The Elements of Moral Science (1835, 1856 ed.)

Francis Wayland

BOOK 2, DIVISION 1, CLASS 1, CHAPTER 2, SECTION 1

The Right of Property

1. DEFINITION of the right of property.

The abstract right of property is the right to use something in such manner as I choose.

But, inasmuch as this right of use is common to all men, and as one may choose to use his property in. such a way as to deprive his neighbor of this or of some other right, the right to use as I choose is limited by the restriction, that I do not interfere with the rights of my neighbor. The right of property, therefore, when thus restricted, is the right to/ use something as I choose, provided I do not so use it as to interfere with the rights of my neighbor.

Thus, we see that, from the very nature of the case, the right of property is exclusive; that is to say, if I have a right to any thing, this right excludes every one else from any right over that thing; and it imposes upon every one else the obligation to leave me unmolested in the use of it, within those limits to which my right extends.

II. On what the right of property is founded.

The right of property is founded on the will of God, as made known to us by natural conscience, by general consequences, and by revelation.

Every thing which we behold is essentially the property of the Creator; and he has a right to confer the use of it upon whomsoever, and under what restrictions soever, he pleases. We may know in what relations he wills us to stand towards the things around us by the principles which he has implanted within us, and by the result produced in individuals and communities by the different courses of conduct of which men are capable.

Now God signifies to us his will on this subject, First. By the decisions of natural conscience. This is known from several circumstances.

1. All men, as soon as they begin to think, even in early youth and infancy, perceive this relation. They immediately appropriate certain things to themselves; they feel injured, if their control over those things is violated, and they are conscious of guilt, if they violate this right in respect to others.

2. The relation of property is expressed by the possessive pronouns. These are found in all languages. So universally is this idea diffused over the whole mass of human action and human feeling, that it would be scarcely possible for two human beings to converse for even a few minutes on any subject, or in any language, without the frequent use of the words which designate the relation of possession.

3. Not only do men feel the importance of sustaining each other in the exercise of the right of property, but they manifestly feel that he who violates it has done wrong; that is, has violated obligation, and hence deserves punishment, on the ground, not simply of the consequences of the act, but of the guiltiness of the actor. Thus, if a man steal, other men are not satisfied when he has merely made restitution, although this may perfectly make up the loss to the injured party. It is always considered that something more is due, either from God or from man, as a punishment for the crime. Hence, the Jewish law enjoined tenfold restitution in cases of theft, and modem law inflicts fines, imprisonment, and corporal punishment, for the same offence.

Secondly. That God wills the possession of property, is evident from the general consequences which result from the existence of this relation.

The existence and progress of society, nay, the very existence of our race, depends upon the acknowledgment of this right.

Were not every individual entitled to the results of his labor, and to the exclusive enjoyment of the benefits of these results, —

1. No one would labor any more than was sufficient for his own individual subsistence, because he would have no more right than any other person to the value which he had created.

2. Hence, there would be no accumulation; of course, no capital, no tools, no provision for the future, no houses, and no agriculture. Each man, alone, would be obliged to contend, at the same time, with the elements, with wild beasts, and also with his rapacious fellow-men. The human race, under such circumstances, could not long exist.

3. Under such circumstances, the race of man must speedily perish, or its existence be prolonged, even in favorable climates, under every accumulation of wretchedness. Progress would be out of the question; and the only change which could take place, would be that arising from the pressure of heavier and heavier penury, as the spontaneous productions of the earth became rarer, from improvident consumption, without any correspondent labor for reproduction.

4. It needs only to be remarked, in addition, that just in proportion as the right of property is held inviolate, just in that proportion civilization advances, and the comforts and conveniences of life multiply. Hence it is, that, in free and well ordered governments, and specially during peace, property accumulates, all the orders of society enjoy the blessings of competence, the arts flourish, science advances, and men begin to form some conception of the happiness of which the present system is capable. And, on the contrary, under despotism, when law spreads its protection over neither house, land, estate, nor life, and specially during civil wars, industry ceases, capital stagnates, the arts decline, the people starve, population diminishes, and men rapidly tend to a state of barbarism.

Thirdly. The Holy Scriptures treat of the right of property as a thing acknowledged, and direct their precepts against every act by which it is violated, and also against the tempers of mind from which such violation proceeds. The doctrine of revelation is so clearly set forth on this subject, that I need not delay for the sake of dwelling upon it. It will be sufficient to refer to the prohibitions in the decalogue against stealing and coveting, and to the various precepts in the New Testament respecting our duty in regard to our neighbor’s possessions.

I proceed, in the next place, to consider, —

III. The modes in which the right of property may be acquired. These may be divided into two classes: first, direct; second, indirect.

First. Direct.

1. By the immediate gift of God.

When God has given me a desire for any object, and has spread this object before me, and there is no rational creature to contest my claim, I may take that object, and use it as I will, subject only to the limitation of those obligations to Him, and to my fellow-creatures, which have been before specified. On this principle is founded my right to enter upon wild and unappropriated lands, to hunt wild game, to pluck wild fruit, to take fish, or any thing of this sort. This right is sufficient to exclude the right of any subsequent claimant; for, if it has been given to me, that act of gift is valid, until it can be shown by another that it has been annulled. A grant of this sort, however, applies only to an individual so long as he continues the locum tenens, and no longer. He has no right to enter upon unappropriated land, and leave it, and then claim it afterward by virtue of his first possession. Were it otherwise, any individual might acquire a title to a whole continent, and exclude from it all the rest of his species.

2. By the labor of our hands.

Whatever value I have created by my own labor, or by the innocent use of the other means of happiness which God has given me, is mine. This is evident from the principle already so frequently referred to; namely, that I have a right to use, for my own happiness, whatever God has given me, provided I use it not to the injury of another. Thus, if I catch a deer, or raise an ear of corn upon land otherwise unappropriated, that deer, or that corn, is mine. No reason can possibly be conceived, why any other being should raise a claim to them, which could extinguish, or even interfere with mine.

This, however, is not meant to assert, that a man has a right to any thing more than to the results of his labor. He has no right, of course, to the results of the labor of another. If, by my labor, I build a mill, and employ a man to take the charge of it, it does not follow that he has a right to all the profits of the mill. If I, by my labor and frugality, earn money to purchase a farm, and hire a laborer to work upon it, it does not follow that he has a right to all the produce of the farm. The profit is, in this case, to be divided between us. He has a right to the share which fairly belongs to his labor, and I have a right to the share that belongs to me, as the proprietor and possessor of that which is the result of my antecedent labor. It would be as unjust for him to have the whole profit, as for me to have the whole of it. It is fairly a case of partnership, in which each party receives his share of the result, upon conditions previously and voluntarily agreed upon. This is the general principle of wages.

Secondly. The right of property may be acquired indirectly.

1. By exchange.

Inasmuch as I have an exclusive right to appropriate, innocently, the possessions which I have acquired, by the means stated above, and, inasmuch as every other man has the same right, we may, if we choose, voluntarily exchange our right to particular things with each other. If I cultivate wheat, and my neighbor cultivates corn, and we, both of us, have more of our respective production than we wish to use for ourselves, we may, on such terms as we can agree upon, exchange the one for the other. Property held in this manner is held rightfully. This exchange is of two kinds: first, barter, where the exchange on both sides, consists of commodities; and, second, bargain and sale, where one of the parties gives, and the other receives, money for his property.

2. By gift.

As I may thus rightfully part with, and another party rightfully receive, my property, for an equivalent rendered, so I may, if I choose, part with it without an equivalent, that is, merely to gratify my feelings of benevolence, or affection, or gratitude. Here, I voluntarily confer upon another the right of ownership, and he may rightfully receive and occupy it.

3. By will.

As I have the right to dispose of my property as I please, during my life-time, and may exchange it or give it as I will, at any time previous to my decease, so I may give it to another, on the condition that he shall not enter into possession until after my death. Property acquired in this manner is held rightfully.

4. By inheritance.

Inasmuch as persons frequently die without making a will, society, upon general principles, presumes upon the manner in which the deceased would have distributed his property, had he made a will. Thus, it is supposed that he would distribute his wealth among his widow and children; or, in failure of these, among his blood relations; and in proportions corresponding to their degree of consanguinity. Property may be rightfully acquired in this manner.

5. By possession.

In many cases, although a man have no moral right to property, yet he may have a right to exclude others from it; and others are under obligation to leave him unmolested in the use of it. Thus, a man has by fraud obtained possession of a farm, and the rightful owners have all died: now, although the present holder has no just title to the property, yet, if it were to be taken from him and held by another, the second would have no better title than the first; and a third person would have the same right to dispossess the second, and in turn be himself dispossessed, and so on for ever; that is, there would be endless controversy, without any nearer approximation to justice; and hence, it is better that the case be left as it was in the first instance; that is, in general, possession gives a right, so far as man i; concerned, to unmolested enjoyment, unless some one else can establish a better title.

6. And hence, in general, I believe it will hold, that while merely the laws of society do not give a man any moral right to property, yet, when these laws have once assigned it to him, this simple fact imposes a moral obligation upon all other men to leave him in the undisturbed possession of it. I have no more right to set fire to the house of a man, who has defrauded an orphan to obtain it, than I have to set fire to the house of any other man.

To sum up what has been said, property may be originally acquired either by the gift of God, or by our own labor: it may be subsequently acquired either by exchange, or by gift during life, or by will; but, in these cases of transfer of ownership, the free consent of the original owner is necessary to render the transfer morally right; and, lastly, where the individual has not acquired property justly, yet mere possession, though it alters not his moral right to possession, yet it is a sufficient bar to molestation, unless some other claimant can prefer a better title. These, I think, comprehend the most important modes by which the right of property can be acquired.

That principles somewhat analogous to these are in accordance with the laws of God is, I think, evident from observation of the history of man. The more rigidly these principles have been carried into active operation, the greater amount of happiness has been secured to the individual, and the more rapidly do nations advance in civilization, and the more successfully do they carry into effect every means of mental and moral cultivation. The first steps that were taken in the recovery of Europe from the misery of the dark ages, consisted in defining and establishing the right of property upon the basis of equitable and universal law. Until something of this sort is done, no nation can emerge from a state of barbarism.*

And hence we see the importance of an able, learned, upright, and independent judiciary, and the necessity to national prosperity of carrying the decisions of law into universal and impartial effect. It not unfrequently happens that, for the purposes of party, the minds of the people are inflamed against the tribunals whose duty it is to administer justice; or else, on the other hand, for the same purpose, a flagrant violation of justice by a popular favorite is looked upon as harmless Let it be remembered, that society must be dissolved, unless the supremacy of the law be maintained “The voice of the law” will cease to be “the harmony of the world,” unless “all things,” both high and low, “do her reverence.” How often has even-handed justice commended the chalice to the lips of the demagogue; and he has been the first to drink of that cup which he supposed himself to be mingling for others!


* Robertson’s Preliminary Dissertation to the History of Charles V.