LETTER THE FIFTH.
THE LEGAL RIGHT OF PROPERTY IS UNDERGOING SUBVERSION BY THE NATURAL RIGHT OF PROPERTY.
False pretexts and real objects of the legislator.—Proofs that his real object of preserving his power, has not been attained.—He has failed to secure the superiority of the landlords, and the legal rights of the clergy.—The revenue of the state.—The abolition of slavery, and the rise and progress of the middle classes, contrary to the legislator's will.—Illustration of the usury laws.—Alteration in the right of property.
TO H. BROUGHAM, ESQ. M. P. F.R.S. &c.
I explained, in my third letter, what appears to me to have been the great object of the legislator as to property; in my last letter I called your attention to the origin of the present appropriation of the land of Europe; and I am now to shew you that the acts of the legislator have not been less inefficacious to obtain his own object, than mischievous to society. If I can make it clear by adverting, in some detail, to the history of property, that he has failed most signally to accomplish the object he has proposed to himself, even as to property, which seems a measurable substance, and some what within the grasp of legislation, I shall do something, I apprehend, to make it doubtful whether he can comprehend, or is likely to attain the more abstruse and recondite objects of preventing crime and promoting virtue.
The great object contemplated by the legislator, I observed, was to preserve his own power, and the dominion of the law, and with that view to keep in the possession of the landed aristocracy, and the clergy, and the government, all the wealth of society; and we are going coolly to examine if the legislator has succeeded in these objects.
Allow me, first of all, to notice that the pretexts which the legislator puts forth, about preserving social order, and promoting public good, must not be confounded with his real objects. The public good is not cognizable by human faculties; and he who pretends that his actions are guided by a view to that, is an impostor, who looks only to his own interest and ambition. To make that the pretended motive for action, is so obviously a mere pretext, as to need no further refutation. Nor is the pretext that he promotes social order better founded. Social order is the mutual dependence of all those who contribute to the subsistence and welfare of society. It includes the manner in which they assist and protect each other, and provide for their mutual wants by the interchange of their respective products. If by social order be meant the great scheme of social production, mutual dependance, and mutual service, which grows out of the division of labour, that scheme I will boldly assert the legislator frequently contravenes, but never promotes—that grows from the laws of man's being, and precedes all the plans of the legislator, to regulate or preserve it. In fact, his attempts to keep in one state what is continually in progress are mischievous. We must then set aside as mere pretexts the assertions of the legis lator, that he intends to preserve social order, and promote the public welfare; and we must deal with legislation as solely intended to preserve the power and privileges of the legislator.
Has he preserved that power? Is the authority of the legislator undiminished? Is it not rather questioned on every side? Look at thrones overturned! and laws established; by the legislator? No; but by the great body of the people. Look at every one of his acts questioned by the press, and by the press set aside, or confirmed; the dominion which it has now acquired, and which it exercises throughout Europe, being a full and complete refutation of the opinion that the legislator has preserved his power.
If then it be admitted, that the legislation of all Europe was originally founded in conquest, and that the great object of the legislator has, and must have been at every moment to maintain his own power,—and if it be plain that he has every where lost, or is fast losing his power, it must also be plain, on a great scale, whatever persons may suppose to the contrary in detail, that the great object kept in view by legislators has not been attained. It is only necessary to compare the past political condition of Europe, with which you are well acquainted, with its present political condition—to notice how the power of kings, nobles, and priests has gradually decayed, while the legislator has always endeavoured to maintain their powers and privileges—to become immediately sensible of his conspicuous and complete failure. When we contemplate long periods, the truth that society has a course of its own, which legislation does not foresee and cannot regulate, and which has gradually carried it away from the control of successive generations of lawgivers, becomes clearly evident.
I might without difficulty draw numerous illus trations of this important truth from the history of the last twenty years; but I shall content myself with referring to scenes in which you have taken a part, and which are fresh in every man's recollection. What, for example, produced your own motion on the subject of law reform, but a conviction of the discrepancy between the present state of the law, and the state of society which created an overruling necessity to alter the law? Was it the legislator's inclination, or a similar necessity which compelled him unwillingly to alter the Navigation Laws, to introduce the New Police, to abolish the Test and Corporation Acts, and to emancipate the Catholics? I can now add, having lived to see you Lord Chancellor, was it the will of the legislator, or an overruling necessity for a change in the laws, and for an improvement in the system of government, is which forced you and your party into office, and compelled the House of Commons to set about reforming itself? Was it your will also, and the will of your colleagues, or your unwilling task, to undertake the settlement of the tithe question in Ireland? Have you not, my lord, been forced against your inclinations, to propose some modification in the tithe laws of that country, and do you not feel that that important question is already practically settled by the conduct of the people. Deceive yourself, my lord, and others no longer, but learn, from the history of the last few years, to study the laws, which impose on the legislator a necessity of obeying them. Since the time when I first began to take notice of public events, the conduct of the legislator, not merely in England, but in almost every country of Europe, has been dictated by a tardy and unwilling, and in his case, a disgraceful obedience to the dictates of public opinion. His power, my lord, has every where passed into decrepitude, and is merging in that possessed by the press, as the representative of the public reason.
I may confirm these observations by a more general view. None but demons would voluntarily work mischief, and we only class legislators in the same species as ourselves, when we assert that they have been generally disposed to promote the happiness of the people. At least they have so professed, and so have the people believed, or their power could not have lasted a single day. But what is the fact? Happiness being a very indefinite term, let us substitute for it prosperity, or wealth; and then we see that those countries in which the power of the legislator has been greatest, and he has exercised it most, restricting every branch of trade, and providing as he thinks for the conduct and welfare of the people in the most minute particulars, such as France under the old and under the imperial regime, Spain, Germany, &c. have not made an equal progress, in wealth and prosperity, to Holland, England, and the United States, where the power of the legislator has been less and much less called into exercise. I admit that the legislator has wished to promote the happiness of nations, but I affirm that where he has interfered most, prosperity has been least, and I conclude on this general view, that he has every where failed in his object.
Let me further ask you, what is the main principle of those doctrines of free trade, which you and almost all other enlightened men now advocate? Is it not that trade,—that human industry thrives most when restrictions are removed; in other words, when legislation does not interfere with it? The doctrines of free trade, then, must convince all who believe in them, that legislation has not promoted, and cannot promote national wealth, or national happiness, which are corelative terms. Supposing national welfare to be the object of legislation, those doctrines must satisfy every man that legislation generally has as completely failed in effecting what it lyingly and boastingly promises to mankind, as it has especially failed to secure, as I shall now show you, the power of the classes it has aimed to uphold.
To look, then, at the failure of the legislator more particularly in relation to the right of property. You admit, I hope, as the landowner and the legislator have been one and the same person, that his great object has been, as I stated in my third letter, to preserve his dominion over the soil, and to secure large revenues to the landowners, to the clergy, and to the government, as a means of protecting the possessions of these two classes. Let us first ascertain what has happened with regard to the landowners of our own country.
The whole soil of Europe was engrossed in large masses, as I mentioned in my former letter, by successive conquerors, and with the land the conquerors engrossed all the wealth of the country. “The original engrossing of uncultivated lands,” says Dr. Smith, speaking of the act of the northern barbarians, already alluded to, “though a great, might have been but a transitory, evil. They might soon have been divided again, and broke into small parcels, either by succession or alienation. The law of primogeniture hindered them from being divided by succession, the introduction of entails prevented their being broke into small parcels by alienation.” Primogeniture and entails, cherished by all the legislating classes of Europe, were intended to preserve landed estates entire; Have these devices succeeded? Is the theory, that land will be divided into smaller portions, as agricultural skill increases, and as population multiplies, contradicted by facts? Are the nobility of Europe now in possession of such vast domains, as the leaders of the German hordes occupied when they overran Europe?
Opulent as many of the nobles of Great Britain now are, none of them are masters of such extensive districts as belonged to the immediate followers of William the Conqueror. The Earl of Grosvenor and the Duke of Bedford have very ample possessions, but they do not, I believe, quite equal in extent of surface the 846 manors possessed by the brother of that invader. They are probably much richer than that king himself was, but they do not own so much of the surface of the country as many of his followers did, Throughout Europe it is manifest, when we extend our view over long periods, that the quantity of land in the possession of individuals has been gradually lessened. The effect of the increase of population, when all the members of the same family have equal shares, in dividing and breaking into small parcels all landed property, has of late been too often complained of, not to be familiarly known. But this increase has been going on for ages, and has had its effects even over those princely properties that were once the patrimonies of the Montmorencies, the Percies, the Guises, and the Mowbrays. Without inquiring further into the immediate causes of the breaking up of the great estates, which once were in possession of the nobility of Europe, though it has been much too general to be justly attributed to a cunning king, or a contriving minister, I am content to state, as a fact illustrative of my argument, that the land of Europe has been gradually divided, since it was first appropriated by the northern barbarians into smaller portions than they seized on, notwithstanding the attempts to prevent such a division, by the laws of primogeniture and entail.
In many cases, the domains which the conquerors of Europe appropriated, such as those of the dukedoms of Normandy and Brittany in France, and of Lancaster and York in England, merged in the crown; but the crown now possesses comparatively few domains in either of these countries, these estates having subsequently been sold or given away in an almost infinite number of small portions. None of them remain undivided. None of the districts appropriated by the Norman barons have descended unbroken to their present heirs. They have all been divided and sub-divided, and the portions have generally passed into the hands of bankers, clothiers, stock-brokers, merchants, money scriveners, and their descendants. Cut down and divided, however, as the land of the country comparatively is, even these small portions are no longer the actual property of those who are their nominal owners. Sir James Graham says, “that not less than nine out of ten” of the little pieces into which the estates of our great barons have been split, “are encumbered with mortgages.” Each estate probably is encumbered with several; so that, in fact, the absolute property even of these fragments of princely domains, does not belong to the nominal owner. Without including the national debt, which is so well known to be an immense mortgage on the land, divided among a great many persons, that it has been proposed to pay it off, by making over portions of the land to these mortgagees, it is plain, that the nominal land-owner is only the receiver for two, three, four, or perhaps half a dozen creditors. The great object, therefore, at which the legislating land-owners have always aimed, to attain which they have inflicted a great deal of misery on the majority of society—for which they have not hesitated to wage war, and punish people with death, has been completely frustrated. They have not succeeded in keeping estates undivided, and in securing the possession of them in their own families. Through the greater part of Europe, not only has the land been divided into diminishing portions, but it has passed from the descendants of warlike barons, and come into the possession of the children of their once much-despised vassals and slaves.
So much for the landlords. Have the clergy preserved the share which the law allotted to them? Where are now the prince bishops, the spiritual sovereigns, who formerly taught the nobility arrogance by their example, and enforced obedience by their cunning? Look, however, at what is actually taking place in England and Ireland as to tithes. The present Bishop of Bath and Wells some time ago made the following observation, in a charge which was published and inserted in the newspapers, in reference to England. “This unjust clamour against our church has been not inconsiderably augmented by the unpopularity which has attached itself to the payment of tithes; on this point, however, the public mind has been grossly misled. No body of men in general could have been more moderate in the exaction of their legal dues than the clergy of the established church. The average of the payments received by them has seldom amounted to two-thirds of what was fairly due; whilst it has, for the most part, fallen very considerably below this proportion.” So that the clergy cannot even at present obtain two-thirds of that small pittance of the national wealth, which the law, after appropriating their numerous abbeys and fat lands to the nobility, still endeavours to secure to them. In other words, my lord, the legal right of the clergy to church property, is at least in part an empty name. A somewhat similar state of things, but even more confirmatory of my proposition, exists in Ireland. The legislature decrees, that the Irish shall pay tithes; they continually refuse to obey, or continually evade the law, and for many years past the clergy have never been able to obtain above a half, or even a fourth of their legal dues. Now, however, the business is carried further,—the people have in several counties refused to pay tithes; the ordinary legal force of the government is not sufficient to enforce the clergyman's claims; and what does the legislature? Does it say that the payment of tithes shall and must be enforced? Does it affirm that the rights it ordains shall be observed? Does it now dream of declaring, that the right of the clergy to church property is as good as the right of the peasant to the fruit of his labour? Oh, no. It appoints committees to find out the best way of making its obsolete laws conform to the determination of the Irish people, and to their notions of property. Have its decrees, though so much, so strongly enforced, begotten in the minds of the Irish a complete, a thorough conviction that the clergy have as good a right to tithes as the farmer has to the pigs and horned cattle he rears? No such thing. The utmost power of the legislature has been unable to beget any such notion; its decrees are set aside by the higher power of conscience, and should it attempt to enforce them, it will most probably now, and certainly, hereafter, be triumphantly resisted and overcome by the physical force of those who have both conscience and right on their side. The present state of church property, both in England and Ireland, demonstrates the two principles for which I contend, namely, that the natural right of property,—for it is the conviction in the bosom of the Irish peasant, that he ought to own what he produces, which is at the bottom of his resistance to the claims of the church,—is even now rapidly subverting the legal right of property, and that the decrees of the lawgiver do not establish the rights of the people.
You may perhaps at first think, that my proposition does not hold good as to government, and that the enormous revenue it levies on the people is a proof that its power of appropriation is not decayed. A closer examination may teach you a different lesson; two-thirds of that revenue belongs to the holders of the national debt, and the government, in point of fact, is only the agent for distributing nearly thirty millions sterling annually among the middle classes of the people. But even that sum it can with difficulty raise. Within the last few years it has been compelled to remit taxes to the amount of several millions; other reductions are called for, and other reductions it will be compelled to make. Great, therefore, as the revenue is, which the government levies, it does not possess an unrestricted control over the pockets of the people, and it must, ere long, abolish those laws, by which it now exacts a considerable sum more than the people think its services merit, and than they are willing to pay.
But I come to a circumstance, which I regard as a still more conclusive evidence, of a change in the right of property, not willed by the legislator; I allude to the gradual decay of slavery, and the gradual rise of the middle classes in Europe. The right of property established by the northern barbarians, when they overran Europe, between the fifth and the tenth centuries, was established by the sword. By virtue of that they claimed the land, and every thing that could be made by its help. All the men who dwelt on it were appropriated with it, and were compelled to serve and obey them. Their vassals and serfs had to supply them with food, or to labour at their bidding. They were free themselves, but they reduced other men to slavery. Being the masters, they were of course the legislators. Their great object was, as far as that could be effected by legislation, to preserve their power over their slaves. Did they succeed? Where then are now the thralls of England? There are certainly thralls; the labourers are yet unhappily thralls; but they are less the thralls of the landlord than the capitalist. So completely alien to our present habits and thoughts is this principle of slavery, that he who should act on it, would be speedily convinced, that other men had rights which he could not violate with impunity. The power of the sword, which established the wrong of slavery, has obviously passed away, and with that all the means of making men slaves. We now so abhor slavery, that we compel those who are dependant on us to emancipate their slaves. The nation, on this principle, put an end to the slave trade. Even the practices of war, though not regulated by legislation, do not now authorize the appropriation of the soil, and of the persons and property of other men, as was done by the northern barbarians. Those who should imitate their practices would be universally resisted. The only exception I know of to this rule, is the disgraceful and barbarous practice of impressment, by which some men are still forcibly appropriated by others, under the miserable pretext of its promoting the public good, that is, the good of the men so appropriated. We may be sure, then, of this fact. The original legal right of property, established by our progenitors, was a principle of slavery, but that principle has been gradually subverted, and is no longer acted on in any part of Europe.
Has this great alteration been brought about by the legislator, or in spite of him? The warriors, who, as I have mentioned, overran and appropriated extensive territories, could not possibly cultivate them. Their business was war, love, and legislation, and the land was cultivated by serfs. That they appropriated the people as well as the soil, and compelled them to labour for the advantage of a master, is so well known as not to need any illustration. That personal slavery was established throughout Europe at a former period, and that some men, like cattle, were the property of others, are facts so familiar, that I need not refer to the pages of Turner, Robertson, Hallam, or any other historian, to satisfy you of the correctness of the statement. That one great object of the law was, in the first instance, to keep the slaves obedient to their masters, and after they became emancipated, to keep them, as labourers, poor and dependant, is an admitted fact. If you require any proof of it, I refer you to the statute of labourers, passed in 1350, as Mr. Malthus says, “for the most unjust and impolitic purpose, of preventing the price of labour from rising, after the great pestilence,” —to our several other statutes and regulations “to fix the price of labour, which are generally intended to prevent it from rising,” and to the numberless regulations against the combination of workmen, which disgraced both the statute and common law of the nation for many ages.
That our people are not still in a state of vassalage like the serfs of Russia and Hungary, we are indebted, according to Dr. Smith, not to legislation, but, after natural laws, “to the most childish, the meanest, and the most sordid of all vanities,” to gratify which, the ancient feudal lords “gradually bartered their whole power and authority.” “All for ourselves, and nothing for other people, seems in every age of the world to have been the vile maxim of the masters of mankind.” Consistently with that maxim the legislating landowners of Europe did what they could to perpetuate personal slavery, and but for the “silent and insensible operation of commerce and manufactures,” which the legislator has at every period tried to check and restrain, the people of Great Britain would to this day have continued in the same state of vassalage as in the twelfth century. It is plain, from the contemptuous manner in which the working classes ever have been treated by the law—the possession of land or capital being essential to secure even in this country, a share of the common political advantages of the social union, that the legislator always was, and still is, disposed to keep in thraldom and servitude all the descendants of his ancient vassals. But he has not succeeded, and through a great part of Europe, in spite of the legislator, personal slavery has been abolished. The claim of some men to possess others as their property is now universally scouted. This great and beneficial change in the right of property has not been effected by the lawgiver, who has always endeavoured, and is now endeavouring, to keep the slave-descended labourer poor and dependant.
For my view, it is of much importance to remember, that the legislator always endeavours, as a rule, to preserve institutions. He rarely leads the way in reform, and only reforms to save some remnant of his original errors. From the time when William the First established the curfew Bell, till Lord Eldon's stout resistance against the Catholics, the legislator has sought to preserve principles of government previously acted upon. A state of things, however, directly adverse to his views has continually arisen, and continually compelled him to forego his most cherished views.
If the change I have noticed were not brought about, in despite of the legislator, by which of his enactments was it accomplished? What law decreed that bondsmen should be free before they had emancipated themselves? By what act of the legislator was it first settled that they should no longer be property, and should possess as their own whatever they could make or earn? I am not acquainted with our statute books; you perhaps know in which, of the many hundred volumes they consist of, this divine decree of the owners of bondmen is to be found. I know, however, that it is vain to look for any such gem of humanity, in that monstrous catalogue of follies and cruelties; and I therefore shall content myself with the authority of those who have traced philosophically, rather than by the route of laws, the progress of society. On that I assert that the right of the serf to personal freedom, and his right to own what he could earn, were not recognised either by the common or written law, till he had obtained freedom and wealth, and with them the power to defend his new rights against his former master.
I may not be able to confirm this assertion by the authority of those who lived at the time the alteration occurred, because it was not noticed in any of the chronicles of that period, history having been, as it seems to me, confined to recording the follies of mankind. The progress of civilization is so slow and gradual, that its successive movements are never seen as they take place. Society, like the human body, is continually changing; but we must carry back our thoughts for a long period to learn this important fact. Like the hour-hand of a watch, we do not see it moving, but we are convinced that it moves. The chief cause of alterations in its condition, is the increase of population leading to inventions in the arts, discoveries in science, and to the creation of new wealth. In general, historians have not considered physical changes in connection with changes in our moral condition, as if the effects of mechanical improvement were limited to bodily ease and comfort. This is an oversight,—for discoveries in science, and improvements in art, have wrought the greatest changes in our political condition; and almost all the changes in modern times may be traced up to the influence of that mechanical invention, which is called by the comprehensive name of the press. Though we may not be able to foresee the moral effects of the splendid mechanical inventions of modern times, yet we may be sure that they are the harbingers of a more extensive change in the moral condition of society, than was ever effected by political institutions.
Of such important changes there can be no contemporary notice, for they are silent and unobtrusive, not observed at the time, and they can only be ascertained by men who live posterior to the occurrences. Adam Smith, one of our most acute investigators of past events, has satisfactorily proved that the emancipation of villeins, the growth of towns, the rise of the commercial and manufacturing interests, the formation of an influential middle class, and the comparative decay of the landed aristocracy throughout Europe, altering the legal right of property, and altering the political relations of all classes, were brought about in spite of the law. They were the results of natural circumstances, and chiefly of the respect for the natural right of property, which the law has tried in yain to extinguish. Had the abolition of villenage been the result of a positive enactment, there could have been no doubt as to the date of the occurrence.
“The time and manner, however,” says Adam Smith, “in which so important a revolution was brought about, is one of the most obscure points of modern history. The church of Rome claims great merit in it; and it is certain that so early as the twelfth century, Alexander III. published a bull for the general emancipation of slaves. It seems, however, to have been rather a pious exhortation, than a law to which exact obedience was required from the faithful. Slavery continued to take place almost universally for several centuries afterwards, till it was gradually abolished by the joint operation of the two interests above mentioned, that of the proprietor on the one hand, and that of the sovereign on the other.”
Allow me to direct your attention also to this brief passage of Mr. Millar's work on the English Government. If I do not quote many other authors, it is not from inability, but from disinclination to waste your time. “While the influence and power of the great lords was gradually extended, by the multiplication of their vassals, their authority over each particular vassal was necessarily reduced, and they were obliged to exercise it with greater moderation, as well as to endeavour, by the arts of popularity, and even sometimes by pecuniary rewards and advantages, to gain the effectual support of their followers.”
“The improvements made in agriculture (not in the law) produced alterations of no less importance in the state of the peasants or churles. The peasants, as has been formerly observed, were originally bondmen, or slaves. But as from the nature of their employment, and from their living at such a distance as to be beyond the reach of their master's inspection (you will recollect the gradual change by which these masters, for the sake of amusement, came to reside in towns) it was found expedient to excite their industry by bestowing on them successive gratuities and privileges: many of them were enabled at an early period to acquire considerable property, and some of them were advanced to the condition of tenants, entrusted by the master with a discretionary management of their farms. In the natural course of things these tenants were afterwards raised to a still better situation.”
“The first artificers were villeins, or servants of the greater thanes, who happening to discover some ingenuity in the common mechanical arts, were employed by the master in those branches of manufacture which he found requisite for his accommodation. The possession of these farms, according to the rude manner in which agriculture was then practised, did not hinder them from exercising this collateral employment. When these people began to be emancipated from their ancient bondage, they were at liberty to work, not only for their former master, but for any person who chose to employ them, and by working for hire, they drew a regular profit for their labour.”
My argument is, that those great changes which the law did not ordain, were effected in spite of the law. The law-maker, instead of facilitating the emancipation of villeins, did what he could to prevent it, but his ambition and his greed were overpowered by the beneficent operation of natural laws. Improvements in art and science, the introduction of commerce and manufactures, consequent upon multiplication of the species,—to all of which, except perhaps the last, which he has opposed indirectly by mis-appropriating the produce of industry, the law-maker has in general been excessively hostile, brought about the abolition of personal slavery.
Accompanying the gradual abolition of personal slavery, and arising from it the middle class, the tiers etat gradually have arisen, and have attained much influence in the most civilized parts of Europe. To the ancient lawgiver—the lawgiver antecedent to Alfred's time, they, and consequently all their rights, including their right of property, were quite unknown; but to them, and to their continual growth in wealth, power, and intelligence, as a secondary cause, all the revolutions in Europe, whether religious or political, since the tenth century, must be chiefly ascribed. The multiplication of traders, manufacturers, and artizans, and generally of the inhabitants of towns, has worked a most conspicuous alteration in all the moral relations of society, gradually mastering the landed aristocracy, and gradually tending to extinguish it. As men multiplied, new businesses and new arts came into existence; new wants were formed, and new luxuries found to gratify them; new classes of men arose; wealth new in form, and different in kind from any thing our ancestors were acquainted with, was created, and new rights of property to the new wealth were continually developed. The idea of property seems formerly to have been limited to land, or what the gentlemen of your profession still call real property. In fact, even yet, much confusion exists from many persons still speaking of property as if there were only real property. Because the soil is appropriated by one class of men, the labourers have a claim on them for relief; and this was formerly confounded with the appropriation of property. At present the idea of property is much more extensive, and the labour employed about land supplies but a part of the wealth of the community. The right, however, to the new property which is continually created, is now generally held to be as sacred as the right of the landowner to his estate. The growth of a middle class in European society, founded on the gradual recognition of a right of property to this new wealth, and the establishment of that right, are conspicuous alterations in its condition, compared to the time when it consisted only of masters and slaves, and when no other property was recognised but that in land. Now the important questions for your consideration are these. Is the growth of this middle class, and the respect for their right of property, the results of the will of the law-maker, or have they taken place in spite of his will?
Need I further ask, if the feudal law-maker, the warlike baron, the armour-cased knight, or the battle-axe-wielding king, willed the rise and growth, and increase in wealth of, those pedlars and traders, whose quiet and peaceful, and humble occupations, as they have spread through society, have gradually extinguished all the regretted glories of chivalry, and have equally subdued the belligerent propensities of the knight, and the predatory habits of the baron? No fact seems more certain, than that the inhabitants of towns, the middle classes of Europe, grew into influence and power, altering all the political relations of individuals and of states, in spite of the land-owners, who were the legislators of Europe. I shall content myself with the following pithy sentence, as the authority for my assertion. “The lords despised the burghers, whom they considered not only as a different order, but as a parcel of emancipated slaves, almost of a different species from themselves. The wealth of the burghers never failed to provoke their envy and indignation, and they plundered them upon every occasion, without mercy or remorse.” When the burghers, the inhabitants of towns, the slaves who had emancipated themselves in spite of the legislating landowning lords, had struggled into existence and strength, they had to fight their way to security and influence against the sword-bearing law-maker. For ages, that is, at least from the eighth to the sixteenth century, the contest was carried on till it issued, as we fortunately experience, in the establishing the supremacy of the middle classes. The feudal lawgiver was every where the enemy of that trade which gradually subverted his power. He was slow and unwilling even to acknowledge the rights of his emancipated slaves. When they had congregated in towns, and were able to enforce their claims, a sort of compromise ensued, and the legislator or sovereign ceased his hostility in exchange for a tribute. The inhabitants of towns purchased of the feudal law-maker an exemption from his vexatious oppressions; though his continual and ever frustrated aim was to maintain them in submission and slavery. Those who were hostile to the middle classes, and who plundered them upon every occasion, could not have established and protected their right of property. They acknowledged it indeed when the others became powerful enough to compel them; but they did not establish it.
Formerly, the labourers, and with them all the wealth of the country, were the property of the legislating landowners; now it is in the possession of the descendants of emancipated slaves. The landowners are neither the most important, nor the most opulent portion of this community. They are far surpassed in numbers and in wealth by the capitalists. The great mass of the original land-owners families are extinct, or the land has passed from their descendants for some pecuniary consideration; so that in fact the property of the present land-owner is derived from, or represents, capital. The landowner, as such, derives his right to that share of the produce of labour he receives, under the name of rent, from being the descendant of those who forcibly appropriated, not merely the land, but the labourer; or he possesses the remains of the power of those who did so appropriate the land; and his annual income now represents the compensation given to him by the good sense of society, in its progress for the emancipation of bondmen and serfs. At present, all the wealth of society goes first into the possession of the capitalist, and even most of the land has been purchased by him; he pays the landowner his rent, the labourer his wages, the tax and the tithe gatherer their claims, and keeps a large, indeed the largest, and a continually augmenting share, of the annual produce of labour for himself. The capitalist may now be said to be the first owner of all the wealth of the community; though no law has conferred on him the right to this property.
The capitalist was originally a labourer, or the descendant of a villein, and he obtained profit on what he was able to save from the produce of his own labour, after he had wrested his liberty from his masters, because he was then able to make them respect his right to use the produce of his own industry. But what he then received, and now receives, under the name of profit, is a portion of the wealth annually created by labour. In fact, the capitalist has obtained the whole of the landlord's power, and his right to have profit is a right to receive a portion of the produce of the landlord's slaves. His right to share this power, or receive this produce was never conferred on him directly by any law. It has grown up, however, gradually, in all the countries of Europe, being the moral result of the homage men pay to that great natural principle, the foundation of all property, that each individual has a right to the free use of his own limbs, and to the produce of his own labour; which right led first gradually to emancipate the slave, and then induced the landowner to buy from him, by giving him a share of his power over labour, the loan or use of the new property the slave had the skill to create, and the economy to spare; and which the landowner, as the emancipated slaves increased in numbers and wealth, did not dare to take. In the case of the emancipated slave, the landlord, and those who were the interpreters of his will, were gradually forced to respect the right of each man to possess, and use what he makes or produces; and out of the respect for this natural right of property, implanted in the hearts of all, though greed, may and does frequently overstep it, it being the great moral or sentimental basis of all justice,—has grown up in Europe that new order of society of which the distinguishing feature, as far as my subject is concerned, is the power and the wealth of the capitalist.
But the power of the capitalist over all the wealth of the country, is a complete change in the right of property, and by what law, or series of laws, was it effected? Was it by all those laws which you have of late complained of, and which you and other members of parliament have tried to get repealed; such as the laws for protecting real property from the claims of creditors, the obvious intention of which was to defeat the right of the monied interest, to recover from the landowner the sums the latter might borrow, or even steal from the former! You cannot answer in the affirmative. The law, till the legislator could not help himself, was opposed to the claims of the capitalist.
We have a good illustration of the conduct of the legislator in this respect, in the usury laws. He declared it to be a crime to take usury or interest at all. When the advantages of doing so had become manifest, and when the practice had become prevalent, the law following as usual in the wake of a custom, permitted a certain rate of interest to be taken; but the rate fixed by the law being below the average or market rate, the law was continually violated. It never determined in any case the rate of interest or usury. That, owing to various natural circumstances, or circumstances quite independent of laws, underwent successive alterations in every part of Europe; and the law subsequent to those alterations was gradually and necessarily altered, but was always inoperative, whenever the legal rate of interest differed from the market rate. It was only operative when it precisely copied the practices of the people and the prices of the market. Finally, when it seems probable that the market rate of interest will remain permanently below the rate fixed by the law, which has rendered it altogether inoperative, according to the inteation of the law-maker, it is in a fair way of being repealed. The great object of the usury laws was to keep down the monied interest. The right to take interest and to have profit, with a right to have usance, which are rights of property, as well as the right to an estate, have been continually denied, or vainly attempted to be limited by the law. There was for many ages a contest between the monied and the landed interests, the latter dictating the laws for its own advantage. In spite, however, of country gentlemen, that respect for the natural right of property which has been felt by the law-maker, even when he has endeavoured partially to set it aside,—of which the right to have as much interest as a capitalist can get, is a part—has gradually altered, not merely the legal right of property, but all the political relations of Europe.
The changes which I have briefly brought under your notice, form an important part of the history of civilization, and when we examine that we find it quite distinct from the history of law. Subsequent to the period when the latter was written with the sword, and men were appropriated by the right of conquest, the serf gradually outgrew his bondage, ceased to be the property of the warrior noble, and acquired a right of property in what he created acknowledged by his master. The capitalist then emerged into notice, and, obtaining from the landlord interest or profit on his property, shared his power. Now we find, in consequence of the respect for the natural right of property, that a large middle class, completely emancipated from the bondage and destitution which the law, by fixing the rate both of wages and interest, sought to perpetuate, has grown up in every part of Europe, uniting in their own persons the character both of labourers and capitalists. They are fast increasing in numbers; and we may hope, as the beautiful inventions of art gradually supersede unskilled labour, that they, reducing the whole society to equal and free men, will gradually extinguish all that yet remains of slavery and oppression. All these changes have been effected in spite of the law; and the equally benevolent changes now in progress, will be unnoticed by it till they can no longer be controuled. And by what could these mighty changes be accomplished, if not by a Power greater than that of the law-giver? They have been brought about, I contend, by the moral laws implanted in our hearts, such as that mutual respect for the rights of each other, and the mutual fear of each others equal power, with which Nature inspires all our race, and of which the natural right of property is a portion and a part. The natural right, existing at all times, gradually supersedes the law of the land, and effectually secures those new rights belonging to individuals, which, as men multiply, are continually created. That each individual has a natural right of property in his own limbs, and in what they create, is a principle unremitting in its influence, and it teaches even those who are most greedy of dominion to pronounce—as, in making laws against its violation,—a severe condemnation on their own conduct. Through our moral sentiments, then, they being as far as property is concerned, the offspring of palpable physical circumstances, Nature is even now gradually overthrowing unjust appropriation, and gradually restoring that virtuous freedom, and healthy equality of possession, which being the original condition of mankind, are equally consistent with the highest degree of productive power, and the unbounded affluence of a civilized community, and with the naked destitution of the savage.
All these alterations are sometimes attributed to the discovery of America, to the first voyage round the Cape of Good Hope, to the sagacity of some individual King, to the intellect of some philosophers, to the invention of printing, or to any thing rather than acknowledge the Divine government of the moral world. But it is plain, that the changes I have brought under your notice, were going on long before America was discovered, which was in fact a consequence of the spread of people and knowledge in Europe, and probably necessary to their further progress. National wars, and national debts, have undoubtedly contributed to these changes: but directly in opposition to the will of those who contracted the latter to carry on the former. To me it is pleasant to see the bad passions of warriors leading them to mortgage their land, and from that to see arising the universal equality which conquest destroyed. The events to which historians, each of them partially selecting one, ascribe these alterations, are undoubtedly links in the great chain of causation; but only the dull materialist, overlooking the moral laws of man's being, will ascribe to those events the merit of social improvement.
I am well aware that this statement of facts is decidedly adverse to the prevalent theories on the subject of legislation, and the continual practices of legislators. We are generally taught, that the constitution and the laws of the country determine all the rights of the people; and legislators continually act as if every right that exists in society were the offspring of their kindly care. I have already quoted passages from Messrs. Bentham's and Mill's writings, to shew that they describe the great business of government and law to be the determining what each man is to possess, and to guarantee that in his possession. On the contrary, if the observations I have made be correct, the right of property is determined by natural laws, and that right, gradually overturning the laws of man, to which it is opposed, cannot be said to be guaranteed by them. What the law did not foresee and create, what it opposed when called into existence, what it only sanctioned when the legislator could no longer shew hostility with advantage, it can in no sense be said to have established and guaranteed. But if this be true, it may be supposed that there are no guarantees for any rights. If legislation as to property be as I represent it, inefficient and incapable of securing respect for its own decrees; how, it may be asked, could society exist? Before I shew how the natural right of property is guaranteed, I wish therefore to direct your attention to several important rights and privileges, which have grown up in society unwilled by the legislator, and which he has only guaranteed when he could no longer oppose them. Such facts, when properly understood, are in truth, of great practical importance. If any thing can abate the present rage for law making, and for multiplying regulations for every part of society, the fact to be learnt by an attentive consideration of history, that laws have little or no beneficial influence over the fate of mankind, is well calculated to produce so desirable a result. I shall therefore, in another communication, illustrate this statement both by principles and facts.
Your obedient servant,