age, then, and then only, is decentralisation compatible with civil liberty. "How," asked Mr. Gladstone, "is the time of the House of Commons to be economised?" The answer is simple: Let the House of Commons mind its own business-thoroughly and exclusively. CHAPTER IV WHAT IS PROPERTY? "PROPERTY," says Proudhon, "is theft." Very likely we must not dismiss this opinion with a sneer. Proudhon was unquestionably one of the clearest thinkers of his time. The institution of property is described by Jeremy Bentham as "the noblest triumph of humanity over itself.” Good again! But the two propositions do not quite tally. Let us take an Italian opinion: "The right of property," says Beccaria,' the great Italian jurist," is a terrible right, which perhaps is not necessary." If we inquire of the poets we get something of this kind "O property! what art thou but a weight But poets are not always meant to be taken seriously. Here is the opinion of the most serious and respectable of theologians, the worthy Dr. Paley: "Property communicates a charm to whatever is the object of it. It is the first of our abstract ideas. It cleaves to us the closest and the longest. It endears to the child its plaything, to the peasant his cottage, to the landholder his estate. It supplies the place of prospect and of scenery. Instead of coveting the beauty of distant situations, it teaches every man to find it in his own. It gives boldness and grandeur to plains and fens, tinge and colouring to clays and fallows." At any rate, property seems to be a remarkable institution. It inspires the intensest reverence and the profoundest abhorrence. Perhaps it will be said that I have cited extreme 1 Quoted from Bentham's Theory of Legislation. authorities. Then I will appeal to an authority who ranks above them all, one who knew more about the conception in its essence than all put together-John Austin. Surely from him we shall learn whether property is a divine or a diabolical creation. Here is his definition: "By property I mean every right over a thing which is indefinite in point of user." There it is. There is nothing very terrible in it, nothing very sublime. It is tame enough, but it is true. It is the meaning which every one must wish to convey, if he knows what he is talking about, and if he wishes to be clearly understood by others. But it requires explanation. A right over a thing is a power to use or enjoy the thing somehow or other. Otherwise it is not worth having or talking about. The moon may be solemnly conveyed to me by the State in consideration of my public services. I am grateful for nothing. But not every power to use or enjoy a thing is a right. The cat which has caught a sparrow has the power to eat the sparrow, but we do not speak of the cat's proprietary right. A right is a power sanctioned by the State. Rights over specific things are but species of rights in general, and proprietary rights again are but varieties of rights over things. Rights in general (by which term I mean to denote all those liberties which are recognised and sanctioned by the State) may be divided into two classes—rights which are expressed in terms of things, and rights which do not relate to things. In Russia a citizen may not quit the country without a State permit. In England we enjoy that liberty. This is a right which is not a right over a thing. In France a married man with a family cannot bequeath all his goods to any one he chooses. In England he can do so. This is a right over things. Let us dismiss all those liberties which are not rights over things, or more correctly speaking, which are not liberties expressed in terms of things, and consider this latter class alone. We shall find that rights over things may be subdivided into two great classes-rights to Use and rights to Value. I let my house to John Smith, and I mortgage it to Tom Jones. Smith has a right to the Use of the house; Jones has a right only to part of its Value. Now according to Austin's definition of property, rights to value are not proprietary rights. It is true that Blackstone and the lawyers speak of lien as a "special qualified property;" but this is only a learned way of saying that they do not know what it is; we may pass it by. It reminds one of the celebrated definition of a metaphysician as a person talking about what he does not understand to one who does not understand him. Nor are all rights to Use proprietary. But Property is a species of the genus Use. Let us see whether we cannot clearly distinguish between those Uses which are properly called Property and those which are not. Before doing this, it may be as well to note that not only ordinary people but also lawyers and jurists employ the term Property in two very different senses-a wide and a narrow sense. Hence the extraordinary confusion. In the wider and improper sense it is used to denote all rights to exclusive use; available against anybody and everybody, or as the jurists say "against the world at large." Then we have Blackstone and the Fog school trying to use the word in two senses at once, and introducing such muddy, meaningless expressions as that just quoted. No wonder we have such divergent views of the institution. The definition given by the French Code is about as useless as any definition well could be. It defines nothing. "Property is the right of enjoying and disposing of a thing in the most absolute manner, provided the owner does not make any use of it which is prohibited by law." It is obvious that we all have proprietary rights over anything whatever if this definition is correct. I have a right to use your house or your horse in any way which is not contrary to law. Whether property is a good or a bad thing clearly depends on the answer to the question, What is property? The same thing is true of liberty. As I have said, property after all is only a species of liberty. What is true of liberty in general is also true of that kind of liberty which we choose to call property. "There is no such thing as natural property," said Bentham; "it is entirely the work of law." But law, we are told, is contrary to liberty. It therefore behoves us to inquire a little more carefully concerning this more general expression, Liberty. Let us follow Bentham :— "The proposition that every law is contrary to liberty, though as clear as evidence can make it, is not generally acknowledged. On the contrary, those among the friends of liberty who are more ardent than enlightened make it a duty of conscience to combat this truth. How they pervert language! They refuse to employ the word liberty in its common acceptation; they speak a tongue peculiar to themselves. This is the definition they give of liberty: 'Liberty consists in the right of doing everything which is not injurious to another.' But is this the ordinary sense of the word? Is not the liberty to do evil liberty? If not, what is it? What word can we use in speaking of it? Do we not say that it is necessary to take away liberty from idiots and bad men because they abuse it?" Bentham is right. Nothing can be clearer than that law restricts liberty. But at the same time we ought not to lose sight of the fact that law also widens liberty. For example, if it gives me a right to do what I should be powerless to do without the sanction of the State, it is clear that my liberties are widened at the same time that the liberties of all other persons are restricted proportionately. And here I will venture to state a proposition. Law creates more liberty than it destroys. Any law which fails to do this in the long run is destined to perish. This truth is nowhere more forcibly exemplified than it is in the case of those liberties which we call proprietary rights. We hear people talk about the sacredness of property, as if it were more sacred than any other right. So far from being primordial, property arose with law, and could not exist without it. As Bentham puts it: "The savage who has killed a deer may hope to keep it for himself so long as his cave is undiscovered, so long as he watches to defend it and is stronger than his rivals, but that is all. If we suppose the least agreement among savages to respect the acquisitions of each other, we see the introduction of a principle to which no name can be given but that of Law." It is sometimes, though vulgarly, supposed that property is the right to do whatever you like with your own. True, it often does amount to that; but this is quite accidental. On the other hand, frequently enough the proprietor enjoys fewer and less rights over the thing owned than some others enjoy. For example, the owners of land held under the old tenure of emphyteusis exercised hardly any right whatever over his own property; so little, that at last the prætor came to regard the emphyteuta (i.e. the tenant) as the true proprietor, or, as we should say, the equitable owner. Not only was a grantee |