishonest, to carve himself too much, or take more than he needed.

James Madison

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Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

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Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

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Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

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John Stuart Mill

Principles of Political Economy

Book II, Chap. 1

If, therefore, the choice were to be made between Communism with all its chances, and
the present [1852] state of society with all its sufferings and injustices; if the institution
of private property necessarily carried with it as a consequence, that the produce of
labour should be apportioned as we now see it, almost in an inverse ratio to the labour
—the largest portions to those who have never worked at all, the next largest to those
whose work is almost nominal, and so in a descending scale, the remuneration
dwindling as the work grows harder and more disagreeable, until the most fatiguing
and exhausting bodily labour cannot count with certainty on being able to earn even
the necessaries of life; if this or Communism were the alternative, all the difficulties,
great or small, of Communism would be but as dust in the balance. But to make the
comparison applicable, we must compare Communism at its best, with the régime of
individual property, not as it is, but as it might be made. The principle of private
property has never yet had a fair trial in any country; and less so, perhaps, in this
country than in some others. The social arrangements of modern Europe commenced
from a distribution of property which was the result, not of just partition, or
acquisition by industry, but of conquest and violence: and notwithstanding what
industry has been doing for many centuries to modify the work of force, the system
still retains many and large traces of its origin. The laws of property have never yet
conformed to the principles on which the justification of private property rests. They
have made property of things which never ought to be property, and absolute property
where only a qualified property ought to exist. They have not held the balance fairly
between human beings, but have heaped impediments upon some, to give advantage to
others; they have purposely fostered inequalities, and prevented all from starting fair
in the race. That all should indeed start on perfectly equal terms, is inconsistent with
any law of private property: but if as much pains as has been taken to aggravate the
inequality of chances arising from the natural working of the principle, had been taken
to temper that inequality by every means not subversive of the principle itself; if the
tendency of legislation had been to favour the diffusion, instead of the concentration of
wealth—to encourage the subdivision of the large masses, instead of striving to keep
them together; the principle of individual property would have been found to have no
necessary connexion with the physical and social evils which almost all Socialist
writers assume to be inseparable from it.

Private property, in every defence made of it, is supposed to mean the guarantee to
individuals of the fruits of their own labour and abstinence. The guarantee to them of
the fruits of the labour and abstinence of others, transmitted to them without any merit
or exertion of their own, is not of the essence of the institution, but a mere incidental
consequence, which, when it reaches a certain height, does not promote, but conflicts
with, the ends which render private property legitimate. To judge of the final
destination of the institution of property, we must suppose everything rectified, which
causes the institution to work in a manner opposed to that equitable principle, of
proportion between remuneration and exertion, on which in every vindication of it
that will bear the light, it is assumed to be grounded. We must also suppose two
conditions realized, without which neither Communism nor any other laws or
institutions could make the condition of the mass of mankind other than degraded and
miserable. One of these conditions is universal education; the other, a due limitation of
the numbers of the community. With these there could be no poverty, even under the
present social institutions: and these being supposed, the question of Socialism is not,
as generally stated by Socialists, a question of flying to the sole refuge against the evils
which now bear down humanity; but a mere question of comparative advantages,
which futurity must determine. We are too ignorant either of what individual agency in
its best form, or Socialism in its best form, can accomplish, to be qualified to decide
which of the two will be the ultimate form of human society.

If a conjecture may be hazarded, the decision will probably depend mainly on one
consideration, viz. which of the two systems is consistent with the greatest amount of
human liberty and spontaneity. After the means of subsistence are assured, the next in
strength of the personal wants of human beings is liberty; and (unlike the physical
wants, which as civilization advances become more moderate and more amenable to
control) it increases instead of diminishing in intensity, as the intelligence and the
moral faculties are more developed. The perfection both of social arrangements and of
practical morality would be, to secure to all persons complete independence and
freedom of action, subject to no restriction but that of not doing injury to others: and
the education which taught or the social institutions which required them to exchange
the control of their own actions for any amount of comfort or affluence, or to
renounce liberty for the sake of equality, would deprive them of one of the most
elevated characteristics of human nature. It remains to be discovered how far the
preservation of this characteristic would be found compatible with the Communistic
organization of society. No doubt, this, like all the other objections to the Socialist
schemes, is vastly exaggerated. The members of the association need not be required to
live together more than they do now, nor need they be controlled in the disposal of
their individual share of the produce, and of the probably large amount of leisure
which, if they limited their production to things really worth producing, they would
possess. Individuals need not be chained to an occupation, or to a particular locality.
The restraints of Communism would be freedom in comparison with the present
condition of the majority of the human race. The generality of labourers in this and
most other countries, have as little choice of occupation or freedom of locomotion, are
practically as dependent on fixed rules and on the will of others, as they could be on
any system short of actual slavery; to say nothing of the entire domestic subjection of
one half the species, to which it is the signal honour of Owenism and most other forms
of Socialism that they assign equal rights, in all respects, with those of the hitherto
dominant sex. But it is not by comparison with the present bad state of society that the
claims of Communism can be estimated; nor is it sufficient that it should promise
greater personal and mental freedom than is now enjoyed by those who have not
enough of either to deserve the name. The question is, whether there would be any
asylum left for individuality of character; whether public opinion would not be a
tyrannical yoke; whether the absolute dependence of each on all, and surveillance of
each by all, would not grind all down into a tame uniformity of thoughts, feelings, and
actions. This is already one of the glaring evils of the existing state of society,
notwithstanding a much greater diversity of education and pursuits, and a much less
absolute dependence of the individual on the mass, than would exist in the
Communistic régime. No society in which eccentricity is a matter of reproach, can be
in a wholesome state. It is yet to be ascertained whether the Communistic scheme
would be consistent with that multiform development of human nature, those
manifold unlikenesses, that diversity of tastes and talents, and variety of intellectual
points of view, which not only form a great part of the interest of human life, but by
bringing intellects into stimulating collision, and by presenting to each innumerable
notions that he would not have conceived of himself, are the mainspring of mental and
moral progression.

Book 2, Chapter 2

§1. It is next to be considered, what is included in the idea of private property, and by
what considerations the application of the principle should be bounded.

The institution of property, when limited to its essential elements, consists in the
recognition, in each person, of a right to the exclusive disposal of what he or she have
produced by their own exertions, or received either by gift or by 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, to the institution as it now exists, that it 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 while 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 may indeed have
been wrongfully dispossessed of it, but who, in the present age of the world, much
more probably transferred his claims to the present capitalist by gift or voluntary
contract: and the abstinence at least must have been continued by each successive
owner, down to the present. If it be said, as it may with truth, that those who have
inherited the savings of others have an advantage which they may have in no way
deserved, over the industrious whose predecessors have not left them anything; I not
only admit, but strenuously contend, that this unearned advantage should be curtailed,
as much as is consistent with justice to those who thought fit to dispose of their savings
by giving them to their descendants. But while it is true that the labourers are at a
disadvantage compared with those whose predecessors have saved, it is also true that
the labourers are far better off than if those predecessors had not saved. They share in
the advantage, though not to an equal extent with the inheritors. The terms of co-
operation between present labour and the fruits of past labour and saving, are a subject
for adjustment between the two parties. Each is necessary to the other. The capitalists
can do nothing without labourers, nor the labourers without capital. 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. Competition is often spoken of as if it
were necessarily a cause of misery and degradation to the labouring class; as if high
wages were not precisely as much a product of competition as low wages. The
remuneration of labour is as much the result of the law of competition in the United
States, as it is in Ireland, and much more completely so than in England.

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; 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.

§2. 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, should 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 lapse of time
witnesses must have perished or been lost sight of, and the real character of the
transaction can no longer be cleared up. Possession which has not been legally
questioned within a moderate number of years, ought to be, as by the laws of all
nations it is, a complete title. Even when the acquisition was wrongful, the
dispossession, after a generation has elapsed, of the probably bonâ fide possessors, by
the revival of a claim which had been long dormant, would generally be a greater
injustice, and almost always a greater private and public mischief, than leaving the
original wrong without atonement. It may seem hard that a claim, originally just,
should be defeated by mere lapse of time; but there is a time after which (even looking
at the individual case, and without regard to the general effect on the security of
possessors), the balance of hardship turns the other way. With the injustices of men, as
with the convulsions and disasters of nature, the longer they remain unrepaired, the
greater become the obstacles to repairing them, arising from the aftergrowths which
would have to be torn up or broken through. In no human transactions, not even in the
simplest and clearest, does it follow that a thing is fit to be done now, because it was fit
to be done sixty years ago. It is scarcely needful to remark, that these reasons for not
disturbing acts of injustice of old date, cannot apply to unjust systems or institutions;
since a bad law or usage is not one bad act, in the remote past, but a perpetual
repetition of bad acts, as long as the law or usage lasts.

Such, then, being the essentials of private property, it is now to be considered, to what
extent the forms in which the institution has existed in different states of society, or
still exists, are necessary consequences of its principle, or are recommended by the
reasons on which it is grounded.

§3. Nothing is implied in property but the right of each to his (or her) own faculties, to
what he can produce by them, and to whatever he can get for them in a fair market;
together with his right to give this to any other person if he chooses, and the right of
that other to receive and enjoy it.

It follows, therefore, that although the right of bequest, or gift after death, forms part of
the idea of private property, the right of inheritance, as distinguished from bequest,
does not. That the property of persons who have made no disposition of it during their
lifetime, should pass first to their children, and failing them, to the nearest relations,
may be a proper arrangement or not, but is no consequence of the principle of private
property. Although there belong to the decision of such questions many considerations
besides those of political economy, it is not foreign to the plan of this work to suggest,
for the judgment of thinkers, the view of them which most recommends itself to the
writer’s mind.

. . .

A provision, then, such as is admitted to be reasonable in the case of illegitimate
children, for younger children, wherever in short the justice of the case, and the real
interests of the individuals and of society, are the only things considered, is, I conceive,
all that parents owe to their children, and all, therefore, which the State owes to the
children of those who die intestate. The surplus, if any, I hold that it may rightfully
appropriate to the general purposes of the community. I would not, however, be
supposed to recommend that parents should never do more for their children than
what, merely as children, they have a moral right to. In some cases it is imperative, in
many laudable, and in all allowable, to do much more. For this, however, the means are
afforded by the liberty of bequest. It is due, not to the children but to the parents, that
they should have the power of showing marks of affection, of requiting services and
sacrifices, and of bestowing their wealth according to their own preferences, or their
own judgment of fitness.

§4. Whether the power of bequest should itself be subject to limitation, is an ulterior
question of great importance. Unlike inheritance ab intestato, bequest is one of the
attributes of property: the ownership of a thing cannot be looked upon as complete
without the power of bestowing it, at death or during life, at the owner’s pleasure: and
all the reasons, which recommend that private property should exist, recommend pro
tanto this extension of it. But property is only a means to an end, not itself the end. Like
all other proprietary rights, and even in a greater degree than most, the power of
bequest may be so exercised as to conflict with the permanent interests of the human
race. It does so, when, not content with bequeathing an estate to A, the testator
prescribes that on A’s death it shall pass to his eldest son, and to that son’s son, and so
on for ever. No doubt, persons have occasionally exerted themselves more strenuously
to acquire a fortune from the hope of founding a family in perpetuity; but the mischiefs
to society of such perpetuities outweigh the value of this incentive to exertion, and the
incentives in the case of those who have the opportunity of making large fortunes are
strong enough without it. A similar abuse of the power of bequest is committed when a
person who does the meritorious act of leaving property for public uses, attempts to
prescribe the details of its application in perpetuity; when in founding a place of
education (for instance) he dictates, for ever, what doctrines shall be taught. It being
impossible that any one should know what doctrines will be fit to be taught after he has
been dead for centuries, the law ought not to give effect to such dispositions of
property, unless subject to the perpetual revision (after a certain interval has elapsed)
of a fitting authority.

These are obvious limitations. But even the simplest exercise of the right of bequest,
that of determining the person to whom property shall pass immediately on the death
of the testator, has always been reckoned among the privileges which might be limited
or varied, according to views of expediency. The limitations, hitherto, have been
almost solely in favour of children. In England the right is in principle unlimited,
almost the only impediment being that arising from a settlement by a former
proprietor, in which case the holder for the time being cannot indeed bequeath his
possessions, but only because there is nothing to bequeath, he having merely a life
interest. By the Roman law, on which the civil legislation of the Continent of Europe is
principally founded, bequest originally was not permitted at all, and even after it was
introduced, a legitima portio was compulsorily reserved for each child; and such is still
the law in some of the Continental nations. By the French law since the Revolution, the
parent can only dispose by will, of a portion equal to the share of one child, each of the
children taking an equal portion. This entail, as it may be called, of the bulk of every
one’s property upon the children collectively, seems to me as little defensible in
principle as an entail in favour of one child, though it does not shock so directly the
idea of justice. I cannot admit that parents should be compelled to leave to their
children even that provision which, as children, I have contended that they have a
moral claim to. Children may forfeit that claim by general unworthiness, or particular
ill-conduct to the parents: they may have other resources or prospects: what has been
previously done for them, in the way of education and advancement in life, may fully
satisfy their moral claim; or others may have claims superior to theirs.

The extreme restriction of the power of bequest in French law, was adopted as a
democratic expedient, to break down the custom of primogeniture, and counteract the
tendency of inherited property to collect in large masses. I agree in thinking these
objects eminently desirable; but the means used are not, I think, the most judicious.
Were I framing a code of laws according to what seems to me best in itself, without
regard to existing opinions and sentiments, I should prefer to restrict, not what any one
might bequeath, but what any one should be permitted to acquire, by bequest or
inheritance. Each person should have power to dispose by will of his or her whole
property; but not to lavish it in enriching some one individual, beyond a certain
maximum, which should be fixed sufficiently high to afford the means of comfortable
independence. The inequalities of property which arise from unequal industry,
frugality, perseverance, talents, and to a certain extent even opportunities, are
inseparable from the principle of private property, and if we accept the principle, we
must bear with these consequences of it: but I see nothing objectionable in fixing a
limit to what any one may acquire by the mere favour of others, without any exercise
of his faculties, and in requiring that if he desires any further accession of fortune, he
shall work for it. I do not conceive that the degree of limitation which this would
impose on the right of bequest, would be felt as a burthensome restraint by any testator
who estimated a large fortune at its true value, that of the pleasures and advantages
that can be purchased with it: on even the most extravagant estimate of which, it must
be apparent to every one, that the difference to the happiness of the possessor between
a moderate independence and five times as much, is insignificant when weighed
against the enjoyment that might be given, and the permanent benefits diffused, by
some other disposal of the four-fifths. So long indeed as the opinion practically
prevails, that the best thing which can be done for objects of affection is to heap on
them to satiety those intrinsically worthless things on which large fortunes are mostly
expended, there might be little use in enacting such a law, even if it were possible to get
it passed, since if there were the inclination, there would generally be the power of
evading it. The law would be unavailing unless the popular sentiment went
energetically along with it; which (judging from the tenacious adherence of public
opinion in France to the law of compulsory division) it would in some states of society
and government be very likely to do, however much the contrary may be the fact in
England and at the present time. If the restriction could be made practically effectual,
the benefit would be great. Wealth which could no longer be employed in over-
enriching a few, would either be devoted to objects of public usefulness, or if bestowed
on individuals, would be distributed among a larger number. While those enormous
fortunes which no one needs for any personal purpose but ostentation or improper
power, would become much less numerous, there would be a great multiplication of
persons in easy circumstances, with the advantages of leisure, and all the real
enjoyments which wealth can give, except those of vanity; a class by whom the services
which a nation having leisured classes is entitled to expect from them, either by their
direct exertions or by the tone they give to the feelings and tastes of the public, would
be rendered in a much more beneficial manner than at present. A large portion also of
the accumulations of successful industry would probably be devoted to public uses,
either by direct bequests to the State, or by the endowment of institutions; as is already
done very largely in the United States, where the ideas and practice in the matter of
inheritance seem to be unusually rational and beneficial.

II.2.20

§5. The next point to be considered is, whether the reasons on which the institution of
property rests are applicable to all things in which a right of exclusive ownership is at
present recognised; and if not, on what other grounds the recognition is defensible.

II.2.21

The essential principle of property being to assure to all persons what they have
produced by their labour and accumulated by their abstinence, this principle cannot
apply to what is not the produce of labour, the raw material of the earth. If the land
derived its productive power wholly from nature, and not at all from industry, or if
there were any means of discriminating what is derived from each source, it not only
would not be necessary, but it would be the height of injustice, to let the gift of nature
be engrossed by individuals. The use of the land in agriculture must indeed, for the
time being, be of necessity exclusive; the same person who has ploughed and sown
must be permitted to reap: but the land might be occupied for one season only, as
among the ancient Germans; or might be periodically redivided as population
increased: or the State might be the universal landlord, and the cultivators tenants
under it, either on lease or at will.

But though land is not the produce of industry, most of its valuable qualities are so.
Labour is not only requisite for using, but almost equally so for fashioning, the
instrument. Considerable labour is often required at the commencement, to clear the
land for cultivation. In many cases, even when cleared, its productiveness is wholly the
effect of labour and art. The Bedford Level produced little or nothing until artificially
drained. The bogs of Ireland, until the same thing is done to them, can produce little
besides fuel. One of the barrenest soils in the world, composed of the material of the
Goodwin Sands, the Pays de Waes in Flanders, has been so fertilized by industry, as to
have become one of the most productive in Europe. Cultivation also requires buildings
and fences, which are wholly the produce of labour. The fruits of this industry cannot
be reaped in a short period. The labour and outlay are immediate, the benefit is spread
over many years, perhaps over all future time. A holder will not incur this labour and
outlay when strangers and not himself will be benefited by it. If he undertakes such
improvements, he must have a sufficient period before him in which to profit by them:
and he is in no way so sure of having always a sufficient period as when his tenure is
perpetual.

§6. These are the reasons which form the justification in an economical point of view,
of property in land. It is seen, that they are only valid, in so far as the proprietor of land
is its improver. Whenever, in any country, the proprietor, generally speaking, ceases to
be the improver, political economy has nothing to say in defence of landed property, as
there established. In no sound theory of private property was it ever contemplated that
the proprietor of land should be merely a sinecurist quartered on it.

II.2.24

In Great Britain, the landed proprietor is not unfrequently an improver. But it cannot
be said that he is generally so. And in the majority of cases he grants the liberty of
cultivation [1848] on such terms, as to prevent improvements from being made by any
one else.

. . .

Landed property in England is thus very far from completely fulfilling the conditions
which render its existence economically justifiable. But if insufficiently realized even in
England, in Ireland those conditions are [1848] not complied with at all. With individual
exceptions (some of them very honourable ones), the owners of Irish estates do
nothing for the land but drain it of its produce. What has been epigrammatically said in
the discussions on “peculiar burthens” is literally true when applied to them; that the
greatest “burthen on land” is the landlords. Returning nothing to the soil, they consume
its whole produce, minus the potatoes strictly necessary to keep the inhabitants from
dying of famine; and when they have any purpose of improvement, the preparatory
step usually consists in not leaving even this pittance, but turning out the people to
beggary if not to starvation. When landed property has placed itself upon this footing it
ceases to be defensible, and the time has come for making some new arrangement of
the matter.

When the “sacredness of property” is talked of, it should always be remembered, that
any such sacredness does not belong in the same degree to landed property. No man
made the land. It is the original inheritance of the whole species. Its appropriation is
wholly a question of general expediency. When private property in land is not
expedient, it is unjust. It is no hardship to any one to be excluded from what others
have produced: they were not bound to produce it for his use, and he loses nothing by
not sharing in what otherwise would not have existed at all. But it is some hardship to
be born into the world and to find all nature’s gifts previously engrossed, and no place
left for the new-comer. To reconcile people to this, after they have once admitted into
their minds the idea that any moral rights belong to them as human beings, it will
always be necessary to convince them that the exclusive appropriation is good for
mankind on the whole, themselves included. But this is what no sane human being
could be persuaded of, if the relation between the landowner and the cultivator were
the same everywhere as it has been in Ireland.

Landed property is felt, even by those most tenacious of its rights, to be a different
thing from other property; and where the bulk of the community have been
disinherited of their share of it, and it has become the exclusive attribute of a small
minority, men have generally tried to reconcile it, at least in theory, to their sense of
justice, by endeavouring to attach duties to it, and erecting it into a sort of magistracy,
either moral or legal. But if the state is at liberty to treat the possessors of land as public
functionaries, it is only going one step further to say, that it is at liberty to discard them.
The claim of the landowners to the land is altogether subordinate to the general policy
of the state. The principle of property gives them no right to the land, but only a right
to compensation for whatever portion of their interest in the land it may be the policy
of the state to deprive them of. To that, their claim is indefeasible. It is due to
landowners, and to owners of any property whatever, recognised as such by the state,
that they should not be dispossessed of it without receiving its pecuniary value, or an
annual income equal to what they derived from it. This is due on the general principles
on which property rests. If the land was bought with produce of the labour and
abstinence of themselves or their ancestors, compensation is due to them on that
ground; even if otherwise, it is still due on ground of prescription. Nor can it ever be
necessary for accomplishing an object by which the community altogether will gain,
that a particular portion of the community should be immolated. When the property is
of a kind to which peculiar affections attach themselves, the compensation ought to
exceed a bare pecuniary equivalent. But, subject to this proviso, the state is at liberty to
deal with landed property as the general interests of the community may require, even
to the extent, if it so happen, of doing with the whole, what is done with a part
whenever a bill is passed for a railroad or a new street. The community has too much
at stake in the proper cultivation of the land, and in the conditions annexed to the
occupancy of it, to leave these things to the discretion of a class of persons called
landlords, when they have shown themselves unfit for the trust. The legislature, which
if it pleased might convert the whole body of landlords into fundholders or pensioners,
might, à fortiori, commute the average receipts of Irish landowners into a fixed rent
charge, and raise the tenants into proprietors; supposing always that the full market
value of the land was tendered to the landlords, in case they preferred that to accepting
the conditions proposed.

There will be another place for discussing the various modes of landed property and
tenure, and the advantages and inconveniences of each; in this chapter our concern is
with the right itself, the grounds which justify it, and (as a corollary from these) the
conditions by which it should be limited. To me it seems almost an axiom that property
in land should be interpreted strictly, and that the balance in all cases of doubt should
incline against the proprietor. The reverse is the case with property in moveables, and
in all things the product of labour: over these, the owner’s power both of use and of
exclusion should be absolute, except where positive evil to others would result from it:
but in the case of land, no exclusive right should be permitted in any individual, which
cannot be shown to be productive of positive good. To be allowed any exclusive right at
all, over a portion of the common inheritance, while there are others who have no
portion, is already a privilege. No quantity of moveable goods which a person can
acquire by his labour, prevents others from acquiring the like by the same means; but
from the very nature of the case, whoever owns land, keeps others out of the
enjoyment of it. The privilege, or monopoly, is only defensible as a necessary evil; it
becomes an injustice when carried to any point to which the compensating good does
not follow it.

II.2.29

For instance, the exclusive right to the land for purposes of cultivation does not imply
an exclusive right to it for purposes of access; and no such right ought to be recognised,
except to the extent necessary to protect the produce against damage, and the owner’s
privacy against invasion. The pretension of two Dukes [1848] to shut up a part of the
Highlands, and exclude the rest of mankind from many square miles of mountain
scenery to prevent disturbance to wild animals, is an abuse; it exceeds the legitimate
bounds of the right of landed property. When land is not intended to be cultivated, no
good reason can in general be given for its being private property at all; and if any one
is permitted to call it his, he ought to know that he holds it by sufferance of the
community, and on an implied condition that his ownership, since it cannot possibly
do them any good, at least shall not deprive them of any, which they could have
derived from the land if it had been unappropriated. Even in the case of cultivated land,
a man whom, though only one among millions, the law permits to hold thousands of
acres as his single share, is not entitled to think that all this is given to him to use and
abuse, and deal with as if it concerned nobody but himself. The rents or profits which
he can obtain from it are at his sole disposal; but with regard to the land, in everything
which he does with it, and in everything which he abstains from doing, he is morally
bound, and should whenever the case admits be legally compelled, to make his interest
and pleasure consistent with the public good. The species at large still retains, of its
original claim to the soil of the planet which it inhabits, as much as is compatible with
the purposes for which it has parted with the remainder.

§7. Besides property in the produce of labour, and property in land, there are other
things which are or have been subjects of property, in which no proprietary rights
ought to exist at all. But as the civilized world has in general made up its mind on most
of these, there is no necessity for dwelling on them in this place. At the head of them, is
property in human beings. It is almost superfluous to observe, that this institution can
have no place in any society even pretending to be founded on justice, or on fellowship
between human creatures. But, iniquitous as it is, yet when the state has expressly
legalized it, and human beings, for generations, have been bought, sold, and inherited
under sanction of law, it is another wrong, in abolishing the property, not to make full
compensation. This wrong was avoided by the great measure of justice in 1833, one of
the most virtuous acts, as well as the most practically beneficent, ever done collectively
by a nation. Other examples of property which ought not to have been created, are
properties in public trusts; such as judicial offices under the old French régime, and the
heritable jurisdictions which, in countries not wholly emerged from feudality, pass
with the land. Our own country affords, as cases in point, that of a commission in the
army [1848], and of an advowson, or right of nomination to an ecclesiastical benefice. A
property is also sometimes created in a right of taxing the public; in a monopoly, for
instance, or other exclusive privilege. These abuses prevail most in semibarbarous
countries, but are not without example in the most civilized. In France there are [1848]

countries, but are not without example in the most civilized. In France there are [1848]
several important trades and professions, including notaries, attorneys, brokers,
appraisers, printers, and (until lately) bakers and butchers, of which the numbers are
limited by law. The brevet or privilege of one of the permitted number consequently
brings a high price in the market. When such is the case, compensation probably could
not with justice be refused, on the abolition of the privilege. There are other cases in
which this would be more doubtful. The question would turn upon what, in the
peculiar circumstances, was sufficient to constitute prescription; and whether the legal
recognition which the abuse had obtained, was sufficient to constitute it an institution,
or amounted only to an occasional licence. It would be absurd to claim compensation
for losses caused by changes in a tariff, a thing confessedly variable from year to year;
or for monopolies like those granted to individuals by the Tudors, favours of a despotic
authority, which the power that gave was competent at any time to recall.

So much on the institution of property, a subject of which, for the purposes of political
economy, it was indispensable to treat, but on which we could not usefully confine
ourselves to economical considerations. We have now to inquire on what principles
and with what results the distribution of the produce of land and labour is effected,
under the relations which this institution creates among the different members of the
community.

James Madison

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History and Law Website Home Supreme Court and Public Policy – LS 138

U. S. Supreme Court Cases – Edited Property and Liberty – LS 140

PROFESSOR R. BEN BROWN’S
LAW AND HISTORY SITE

Syllabus for LS 140 Pride and Prejudice John Locke

Property in Eve Online Rousseau on Property and Inequality

Karl Marx – The Communist Manifesto J.S. Mill – Principles of Political Economy

George – Progress and Poverty George – Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

Somerset v. Stewart Bryan v. Walton State v. Mann State v. Boyce

Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Shelley v. Kraemer Bell v. Maryland

Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

Roe – Backlash Cassidy review of Thomas Piketty, Capital in the Twenty-first Century

Ostrom – Sustainable Development Boomer v. Atlantic Cement

Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

Just v. Marinette County Kelo v. New London

Reich – The New Property – Read pp 771-777 Goldberg v. Kelly

Lessig – Free Culture – Read Chap. 5 Lessig – Remix (Optional Source)

SF Homeless Project

O d e t o L i b e r t yO d e t o L i b e r t y

By Henry George

Delivered in San Francisco by Henry George as orator of the day July 4, 1877

Our primary social adjustment is a denial of justice. In allowing one man to own the land on which and from which other men must live,

we have made them his bondsmen in a degree which increases as material progress goes on.

WE HONOR LIBERTY in name and in form. We set up her statues and sound her praises. But we have not fully trusted her. And with our

growth so grow her demands. She will have no half service! Liberty! it is a word to conjure with, not to vex the ear in empty boastings. For

Liberty means Justice, and Justice is the natural law — the law of health and symmetry and strength, of fraternity and co-operation.

They who look upon Liberty as having accomplished her mission when she has abolished hereditary privileges and given men the ballot,

who think of her as having no further relations to the everyday affairs of life, have not seen her real grandeur — to them the poets who have

sung of her must seem rhapsodists, and her martyrs fools! As the sun is the lord of life, as well as of light; as his beams not merely pierce the

clouds, but support all growth, supply all motion, and call forth from what would otherwise be a cold and inert mass all the infinite

diversities of being and beauty, so is Liberty to mankind. It is not for an abstraction that men have toiled and died; that in every age the

witnesses of Liberty have stood forth, and the martyrs of Liberty have suffered.

We speak of Liberty as one thing, and of virtue, wealth, knowledge, invention, national strength and national independence as other things.

But, of all these, Liberty is the source, the mother, the necessary condition. She is to virtue what light is to color; to wealth what sunshine is to

grain; to knowledge what eyes are to sight. She is the genius of invention, the brawn of national strength, the spirit of national independence.

Where Liberty rises, there virtue grows, wealth increases, knowledge expands, invention multiplies human powers, and in strength and spirit

the freer nation rises among her neighbors as Saul amid his brethren — taller and fairer. Where Liberty sinks, there virtue fades, wealth

diminishes, knowledge is forgotten, invention ceases, and empires once mighty in arms and arts become a helpless prey to freer barbarians!

Only in broken gleams and partial light has the sun of Liberty yet beamed among men, but all progress hath she called forth.

Liberty came to a race of slaves crouching under Egyptian whips, and led them forth from the House of Bondage. She hardened them in the

desert and made of them a race of conquerors. The free spirit of the Mosaic law took their thinkers up to heights where they beheld the unity

of God, and inspired their poets with strains that yet phrase the highest exaltations of thought. Liberty dawned on the Phoenician coast, and

ships passed the Pillars of Hercules to plow the unknown sea. She shed a partial light on Greece, and marble grew to shapes of ideal beauty,

words became the instruments of subtlest thought, and against the scanty militia of free cities the countless hosts of the Great King broke like

surges against a rock. She cast her beams on the four-acre farms of Italian husbandmen, and born of her strength a power came forth that

conquered the world. They glinted from shields of German warriors, and Augustus wept his legions. Out of the night that followed her

eclipse, her slanting rays fell again on free cities, and a lost learning revived, modern civilization began, a new world was unveiled; and as

Liberty grew, so grew art, wealth, power, knowledge, and refinement. In the history of every nation we may read the same truth. It was the

strength born of Magna Carta that won Crecy and Agincourt. It was the revival of Liberty from the despotism of the Tudors that glorified the

Elizabethan age. It was the spirit that brought a crowned tyrant to the block that planted here the seed of a mighty tree. It was the energy of

ancient freedom that, the moment it had gained unity, made Spain the mightiest power of the world, only to fall to the lowest depth of

weakness when tyranny succeeded liberty. See, in France, all intellectual vigor dying under the tyranny of the Seventeenth Century to revive

in splendor as Liberty awoke in the Eighteenth, and on the enfranchisement of French peasants in the Great Revolution, basing the wonderful

strength that has in our time defied defeat.

Shall we not trust her?

In our time, as in times before, creep on the insidious forces that, producing inequality, destroy Liberty. On the horizon the clouds begin to

lower. Liberty calls to us again. We must follow her further; we must trust her fully. Either we must wholly accept her or she will not stay. It is

not enough that men should vote; it is not enough that they should be theoretically equal before the law. They must have liberty to avail

themselves of the opportunities and means of life; they must stand on equal terms with reference to the bounty of nature. Either this, or

Liberty withdraws her light! Either this, or darkness comes on, and the very forces that progress has evolved turn to powers that work

destruction. This is the universal law. This is the lesson of the centuries. Unless its foundations be laid in justice the social structure cannot

stand.

Our primary social adjustment is a denial of justice. In allowing one man to own the land on which and from which other men must live, we

have made them his bondsmen in a degree which increases as material progress goes on. This is the subtle alchemy that in ways they do not

realize is extracting from the masses in every civilized country the fruits of their weary toil; that is instituting a harder and more hopeless

slavery in place of that which has been destroyed; that is bringing political despotism out of political freedom, and must soon transmute

democratic institutions into anarchy.

It is this that turns the blessings of material progress into a curse. It is this that crowds human beings into noisome cellars and squalid

tenement houses; that fills prisons and brothels; that goads men with want and consumes them with greed; that robs women of the grace and

beauty of perfect womanhood; that takes from little children the joy and innocence of life’s morning.

Civilization so based cannot continue. The eternal laws of the universe forbid it. Ruins of dead empires testify, and the witness that is in every

soul answers, that it cannot be. It is something grander than Benevolence, something more august than Charity — it is Justice herself that

demands of us to right this wrong. Justice that will not be denied; that cannot be put off — Justice that with the scales carries the sword. Shall

we ward the stroke with liturgies and prayers? Shall we avert the decrees of immutable law by raising churches when hungry infants moan

and weary mothers weep?

Though it may take the language of prayer, it is blasphemy that attributes to the inscrutable decrees of Providence the suffering and

brutishness that come of poverty; that turns with folded hands to the All-Father and lays on Him the responsibility for the want and crime of

our great cities. We degrade the Everlasting. We slander the Just One. A merciful man would have better ordered the world; a just man would

crush with his foot such an ulcerous ant-hill! It is not the Almighty, but we who are responsible for the vice and misery that fester amid our

civilization. The Creator showers upon us his gifts — more than enough for all. But like swine scrambling for food, we tread them in the mire

— tread them in the mire, while we tear and rend each other!

In the very centers of our civilization today are want and suffering enough to make sick at heart whoever does not close his eyes and steel his

nerves. Dare we turn to the Creator and ask Him to relieve it? Supposing the prayer were heard, and at the behest with which the universe

sprang into being there should glow in the sun a greater power; new virtue fill the air; fresh vigor the soil; that for every blade of grass that

now grows two should spring up, and the seed that now increases fifty-fold should increase a hundredfold! Would poverty be abated or

want relieved? Manifestly no! Whatever benefit would accrue would be but temporary. The new powers streaming through the material

universe could be utilized only through land. And land, being private property, the classes that now monopolize the bounty of the Creator

would monopolize all the new bounty. Land owners would alone be benefited. Rents would increase, but wages would still tend to the

starvation point!

This is not merely a deduction of political economy; it is a fact of experience. We know it because we have seen it. Within our own times,

under our very eyes, that Power which is above all, and in all, and through all; that Power of which the whole universe is but the

manifestation; that Power which maketh all things, and without which is not anything made that is made, has increased the bounty which

men may enjoy, as truly as though the fertility of nature had been increased. Into the mind of one came the thought that harnessed steam for

the service of mankind. To the inner ear of another was whispered the secret that compels the lightning to bear a message around the globe.

In every direction have the laws of matter been revealed; in every department of industry have arisen arms of iron and fingers of steel,

whose effect upon the production of wealth has been precisely the same as an increase in the fertility of nature. What has been the result?

Simply that land owners get all the gain. The wonderful discoveries and inventions of our century have neither increased wages nor

lightened toil. The effect has simply been to make the few richer; the many more helpless! Can it be that the gifts of the Creator may be thus

misappropriated with impunity? Is it a light thing that labor should be robbed of its earnings while greed rolls in wealth — that the many

should want while the few are surfeited? Turn to history, and on every page may be read the lesson that such wrong never goes unpunished;

that the Nemesis that follows injustice never falters nor sleeps! Look around today. Can this state of things continue? May we even say, “After

us the deluge!” Nay; the pillars of the state are trembling even now, and the very foundations of society begin to quiver with pent-up forces

that glow underneath. The struggle that must either revivify, or convulse in ruin, is near at hand, if it be not already begun. The fiat has gone

forth! With steam and electricity, and the new powers born of progress, forces have entered the world that will either compel us to a higher

plane or overwhelm us, as nation after nation, as civilization after civilization, have been overwhelmed before. It is the delusion which

precedes destruction that sees in the popular unrest with which the civilized world is feverishly pulsing only the passing effect of ephemeral

causes. Between democratic ideas and the aristocratic adjustments of society there is an irreconcilable conflict. Here in the United States, as

there in Europe, it may be seen arising. We cannot go on permitting men to vote and forcing them to tramp. We cannot go on educating boys

and girls in our public schools and then refusing them the right to earn an honest living. We cannot go on prating of the inalienable rights of

man and then denying the inalienable right to the bounty of the Creator. Even now, in old bottles the new wine begins to ferment, and

elemental forces gather for the strife!

B u t i f , wh i l e t h e r e i s ye t t i m e , we t u r n t o Ju s t i c e a n d o b ey h e r, i f we t r u s t L i b e r t y a n d fo l l ow h e r, t h e d a n g e r s t h a t n owB u t i f , wh i l e t h e r e i s ye t t i m e , we t u r n t o Ju s t i c e a n d o b ey h e r, i f we t r u s t L i b e r t y a n d fo l l ow h e r, t h e d a n g e r s t h a t n ow

t h r e a t e n m u s t d i s a p p e a r, t h e fo r c e s t h a t n ow m e n a c e w i l l t u r n t o a g e n c i e s o f e l eva t i o n . t h r e a t e n m u s t d i s a p p e a r, t h e fo r c e s t h a t n ow m e n a c e w i l l t u r n t o a g e n c i e s o f e l eva t i o n . Think of the powers now wasted; of

the infinite fields of knowledge yet to be explored; of the possibilities of which the wondrous inventions of this century give us but a hint.

With want destroyed; with greed changed to noble passions; with the fraternity that is born of equality taking the place of the jealousy and

fear that now array men against each other; with mental power loosed by conditions that give to the humblest comfort and leisure; and who

shall measure the heights to which our civilization may soar? Words fail the thought! It is the Golden Age of which poets have sung and high-

raised seers have told in metaphor! It is the glorious vision which has always haunted man with gleams of fitful splendor. It is what he saw

whose eyes at Patmos were closed in a trance. It is the culmination of Christianity — the City of God on earth, with its walls of jasper and its

gates of pearl! It is the reign of the Prince of Peace!

James Madison

Powered by Squarespace. Content is for presentation purposes only.

History and Law Website Home Supreme Court and Public Policy – LS 138

U. S. Supreme Court Cases – Edited Property and Liberty – LS 140

PROFESSOR R. BEN BROWN’S
LAW AND HISTORY SITE

Syllabus for LS 140 Pride and Prejudice John Locke

Property in Eve Online Rousseau on Property and Inequality

Karl Marx – The Communist Manifesto J.S. Mill – Principles of Political Economy

George – Progress and Poverty George – Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

Somerset v. Stewart Bryan v. Walton State v. Mann State v. Boyce

Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Shelley v. Kraemer Bell v. Maryland

Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

Roe – Backlash Cassidy review of Thomas Piketty, Capital in the Twenty-first Century

Ostrom – Sustainable Development Boomer v. Atlantic Cement

Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

Just v. Marinette County Kelo v. New London

Reich – The New Property – Read pp 771-777 Goldberg v. Kelly

Lessig – Free Culture – Read Chap. 5 Lessig – Remix (Optional Source)

SF Homeless Project

Henry George

Excerpts from Progress and Poverty

Book VI: The Remedy

Chapter 2: The True Remedy

We have traced the unequal distribution of wealth which is the curse and menace of modern civilization to the institution of private property

in land. We have seen that so long as this institution exists no increase in productive power can permanently benefit the masses; but, on the

contrary, must tend still further to depress their condition. We have examined all the remedies, short of the abolition of private property in

land, which are currently relied on or proposed for the relief of poverty and the better distribution of wealth, and have found thDem all

inefficacious or impracticable.

[02] There is but one way to remove an evil — and that is to remove its cause. Poverty deepens as wealth increases, and wages are forced

down while productive power grows, because land, which is the source of all wealth and the field of all labor, is monopolized. To extirpate

poverty, to make wages what justice commands they should be, the full earnings of the laborer, we must therefore substitute for the

individual ownership of land a common ownership. Nothing else will go to the cause of the evil — in nothing else is there the slightest hope.

[03] This, then, is the remedy for the unjust and unequal distribution of wealth apparent in modern civilization, and for all the evils which

flow from it:

[04] We must make land common property.1

[05] We have reached this conclusion by an examination in which every step has been proved and secured. In the chain of reasoning no link is

wanting and no link is weak. Deduction and induction have brought us to the same truth — that the unequal ownership of land necessitates

the unequal distribution of wealth. And as in the nature of things unequal ownership of land is inseparable from the recognition of individual

property in land, it necessarily follows that the only remedy for the unjust distribution of wealth is in making land common property.

[06] But this is a truth which, in the present state of society, will arouse the most bitter antagonism, and must fight its way, inch by inch. It will

be necessary, therefore, to meet the objections of those who, even when driven to admit this truth, will declare that it cannot be practically

applied.

[07] In doing this we shall bring our previous reasoning to a new and crucial test. Just as we try addition by subtraction and multiplication by

division, so may we, by testing the sufficiency of the remedy, prove the correctness of our conclusions as to the cause of the evil.

[08] The laws of the universe are harmonious. And if the remedy to which we have been led is the true one, it must be consistent with justice;

it must be practicable of application; it must accord with the tendencies of social development and must harmonize with other reforms.

[09] All this I propose to show. I propose to meet all practical objections that can be raised, and to show that this simple measure is not only

easy of application; but that it is a sufficient remedy for all the evils which, as modern progress goes on, arise from the greater and greater

inequality in the distribution of wealth — that it will substitute equality for inequality, plenty for want, justice for injustice, social strength for

social weakness, and will open the way to grander and nobler advances of civilization.

[10] I thus propose to show that the laws of the universe do not deny the natural aspirations of the human heart; that the progress of society

might be, and, if it is to continue, must be, toward equality, not toward inequality; and that the economic harmonies prove the truth

perceived by the Stoic Emperor

[11] “We are made for co-operation — like feet, like hands, like eyelids, like the rows of the upper and lower teeth.”

Book VII: Justice of the Remedy

Chapter 2: The Enslavement of Laborers the Ultimate Result of Private Property in Land

[01] When it is proposed to abolish private property in land the first question that will arise is that of justice. Though often warped by habit,

superstition, and selfishness into the most distorted forms, the sentiment of justice is yet fundamental to the human mind, and whatever

dispute arouses the passions of men, the conflict is sure to rage, not so much as to the question “Is it wise?” as to the question “Is it right?”

[02] This tendency of popular discussions to take an ethical form has a cause. It springs from a law of the human mind; it rests upon a vague

and instinctive recognition of what is probably the deepest truth we can grasp. That alone is wise which is just; that alone is enduring which

is right. In the narrow scale of individual actions and individual life this truth may be often obscured, but in the wider field of national life it

everywhere stands out.

[03] I bow to this arbitrament, and accept this test. If our inquiry into the cause which makes low wages and pauperism the accompaniments

of material progress has led us to a correct conclusion, it will bear translation from terms of political economy into terms of ethics, and as the

source of social evils show a wrong. If it will not do this, it is disproved. If it will do this, it is proved by the final decision. If private property

in land be just, then is the remedy I propose a false one; if, on the contrary, private property in land be unjust, then is this remedy the true

one.

[04] What constitutes the rightful basis of property? What is it that enables a man justly to say of a thing, “It is mine!” From what springs the

sentiment which acknowledges his exclusive right as against all the world? Is it not, primarily, the right of a man to himself, to the use of his

own powers, to the enjoyment of the fruits of his own exertions? Is it not this individual right, which springs from and is testified to by the

natural facts of individual organization — the fact that each particular pair of hands obey a particular brain and are related to a particular

stomach; the fact that each man is a definite, coherent, independent whole — which alone justifies individual ownership? As a man belongs

to himself, so his labor when put in concrete form belongs to him.

[05] And for this reason, that which a man makes or produces is his own, as against all the world — to enjoy or to destroy, to use, to

exchange, or to give. No one else can rightfully claim it, and his exclusive right to it involves no wrong to any one else. Thus there is to

everything produced by human exertion a clear and indisputable title to exclusive possession and enjoyment, which is perfectly consistent

with justice, as it descends from the original producer, in whom it vested by natural law. The pen with which I am writing is justly mine. No

other human being can rightfully lay claim to it, for in me is the title of the producers who made it. It has become mine, because transferred

to me by the stationer, to whom it was transferred by the importer, who obtained the exclusive right to it by transfer from the manufacturer,

in whom, by the same process of purchase, vested the rights of those who dug the material from the ground and shaped it into a pen. Thus,

my exclusive right of ownership in the pen springs from the natural right of the individual to the use of his own faculties.

[06] Now, this is not only the original source from which all ideas of exclusive ownership arise — as is evident from the natural tendency of

the mind to revert to it when the idea of exclusive ownership is questioned, and the manner in which social relations develop — but it is

necessarily the only source. There can be to the ownership of anything no rightful title which is not derived from the title of the producer

and does not rest upon the natural right of the man to himself. There can be no other rightful title, because (1st) there is no other natural right

from which any other title can be derived, and (2d) because the recognition of any other title is inconsistent with and destructive of this.

[07] For (1st) what other right exists from which the right to the exclusive possession of anything can be derived, save the right of a man to

himself? With what other power is man by nature clothed, save the power of exerting his own faculties? How can he in any other way act

upon or affect material things or other men? Paralyze the motor nerves, and your man has no more external influence or power than a log or

stone. From what else, then, can the right of possessing and controlling things be derived? If it spring not from man himself, from what can it

spring? Nature acknowledges no ownership or control in man save as the result of exertion. In no other way can her treasures be drawn

forth, her powers directed, or her forces utilized or controlled. She makes no discriminations among men, but is to all absolutely impartial.

She knows no distinction between master and slave, king and subject, saint and sinner. All men to her stand upon an equal footing and have

equal rights. She recognizes no claim but that of labor, and recognizes that without respect to the claimant. If a pirate spread his sails, the

wind will fill them as well as it will fill those of a peaceful merchantman or missionary bark; if a king and a common man be thrown

overboard, neither can keep his head above water except by swimming; birds will not come to be shot by the proprietor of the soil any

quicker than they will come to be shot by the poacher; fish will bite or will not bite at a hook in utter disregard as to whether it is offered

them by a good little boy who goes to Sunday school, or a bad little boy who plays truant; grain will grow only as the ground is prepared and

the seed is sown; it is only at the call of labor that ore can be raised from the mine; the sun shines and the rain falls, alike upon just and unjust.

The laws of nature are the decrees of the Creator. There is written in them no recognition of any right save that of labor; and in them is

written broadly and clearly the equal right of all men to the use and enjoyment of nature; to apply to her by their exertions, and to receive

and possess her reward. Hence, as nature gives only to labor, the exertion of labor in production is the only title to exclusive possession.

[08] (2d) This right of ownership that springs from labor excludes the possibility of any other right of ownership. If a man be rightfully

entitled to the produce of his labor, then no one can be rightfully entitled to the ownership of anything which is not the produce of his labor,

or the labor of some one else from whom the right has passed to him. If production give to the producer the right to exclusive possession and

enjoyment, there can rightfully be no exclusive possession and enjoyment of anything not the production of labor, and the recognition of

private property in land is a wrong. For the right to the produce of labor cannot be enjoyed without the right to the free use of the

opportunities offered by nature, and to admit the right of property in these is to deny the right of property in the produce of labor. When

nonproducers can claim as rent a portion of the wealth created by producers, the right of the producers to the fruits of their labor is to that

extent denied.

[09] There is no escape from this position. To affirm that a man can rightfully claim exclusive ownership in his own labor when embodied in

material things, is to deny that any one can rightfully claim exclusive ownership in land. To affirm the rightfulness of property in land, is to

affirm a claim which has no warrant in nature, as against a claim founded in the organization of man and the laws of the material universe.

[10] What most prevents the realization of the injustice of private property in land is the habit of including all the things that are made the

subject of ownership in one category, as property, or, if any distinction is made, drawing the line, according to the unphilosophical

distinction of the lawyers, between personal property and real estate, or things movable and things immovable. The real and natural

distinction is between things which are the produce of labor and things which are the gratuitous offerings of nature; or, to adopt the terms of

political economy, between wealth and land.

[11] These two classes of things are in essence and relations widely different, and to class them together as property is to confuse all thought

when we come to consider the justice or the injustice, the right or the wrong of property.

[12] A house and the lot on which it stands are alike property, as being the subject of ownership, and are alike classed by the lawyers as real

estate. Yet in nature and relations they differ widely. The one is produced by human labor, and belongs to the class in political economy

styled wealth. The other is a part of nature, and belongs to the class in political economy styled land.

[13] The essential character of the one class of things is that they embody labor, are brought into being by human exertion, their existence or

nonexistence, their increase or diminution, depending on man. The essential character of the other class of things is that they do not embody

labor, and exist irrespective of human exertion and irrespective of man; they are the field or environment in which man finds himself; the

storehouse from which his needs must be supplied, the raw material upon which and the forces with which alone his labor can act.

[14] The moment this distinction is realized, that moment is it seen that the sanction which natural justice gives to one species of property is

denied to the other; that the rightfulness which attaches to individual property in the produce of labor implies the wrongfulness of

individual property in land; that, whereas the recognition of the one places all men upon equal terms, securing to each the due reward of his

labor, the recognition of the other is the denial of the equal rights of men, permitting those who do not labor to take the natural reward of

those who do.

[15] Whatever may be said for the institution of private property in land, it is therefore plain that it cannot be defended on the score of justice.

[16] The equal right of all men to the use of land is as clear as their equal right to breathe the air — it is a right proclaimed by the fact of their

existence. For we cannot suppose that some men have a right to be in this world and others no right.

[17] If we are all here by the equal permission of the Creator, we are all here with an equal title to the enjoyment of his bounty — with an

equal right to the use of all that nature so impartially offers.1 This is a right which is natural and inalienable; it is a right which vests in every

human being as he enters the world, and which during his continuance in the world can be limited only by the equal rights of others. There is

in nature no such thing as a fee simple in land. There is on earth no power which can rightfully make a grant of exclusive ownership in land.

If all existing men were to unite to grant away their equal rights, they could not grant away the right of those who follow them. For what are

we but tenants for a day? Have we made the earth, that we should determine the rights of those who after us shall tenant it in their turn? The

Almighty, who created the earth for man and man for the earth, has entailed it upon all the generations of the children of men by a decree

written upon the constitution of all things — a decree which no human action can bar and no prescription determine. Let the parchments be

ever so many, or possession ever so long, natural justice can recognize no right in one man to the possession and enjoyment of land that is

not equally the right of all his fellows. Though his titles have been acquiesced in by generation after generation, to the landed estates of the

Duke of Westminster the poorest child that is born in London today has as much right as has his eldest son.2 Though the sovereign people of

the state of New York consent to the landed possessions of the Astors, the puniest infant that comes wailing into the world in the squalidest

room of the most miserable tenement house, becomes at that moment seized of an equal right with the millionaires. And it is robbed if the

right is denied.

[18] Our previous conclusions, irresistible in themselves, thus stand approved by the highest and final test. Translated from terms of political

economy into terms of ethics they show a wrong as the source of the evils which increase as material progress goes on.

[19] The masses of men, who in the midst of abundance suffer want; who, clothed with political freedom, are condemned to the wages of

slavery; to whose toll laborsaving inventions bring no relief, but rather seem to rob them of a privilege, instinctively feel that “there is

something wrong.” And they are right.

[20] The widespreading social evils which everywhere oppress men amid an advancing civilization spring from a great primary wrong — the

appropriation, as the exclusive property of some men, of the land on which and from which all must live. From this fundamental injustice

flow all the injustices which distort and endanger modern development, which condemn the producer of wealth to poverty and pamper the

nonproducer in luxury, which rear the tenement house with the palace, plant the brothel behind the church, and compel us to build prisons

as we open new schools.

[21] There is nothing strange or inexplicable in the phenomena that are now perplexing the world. It is not that material progress is not in

itself a good; it is not that nature has called into being children for whom she has failed to provide; it is not that the Creator has left on natural

laws a taint of injustice at which even the human mind revolts, that material progress brings such bitter fruits. That amid our highest

civilization men faint and die with want is not due to the niggardliness of nature, but to the injustice of man. Vice and misery, poverty and

pauperism, are not the legitimate results of increase of population and industrial development; they only follow increase of population and

industrial development because land is treated as private property — they are the direct and necessary results of the violation of the supreme

law of justice, involved in giving to some men the exclusive possession of that which nature provides for all men.

[22] The recognition of individual proprietorship of land is the denial of the natural rights of other individuals — it is a wrong which must

show itself in the inequitable division of wealth. For as labor cannot produce without the use of land, the denial of the equal right to the use

of land is necessarily the denial of the right of labor to its own produce. If one man can command the land upon which others must labor, he

can appropriate the produce of their labor as the price of his permission to labor. The fundamental law of nature, that her enjoyment by man

shall be consequent upon his exertion, is thus violated. The one receives without producing; the others produce without receiving. The one is

unjustly enriched; the others are robbed. To this fundamental wrong we have traced the unjust distribution of wealth which is separating

modern society into the very rich and the very poor. It is the continuous increase of rent — the price that labor is compelled to pay for the

use of land, which strips the many of the wealth they justly earn, to pile it up in the hands of the few, who do nothing to earn it.

[23] Why should they who suffer from this injustice hesitate for one moment to sweep it away? Who are the landholders that they should

thus be permitted to reap where they have not sown?

[24] Consider for a moment the utter absurdity of the titles by which we permit to be gravely passed from John Doe to Richard Roe the right

exclusively to possess the earth, giving absolute dominion as against all others. In California our land titles go back to the Supreme

Government of Mexico, who took from the Spanish King, who took from the Pope, when he by a stroke of the pen divided lands yet to be

discovered between the Spanish or Portuguese — or if you please they rest upon conquest. In the eastern states they go back to treaties with

Indians and grants from English kings; in Louisiana to the government of France; in Florida to the government of Spain; while in England

they go back to the Norman conquerors. Everywhere, not to a right which obliges, but to a force which compels. And when a title rests but

on force, no complaint can be made when force annuls it. Whenever the people, having the power, choose to annul those titles, no objection

can be made in the name of justice. There have existed men who had the power to hold or to give exclusive possession of portions of the

earth’s surface, but when and where did there exist the human being who had the right?

[25] The right to exclusive ownership of anything of human production is clear. No matter how many the hands through which it has passed,

there was, at the beginning of the line, human labor — some one who, having procured or produced it by his exertions, had to it a clear title

as against all the rest of mankind, and which could justly pass from one to another by sale or gift. But at the end of what string of

conveyances or grants can be shown or supposed a like title to any part of the material universe? To improvements, such an original title can

be shown; but it is a title only to the improvements, and not to the land itself. If I clear a forest, drain a swamp, or fill a morass, all I can justly

claim is the value given by these exertions. They give me no right to the land itself, no claim other than to my equal share with every other

member of the community in the value which is added to it by the growth of the community.

[26] But it will be said: There are improvements which in time become indistinguishable from the land itself! Very well; then the title to the

improvements becomes blended with the title to the land; the individual right is lost in the common right. It is the greater that swallows up

the less, not the less that swallows up the greater. Nature does not proceed from man, but man from nature, and it is into the bosom of nature

that he and all his works must return again.

[27] Yet, it will be said: As every man has a right to the use and enjoyment of nature, the man who is using land must be permitted the

exclusive right to its use in order that he may get the full benefit of his labor. But there is no difficulty in determining where the individual

right ends and the common right begins. A delicate and exact test is supplied by value, and with its aid there is no difficulty, no matter how

dense population may become, in determining and securing the exact rights of each, the equal rights of all. The value of land, as we have

seen, is the price of monopoly. It is not the absolute, but the relative, capability of land that determines its value. No matter what may be its

intrinsic qualities land that is no better than other land which may be had for the using can have no value. And the value of land always

measures the difference between it and the best land that may be had for the using. Thus, the value of land expresses in exact and tangible

form the right of the community in land held by an individual; and rent expresses the exact amount which the individual should pay to the

community to satisfy the equal rights of all other members of the community. Thus, if we concede to priority of possession the undisturbed

use of land, confiscating rent for the benefit of the community, we reconcile the fixity of tenure which is necessary for improvement with a

full and complete recognition of the equal rights of all to the use of land.

[28] As for the deduction of a complete and exclusive individual right to land from priority of occupation, that is, if possible, the most absurd

ground on which landownership can be defended. Priority of occupation give exclusive and perpetual title to the surface of a globe on

which, in the order of nature, countless generations succeed each other! Had the men of the last generation any better right to the use of this

world than we of this? or the men of a hundred years ago? or of a thousand years ago? Had the mound builders, or the cave dwellers, the

contemporaries of the mastodon and the threetoed horse, or the generations still further back, who, in dim Öons that we can think of only as

geologic periods, followed each other on the earth we now tenant for our little day?

[29] Has the first comer at a banquet the right to turn back all the chairs and claim that none of the other guests shall partake of the food

provided, except as they make terms with him? Does the first man who presents a ticket at the door of a theater, and passes in, acquire by his

priority the right to shut the doors and have the performance go on for him alone? Does the first passenger who enters a railroad car obtain

the right to scatter his baggage over all the seats and compel the passengers who come in after him to stand up?

[30] The cases are perfectly analogous. We arrive and we depart, guests at a banquet continually spread, spectators and participants in an

entertainment where there is room for all who come; passengers from station to station, on an orb that whirls through space — our rights to

take and possess cannot be exclusive; they must be bounded everywhere by the equal rights of others. Just as the passenger in a railroad car

may spread himself and his baggage over as many seats as be pleases, until other passengers come in, so may a settler take and use as much

land as he chooses, until it is needed by others — a fact which is shown by the land acquiring a value when his right must be curtailed by the

equal rights of the others, and no priority of appropriation can give a right which will bar these equal rights of others. If this were not the

case, then by priority of appropriation one man could acquire and could transmit to whom he pleased, not merely the exclusive right to 160

acres, or to 640 acres, but to a whole township, a whole state, a whole continent.

[31] And to this manifest absurdity does the recognition of individual right to land come when carried to its ultimate — that any one human

being, could he concentrate in himself the individual rights to the land of any country, could expel therefrom all the rest of its inhabitants;

and could he thus concentrate the individual rights to the whole surface of the globe, he alone of all the teeming population of the earth

would have the right to live.

[32] And what upon this supposition would occur is, upon a smaller scale, realized in actual fact. The territorial lords of Great Britain, to

whom grants of land have given the “white parasols and elephants mad with pride,” have over and over again expelled from large districts the

native population, whose ancestors had lived on the land from immemorial times — driven them off to emigrate, to become paupers, or to

starve. And on uncultivated tracts of land in the new state of California may be seen the blackened chimneys of homes from which settlers

have been driven by force of laws which ignore natural right, and great stretches of land which might be populous are desolate, because the

recognition of exclusive ownership has put it in the power of one human creature to forbid his fellows from using it. The comparative

handful of proprietors who own the surface of the British Islands would be doing only what English law gives them full power to do, and

what many of them have done on a smaller scale already, were they to exclude the millions of British people from their native islands. And

such an exclusion, by which a few hundred thousand should at will banish thirty million people from their native country, while it would be

more striking, would not be a whit more repugnant to natural right than the spectacle now presented, of the vast body of the British people

being compelled to pay such enormous sums to a few of their number for the privilege of being permitted to live upon and use the land

which they so fondly call their own; which is endeared to them by memories so tender and so glorious, and for which they are held in duty

bound, if need be, to spill their blood and lay down their lives.

[33] I refer only to the British Islands, because, landownership being more concentrated there, they afford a more striking illustration of what

private property in land necessarily involves. “To whomsoever the soil at any time belongs, to him belong the fruits of it,” is a truth that

becomes more and more apparent as population becomes denser and invention and improvement add to productive power; but it is

everywhere a truth — as much in our new States as in the British Islands or by the banks of the Indus.

Footnotes:

1 In saying that private property in land can, in the ultimate analysis, be justified only on the theory that some men have a better right to

existence than others, I am stating only what the advocates of the existing system have themselves perceived. What gave to Malthus his

popularity among the ruling classes — what caused his illogical book to be received as a new revelation, induced sovereigns to send him

decorations, and the meanest rich man in England to propose to give him a living, was the fact that he furnished a plausible reason for the

assumption that some have a better right to existence than others — an assumption which is necessary for the justification of private

property in land, and which Malthus clearly states in the declaration that the tendency of population is constantly to bring into the world

human beings for whom nature refuses to provide, and who consequently “have not the slightest right to any share in the existing store of

the necessaries of life”; whom she tells as interlopers to begone, “and does not hesitate to extort by force obedience to her mandates,”

employing for that purpose “hunger and pestilence, war and crime, mortality and neglect of infantine life, prostitution and syphilis.” And

today this Malthusian doctrine is the ultimate defense upon which those who justify private property in land fall back. In no other way can it

be logically defended.

2 This natural and inalienable right to the equal use and enjoyment of land is so apparent that it has been recognized by men wherever force

or habit has not blunted first perceptions. To give but one instance: The white settlers of New Zealand found themselves unable to get from

the Maoris what the latter considered a complete title to land, because, although a whole tribe might have consented to a sale, they would still

claim with every new child born among them an additional payment on the ground that they had parted with only their own rights, and

could not sell those of the unborn. The government was obliged to step in and settle the matter by buying land for a tribal annuity, in which

every child that is born acquires a share.

James Madison

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