LETTER THE THIRD. THE LEGAL RIGHT OF PROPERTY.
What is the law?—Who are the law makers?—The law is a great scheme of rules intended to preserve the power of government, secure the wealth of the landowner, the priest, and the capitalist, but never to secure his produce to the labourer.—The law-maker is never a labourer, and has no natural right to any wealth.—He takes no notice of the natural right of property.—Manifold miseries which result from his appropriating the produce of labour, and from the legal right of property being in opposition to the natural.
TO H. BROUGHAM, ESQ. M. P. F.R.S. &c.
When we inquire, casting aside all theories and suppositions, into the end kept in view by legislators, or examine any existing laws, we find that the first and chief object proposed is to preserve the unconstrained dominion of the law over the minds and bodies of mankind. It may be simplicity in me, but I protest that I see no anxiety to preserve the natural right of property but a great deal to enforce obedience to the legislator. No misery indeed is deemed too high a price to pay for his supremacy, and for the quiet submission of the people. To attain this end many individuals, and even nations, have been extirpated. Perish the peo ple, but let the law live, has ever been the maxim of the masters of mankind.∗ Cost what it may, we are continually told, the dominion of the law, not the natural right of property, must be upheld. Every writer, in our newspapers, whether he writes about a rebellion in Ireland, or killing partridges, loudly and continually repeats this maxim of our masters.∗ Society, it is said, will fall into anarchy, the human race will first relapse into barbarism, and then pass out of existence if law be not obeyed. By a most ridiculous analogy—the precept of self preservation, the dictate of the holy and delightful impulse by which we cherish our happy animal existence, is transferred to the institutions of barbarous men. Self preservation is said to be the first duty of corporate bodies, as of individual animals, as if the ignorant contrivances of men less instructed than we are, deserved the veneration justly due to the works of the Almighty.
We are on this principle, singularly enough, continually called on to preserve the institutions of the legislator by violating the principle from which the analogy is derived. In many cases, the corporate existence decreed by the legislator can only be maintained by putting individuals out of existence, and men are massacred that governments may be upheld. Looking at this question practically, let us coolly inquire what is this said law, before which every thing, whether it be that which is holy in affection, or ought to be held sacred among men, and before which even the laws of nature must quail, and wither and perish?
The law, to preserve which is said to be the first duty of communities, as to preserve life is that of individuals, is a set of rules and practices laid down and established, partly by the legislator, partly by custom, and partly by the judges, supported and enforced by all the power of the government, and intended as far as our subject is concerned, to secure the appropriation of the whole annual produce of labour. Nominally these rules and practices are said to have for their object to secure property in land; to appropriate tithes, and to procure a revenue for the government; actually and in fact they are intended to appropriate to the law-makers the produce of those who cultivate the soil, prepare clothing, or distribute what is produced among the different classes, and among different communities. Such is law.
It is a not less important question, who is the law-maker, who made, who makes, who enforces obedience to these rules and practices? Can he show a title bestowed upon him by nature, derived from the laws of his organization, and the constitution of the universe, to have and to own, and to appropriate all the wealth that is created? Now it is an important fact, but it is so obvious that one is sneered at for drawing a deduction from it, that the law has always been, and is at present made, by men who are not labourers. It is actually made by those who derive from nature no title whatever to any wealth. But as law in fact is only a general name for the will of the law-maker, being, the expression of his desire to have wealth, and retain power and dominion, it is clear that in making laws for the appropriation of property, he will not, consistently with nature, give to every one what he produces. This object always has been, and now is, so to dispose of the annual produce as will best tend to preserve his power. Nature rewards industry and skill, the legislator be he who he may, is utterly regardless of the connection between industry and plenty. Let us look closer at who is the legislator, and what is his object in making laws.
In some countries the power of making laws is vested in a king; in others in an aristocracy; and in others, though they are few, the great body of the community has a direct share in legislation. Some times a particular class of men, as the ministers of religion, has made regulations for the whole society. In no part of Europe, however, which is the main fact for our consideration, had the producers of wealth, in any form or shape, any direct share in legislation for many ages. Nor have they yet as such any direct share. Our own country does not differ in this respect, at least not in principle, from most of the countries of Europe. One man has a right to assist in making laws, because he is a king, another because he is a peer, a third because he is a bishop, a fourth because he legally owns a large estate, and a fifth because he served his time to a particular tradesman in a particular place, or because he was born there of parents who were born there before him; but no man merely because he is a producer of wealth, has any right to assist in making the laws which appropriate, or attempt to appropriate, the whole of his produce.
Laws being made by others than the labourer, and being always intended to preserve the power of those who make them, their great and chief aim for many ages, was, and still is, to enable those who are not labourers to appropriate wealth to themselves. In other words, the great object of law and of government has been and is, to establish and protect a violation of that natural right of property they are described in theory as being intended to guarantee. This chief purpose and principle of legislation is the parent crime, from which continually flow all the theft and fraud, all the vanity and chicanery, which torment mankind worse than pestilence and famine. They only, but kindly and speedily, destroy them. The first and chief violation of the right of property, which pervades and disturbs all the natural relations of ownership, confusing, an per plexing the ideas of all men as to the source of the right of property, and what is their own, of which so many actions stigmatized by the law as crimes, are the necessary consequences, and the natural corrections,—the parent theft from which flow all other thefts, is that of the legislator, who, not being a labourer, can make no disposition of any property whatever, without appropriating what does not naturally belong to him.
Those who make laws, appropriate wealth in order to secure power. All the legislative classes, and all the classes whose possessions depend not on nature, but on the law, perceiving that law alone guarantees and secures their possessions, and perceiving that government as the instrument for enforcing obedience to the law, and thus for preserving their power and possessions, is indispensable, unite one and all, heart and soul to uphold it, and, as the means of upholding it, to place at its disposal a large part of the annual produce of labour. One of the first objects then of the law, subordinate to the great principle of preserving its unconstrained dominion over our minds and bodies, is to bestow a sufficient revenue on the government. Who can enumerate the statutes imposing and exacting taxes? Who can describe the disgusting servility with which all classes submit to be fleeced by the demands of the tax-gatherer, on all sorts of false pretences, when his demands cannot be fraudulently evaded? Who is acquainted with all the restrictions placed on honest and praiseworthy enterprise; the penalties inflicted on upright and honourable exertions;—what pen is equal to the task of accurately describing all the vexations, and the continual misery, heaped on all the industrious classes of the community, under the pretext that it is necessary to raise a revenue for the government? “The miseries inflicted upon individuals and families by fiscal prosecutions, founded on excise laws, stamp laws, post-office laws, &c. are equal to those arising from some of the most extensive natural calamities.”∗ Perhaps they are far greater. Nature may annihilate, but she never tortures. Equally benevolent and wise, she warns us by pain against injury; so she instructs her children; and whenever she finds either the race or the individual incorrigible,—when pain ceases to be useful,—she mercifully puts an end to existence. Not so the legislator. He has inflicted on mankind for ages the miseries of revenue laws,—greater than those of pestilence and famine, and sometimes producing both these calamities, without our learning the lesson which nature seems to have intended to teach, viz. the means of avoiding this perpetual calamity. Revenue laws meet us at every turn. They embitter our meals, and disturb our sleep. They excite dishonesty, and check enterprize. They impede division of labour, and create division of interest. They sow strife and enmity amongst townsmen and brethren; and they frequently lead to murders, that are not the less atrocious because they are committed in battle with smugglers, or consummated on the gallows. The preservation of government, it is said, must be purchased at whatever sacrifice; and it is impossible to enumerate the vexatious statutes and cruel penalties, by which its preservation is sought to be attained. Government, as such, produces nothing, and all its revenues are exacted by violating the natural right of property. This I put down as the first point aimed at by all laws. That all this misery is gratuitously inflicted; that the power of the government is not preserved according to the wish of the legislator, by means of the revenue raised, is perhaps a trifle in the account, but it is one which I shall hereafter attempt to render important, shewing that the folly of making and of submitting to revenue laws, is just equal to the pain they inflict.
Among the legislative classes embodied into, and constituting the government, we must place the landed aristocracy. In fact, the landed aristocracy and the government are one—the latter being nothing more than the organized means of preserving the power and privileges of the former. After securing a revenue for the government,—the landed aristocracy sacrificing to this even a part of their private property, or rather taking a portion from rent, which they appropriate as taxes, transferring their cash from one hand to the other,—after securing a revenue to the state, the laws have been made with a view to guarantee the possessions and the wealth of the landowners. Numberless are the statutes and the decisions at common law, having the force of statutes, intended solely to secure their rights and privileges. Subject to supporting the government—the instrument for protecting their privileges—they may do what they please with the land. In some countries also, by the transmitted remnant of an ancient practice, founded on the fact that the labourers belonged like cattle to the landowners, the latter are obliged to maintain all the people born on their land; otherwise they might quarter their sick and destitute slaves on other landowners. With these exceptions, the landowner may leave his land uncultivated, or he may let it on what conditions he pleases, and the law is always ready to support him with its powerful aid. His right to possess the land, not to possess the produce of his own labour, is as admirably protected as can be effected by the law. Another must not even walk on it, and all the wild animals and fruit it bears are said by the law to be his. Nature makes it a condition of man having land, that he must occupy and cultivate it, or it will yield nothing. The instant he ceases his labour, she decks it with flowers, and stocks it with the birds and animals which she delights to clothe and feed; exacting no payment but their happiness. The mere landowner is not a labourer, and he never has been even fed but by violating the natural right of property. Patiently and perseveringly, however, has the law endeavoured to maintain his privileges, power, and wealth. To support the government the aristocracy has sometimes made laws trenching on its own privileges, but after enforcing submission to government, the next object of the law has been to preserve the dominion and power of the aristocracy over the land.
In most countries the ministers of religion support the government, and inculcate obedience to the law. For this they receive a share of legislation, and of the annual produce of labour. The laws, at least of this country, after providing a revenue for the government, and securing the wealth of the aristocracy, seek to bestow a liberal allowance on the priesthood. We can neither eat nor drink, be neither legally born nor buried, neither married nor enter into the community of our fellows, without paying the parson. He who objects to comply with his demands, and to give him what the law, —not what nature, or the free-will of the labourer, bestows on him,—must suffer under denunciations of future punishment; and, what is more compulsory he is scourged through ecclesiastical and other courts, till he be turned naked and flayed upon the world. Such is the charity of those whose office it is to preach meekness and forbearance. The law grants tithes, and enforces the payment of them. It gives the soil, and a power to exact rent to the landlord, and a revenue to the government; but in all these, the great and leading objects of law, I see no protection for the natural right of property. On the contrary, not one of them can be thought of without trenching on this natural right.
At present, besides the government, the ariscocracy, and the church, the law also protects, to a certain extent, the property of the capitalist, of whom there is somewhat more difficulty to speak correctly than of the priest, the landowner, and the administerer of the law, because the capitalist is very often also a labourer. The capitalist as such, however, whether he be a holder of East India stock, or of a part of the national debt, a discounter of bills, or a buyer of annuities, has no natural right to the large share of the annual produce the law secures to him. There is sometimes a conflict between him and the landowner, sometimes one obtains a triumph, and sometimes the other; both however willingly support the government and the church; and both side against the labourer to oppress him; one lending his aid to enforce combination laws, while the other upholds game laws, and both enforce the exaction of tithes and of the revenue. Capitalists have in general formed a most intimate union with the landowners, and except when the interest of these classes clash, as in the case of the corn laws, the law is extremely punctilious in defending the claims and exactions of the capitalist.
In all these circumstances which in relation to the right of property may be considered as the leading objects of legislation, I see no guarantee or protection of the natural right of property. The end for which men are said by Mr. Locke to unite into commonwealths, and put themselves under government, is in practice unknown to the law. The natural right of property far from being protected, is systematically violated, and both government and law seem to exist chiefly or solely, in order to protect and organize the most efficacious means of protecting the violation. On the men who produce a bushel of malt, nature bestows it every grain; the law instead of guaranteeing to them its full use and enjoyment, takes three-fourths of it from them. To those by whose combined labour the ground is cultivated, and the harvest gathered in, nature gives every sheaf and every stalk which they choose to collect; the law, however, takes almost the whole of it away. Under the false pretence of protecting them in the use and enjoyment of the produce of their labour, it takes so large a portion of it for those who make and administer the law, that what it leaves, did it secure that, would scarcely be worth having; but the system, for administering which payment is demanded, is so completely one of extortion, that the actual labourer is only allowed to retain for his own use as small a portion as possible of the munificent' gift with which nature rewards his exertions. Under one miserable pretext or another, the wisdom of politicians continually thwarts the decrees of the Almighty. To ensure a national superiority, or the welfare of men's souls, are maxims equally efficacious in their eyes to justify violating the natural right of property.
When we look at the great number of laws restricting industry, and at the great number intended to exact a revenue for the government, rent for the landowner, tithes for the priests, and profit for the capitalist, we feel more surprised that industry should have survived the immense burdens laid on it, than that a few thieves should prefer living by open plunder, risking the punishment of the laws, to a life of unrewarded labour. That men yet labour at all, is an admirable contradiction of the law-makers' base assertion, I say base, because it is made for a base purpose—that men are naturally averse from labour. The legislator has been careful to punish combinations of workmen, careful to compel the labourer to work, careful to enforce the payment of tithes and taxes, but, I protest that I never yet heard of a law which had for its object to secure to the labourer the undisturbed, unfettered, unlimited enjoyment of the gifts which nature bestows on him, and him alone. I do not believe, indeed, that any law can effect this for every law effecting appropriation is, in principle, an alteration or a violation of the natural right.∗
The important and yet perhaps trite fact to which I wish by these remarks to direct your attention is, that law and governments are intended, and always have been intended, to establish and protect a right of property, different from that which, in common with Mr. Locke, I say is ordained by nature. The right of property created and protected by the law, is the artificial or legal right of property, as contra-distinguished from the natural right of property. It may be the theory that government ought to protect the natural right; in practice, government seems to exist only to violate it. Never has the law employed any means whatever to protect the property nature bestows on individuals; on the contrary, it is a great system of means devised to appropriate in a peculiar and unjust manner the gifts of nature. It exacts a revenue for the government,—it compels the payment of rent,—it enforces the giving of tithes, but it does not ensure to labour its produce and its reward.
In saying this I wish to be understood as stating a fact, not expressing censure. I am more interested in describing and in accounting for social misery, than in condemning past faults, or in proposing schemes to change the constitution of the country, or the habits of mankind. I must at the same time, in solemn earnest aver, that to the violation of the natural right of property, effected by the law, we owe most of our social miseries. If, overlooking the commands of nature to walk upon our feet, to use hands for fabricating instruments, and to live together, men were mad enough to crawl like the serpent with their bellies on the ground, seeking for no food but what their mouths could thus find, and were to live separate and apart from one another like beasts of prey, we, who are sensible of those commands, should attribute the want, ignorance, and destitution which must on this supposition be their lot, even if they could preserve their existence, to their disobedience. But surely no commands are more plain and certain, than those establishing ownership, and a right of property in the things which each individual makes; and therefore we are entitled at once to conclude, that the continual violation by the law-maker of the natural right of property, must be a prolific source of social misery. It is demonstrated, from the structure of the body, that man was intended to walk erect, and the fact that nature bestows all wealth on industry, is a demonstration that she intended only industry to be wealthy. We have overlooked her intention, and suffer accordingly as much misery as if we had followed Rousseau a advice, and walked on our hands and feet.
If there be one command of that Power which created and sustains the universe, and which brings about all the consequences of man's actions more clear than another—and infinitely clearer than any commands that were delivered, as is said on Mount Sinai, or propagated at any time in the past-away kingdom of Jerusalem, it is that which bestows on each individual whatever his hands can catch, can fashion or create Nature or God, whichever the reader pleases, for the two words signify the same everliving First Cause, commands, and always has commanded, that industry should be followed by wealth, and idleness by destitution. But political society is formed on the principle of violating this command. Those who pretend to teach and enforce the commands of the Deity, the priest and the law-maker, go about continually to violate them. Nay, it may be stated that their very existence, prescribing conduct, and exacting the wealth of others, to support their power of prescribing conduct, is a violation of the commands of God. Away, then, with that delusion, with that hypocrisy which, pretending to explain to us these commands, and to enforce them, begins by denying that one amongst them which is the most certain, the most clearly expressed, the most easily understood, and the most universally recognized. Laws and constitutions—political organisation altogether, being founded on a violation of the natural right of property, is the source of most, if not all the evils, moral and physical, which yet afflict our race; but which, I verily believe, we are speedily destined to get rid of, substituting the government of God for the rule of ignorant perverse men.
The stale pretext that nature has not established any right of property, and the stale excuses for violating the natural right, continually made by unthinking persons, deserve only to be met by contempt. Na ture regulates and determines all things, including those sufferings which follow from violating her decrees. When the principles of good government are universally recognized, we may perhaps believe that raising an immense revenue for their support is necessary to the happiness of all. When no example shall be found of a virtuous man not priest-ridden, we may assert that tithes are beneficial. When it is demonstrated that nobles and capitalists are more essential to the existence of society than labourers, we shall be justified in honouring the vaunted merits of an aristocracy. But, till all these things are established, men may be excused for believing that nature is a better judge of what is suitable to society than law-makers, and that those institutions, if they can only be maintained by violating the natural right of property, ought to be swept away. When the wisdom of man shall surpass the wisdom of God, we may suppose that there is some reason in the false pretexts continually put forth by priests, and kings, and their agents.
The words, laws of nature, decrees of nature, which I so freely use, are certainly imposing phrases, and when we speak of such decrees in the material world, we mean an irresistible power which man can neither change nor influence. It appears therefore at first somewhat ridiculous to speak of such decrees in the moral world, and in the same breath to speak of their violation. If we look closer at the matter, the ludicrousness will vanish. The decrees of nature concerning the moral world are as unchangeable as the laws of matter; and I should join in the laugh against myself, if the decrees I have mentioned did not unchangeably exist. When, Sir, was it known, that wants could be supplied without labour? When has man, when has society, existed. for ever so short a period, but on the fruits of industry? I should concede to those who deny that nature establishes a right of property, the correctness of their opinions, did she suffer the right, which I say she establishes, to be ever infringed, much less abrogated, with impunity. Mark, with impunity is the important consideration, because we can trespass on physical laws, but not with impunity. Both in the material and moral world the commands of nature are only known to us through our own pleasures and pains. If we run our head against a post, she warns us by the pain that it is harder than our skull, and commands us to make use of our eyes; if we throw ourselves from a height she breaks our bones, as a punishment, or puts an end to the existence, which would become unbearable from our own carelessness or folly. When we examine the question of property, we shall in like manner find that much misery is caused by our opposing the natural right of property. Nature warns us against that by pain, in the same manner as she warns us to respect the laws of gravity.
We shall also find on examination that the artificial right of property is continually modified by the natural right. Nature therefore suffers us not to abrogate her decrees in the moral world; and she suffers us not to violate them with impunity. She only permits us at our own cost to inflict pain on ourselves, or do wrong for a season, which we can do, as well by violating physical as by violating moral laws. Protesting continually against our rebellion, and warning us continually by its evil consequences, she ultimately, in her own good time, reasserts her authority. She is as absolute in the moral, as in the physical world; governing and regulating every part of it with the most thorough mastery, but kindly compassionate to the infancy of her children, she allows them a long probation to learn her commands. The least knowledge of history is sufficient to satisfy us that her decrees as to property, have always been in operation, are now overthrowing every conflicting in stitution, and are gradually restoring what the ignorance of man, rather than his malevolence, has vainly endeavoured to set aside.
All the efforts made by the legislator to maintain his artificial right of property, are transient, and bygoing facts; the principles which establish the natural right of property are eternal. Their operation is constant though silent, and they are leading forward a very different, if not a better futurity, than what the legislator contemplates. His system has been and will be overruled by them. To show in what manner his decrees as to property have been set aside by the natural laws which establish a right of property, we must advert to the circumstances under which a right of property in land was established in Europe. The changes in man's condition, have made that right which perhaps was sanctioned by reason when it was founded, unsuitable and injurious at present. The right of property in land, however, from its importance, and its peculiarity, deserves to be separately treated of, and I shall postpone my remarks on it to my next communication. At present I rest,
We may find numberless illustrations of the observation in the text in every part of the history of Ireland. If an outraged peasantry, driven to despair by ages of oppression, silently form combinations to obtain revenge—if they in secret lift their hands against the most odious, and the most meddling of their oppressors—if a magistrate be waylaid and put to death, without law, who has, by the aid of the law, slowly starved with much anguish and misery a whole generation. If a priest, whose life has been one vexatious and consistent scheme of legal plunder, fall suddenly by the hand of an assassin—the only language we hear from the conductors of the press is the necessity of supporting that instrument of tyranny—the law, by which alone the magistrate is enabled to tyrannize, and the priest to vex and harass his fellow men. I do not comprehend that philosophy which embracing a long chain of events, rigorously connected as cause and effect, bestows all its indignation on the burning desire of vengeance in the oppressed, and on its consequence, assassination, while it has nothing but praise, or at most a feeble sentiment of half censure, for the numberless acts of oppression of which the desire of vengeance is the necessary consequence. Or rather I do comprehend the base passions which, clothed in the garb of reason, or I should say of reasoning, are palmed on the world as philosophy. The law and the oppression are the work of the same hand; and the indignation expressed by the mouth-piece of the law-makers, and by the class of society for whose behoof laws are made, is the indignation of tyrants, when they find their career of oppression hemmed in; and their desire of wealth and power thwarted by their own fears of the vengeance of the oppressed. The law is the creature of their passions, and they rightly endeavour, according to their own views, to substitute it for the violence which is the offspring of the passions of other people. If, when laws were made, all sentiment of right could have been clean swept out of the heart of man, their career would have been unchecked; the priest might have exacted his tithe, and the landlord might have driven the cows and the pigs of the cottagers for rent, without the least restraint; but as their power does not tend to extinguish this sentiment, law must be brought to conform to the sentiments of both parties; and he, whether priest or gentile, who wants to enjoy his own in security, must respect the own of others, or the natural in preference to the legal rights, of mankind.
January 1832. This is well exemplified by the late debates on Irish tithes, which the sapient Commons, particularly Mr. John Weyland, insisted on the propriety, whatever might be the cost, of preserving the paramount dominion of the law.
Constitution of Man, by George Combe, page 221.
I have just been carefully looking over the reports of the proceedings of the legislature for some years past, and I find in them nothing to contradict the statements of the text. It has been busily engaged, session after session, in making laws to augment the revenue,—strenuously resisting every effort even 10 circumscribe its exactions;—in passing acts to amend corn laws and keep up rents, to build new churches, and to provide greater emoluments for the clergy; in creating jobs of all kinds for the behoof of the aristocracy; in short, continually engaged in devising means to preserve its own power, and secure wealth to those who disdain every employment that creates the objects of their cupidity. When I find the legislature continually so occupied, not merely for getting or overlooking that which is said by Mr. Locke to be the motive for men uniting into a commonwealth, but acting in direct opposition thereto, I must come to one of two conclusions, viz. either all philosophy is arrant nonsense, and nature is a cheat, or your annual legislation is the vilest imposition that ever was tolerated by the too easy credulity of mankind.