The Idea of Private Property not Fixed but Variable.

The preceding considerations appear sufficient to show that an entire renovation of the social fabric, such as is contemplated by Socialism, establishing the economic constitution of society upon an entirely new basis, other than that of private property and competition, however valuable as an ideal, and even as a prophecy of ultimate possibilities, is not available as a present resource, since it requires from those who are to carry on the new order of things qualities both moral and intellectual, which require to be tested in all, and to be created in most; and this cannot be done by an Act of Parliament, but must be, on the most favorable supposition, a work of considerable time. For a long period to come the principle of individual property will be in possession of the field; and even if in any country a popular movement were to place Socialists at the head of a revolutionary government, in however many ways they might violate private property, the institution itself would survive, and would either be accepted by them or brought back by their expulsion, for the plain reason that people will not lose their hold of what is at present their sole reliance for subsistence and security until a substitute for it has been got into working order. Even those, if any, who had shared among themselves what was the property of others would desire to keep what they had acquired, and to give back to property in the new hands the sacredness which they had not recognised in the old.

But though, for these reasons, individual property has presumably a long term before it, if only of provisional existence, we are not, therefore, to conclude that it must exist during that whole term unmodified, or that all the rights now regarded as appertaining to property belong to it inherently, and must endure while it endures. On the contrary, it is both the duty and the interest of those who derive the most direct benefit from the laws of property to give impartial consideration to all proposals for rendering those laws in any way less onerous to the majority. This, which would in any case be an obligation of justice, is an injunction of prudence also, in order to place themselves in the right against the attempts which are sure to be frequent to bring the Socialist forms of society prematurely into operation.

One of the mistakes oftenest committed, and which are the sources of the greatest practical errors in human affairs, is that of supposing that the same name always stands for the same aggregation of ideas. No word has been the subject of more of this kind of misunderstanding than the word property. It denotes in every state of society the largest powers of exclusive use or exclusive control over things (and sometimes, unfortunately, over persons) which the law accords, or which custom, in that state of society, recognizes; but these powers of exclusive use and control are very various, and differ greatly in different countries and in different states of society.

For instance, in early states of society, the right of property did not include the right of bequest. The power of disposing of property by will was in most countries of Europe a rather late institution; and long after it was introduced it continued to be limited in favor of what were called natural heirs. Where bequest is not permitted, individual property is only a life interest. And in fact, as has been so well and fully set forth by Sir Henry Maine in his most instructive work on Ancient Law, the primitive idea of property was that it belonged to the family, not the individual. The head of the family had the management and was the person who really exercised the proprietary rights. As in other respects, so in this, he governed the family with nearly despotic power. But he was not free so to exercise his power as to defeat the co-proprietors of the other portions; he could not so dispose of the property as to deprive them of the joint enjoyment or of the succession. By the laws and customs of some nations the property could not be alienated without the consent of the male children; in other cases the child could by law demand a division of the property and the assignment to him of his share, as in the story of the Prodigal Son. If the association kept together after the death of the head, some other member of it, not always his son, but often the eldest of the family, the strongest, or the one selected by the rest, succeeded to the management and to the managing rights, all the others retaining theirs as before. If, on the other hand the body broke up into separate families, each of these took away with it a part of the property. I say the property, not the inheritance, because the process was a mere continuance of existing rights, not a creation of new; the manager's share alone lapsed to the association.

Then, again, in regard to proprietary rights over immovables (the principal kind of property in a rude age) these rights were of very varying extent and duration. By the Jewish law property in immovables was only a temporary concession; on the Sabbatical year it returned to the common stock to be redistributed; though we may surmise that in the historical times of the Jewish state this rule may have been successfully evaded. In many countries of Asia, before European ideas intervened, nothing existed to which the expression property in land, as we understand the phrase, is strictly applicable. The ownership was broken up among several distinct parties, whose rights were determined rather by custom than by law. The government was part owner, having the right to a heavy rent. Ancient ideas and even ancient laws limited the government share to some particular fraction of the gross produce, but practically there was no fixed limit. The government might make over its share to an individual, who then became possessed of the right of collection and all the other rights of the state, but not those of any private person connected with the soil. These private rights were of various kinds. The actual cultivators or such of them as had been long settled on the land, had a right to retain possession; it was held unlawful to evict them while they paid the rent—a rent not in general fixed by agreement, but by the custom of the neighborhood. Between the actual cultivators and the state, or the substitute to whom the state had transferred its rights, there were intermediate persons with rights of various extent. There were officers of government who collected the state's share of the produce, sometimes for large districts, who, though bound to pay over to government all they collected, after deducting a percentage, were often hereditary officers. There were also, in many cases village communities, consisting of the reputed descendants of the first settlers of a village, who shared among themselves either the land or its produce according to rules established by custom, either cultivating it themselves or employing others to cultivate it for them, and whose rights in the land approached nearer to those of a landed proprietor, as understood in England, than those of any other party concerned. But the proprietary right of the village was not individual, but collective; inalienable (the rights of individual sharers could only be sold or mortgaged with the consent of the community) and governed by fixed rules. In mediæval Europe almost all land was held from the sovereign on tenure of service, either military or agricultural; and in Great Britain even now, when the services as well as all the reserved rights of the sovereign have long since fallen into disuse or been commuted for taxation, the theory of the law does not acknowledge an absolute right of property in land in any individual; the fullest landed proprietor known to the law, the freeholder, is but a "tenant" of the Crown. In Russia, even when the cultivators of the soil were serfs of the landed proprietor, his proprietary right in the land was limited by rights of theirs belonging to them as a collective body managing its own affairs, and with which he could not interfere. And in most of the countries of continental Europe when serfage was abolished or went out of use, those who had cultivated the land as serfs remained in possession of rights as well as subject to obligations. The great land reforms of Stein and his successors in Prussia consisted in abolishing both the rights and the obligations, and dividing the land bodily between the proprietor and the peasant, instead of leaving each of them with a limited right over the whole. In other cases, as in Tuscany, the metayer farmer is virtually co-proprietor with the landlord, since custom, though not law, guarantees to him a permanent possession and half the gross produce, so long as he fulfils the customary conditions of his tenure.

Again: if rights of property over the same things are of different extent in different countries, so also are they exercised over different things. In all countries at a former time, and in some countries still, the right of property extended and extends to the ownership of human beings. There has often been property in public trusts, as in judicial offices, and a vast multitude of others in France before the Revolution; there are still a few patent offices in Great Britain, though I believe they will cease by operation of law on the death of the present holders; and we are only now abolishing property in army rank. Public bodies, constituted and endowed for public purposes, still claim the same inviolable right of property in their estates which individuals have in theirs, and though a sound political morality does not acknowledge this claim, the law supports it. We thus see that the right of property is differently interpreted, and held to be of different extent, in different times and places; that the conception entertained of it is a varying conception, has been frequently revised, and may admit of still further revision. It is also to be noticed that the revisions which it has hitherto undergone in the progress of society have generally been improvements. When, therefore, it is maintained, rightly or wrongly, that some change or modification in the powers exercised over things by the persons legally recognised as their proprietors would be beneficial to the public and conducive to the general improvement, it is no good answer to this merely to say that the proposed change conflicts with the idea of property. The idea of property is not some one thing, identical throughout history and incapable of alteration, but is variable like all other creations of the human mind; at any given time it is a brief expression denoting the rights over things conferred by the law or custom of some given society at that time; but neither on this point nor on any other has the law and custom of a given time and place a claim to be stereotyped for ever. A proposed reform in laws or customs is not necessarily objectionable because its adoption would imply, not the adaptation of all human affairs to the existing idea of property, but the adaptation of existing ideas of property to the growth and improvement of human affairs. This is said without prejudice to the equitable claim of proprietors to be compensated by the state for such legal rights of a proprietary nature as they may be dispossessed of for the public advantage. That equitable claim, the grounds and the just limits of it, are a subject by itself, and as such will be discussed hereafter. Under this condition, however, society is fully entitled to abrogate or alter any particular right of property which on sufficient consideration it judges to stand in the way of the public good. And assuredly the terrible case which, as we saw in a former chapter, Socialists are able to make out against the present economic order of society, demands a full consideration of all means by which the institution may have a chance of being made to work in a manner more beneficial to that large portion of society which at present enjoys the least share of its direct benefits.

THE END.