LETTER THE SEVENTH.
REAL GUARANTEE OF THE RIGHT OF PROPERTY.
The existing right of property is guaranteed by opinion, not by law.—Source of the opposite mistake.—Protection afforded by law against governments.—Illustration of Turkey and Britain.—Illustrations of opinion guaranteeing rights, not laws.—Tenants at will in England and Italy.—Property of traders.—Domestic rights.—All rights are guaranteed by opinion.
TO H. BROUGHAM, ESQ. M. P. F.R.S. &c.
It is very generally said, that there is no guarantee for property but what the law affords; and that the security of property guaranteed by it, has been of the greatest use in promoting national welfare. These assertions are contradicted by the facts I have brought before you. The origin of the mistake seems to be this:
History informs us that the governing and legislating classes of society have very generally sought to restrain, limit, or regulate the natural right of property. Having violated or destroyed it, for even inter ference is violation, all other men require some guarantee against them. Considering laws for the protection of property as promises made by the legislative and ruling powers of society, that they will not to a certain extent interfere with the natural persuasion that we shall be permitted by them to enjoy what we produce, they may be called, I admit, guarantees. They are declarations on the part of some original wrong doers and their descendants, who have been by the silent and insensible operation of natural laws approximated to humanity and justice, that they will, within certain limits, respect the natural right of property. A security against their oppressions, a guarantee against the repetition of their flagrant outrages, was needed by the released serfs, and emancipated inhabitants of towns, and such a security and guarantee may have been found in laws, but they were only wrung from the legislator by the dread of that growing power in the people he had not been able to annihilate. The theory of those who say laws create rights, is copied from this single fact. The authors of it have been duly sensible of the necessity, that the natural right of property should be defended against the exactions of the legislating classes, and they have extended this fact to all the classes of society. With a strange oversight or inconsistency they found on the circumstance of the ruling classes having violated the natural right of property, a necessity for these ruling classes to retain a power to regulate their own unjust appropriation. The butcher-wolf has seized a lamb, and is tearing it to pieces; and Mr. Bentham and his followers, the pretended watch-dogs of the flock, bark aloud—To make him desist? NO! but to sanction his proceedings, and encourage him to do his work orderly, decently, and with decorum.
They bestow great praise on security of property, as conducing to the prosperity of a people. They ap peal to Turkey and to Britain, to shew the effects of wanting and possessing such security; but the greater security which exists in the latter than in the former, and which is described as the foundation of our greater industry, and superior national wealth, is not a security of the property of labourers against plunder, and against fraud, for it may well be doubted, looking at our criminal returns, and at the frauds which are daily practised, if private depredations are greater in Turkey than in Britain; it is security against the cadis, pachas, muftis, and sultans of our society. A regular compact has here been entered into between the peaceable flock and the wolves, and the latter receiving a stated, and as large a quantity of the whole as they can possibly exact, promise to allow the remainder to fatten in peace and tranquillity. At least they have ceased making open war on the flock, and only privately in the guise of shepherds, take as much as they can without terrifying and revolting the peaceable industrious people. In this country we have been enabled by a series of circumstances, to limit the exactions of our law-makers by some certain rules; industry here pays regular and stated tribute to pompous profligate idleness; there the tribute is still levied by the sword, in the same manner as it was first exacted by the warlike prophet and his immediate descendants. We have been able to subject our feudal masters to a certain regular rule, and we can only preserve them in this reasonable species of obedience by our intelligence. In the restraints thus imposed on the avarice and exactions of our Divan consists that security of property so much and justly vaunted in Britain. It is a security, not procured by the legislature for the people against each other, but obtained by them against the imposer of taxes; it is security against the rapaciousness of government, not against the unjust exactions, the secret thieving or open plunder of individuals, Considering laws for the protection of property as limits placed to the unbounded, indefinite and capricious plunder of the ruling classes—the former conquerors of the soil—they cannot be too much praised; under any other view they appear intended only to protect oppression.
That a law does not give us security against each other, is evident by considering what it is—a piece of parchment, containing a declaration of the opinion of those who drew it up. It has of itself no power whatever, and can only be carried into execution by the resolves of living men. Any law, therefore, relative to a right of property, can only be a declaration that such a right exists, or ought to exist, supported by the opinion of the people, and determination to enforce that opinion at any given moment. Our persuasion that we shall he permitted to enjoy, and the actual guarantee of enjoyment, is not derived from the material parchment, or the significant black marks within it; a fact which cannot be doubted in this country, where the people are even more ignorant than the judges what are the provisions of the law,—but from our knowledge of the opinions and moral character of our fellow men. Our sense of security, as far as that original and natural, or instinctive, expectation is confirmed by experience, is founded on the effects of those principles of respect for mutual rights, the natural origin of which I have pointed out, and which are extended through all the relations of life, as society increases in numbers and civilization. An act of parliament derives all its force from the sentiments of the people, and it is quite consistent with all the opinions already advanced for me to state, that all men do, and must, ultimately rely for the security of their possessions on the mutual respect they have for each other's rights.
The actual right of property, as it is gradually created or altered, by the natural right of property modifying the artificial right, is secured by the consequences of those laws which call it into existence. The Benevolent Power which has gradually broken the iron fetters of the landowner, has never liberated man from the silken and flowery bands of duty and happiness. The assertion that a right of property is created by human laws, is contradicted by every part of history, in every page of which you find evidence that the power, whether it was that of the Catholic or the Dissenter, of the emancipated serf, or the opulent burgher, which inspired the legislator with respect for his rights actually guaranteed them against all other men. The legislator, being the descendant of our conquerors, was more powerful than any other individual, and therefore we may be sure that the principles which compelled his obedience, must have been of paramount influence over the rest of the world. The right of the labourer to personal freedom, however long it was over looked, is obviously founded in the common principles of our nature. When he, from the multiplication of his class, was able to claim that right, and not till then, it was respected; in like manner the right of the free labourer to own what he produces, is obviously founded on the natural principle of the right of property; he could never do otherwise than recognize it himself; and when he was able within the walls of his own place of refuge to protect that right, it was recognized and acknowledged by others. In like manner his right to receive interest for the loan of that property, or to obtain a profit by employing it, was respected when the use of that property was desired by others, and they were unable to force it from him. Thus, as new wealth was created, and as a new right of property came into existence, the circumstances, that nature gives all wealth to the labourer, and then gives him, as a capitalist, the power to defend it, begot in all other men motives to respect his right. The actual labourer deeply respecting, or not yet possessing a sufficient power to resist the united claims of the landlord, the capitalist, the priest, and the law-maker, finds in fact that his right is neither acknowledged nor protected. The right of property, such as it is therefore, is continually guaranteed by the same circumstances as create it. The persuasion that we shall be permitted to enjoy what we make is natural and necessary, and inspiring us with anger and indignation when it is disappointed by the conduct of another, and rousing us to exertion, inspires that other with apprehension, and compels him to be just. In the progress of society, the apprehension begets a habit of acting justly. The painful fear ceases, when the habit is established, and men respect the rights of each other after the application of personal strength to protect them has ceased to be made, and ceased to be dreaded. A sort of sufferance, or, if you please, of mutual forbearance, which constitutes a mutual guarantee, arises among men, and this sufferance and forbearance, not the law, protects the rights and enjoyments of all.
Those who distinguish between sufferance and right, the latter being sufferance put into a particular form, do not seem to me to be very accurate observers. Such a distinction forms the basis of many an eloquent parliamentary oration, and is the theme for learned speeches at debating clubs. Beardless youths, and grey-headed statesment have largely dilated on the security of law, and the insecurity of depending on the consciences of our fellow men. When such a distinction is analyzed, no difference between right and sufferance can be discovered. The laws themselves exist by sufferance. They depend on our will; they are suffered to remain by us they are kept up and preserved by our moral sentiments, and cannot possibly have any greater power, or give any greater security than those sentiments from which their force is derived. If you will but put aside the statute-book, and the legislator and the judge, and look into society, you will see, that the greater parts of the rights of men and of women, of neighbours and friends, of parents and children, of common acquaintance, and even of those who live in hostility, for they have rights, you will see that most of our domestic and civil rights, the dearest and the best, are not guaranteed by any law, and have no other security but the mutual respect of man for man, or the moral feelings of individuals.
Here is a picture of a large portion of society living for years, for centuries, in the secure enjoyment of a right of property, not guaranteed by the law. “In that state of society,” says Mr. Miller, “which determined allodial proprietors to shelter themselves under the protection of a feudal superior, and by which the number of military retainers was therefore gradually augmented, the privileges belonging to this order of men were naturally increased, and their condition was rendered more secure and comfortable. The original vassals of any person were the members of his own family, who, from natural affection, and from ancient habits, were strongly attached to his interest; and upon whom, from a reciprocal regard, as well as from the consideration of expediency, when they became too numerous to live in his own house, he voluntarily bestowed the possession of land for their maintenance. As the superior had no reason to suspect that these men would ever be deficient in fidelity, or seek to withdraw their allegiance, so they entertained no apprehension that while they were willing to fulfil their duty, they should ever be dispossessed of their lands.” “The intimate connection between the parties, and the simplicity of their manners, made them place a mutual confidence in each other, and prevented their being apprehensive of any future disputes, so that neither the superior required any specification of the services to be performed, nor the vassal any express stipulation with respect to the duration, or the terms of his possession. Thus the original vassals, though in fact their land was commonly permitted to remain with them and their posterity, were properly no more than tenants at will, and therefore entirely dependant upon the superior.
Sir, I need not remind you that this mutual regard for rights between landlords and tenants, descended to our own times; and that in many parts of England, up to comparatively a recent period, and even to this day, tenants at will cultivate their farms as secure in their possessions, as if their leases were enrolled and registered in Chancery, having all the army of its black myrmidons to enforce them. The proprietors, for centuries, would as soon have thought of stealing poultry, or snuff-boxes, as Mr. Wyndham once said of them, as of disturbing these mere customary tenants in their possessions. Here then, I say, we have evidence of the whole frame-work of society, and all customary tenures fall under this description, existing through long periods without any of the tyers, and rafters, and wall-plates, and king-posts of positive enactments.
Here is another example of the same fact in a distant land and a different age. “The peasants of this province (Bologna) are not proprietors, they have not even a lease of their farms, but retain possession by a sort of tacit understanding, deemed as binding as any written engagement could be; generation succeeds generation without a change of tenure; children marry, and their children after them on the same; and it is not uncommon to meet with families composed of thirty or forty individuals, all under the same roof, and acknowledging a chief or head, who is alone accountable to the proprietor of the soil.
The same understanding generally prevails between landlord and tenant; for the latter gets in his harvest, threshes his corn, and shells his maize, without being overlooked by the landlord, who comes only to choose one out of two heaps of grain, or one out of two parcels of hemp ready prepared for the purpose. The same confidence is shown as to the produce of the vineyard; for every other tubfull of mashed grapes is sent to the landlord, without his deeming it necessary to inpect those which the tenant keeps for himself. All this security constitutes a state of things to which few other countries offer a parallel.”
Has this state of mutual confidence passed away? Are there now no examples of men relying implicitly on each other in this country? The examples already quoted were found among the land-owners: look now at the commercial part of the community. The master principle of all modern production is division of labour, or mutual co-operation; and under the influence of this principle, men on the other side of the globe, fully relying on having their wants supplied by those who live here, devote themselves to one species of industry. Is this mutual confidence, which is the very soul of all trade, is the reliance of one class of men on another for subsistence, the work of your alehouse-licensing, gameselling, pewter-pot regulating enactments? Is it the work even of any human being? It is not. It is a blind instinctive confidence, the result of circumstances, or rather of the reciprocal laws of matter and of mind; and the cotton-spinner of Manchester may be utterly ignorant even of the existence of the Polish serf or Irish peasant, by whose labour he is fed. Out of this mutual co-operation of different tribes and nations, out of this instinctive confidence, new rights of property continually arise which cannot be protected by laws, because the influence and power of laws are limited to a district, and these rights are relations esta blished between men living in one place and commodities that are then in another. Those relations of property, which are created or acquired by men living under different governments, and to commodities in places where they dwell not, cannot possibly be provided for by the enactments of any one state. In how many cases must men engaged in trade entrust their property to other men, over whom they have not the smallest controul, but what is derived from a sense of moral obligation? In how many cases does the idea of one man, having produced or purchased a commodity, make his right to use or dispose of it respected over half the globe, and in places where no laws can reach? I quote from an eloquent preacher an exquisite picture of this mutual confidence.
“The commercial man,” (who neither reads his bible nor goes to church, according to Dr. Chalmers, and who we may consider therefore to be little under the influence of the priests, and not standing much in awe of the lawmaker, has, he says,) “a natural principle of integrity; and under its impulse he may be carried forward to such fine exhibitions of himself as are worthy of all admiration. It is very noble when the single utterance of his word carries as much security with it, as if he had accompanied that utterance by the signatures, the securities, and the legal obligations which are required of other men. It might tempt one to be proud of his species, when he looks at the faith that is put in him by a distant correspondent, who, without one other hold of him than his honour, consigns to him the wealth of a whole flotilla, and sleeps in the confidence that it is safe. It is, indeed, an animating thought, when we behold the credit which one man puts in another, though separated by oceans and by continents, when he fixes the anchor of a sure and steady dependance on the reported honesty of one whom he never saw: when, with all his fears for the treachery of the varied elements through which his property has to pass, he knows, that should it only arrive at the door of its destined agent, all his fears, and all his suspicions may be at an end. We know nothing finer than such an act of homage from one human being to another, when perhaps the diameter of the globe is between them. Nor do we think, that either the renown of her victories, or the wisdom of her councils, so signalise the country in which we live, as does the honourable dealing of her merchants; that all the glory of British policy and British valour, are far eclipsed by the moral splendour which British faith has thrown over the name and character of our nation; nor has she gathered so proud a distinction from all the tributaries of her power, as she has done from the awarded confidence of those men of all tribes and colours and languages, who look to our agency for the most faithful of all management, and to our keeping for the most inviolable of all custody.”
It is somewhat remarkable, that this principle of integrity, and this mutual confidence among the merchants of different countries, has not been promoted by laws. In the early stages of European society, the laws were any thing but friendly to commerce, and only sometimes, as a matter of special grace and favour, guaranteed to the alien his life and property, on paying a heavy tribute, in the shape of double and treble duties. Independently of those breaches of faith—profligately scorning all moral principle, committed by all the governments of Europe, in seizing the property of foreign merchants at the breaking out of war—that great anomaly which the hired butchers of their fellow men dignify with every honourable appellation: independently, Sir, of these breaches of faith, which, by the force of example, are enough to weaken the integrity of every merchant, the law in almost all Europe, during the time that trade was silently struggling into importance, refused protection to the property of aliens. Those who received it were often obliged to do so secretly. If the law, therefore, had any effect on the merchants, it was not to strengthen their respect for the property of a man living on the other side of the globe. Till they had become as powerful as plundering barons, and were able to protect the new rights their industry had created, the law was made by those who despised them, and despised all trade as mean and grovelling, calling merchants pedlars, and treating the foreign trader as only fit to be plundered.
In addition to the mutual respect of landlords and tenants for their reciprocal rights, which, though in no wise the offspring of any positive institution, formerly prevailed through the larger part of society, I shall now quote an illustration of a similar respect pervading our domestic relations at present. Do parents and children, do wives and husbands, look to the laws to guarantee to them their individual possessions against each other? Have they no sense of security but what the lawmaker supplies? My little experience bids me answer these questions in the negative. Except large possessions, jointures, and lands be concerned, husbands and wives, parents and children, rarely appeal to the law. The great majority of the middle classes have a sense of security, and a persuasion that each will be permitted to enjoy what is his or hers, unassailed by any rival claims of members of the same family, without the law being ever present to the mind. They may look, indeed, to the law for protection against strangers whom they mistrust, because they do not know them, but against their relations and friends and neighbours, in the great majority of cases, and in most of the transactions of life, they never think of what the law prescribes. If we find this sense of security pervading every house in the country, if it extend to all our domestic relations, if the conduct of parents and children, of husbands and wives, be determined without any reference whatever to law, how much of the actual possessions of each, I ask, does the law guarantee? It guarantees the rights of the land-owner as far as it can, it protects the possessions of the clergy, it gives the taxeater his bread, but that it protects or guarantees the possessions and enjoyments of the industrious classes, is only true if it be found prescribing our domestic duties and protecting all our individual possessions.
One great part of the business of life consists in parents providing for their children. In the middle classes, when the latter arrive at a certain age, they are frequently launched into the world, provided with a small capital to commence business. The prudent parent, till his son gives proof of his capacity and integrity, rather lends than gives the necessary stock, and very often retains a right of property over that wealth he entrusts to his child. The law would support the father in resuming the possession, and we should therefore expect that the child, deriving no security from the law, would have no motive for exerting himself. In fact, however, he does not need its assurances; he has a confident expectation that his parent will allow him to retain what he acquires by the use of the property en trusted to him—will, if he deserve it, leave him in full possession of that property, and he does not cease to be industrious, because the law is not on his side. Those young people who remain dependant on their parents till they have proved themselves worthy to be trusted, are the staple of all that is honourable and industrious among the tradesmen of the country. On the contrary, those who are secured in the possession of a certain property by the law, like the heirs to entailed estates, too frequently turn out idle, dissipated, and worthless. They seldom or never render themselves of any use to the public, till, from some circumstance or other, they become dependant on its good opinion. Thus, where we can distinctly trace the operation of the law guaranteeing the possession of property, we find its effects any thing but virtue; and where we trace the total absence of law, as in our domestic relations, we find a strong sense of security giving birth to manly exertions. The persuasion that we shall enjoy what we produce, and the industrious habits consequent on that persuasion are not, in these cases, it is plain, the produce of the law—for that, let it never be forgotten, does not guarantee to each man what he produces—but of the mutual respect for claims and rights which naturally grows up among individuals, and extends, as they multiply, through all their complicated relations to one another.
Being willing to believe that the natural right of property, the foundation of which is so palpable, extends its influence, from the evident relation of the savage to the first rude products of his untutored skill, over all the ramifications of civilized life, in the same manner as the properties of the precious metals, and of other commodities, determine their relative value and all the minute phenomena of trade, of money and of credit, consequent thereupon, I may borrow from the few facts I have here brought under your notice, a conviction, which they will be far from generating in those who deny the existence of any natural right of property, and who contend that such a right is the proudest work of human art. To me they seem satisfactorily to prove, that the same natural law which induces the savage to call that his, which he seizes on or makes, and induces all men, on account of its being at all times more difficult to take from one another, than for each to make for himself, to respect their mutual rights, operates at all times and places, and as it modifies and changes the right of property sought to be maintained by the legislator, so it continually protects the new right of property industry calls into existence. If these observations be correct, the right of property now actually in existence, like the right to and the enjoyment of religious toleration, and like the freedom of the press, is neither created nor guaranteed by the law, but by the moral principles of our being.
I have yet a few concluding observations to append, by way of summary, but I shall devote to them a distinct though a short epistle.