LETTER THE SIXTH.
THE LAW-MAKER DOES NOT ESTABLISH RIGHTS: HE ONLY COPIES USAGES.
Identity of Lord Bacon and Mr. Locke's philosophy.—Law-makers in establishing a right of property only copy a previous usage.—Examples of the test acts and Catholic emancipation.—The press.—Last act of legislation.—Examples of Peter the Great and Joseph II.—Of the middle ages—Of forgery.—An example in the time of Athelstan—In modern Mexico.—Attempts to abolish villeinage on the continent.—The French revolution.
TO H. BROUGHAM, ESQ. M. P. F.R.S. &c.
It seems to me that the leading principles of Lord Bacon's, and of Mr. Locke's philosophy, which when properly understood are identical, viz. that “man is but the interpreter of Nature,” and that “all our knowledge of the external world is obtained by means of our senses,” or, “is a copy of that world;” though these principles have been overlooked by writers on legislation, and on the progress of civilization, throw a clear and steady light on many social phenomena. The deductions we may draw from them, or rather from it, for in substance the foundations of all knowledge, as laid down by these illustrious men are, I repeat, identical, will confirm the inference already drawn from history, and prove that the legislator neither could, nor did, originate and establish, or even modify to any extent, a right of property. Like the philosopher, he is at best but an incorrect interpreter of a part of Nature. Where, I ask, did he get his idea of a right of property? He is one of us; the laws which regulate our knowledge domineer also over him, and his notion of that relation we call property, must at all times have been derived from what he saw. It was copied from an external fact previously called into existence. The right of property existed, the relation between man and the work of his hands—to compel a respect for which is the pretended object of laws—existed before he thought of supporting the right by threats or promises. Not only did the right exist, it had been violated; the legislator had violated it himself before he undertook to preserve it from future infraction. The species of appropriation he has confirmed, existed prior to his decrees. The notions of mine and thine, and the relation of man to what he fashions or produces, were antecedent to all law; and in strict conformity with the great principles taught by Bacon and Locke, I affirm that law-makers only set the seal of their authority to the rights established, or the wrongs practised, by mankind. The appropriation of the land was made by the sword, not by the law; but what the sword acquired, the law afterwards endeavoured to preserve.
The flatterers of kings and of law-makers, and youth hot from the study of the first French class-book, seduced by the eloquence of the amiable Fenelon, may fancy that the legislator marks out the rights and duties of the several classes of his subjects, and apportions to each one, like Idomeneus, or the revered Manco Capac, or the not less revered jesuits of Paraguay, his task and his reward. But the mature men of this age, who have enquired into the progress of society, and are acquainted with the manner in which the inhabitants of Europe, as Mr. Hallam says, have purchased from their governments privilege after privilege, toleration after toleration, or won them out of the iron clench of the legislator, cannot for one moment suppose that he ever has established the rights, or prescribed the duties of his subjects. That every blessing of freedom we enjoy, from Magna Charta down to the abolition of the Corporation and Test acts, and the admission of the Catholics to share the civil rights of the rest of the community,—that every civil and religious privilege of which the people now boast — that freedom of trade, and freedom of the press, and freedom of judgment (imperfect as they yet are), that protection against the sword of majesty, against the injustice of the judge, and against the plunder of the noble—that our security, partial and incomplete in this respect though it yet be, for we are still a prey to the procrastination and fiction of the law administerer, and the despotism of the law-maker,—that all the blessings of freedom, and that all our civil rights, have been gradually and slowly gained by the exertions of the people, by their gradual increase in wealth and numbers, giving force to the gradual increase of their knowledge, and making the general reason, as contrasted to the caprice of individuals, the rule of our lives,—are truths of which no reader of history can for one moment doubt. When the people, as they have become powerful and wise, have compelled the legislator to make laws consistent with the rights which gradually come into existence, it has then been very flatteringly asserted, that he has conferred these rights on them, and guaranteed their enjoyment—an assertion which he has sought to make the general creed of mankind—but which can only be true if the parliament of England bestowed that physical power on the Catholics, and confirmed it in their possession, by which they have at length, in spite of its continual opposition, compelled that parliament to give them full religious freedom.
Not to go beyond circumstances well known to every man, to confirm this view I shall merely remind you, that the question of the repeal of the Test and Corporation Acts was settled out of parliament before it received the legislature's sanction. The government resisted the repeal of these Acts as long as it could, but when the general knowledge of the age made intolerance hateful, and the wealth and power of the dissenters enabled them to enforce their claims, the legislature was obliged to give them a specific sanction. Hereafter, and even at present, we may hear praises chaunted forth on the toleration of the government, on account of the protection and guarantee it affords to the rights of Dissenters; but the same power which compelled the legislature to affix its seal to these rights, viz. public opinion modelled by circumstances, at all times guarantees and preserves them.
At length, also, the Catholics have been placed almost on a level with the rest of the people. Their numbers their wealth, and their power, manifested in various associations and acts of display, having alarmed such of the Protestants as dreaded a civil war, and were not previously conscience stricken at the effects of their own injustice, the legislature and the church of England, however unwilling, have been compelled to cease from persecuting the Catholics. Those who are in love with law, which I am not, may tell us that the constitution or the legislature guarantees and secures the rights of the Catholics, but to me it appears that the strength of the Catholic arm, or the apprehensions of that strength, or whatever else determined the legislature to concede emancipation against its frequently declared will, is the power which guarantees and secures toleration. I have seen too much of the process of manufacturing acts of parliament, to attribute any great virtue to a few speeches, in which as much is said for, as against an opinion—to the hocus pocus of a man in a large wig, putting a question which an obsequious majority answers as the minister bids, and to a clerk of a parliament reading a few words in Norman French;—I have seen, I say, too much of your proceedings to join in the opinion, that an act of parliament establishes and protects rights. I can attribute no such miraculous effects to the ridiculous ceremonies and mummeries practised at Westminster. I put them aside as wholly extrinsic, extraneous, and unnecessary to the great scheme of society, and then I see that the living power of public opinion which compels the legislature, as yet respecting its existence—to go through these mummeries, is in fact the power which at all times secures all the rights of every member of the community.
The freedom now enjoyed by the press, the true church of England, as it has been called, is a still more striking example of the same fact; because imperfect as that freedom is, it has not yet received the positive sanction of the legislature. The press grew into influence and power in spite of Star-chamber fines and imprisonment; it is increasing in respectability, in influence, and in magnitude in spite of the libel-law; it wafts to every corner of the globe, in spite of the privileges of either House of Parliament, which are gladly waived to connive at its bold aspirings, an account of their proceedings; and representing the general reason, it rules both over the throne and the legislature. By what law have these most important rights and privilege, been conferred? By no law whatever; they are exercised and acknowledged in direct opposition to the law, because all classes and conditions of men are sensible that they are necessary for the welfare of all. Public opinion, not the judges, conferred on the press its rights and privileges; and public opinion, against the inclination of the judges, continually maintains and extends them. An inquirer into the laws of vegetation is not satisfied with describing the appearances of plants, he dissects them, and traces the sap-vessels drawing nourishment from the earth, and carrying the living juices to every branch and every bud, where, by the combined agencies of the sun and the air, and the assimilating powers of the plant it is formed into new matter, constituting the growth, the flowering, or the fructifying of vegetables. In like manner, the inquirer into political science is not content to record the views of a legislature or a judge, and he looks for the source of their altered opinions and improved conduct. When he finds the legislature and the judge gradually, but tacitly, recognizing the power of the press; gradually but silently abstaining to enforce against it the rigorous laws which are yet in existence; and when he traces this forbearance to the power of an improved and concentrated public opinion, when he detects in it the cause for greater humanity in the judge, and greater caution in the law-maker, he ascribes them to the altered circumstances of mankind, not to the better laws, and the better administration of them, which gradually come to prevail. The mind and opinions of the lawgiver, or the law administerer, are not unaccountable and miraculous; like the mind and opinions of a chemist, which are formed by the chemical knowledge of the age in which he lives, they are the result of what is seen, or felt, or known to be the state of society at the time. The circumstances which dictate the opinions, and create the mind and temper of the lawgiver and the judge, of which the chief is public opinion,—and not the technical expression of those circumstances put forth by the legislator or the judge, are the actual guarantees, and the actual means of protecting the rights of mankind.
The influence of the press in controlling or overruling the enactments of the lawgiver, and the decrees of the judge, the press being a power neither acknowledged nor avowedly obeyed by either of these functionaries, is an illustration of the manner in which both of them have their minds reduced to an accordance with the prevalent opinions and practices of society. Neither of these functionaries can dictate the opinions of society, but those opinions publicly expressed dictate their actions. In the long run, the material world is sure to correct, if it do not inspire, all opinions. The mind, in fact, is a copy of that world, more or less complete and accurate. Thus we go to the fountain head, when we seek to ascertain those material circumstances, such as changes in the numbers and wealth, and social relations of mankind, which determine first, the general opinions of society; and secondly, the actions of the legislator and the judge.
In these examples of our right freely to speak truth of and to the legislator himself, and of our right to worship as we please, it is evident that the legislator has only confirmed by his declaration, or acknowledged by his forbearance, rights that have grown into existence without his permission, and frequently in opposition to his will. When the legislature fulfils its functions in the best possible manner, it only embodies the customs of the community in a legal and precise form of words, lending the sanction of its clear and delightful phraseology to the opinions and rights already existing among its subjects. “To follow, not to force, the public inclination,” is the accurate definition of legislation, given by Mr. Burke, “to give a direction, a form, a technical dress, and a specific sanction to the general sense of the community, is the true end of legislature. When it goes beyond this, its authority will be precarious, let its rights be what they will.” “Those who will stand at the head of affairs, must follow and obey the general sentiment,” is a truth which his wisdom frequently enforces.
Such a description of your presumed high duties, is rather true than flattering. A king, by those who only learn from the court-crier that all justice is administered in his name, is supposed to possess great power; in fact, however, whatever luxuries he may enjoy, in relation to the power of the nation, he is a mere instrument for affixing the sign manual to the business his ministers bring before him. His ministers in turn are supposed to govern both him and the nation, but the fear of that nation is continually in their minds; their responsibility weighs on them, and they conform to its wishes, as they are expressed by its representatives. In like manner, the representatives, or parliament altogether may be considered as only a sort of mechanical stamper, which puts a seal to the general decisions. It has certified and registered the decree, releasing the Dissenters and Catholics from the disabilities former times imposed on them; and were the Jews, or even a body of Atheists as numerous as the Catholics, and as rich as the Dissenters, to form a part of the community, the legislature would be compelled to grant them all the civil rights enjoyed by the rest of the people. What else it may have to register, is in the womb of Time; but the last decree to which its seal will be affixed, will, from that time forward, give validity to the public sentiments without the necessity of its visa. Its power is now derived from echoing those sentiments, and when men perceive this truth, that power will be for ever annihilated.
If I have not entered, and shall not enter into any examination, as most writers do, of the gradual alterations made in the law relative to the tenures of land, attributing to these alterations that great change in the right of property, which cannot be denied; if I do not inquire into the stratagems and cunning contrivances by which, at various times, the judges are said to have sought occasionally to prevent the accumulation of land in the hands of individuals and corporations, it is because the object I have in view lies beyond all such verbal copies of pre-existing rights. I look chiefly at the alterations in those rights to which the judge and the lawgiver have been gradually compelled to make their decisions and enactments conform. Persons fond of prying into law books may inform us, that at one period the lawgiver did this, and the judges did that; but the more rational enquiry is into the circumstances, or natural laws which compelled the judge to do this, and the law-maker to do that; or which brought about the altered opinions which have gradually prevailed amongst legislators and judges. The lawgiver was originally called on to protect a pre-existing right of property; and in the great majority of cases the law was only subsequently altered, to make it conform to alterations previously made in that right. Now, as the latter alterations have in former times determined the mind of the legislature and the judge, and as we may be sure that such alterations will, hereafter determine his mind, it seems to me of more importance to inquire into the determining circumstances, than into the flecting thoughts, though embodied into somewhat permanent decrees of past legislators and judges. Generally speaking, our antiquaries and historians have looked only at the letter of the law, and have neglected to notice those successive changes of which the law was a copy. They have been so desperately in love with the sentences put together by the lawgiver, so besottedly attached to a form of words, that they have ascribed to language every thing good and valuable in society, as well as all the alterations which have taken place. They have never looked further than the parchment decrees. Holding to the principle of Locke and Bacon's philosophy in all times and places, and regarding it as applicable to all things, I have passed over the decrees of the law-maker, to inquire into some of the great alterations in society, of which they were the imperfect copies.
The power as well as the utility of legislators, seems to me therefore to be in general rated much too high, and a few more illustrations of their inability to do more than sanction customs, usages, and rights already established, may not be thrown away. M. Dumont and Mr. Bentham have explained at some length the difficulty, or even the impossibility, of transplanting laws, however excellent, from one country to another; but whether the law be borrowed from another country, or be born of the fancy of a native lawgiver, can make no difference as to the difficulty of bringing it into practice, if it be at variance with the customs of a people. If it accord not with their customs, it can only be made the rule of their conduct by force of arms. The individual law-maker soon runs his course, his successor has whims of his own, and cares not to employ his military power to enforce obedience to some whim of his predecessor. The new law consequently ceases to be enforced and obeyed. Peter the Great was enabled, by the power of his guards, and the fears of individuals living in a community composed of different and hostile tribes, to compel some of his Boyars to shear their chins; but since his death the Russians have returned to the venerable custom of wearing beards. From the hereditary respect which the inhabitants of the Netherlands bore to the house of Hapsburgh, the chief protectors of the Catholic religion, Joseph II., was able to effect a trifling reform in the church of that country, but his power was unequal to his wishes, and he had the vexation even to see his plans rendered abortive. His failure broke his heart. The legislator may will good or evil, but whatever he wills, his power is very circumscribed. If a despotic sovereign, like Peter or Joseph, cannot effect any great alteration in the customs and conduct of his people, cannot establish new rights, and impose new duties, are publican or representative government, existing more im mediately under the controul of opinion, cannot possibly attempt even to introduce laws not sanctioned by the customs of its subjects.
I might multiply, without any other difficulty than seeking in a few books, instances of laws failing to effect any alteration or improvement in the morals or manners of a people; but the fact seems so obvious, that I shall only briefly notice such as my memory will supply me with, neglecting to quote the volume and page in which documentary proofs of the assertions may be found.
The whole history of the middle ages, embracing several centuries, and almost all the countries of Europe, seems to me little more than a contest between laws and customs. The clergy denounced and excommunicated feuds and maraudings; the sovereigns, as soon as they acquired power, fulminated decrees against those who prosecuted their revenge, or carved out their own fortunes with their own swords, after a fashion of their own; but as both the sovereign and the clergy acted on the very principles they condemned, their efforts were quite unavailing, and the whole of Europe was one great scene of reciprocal contention, plunder and war. Even after the inhabitants of towns, prosecuting their own peaceful pursuits, had grown into importance, and had both taught the principles of mutual service, on which all trade is founded, to the clergy and to the sovereign, and had strengthened their power, baronial excursions to prosecute a feud, or to commit plunder, were still practised in spite of the law. In fact, such customs continued in our own country almost to our own time. A century has yet scarcely elapsed since the chiefs of the Scotch highlands kept in their own hands the power of administering justice after their own manner, on their own estates; and within the same period they were in the habit of making excursions to levy black mail, &c. on the inhabitants of the lowlands; while among the clans private feuds continued, and led frequently to bloodshed and murder. The decrees of the law-maker were inoperative during the period I have referred to, and failed completely to make men respect each other's rights, till the extension of trade, the invention of new arts, and the importation of new luxuries, slowly brought a new class of men into existence, introduced into the community other tastes, supplied passions with less mischievous gratifications, beat down individual power, and spread through the land those principles of order and reciprocal service, which are the basis of all mutual exchange.
For many years the law has been sharply directed in this country against forgery and fraud of every description; but it is the custom of the people, from high to low, from the monarch to the peasant, to obtain splendid luxuries, or the mere means of subsistence, on false pretences. One deludes the nation; or his ministers delude it in his name; the other deceives the parish officers; and of this universal custom, illegal fraud and forgery are but the rankest shoots. The decrees against them, promulgated by a palace-loving king, solemnly sanctioned by salary and place-hunting nobles and squires, and enforced by a large fee-exacting or salaried judge, have been powerless, in this instance, to abate a practice which is consistent with their own every day behaviour, and the general customs of society. The general disposition to plunder which prevails, is probably a habit of action transmitted from those ages of predatory warfare, and universal plunder I have just alluded to, the industrious classes having too closely followed the fashions, and aped the manners of their idle and worthless masters; and the laws will only seem to effect an alteration in the general disposition, when the power of making them shall have fallen into the hands of those who live by the produce of their own labour.
Here is a precise and specific example of laws failing to influence customs. “We find,” says Mr. Miller, “that by a statute in the reign of King Athelstane, a churle who had purchased an estate consisting of a few hides of land, with certain appendages usually possessed by gentlemen of that fortune, was declared to have a right to all the privileges of a thane.” “Such was, however, the original inferiority of the peasants, and so strong were the habits connected with their primitive condition, that though they had been raised to independent circumstances, it was with some difficulty that they were permitted to hold the rank of gentlemen, and procured the treatment suitable to men of that superior class. The law, therefore, even at that early period, when customs, it might be supposed, would not be more unalterable than at present, failed to procure for the opulent churle all the rights and privileges attached to the property he possessed, when in the hands of one nobly born. The same sort of thing existed only a few years ago, or even yet exists in Germany. It exists also in the western hemisphere. In those parts of the United States where slavery has been abolished, the “niggers,” as they are called, are now as badly treated, as much domineered over,—their society is as much scorned as before they were emancipated.
We have a similar testimony to the impotency of laws in Mr. Ward's account of Mexico. That gentleman states, that the Indians of the capital seemed, when he was there, at the service of any white who chose to command them, notwithstanding they had been declared free citizens by the constitution. The custom of obedience was of course far more influential than the words of the lawgiver, and those who had declared they should be free, continued, under its influence, to treat them like slaves.
The advantages which have accrued from the gradual conversion of villeins into free labourers in some of the countries of Europe,—the greater ingenuity, industry and skill, possessed by the latter, and the consequent more rapid increase of national wealth, have induced the sovereigns of those countries in which the conversion has not yet been fully effected, to hasten it by decrees. Both Maria Theresa and Joseph II. in Austria, and the present king of Prussia, have endeavoured to abolish feudal servitude, to change the right of property which exists among their subjects, and thus to make them wealthy, like the inhabitants of Britain or Holland. Have they succeeded? I know from personal observation, notwithstanding the number of years which have now elapsed since the first attempt was made in Austria, that a population of free labourers is yet to be called into existence in that country. I know also from personal observation, as well as from various publications, that the laws for abolishing feudal servitude in Prussia, emitted by the celebrated Prussian reformer Baron von Stein, though they were aided by a revolutionary ferment, which brought all the elements of society into new combinations, and the more cautious repetition of those decrees at a later period by Prince Hardenberg, have not accomplished their object. The peasants have rarely made any use of the power given them by the decree of 1811, to convert the farms they cultivate as serfs into their own property, on the payment of a reasonable compensation for the services they are now bound to perform. Partly they have been accustomed to hold their lands on these conditions, and never formed a wish to change them; and partly there is among them a deficiency of means to make the compensation required. It would be plainly impossible for the law-maker to carry such an alteration into effect, without compensating the landowner; and in that part of Prussia where personal servitude prevails, none of that new wealth has yet been created or introduced, which in past times effected the emancipation of villeins in other parts of Europe.
Perhaps the French revolution affords even a more striking example of the inefficacy of laws in altering established rights. At an early period in its progress, equality was decreed. The old proprietors were banished, and the people were invited to divide the spoil equally amongst them. The particular disposition such laws encourage is thought to be so strong, that in general legislators have done all in their power to repress it; yet those laws did not produce equality in France, though they were seconded by several years of revolutionary confusion, and did not eradicate from the hearts of the people the respect in which they had been nurtured for their ancient masters. The laws of confiscation, a national sale, and the quiet possession of the land for several years under the emperor, were found insufficient, on the return of the Bourbons and the emigrants, to make the new owners satisfied with their titles. Conscientious apprehensions were felt, and were followed by alarm throughout the country. Some of the emigrants were quietly reinstated in the possessions of their ancestors; to some of them a voluntary surrender of purchased rights was made; to others money was offered if they would sign a renunciation of what they had never possessed; and all of them found that being the heir to the person dispossessed, enabled them to obtain what had been his property, on easier terms than other persons.
Thirty millions sterling were voted by the French parliament in 1826, almost without opposition, and paid almost without a murmur by the people, to put an end to these claims, and obtain a conscientious right to the land they now hold. If any doubt should be entertained of the single facts I have alluded to, for I do not pretend to hunt up any other authority than memory for them, no doubt can be entertained that the decrees establishing equality, which for years terrified all the opulent people of this country, and perhaps of all Europe, failed completely in their intended effect, and there is at present very little more equality in France, either as to possessions or persons, than there was prior to the revolution. The people only transferred their affections. They had long worshipped the old monarchy, and they fell down before the idol of the republic to lift up their eyes in adoration of the empire. The glories of their old dynasty were for a time obscured by the fresher splendour of Buonaparte's victories; but the longing after some human idol, and the sentiment of worship were the same. The law changed names and forms, but it did not change the customs and opinions of the people. It is of no consequence, therefore, to my argument, whether the laws be decreed by a wild democracy, or an arch despot; unless they accord with the feelings and habits of the people, or are copied from their customs, they will be inoperative and powerless.
This principle of the inefficacy of laws applies to reforming the laws; and nothing is better known than the fact that bad laws are retained long after it is ascertained that they are bad, because they are closely and intimately connected with the habits of a people. A written decree is in fact originally the offspring of a single mind; and no one mind has much influence over a whole nation. No single reformer who precedes can ever represent the general sentiments. Bad laws therefore should not be swept away by new laws, but be suffered to fall into desuetude, which is for all parties a gradual and safe extinction of evil. The reform of laws, which it is now desirable to promote, is not to introduce a body of new enactments, but to bring legislation into contempt. In all questions of reform the happiness of the reformer himself ought not to be lost sight of, and in general reformers are so much annoyed, that when they perceive the safer path I have just indicated, they will not be anxious to encounter popular odium by substituting new laws for old ones. We know, indeed, that one self-sufficient secretary, who plumes himself on adopting the wisdom of others, has been enabled to transmit his name to posterity on some acts of parliament; but his reforms were so gentle, and had been so long demanded, that he encountered no other opposition than a few professional frowns. Another secretary, however, (Mr. Huskisson) who acted with greater boldness than Sir Robert Peel, was driven from office, and was publicly insulted, for carrying into execution reforms which, in principle, have long received the sanction of every enquirer, but are not yet recognized by the mass of society. Very few reformers are held in honour, and there is neither patriotism nor humanity in sacrificing one's self to obtain only the execration of our fellow citizens.
I conclude from these statements, that laws are copied from rights existing in practice, not rights created by laws. There is a close connection between them; but a vulgar materialism, which must have a tangible foundation for belief, commits the mistake of substituting the piece of parchment for its immaterial cause, the opinions of society. With very few exceptions, such as the artificial community of Sparta, of which we know but little, and some religious communities, the law-maker, whether he be an emperor, a king, a prophet, an archon, a consul, a baron, a provost, a mayor, or a burgomaster, has only endeavoured by his enactments to enforce the customs, and maintain the rights of the people for whom he legislated. The people, from respecting the legislator too much, may have endeavoured to preserve his laws, and to act on them long after they had ceased to represent the circumstances of society; and he by endeavouring also to fix at some one point what nature has made progressive, may have modified rights as they came into existence, and have had a considerable influence over the formation of rights subsequent to his enactments; but in general, the law has only expressed in words, and endeavoured to enforce by penalties, the practices, whether right or wrong, which previously prevailed among, and were generally approved of by, the people for whom the law was intended.
The boasting lawmaker then, like the theoretical philosopher, does not get one step beyond what he sees. When he glories in his profound schemes, he ought to be reminded that they are mere copies of some absurdities already carried into execution. Our Bank Restriction Act, and our Police Law, conforming in some measure to our peculiar circumstances, to take two examples, have both of them existing prototypes. Among the despots of the continent, it was a common trick to make their subjects take their paper as money, before the despotic Mr. Pitt recommended us to follow their example. Police systems, somewhat similar to that Mr. Peel (now Sir Robert) is at present promoting, have existed for years on the continent, in all the perfection unlimited political power can give them; and, judging from the atrocious crimes still continually committed in France, where the police is organized in the best manner, they are just as ineffectual in preventing crimes as the old watchmen of London. If we were curious on such subjects, we might perhaps trace these pleasant devices up to their very sources, in the acts of some blood-stained and ferocious soldier, seizing the provisions of the industrious peasant, promising by a sort of tally, if he could not write, and by a bit of paper if he could, to pay for them at a future time, and when that time came, postponing the payment by his own lawless will. to a more convenient opportunity,—or establishing some rigid system of surveillance over the peasantry, whom he had first plundered of all they possessed, and then appropriated them as he had previously done their cattle. Deeds of this description are the monads, the first little nervous threads in the life of such laws, as the Bank Restriction Act, and of such schemes as those you dignify by the name of police. Most of your boasted enactments are found, when examined, to represent the barbarous customs of a barbarous people, and to have no better origin than acts of outrage, or systems of plunder.
I have already shewn you that the right of property is not an exception to the general rule. It does not spring from the brain of the lawgiver, and is not modified by him. It arises from physical circumstances, and as they modify the customs of men, the law-maker alters his decrees. Such as it now is, it had its origin in the actions of mankind; their customs have ever since modified it, and have gradually altered the right of property, which the laws, always copied from, and always representing the customs of a past age, have vainly endeavoured to maintain. We have seen that the power of the landowner has been gradually overthrown, and that an alteration in the right of property has accompanied the ruin of his power. What may be called the practical deduction from these facts, the deduction that ought immediately to influence the conduct of legislators, is obvious. As the laws have not in times past, when the legislator had more power than at present, and when there was no public opinion to controul the career of the governing class, saved the landowner from comparative decay, it is the height of folly in you legislators now to make laws with such an object in view, when all the causes which formerly conspired to weaken the power of the landowners now exist in tenfold force. The principles which have already produced the changes noticed, are still in active operation, and still tend to the same results. The gradual and continued declension of the landed interest throughout Europe since conquest ceased, the gradual rise of the monied and the commercial interests, were produced by natural causes; and that declension is still in progress, and cannot be arrested by human contrivances. Those who live on rent have shared in the general prosperity, they possess more conveniences than their ancestors, but they have every where declined in power and splendour, compared to the other classes, who a few centuries ago had nothing but what the owners of land pleased to give them. “The usurer being,” as Lord Bacon expresses it, “at certainties, and the others at uncertainties, at the end of the game the money will be in his box.” The landowner has been overshadowed and stifled by the luxuriant growth of commercial and manufacturing wealth.
The pertinacity with which he resists the abrogation of the Corn Laws is dictated by despair. It is one of the last attempts to preserve by legislation the superiority established by the sword, to which nature has decreed a termination; and his short-sighted obstinacy by which, bringing on himself contempt and hatred, he hastens his fall, is only to be equalled by the patient ignorance with which the rest of the community suffer him for a season to inflict comparative poverty and comparative famine on the whole.
By some of those authors, who are fond of attributing even the very existence of society, and every beneficial change in it to the law, it seems to be supposed that the adoption of the Roman laws, and the influence they gave to those who interpreted them, were the causes of the alterations and improvements I have brought under your notice; but this opinion, to say nothing of the barbarous nature of the laws themselves, is disproved by those alterations and improvements not having borne any proportion to the influence of those laws, which has been least, as in England, where the improvement has been greatest. It is plain, from our law relative to property being partly unwritten, we not having adopted the Roman law, and from our judges having worked out a system, by deciding cases as they were brought before them, partly following previous decisions, and partly straining them to meet, according to their ideas, the equity of each particular case, as wel as from the other circumstances I have mentioned, that our laws have not created the right of property such as it is, which now exists among us; they have followed, and followed with a very lingering pace, and at a great distance, the various slow and successive improvements which intervened between the first appropriation of the land, and our present right of property.
I need not recommend, however, such arguments to your attention, because the gist of that part of your celebrated speech which relates to our law concerning property is, that new property and new rights of property, have gradually arisen, to which, according to you, the laws are not yet adapted. The facts, or the rights, of which the law was originally only an imperfect copy, have been changed, while the law being nearly unaltered, enables the diligent antiquary to trace the history of man's delusions, but no more settles our ideas of mine and thine, and no more secures us in the possession of our rights than the Talmud or the Koran.
That at present there are many discrepancies between the law relative to property, particularly as to property in land, and the actual right of property, is generally acknowledged. That these discrepancies have been caused by gradual alterations in the right, and not by alterations in the law, for such as have been made, have approximated it more nearly to the right, cannot be doubted. But under these circumstances, no man pretends that the right must be altered and carried back to the old law. On the contrary, it is generally demanded that the law should be altered, and be made to conform to existing rights, and Low this may be best accomplished, is the object of the numberless commissions and committees which have of late inquired into the state of the law. All the remarks I have made, are confirmed by the fact that the alteration demanded in the law, is such as will make it conform to the rights the people already possess or guarantee to each other by their mutual opinion, or think they ought to possess, and therefore are willing to guarantee. On this principle I affirm, that it would be more rational for your commissioners, first of all to enquire into the rights which now exist, not in law books, but among the people, and to ascertain, from the alterations which have taken place in past times, what the future alterations are likely to be; and finally, to try and adapt the law, so as to make it oppose as few impediments as possible, to the bringing about the results ordained by nature, in gradually restoring the natural right of property.
If these observations be correct, if it be historically true, and in principle well founded, that the law neither establishes nor guarantees, nor maintains the rights of individuals, those who assert that social order, and the existence of society, depend on the law, must look for nothing but confusion and anarchy. Let them, however be reassured. That power which in past times has continually overruled the decrees of the legislator, has always established and preserved a social order of its own, far superior to any thing he ever contemplated. I might exp tiate on the subject at great length, but I shall content myself with shewing in what manner the law has not, and in what manner natural circumstances have, guaranteed that right of property which they have continually introduced. I shall reserve this, however, for another epistle, and in the mean time rest from my task.