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CHAPTER IV: what is property? - Wordsworth Donisthorpe, Individualism: A System of Politics 
Individualism: A System of Politics (London: Macmillan and Co., 1889).
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what is property?
“Property,” says Proudhon, “is theft.” Very likely: we must not dismiss this opinion with a sneer. Proudhon was unquestionably one of the clearest thinkers of his time. The institution of property is described by Jeremy Bentham as “the noblest triumph of humanity over itself.” Good again! But the two propositions do not quite tally. Let us take an Italian opinion: “The right of property,” says Beccaria,1 the great Italian jurist, “is a terrible right, which perhaps is not necessary.” If we inquire of the poets we get something of this kind—
But poets are not always meant to be taken seriously. Here is the opinion of the most serious and respectable of theologians, the worthy Dr. Paley: “Property communicates a charm to whatever is the object of it. It is the first of our abstract ideas. It cleaves to us the closest and the longest. It endears to the child its plaything, to the peasant his cottage, to the landholder his estate. It supplies the place of prospect and of scenery. Instead of coveting the beauty of distant situations, it teaches every man to find it in his own. It gives boldness and grandeur to plains and fens, tinge and colouring to clays and fallows.” At any rate, property seems to be a remarkable institution. It inspires the intensest reverence and the profoundest abhorrence.
Perhaps it will be said that I have cited extreme authorities. Then I will appeal to an authority who ranks above them all, one who knew more about the conception in its essence than all put together—John Austin. Surely from him we shall learn whether property is a divine or a diabolical creation. Here is his definition: “By property I mean every right over a thing which is indefinite in point of user.” There it is. There is nothing very terrible in it, nothing very sublime. It is tame enough, but it is true. It is the meaning which every one must wish to convey, if he knows what he is talking about, and if he wishes to be clearly understood by others. But it requires explanation.
A right over a thing is a power to use or enjoy the thing somehow or other. Otherwise it is not worth having or talking about. The moon may be solemnly conveyed to me by the State in consideration of my public services. I am grateful for nothing. But not every power to use or enjoy a thing is a right. The cat which has caught a sparrow has the power to eat the sparrow, but we do not speak of the cat's proprietary right. A right is a power sanctioned by the State. Rights over specific things are but species of rights in general, and proprietary rights again are but varieties of rights over things.
Rights in general (by which term I mean to denote all those liberties which are recognised and sanctioned by the State) may be divided into two classes—rights which are expressed in terms of things, and rights which do not relate to things. In Russia a citizen may not quit the country without a State permit. In England we enjoy that liberty. This is a right which is not a right over a thing. In France a married man with a family cannot bequeath all his goods to any one he chooses. In England he can do so. This is a right over things. Let us dismiss all those liberties which are not rights over things, or more correctly speaking, which are not liberties expressed in terms of things, and consider this latter class alone.
We shall find that rights over things may be subdivided into two great classes—rights to Use and rights to Value. I let my house to John Smith, and I mortgage it to Tom Jones. Smith has a right to the Use of the house; Jones has a right only to part of its Value. Now according to Austin's definition of property, rights to value are not proprietary rights. It is true that Blackstone and the lawyers speak of lien as a “special qualified property;” but this is only a learned way of saying that they do not know what it is; we may pass it by. It reminds one of the celebrated definition of a metaphysician as a person talking about what he does not understand to one who does not understand him. Nor are all rights to Use proprietary. But Property is a species of the genus Use. Let us see whether we cannot clearly distinguish between those Uses which are properly called Property and those which are not.
Before doing this, it may be as well to note that not only ordinary people but also lawyers and jurists employ the term Property in two very different senses-a wide and a narrow sense. Hence the extraordinary confusion. In the wider and improper sense it is used to denote all rights to exclusive use; available against anybody and everybody, or as the jurists say “against the world at large.” Then we have Blackstone and the Fog school trying to use the word in two senses at once, and introducing such muddy, meaningless expressions as that just quoted. Iso wonder we have such divergent views of the institution. The definition given by the French Code is about as useless as any definition well could be. It defines nothing. “Property is the right of enjoying and disposing of a thing in the most absolute manner, provided the owner does not make any use of it which is prohibited by law.” It is obvious that we all have proprietary rights over anything whatever if this definition is correct. I have a right to use your house or your horse in any way which is not contrary to law.
Wether property is a good or a bad thing clearly depends on the answer to the question, What is property? The same thing is true of liberty. As I have said, property after all is only a species of liberty. What is true of liberty in general is also true of that kind of liberty which we choose to call property. “There is no such thing as natural property,” said Bentham; “it is entirely the work of law.” But law, we are told, is contrary to liberty. It therefore behoves us to inquire a little more carefully concerning this more general expression, Liberty. Let us follow Bentham:—
“The proposition that every law is contrary to liberty, though as clear as evidence can make it, is not generally acknowledged. On the contrary, those among the friends of liberty who are more ardent than enlightened make it a duty of conscience to combat this truth. How they pervert language! They refuse to employ the word liberty in its common acceptation; they speak a tongue peculiar to themselves. This is the definition they give of liberty: ' Liberty consists in the right of doing everything which is not injurious to another.' But is this the ordinary sense of the word? Is not the liberty to do evil liberty? If not, what is it? What word can we use in speaking of it? Do we not say that it is necessary to take away liberty from idiots and bad men because they abuse it? ”
Bentham is right. Nothing can be clearer than that law restricts liberty. But at the same time we ought not to lose sight of the fact that law also widens liberty. For example, if it gives me a right to do what I should be powerless to do without the sanction of the State, it is clear that my liberties are widened at the same time that the liberties of all other persons are restricted proportionately. And here I will venture to state a proposition. Law creates more liberty than it destroys. Any law which fails to do this in the long run is destined to perish. This truth is nowhere more forcibly exemplified than it is in the case of those liberties which we call proprietary rights. We hear people talk about the sacred-ness of property, as if it were more sacred than any other right. So far from being primordial, property arose with law, and could not exist without it. As Bentham puts it: “The savage who has killed a deer may hope to keep it for himself so long as his cave is undiscovered, so long as he watches to defend it and is stronger than his rivals, but that is all. If we suppose the least agreement among savages to respect the acquisitions of each other, we see the introduction of a principle to which no name can be given but that of Lau.”
It is sometimes, though vulgarly, supposed that property is the right to do whatever you like with your own. True, it often does amount to that; but this is quite accidental. On the other hand, frequently enough the proprietor enjoys fewer and less rights over the thing owned than some others enjoy. For example, the owners of land held under the old tenure of emphyteusis exercised hardly any right whatever over his own property; so little, that at last the prae'tor came to regard the emphytcuta (i.e. the tenant) as the true proprietor, or, as we should say, the equitable owner. Not only was a grantee entitled to possess the lands, to reap the fruits, under the burden of annual payment, but he could make changes in the substance by reclaiming waste land, building, planting, and other operations, provided he did not deteriorate the subject. He could sell his right and it descended to his heirs. In case of a sale the proprietor had, it is true, the privilege of preemption if he was anxious to purchase the subject on his own account, and willing to pay the price offered for it; and for every alienation to a stranger he was entitled to exact a fine of about two per cent on the price. The emphyteuta's right was forfeited and reverted to the proprietor if he deteriorated the subject or neglected to pay the annual rent for a period of three years. The right might also be extinguished by consent of parties, by total destruction of subject, by expiry of term (if any), and by the death of grantee without leaving lawful heirs.
A very similar real right was called “superficies”; a landed proprietor conceded to any person an area of ground for erecting a building upon it, but without parting with the ownership of the soil. The property of the building remained with the proprietor of the land, but the grantee acquired a real right to the full possession and enjoyment of the edifice, either for a definite period or in perpetuity; and this right was transferable during life, and it descended to heirs. It was regulated by contract, and might be granted either for a price down or for an annual rent. “In many respects,” says Lord Mackenzie, “this jus supcrficiarium bears a strong resemblance to the long building leases granted by landowners in England in consideration of a rent, and under reservation of the ownership of the soil.”1
In our own country the holders of very long leases, though not regarded as proprietors, certainly enjoy rights over the property quite out of proportion to those exercised by the freeholder. Probably it is from a feeling of the truth of this that there is at the present time a very strong desire on the part of many to convert the leaseholder into the proprietor, or, at least, to give him every facility for becoming the proprietor in cases where the lease is a long one. I do not wish in this place to offer any opinion on the merits of this political question, but I may point out that the proposed change in its essence is rather one of juridical classification than anything else. I do not say that much injustice might not result from what may appear to be nothing more than a mistaken classification, just in the same way as much injustice was done, and still is done nearly every day owing to the action of the law, in accordance with the accepted definitions of such words as partnership, use, lien, etc. All I desire to affirm is, that unjust action need not necessarily result from bad juridical definitions.
After this digression we will return to the distinction between property and other rights to use things. I suppose most of us think, in spite of legal jargon and of the sophistries of jurisprudence, that we know pretty well what property is. Let us see. Who is the proprietor of a mortgaged estate? The person who holds the land, so to speak, as security for his loan? or the original owner? Who is the owner of a pawned watch? The pawnbroker, or he who pawned it? These are two very simple cases, and yet the more we look at them the more difficult does the answer become. Of course we know what view of the matter the Courts will take in this and other countries; but that is not the question I am asking. Believing that the term proprietor has a meaning, 1 ask, Who is the true proprietor? not, Who is regarded by the English law as the proprietor? I suppose there can be no two opinions as to who is the owner of a hired horse; yet, if we generalise and say that it is easy to declare who is the owner of any hired thing, we shall find ourselves at once in a difficulty. If the article lent be a horse or a plough, there is no difficulty about the matter. But if A lends a hundred sovereigns to B, who then is the owner of those gold pieces? Or if a testator leaves a house and a cellar of wine to his widow for life, with remainder to his children, who is the owner of the house, who of the wine? Now, apart from legal technicalities, we may say that the widow is not the owner of the house, but that she is the owner of the wine. Who is the owner of a watch which has been stolen and sold by the thief to a bond fide purchaser? Is it the original owner of the watch, who has never voluntarily parted with it? Or is it the man who has paid for it bond fide, not knowing it to have been stolen? Here again we know what is the view acted upon in the English Courts. We also know how the law of ancient Rome regarded the matter; and we might ascertain, if we cared to do so, who is the owner according to the French, Prussian, or Italian codes, and who is treated as the owner by the Ma-hommedan or Hindoo law. But what we want to come at is, Who is really the owner of the watch? Who is the owner of a piece of prairie land which has been imperfectly fenced in by some pioneer of civilisation? Who is the owner of a newly-discovered island? Suppose a draper deposits a certain amount of cloth with a tailor with instructions to make it up into clothing, and the tailor does it, who is the owner of the clothing? Is it the draper who was originally the owner of the cloth? or is it the tailor who converted the cloth into wearing apparel? In Eome, if an artist painted a picture on canvas or board belonging to another man, the picture belonged to the painter and not to the owner of the canvas or board. “For it would be ridiculous,” says Justinian, “that a work by Apelles or Parrhasius should go as an accession to a wretched tablet.” But if a poet wrote verses on another man's parchment the finished article belonged to the owner of the parchment. If a workman made clothing out of cloth or skins, or a table out of wood belonging to another, the new goods belonged to the workman, and the original owner of the material had only a lien upon them to the extent of its original value. But even here there was an exception where the product could be retransformed into its original state, as in the case of silversmith's work, which could be melted again into bullion. In this case the original owner of the silver was the owner of the plate, and the workman had only the lien. If there is to be found any general principle underlying these apparently contradictory rules, it is, I think, the principle that the property or dominion should belong to him whose just share in the finished article is of the greater value; and the lien to him whose share is less. Thus, as a rule, a picture is worth a good deal more than double the value of the canvas on which it is painted, whereas the value of parchment was in Eoman times greater than the cost of clerk work upon it. The poet could get his poem copied out again at less than the price of the parchment. So, as a rule, the larger part of the value of plate is the value of the precious metal of which it is made. When wine was made from grapes it could not be restored to its original form, and moreover it was worth far more than double the value of the original grapes, and it was held to be the property of the wine-maker.
All this may seem of very slight consideration but in truth it is of the utmost importance. Upon the answers given to these very simple questions depend the future of the land question, the future of the Church question, and, more important than either, the future of the labour question.
We have seen that not all rights over things are proprietary rights. For example, I have a right to ride on a horse which I have hired from a livery stable-keeper. That right may or may not be available against all the world; but in neither case can it be regarded as a proprietary right. There is no particular reason why a right to the use of a hired thing should not avail against all the world, beyond the fact that in England and most other countries it does not. Once upon a time1 a canal company granted to a person of the name of Hill the exclusive right of putting pleasure-boats on their canal. Hill very naturally thought that, under these circumstances, he had a right to prevent any one else from doing so. Consequently when, nevertheless, another person did put pleasure-boats on the canal, he instantly sited him; but the Court decided against him. “A grantor,” it was held, “may bind himself by covenant to allow any right he pleases over his property, but he cannot annex to it a new incident, so as to enable the grantee to sue in his own name for an infringement of such a limited right as that now claimed.” This may be good law, but it is shockingly bad policy.
But are we any nearer the discovery of the distinction between rights over things which are correctly styled proprietary rights and other kinds of rights over things? It is true we have seen that so far from being a “right to do what you like with your own,” property is sometimes almost an infinitesimal right over the thing owned. What is the most noticeable difference between the rights of one who lets a horse out for hire, and the rights of one who hires the horse? Suppose you hire a horse for a ride on the roads, and you proceed to hunt him across country, under the ancient Roman law you were guilty of furtum; you had misappropriated a use of the horse to which you had no title. There are a thousand liberties which the hirer may not take with the thing hired, compared with one or two which he may take. He may not clip or singe the horse, he may not dock his mane or tail; if he should feed the horse, he must do it at his own risk in case the food should disagree. But it would take a week to enumerate all the things that he must not do. What he may do is distinctly known and defined. Not so in the case of the proprietor; he may clip the horse, paint the horse, kill the horse, eat the horse, sell the horse—in short, he may not do just those thousand and one things with the horse which the hirer must not do. Thus the most marked distinction between the rights of the hirer and of the proprietor is one of definiteness. The rights of the proprietor are indefinite. He may do just whatever he pleases with his own, with one important class of exceptions. He must not infringe upon the definite rights of others. What he may do is indefinite, what he may not do is denned and clearly set forth. It is precisely the other way about in the case of the hirer. Here, that which he may do is clearly defined, that which he may not do is undefined.
We may now define property as all those undefined uses over a thing which remain over after the definite and specific uses of others have been deducted. These defined uses may be few or many, of greater or less value than the residue of proprietary rights. They may vest in one or more individuals or in the whole State; for the nation reserves the very definite right of purchasing anything whatever in this country at its market value from the proprietor when required for purposes of public utility. That definite right must be deducted from the whole bundle of rights inhering in the proprietor. In nine cases out of ten there are several other rights to deduct before we are in a position to define negatively the rights of the proprietor.
In the light of these reflections I now propose to take two forms of property, and to inquire rather minutely into the arguments which are to-day put forward, not without heat, for and against their recognition by the State. I take these two forms because they are in every way typical. They are Land ownership and Tithe ownership. They are of course of very different importance; but each in its way illustrates the true definition of the term “property ” in a marked degree. As to the thing owned, land is said to be peculiar in many respects. And as to the person owning, tithes are a peculiar form of property. It is held by many (by no means shallow thinkers) that land ought not to be held by private owners. And it is held by others that tithe ownership is wrong, if not indeed absurd.
Take land first:—Absolute, unlimited right to the land is of course an utter absurdity. It is not usual even to speak of a proprietor of land. We speak of an estate in land, though there would be nothing improper in describing the landowner's rights as proprietary, provided we bear in mind that such a thing as an absolute right to land has never been recognised in this country. Thus in order to ascertain what are the rights of the landowner, we must first deduct the State right to expropriate the landowner, whenever it shall appear desirable in the common interest to do so. The landowner cannot say it is unjust, illegal, contrary to usage, because it is not. The practice has been recognised from time immemorial.
Vattel defines dominium emincns to be “the right which belongs to the society or the sovereign of disposing in case of necessity and for the public safety of all the wealth contained in the State.”
And Chancellor Walworth says: “All separate interests of individuals in property are held of the Government, and notwithstanding the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in the Government, or in the aggregate body of the people in their sovereign capacity, and they have a right to resume the possession of the property in the manner directed by the constitution and laws of the State whenever the public interest requires it. This right of resumption may be exercised not only where the safety, but also where the interest, or even the expediency of the State is concerned; as where the land of the individual is wanted for a road, canal, or other public improvement.”
No landowner has ever been in a position in this country to raise the plea that it is illegal to dispossess him of property in the land for purposes of public utility, because it is not. He simply has the indefinite rights which remain after deducting the definite rights vested in other people inclusive of the State. We know that these rights have been exercised over and over again of late years. In the case of railway concessions, the landowner receives full compensation for his interest in the land; beyond this he has no claim whatever. It is his misfortune if his ancient memories and family associations are ruthlessly sacrificed in the public interest; and there the matter ends. He holds his land subject to the liability to be turned out whenever it shall be to the public interest to turn him out. The accident has come about which renders it desirable to make public property of his land, and he has no more ground of complaint than he would have if a flash of lightning sent his chimney-stack through his roof.
Next to this definite State right come public rights of way and other uses which have been always admitted as customary These public rights over the land of the landowner are perfectly definite. Again, there are frequently private easements to deduct. That is to say, a neighbour has a right of way across the land, or a right to the support of his house, or a negative right to the stream which flows through the land; a right to forbid the landowner from molesting or spoiling or diverting such stream. Sometimes, as in the case of copyhold, the right of digging under the surface for coal or iron is vested in some one who is not, strictly speaking, the landowner. Finally, the owner must so exercise his indefinite residual rights as not to injure others. He must not become, or allow his property to become, a nuisance. But when we have deducted all these definite rights vested in others, there is still left a residuum—a large fasciculus—of undefined rights, which are properly described as proprietary.
With these qualifications what conceivable objection can be raised to property in land? When we see that property simply means the indefinite rights which cannot be enumerated simply because they are so indefinite, is there any serious and valid reason why these rights, whether over land or anything else, should not be vested in some one individual? For my part I not only see no reasonable objection to this course, but, furthermore, I observe that in this and in other countries, and also throughout all history, property in land has done more to stimulate exertion on that land than any other system whatever. We see what miracles have been wrought in certain parts of France and Belgium by the system of peasant proprietorship. I do not say that these peasant proprietors are altogether happy or prosperous. The contrary is probably attributable to the absurd laws interfering with freedom of bequest in those countries. So far as the soil itself is concerned, there can be no doubt that its fertility has been enormously stimulated by the system of land property. The peasant owner of a plot of one acre will produce from that acre more than three labourers can produce from an equal area belonging to somebody else. So it is said. Surely, in itself, this is a strong argument in favour of separate ownership of land; and probably those who call themselves land nationalisationists, and who run a tilt against private property in land, are doing more harm, or would do more if they could, than any other class of socialists in the country.
I admit at once that many valid objections can be urged against the system of property in land as it is at present regulated. Let us examine one or two of these objections carefully. First, it is alleged that the landowner exercises too much influence over his tenants, that his power is hardly compatible with the perfect freedom of those who hold under him. Certainly this has been the case in many parts of the country, but it was much more marked some years ago than it is now, and what was called landlord tyranny is almost a thing of the past. But, apart from the undoubted influence which his position seems to give him, it is said that the contracts which are entered into between landlord and tenant are, as a rule, unfair to the tenant. Well, if this is so-and I for one do not believe that in the majority of cases there is any foundation for the contention-still, if it is true even in a great many cases, this is no argument against the system of private property in land. It simply goes to show that the farmers of England are not yet as well advanced in organisation as the artizans of the towns. If the farmer finds himself unable, individually, to provide for entering into a sound and fair contract, he ought to have recourse to the ordinary resources of free men, that is to say, union. It is folly to apply to the legislature to upset an existing and beneficial order of things in order to give the farmer some slight advantage in entering into a contract.
The second objection to the land system is, that land tends to accumulate in single hands. This is said to be a very strong objection. The land does tend to accumulate in single hands. That is true; but what is the reason of it? It is not because we allow of private ownership. Separate or private ownership is recognised and encouraged on the Continent in countries where we see the peasants in complete ownership of the soil. What then is the reason that in this country the soil is held to the extent of tens of thousands of acres in single hands, and that in the opinion of some these vast accumulations tend to grow rather than to dwindle? It is not because of the system of separate ownership. It does not happen in the case of other kinds of fixed capital. We do not see mills, factories, and furnaces held in unworkable quantities in single hands; and if we see this anomaly in the case of land, it is simply because we have been the victims of socialistic legislation. One of the worst forms of this kind of law-making is embodied in the legislation of this country relating to what are called trusts. The State practically acts as a trustee, and interferes with the liberties of private persons in the interest of persons long since dead and gone, of non-existent persons, and of indeterminate persons. The system of settlements permitted in this country is a flagrant instance of socialistic legislation. The power which a living man exercises, and is allowed to exercise, of so settling his land that when he is dead he shall still have a say in its disposition and in the conditions subject to which it shall be enjoyed by the occupier, would be impossible but for the help of the State, which practically prolongs the life of a dead man by enforcing obedience to his commands.
Thirdly, it is urged that under the present system of land-tenure, capital is divorced from the soil. This is perfectly true, but why is it so? and why is it not so in other departments of industry, where capital finds its way to the most productive channels? Not because of private ownership, but chiefly because of the cost and difficulty of transfer, which is entirely due to the law.
There are three objects in an ordinary deed of conveyance, and there are only three which have to be taken into consideration when land is transferred from one person to another; and those same objects must be held in view when any other kind of property is to be transferred. The first is, that the transaction shall be sufficiently solemn to preclude the probability of haste, inadvertence, or impulse. More importance was attached to this precaution in ancient times under the Eoman law than we seem to think necessary to-day. Possibly we English are not so impulsive a race as the Romans. The next object to be kept in view is, that the evidence of the transaction shall be unimpeachable. And lastly, it is necessary that third persons shall be made aware of the change of ownership. These three objects having been attained, and more especially the last two, nothing more remains to be done. There is no conceivable reason why land should not be transferred as quickly, as easily, and as cheaply as any other kind of property whatever. We know well that English lawyers and conveyancers are in the habit of shrugging their shoulders when this statement is made, and of attributing to those who make it absolute ignorance of the whole subject. They make no attempt to show why there should be any difference; they are content to take refuge behind the intricacies of the subject, Beati possidentes! It is in vain to point out that in the English Colonies this is done: that it is done in some of the old countries of Europe, as well as in the younger civilisations of America. The reply is, that it cannot be worked iii England, and that it is of no use talking. The thing is impossible, and there is an end to it. But, in truth, the lawyer knows in his heart that there is no difficulty whatever. The transfer of land could and should be effected in this country as readily and simply as the transfer of a horse or of a steam-engine.
It is a singular fact that in England the law fails to recognise the advance which has taken place in the education of the people. We alone, of European nations, are still apparently ignorant of the fact that people can read and write. In other countries, in France, in America, and in our own Colonies, land can be transferred in the simplest possible manner by the instrumentality of registration. The Lord Chancellor, in presenting the Land Transfer Bill, 1887, defended it against the charge of State interference. The Laud Act of 1875 had failed mainly because it made registration optional. The new Bill proposed to make it compulsory. “It is untrue,” said the Lord Chancellor, “that the compulsory registration of land is an interference with the liberty of the subject; it is the creation of a system of laud-tenure, and it would be as correct to describe the ' Statute of Frauds' as an interference with liberty, as to make that complaint about this measure.” This is perfectly true. Land registration will not meet with the opposition of individualists on the ground that compulsory registration curtails freedom, and substitutes State action for individual action. The interference comes in when the State enforces a contract at all. It is a normal State function; provided it is safeguarded against fraud. Hence the State cannot undertake to enforce all promises; it must limit the enforcement of contract in several ways. In some cases it is satisfied with sufficient verbal evidence of the fact of the promise, in other cases the promise must be in writing, in others again writing is not enough, it must be in the form of a deed (a form which originally amounted to a public notification), and in those cases where no writing is required, it must have proof of consideration. It will not undertake to sanction a nude pact. Now surely all these carefully-balanced conditions are the very bulwarks of liberty. They are the outcome of ages of experience, the very progeny of individualism. There is no reason whatever why a one-sided promise should not be enforced by the State if such promise was made. Omne verbum de ore fideli cadit in debitum. Yes, but was the promise made? What is the evidence which the State ought to accept? That is the question. Is a little hard swearing to ruin a man? Or is it not better to insist upon certain simple precautions which in no way trench upon the freedom of a citizen, and which safeguard the alleged promisor against false evidence, if not also against his own hastiness? No one is aggrieved. If writing is required, let the promisee get the agreement in writing. If this gives the other party time to think better of the bargain, so much the better.
But there is a stronger reason even than this in favour of what is unfortunately mis-called compulsory registration. Registration is undoubtedly in modern times the simplest and most perfect form of public notification. Third parties are frequently, nay almost invariably, interested in the transfer of land. How are these third parties to be apprised of the intended transfer by which their own rights may be seriously affected? The old formalities of emancipation with the scales and the balance, the libripens and the five witnesses, made a sufficient noise in a place the size of ancient Rome. So the formalities which accompanied livery of seisin, the number and importance of the persons present, the solemnity of the words and gestures of the feoffor, all contributed to render the transfer notorious in the neighbourhood. In Justinian's time, when res mancipi had been absorbed by res nee mnancipi and when tradition sufficed to transfer ownership; and now in England, where a deed can lie executed in a cupboard without the knowledge of interested persons who possibly reside in remote parts of the country; the door is open to fraud. We cannot come back to the beating of boundaries, the blowing of trumpets, and the thrashing of boys and priests at the landmarks; but we can make use of a louder trumpet than any known to our forefathers-the public register, supported by the public press. With such an instrument in our hands, it is simply criminal to neglect it. A Bill for withdrawing State recognition from unregistered land-transfers should speedily become law, and so increase the liberty of Englishmen.
Fourthly, it is alleged by the opponents of a separate system of land ownership that the landowner pockets-what ' The unearned increment? Surely this phrase expresses the most extraordinary piece of illogical confusion that could well have been palmed off upon a semi-intelligent public by so honest and clear-headed a thinker as John Stuart Mill. How he could have brought himself to talk about unearned increment as he did, is one of those riddles with which Genius every now and then puzzles us. Unearned increment simply means the reward of successful risk. Two men invest a sum of money each in a piece of land. A in this, and B in that. One plot turns out a success and the other a failure; you turn to the man who has success on his side and you tell him that he sat down and did nothing while the land brought him in unearned increment. He might have put out his money into consols or into railway stock with a similar result; he would then have pocketed his unearned increment in peace. Then the unlucky speculator B has suffered the unearned decrement; but does any one propose that the State should make his loss good? Why not? Every kind of investment looks for a reward in proportion to the risk run. If you invest in consols you get something under 3 per cent, in railways about 4 per cent-you might get 8 or 15 or 2, but the average profit on all the investments throughout the country is somewhere about 3 per cent. If you invest in a worsted factory, you may perhaps not be satisfied unless you get over 10 per cent. Every industry has its own average rate of profit-agriculture like any other. If you invest in agricultural land you may think yourself lucky if you get 2-½ per cent. In. town property the risk is greater and the profits expected are consequently higher. But to single out the owner of land, whether agricultural or urban, and to charge him with pocketing unearned increment indicates utter ignorance of the economics of trade.
The fifth objection urged against our present system is that unworthy families are artificially bolstered up. In other businesses if a son is not worthy of his father, if he be an intemperate, dissipated, good-for-nothing fellow, he goes to the wall and is lost sight of. There is an end of him and of the matter; but in the case of land proprietors the generation is tided over, the land is entailed and the family kept up, and we have a deteriorated breed. This is perfectly true; but why should we revolutionise the whole system in order to meet this objection? When the tenant for life is treated as the absolute owner, he will be able to disencumber himself of his land as rapidly as he now can and does of his money and chattels. The son will reap the reward of the father's folly, and will be compelled to commence life de. novo, without the artificial support of the State.
Thus we see that none of the objections popularly urged against the system of property in land touch the roots of the matter. Some of the more childish objections would apply with equal force to private property of all kinds. I have heard agitators ask whether the people of England are going any longer to tolerate a system which would enable the wealthy and malevolent speculator to buy up a strip of land extending across Great Britain and to forbid the rest of the nation from passing to and fro across it. I have heard them ask whether a system can be good which would admit of a large landowner in time of dearth making a bonfire of the produce of tens of thousands of acres. It is clear from what I have said as to the true meaning of the word property, that no speculator could prevent the people from making any use they thought fit of his slip of land. It is also clear that the second objection is applicable to property in anything whatever. Suppose a wealthy Vandal should buy up all the extant works of Reynolds, Hogarth, and Turner with a view to making a bonfire of the lot, would the English people think it necessary to abolish the institution of private property? Or would they not rather find some rough and ready method of dealing with such a misanthropic maniac?
Mr. Bradlaugh not long since introduced a Bill into the House of Commons for the purpose of bringing pressure to bear upon owners of uncultivated land. He was accused of adopting socialistic remedies for the cure of admitted evils. I do not think the charge a fair one. The State has reserved the right to buy up any land whatever for purposes of public utility, whether such land is uncultivated or not. It is conceivable that, in case supplies from abroad ran short, it might be deemed necessary to stimulate production in this country, in which case no individual could reasonably object to the expropriation of a landowner who neglected to turn his land to the best account. The question is whether the public would be gainers by the course proposed by Mr. Bradlaugh. It is probable that the effect of his measure might be to induce some careless landlords to bring land under cultivation which has hitherto been devoted to sport. But we must not forget that the value of land devoted to sport must not be measured by the rents paid by the squatters and commoners who glean whatever may be left after sport has been provided for.
So that in taking a seven years' average (as is done by the Bill) of the rents received from such land, it would be necessary in all justice to estimate the rental which the landlord virtually pays to himself for the use of his land for sporting purposes, and it seems to me that even if an actual rent was required it would be very easy for landowners to evade the law by renting each other's lands at their proper valuation for sporting purposes. We are driven to inquire whether Mr. Bradlaugh proposes to forbid the use of land by the owner for this purpose, or for any other purpose than that of food-producing.” Whenever land is left in the natural state, because in the opinion of its owner it would be unprofitable to cultivate it, we may be sure that even if the State got it for nothing at all it would incur a dangerous risk in bringing it under cultivation. In ninety-nine cases out of a hundred the landowner is a better judge of his land than the general public, and he is also more anxious to get the most he can out of it; and therefore, although in one or two exceptional instances some little good might result from these compulsory purchases, in the great majority of cases the nation would be a loser, and food if raised at all on such land would be sold at a loss. At the same time it should lie pointed out, that between the aim of this Bill and the aim of natioiialisationists there is a fundamental difference of principle.
I do not know whether it is worth while to criticise in detail the arguments of this school. I am not sure that there are any arguments common to them all or to a majority of them. The truth is that “land nationalisationist” is a term applied to a great many very different classes of doctrinaires, some of whom have definite notions of what they want, whilst others have no clear aim beyond that of upsetting the existing system and, if possible, transferring wealth from the pockets of landowners into their own. Probably this is the leading idea in the minds of nine-tenths of those who dub themselves by this appellation. On the other hand, I should be the last to affirm, because the majority of any party are dishonest or illogical or both, that therefore the thinkers and leaders of that party are equally dishonest or illogical. I know there are men who sincerely believe that State ownership of the land would be for the public benefit. These are not the men who would dismiss the landlords without compensation on the ground that they are no better than robbers; they recognise the great difficulty of transferring the land from its present owner to the State without doing injustice on the one hand, or crippling the national resources on the other. I am disposed to agree with them thus far, that if their ultimate object were desirable, the process might be effected without either of the two evils dreaded. But we disagree as to the desirability of the end, no matter how brought about. I contend that even if the landowners of this country presented their acres to the people as a free gift, one of two things would happen. The gift would turn out a white elephant and would cost the State untold millions, or a new race of proprietors would take the place of those who had retired. State ownership of land, in the sense in which ownership is properly understood, has never worked satisfactorily yet, and it never will. If by ownership we choose to mean something different from what we usually mean by the term, there is no particular reason why we should not reply that the State is already the owner of the land. What I here mean by property and also by ownership is the bundle of indefinite rights over anything after all definite rights have been deducted; and it is these indefinite rights which individuals know how to enjoy and how to turn to account, and which the State would necessarily either waste or abuse.
There is one argument vulgarly used against what is called landlordism which deserves notice for no other reason than that it is frequently employed by dishonest agitators in addressing the working classes in this country. It is said that the land is held by those whose ancestors came by it unjustly. Some estates are still held, as they point out, by those whose ancestors won them by the sword; others by those whose ancestors received them as favours from the king: others again are said to have been purchased with ill-gotten wealth wrung from the oppressed tax-payers. It is further urged that these present landowners can have no just title to land acquired in this way. Highly-coloured pictures of the wrongs inflicted upon the people by the ancestors of landlords are drawn in order to excite the passions of the audience, and there is just enough of historic truth in the allegations to command the assent and appeal to the imagination of uneducated persons; though it must be admitted that the shrewd common-sense of the English public is as a rule proof against this kind of flimsy sophistry. Still the argument, for what it is worth, must be met, like Bombastes, face to face, and with a like result. Let us grant that some large estate is still in the hands of the successors of one who originally acquired it by force. Let us pretend that it was wrested by a fierce Norman baron from some good kind Saxon occupier, whose only aim was to cultivate his land and live at peace with all men; is this a sufficient reason for dispossessing the present owner without compensation? Again, suppose that some swindler, well known to history, long ago contrived to amass a large fortune and to invest it in Government securities; will it be contended that his descendants of a century later should be compelled to disgorge? Or to take a wider view; even admitting that Englishmen appropriated the land of Ireland by conquest, wrongfully dispossessing the then owners, is that a valid reason for expropriating the successors of the conquerors, three, five, or seven centuries later? The Welsh, we are told by these spouters, are the “natural owners ” of Wales, whatever that may mean. But who are the Welsh? how did they come by Wales? We shall soon find, if we are consistent, that we English have no rightful footing in this country. England belonged to the Welsh before the existence of the English people; and further back still, there are traces of a Celtic conquest. It is known that a race of men inhabited this island before Irish, Gael, or Welsh had crossed the eastern waters. Where are the descendants of these men, to whom we should justly hand over the British Isles? Some say their descendants are still to be found in the valleys of the Pyrenees. Even if there is any doubt, the Basques have a better title, by reason of the very doubt, than either Saxon, Celt, or Norman; and the sooner we hand over our ill-gotten territories to the most probable rightful owner, the better.
It is a pity such twaddle as this should have to be talked; but, so long as certain metaphysical notions of right and justice prevail, it will be necessary to combat the most whimsical theories by the method of reductio ad absurdum.
I have dealt thus at length with property in land because there is a very strong feeling among even the most powerful thinkers, that a fundamental difference exists between property in the soil and property in movables. Mr. Herbert Spencer has gone so far as to furnish arguments in support of this contention.
“How,” he asks, “did possession of land become individualised? There can be little doubt as to the general nature of the answer. Force in one form or other is the sole cause adequate to make the members of a society yield up their combined claims to the area they inhabit. Such force may be that of au external aggressor, of that of an internal aggressor, but in either case it implies militant activity.” He goes on to say, “It seems possible that the primitive ownership of land by the community, which, with the development of coercive institutions lapsed in large measure or wholly into private ownership, will be revived as industrialism further develops. . . . In legal theory landowners are directly or indirectly tenants of the Crown (which in our day is equivalent to the State, or, in other words, the community). The community, from time to time, resumes possession after making due compensation. Perhaps the right of the community to the land thus tacitly asserted will in time to come be overtly asserted and acted upon after making full allowance for the accumulated value artificially given.”
Now I cannot admit that aggression is the cause of private property in land, any more than in anything else. Force, of course, it is: but so also force is at the back of every contract. It is that kind of force which is employed by and with the previous consent of the coerced party; and which, while in one direction it restricts liberty, in another direction enlarges it to an even greater extent. The one kind of property has sprung into existence for the same reason as other kinds; namely, because the race has been benefited by the institution of property. When Mr. Spencer looks forward to the time at which the community will openly assert what it now (in his opinion) only tacitly asserts, he seems to be drawing a distinction without a difference; for the community at the present day not only tacitly but overtly claims the right of dispossessing the owners of land whenever the welfare of the State requires it. There is nothing tacit or hidden in the claim of the State to construct roads or railways through the land of a citizen without any other consideration for his feelings than the allowance of full compensation.
Even the orthodox Blackstone himself seems to have some misgiving as to the natural justice of the institution of property.
“Pleased as we are,” says he ”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 there is no foundation in nature or in natural law why a set of words upon parchment should convey the dominion of lands; 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 deathbed, 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 scrutinising too nicely the reasons of making them.
He then tries to find some adequate justification for the institution of private property, and he finally adopts, as the best and strongest, the theory of Grotius. I do not know whether it has been pointed out that Blackstone's explanation of the origin of property is borrowed bodily from the DC jure belli ct pacis without a word of acknowledgment, but those who compare the two will see that it is. He adopts Grotius's theory of an original title from the Creator as recorded in the first chapter of Genesis; he makes the same statement as to primitive institutions; the same reference to the manners of the semi-civilised races of America; and the very same quotation from Justinian—" erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset.”
Turning to Grotius himself we find that he also had his doubts as to the unholy origin of the institution. He says: ”There we learn what was the cause why men departed from the community of things, first of movables, then of immovables; namely, because when they were not content to feed on spontaneous produce, to dwell in caves, to go naked, or clothed in bark or in skins, but had sought a more exquisite kind of living, there was need of industry which particular persons might employ on particular tilings. And as to the common use of the fruits of the earth, it was prevented by the dispersion of men into different localities and by the want of justice and kindness which interfered with a fair division of labour and sustenance, and thus we learn how things became property.”
While views like these can be entertained by men whom it would be an impertinence even to compare with the talkers self-styled land nationalisationists, it is fair to admit that the arguments of the latter receive material support from the writings of these recognised authorities. But it should also lie pointed out that while these arguments are deemed sufficient to warrant the most positive dogmatism on the part of shallow politicians, Mr. Spencer himself draws from them the most hesitating and doubting conclusions. “It may be doubted.” says he, '' whether the final stage is at present reached.“ Again, speaking of the assimilation of real and personal property, he says, ”the assimilation may eventually be denied: ” and again he suggests that" at a stage still more advanced, it may be lie that private ownership of land will disappear,” and he concludes in a passage already quoted, that the revival of primitive ownership of land by the community “seems possible.” The wholu of the chapter forecasting the future of property in land bristles with such qualifying expressions as “perhaps,” “it may be,” “it seems possible,” “it may be doubted." and suchlike admissions of hesitation and uucertaiuty. The chapter on property in his volume Political Institutions concludes thus:
“There is reason to suspect that while private possession of things produced by labour will grow even more definite and sacred than at present, the inhabited area which cannot l)e produced by labour will eventually be distinguished; as something which may not be privately posessed. As the individual, primitively owner of himself, partially or wholly loses ownership of himself during the militant regime, but gradually resumes it as the industrial legime develops, to possibly the communal proprietorship of land, partially or wholly merged in the ownership of dominant men during evolution of the militant type, will be resumed as the industrial type become- fully evolved.”
I have said before, and I say now, that in my opinion all this doubt and difficulty would have disappeared from Mr. Spencer's mind if he had thoroughly appreciated the definition of property given by Austin as the result of his profound analysis of the term.
The very notion of property involves, as I have said, the distinct contemplation of two factors-a thing owned, and a person owning. I have hitherto dealt with differences in the nature of tilings owned. We will now look at the subject from the other point of view.
To begin with, the owner must either be one, or more than one. If more than one, the persons owning must be determinate persons, that is to say, persons who can be singled out and pointed to. If this cannot be done the question arises, “Who are the owners? and who is to forbid third persons from exercising the rights of proprietorship ' For example, who are the owners of what is usually described as the property of the Church of England? Does it belong to any determinate persons? Can they be singled out? No one supposes that the mere officials of that body can be regarded as the owners, but if the bishops and clergy are not the owners, who are?” Writing upon this subject John Stuart Mill says:
“Would you rob the Church? it is asked, and at the sound of the-c words rise up images of rapine, violence, plunder; and every sentiment of repugnance which would be excited by a proposal to take away from an individual the earnings of his toil, or the inheritance of his fathers, conies heightened in the particular case by the added idea of sacrilege. But the Church! Who is the Church? Who is it that we desire to rob ? Who are the persons whose property, whose rights, we are pr$ 'posing to take away ? Not the clergy; from them we do not propose to take anything. To every man who how benefits by the endowments we would leave his entire income. But if not the clergy, surely we are nut proposing to rob the laity; we are exhorting the laity to claim their property out of the hands of the clergy who are not the Church, but only the managing members of the association.”
Clearly, unless there are definite persons to vindicate the rights of ownership, there is nothing to prevent any other persons from exercising such rights, except the State itself. But what is the ground for State interference, unless be lie that the State regards itself as the owner, or acts as the defender of the rights of certain determinate citizens? That the Church is a corporate body, with rights as well defined as those of other corporate bodies, seems to be an exploded idea, even amongst its supporters. The fundamental conception of the Church of England which is constantly put forward by the advocates of disestablishment, says Lord Selborne, “is that of a State church—a political creation—a church called into existence by the State, and deriving from the State the essential law of its being.” “But,” says the author of the learned but unsatisfactory Defence of the Church of England, '' I do not and cannot take my stand upon any mystical view, such c.g. as that the Church is a person with a corporate conscience cognisant of matters of religion.” Lord Selborne's own view of the Church is a singularly inadequate one. He says: “The Church is a society placed by its divine founder in the world, though the spirit by which it is or ought to be actuated is not of the world.” I do not propose to follow him through his elaborate argument to prove the identity of the Church before and after the Eeformation. I do not care whether it was the Church of Rome or the Church of England of which the rights and liberties were declared to be inviolable by King John's great Charter, confirmed by Henry III. I care nothing at all for the decretals ascribed to Isidore. Archbishop of Seville, upon which the entire edifice of mediaeval and modern papal supremacy was built up. I care no more for the origin of Church property, than I do for the origin of the Irish landowner's property. The question for us i” a present-day question. If we are asked to respect the proprietary rights of the Church of England, we have nothing to do with ancient history, or with titles buried in oblivion; all we have to do is to find out, who. if any, are the person claiming the property. The difficulty is only removed one step farther back by the modern churchman's device of disclaiming proprietary rights on behalf of the Church as a whole, and reclaiming them on behalf of limbs and branches of the Church in local areas. “In regard to all land endowments,” saysdean Plumptree, the facts are so plain that he who runs may read them. They were given or bequeathed by the Crown, or individual proprietors, not to the Church at large, for the Church at large has never been a corporate society capable of holding property, but to abbeys or cathedrals which were corporate bodies with that capacity, or to the vectors and vicars of parishes as corporations sole." Again, Professor Freeman says: "People talk as if the Church property was the property of one vast corporation called the Church. In truth, it is simply the property of several local churches, the ecclesiastical corporations sole and aggregate, bishops, chapters, rectors, and vicars, or any other. The Church of England, as a single body, has no property; the property belongs to the Church of Canterbury, the Church of Westminster, the C'hurch of Little Pedlington, or any other. These local bodies forming corporations sole or aggregate, hold estates which have been acquired at sundry times and in divers manners from the first preaching of Christianity to the English till now." As I have said, this only goes to shift the question a step farther back. "Who and what is the rector or vicar or other corporation sole? In what sense can such a corporation hold property, or vindicate his proprietary rights against the invasion of third persons? Nobody pretends that the Rev. John Smith is really the owner of the property vested in the rector, even though the Rev. John Smith himself happens to be the rector. Then to whom does the property really and truly belong? To his parishioners? Certainly not. Churchmen are the first to deny that the parishioners, as such, have any claim. “It is only,” say they, “those of the parishioners who are members of the Church of England,” and so we are driven back to the original question, Who are the members of the Church of England? Those who having begun life as members of that religios body have since joined other denominations, or thrown off allegiance to religion in any of its forms ' Those who regularly accept the ministrations of the C'hurch— possibly, in many cases, with a view to business and credit? Those who profess the Creed and are ready to subscribe the Thirty-nine Articles of the Church, either fully, or “to a certain limited extent”? But it is useless to ask any further questions; everybody knows that it is practically impossible to point out any determinate persons who constitute the Church of England as a whole, or the Church of Canterbury, of Westminster, or of Little I'edliugton in particular.
It is no solution of the problem to say that the Church property is held in trust. The further question at once arises, Who are the beneficiaries? Let us look into the title of the Church to one particular kind of property which is claimed on its behalf, namely, tithes. This will reduce the scope of our inquiry to within reasonable limits. I confess that the habit of seeking for the origin of titles in antedeluvian or prehistoric times seems to me both unsatisfactory and mischievous. Those who defend the claim of the Church to this kind of property usually begin their defence with a reference to Leviticus, '' If a man will at all redeem aught of his tithes, he shall add thereto the fifth part thereof.“ Then follows a terrible denunciation of those who would abolish tithes, or who would attempt to curtail them. ”Will a man rob God? Yet ye have robbed me. But ye say, “Wherein have we robbed tbee? In tithes and offerings. Ye are cursed with a curse: for ye have robbed me, even this whole nation.” As a recent writer naively remarks, these words of Malachi “are rather serious in this matter.” He goes on to wonder whether we in England are not under the curse. Says he: “Whether it has ever occurred to the grumblers of the present day, in the period of agricultural depression, that some of this depression is a little owing to the outcry against tithes, we will not now stop to inquire.” From Malachi we are brought per salti'm to Edmund, King of England, who levied a church-rent of corn. Then Ethehvd made laws in a jumble of Latin and Anglo-Saxon which it is not easy to construe. But one decree stands clearly out, “Let every man pay his tithes justly.” But what is justly? next comes a copy of the laws of Edward the Confessor, which specify the subjects of tithes—corn, foah, calves, cheese, lambs, wool, butter, pigs, honey, “moreover of woods, meadows, waters, mills, parks, warrens, fishings, coppices, orchards, and negotiations, and all things which the Lord hath given.” This law, which was successively confirmed by William I., Henry I., Henry II., and Henry III., is really important as showing conclusively that it was originally intended in this country to levy tithes on commerce, as well as on agricultural produce. “Negotiations ” do not seem to count for much against the long list of farm and forest produce, but for what they were worth, there they are. Why, asks the farmer, should our produce be the only kind which has been unable to shake off this encumbrance? There was nothing unjust, nothing wrong, nothing inexpedient in thus taxing the people for what was then thought to be their spiritual welfare. Those who would not voluntarily give their share of the cost of a public necessary were compelled to do so. So long as tenths were paid to the State Church or Church State (for they were one and indivisible) no fault can be found with the arrangement. The evil began when benefices became appropriated to particular abbeys, priories, etc. From this step there was no natural halting-place till lay impropriators appeared on the scenes. Thus was a tax with a specific object gradually converted into a species of private property. When the monasteries were suppressed, the tithes, of course, passed to the State (the king) who, from time to time, made infendation of them into lay hands, and the thing was done. The question for us to-day is, Are tithes taxes, or are they private property? Are tithe-owners, like zemindars, to be regarded as persons having real rights in the soil, or as mere collectors of taxes for a given purpose?
If we regard them as tax-collectors, then I cannot agree with those who contend that tithe commutation is justified by events, both from a moral and an economic point of view. The clergy say they have been rendered more independent of their flocks and are no longer brought so much into collision with them in ascertaining the amount of their demands. Surely this is precisely what is not wanted. To render one's servants independent of oneself is but a poor policy. The removal of the friction of collection simply means the removal of the knowledge of the impost. The objection to indirect taxation applies here also. If the people do not feel the tax, they begin to forget it. When the object of the tax is gone or is no longer needed they forget to demand its remission. This is an unhealthy state of the public mind. The evil of a tax should be distinctly felt, and willingly borne for the sake of the good which is seen to result from it. Looking at tithes from the opposite standpoint, that is to say, as private property, it is clear that the corporations sole in whom the rent-charge is vested would be justified at any time in ceasing their ministrations and in sitting down in the lull enjoyment of their income. And why should they not? If these corporations actually own property, it is no business of yours or of mine to dictate how it shall be used. A's ancestor held land from his lord on condition that he would supply men and arms on occasion, and perform other military services. B's ancestor held land on condition that he would minister to the spiritual welfare of the neighbourhood, and see after the poor and destitute. A's successors now hold the same land unconditionally, and why should not B's successors do the same? The only answer forthcoming is, Because they don't: and the rejoinder is, Perhaps they may come to do so. There is no middle course between these two. No one can doubt that originally tithes were a species of tax. Difference of opinion enters in when the question is asked, whether they have since at any time hardened into a species of private property. This was actually the case with the land-tax in Bengal and in many other Eastern countries. It was the case in England when, after the suppression of the monasteries, certain tithes passed into the hands of the predecessors of the present lay impropriators. Here again we cannot go into ancient titles: we have nothing to do with the right or wrong of Henry VIII's policy. The lay impropriators of the present day, as a juridical fact, have an indisputable claim to their tithe rent-charge against all the world; a real right which cannot be questioned or curtailed without flagrant injustice and spoliation. Their title is as good and valid as that of any other person having a first charge on the land, and as their property is held unconditionally, and in no respect c,r contradu, the lay impropriator's claim is not contingent on the performance of duties. His rights are on all-fours with the rights of the landowner himself, and his cause is but weakened by binding it up with the cause of the ecclesiastical tithe-owner. In short, there can be no doubt whatever that in their case what was once a tax on agriculture and commerce has become hardened and consolidated by time into unconditioned private property. This process might also have been completed in the case of clerical tithe-owners, but it has not. The conditions still hold, and the State or pultlie still claims the right to certain services (definable from time to time by the State) in consideration of the tithe rent - charge. This claim has been reaffirmed over and over again in our own day. If the public needed to reconsider the nature of the services to be required, it is quite possible that the ec-eleiastical tithe rent-charge might fall into other keeping. It is also conceivable that these charges might eventually harden into private property if left unmolested; but it is difficult to see how this is to be effected unless certain indeterminate bodies come to be identified, defined, and determined. They can never become capable otherwise of holding property. It is opposed to the juridical principles of all law.
There is a simple explanation of the difficulty which most people seem to labour under in recognising that tithes are a species of tax. Tithes are levied on a particular class of property and expended on a particular public object: whereas most taxes are expended, as occasion requires, on any publk object. The reason why this tax is levied on a particular kind of property is, that there was originally hardly any other kind of property to tax, at least none worth taxing–although, as 1 have said, commerce was actually included at first under the head of negotiations; but ”negotiators “ soon gave the priest the slip. Not so the farmer, rooted as he was to the soil. It was the gradually increasing independence of the Church in Plantagenet times which brought about the specific allocation of this tax. Tithes originally resembled the land-tax collected by the zemindars of Bengal and the Turkish tax-farmers-a tax levied for the welfare of the people, but collected by special officials to whom the particular function was entrusted by the State. Like all taxes of this class it necessarily tended to harden into the private property of the tax-gatherer. Such is the natural and inevitable consequence of adopting this mode of raising revenue. In the case of the zemindars and of the English lay impropriators the process, as I have said, has long ago been completed and the State must recognise accomplished facts. It would be a gross breach of faith to question the proprietary rights of these classes; but clerical tithes have never been hardened into property. The contractual nature of the clerical tithe-owners' claim is patent to all; it is not even a transferable right, it is simply a payment for current services rendered. Moreover, no determinate person, individual or corporate, can be pointed to as the owner. Except for services rendered, tithes are not even claimed by the so-called tithe-owner. As to the services required they are not sufficiently definite, but there is one feature in them worth noting: they have been defined and modified by the legislature and may be again. Then it must be admitted that the people might without injustice turn to the ecclesiastics and say, “We no longer require the kind of services you have hitherto rendered us,” just as they might say and do say to the dockyard labourers. “We shall,” they might add, “either devote the proceeds of the tax to some other object, or, as is usual when the object of a tax or rate ceases to be an object, remit it altogether.” A war tax of twopence in the pound on income is remitted if there is no war, and no one says, Why not spend it on the schools '. However this is a question of policy into which we need not enter here. The one point I wish to emphasise is, that the position of the ecclesiastical tithe-owner in no respect resembles that of the lay impropriator. They had, it is true, the same origin, but they have become completely differentiated, and have now little left in common beyond a common origin. If we rashly proceed to act upon a view of the Church's position based on ancient title-deeds, we must not be surprised if our nationalisationist friends likewise claim to dip into ancient history for a justification of the proprietor rights of landowners. Our business is to examine the present position juridically, and to leave the origin of all rights to the antiquarian and to the historian. Let us beware of confounding together rights which, though bearing similar names and having similar origins, fall, when juridically analysed, into very different classes.
I do not wish to be understood as offering any opinion whatever on the policy of the Bills which have recently been introduced into Parliament dealing with tithes. I am inclined to think that the proposed change in the system of tithe-collection is calculated to perpetuate what are called the rights of the Church rather than to safeguard in their integrity the rights of the clergy. The Church is to the jurist, as we have seen, a myth; a figment of the imagination; a name and nothing more. But the clergy are real and substantial beings, with rights and duties like other mortals, and any tampering with their reasonable expectations, as guaranteed by the laws and customs of this realm, would be a gross injustice and a national disgrace. Notice to the present clerical tithe-receiver that he will have no successor could injure nobody. He has himself worked and invested capital in qualifying for the post of spiritual teacher, and cannot be robbed of his reward by any honest means. Even if tithes were altogether remitted it would be as necessary to make full compensation as it was when purchase was abolished in the army. Vested interests may perhaps be defined as rights based not upon contract but upon custom. Even when the State has expressly repudiated the permanent obligation of paying certain salaries, it has found itself morally compelled to make compensation to those who have been deprived of livelihood by the abolition of offices which had come to be generally regarded as permanent.
But if we are justified by ancient custom in recognising rights which have no basis in law, it may be contended that we are justified in recognising obligations similarly based on immemorial custom. Agriculturists who have paid tithes for over a thousand years may be said to have a vested obligation to continue those payments, and it is no hardship upon farmers or upon landowners, who have come into their present position with their eyes open, to ask them to continue their contributions to the public Treasury. It may be urged that so far as the tithe-payer is concerned, it would not be actually unjust to go on levying tithes, and that it would not be unjust to remit them. This is true of all taxation. Putting the Church as a fictitious person altogether out of view, the existing clergy as individuals have a right either to the continuance of their offices for their lifetime or to full compensation. This claim might be met, and a considerable reduction simultaneously made, in the tax called tithes, whereby no human being would be mulcted. The pressure on agriculture would be temporarily relieved, and justice would be done all round. I have entered thus fully into the tithe question because it illustrates the doctrine of property in relation to the person owning. From this point of view the several kinds of Church property stand in the same position.
Even admitting that the independence of personal belief from State interference is the final outcome of social evolution, admitting that this nation is already ripe for the advance, I think many persons calling themselves liberationists are apt to lose sight of the main conditions of its achievement. It cannot be laid down too early' or too emphatically that in carrying out the work, true proprietary rights must be held absolutely inviolate. Your pound of flesh, but not one drop of blood. Nothing can be more unreasonable or more unjust than to protest against the application of public monies to improper purposes, and at the same time to clamour for the expropriation of a certain class of citizens. Those who protest against taxation for spiritual purposes on the ground that it is wrong to rob an individual even for the public good are for ever barred from demanding the confiscation of the incomes of a class, even for the public good. If disendowmen is to be brought about, it must be done without rendering one single member of the Established Church a penny the poorer. That is a sinequd non. Perhaps the strongest argument for postponing the practical consideration of the question for some time is that the true definition of property has not yet come to be recognised by our laws.
The consequence is, that much misunderstanding exists as to what is corporate property. Cases of bequests to indeterminate persons abound, and a careful examination of the various and conflicting decisions of our judges goes to show that English jurisprudence is hardly yet equal to the task of dealing with this great question without doing moral injustice. Mill, who could not withhold a tribute of admiration for the great individualist Turgot, somewhat immodestly apologises for him for opposing foundations. ”Notwithstanding our deep reverence for this illustrious man,“ he writes, “and the great weight which is due to his sentiments on all subjects which he had maturely considered, we must regard his opinion on this subject as one of what it is now allowable to call the prejudices of his age.” It might have been allowable fifty years ago (Mill wrote on Church Property in 1833), but to-day the best thinkers are in line with Turgot, and are inclined to apologise for Mill, whose opinion on this subject, at least, rnay clearly be set down as due to the prejudice of the age in which he wrote. “Turgot and his friends,” said he, “seem to have conceived the perfection of political society to be reached, if man could but be compelled to abstain from injuring man, not considering that men need help as well as forbearance, and that nature is to the greater number a severer taskmaster, even than man is to man. They left each individual to fight his own battle against fate and necessity with little aid from his fellow-men, save what he might purchase in open market and pay for.” Could the individualists' position be more clearly defined to-day so far as the perfection of political society is concerned? Mill's notion of a state which should help the individual to “fight against necessity” is a little out of harmony with the scientific thought of our day. His famous article on Corporation and Church, Property is doubtless an able contribution to the discussion, but its weakness is its embodiment of socialist principles in reaction from the apparently hard individualism of Turgot.
In applying the principle of let-be to practical politics it is necessary to make a thorough and searching analysis of juridical terms, and of these the chief is the term Property. When this has been done, we shall, I think, without impugning the probity of such thinkers as Proudhon, find ourselves in harmony with the views expressed by Bastiat in his celebrated vindication of proprietary rights.
“Men of property and leisure! Whence come the fears which have seized upon you! The perfumed but poisoned breath of Utopia menaces your existence. You are loudly told that the fortune you have amassed for the purpose of securing a little repose in your old age, and food, instruction, and a start in life for your children, has been acquired by you at the expense of your brethren; that you have placed yourselves between the gifts of nature and the poor; that, like greedy tax-gatherers, you have levied a tribute on these gifts, under the names of property, interest, and rent. You are called upon for restitution; and what augments your terror is, that your advocates in conducting your defence feel themselves too often compelled to avow that your usurpation inflagrant but that it is necessary. Such accusations I meet with a direct and emphatic negative. You have not intercepted the gifts of nature. You have received them, it is true, at the hands of nature, but you have also transferred them to your brethren without receiving anything. What you have received is simply a recompense for your efforts and by no means the price of the gifts of nature. Such property is legitimate and unassailable; no Utopia can prevail against it, for it enters into the very constitution of our being. No theory can ever succeed in blighting it, or in shaking it.
“Men of toil and privation '. you cannot shut your eyes to the truth that the primitive condition of the race is that of a perfect equality of poverty and ignorance; man redeems himself from this state by the sweat of his brow, and directs his course towards another equality, that of material prosperity, knowledge, and moral dignity. The progress of men is unequal indeed, and you could not complain even though the rapid march of the vanguard were in some measure to retard your own advances. But, in truth, it is quite the reverse. No ray of light penetrates a single mind without in some degree enlightening yours. No step of progress, even though prompted by the conscious striving for property, but it is a step of progress for you. No wealth is created which does not tend to enrich you; no property is acquired which does not tend to enlarge your own liberties. For the order of things is so arranged that no man can work honestly for himself without at the same time working for all. Men of philanthropy.' Lovers of equality! Blind defenders of the suffering classes! You who look forward to the reign of community in this world, why in your pride do you seek to subjugate men's will-and bring them under the yoke of your own inventions? ' Do you not see that this community after which you sigh has been already attained and provided for by nature? Has nature need either of your conceptions or of your violence? Do you not see that this community is being realised day by day, in virtue of its admirable decrees: that the execution of these decrees has not been entrusted to your hap-hazard services and puerile, tinkerings nor even to the increasing sympathy manifested in charity; but that it has been entrusted to the most personal, the most permanent of all our energies-self-interest, a principle embedded in our inmost nature, which never flags and which never rests. Study then the social mechanism and you will find that it testifies to a universal harmony which far out-trips your dreams and chimeras. Instead of presumptuously offering to reconstruct the workmanship of nature, you will then, I trust, be content humbly to admire and to bless it.'”
I have dwelt thus at length on land ownership and tithe ownership because these two forms of property may be said to be typical; each of them indicating the limits by which any clear and logical definition is necessarily bounded. Thus the rights over the thing owned are not unlimited, and the person or persons owning must be determinate. Unfortunately these considerations are not always borne in mind even by lawyers. ”Property,'' says Lord Mackenzie, “ though naturally unlimited, is susceptible of important restrictions." To begin with, it never is unlimited; and if it were, what ground have we for supposing that this is its natural form-whatever that may mean? This confusion results from mistaking the indefinite for the limitless.
Austin avoided this mistake, but perhaps in defining property as ”a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration,“ we may doubt whether the two last qualifications are not necessary accidentals in ninety-nine cases out of a hundred, rather than essentially connoted by the term. If I have the use of a pound of tea for six mouths, it is precious little that your reversion will be worth at the end of that period. If the tenant for life of a painting includes amongst his rights over it the right of burning it, we may just as well admit his right to be unlimited in point of time. And yet this is a mere accident. On the whole, Austin's maturer conclusion is that which I am inclined to adopt when he says, “I mean by property every right over a thing which is indefinite in point of user.” And there he stops. This is the outcome of his analysis of property as the institution exists at the present day. History endorses this view. Savigny says that property is founded upon adverse possession ripened by prescription. Very likely; it matters little what it was founded upon; the question is, What is it when it has been founded? Speaking of its origin Sir Henry Maine oddly says: “What mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it, it is impossible to know anything.” Again he says: “It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession, which is the exact source of the universal reverence of mankind for that which has for a long period defacto existed, is a question really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries.” I cannot admit that the motives of our early ancestors are inscrutable, but I quite agree that the inquiry falls quite outside the province of the lawyer. Let land nationalisationists and antiquarians and metaphysicians and “agitators” argue out such questions as whether Adam's dominion over all the beasts of the field was a jus in rem or merely a jus ad rem acquirendam: whether Malachi was inspired when he denounced those who neglected to pay their tithes; whether the land of Great Britain originally belonged to the dolichocephalic troglodytes or to lake-dwellers with skulls like the Neanderthal specimen; whether Colonel North of Leeds has an absolute right to pull down Kirkstall Abbey without the consent of the people of Leeds, or of Yorkshire, or of England, or of the British Empire. All these questions will continue to amuse and to enrage countless hosts of “thinkers '” for years to come. The lawyer and the statesman and the jurist have nothing to do with them. And since, after all, the permanent laws of all countries are made by the wise men in those countries, perhaps the best thing common-sense people can do at the present time is to clear their heads and make up their minds what it is which they mean by property before shouting themselves hoarse with the Beccarias and Proudhons on the one side, or the Benthams and Bastiats on the other.
Quoted from Bentham's Theory of Legislation.
See Lord Mackenzie's Studies in Roman Law
Hill v Tupper, 2 H. and C. 121.