209. The capacity for rights, then, being a capacity for spontaneous action regulated by a conception of a common good, either so regulated through an interest which flows directly from that conception, or through hopes and fears which are affected by it through more complex channels of habit and association, is a capacity which cannot be generated—which on the contrary is neutralised—by any influences that interfere with the spontaneous action of social interests. Now any direct enforcement of the outward conduct, which ought to flow from social interests, by means of threatened penalties—and a law requiring such conduct necessarily implies penalties for disobedience to it—does interfere with the spontaneous action of those interests, and consequently checks the growth of the capacity which is the condition of the beneficial exercise of rights. For this reason the effectual action of the state, i.e. the community as acting through law, for the promotion of habits of true citizenship, seems necessarily to be confined to the removal of obstacles. Under this head, however, there may and should be included much that most states have hitherto neglected, and much that at first sight may have the appearance of an enforcement of moral duties, e.g. the requirement that parents have their children taught the elementary arts. To educate one's children is no doubt a moral duty, and it is not one of those duties, like that of paying debts, of which the neglect directly interferes with the rights of someone else. It might seem, therefore, to be a duty with which positive law should have nothing to do, any more than with the duty of striving after a noble life. On the other hand, the neglect of it does tend to prevent the growth of the capacity for beneficially exercising rights on the part of those whose education is neglected, and it is on this account, not as a purely moral duty on the part of a parent, but as the prevention of a hindrance to the capacity for rights on the part of children, that education should be enforced by the state. It may be objected, indeed, that in enforcing it we are departing in regard to the parents from the principle above laid down; that we are interfering with the spontaneous action of social interests, though we are doing so with a view to promoting this spontaneous action in another generation. But the answer to this objection is, that a law of compulsory education, if the preferences, ecclesiastical or otherwise, of those parents who show any practical sense of their responsibility are duly respected, is from the beginning only felt as compulsion by those in whom, so far as this social function is concerned, there is no spontaneity to be interfered with; and that in the second generation, though the law with its penal sanctions still continues, it is not felt as a law, as an enforcement of action by penalties, at all.
210. On the same principle the freedom of contract ought probably to be more restricted in certain directions than is at present the case. The freedom to do as they like on the part of one set of men may involve the ultimate disqualification of many others, or of a succeeding generation, for the exercise of rights. This applies most obviously to such kinds of contract or traffic as affect the health and housing of the people, the growth of population relatively to the means of subsistence, and the accumulation or distribution of landed property. In the hurry of removing these restraints on free dealing between man and man, which have arisen partly perhaps from some confused idea of maintaining morality, but much more from the power of class-interests, we have been apt to take too narrow a view of the range of persons—not one generation merely, but succeeding generations—whose freedom ought to be taken into account, and of the conditions necessary to their freedom ('freedom' here meaning their qualification for the exercise of rights). Hence the massing of population without regard to conditions of health; unrestrained traffic in deleterious commodities; unlimited upgrowth of the class of hired labourers in particular industries which circumstances have suddenly stimulated, without any provision against the danger of an impoverished proletariate in following generations. Meanwhile, under pretence of allowing freedom of bequest and settlement, a system has grown up which prevents the landlords of each generation from being free either in the government of their families or in the disposal of their land, and aggravates the tendency to crowd into towns, as well as the difficulties of providing healthy house-room, by keeping land in a few hands. It would be out of place here to consider in detail the remedies for these evils, or to discuss the question how far it is well to trust to the initiative of the state or of individuals in dealing with them. It is enough to point out the directions in which the state may remove obstacles to the realisation of the capacity for beneficial exercise of rights, without defeating its own object by vitiating the spontaneous character of that capacity.
N. THE RIGHT OF THE STATE IN REGARD TO PROPERTY.
211. We have now considered the ground of the right to free life, and what is the justification, if any, for the apparent disregard of that right, (a) in war, __(b)__ in the infliction of punishment. We have also dealt with the question of the general office of the state in regard to the development of that capacity in individuals which is the foundation of the right, pointing out on the one hand the necessary limitation of its office in this respect, on the other hand the directions in which it may remove obstacles to that development. We have next to consider the rationale of the rights of property.
In discussions on the 'origin of property' two questions are apt to be mixed up which, though connected, ought to be kept distinct. One is the question how men have come to appropriate; the other the question how the idea of right has come to be associated with their appropriations. As the term 'property' not only implies a permanent possession of something, or a possession which can only be given up with the good will of the possessor, but also a possession recognised as a right, an inquiry into the origin of property must involve both these questions, but it is not the less important that the distinction between them should be observed. Each of them again has both its analytical and its historical side. In regard to the first question it is important to learn all that can be learnt as to the kind of things that were first, and afterwards at successive periods, appropriated; as to the mode in which, and the sort of persons or societies by whom, they were appropriated. This is an historical inquiry. But it cannot take the place of a metaphysical or psychological analysis of the conditions on the part of the appropriating subject implied in the fact that he does such a thing as appropriate. So, too, in regard to the second question, it is important to investigate historically the forms in which the right of men in their appropriations has been recognised; the parties, whether individuals or societies, to whom the right has been allowed; and the sort of objects, capable of appropriation, to which it has been considered to extend. But neither can these inquiries help us to understand, in the absence of a metaphysical or moral analysis, either what is implied in the ascription of a right to certain appropriations, or why there should be a right to them.
212. We have then two questions, as above stated, each requiring two different methods of treatment. But neither have the questions themselves, nor the different methods of dealing with them, been duly distinguished.
It is owing to confusion between them that the right of property in things has been supposed to originate in the first occupancy of them. This supposition, in truth, merely disguises the identical proposition that in order to property there must to begin with have been some appropriation. The truism that there could be no property in anything which had not been at some time and in some manner appropriated, tells us nothing as to how or why the property in it, as a right, came to be recognised, or why that right should be recognised. But owing to the confusion between the origin of appropriation and the origin of property as a right, an identical proposition as to the beginning of appropriation seemed to be an instructive statement as to the basis of the rights of property. Of late, in a revulsion from theories founded on identical propositions, 'historical' inquiries into the 'origin of property' have come into vogue. The right method of dealing with the question has been taken to lie in an investigation of the earliest forms in which property has existed. But such investigation, however valuable in itself, leaves untouched the questions, (1) what it is in the nature of men that makes it possible for them, and moves them, to appropriate; (2) why it is that they conceive of themselves and each other as having a right in their appropriations; (3) on what ground this conception is treated as a moral authority,—as one that should be acted on.
213. (1) Appropriation is an expression of will; of the individual's effort to give reality to a conception of his own good; of his consciousness of a possible self-satisfaction as an object to be attained. It is different from mere provision to supply a future want. Such provision appears to be made by certain animals, e.g. ants. It can scarcely be made under the influence of the imagination of pain incidental to future want derived from previous experience, for the ant lays up for the winter though it has not previously lived through the winter. It may be suggested that it does so from inherited habit, but that this habit has originally arisen from an experience of pain on the part of ants in the past. Whether this is the true account of the matter we have not, I think,—perhaps from the nature of the case we cannot have—the means of deciding. We conceal our ignorance by saying that the ant acts instinctively, which is in effect a merely negative statement, that the ant is not moved to make provision for winter either by imagination of the pain which will be felt in winter if it does not, or by knowledge (conception of the fact) that such pain will be felt. In fact, we know nothing of the action of the ant from the inside, or as an expression of consciousness. If we are not entitled to deny dogmatically that it expresses consciousness at all, neither are we entitled to say that it does express consciousness, still less what consciousness it expresses. On the other hand we are able to interpret the acts of ourselves, and of those with whom we can communicate by means of signs to which we and they attach the same meaning, as expressions of consciousness of a certain kind, and thus by reflective analysis to assure ourselves that acts of appropriation in particular express a will of the kind stated; that they are not merely a passing employment of such materials as can be laid hands on to satisfy this or that want, present or future, felt or imagined, but reflect the consciousness of a subject which distinguishes itself from its wants; which presents itself to itself as still there and demanding satisfaction when this or that want, or any number of wants, have been satisfied; which thus not merely uses a thing to fill a want, and in so doing at once destroys the thing and for the time removes the want, but says to itself, 'This shall be mine to do as I like with, to satisfy my wants and express my emotions as they arise.'
214. One condition of the existence of property, then, is appropriation, and that implies the conception of himself on the part of the appropriator as a permanent subject for whose use, as instruments of satisfaction and expression, he takes and fashions certain external things, certain things external to his bodily members. These things, so taken and fashioned, cease to be external as they were before. They become a sort of extension of the man's organs, the constant apparatus through which he gives reality to his ideas and wishes. But another condition must be fulfilled in order to constitute property, even of the most simple and primitive sort. This is the recognition by others of a man's appropriations as something which they will treat as his, not theirs, and the guarantee to him of his appropriations by means of that recognition. What then is the ground of the recognition? The writers of the seventeenth and eighteenth centuries, who discussed the basis of the rights of property, took it for granted, and in so doing begged the question. Grotius makes the right of property rest on contract, but clearly until there is a recognised 'meum' and 'tuum' there can be no contract. Contract presupposes property. The property in a particular thing may be derived from a contract through which it has been obtained in exchange for another thing or for some service rendered, but that implies that it was previously the property of another, and that the person obtaining it had a property in something else, if only in the labour of his hands, which he could exchange for it. [1] Hobbes is so far more logical that he does not derive property from contract, but treats property and 'the validity of covenants' as co-ordinately dependent on the existence of a sovereign power of compulsion. [2] But his account of this, as of all other forms of right, is open to the objection (before dwelt on) that if the sovereign power is merely a strongest force it cannot be a source of rights; and that if it is other than this, if it is a representative and maintainer of rights, its existence presupposes rights, which remain to be accounted for. As previously shown, Hobbes, while professing to make all rights dependent on the sovereign power, presupposes rights in his account of the institution of this power. The validity of contracts 'begins not but with its institution,' yet its own right is derived from an irrevocable contract of all with all in which each devolves his 'persona,' the body of his rights, upon it. Without pressing his particular forms of expression unfairly against him, it is clear that he could not really succeed in thinking of rights as derived simply from supreme force; that he could not associate the idea of absolute right with the sovereign without supposing prior rights which it was made the business of the sovereign to enforce, and in particular such a recognised distinction between 'meum' and 'tuum' as is necessary to a covenant. Nor when we have dropped Hobbes' notion of government or law-making power, as having originated in a covenant of all with all, shall we succeed any better in deriving rights of property, any more than other rights, from law or a sovereign which makes law, unless we regard the law or sovereign as the organ or sustainer of a general social recognition of certain powers, as powers which should be exercised.
[1] Grotius, De Jure, etc. Book II, chap. ii. Sect. 5. 'Simul discimus quomodo res in proprietatem iverint … pacto quodam aut expresso, ut per divisionem, aut tacito, ut per occupationem: simul atque enim communio displicuit, nec instituta est divisio, censeri debet inter omnes convenisse ut, quod quisque occupasset, id proprium haberet.' But he supposes a previous process by which things had been appropriated (Sect. 4), owing to the necessity of spending labour on them in order to satisfy desire for a more refined kind of living than could be supplied by spontaneous products of the earth. 'Hinc discimus quae fuerit causa, ob quam a primaeva communione rerum primo mobilium, deinde et immobilium discessum est: nimirum quod non contenti homines vesci sponte natis, antra habitare … vitae genus exquisitius delegissent, industria opus fuit, quam singuli rebus singulis adhiberent.' … The 'communio rerum,' thus departed from when labour came to be expended on things, Grotius had previously described (Sect. 1) as a state of things in which everyone had a right to whatever he could lay hands on. 'Erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset. Hinc factum ut statim quisque hominum ad suos usus arripere posset quod vellet, et quae consumi poterant consumere, ac talis usus universalis juris erat tum vice proprietatis. Nam quod quisque sic arripuerat, id ei eripere alter nisi per injuriam non poterat.' Here then a virtual right of property, though not so called, seems to be supposed in two forms previous to the establishment of what Grotius calls the right of property by contract. There is (1) a right of property in what each can 'take to his use and consume' out of the raw material supplied by nature; (2) a further right of each man in that on which he has expended labour. Grotius does not indeed expressly call this a right, but if there is a right, as he says there is, on the part of each man to that which he is able 'ad suos arripere usus,' much more must there be a right to that which he has not only taken but fashioned by his labour. On the nature and rationale of this right Grotius throws no light, but it is clearly presupposed by that right of property which he supposes to be derived from contract, and must be recognised before any such contract could be possible.