Online Library of Liberty - Molinari's 3rd Evening (older version)

[SUMMARY – Continuation on the attacks made on external property. – The law of compulsory acquisition for reasons of public utility. – Legislation relating to mines. – The public domain, property belonging to the State, departments and communes. – Forests. – Roads. – Canals. – Waterways. – Mineral waters.]


Title Page of the original 1849 edition	The photo of Molinari (1819-1912) which accompanied his obituary in the Journal des économistes

Introduction

The Third Evening

[p. 70]

SUMMARY – Continuation on the attacks made on external property. – The law of compulsory acquisition for reasons of public utility. – Legislation relating to mines. – The public domain, property belonging to the State, departments and communes. – Forests. – Roads. – Canals. – Waterways. – Mineral waters.

THE ECONOMIST.

We have noted that property rights with respect to works of the intellect are very badly treated under the present regime. Material property is more favored in the sense that it is guaranteed in perpetuity. This recognition and guarantee, however, are in no sense absolute. An owner can have his property confiscated under the law of expropriation for reasons of public utility.

THE CONSERVATIVE.

What? Do you wish to abolish that tutelary law without which no undertaking on the grounds of public utility would be possible?

THE ECONOMIST.

What do you understand by an undertaking on the grounds of public utility?

THE CONSERVATIVE.

An undertaking on grounds of public utility is…an undertaking

[p71] useful to everybody, a railway, for example.^[99]

THE ECONOMIST.

Oh, and is not a farm which produces food for everybody not an undertaking also useful to all? Is not the need to eat at the very least as universal and necessary as the need to travel?

THE CONSERVATIVE.

No doubt, but a farm is a rather limited individual enterprise.

THE ECONOMIST.

Not always. In England there are immense farms. In the colonies there are farms which belong to numerous and powerful companies. Anyway, what does it matter? The usefulness of an enterprise is not always a function of the space it occupies and the law does not investigate whether an enterprise known as “a public utility” is owned by a company or isolated individual.

THE CONSERVATIVE.

We could not establish any analogy between a farm and plantation and a railway. The development of a railway is subject to certain natural exigencies; the slightest deviation in the route, for example, can entail a large increase in costs. Who will pay for this increase? The public. Well, I ask you, must the interest of the public, the interest of society be sacrificed to the stubbornness and greed of some landowner?

THE SOCIALIST.

Ah, Mr Conservative. These are words which reconcile me to you. You are a fine fellow. Let us shake on it.

THE ECONOMIST.

There are in the Sologne vast stretches of extremely poor land.^[100] The poverty stricken peasants who farm there receive only a meager return for the most laborious efforts. Yet close to their wretched hovels rise magnificent chateaux with immense lawns where wheat would grow in abundance. If the peasants of the Sologne demanded that these good lands be expropriated and transformed into fields of wheat, would not the public interest require that this be granted them?

THE CONSERVATIVE.

You go too far. If the law of expropriation^[101] were used in the cause of public utility to transform lawns and pleasure gardens into fields of wheat, what would happen to the security of property? Who would want to manicure a lawn, lay out a park, decorate a chateau?

THE SOCIALIST.

Expropriation always entails an indemnity.

THE CONSERVATIVE.

But the indemnity is not always big enough. There are things for which no indemnity could compensate. Can you pay for the roof which has sheltered generations, the hearth around which they have lived, the great trees which witnessed their births and their deaths? Is there not something of the sacred in these centuries old abodes, in which the traditions of the ancestors live on, [p73] in which so to speak the very soul of the family breathes? Is not the expulsion of a family forever from its ancient patrimony, the commission of a deeply immoral assault?

THE ECONOMIST.

Except, of course, when it is a question of building a railway.

THE CONSERVATIVE.

Everything depends on the extent to which the undertaking is useful.

THE SOCIALIST.

But is anything more useful than farming devoted to the people’s subsistence? For my part I strongly hope that the law of expropriation for reasons of public utility will soon be given enlarged scope. The Convention had potatoes grown in the Tuileries gardens. What a sublime example! May our legislative Assemblies keep it forever in mind! How many thousands of hectares lie unproductive around the luxurious residences of the lords of the earth? How many mouths could we feed , how much work could we distribute by handing over these fine lands to workers ready to farm them? Oh you rich aristos,^[102] one day we will plant potatoes in your sumptuous flowerbeds; we will sow turnips and carrots in place of your dahlias and your Bengal rose bushes! We will expropriate you for the sake of public utility.

THE CONSERVATIVE.

Fortunately the expropriation panels^[103] will not give permission for these barbarous projects.

THE SOCIALIST.

Why not? If Public Utility demands that your chateaux [p74] with their lawns and parklands be replaced by fields of potatoes why should the panels not agree to the expropriation? If some grant it happily when it is a question of turning farmlands into railways, will not others agree to it with all the more reason when it is a question of replacing luxurious parklands with farming? Will you cite in your reply to me the actual composition of expropriation panels? They are made up of big landlords, a fact of which I am not unaware, but this latter kind of panel will not escape the law of universal suffrage any more than the former will. We will have small owners and workers coming on to them, and then my word… big property will dance a merry tune.

THE CONSERVATIVE.

That is a subversive proposal of the first order.

THE ECONOMIST.

What do you expect? A law you established yourself is being enlarged and its application generalized on grounds of Social Utility. Your work is being completed. Can you complain about it?

THE CONSERVATIVE.

I know very well that expropriation in the service of public utility has its dangers, especially since that accursed revolution… Is it not however indispensable? Are not private interests perpetually at war with public interests?

Moreover does not this law contain an implicit recognition of property? If the State did not respect property rights, would it have gone to the trouble of demanding a law of expropriation from the Legislative Chambers? Would simple ordinances not have sufficed?[p75] Does the law of expropriation on the grounds of public utility not subsume an implicit recognition of property?

THE ECONOMIST.

Yes, in the way that rape subsumes an implicit recognition of virginity.

THE CONSERVATIVE.

What about the indemnity?

THE ECONOMIST.

Do you think any indemnity could compensate for a rape? Now if I do not want to hand over my property to you and by using your superior strength you rob me of it, are you not committing a serious crime? ^[104] The indemnity will not efface this assault made against my rights. But, you will object, the public interest may require the sacrifice of certain private interests, and this necessity must be provided for. And this is you, a conservative who is speaking to me in these terms? Is it really you denouncing for my benefit the antagonism between the public interest and private interests? Do take care, are you not talking socialism?

THE SOCIALIST.

Probably. To each his own.^[105] We have denounced and were the first to do so, this lamentable idea of an opposition between the public interest and private interests.

THE CONSERVATIVE.

Yes but how can you put an end to it?

THE SOCIALIST.

That is very simple. We get rid of private interests. We bring about the return of the wealth of each to the domain of All. We apply on an immense scale [p76] the law of expropriation in the cause of public utility.

THE ECONOMIST.

And if there truly is antagonism between the interest of each person and the interest of all, you are acting very wisely and your adversary is in error in not following you all the way.

THE SOCIALIST.

You are being sarcastic! Do you happen to believe that private interests naturally coincide of themselves with public interest?

THE ECONOMIST.

If I were not convinced of it, I would have become a socialist a long time ago. I would wage, as you do, perpetual war against private interests, I would demand a tightly knit association, a community, and who knows what else. I would not wish at any price to maintain a social order where no one would prosper save on the condition of hurting other people. Thank God, however, that society is not constructed thus. The various interests are naturally in agreement. The interest of each person coincides naturally with the interest of all.^[106] Why therefore make laws which put the former at the mercy of the latter? Either these laws are pointless, or as the Socialists claim, society needs remaking.

THE CONSERVATIVE.

You argue as if all men had an accurate understanding of what is in their own interest. Well, this is false. Men frequently mistake what is in their interest.

THE ECONOMIST.

I know perfectly well that men are not infallible; I also know, however, that each man is the best judge of his own interest.

[p77]

THE CONSERVATIVE.

Perhaps you are right in principle, but in practice some people are truly obstinate and stupid.

THE ECONOMIST.

Not so obstinate and not so stupid when their interests are in question. I admit, however, that people of that type can ruin some useful enterprises. Do you think that the present law does not cause more harm than they would be able to? Does it not compromise the security of present property and does it not menace it in the future too?

THE CONSERVATIVE.

It is quite certain that socialism would make a truly deplorable use of the law of expropriation in the cause of public utility.

THE ECONOMIST.

And you conservatives who passed that law, would you willingly oppose its application? Is this not a dangerous weapon which you have forged for your enemies’ use? By declaring that some majority or other has the right to seize an individual’s property when the public interest demands it, have you not supplied socialism in advance with a justification for such expropriation and a legal means of carrying it out?

THE CONSERVATIVE.

Alas! But who could foresee that infernal revolution?

THE ECONOMIST.

When one engages in law making, one has to foresee everything.

Along with this law which threatens property right down [p78] to its roots, our Code includes other laws involving partial attacks on certain property; mining legislation for example.^[107] Like the works of the intellect, mines end up outside the common law.

THE CONSERVATIVE.

Is this not a special kind of property and ought it not therefore to be subject to special laws?

THE SOCIALIST.

What does today’s legislation with regard to the mines say?

THE ECONOMIST.

French legislation on the mines has for a century undergone very diverse modifications. Under the Ancien Régime the mines were considered as belonging to the royal domain. The king granted mining licences as seemed to him appropriate, to the finder, to the owner of the land or to any other, in exchange for a tenth of the annual output. When the Revolution liberated property and labour, people must have hoped that this advantage would be extended to mining property; unfortunately it did not turn out that way. The law makers refused to grant subterranean property its charter of liberation.

Three opinions emerged on the issue of this kind of property. Some said that underground property was simply attached to surface property; according to others it belonged to the whole community; according to a third group it reverted to the finders. In this last view, the only equitable one, the only one consistent with law, the owners of the land could demand only a simple indemnity for those parts of the surface of the land which were necessary for exploiting the mineral deposits, and the government[p79] likewise could not demand anything save a tax for the legal protection granted to the miners.^[108]

THE SOCIALIST.

According to you then, the ownership of mines ought therefore to be classed in the same category as property rights over inventions?^[109]

THE ECONOMIST.

Precisely. Let us suppose you are a gold prospector. After a lot of searching you have managed to find a seam of this precious metal. You have the sole right to exploit this seam that you alone have discovered.

THE SOCIALIST.

On this reckoning the whole of America should have belonged to Christopher Columbus who had discovered it.

THE ECONOMIST.

You are forgetting that America was already to a great extent under ownership at the time of Christopher Columbus’s discovery.^[110] Moreover, it is a rule of the law of nations that an uninhabited land belongs to the first to discover it.

THE SOCIALIST.

If however, after having discovered it, these first comers decide that it is not appropriate to exploit it, their property rights die. How do you explain this demise of property rights?

THE ECONOMIST.

The right of property does not die. One ceases to possess only when one renounces that possession. If I have discovered a mine I will exploit it or I will cede it to someone who will exploit it. The case will be the same if I have discovered a country: I will exploit it or sell it. [p80]

THE SOCIALIST.

What if you keep it without exploiting it?

THE ECONOMIST.

It will be my right but not in my interest. Looking after anything is costly: you have to pay for the security of property. If therefore I do not want to develop the land or mineral deposit which I have discovered, and if no one wants to buy it from me I will soon give up on looking after it; for it will incur losses rather than profits for me. So there is, you see, no draw back in leaving to the finder the full disposition of whatever he has discovered.

THE CONSERVATIVE.

The discoverer of a deposit possesses a right to it; that seems to me quite legitimate. It is right that his work of discovery be remunerated. Do not society and those who own the surface of the land, however, also have some rights on what is underground? Society protects those who work the mines and it supplies them with the means to work them. As for the owners of the surface of the land, do they not have a claim on the ground below by the very fact of occupying the surface? Where is the boundary between the two properties?

THE SOCIALIST.

Yes, where is the boundary?

THE ECONOMIST.

Neither society nor the owners of the land can claim the least right to what is underground. I have already demonstrated to you in respect of inventions, that society has no right to the fruits of the work of individuals. There is no point going over this again. As [p81] for the owners of the surface land, Mirabeau^[111] has clearly refuted their claims to the ownership of the sub-soil: “The idea that being the owner of a stream or river makes one the owner of the ground below our fields seems to me as absurd as the idea of preventing the passage of a hot air balloon because it passes over the property of a particular landowner.”^[112] Why is this absurd? Because the ownership of the fields lies solely in the value which work has given to the surface of the land and the owners of the land have contributed nothing of value to what lies below the soil, just as they have contributed nothing to the air above it. Search out who has worked or is working and you will always know who possesses or ought to possess a thing.

THE CONSERVATIVE.

But is it possible to discover a mine and to exploit it without the agreement of those who own the surface land?

THE ECONOMIST.

What happens is this. You ask the owners of the land for permission to explore the ground, at the same time undertaking to give them a payment or part ownership of the mine by way of compensation for the damage which may be caused to them. Once the mine is opened up, you divide up the potential profits and set to work on it. If the exploitation of what lies under the ground is such as to harm the surface property, the owners of that property obviously have the right to oppose this or to claim a further indemnity. Their choice will be the indemnity, since the opening of a mine, by giving a new outlet for their products, directly or indirectly increases their incomes. In this way, interests which appear opposed, are naturally reconciled.

[p82]

Unfortunately, the Constituent Assembly and Mirabeau himself, did not understand that the ownership of mineral resources could without any drawbacks, be left unregulated. They attributed the ownership of mines to the nation. They produced a form of underground Communism. The law of 1791 put the government in charge of allocating the ownership of mineral deposits, and it limited the tenure of licences to fifty years. Moreover the government was given the power to withdraw these licences if the mines were not maintained in good shape or if they stopped operating for a while.^[113]

Undoubtedly the most destructive clause in this legislation was the one limiting the length of leases. Given the huge capital investments mining demands and the preparatory work sometimes stretching over several years, it was important above all that entrepreneurs be assured as to the future; to limit their enjoyments of their rights was to force them to limit their efforts to invest; it was to place an almost insurmountable obstacle in the way of their developing the mining of minerals.

The government’s prerogative to withdraw licences in certain specified circumstances also entailed very serious drawbacks. It is not easy to determine whether a mine is being well or badly managed. Opinions can be divided on the most appropriate means of exploitation. It was argued against wholly unrestricted exploitation, for example, that the managements extracted the richest seams first of all and neglected the others. Were they not, however, in taking such a decision, merely acting in the most rational way? Was it not obvious one should start with the most productive [p83] parts of the mining project? In starting with developing the less rich seams, would not the licencees have damaged their infant enterprise? Nor could it easily be decided with any greater certainty whether a developer was right or wrong to abandon all or part of his project for a while. His personal interest, which was to keep it all going constantly, was in this respect an insufficient guarantee. Unless demand slowed down, in which case the partial or total cessation of extracting minerals would of course be justified, what interest could he have in interrupting work?

THE CONSERVATIVE.

They reformed that bad law.

THE ECONOMIST.

They reformed it very incompletely. The law of 21 April, 1810, which replaced it, gave the government the right to grant or withdraw licences. The difference, however, is that licences ceased to be limited to fifty years. Even so, in other ways the situation of mine owners has been worsened. The 1810 law forbade them to sell in lots or to split up their mines without a prior authorization from the government, and it subjected their mining to a surveillance system created for this purpose. Furthermore, it maintained the alleged rights of surface landowners, and entrusted the Council of State with the task of determining the amounts of compensation to be granted them. Mining found itself, in this way, closely regulated and heavily burdened.

So what was the result of this law? It was to [p84] reduce to the minimum the mining of minerals.^[114] Who would want today to be a discoverer of mines? Who would want to specialize in finding new deposits of various minerals? Before a discovery can be exploited, does one not have to lobby for a licence for long years (the licence to use something one already owns by creating it by means of one’s own work), and having obtained it, submit oneself to an irksome surveillance and brutish directions from the administration of mining? What would happen to our agriculture, I ask you, if our farmers could not remove a shovelful of earth without the approval of some official from the Ministry of Agriculture? If they could not sell the merest parcel of land without the say-so of government? If in a word the government took it upon itself the right to take their property from them, at will? Would not this be the death of our farming? Would not investable funds soon turn away from so detestably oppressed an industry? …Well in fact investment capital has been turned away from mining ventures. It has been necessary to grant them special privileges to attract it back. It has been necessary to keep out foreign competition, and there has thus been facilitated on the domestic front the establishment of an immense monopoly, to persuade investment funds to venture to participate in an industry subservient to the government’s good pleasure. It has been necessary to burden consumers of mineral products with some of the damage inflicted on the ownership of mines. Is this not barbarous?

Let us suppose on the contrary that in 1789 the oppressive right which monarchs had taken upon themselves to cede the ownership of mines at will, had simply been abolished; [p85] let us suppose further that this ownership had been freely given and guaranteed to those who had created it. Would not the production of mines have developed to the maximum, without there having been any need to protect it? Might not that source of production which still yields only scant output flow copiously in the long run?

THE CONSERVATIVE.

Yes, ownership is a marvelous thing. One works with such ardor when one is always sure of possessing the fruits of one’s labor, and of being able to dispose of it at will – consuming it, giving it away, lending it, or selling it, all without hindrance, harassment or irritation. Property! That is the real California. Long live property!^[115]

THE SOCIALIST.

Long live labor!

THE ECONOMIST.

Labor and property go together, since it is work which creates property and property which calls out for labor. So long live labor and property!

Government harms the development of production, not only by hampering individual ownership, but also by claiming certain properties for itself. Alongside the property of individuals there is, as you know, the public domain or common property. The State, the departments and the communes, own considerable wealth: fields, meadows, forests, canals, roads and buildings and the like.^[116] Do not these diverse properties, which are managed in [p85] society’s name, constitute a genuine case of communism?

THE CONSERVATIVE.

Yes, to a certain extent. Could things be arranged otherwise, however? Does not the government have to have certain kinds of property at its disposal? It is set up to render certain services to society…

THE ECONOMIST.

What services?

THE CONSERVATIVE.

The government must…govern.

THE SOCIALIST.

Govern, by Jove! What do you mean by that, however? Is it not to manage various interests and harmonize them?

THE ECONOMIST.

There is no need for interests to be managed or harmonized. They manage and harmonize themselves quite well without anyone interfering.

THE SOCIALIST.

If that is how it is, what must government do?^[117]

THE ECONOMIST.

It must guarantee for each individual his freedom of activity, the security of his person and the conservation of his property. To exercise this particular function, to render this special service to society, government has to have access to certain resources. Anything more it possesses is unnecessary.

THE CONSERVATIVE.

But if it renders other services to society, if it supplies education, if it finances religion, if it contributes [p87] to the transport of men or merchandise by land or by water, if it makes tobacco or porcelain, or carpets, or gunpowder or saltpeter…^[118]

THE ECONOMIST.

In a word if it is communist! Well it does not need to be communist. Like any entrepreneur the government must do one thing and one only, or risk doing what it does very badly. All governments have as their main function the production of security.^[119] Let them confine themselves to that.

THE CONSERVATIVE.

You have just given us a very rigorous application of the principle of the division of labor. What you would like to see then is the disappearance of the public sector, with the State selling the greater part of its property, and with all production becoming, in a word, specialized.

THE ECONOMIST.

I would like this for a better development of production. In England there was recently an inquiry into the management of public property.^[120] Nothing could be more instructive than the results thrown up by this research. In England the public domain consists of ancient fiefdoms of the crown, which have now become public property. These properties are huge as well as magnificent. In the hands of individuals, they would yield a worthwhile output. Controlled by the State they yield almost nothing.

If you will allow I will give you a single instance.

The main wealth of this domain consists in the four forests of New Forest, Walham, Whittlewood and Whychwood.^[121] These forests are entrusted to guardians who [p88] administer them. These are the Dukes of Cambridge and Grafton, Lord Mornington and Lord Churchill. The guardians receive no formal payment but are allotted a very sizeable payment in kind, including game, timber etc. The annual income from the New Forest adds up on average to £56,000 or £57,000 sterling, approximately Fr 1, 500,000. The Treasury has never garnered more than £1000 of this income, while the maintenance of the forest between 1841 and 1847 cost the State more than £2000.^[122]

THE CONSERVATIVE.

This is a flagrant abuse. Do not forget, though, that this is happening in aristocratic England.

THE ECONOMIST.

Plenty of other abuses happen in our democratic France. It has long been known, in France and in England, that the management of state property is dreadful.

THE CONSERVATIVE.

That is only too true. There are types of property that obviously must remain in the hands of the State, the roads for example.^[123]

THE ECONOMIST.

In England the roads are owned by individuals, and nowhere does one see them so well maintained.

THE CONSERVATIVE.

What about the tolls then? Traffic is not free in England as it is in France.

THE ECONOMIST.

Excuse me, but it is much freer in Great Britain, [p89] for road communications are much more numerous. And do you know why? Quite simply because the government has left it to individuals to build roads and has not got involved in building them itself.^[124]

THE CONSERVATIVE.

But I ask once more, what about the tolls?

THE ECONOMIST.

Oh, do you think then that the roads in France are built and maintained for nothing? Do you think that the public does not pay for their construction and maintenance as happens in England? Only, here is the difference. In England road construction and costs are paid for by those who use them; in France they are paid by the taxpayers, including the goatherds of the Pyrenees and the peasants of the Landes^[125] who do not set foot twice a year on a national highway. In England it is the user of such means of transport who pays for them in the form of tolls; in France the whole community pays in the shape of taxes, often of a most excessive and irksome kind. Which is preferable? ^[126]

THE CONSERVATIVE.

And the canals, is it not appropriate for them to be left in the public domain?

THE ECONOMIST.

No more so than the roads. In which countries are the canals the most numerous, the best constructed and the best maintained? Is it in the countries where they are in the hands of the state? No! It is in England and [p90] in the United States where that have been built and are used by private groupings of private individuals.^[127]

THE SOCIALIST.

Would not roads and canals constitute oppressive monopolies if they were privately owned ?

THE ECONOMIST.

You forget that they engage in mutual competition. I will show you later on that in any enterprise subject to an open regime of free competition, price must necessarily fall to the level of real costs of production or use and that the owners of a canal or road cannot receive anything in excess of the equitable remuneration of their capital and their labour. This is an economic law as positive and exact as a law of physics.

Most natural waterways, which require a certain amount of management and maintenance work, could with advantage be privately owned in the same way. You know to what inextricable difficulties the common ownership of waterways gives rise today. The dams lead to countless legal cases, and irrigation systems are obstructed everywhere. It would be different if each lake or waterway had its owners against whom those living beside the water could have recourse in case of damage, and who would have responsibility for providing artificial waterfalls and establishing irrigation canals where need arose. ^[128]

The State is still the owner of most sources of mineral water. So these are very badly run, though not lacking in administrators and inspectors. Moreover, under the pretext that artificial mineral waters serve as medicaments, their fabrication has been [p. 91] put under government surveillance. Yet more administrators and inspectors!

THE CONSERVATIVE.

Ah, government is our great running sore!^[129]

THE ECONOMIST.

There is only way to heal that particular sore, and that is by governing less.

Endnotes

^[99] In a lengthy article Michel Chevalier captures the excitement which was stimulated by the construction of railways, both concerning the new technology and the possibilities of drastic reductions in the cost of transport. Buried among the mass of technical information are a number of matters of concern to the economists: that the cost of building the network was increased by tariffs on imported iron rails; that the lowered costs of shipping goods across international borders strengthened the peaceful economic bonds between people, but also made it easier for States to move troops to the border; that railways provided much needed competition with the canal system, which some considered to be a “natural monopoly”; that attempts by the government to impose lower rates on railways was “a very serious attack on the spirit of association ... [and] the freedom of industry”; and that economic liberty had within itself the means to correct any excesses or abuses in pricing or investment. [See Michel Chevalier, “Chemins de fer”in JDE, vol. 1, pp. 337-362.]

^[100] La Sologne is a heavily forested region in central France between the Loire and Cher rivers.

^[101] The right to a legally determined, prior compensation for property confiscated by the state was enshrined in the Declaration of Rights of Man and the Citizen in June 1791 (Article 19) and in the Civil Code of 1804 (articles 544 and 545). The Law of 8 March 1810 established tribunals for the purpose of determining the amount of compensation payments. The Law of 7 July 1833 (and amended by the Law of 6 May 1841) created special juries of local landowners which would determine the level of compensation for confiscated land. [See, A. Legoyt, "Expropriation pour cause d'utilité publique,” DEP, vol. 1, pp. 751-53.]

^[102] Molinari uses the word “aristos”in the original. It is short for “aristocrats”and has a negative connotation.

^[103] The “jurys d’expropriation” (or Compensation Juries) were established by the law of 7 July 1833 to determine the amount of compensation the state would pay to land owners who had their property confiscated to build public works such as roads and railways, A “jury”of 16 property owners were called together to assess the value of the confiscated property. It is similar to the eminent domain laws in the United States. [See the article by A. Legoyt on “Expropriation pour cause d’utility publique,” DEP, vol. 1, pp. 751-53.]

^[104] Throughout this conversation Molinari uses the word “viol”which means rape. In this sentence he continues to use the language of rape to describe other kinds of violations of private property. Thus, here we have translated “ravir” (ravish) and “viol” (rape) as “rob”and “serious crime”.

^[105] Molinari uses the Latin phrase “Suum cuique”which was used by many authors in the ancient world. It is most commonly associated with the jurist Ulpian who contributed to Justinian’s codification of Roman law (c. 530). In 1.1.10 there is “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi”and “Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere”which can be translated as "Justice is the constant and perpetual wish to render to every man his due”and “The principles of the law are these: to live honorably, to harm no one, to give to each his own”respectively. See Institutes de l'empereur Justinien: traduites en français avec le texte en regard, suivies d'un choix de textes juridiques relatifs à l'histoire externe du droit romain et au droit privé antéjustinien, recueil publié par M. Blondeau (Paris: Videcoq, 1838), 2 vols. See vol. 1, p. 11.

^[106] Molinari is referring to a key aspect of Bastiat’s economic thinking here, namely the idea of “the harmony of interests”. Bastiat developed these ideas at length in his unfinished magnum opus Economic Harmonies (1850). Later in “Les Soirées” Molinari does use the word “harmony” but here he uses words such as “coincider”or “accorder”. A good summary of the topic is provided by Charles Coquelin, the editor of the DEP, in “Harmonie industrielle,” DEP, vol. 1, pp. 851-55. He notes the concurrent emergence of the term “harmony” in France and the U.S. at roughly the same time: Bastiat’s Economic Harmonies in 1850 and Henry Carey’s The Harmony of Interests in 1851. Carey accused Bastiat of plagiarising the idea but this charge was later withdrawn.

^[107] The Law of 21 April, 1810 regulated the mining industry in France. See A. Legoyt, “Mines, minières et carrières,” DEP, vol. 2, pp. 178-88.

^[108] Molinari takes sides here in a debate which had divided the economists since before the Revolution. The Physiocrat Turgot argued in the 1770s that first use and occupancy by an individual bestowed a property right to the resource which was owned by that individual. Liberal revolutionaries like Mirabeau and post-revolutionary liberals like Charles Comte believed that ownership of mineral resources resided with the Nation which could sell or license them at will. Other post-revolutionary liberals like Charles Dunoyer believed that owners of surface land also owned the mineral rights to the resources under their land. Molinari clearly sided with Turgot in arguing that the first user or occupant was the just owner of the property. [See the glossary entry on “Property Rights in Mineral Resources.”]

^[109] This topic is discussed in the 2nd Soireé.

^[110] The standard account for the Economists of the original and just acquisition of private property in land out of a state of communal tribal ownership is provided by Charles Comte, Traité de la Propriété, 2 vols. (Paris: Chamerot, 1834), vol. 1, chap. X "De la conversion du territorie national en propriétés privées,” pp. 139-61. Comte believes it was a near universal phenomenon that communally owned land eventually was transformed into private ownership as soon as an individual was able through the self denial of immediate consumption to save enough to survive long enough to engage in the more protracted process of cultivating a plot of land until the harvest. This resulted in dramatically higher output than hunting and gathering or other communal activities. Comte believes this process of privatization was a just one for two reasons: firstly, the private farmer needed much less land than previously in order to create a greater output and the land he no longer needed was left for the other members of the tribe to use; secondly, by creating a more productive resource he unintentionally increased the value of the surrounding land and thereby gave to the community much more than he had taken in privatizing his parcel of land. Thus, Comte concludes, no "usurpation” was committed in this original act of privatization of the land (pp. 150-51). Although neither Molinari nor Comte mentions John Locke by name there is an obvious parallel here to the Lockean proviso concerning the end of the state of nature - that "enough, and as good, left in common for others.” [See, John Locke, Two Treatises of Government, ed. Thomas Hollis (London: A. Millar et al., 1764). CHAP. V. (para. 27) Of PROPERTY. </title/222/16269/704358>.] A similar set of arguments in defence of the legitimacy of the first user of a piece of land to having ownership of that land can be found in Pierre-Louis Roederer's "Lectures on the Right of property" which he gave to the Lycée in December 1800. [See, Pierre-Louis Roederer, Discours sur le droit de propriété, lus aux Lycée, les 9 décembre 1800 et 18 janvier 1801, (Paris, Didot, 1839). “Premiere discours sur let droit du propriété, lu au Lycée, le 9 décembre 1800,” pp. 7-24. It is quite likely that Roederer, Comte and Molinari knew of the 18th century natural law writings of theorists like Burlamaqui. The Swiss natural law theorist Jean-Jacques Burlamaqui (1694-1748) has a similar notion of a Lockean Proviso in Élémens du droit naturel (1774) which is: ".. in taking part of this (commonly owned) land, one should not deprive others of anything; (that) there remain enough for all (il en restait assex pour tous).” [See, Part III, chap. VIII "De l'origine et de la nature de la propriété,” pp. 135 in Elémens du droit naturel, par Burlamaqui; et Devoirs de l'homme et du citoyen, tels qu'ilsw lui sont prescits par la loi naturelle; traduits du latin de Pufendorf par Barbeyrac, avec les notes du traducteur et le jugement de Leibnitz. Nouvelle édition (Paris: Janet et Cotelle, 1820).]

^[111] Mirabeau (1749-91) was a journalist and politician who made a name for himself as one of the leading orators during the French Revolution. He was a supporter of constitutional monarchy and wrote on economics and banking. [See the glossary entry on "Mirabeau".]

^[112] Mirabeau, Speech in the National Assembly, 21 March, 1791 “Sur la question de savoir si les mines pouveaient être considérées comme propriété publiques.” Honoré-Gabriel Riqueti, comte de Mirabeau, Oeuvres de Mirabeau, précédées d'une notice sur sa vie et ses ouvrages, par M. Merilhou (Paris: Lecointe et Pougin, 1834), 3 vols. Vol. 3. Discours et opinions, p. 110.

^[113] Mines could not be owned as private property but could only be licenced from the state for fixed periods upon an annual payment of royalties to the state. [See the discussion of the changing laws concerning mining in A. Legoyt, “Mines, minières et carrières,” DEP, vol. 2, pp. 178-88 - the Law of 12 July 1791, the Law of 21 April 1810, and the Law of 27 April 1838.]

^[114] Mining was administered by the Ministry of the Interior. The number of new mining licences issued between 1811 and 1848 was 760 which returned to the Treasury royalties of fr. 227,652 in 1835, fr. 533,391 in 1847, and fr. 397,202 in 1848 which were very low amounts compared to other sectors of the economy. [See, "Statistique de l'industrie minérale,” in Annuaire de l'économie politique (1850), pp. 170-71. See also the Budget for 1848 in the Appendix.]

^[115] Mining rights and land ownership issues in California would have been very much on Molinari’s mind at this time. The California gold rush had began with the discovery of gold at Sutter’s Mill in January 1848 and the hundreds of thousands of gold seekers who flocked to the gold fields were known as the “forty niners” (1849). At this time California was not yet a state in the Union (it was admitted in September 1850) and was occupied by the U.S. following the Mexican-American War 1846-1848. The treaty which ended the war and which ceded California to the U.S. was signed in February 1848. Land ownership, especially mining rights, were in a state of flux. For the time being, Mexican mining law continued to apply whereby the first to stake a claim to mining land created “ownership”of it as far as later arrivals were concerned. Molinari was fascinated by the U.S. and travelled there extensively in the 1870s writing a series of articles for the Journal des Débats which were published as book: Lettres sur les États-Unis et le Canada addressés au Journal des débats à l'occasion de l'Exposition Universelle de Philadelphie (Paris: Hachette, 1876).

^[116] State owned property ("la domaine public") was considerable in France and included property and real estate. Under "property” ("meubles") was the following: the national printing service, the contents of the National Libraries, the contents of the National Archives, the contents of the art galleries, museums, and scientific laboratories, the arms held by the armed forces and navy, the furnishings and equipment of the government administration, and the contents of all government owned factories and workshops. The complete value of this property of the state is not known as it was not officially assessed at the time. However, the armed forces did give a figure for the value of the fire arms it owned (fr. 1.12 million) and its ships (fr. 120 million). Under "real estate ("immeubles) was the following: public buildings, forges, founderies, workshops, land, forests, national roads, railways, canal tow paths, lakes. The value of the latter was estimated in January 1850 to be worth fr. 1.3 billion. The earnings from government owned property was estimated in 1850 to have been fr. 221 million, or 6.4% of total government income. [See, A. Legoyt, "Domaine public", DEP, vol. 1, pp. 573-77.]

^[117] The Economist gives a more detailed answer to this question in the 11th Soirée.

^[118] The Conservative lists the industries in which the French state either ran government owned factories or had an outright monopoly. Ambroise Clément lists under the category of "privileged” or "legal monopolies” the manufacture and sale of tobacco products, gunpowder, the delivery of mail, the issuing of money, education, and public works. He also lists numerous areas of economic activity which can only be practiced with a government issued license such as mines, legal notaries, lawyers, bailiffs, money changers, brokers, printers, book sellers, bakers, butchers, and porters. Ambroise Clément, "Monopole,” in DEP vol. 2, pp. 219-25.

^[119] Molinari caused a furore in the Political Economy Society when he published an article using this very phrase as its title on the private provision of security services in the February 1849 issue of the JDE (“The Production of Security”) which he then followed up with the 11th Soirée of his book published later in the year. This provoked a hostile reaction at a meeting of the Political Economy Society in September and a very critical review of his book Les Soirées by Coquelin in the October 1849 issue of the JDE. See Molinari, "De la production de la sécurité,”in JDE, Vol. XXII, no. 95, 15 February, 1849, pp. 277-90.

^[120] The British Parliament held an inquiry into revenue from Crown Lands in late 1847 and 1848 which issued a Report: Report, Evidence, and Appendix, on the Woods, Forests, and Land Revenues of the Crown, Reports from Committees: Eighteen Volumes. Session 18 November 1847 - 5 September 1848. Vol. XXIV. Parts I and II (1847-8).

^[121] New Forest is in Hampshire, England and was created as a royal forest by William I in 1071; Walham is north of Gloucester near the River Severn; Whittlewood Forest is in Northamptonshire; Wychwood Forest is is Oxfordshire.

^[122] The English Radical John Wade has a section in his Extraordinary Black Book (1832) on crown land and those who benefited from privileged access to them (what he called “jobbing the crown-lands”) (p. 196 ff.). The body to administer Crown Forests was created in 1810 called The Commissioners of Woods, Forests, and Land Revenues.

^[123] Dupuit in his article on “Voies de communication” DEP, vol. 2, pp. 846-54, argues that there are three alternatives when it comes to the provision of communication routes (railways, roads, canals): there is either a private monopoly, a State monopoly, or competition between private companies. He dismisses the first two categories on the grounds of justice and economic incentive problems and supports the third on the grounds that “unlimited competition” and “complete liberty” will overcome the disadvantages of the first two.

^[124] Info on British toll system????

^[125] The Département des Landes (des Gascognes) is in South West France and is the birthplace of Molinari’s friend and colleague Frédéric Bastiat.

^[126] Although Adam Smith believed roads were a public good which should be provided by the state because it was not in the interest of any particular individual or group to build and maintain them, he believed that they should not be paid for out of general revenue but by those who used the roads via a toll [ Wealth of Nations, Book V, Chap. 1, Part C, paragraphs 1 & 2]. This view was challenged by J.-B. Say in the Cours complet (1828) who thought that roads were so vital to a nation’s economy that they should be paid for out of general revenue and not tolls on users. [Cours complet (1840), vol. 2, Chap. XXIII “Dépense des voies de communication, et particulièrement des routes,” pp. 306-8]. By 1852 Molinari and the Economists had returned to Smith’s view that it was “just and rational” that users of roads be charged according to how much they made use of them. See J. Dupuit, “Routes et chemins, DEP, vol. 2, pp. 555-60.

^[127] Michel Chevalier notes that the privately owned canals in Britain are more efficiently built and run than the state owned canals in France. Concerning the latter he states “State owned canals are poorly maintained; and furthermore, for the most part, they have not even finished building them, and God knows when they will be; and the administration of them is well below mediocre.”The state owned or licensed canals in America, on the other hand, were more quickly and efficiently built than in France, but the process of getting their construction approved and funded were highly politicised and the strong political incentives which existed sometimes meant too many licences were granted. See Michel Chevalier, “Canaux de navigation,” DEP, vol. 1, pp. 264-72.

^[128] There is a fascinating discussion of the private provision of water in cities like London and Paris by Dupuit in “Eau,” DEP, vol. 1, pp. 629-37. Dupuit contrasts the free and competitive provision of water (and gas) in London with the government monopoly in Paris. Although he has some qualms about rival companies tearing up the streets to service their different sets of customers, he is impressed with the better quality of filtered London water and the more rational method of pricing. The low government fixed price of water in Paris was only “apparently free” as the costs of supplying it had to be borne by somebody and there was no incentive for the providers of water to innovate or for the consumers of water to economise on their use of it.

^[129] Molinari uses the word “plaie”or “wound/sore”several times in Les Soirées to describe the government and its actions. He goes a step further in his article “Nation” in DEP, vol. 2, pp. 259-62 where he describes governments which overstep the boundaries of their proper sphere of activity as “ulcerous”and the economist as the surgeon who must cut out the cancerous flesh from the social body. [See the glossary entry on “Ulcerous Government”.]