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chapter sixteen: On Laws Which Enforce the Wider Spreading of Property - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]Edition used:Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).
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chapter sixteenOn Laws Which Enforce the Wider Spreading of PropertyThe laws can have an opposite tendency. They can purpose the widest possible spread of ownership. Such is the avowed motive of the agrarian laws, of the dividing up of lands, of the ban on [238] wills, and of that host of regulations aimed at preventing people managing to make light of these laws. This activity of government, above all that which bears on the right to make wills—for the agrarian laws are sufficiently discredited—seems at first more legitimate and in keeping with egalitarian principles than the contrary action. In fact, it is superfluous. It wants to force what would happen naturally. Property tends to split up. If the government leaves it to itself, it will no sooner be acquired than you will see it dispersed. The proof of this is the proliferating laws necessary under all aristocratic governments to keep it in the same families. The accumulation of property is always a consequence of institutions. It follows that the simplest and surest means of encouraging the widening ownership of property would be to abolish all the laws which oppose it. Since governments, however, never content themselves with negative actions, they have usually gone further. They have not only abrogated vicious institutions, but combated the effects of the habits, recollections, and prejudices which might have survived these institutions with positive regulations. What has happened is what naturally must happen when government arbitrarily restrains men’s freedom. The laws on this matter have been evaded. Further laws were needed to curb these infractions. From this followed innumerable obstacles to the transfer, disposal, and transmission of property. These restrictions having entailed further inconveniences, people accused each other of having violated them. Greed armed itself with what was intended to check it. During our Revolution a host of circumstantial safeguards were built up into eternal principles. Legislators who imagined they had the deepest outlooks and widest perspectives have always fixed their gaze on the possibility of a small refractory minority. To get at this they have borne down on all the French. Blind legislators, to make laws not for their fellow citizens but against their enemies! Insane legislators, under whose rule the law was no longer the shelter of all but an offensive arm against the few! Freedom is constantly attacked by reasoning applicable only to constraint. Thus in our time the free transmission of property has been attacked with arguments which were valid only against the restrictions put on such transmission [239] by the laws of old. The right to make wills and primogeniture have been confused, when the latter is on the contrary an encroachment on and the destruction of the right to make wills. On this question, I will not stop to refute other sophisms drawn from an obscure and abstract metaphysics. People have argued that death entails annihilation, holding it absurd to let a man dispose of goods which were no longer his and to lend a fictitious existence to his will when he no longer existed. These arguments are fundamentally unsound. They could be applied to all men’s transactions; for if their intentions must cease to have effect once their lives are ended, long-term debts, leases, and all operations which have to be completed only by some fixed, far-off date would end by law with their deaths. The question of wills, it seems to me, furnishes a striking example of the good which the absence of government intervention in a matter could sometimes do, without pain or effort, whenever this good is obtained only in an imperfect and artificial way, one hampered by two contradictory laws. Legislators in several free societies, on the one hand seeing the dispersal of property as favorable to freedom and on the other paternal power as necessary to morality, have consequently made laws to impede the accumulation of property and have tried out a thousand institutions in support of paternal power. Now, these laws and institutions have been at loggerheads and their twin purposes have failed. Properties have not undergone the dispersal the law intended because fathers, jealous of their disputed rights, have used every deception which might promote either their own individual interests or that tendency, natural to man, to elude the regulations which hurt him. This has not in the least stopped paternal power weakening. The sons, jealously guarding the equal rights the law gave them, regarded the fathers’ attempts to strip them of part of the enjoyment of these as wicked contrivances. If the legislator had abstained from all such commands in this matter, paternal power would have found a solid basis in the right to make wills. Fatherly fair play, which, whatever is said about it, is overwhelmingly the norm, would have given the dispersal of property a far more secure guarantee than is to be found in all the precautionary measures of positive law. Governments, however, [240] when they think both that it is their duty and that it serves their renown to have a useful purpose in view for all things, make partial laws at cross-purposes, which cancel each other out and create only harassment. Restrictions on the free disposition of properties after their owners’ deaths have the drawback we have called attention to in so many other laws, that of inviting fraud, of existing only to be eluded, of entailing inquisition, suspicion, and informing. They have the further drawback, however, that the vices they lead to reach right into families. It is not solely the citizens but the parents who are at war with one another. Not just social relations but nature itself is poisoned. Parents are made no less unjust but are also in bad faith. Children whose ingratitude is authorized think themselves likewise authorized to a sort of inspection of their parents’ actions. The domestic sanctuary, which ought to be a refuge of calm and of peaceful affections, becomes the shameful site of domestic struggle between a legally supported filial independence and the resentment of fathers, who punish this surveillance as they strive to elude the laws. The legitimate jurisdiction of government over the transmission of property is extremely limited. It should guarantee the latter and leave it alone, establishing some procedures for determining owners’ real wishes, without placing restrictions or impediments on those wishes. Tolerate partial injustices, which are inevitable among men, but much less frequent than you like to believe in order to give yourself pretexts for perpetual interference. If you want to remedy them, you will be throwing yourself into an endless course of action, upsetting yourself pointlessly over it; and without managing to block individual injustices, you will succeed only in becoming an unjust creature yourself. Every time that an abuse exists, the rest of the social institutions encourage it. Unable to destroy it, they make room for it and set themselves up, so to speak, around it. Formerly, the right to make wills felt the effects of hereditary privileges, but only because it was sacrificed to these. When institutions have done harm, and this goes on after the institutions are destroyed, it is better to put up with the inconvenience caused by the traces of these defective institutions, than to hasten to remedy this with further institutions which might also have unforeseen drawbacks. The same considerations which inspired the restrictions on [241] the free transmission of property have led governments to progressive taxation, compulsory borrowings, and taxes directed solely against the wealthy. These measures have been so fully rebuked by experience, however, that it is almost superfluous to demonstrate their futility and danger. They are in direct opposition to the present trends in society. They condemn wealth to lying. They put it at loggerheads with our institutions. Now, what could be more pernicious and absurd than stirring up war between governmental power and wealth, the most instantly disposable power, the one most serving of every interest, and therefore much more real and genuinely obeyed! Government is a threat, wealth a reward. You get away from government by deceiving it. To gain wealth’s blessings, you have to serve it. The latter must prevail. Furthermore, it is a mistake to imagine that the poor gain what is taken thus from the rich. He who has not will always depend, whatever we do, on him who has. If you upset the rich man, he will concentrate more on his pleasures, his speculation, his fantasies. As far as possible he will withdraw his capital from circulation, and the poor man will feel the effects of this. CONSTANT’S NOTESBOOK XIOn Taxation
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