Thomas Skidmore, The Rights of Man to Property, 1829.


Of the Rights of Property,

Perhaps, among all the subjects that have received human investigation, there is none that has occupied so much of the time, and exercised so severely, the intellectual faculties of man, as his inquiries into the origin and nature of the rights of property. And perhaps it is equally true, that no enquiry whatever, has been attended with so little success. It may seem to be the height of egotism, of vanity, of arrogance, of ignorance perhaps, and I know not what else, to make such a charge against the wisdom of past ages. But I confidently point to all that has been, and all that is, and ask if there be, or have been, any two governments of the world, that now have, or that ever have had their laws alike each other, on the subject of the rights of property? Not any two even of the States of our Union, can say as much; though among them, one would think, was the place to look for such a similarity, if it were any where to be found. No wonder then, that Voltaire, on some occasion should have said., that rights change character, as often as a traveller changes post-horses. It was, in truth, no exaggeration; for the fact is still worse than his representation makes it. In the same nation, even, those rights, at two different periods of time are [31] not the same. And, as if this were not a sufficient satire upon our understanding of the subject, I believe, that there may be cases of the litigation of the rights of property in any country now known, where, if one hundred tribunals were simultaneously to try them, each of the greatest eminence for talents in judicial investigation, and each having before them precisely the same means of arriving at the facts, but having, however, no knowledge of each others' deliberations, they would, nevertheless, give a hundred different decisions.

This "uncertainty of the law," glorious as it has been proverbially called, by way of ridicule, 1 take it, is evidence, that the subject is not understood. If it were so, these varying decisions could never happen. Rights are like truths, capable of being understood alike by all men; -- as much so, as the demonstrations of Euclid. If, what are called so, are not so understood, it is proof that they are not rights; for it is scarcely to be presumed that they could not be rendered apparent to our perception -- and that they are rather the arbitrary commands of power, than anything else.

But it is better to supply the deficiency of understanding on this subject, which seems to prevail, than to make it a matter of reproach. Let us see if it is possible to do it. It will be an achievement, of no small importance to mankind, inasmuch, as it will, in my apprehension, go far to [32] exterminate all the moral and political evils, with which they are now afflicted.

There seem to be three things which have an intimate and inseparable connection with each other.

These are property, persons and rights.

Out of these materials are built, or ought to be built, all the governments in the world. These are all the necessary and proper elements of their constitution; and these being applied as they have been, have caused, in my estimation, more evil to mankind, than any one can pretend that governments have done good; and, being applied as they may be, will fulfil the destiny of man, by reversing the results of the past.

What, then, is property? I answer; the whole material world: just as it came from the hands of the Creator.

What are persons? The human beings, whom the same Creator placed, or formed upon it, as inhabitants.

What are Rights? The title which each of the inhabitants of this Globe, has to partake of and enjoy equally with his fellows, its fruits and its productions.

Let no one pretend, that there is yet other property. Let him ascend with me to the earliest ages; to periods of time, anterior to the formation of all governments; when our race existed, but when political institutions did not. For it is to these periods, we must ascend, if we mean to [33] arrive at a true understanding of the theory of all just governments: And it is to these all my remarks, will apply, until I come to offer my sentiments as to the principles of property which ought to enter into their formation. Let no one, then tell me that the labor, which the savage of the forest, has employed, in the manufacture of his bow, is property. That, only is property, which belongs to some one. Now it cannot belong to the race, collectively, for they did not produce it. It cannot belong to the individual, who prepared the bow -- because, it cannot be separated from it; and because, if it could, it could have no physical existence whatever; and having no such existence, he would possess nothing more, than if he had never made it. Besides, the material, of which the bow is made, is the property of mankind. It is a property, too, which, previous to the existence of government, has never been alienated to any one. If it has not been alienated, it cannot belong to another. Another cannot have any right to make use of it. Before he does, so, he must obtain the consent of all. What right, then had that other, to bestow his labor upon it? What right had he to convert it into a bow, or into any thing else? Instead of acquiring a right, thereby, to the bow, he has rather committed a trespass upon the great community of which he is a member. He is rather, of right, subject to punishment, than invested with title, to that which [34] he has taken without consent, and appropriated to his own use. At least, then, it is evident, that his labor, bestowed upon the material of the bow, does not give him a title to the latter? Does the mere act of taking possession of it, give it? Most certainly not. For here, as well as elsewhere, consent is necessary. Otherwise, it would be quite as correct, for example, (all the members having put in an equal share of the capital) for a member of a banking company to appropriate to his own use, the contents or any part thereof, of the iron chest containing the gold and silver belonging to the whole. Nor is it an objection to the force of this argument, to say, that the iron-chest is already in possession of the company, by its agents or otherwise, while the domain of nature is not. It is here that I deny the truth of the declaration. The domain is in possession. The owners -- and they are equal owners too, are already present, and upon it. They have not, it is true, divided it, among themselves and given to each what he may call his own, anymore than the Banking Company mentioned, has done the same thing: but they are nevertheless in possession. The analogy therefore is full and complete.

Will it be said, then, some one may ask, that if an Indian kill a deer, it is not, therefore, his? Most certainly it is not. What, in my turn I would ask, is to become of other Indians, if there be actually fewer deer, than are needed? Must [35] the mere accidental, or even sought for, circumstance, of any Indian's meeting with, and killing a deer, make such Indian the owner of it, to the exclusion of his fellows, who have an equal claim to it by the right of nature? Shall one of the species feast upon it, and the remainder hunger? Besides as in the case of the bow, may not trespass have been committed in killing the deer also? As, in that case, the animal is the property of the whole, and if consent have not been given, it still remains their property, whatever one of their number may have thought or done to the contrary. For the owners of this deer, are only to be divested of their right and title to it, by their own act -- and not by the act of another.

Again if an Indian collect wood and make a fire; it may be asked, is it not therefore his? By no means. For by the same right that one Indian may gather fuel into a heap, another may take it, and scatter it to the four winds. The right is as good in the one case, as in the other,. The materials are as much the property of the one as of the other. They belong to neither. They belong to the whole community -- and certainly not to any part less than a majority. Besides, the ground upon which the one has built a fire, or prepared to build it, is as much at the pleasure of the occupancy of him who has not built it, as of him who has. Each has an equal, and of course a conflicting title to such ground, for such purposes [36] and in such a manner, and for such time, as to him shall seem fit. The ground, also, as we have just said of the materials, of the fire, belongs to neither. It is the property of the whole. So that if one may do, another may undo. If one may build up, another may pull down. If one may appropriate, another may dispossess. If one may do any thing without the consent of the whole, another without the same consent, may go and destroy it altogether. The fire being built, the space circumjacent to it, is of the same common right, and whoever pleases, may approach and warm himself as much as he chooses, without hindrance or obstruction from any one. And this too, on the same principles which we see prevail throughout the previous cases.

Lastly, let us suppose this Indian, to cultivate a field. He plants it. Is it therefore his, in opposition to another, who, it may be, desires it, for another use? May not this latter eject the other from his possession, with the same propriety, that this other attempts to make an exclusive use of it? Most undoubtedly. That which belongs to a thousand cannot be made the property of a single person, without their consent. Why then will not possession give title? Because that which is taken into possession, belongs to another; and not to him who takes it: and because the consent of that other, must give title of the possessor, if it be just, growing out of consent. Why will not labor [37] bestowed upon property in possesion give title: Because the property itself, is another's, and before any labor can be honestly bestowed upon it, that other, who alone owns it, must give his consent. Why will not occupancy give title? Because it is only another species of possession: and because, here, as before, the consent of him who owns, must be first had and obtained. And if it be so had and obtained, then is title given even though possession or occupancy be not had. It is consent, therefore, and nothing but the consent, of those who own, which can accord title. And yet it is very plain, that if possession, occupancy, or labor bestowed, in consequence of either, is sufficient to give title, then consent is not necessary; and then it would follow, that those who are truly the rightful owners, could be stripped of that which beyond all dispute belongs to them, without any act on their part, to divest themselves of their right, and in fact, in opposition to their will and consent. If then possession, occupancy, or labor superadded, is insufficient to convey title, then is my position established; and consent of the owners of property, is the only requisite to title to its possession by another. That the making a bow, the killing a deer, the building a fire, or the planting a field, or any similar act or acts, cannot give,title is self-evident; from this, that before any of these acts were performed, there was a proprietor in actual existence, to whom, and to [38] whom alone they belonged, and not to those, who undertake, surreptitiously to obtain the title. In all these cases, it is apparent, that industry has added value to the materials and productions of nature, and therefore if any one desire it, it may be said by way of complaisance, that there is more property in the world than there was, as it came from the hands of the Creator. This, it is not so much my purpose to deny, although it may seem to controvert the definition I have already given to the term property, as it is to assert that, whenever this Indian is permitted to retain, exclusive possession of his bow, his deer, his fire and his field, or either of them, government has actually begun; and of course the supposition has vanished, upon which I began my consideration of the rights of property. For it was to a period of time anterior to the formation of all governments, the reader will recollect, to which I confined my remarks. If government, had not then thus begun, consent could not have been given. There would have been none to give it. Without this he could not possess aught. With it, he is enabled to exclude all others from the use, or enjoyment of what otherwise they could enjoy as well as he, and with as much propriety. Nor does it alter the principle of the thing, that his possession is granted, for a limited time, be it long or short, instead of being rendered perpetual. For the time being, his right of possession, is as absolute, and [39] unconditional, as any thing can be. If he have his field for one season only, the exclusive right he has over it, is as perfect, for the time, as if he held it in perpetuity. 1 know there are those, who are disposed to consider such possession, as it were, for a year, to be nothing more than, as it is called, an usufruct, for that time. But what I ask is a fee-simple deed, but a perpetual usufruct? Certainly, when a piece of land is sold forever, nothing more is sold than the fruits, which can be drawn from the use of it for ever. And this is what is meant by the term usufruct. There seems, then, in such an idea, to be more of distinction than difference. All the difference which I am able to perceive, is, that in one case, the use of land is given for a single year; in the other, it is given without limitation of years, or, in other words for ever.

It may seem very rigid in me, to insist, that no individual of his species, previous to the first establishment of any government, has a right to appropriate to himself, exclusively, any thing; such, for example, as the articles which have been mentioned, or whatever else it may be, without the consent of those who are joint owners with him. But I apprehend it is nevertheless true. Investigations of right, are necessarily of the rigid character in question. In this consists their impartiality; and in this again is found, the guarantee of their truth. If the fact were not so, there [40] would be much reason to suspect the soundness of the conclusions, at which we might arrive. An Egyptian king was once told "there was no royal road to Geometry." Neither is there any such road to a full understanding of the rights of property. They must be deeply and patiently investigated, or they will never be understood.

But an illustration of the necessity and propriety of these truths, may be drawn from what is very familiar to us all. An estate is left to a number of heirs, in equal right, and an executor is appointed to make the distribution. Before the distribution is made, would any one of the heirs be allowed to help himself, to what he might wish, of the estate? Would not every one see the impropriety of this? Would not every one understand, that the proper course, to be pursued, was to call upon the executor and obtain his consent? The executor, having the power of acting for the benefit of all, is the only one competent to grant, if to him it shall appear proper, what may be desired. So, in the case in which this example is offered as an illustration, the whole community stand in the place of the executor, and have the power, and they alone have it, to alienate to any one, or more of their own number, temporarily or otherwise, any portion of the property in possession.

Nor is it essential to the reality of this alienation, that it should be done in a formal manner. [41] In the history of the human race, we know that it has, necessarily been, of a character very informal. It has not been possible, at all, to assemble the entire species, and thus to obtain their consent, in a direct and formal manner. Nor perhaps, on many occasions, has it even been thought of. The most that can be said, is, that when one individual, has seen another making a bow, killing a deer, kindling a fire, or planting a field, -- that he has reflected -- that there was abundant opportunity, mid the scanty population which all countries possess in their first settlement, and for ages afterwards, for him to do the same; and that he has accordingly acquiesced, in what his fellow-being had done; and has gone and acted in a similar manner. It is thus that we may trace the consent, which, in strict matter of right, I hold it is the duty of each to obtain of the whole community.

But allowing, even, that it was not possible to show, that any such consent as is supposed above, was ever given; still this fact alters nothing. Principles are unchangeable and eternal; they have ever existed and will never cease to exist; and whether men happen to see them or know them, or acknowledge them, or not; still they exist; still they form the rule by which to ascertain his rights and guide his efforts to obtain them. Still do they remain to him, ready for his [42] use, whenever he shall feel that they can be of service to his welfare and happiness.

In speaking of the consent which I require each individual to obtain of the whole community, let me not be understood, as considering such consent as being the origin of each person's right to his equal share of the whole property of the globe. By no means. This right he has in virtue of his existence, and in virtue of the existence of the property in question. They are inseparable, while one has vital life, or the other physical existence. But the consent I speak of, is necessary, not for the purpose of granting rights, for these are born with the being to whom they belong, but, to define and locate his share; to say how much, what, and where it shall be; and to secure and defend its enjoyment exclusively to himself. Without such designation, he could not be assured of possession, to the exclusion of another; since that other has as good a natural right, to that which is artificially assigned to him, as he himself can pretend to have. As well might it be, contended that the pleasure of the executor, is the source of the right which the heir has, to the share he ultimately obtains, of the estate of the testator, as that the community in question, confers any right on its citizens. The executor is only a trustee, for the benefit of the legatees; the testator, he who created the executor, furnishes the legacies. So, in the case of the great community [43] of mankind. They in their general, or collective capacity, are trustees, for the benefit of each individual of the species -- and the Creator of the Universe is the being, who has furnished the property, which is the subject-matter of the trust, and ordered it to be distributed to all equally. No act therefore, which either the heir to the estate, in the one case , or an individual of the great mass of mankind, in the other, is capable of committing, is competent to create rights for such individual; and for the plain and unanswerable reason, that, they arc already created; in the first case, by the testator; and in the last, by the Being who made us and all we behold. Nor, on the other hand, has the executor, or the great community referred to, any power to create rights, and for the same reason, that they are already created; and that there is no discretion given, to either of the agents or trustees in question, to alter or modify them in the smallest degree. If, as is often the case with legacies, the Divinity had specifically given, designated portions, of the fruits of his Works, to specified persons; then indeed, there would be no occasion for the great community in question to interfere. The work, which it is now their duty to perform, they would then find already achieved to their hands; and they would have nothing to do but to acquiesce. Besides, another reason, why neither the executor, or the community referred to, is able to confer rights, is, that [44] they were not the creators, nor of course the owners, in their own original right, of the property in question. It necessarily existed previous to, and independent of their existence, and of course, came into their possession, subject to the conditions and the commands of a power who created both.

It is apparent, then, that no act of the individual can vest in him rights, which are already invested: nor add to, nor diminish them, in the slightest degree. It is equally apparent, that no power exists in the authority of the community to modify or alter in the slightest degree, these rights. There can exist no power whatever to destroy equality of rights, but the power of violence and injustice. Having been originally equal, they remain so, and nothing but force or ignorance, can keep them out of the rightful owner's possession. If however we were to allow that the mere acts of converting a bough of the forest, into a bow, of killing a deer, of kindling a fire, or cultivating a field, could confer upon the person performing these acts, the right of exclusive possession, no matter for how short a period, it would go to controvert and overthrow all this reasoning. It would go to establish the position, that conquest and force give right; since all these acts partake more or less of this character. I trust, therefore, in an, age, and to a people, which has long since exploded and rejected what is called the [45] right of conquest, as barbarous and unjust, it is necessary to say little more in opposition to the principle -- that possession, occupancy; or value added to property thus in possession, does not give a right to the possessor, to continue his possession. It must be evident, that if the possessor have a just right to retain it, such right has its origin, in another source; and where, on the other hand, if it be not found, he ought to be prepared to give it up; and place it into the hands of those who have a better title.

I know there are those who will maintain, that all these acts enumerated, and others of a similar character, are acts of peace and industry; that they are unconnected with, and unknown to violence, and that, therefore, they bear no analogy to conquest. It is true indeed by the supposition, that in the mere act of taking possession, and fitting for, and applying to use, no other person is supposed to be present. If there were any such present, and particularly, such a number as to amount to a majority, and these did not object; it would amount to nothing less than consent. The right, then, of the possessor to make exclusive use of these objects of property, would rest on that consent, and not on the act of his taking possession. So, in an other instance, if no one were present, but, by any means, the same majority became apprized, of the intention or wish of the proposed occupant or possessor; and there was still no objection [46] manifested, then the same consent is to be inferred, and such consent, would be the charter of his authority to maintain possession; instead of the act itself of taking the property into his own keeping.

But let us suppose, that consent is in no way given, and that still possession is taken without it. It is asked, in what way does such possession, bear any analogy to conquest? To this, I answer That it is to be maintained by force, (although not acquired by it,) if the possession be disputed. If it be not disputed, then are we to infer that there is no objection; and that consent is given. If it be said, that the possessor, will not use force, to maintain his possession, in case of its being disputed; then, I say, that he abandons his claim to its exclusive possession -- and there is an end of it. Nor is there so much of dissimilarity to a case of conquest, as, at first view, there may seem to be. If an army were to invade a portion of territory, where there were no forces to oppose them, they would of course take possession without opposition. If afterwards, the possession was disputed, they must fight to maintain it, or they must abandon it without contest. If they adopt the latter alternative, they are in the situation of our Indian, who should give up his bow, to another Indian who should demand it. If on the contrary, the people of the invaded country, should, by any possibility, be supposed to have no objection to the [47] possession of a portion of their country, by an army of strangers, it would amount to nothing less than consent. If, from a principle of fear, they abstained from contending for the expulsion of the invaders, it would be a case of conquest, by the presence of an army, rather than by the result of a battle, or a campaign. As well might the squatters, as they are called, who settle on our public lands, without the consent of the nation, contend that possession gives them a just and valid title, as that an individual, or a combination of individuals, call them tribe or nation, or whatever else you please, should obtain a just and valid title, by the same act of possession, or occupancy of any portion of the great domain of nature.

One point more, it may not be without its use to discuss. It will be said that the Indian, for example, who has appropriated to himself, without the public consent, the material for a bow, may justly have done so, upon the supposition that he has left, for each and every of his fellow-beings, materials for bows, for their use, in every respect as good as his own. If he has done so, as the case supposes, then are those which he has left in the forest, equal to his own; and he can have no objection to give up his own, and take one of them in lieu thereof, on receiving from any one, the amount of labor, which he has bestowed upon it. If still he is pertinacious and prefers, [48] arbitrarily, retaining his own, to that of receiving another; then, I say, inasmuch as all men are equal; that one's right to be pertinacious is no better than another's; that if one is arbitrary and unaccommodating in his choice, so may another be; and that if any one insists upon having a particular article out of two or more, which, it may be, all acknowledge to be equal, in preference to an other, so also may another insist upon having the same. For, as already said, one's right to be pertinacious, arbitrary, and unaccommodating, is as good as another's; and if death result from their conflicting claims, the party first exhibiting the pertinacity in question, is justly chargeable with the whole of the blame that may attach to the transaction. For equality is as much to be maintained in pertinacity of choice, as elsewhere, since it is to be destroyed no where.

If there be truth in what I have advanced, with respect to rights supposed to be acquired, by possession, occupancy, or the addition of the labors of industry, to the subjects of possession, it follows, that no nation, whatever, holds any just title to the soil on which they are located, on any supposed validity in what may be called the right of possession. It is competent to the Chinese, to say to the people of Hindostan -- "we have as good a right to what you call your soil, as you have yourselves," and they in return, may say, " the soil of China, belongs as much to us as to [49] you." The French may say to the English, "that English territory is the property of France as much as it is of England," and the people of England may claim a similar right in Fiance. Europe may say to America "the dominions you occupy are no more the property of yourselves, than they are ours," and America in her turn, could reciprocate a similar declaration.

If, however, by any just process whatever, it can be made to appear, that nations, are, as they are, by the consent of a majority of nations, or at any rate by a majority of the people of all nations, then the case is made out, which places the title of all nations to the particular soil they occupy, in the consent of every other; or at least, of a majority of them. Nations, it should be understood, are the people of whom they are composed, and not the soil, dominion or property which they occupy. They have, it is true, a right, a natural right, to an equal and proportionate share of the earth; but, where it shall be, and how much it is equivalent to, it is for the majority of all the inhabitants of the globe to determine. If, to-day, a general convention of the whole of them, could be had, it would be competent for such convention to order such disposition of things, as to them should seem proper. At least, I think, this point will be conceded by every one, if, for a moment we admit, that hitherto, there has been no government at all; no appropriation to individuals, or classes of [50] individuals, of specific portions of soil or territory. They might apportion the whole as it now is: and in such an event, all nations would hold their territories, by actual and direct common consent.

This common consent is, however, to be inferred with almost as much certainty as if it had been formally given by a General Convention. In one way, by recognizing it, in an official and formal manner, well known among nations; in another, but more informal manner; by suffering new nations to rise into existence, greatness and power, without interfering to prevent it.

The present allotment of the surface of the globe, among its inhabitants, is probably such, that it is capable, if circumstances admitted, of receiving much improvement. There is no doubt that many countries are overpeopled, particularly for the habits, knowledge and other circumstances that now prevail among them; and they who should leave them and go to others, which need population, would not only make their own condition happier, but confer additional happiness on the inhabitants of those countries to which they should emigrate. It is not within the scope of this work, however, to engage in any speculation on this subject. It is sufficient for me, that all nations, recognise the right of all other nations to make such disposition of their acknowledged territories, as they shall think proper, and to admit or exclude, as members of its political institution, or [51] residents, within its boundaries, those born in other countries, if to them, it shall seem good. This right, however, so far as prohibition is concerned, is very rarely exercised; policy seeming to forbid the exclusion of a good and useful citizen. If we are not to question the natural right of every human being to a portion of the property of this globe, equal to that of any other being: further; if we are not to question his artificial right, or right in society, as I shall call it, equivalent thereto; it would seem that we ought not to question his right, since it seems to belong to personal liberty, of which no one, ought to be deprived, of choosing freely the country, in which he will receive it. But as this cannot be done, on the system which I am to propose in the course of this work, until all nations shall have adopted it, the members of that state or nation, who shall first adopt it, if any such there shall be, will be compelled to be abridged of this portion of their natural rights, until such an event takes place; but they will have this reflection to console them: that it is not the act of their own government which abridges it, but that of foreign states or nations, who, it will be seen, are not yet prepared to acknowledge, what I trust, are the indisputable rights of man in society. This observation, I am sensible, may not be fully understood, by the reader, in the present stage of this work; but if he will have the goodness to keep me company with his patience, and attention, until I can have the [52] opportunity to make myself understood, I think, he will feel the full force of my remark, and be disposed to agree with me in opinion.

It will occur to the discerning reader, that there is apparently, some incompatibility in conceding, in the first place, to the great community of the human family, the power to assign to an individual for example a certain specific portion of the property of the globe on which he dwells; and in the next place, to claim for him, the right of having assigned to him his equal portion on any part of its surface, which he shall choose to name. But, if it be borne in mind, that I am discussing the subject, as it has reference to a period of time, anterior to the formation of all governments, and, of course, to a period when money is unknown, I apprehend the incompatibility, will vanish. It will be seen that a division in kind, must, of necessity, be made, in the first instance, equally or as near it as the great community have it in their power to do so, among all the individuals which compose it. If, immediately subsequent to such division, for purposes which shall appear good, a classification of these individuals into what we now call nations, should take place, and such classification should happen to be what now exists, we should have the world before us, as it now is; with the exceptions, that it would be equally divided among all its inhabitants, and that there is no money. Now, in such a state of things, the only way, in which I, for example, [53] being a citizen of America, could transfer my share into England, for instance, would be, to offer an exchange, with some subject of England, of my property for his. But if we suppose, that all nations have absolute and exclusive jurisdiction over their own territories, they could forbid this, by prohibiting me from coming among them. The good policy, however, as well as the justices of such a power, may well be questioned. So, also, may the power to prohibit any human being from receiving his natural share of the property of the world, in any country which he may choose to name; whenever, by the invention of money, and judicious modifications of political institutions, the thing can be rendered practicable.

The injustice of thus preventing an individual from receiving his proportion of the property of the world, in any nation, that to him shall seem good, may be made manifest, in an obvious and natural manner, by supposing, that the share, one with another, which the people of China, for example, receive at the hands of their government, is so much superior to the shares, received, one with another, by the people of Hindostan from theirs, that the former are not willing to exchange on equal terms with the latter. Wherever such an unwillingness should be found to exist, it would be evident, that the party refusing had in their possession, as a nation, and of course as individuals, more than their equal share of the property [54] of the globe; and that the right, as it is called, of exclusive jurisdiction, afforded the means of securing to them, this undue share. In a work, therefore, the object of which is to contend for the equal rights, of all men, as well to property, as to liberty and life (for what are life and liberty good for, without property?) it is not possible to overlook this important point, without manifest inattention and injustice to the subject.

It would be an interesting subject of research, to ascertain among all nations, the causes which have determined them, each to its own particular system of the rights of property. It would probably be found in all cases, that each system at any given period, is indebted for its principal features, to a thousand circumstances, each, almost wholly separate from any and every consideration of the original and equal rights of man. Whenever conquests have been made, or revolutions have happened, and new governments have succeeded, they have been of a character, such as circumstances, seemed to compel their trainers to adopt. In the case of the American Revolution; the governments succeeding it, more or less partook, of the political evils of the system, which preceded them. This will be rendered more apparent, by observing, that if it had been possible, that the Revolution could have occurred, before slavery had been introduced on the American soil, or introduced only to a trifling extent; all our governments, [55] both State and National, would have directed their efforts to destroy it immediately, and to prevent its further introduction among us. So again it may be remarked, that vast estates among us now, belonging to single individuals, derive their titles from grants made by our proprietary governors, to whom, if the governments of Europe, had not given territories, of which, in most instances, the donors themselves did not know the bounds, neither such individuals, nor any others, would have possessed them; inasmuch as the people of this country in forming a government for themselves, would never have sanctioned it.

Indeed, the right of property, as the term is usually understood, is vastly more vague and fluctuating, than most of us are inclined to imagine. One would think, that if there be any one quality by which property can be known, it is this; that it cannot be taken away without the owner's consent. For, if it can, it is not easy to understand how it can be property. Now, there has been a period of time, in the history of this State, when none but those who possessed a certain amount, as well as kind of property, could vote for our State Senate. This body, among other things, had the power to give a negative to all laws from the other House. If a law came from thence, for the purpose of taxation, and the Senators disliked it, they could say "no" to it, and thus hold fast their purse-strings. Afterwards our political structure, was so far [56] altered, as to allow every one to vote for Senators, whether they had property or not. The consequence of this alteration, was, to take the negative which the rich formerly possessed, out of their hands, and of course their property, without their consent, along with it. And yet, under all these varying circumstances, the community, generally, make no complaint of the violation of the rights of property, although on the face of it, it is as plain as the sun at noon day, that, to-day, there is one rule for determining these rights, and tomorrow there is another.

In referring to this change, in our Senatorial System, it is not my intention to complain of it. On the contrary, there is no doubt it was perfectly correct, to have made such change; inasmuch as it was necessary to preserve the personal rights of the million, who had no property; even though it should infringe upon the rights of property in the hands of the few, and the rich. Yet it cannot fail to strike every observer, of the least reflection, that, if those who possessed property, had an unquestionable right to it, no man or number of men, ought to have power to take it away. There is, then, something palpably wrong in a government, which is thus obliged to destroy rights of one kind which it recognizes, in order to preserve others. If we make the supposition, that all the citizens are equal in point of property, or nearly so, then the conflict which is now so [57] conspicuous, between different kinds of rights, ceases, and is seen no more. But to make this property equal, presupposes that the present holders have not a sound and valid title to it; and government, therefore, if it acted upon the supposition that such title was not valid, would contradict its present opinion.

It would seem, then that in every government, the laws of property, have no reference, or very little, to original principles. If they had, they would be much more similar to each other, than they are now; and much more nearly uniform, in the same country at all times.

But I have not mentioned all the causes that conspire, when, revolutions happen, and when there is an opportunity, nay, a necessity to resort to first principles, to prevent nations from doing so. Not only, when revolutions are over, and there is a necessity to fill up the chasms in government, which they have occasioned, are the evils of a previous generation, pressing upon the new, but those who frame their laws, and. who, over all others, are to be presumed to know best how to reorganize the political fabric; in fine, the leaders of nations, are themselves, uninformed, of the rights of the people. We live near to a great epoch, in the history of our own country -- the Revolution that separated us from England -- we are acquainted with the distinguished men, who performed a prominent part, as well in the separation [58] of the two countries, as in erecting the new governments that succeeded. We are able to know their minds, and to judge for ourselves, how far they were adequate to institute government, on principles of original right; for it was on such principles as they understood them, that they supported the Revolution and erected the political edifices that in consequence became necessary.

Of all these, no man, more than Mr. Jefferson, deserves to be considered, as possessing in his own mind, not only "the standard of the man," but the standard of the age. If there was any one capable of ascending to first principles, it was he; and if it was not to be expected of him, how was it to be expected of any one else? Yet Mr. Jefferson speaks of the rights of man, in terms which when they come to be investigated closely, appear to be very defective and equivocal. I do not mean, that he thought or meant them so; for it is evident that the contrary was the fact. Let us quote him, however; let us weigh his expressions; let us arrive at his intentions in the most legitimate manner: and then see, if I am borne out, in my declaration. If I am, I shall be sustained. If I am not, I shall fail, and deserve to do so. He says: --

" We hold these truths to be self-evident; that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and [59] the pursuit of happiness."
These are his words in the declaration of American Independence.

Whoever looks over the face of the world, and surveys the population of all countries; our own, as well as any and every other; will see it divided into rich and poor; into the hundred who have every thing, and the million who have nothing. If then, Mr. Jefferson, had made use of the word property, instead of "the pursuit of happiness," I should have agreed with him. Then his language would have been clear and intelligible, and strictly conformable to natural right. For I hold, that man's natural right to life or liberty, is not more sacred or unalienable, than his right to property. But if property is to descend only to particular individuals from the previous generation, and if the many are born, having neither parents nor any one else, to give them property, equal in amount to that which the sons of the rich, receive, from their fathers and other testators, how is it established that they are created equal? In the pursuit of happiness, is property of no consequence? Can any one he as happy without property of any kind, as with it? Is even liberty and life to be preserved without it? Do we not every day, see multitudes, in order to acquire property, in the very pursuit of that happiness which Mr. Jefferson classes among the unalienable rights of man, obliged to sacrifice both liberty and health and often ultimately life, into the bargain? If then property be so essential [60] and indispensable in the pursuit of happiness, as it appears to be, how can it be said, that I am created with an equal right to this happiness -- with another, when I must purchase property of him, with labor and suffering -- and when he is under no necessity to purchase the like of me at the same costly price? If we are created equal -- how has he the right to monopolize all, or even an undue share of the property of the preceding generation? If, then, even the rights of liberty and life, are so insecure and precarious, without property -- how very essential to their preservation is it, that "the pursuit of happiness" -- should be so construed, as to afford title to that, without which, the rights of life and liberty are but an empty name?

Let no one attempt to evade the question, by saying, that if the poor have not parents with property which they can give to their children, it is not the fault of this or of any government. It is possible, under some circumstances, that this might be true, and yet be altogether foreign to the question. But who, I ask, is it, but government that authorizes and enforces the execution of wills? Who is it, that allows a man just as he is about to return into dust, to say what disposition shall be made of that which he now calls his; who shall have it, after, he ceases to be; and who shall not? Who is it, that authorizes a man to consider himself the owner of property longer than he lives, even to the remotest generation; and clothes him with [61] power, (if he chooses,) to order that even his own children, and childrens' children forever, shall have one from him; nor from any one else, unless by servitude it be purchased, from others, who may happen to possess it? Who is it, but government, that has placed the rights of children to property in the keeping of their fathers -- and so fixed it, that if these fathers shall refuse to give to their children, what ought to belong to them, as it did to their progenitors, they should have no means of obtaining it? Who was it, that ordered that the father should be every thing and the children nothing -- if it was not government? It is government, in principle, and often in practice, which has done all this. It is government, and government alone, which has determined, that where the former (deceased) owner of property has given no intimation of his wishes -- that then it shall go; in some countries, all to his eldest son; in others, to the sons alone, and none to the daughters -- and in others, again, to all the children equally. It is government, therefore, which has the power of destroying wills altogether, and of making such disposition as it shall judge best, of the effects of deceased persons. If, indeed, it were true, that government had the power, or rather ability, only to make life and liberty equal, and could not make property equal; it would go the full length of proving that government, was an unauthorized institution, alienating the "unalienable rights," with which the Creator has endowed all men, a very [62] great majority of whom, have no property of any description; never have had any: and while the present order of things, exists, never will have any.

The Author of the Declaration of Independence, and those who supported it, "with their lives, their fortunes and their sacred honor," never seemed to have perceived, that, if their system of rights, in its practical effect, went to give to one human being living under it, the privilege of taking so much of the property of the preceding generation (whether it came from a parent is nothing to the question,) as would enable him to live in idleness, on the productions of the labor of others; so should it give the same privilege to all. Otherwise there is no equality in the business; and the declaration, that the Creator had created such an equality, but the legislation of man had destroyed it, becomes at once the theory of our government on the one hand, and its practice on the other.

Besides, if the Author of the Declaration in question and its supporters, had intended to say that mankind had an equal and unalienable right to life, liberty, and property; they would have said it, at once, without using the vague expression, "the pursuit of happiness." How they expected this "pursuit," without property of any description, to be of any avail, or at any rate, of avail equal to that which a fortunate possessor of an estate could enjoy, it is not easy to conceive.

There may be those, who will contend that [63] "sufficient for the day, is the evil thereof;" and that what Mr. Jefferson and his coadjutors have achieved for their country and mankind, in being mainly instrumental in establishing the first example of representative government in the world, is honor and glory enough. This is true; but it is also true, that had the sages of the Revolution seen that an equal right to property, as well as to life and liberty, was also among the unalienable lights of man, and declared accordingly, it would not have made their glory the less; and, if they had not succeeded in reducing these theoretical truths to practice, sagacious men enough among the ardent friends of freedom, which this as well as every other country affords, could not have failed to supply the deficiency.

But other associates, in limited views of the actual rights of man, had Mr. Jefferson, besides the members of the Congress of 1776, which adopted his immortal Declaration. Among these, was Thomas Paine. Perhaps few men that have existed, understood themselves, and the subjects they discussed, better than he did. Yet original as were his thoughts, he nevertheless, wandered into some misconceptions, and left his subject partially unexplored by his investigations. That he has done so, considering how much rubbish he has removed, is perhaps not a matter of wonder. To have done more; to have examined the subject of government, in such a manner, as to have left nothing to be desired, would have been too much, [64] perhaps, to ask at the hands of humanity. But, in justice to the reader, in justice to myself, let Mr. Paine speak for himself.

" When a people agree to form themselves into a Republic, (for the word Republic means the public good, or the good of the whole, in contradistinction to the despotic form, which makes the good of the Sovereign, or of one man, the only object of the government,) when I say, they agree to do this, it is to be understood, that they mutually resolve and pledge themselves to each other, rich and poor alike, to support and maintain this rule of equal justice among them, They, therefore, renounce not only the despotic form, but the despotic principle; as well of governing as of being governed, by mere Will and Power, and substitute, in its place, a government of justice.

By this mutual compact, the citizens of a republic, put it out of their power, that is, they renounce, as detestable, the power of exercising, at any future time, any species of despotism over each other, or doing a thing, not right in itself, because a majority of them may have strength of numbers, sufficient to accomplish it.

In this pledge and compact, lies the foundation of the republic: and the security to the rich, and the consolation to the poor, is, that, what each man has is his own; that no despotic sovereign can take it from him, and that the common cementing principle, which holds all the parts of [65] republic together, secures him likewise from the despotism of numbers: For despotism may be more effectually acted by many over a few, than by one man over all." -- Dissertations on Government, written in 1786. See Paine's Works in two vols: Philadelphia, 1797. Vol. 1. pp. 327 and '8.

The reader will observe, in the foregoing extract, that Mr. Paine contemplates, the first formation, at any rate the first just formation of government; he goes back, as he imagines, to the beginning; and as he there finds the situation of things, so he takes care, in the system of government which he marks out, to preserve them. He discovers that there are rich and poor; I have italicised the words that the reader may remark them more particularly; and he provides that "what each man has, is his own." It is obvious, therefore, when he wrote the foregoing, that he had forgotten what, he had written, on the same subject, so early as the 14th February, 1776. At that period he published his "Common Sense," the first page of which has the following passage : --

"In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons, settled in some sequestered part of the earth, unconnected with the rest; they will represent the first peopling of any country, or of the world."

Yet ten years afterwards, Mr. Paine talks of the existence of rich and poor, at a period, when they are about, for the first time, as he supposes, to [66] organize for themselves, a common and equal government. Now, let me make use of Mr. Paine's supposition; let me take his "small number of persons;" let me conduct them to "some sequestered part of the earth, unconnected with the rest;" suppose it be an island in the Pacific Ocean; let me place them upon it; and desire them to institute for themselves, a just and equal government; where would be his rich and poor? Would they create them? Would they do as Mr. Locke, the celebrated author of a treatise on the Human Understanding, did when he drew the plan of a government for the State of South Carolina, in the first settlement of that State, give to one class among them, twelve thousand acres of land; to another class, twenty-four thousand; and to another, forty-eight thousand; -- while the great mass of the population should receive nothing?

Would they not consider the island in question, as property, and not only as property, but common property, to which each and every of them, had an equal right? In the compact, of which Mr. Paine speaks, as entering into the formation of every legitimate government, and which the islanders are now, by supposition, about to create with each other, would property have no consideration? Would it form no part of their discussions? Would it not in fact form the chief material of it? Would it not be a source of more deliberation, as involving deeper interests, than any and all other subjects, which could come before this little community? Would it not be ridiculous in them to [67] declare the rights of man, as regards life and liberty, to be unalienable, and as to property, say not a word about it? Would they not know, if they knew any thing, that never yet, for any considerable time, was life and liberty held and enjoyed by any people, when they had no property with which to protect and defend them? Would they not, in the first instance, at least, if division were made of their common property, make it equal, or as nearly so, as might be in their power? If division were not made, but it was agreed to be held in common, would not care be taken, as much as in them lay, to afford to each his equal share, of the results of the common occupation?

Answers to all these questions, present themselves spontaneously. Throughout the wide extent of the Globe not a single individual can be found, who would not give them in the affirmative. How is it then, that a writer so sagacious as Paine, and so disinterested in all that he ever wrote, should have committed such a blunder, as that of attempting to erect an equal government, upon a foundation where inequality had already found an existence; and that without attempting to extirpate it; on the contrary, taking measures to perpetuate it, by confirming the altogether untenable position, that what a man has is his own? Surely the absurdity is as great, in a man, who contends to preserve inequality already existing, as he who proposes to create it for the first time. And in. [68] this respect, Paine and Locke, equally deserve to be held up to mankind, as singular instances of errors, which the greatest of men may be led to adopt.

Those who know any thing of Mr. Paine, know that he did not want intrepidity and boldness of character, sufficient to have taken higher and more tenable ground than he did had he discovered it to be practicable. He was no man for half-way opinions in theory, or half-way measures in practice; because he had good sense enough to perceive that an object is more easily and economically accomplished, when all its features are clearly seen and understood, than when they are partially visible, and perhaps confounded with something which is altogether foreign to the question.

It may not be altogether unprofitable, to examine, where the source of his error lay. On looking over his political writings, it will not be found difficult to discover it. In the first part of his "Rights of Man," written in 1791, pp. 64and 65, of the 2nd volume of the Works before referred to, he has the following passage; to wit : --

" It has been thought a considerable advance towards establishing the principles of freedom, to say, that government is a compact, between those who govern, and those who are governed: But, this cannot be true, because it is putting the effect before the cause; for, as man must have existed before government existed, [69] there was necessarily a time, when government did not exist, and consequently, there could originally exist no governors to form such a compact with. The fact therefore, must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government. And this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist."

For myself, I find no difficulty, in both agreeing and disagreeing with Mr. Paine, in the positions, or some of them, at least, here laid down. It must certainly be true, that "man must have "existed before government existed;" and it is equally true, that where government exists, governors must exist also. And yet I am ready to say, what he declares cannot be true, that government is, or rather may be, a compact between those who govern and those who are governed. Thus, when "each in his own personal and sovereign right," to use Mr. Paine's own words, "enters into a compact with each other," for purposes common to the whole, a government is formed, consisting of the compact, and nothing but the compact. As to the manner of its exercise, that is quite another affair. Thus, in one case, each and every individual party to the compact, may from time to time, meet in full assembly, to deliberate over their affairs, and to make such disposition thereof, as they shall think proper. [70] In such a case, a government would not only exist, but be in full operation. If I am asked, who are the Governors: I answer, the whole Community, in their aggregate or collective capacity. If I am asked, who are the Governed, I answer; the individuals who compose this community in their separate or single capacity. The question, of the existence, or the non-existence of a government, I apprehend, is not to be determined by deciding, whether the public concerns of a nation, are managed, by all the individuals who constitute it, in their own proper persons, without agency of any sort, or otherwise. And, herein, seems to have been Mr. Paine's great mistake. He seems to have considered all people as being destitute of any government whatever, who had not agents or proxies to act for them. He seems to have overlooked the only object of compact, which is to create a public will, and a public will being created, and being brought into practical existence, no matter how, whether by authorized agency, or otherwise, government has commenced, and operates on the governed, and, of right also; on all subjects, which, in their nature are of common possession.

Mr. Paine observes that "man must have existed before governments existed." May we ask how long? Perhaps for half an hour. Thus, in this first period of human existence, two men may have arrived at a spring of cool water, thirsting, and desiring to quench their thirst. They enter into [71] treaty as to which of the two shall drink first. So soon as it is consummated, a government is formed, even though it be to expire the next moment. If there happen to be three instead of two, and two of these determine who of the three shall first partake: here also a treaty, a government is formed, deciding, by majority, as perfect in itself, as far as its object extends, as any government that can be conceived. And it is evident enough that it should be so; for, as the water itself is of common right, and incapable of being exclusively appropriated to either, so also is the chance or opportunity of first participation; convention or compact must settle this latter question; and when it does, it performs precisely the same function, as if agency, for a hundred thousand beings having the same rights as those which belong to the two or three individuals, I have mentioned, had selected the same person, and given him the privilege of priority.

.It may seem that I am more elaborate in my efforts to explode what I conceive to be error, on this point, than is necessary. But as Mr. Paine charged Mr. Burke with not going back far enough into antiquity, in search of principles, it became him, as he did, to exert himself to substantiate the charge. If I now make a similar charge against Mr. Paine, it becomes me to do so too. Besides, with us, as with them, the errors I combat are the errors of the age, and of course are supported by the best talents which the age affords. It is no ordinary refutation which these errors demand; [72] since, if principles of government are derived from periods of time and conditions of things not so remote as we have, or may have, access to we are in danger of incorporating false principles into the political edifice, and of endangering its utility and duration.

Mr. Paine was not alone in the error of these views. Mr. Jefferson, to whom I return with respect and affection, for the services he has rendered to mankind, besides the omission, or perhaps equivocal admission, of some of the rights of man, in his Declaration of Independence, has shown, in a much later work, his deficiency of accurate knowledge of the true principles of government.

In 1812 he prepared, for the use of counsel, in a suit, in the Circuit Court of the United States, for the District of Virginia, in which Edward Livingston, of the (then) territory of Orleans, was plaintiff, and himself defendant, a work published by Ezra Sergeant, of New York, entitled "The Proceedings of the United States, in maintaining the Public Right to the Beach of the Mississippi, adjacent to New Orleans, against the Intrusion of Edward Livingston." In page 30, of this work, I find the following passage: --

" That the lands within the limits assumed by a nation, belong to the nation, as a body, has probably been the law of every people on earth, at some period of their history. A right of property, in moveable things, is admitted before the establishment of government. A separate property, in [73] lands, not till after that establishment. The right to moveables is acknowledged by all the hordes of Indians surrounding us. Yet, by no one of them has a separate property, in lands, been yielded to individuals. He who plants a field, keeps possession till he has gathered the produce; after which one has as good a right as another to occupy it. Government must be established, and laws provided, before lands can be separately appropriated and the owner protected in his possession. Till then the property is in the body of the nation, and they, or their chief, as trustee, must grant them to individuals, and determine the conditions of the grant."

Mr. Jefferson's criterion, it appears from the above, for ascertaining when governments begin, is the time when the nation makes private property of lands. Mr. Paine's, when the functions of government are exercised by agents, or governors appointed by the people to act for them. Neither of these criteria give me any satisfaction. In relation to Mr. Jefferson's opinion, I do not understand why a government should be considered to exist, when lands are permitted to be made private property of; and not to exist, when every thing that is moveable is in the same situation. Besides, inasmuch as I am told, in so many words too, "A right of property, in moveable things, is admitted before the establishment of government;" may I not ask, who it is that admits? Is it not the government? Is it not the common consent or public [74] authority? Who else has the power? Not a fragment of the nation less than a majority. And if it be a majority, then is it the nation to all intents and purposes. It will hardly be contended, I presume, that there is any other body in existence which has any concern in this affair.

But Mr. Jefferson tells us, that "government must be established, and laws provided, before lands can be separately appropriated, and the owner protected in his possession." Why so? He has told us;, personal property is secure without the assistance of what he calls government. Why may not lands be so too? And the use even of these, for a single season, according to his own showing, is entirely secure. I shall be told, perhaps, that the possession of personal property would be vindicated by the valor of the holder. Would not the same thing happen as to land? No, some one will be prepared to answer, if it be given in perpetuity; numbers would expel the proprietor, by superior force, and government must therefore exist to interfere and protect the proprietor. Why is not this same government necessary, to protect the personal property of the holder? His tenure of it also is perpetual; and numbers can be brought to bear on him as well as on the holder of land. So also may superior numbers drive off him who cultivates a field even for a single season. But in both these latter cases, we find that force, to obtain which Mr. Jefferson conceives that there should exist what he calls government, is altogether [75] unnecessary among our Indians, and other nations in a similar situation. Why is this? How is it to be explained?

Simply thus. -- The personal property is so equal, and the benefits they derive from the use of the soil so equal too, that there exists no motive to combination of numbers for the purpose of dispossession. Force, therefore, can never be needed. And when government shall be so constructed as to make property real and personal, in the fullest acceptation of the word, as nearly equal, as we see it among the Indians; and still be able to make lands private property much in the same way that they and moveable things are now; then shall we see governments exerting their functions, simply by indicating their pleasure, and not by exerting force. They will have only to say what they wish, and it will be done. If hitherto we have never seen governments acting in this way; if all institutions of this kind have been obliged to resort, more or less, to arbitrary force, it is because they have been made on principles which did not conform to the "unalienable rights of man, to life, liberty, and property."

If, to what I have said, it were necessary to add any thing more in favour of my own views, as to the time when governments are to be considered as being in existence, I might appeal to the very first paragraph above quoted from Mr. Jefferson, where he says, "That the lands within the limits assumed by a nation, belong to the nation as a body [76] has probably been the law of every people on earth, at some period of their history." The very act of a number of individuals, sufficient to constitute what may be called a nation, after voluntarily consenting to associate themselves in one body, I say, the very act of accepting the lands within such limits, (or what is the same thing, assuming them with the consent, express or implied, of other nations) is, (not sovereignty) but an act of sovereignty, which originates from their collective character, and which acceptance it is perfectly competent for them to signify, either, as said before, in their own proper persons, or by an agent or agents selected by them for such purpose.

In all that I have urged on this subject, I have not had it in view to play the critic, as to the propriety of the use of this or that term, in preference to another. All that I have desired, is, to come at the truth; and, if I can establish it, to be allowed to say, that governments have existed as long as man has existed, in some form or other; and to some extent or other; sometimes scarcely discernible, and at others occupying such a portion of our mental vision, as almost to put it out of our power to recognize the two extremes of their existence. I trust that I have succeeded; that it is apparent that nations are governments, and governments, nations; that they are in fact convertible terms. If it has happened that writers of great celebrity, have supposed, that there are nations, which have no governments; no legislation, [77] it is because there was so wide a difference between them, and those which had been most the subject of their contemplation, in their forms, extent, purposes and powers, that they were ready to conclude, that the one was every thing and the other nothing. But we should remember, that legislation, the function of government, is capable of being exercised in more ways than one; and that it is as much entitled to be considered as indicating the existence of government when it deliberates on the disposition of a grain of sand, as when it exerts its labors over the destiny of a hundred millions of people.