Perhaps, among all the subjects that have received human investigation, there is none that has occupied so much of the time, and exercised so severely, the intellectual faculties of man, as his inquiries into the origin and nature of the rights of property. And perhaps it is equally true, that no enquiry whatever has been attended with so little success. It may seem to be the height of egotism, of vanity, of arrogance, of ignorance perhaps, and I know not what else, to make such a charge against the wisdom of past ages. But I confidently point to all that has been, and all that is, and ask if there be, or have been, any two governments of the world, that now have, or that ever have had their laws alike each other, on the subject of the rights of property? Not any two even of the States of our Union, can say as much; though among them, one would think, was the place to look for such a similarity, if it were any where to be found.
No wonder then, that Voltaire, on some occasion should have said that rights change character, as often as a traveller changes post-horses. It was, in truth, no exaggeration; for the fact is still worse than his representation makes it. In the same nation, even, those rights, at two different periods of time are not the same. And, as if this were not a sufficient satire upon our understanding of the subject, I believe, that there may be cases of the litigation of the rights of property in any country now known, where, if one hundred tribunals were simultaneously to try them, each of the greatest eminence for talents in judicial investigation, and each having before them precisely the same means of arriving at the facts, but having, however, no knowledge of each others’ deliberations, they would, nevertheless, give a hundred different decisions.
This ‘uncertainty of the law,’ glorious as it has been proverbially called, by way of ridicule, I take it, is evidence, that the subject is not understood. If it were so, these varying decisions could never happen. Rights are like truths, capable of being understood alike by all men;—as much so, as the demonstrations of Euclid. If, what are called so, are not so understood, it is proof that they are not rights; for it is scarcely to be presumed that they could not be rendered apparent to our perception—and that they are rather the arbitrary commands of power, than anything else.
But it is better to supply the deficiency of understanding on this subject, which seems to prevail, than to make it a matter of reproach. Let us see if it is possible to do it. It will be an achievement, of no small importance to mankind, inasmuch, as it will, in my apprehension, go far to exterminate all the moral and political evils, with which they are now afflicted.
There seem to be three things which have an intimate and inseparable connection with each other.
These are property, persons, and rights.
Out of these materials are built, or ought to be built, all the governments in the world. These are all the necessary and proper elements of their constitution; and these being applied as they have been, have caused, in my estimation, more evil to mankind, than anyone can pretend that governments have done good; and, being applied as they may be, will fulfil the destiny of man, by reversing the results of the past.
What, then, is property? I answer; the whole material world: just as it came from the hands of the Creator.
What are persons? The human beings, whom the same Creator placed, or formed upon it, as inhabitants.
What are Rights? The title which each of the inhabitants of this Globe, has to partake of and enjoy equally with his fellows, its fruits and its productions.
Let no one pretend, that there is yet other property. Let him ascend with me to the earliest ages; to periods of time, anterior to the formation of all governments; when our race existed, but when political institutions did not. For it is to these periods, we must ascend, if we mean to arrive at a true understanding of the theory of all just governments: And it is to these all my remarks, will apply, until I come to offer my sentiments as to the principles of property which ought to enter into their formation. Let no one, then, tell me that the labor, which the savage of the forest has employed, in the manufacture of his bow, is property. That only is property, which belongs to someone. Now it cannot belong to the race, collectively, for they did not produce it. It cannot belong to the individual, who prepared the bow—because, it cannot be separated from it; and because, if it could, it could have no physical existence whatever; and having no such existence, he would possess nothing more, than if he had never made it. Besides, the material, of which the bow is made, is the property of mankind. It is a property, too, which, previous to the existence of government, has never been alienated to anyone. If it has not been alienated, it cannot belong to another. Another cannot have any right to make use of it. Before he does, so, he must obtain the consent of all. What right then had that other to bestow his labor upon it? What right had he to convert it into a bow, or into anything else?
Instead of acquiring a right, thereby, to the bow, he has rather committed a trespass upon the great community of which he is a member. He is rather, of right, subject to punishment, than invested with title, to that which he has taken without consent, and appropriated to his own use. At least, then, it is evident, that his labor, bestowed upon the material of the bow, does not give him a title to the latter? Does the mere act of taking possession of it, give it? Most certainly not. For here, as well as elsewhere, consent is necessary. Otherwise, it would be quite as correct, for example, (all the members having put in an equal share of the capital) for a member of a banking company to appropriate to his own use, the contents or any part thereof, of the iron chest containing the gold and silver belonging to the whole. Nor is it an objection to the force of this argument, to say, that the iron-chest is already in possession of the company, by its agents or otherwise, while the domain of nature is not. It is here that I deny the truth of the declaration. The domain is in possession. The owners—and they are equal owners too, are already present, and upon it. They have not, it is true, divided it, among themselves, and given to each what he may call his own, anymore than the Banking Company mentioned has done the same thing: but they are nevertheless in possession. The analogy therefore is full and complete.
Will it be said, then, someone may ask, that if an Indian kill a deer, it is not, therefore, his? Most certainly it is not. What, in my turn I would ask, is to become of other Indians, if there be actually fewer deer, than are needed? Must the mere accidental, or even sought for, circumstance, of any Indian’s meeting with, and killing a deer, make such Indian the owner of it, to the exclusion of his fellows, who have an equal claim to it by the right of nature? Shall one of the species feast upon it, and the remainder hunger? Besides, as in the case of the bow, may not trespass have been committed in killing the deer also? As, in that case, the animal is the property of the whole, and if consent have not been given, it still remains their property, whatever one of their number may have thought or done to the contrary. For the owners of this deer are only to be divested of their right and title to it, by their own act—and not by the act of another. . . .
In speaking of the consent which I require each individual to obtain of the whole community, let me not be understood, as considering such consent as being the origin of each person’s right to his equal share of the whole property of the globe. By no means. This right he has in virtue of his existence, and in virtue of the existence of the property in question. They are inseparable, while one has vital life, or the other physical existence. But the consent I speak of is necessary, not for the purpose of granting rights, for these are born with the being to whom they belong, but, to define and locate his share; to say how much, what, and where it shall be; and to secure and defend its enjoyment exclusively to himself. Without such designation, he could not be assured of possession, to the exclusion of another; since that other has as good a natural right, to that which is artificially assigned to him, as he himself can pretend to have. As well might it be, contended that the pleasure of the executor, is the source of the right which the heir has, to the share he ultimately obtains, of the estate of the testator, as that the community in question, confers any right on its citizens.
The executor is only a trustee, for the benefit of the legatees; the testator, he who created the executor, furnishes the legacies. So, in the case of the great community of mankind. They in their general, or collective capacity, are trustees, for the benefit of each individual of the species—and the Creator of the Universe is the being, who has furnished the property, which is the subject-matter of the trust, and ordered it to be distributed to all equally. No act therefore, which either the heir to the estate, in the one case, or an individual of the great mass of mankind, in the other, is capable of committing, is competent to create rights for such individual; and for the plain and unanswerable reason, that, they are already created; in the first case, by the testator; and in the last, by the Being who made us and all we behold.
Nor, on the other hand, has the executor, or the great community referred to, any power to create rights, and for the same reason, that they are already created; and that there is no discretion given, to either of the agents or trustees in question, to alter or modify them in the smallest degree. If, as is often the case with legacies, the Divinity had specifically given, designated portions, of the fruits of his Works, to specified persons; then indeed, there would be no occasion for the great community in question to interfere. The work, which it is now their duty to perform, they would then find already achieved to their hands; and they would have nothing to do but to acquiesce. Besides, another reason, why neither the executor, or the community referred to, is able to confer rights, is, that they were not the creators, nor of course the owners, in their own original right, of the property in question. It necessarily existed previous to, and independent of their existence, and of course, came into their possession, subject to the conditions and the commands of a power who created both. . . .