Theories of Property

Author(s): George B. Newcomb

Source: Political Science Quarterly, Vol. 1, No. 4 (Dec., 1886), pp. 595-611
Published by: The Academy of Political Science
Stable URL: https://www.jstor.org/stable/2139069
Accessed: 08-04-2019 11:10 UTC

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

The Academy of Political Science is collaborating with JSTOR to digitize, preserve and
extend access to Political Science Quarterly

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
 THEORIES OF PROPERTY.

W HEN Hobbes and Locke, going behind the simple fact

of private property, long settled as an elementary prin-
ciple in the organization of society, sought to ground the right
on a philosophical basis, the object in view in their speculations
was political rather than social. But social institutions, how-
ever confirmed by immemorial usage, were sure to be subjected
more and more to the searching analysis of modern reflective
thought; and the theory of property has since been elaborately
discussed from widely different points of view by philosophers,
philosophical lawyers, economists, and social reformers. All
thinking on the subject, however one-sided or imperfect, has
contributed, as even the most revolutionary criticism of private
property to-day is tending to contribute, to the elucidation of
the basis of the institution and to just conceptions of property
rights. As the development of civilized human life has involved
the development and confirmation of private property, so the
higher progress and conscious evolution of society has been
calling forth a profounder comprehension of this right in its
relations to the nature of the individual and the observed wants
of society; the individual right being first and long emphasized
in theory, while increased attention is of late directed to the
social claim. To point out and trace the influence of the
leading ideas and tendencies in this phase of modern thought
will be the aim of this paper; a brief survey of the develop-
ment of private property rights and of property conceptions
down to the modern period being a needful preliminary.
Mirabeau said truly that liberty never was the fruit of a doc-
trine worked out in philosophic deductions, but of every-day
experience. So private property, which we are wont to regard
as essential to liberty, was the product of experiment rather
than the conscious device of reason. Sir Henry Maine and
other authorities have given us the strongest reason " for

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
596 POLPTICAL SCIENCE QUARTERLY. [VoL. I.

thinking that property once belonged, not to individuals nor

even to isolated families, but to larger societies, composed on
the patriarchal model"; and actual examination of extant
village communities affords support to the conjecture "that
private property in the shape in which we know it, was chiefly
formed by the gradual disentanglement of the separate rights
of individuals from the blended rights of a community."'
Progress in the history of nations is certainly marked by the
recognition of private property; and by an increase as well in
the amount and variety of individual compared with public
property or unappropriated good, as in the abstractness and
far-reachingness of the individual claim. This indicates that
society is unconsciously adapting itself to the necessities of
altered conditions. Practices which may be introduced acci-
dentally, and which are at first exceptional to the current
usage, become habitual and universal by experience of their
advantages, and the practice is finally vindicated by political
authority. There is an unconscious logic in the rule which
thus comes to be established; and though, as Aristotle held,
"the law is reason," the right reason of a particular rule, its
true theory, may not be rightly apprehended by the first jurists
who attempt to interpret it. Nor, probably, were the moral
claims of the institution of private property at first advanced
in its favor. The ethical feeling- of the society would pxima
facie be rather against it, though its establishment were yielded
to necessity. Communism in land, e.g., is a systenm of prop-
erty which is useful in all the early stages of society, since it
binds together the individuals of the tribe by the strongest tie.
Mr. Bagehot has clearly brought out in his Phzysics and Politics
the prime necessity of binding together the society in its form-
ing stages: everything which tended to individualism would
naturally be discouraged by the tribal feeling of self-preserva-
tion. To love thy neighbor and hate thine enemy is easy when
property is the affair of the tribe, and the property right is
limited to the tribe. The notion of property being identified
with that of the permanence and unity of the family itself,
1 Ancient Law, ch. viii.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
 No. 4.] THEORIES OF PROPERTY. 597

the progressive decay of common property may well have been

regarded as a step in the direction of material more than of
social or moral progress. "In the myths, agriculture, which
broug-ht about division, is a curse, a fall from a more perfect
stage-that of the nomads-to a lower and imperfect one."
The right of private property was vigorously asserted by the
Romans and elaborated in their law. The Roman property
laws were as far as possible removed from modern socialism.
The close binding up of property with the person of the owner
was not, however, due to conceptions of the person similar
to those of modern thought. The individualistic element in
Roman property law is due, in part at least, to the influence
of the time when the claim to private property was especially
founded in the personal prowess of the warrior.1 The prin-
ciples of Roman jurisprudence referred the right of property to
" first possession, labor, succession, and donation "; occupancy
of things without an owner being considered as the principal
title conferring property.
The institutions, modes of thought and life in the middle
ag,es were unfavorable to the development of the feeling of
individual right in property, though the way was slowly
preparing for this. The influence of the Christian concep-
tion of the sacredness of the human person was operating
silently; the laborer was not absolutely enslaved. And the
power of the military chief over his domain land gives an ab-
solute conception of private property, which is transferred to
individual ownership generally after the dissolution of feudal
institutions. However, so long as feudalism held its sway,
modern property conceptions could not make way. The rights
of labor had no standing, and could have none; for, as Heron
points out, in his History of Jurisprndence, "if any feudal tenant
were allowed to acquire the absolute property in the improve-
ments effected by him, the whole feudal system of mutual

1 Gaius, in his Institutes, IV. i6, explains the ceremonial use of the spear in the old
court of the ceiznumv-ii, and of the festuca in the oldest form of civil procedure
quasi has/la /o0o, on the ground that the ancient Romans " maxime sua esse credebant
quae ex hostibus cepissent."

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
598 POL7IJCAL SCIENCE QUARTERLY. [VOL. I.

dependence and obligation would have been at an end. The

feudal baron expressed his title in the robber-motto: Per Deum
et ferrurn obtinui." The title thus imperiously claimed was the
less resisted, because there was then some recognition of ten-
ants' occupancy. The bucolic contentment of the simpler
period, the absence of trade and intercourse to awaken multi-
farious desires, the influence of religion, all contributed to
repress economic individualism. Mr. Sidgwick, in his sketch
of The History of Ethics, remarks the admiration of the early
and mediaeval church for the apostolic communism, and says
of the attitude of early, and even to some extent mediaeval,
society toward private property and toward slavery:

Both were regarded as encroachments on the original rights of all

members of the human family; since men were naturally free, and the
fruits of the earth naturally common.

Very different were the ideals of that time from those of the
industrial age soon to come into view: in the one, poverty
canonized; in the other, poverty remanded to the fit society of
stupidity and indolence! But even when the whir of industrial
activity began to be heard in the middle ages, the spirit and
method of work is still comparatively communal. Up to the
seventeenth century, Laveleye tells us, there is frequent men-
tion of societies of persons with associated joint property. This
system "had to encounter two sources of ruin; one in the spirit
of individuality characteristic of modern times"; another in
the influence of the study of the Roman law; moreover, "the
successive disappearance of serfage and mortmain took away
from these associations one of the most powerful reasons for
their existence." 1
It is not necessary to point out all the causes-notably
the development of industrialism, the growth of the contract-
system, and the increase of wealth by trade and commerce-
which aided to give that strength. to the feeling of right at-
tending private possession, which has in modern times made it
so self-asserting. Only it should not be overlooked that with
1 Primitive Property, ch. xv.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
No. 4.] THEORIES OF PROPERTY. 599

the growth of property man becomes intensely attached to what

he owns. In a period in which this spirit is growing to a head,
with a parallel development of independent speculative thought,
the current absolutist theories of the sovereign's original and
divine right over property were as certain to be questioned by
thinkers as arbitrary measures of control to be resisted by the
interests affected; and in the "social contract" theories, the
spirit of liberty and individualism finds a mode of expression.
But even in the British Parliament, in i6oi, Mr. Sergent Heyle
asserted: "All that we have is her Majesty's, and she may
lawfully, at her pleasure, take it from us. Yea, she hath as
much right to our lands and goods as to any revenue of her
own." 1
Moral philosophers and jurists, since the modern period be-
gan, have attempted to find a philosophical basis for private
property, to establish the rightfulness of the rights over things
which the law allows to the individual. Later, the economists
have aided by.setting forth the general utility of private prop-
erty; although one of the earlier economists so far pursued the
older point of view as to describe property as "a dreadful but
necessary right."
The idea of contract, or free convention of individuals, as
inducing the state upon the anciently assumed state and law of
nature, found favor with thinkers even of opposite schools, both
on account of the individualizing tendency in modern thought,
and the conscious need of some new and broader basis for law
and order in an era of great changes in institutions and
opinions. Grotius, in his epoch-making work, De Jure B
Pacis, expounds the philosophy of property from this radical
standpoint, yet founds the original right upon occupation, with-
out labor, emphasizing the traditionally esteemed claim. Of a
group of social contract theories which appeared near the same

1 Hopkins, The English Puritans, 3, 628. -Though this was received "with out-
bursts of indignation and scorn," it tells us much of the vitality at that time of
conceptions now so long extinct that we can hardly imagine how a man of Locke's
genius could have found it worth his while to dissect them as he did, and] thereby
give whatever fame they have enjoyed to the writings of Sir Robert Filmer.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
600 POLITICAL SCIENCE QUARTERLY. [VOL. I.

period, those of Hobbes and Locke have special significance for

our purpose, as representing two leading tendencies in the
modern philosophy of property: one aiming to ground the right
externally in some kind of utility; the other internally or psy-
chologically, in the consciously apprehended capacities and
requirements of the human personality.
Hobbes, from the standpoint of a materialistic utilitarianism,
seeks a rational foundation for absolutism. By social contract
he gets the monster Leviathan constructed: a creation of his
creatures, who yield him absolute obedience in return for pro-
tection to their lives and property. The contract is one in
which the principle of individualism is at once saved and given
up. "Propriety . . . belongeth in all kinds of wealth to the
sovereign alone." That is clearly pointed out by Hobbes
which has not always been clearly seen; viz., that property,
as far as it involves the control of what one does not physically
possess, does not exist in a state of nature; but he assumes
beyond that, that not even a moral claim to it is recognized,
for there is perpetual war of each against each, and "every-
thing is his that getteth it and keepeth it by force, which is
neither propriety nor community, but uncertainty." Truly,
then, were property a clear creation of Leviathan, who might
well order it and take of it as arbitrarily as he pleased ! But if
human nature had really no social and universal element in it,
or original germ of such element, no stable government or
property right could ever have been developed out of it; the
collision of mutually repellent atoms could never have pro-
duced a social organism. His psychology, recognizing no uni-
versal element in mind, gives no basis for social union. The
principle would create anarchy as soon as absolutism.
Locke also adopts the fiction of a contract or convention
but with him it is the consent of a very different sort of
beings, i.e., rational and moral ones; and therefore it contains a
logical truth, though not a historical account of the foundation
of the social order- the truth, namely, that government is by a
consent of the governed. " Law," as Grote finely said, " is the
public reason of the society, participated in more or less by the

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
No. 4.] THEORIES OF PROPERTY. 6oi

mass of individuals, enforcible upon all who will not participate

in it." Locke, in his Treatise on Civil Government, deals with
a foeman unworthy of his steel, except as representing an
entrenched dogma - Sir Robert Filmer, who maintains the
absolute right of kings over soil and person, as successors to
Adam's and Noah's political authority, and by virtue of the
division of the earth's soil among Noah's sons; thus sancti-
fying with a scriptural title the conceptions of political au-
thority and territorial lordship derived from feudalism. Locke,
in full revolt against arbitrary mediaeval claims, and in vital
sympathy with the movement of his time, grounds government
in agreement or convention; shows that the true state of man
is the social state; and reaches down deeper than Grotius for
the right of property, founding it on labor, and adjudging to
each worker the right to have and to save the produce of his
work. It appears to him evident enough that the goods of the
earth are common to all, in the first instance, but become the
private property of one who has "mixed his labor" with tlhem,
if there is "enough and as good left in common for others."
The chief end of men's uniting into commonwealths is the pres-
ervation of their property. Evidently, the modern organization
and increase of wealth could not have come to pass had only
labor been recognized as basis of title, since occupancy must al-
ways have preceded labor; and no legislation ever allowed that
labor or specification was alone a sufficient title to establish
property. But Locke, with an insight which was lacking even
to the French economists, who made land the source of value,
recognized in labor the great productive factor in modern wealth,
and therefore an element which must predominate in justifying
to the general mind the claim to private property. There is
eloquent significance in the fact to which he calls attention,
that the man who appropriates land to himself, by his labor,
does not lessen, but increases the common stock of mankind,
by the heightened productiveness of cultivated as compared
with natural or waste land. The limit set to appropriation is
what one can "make use of to any advantage of life before it
spoils," and in the case of land, what we can cultivate, as much

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
602 POLITICAL SCIEACE QUARTERLY [VOL. I.

being left for others as they require. This point may well have
been suggested by the greedy encroachments of English landed
proprietors, under feudal title, upon the traditional claims of
the people on the soil, by enclosure of commons, etc. Certain
it is that the anomalous condition of property, produced in
England by the feudal ownership of land having become un-
qualified, with the result of turning populous estates into
sheep-walks, has led to contemporaneous reassertion in that
country of the people's natural right to the use of the soil;
and that occupation alone, when not followed by labor or
human industry, is a title sanctioned by the average mind
rather on the ground of the exigency of social order than
intrinsic justice. In the early stages of agricultural life, it
would be a simple enough rule that what any family may clear
and till remains their property during use. But in the com-
plexity of modern property relations in old civilized countries,
only the most glaring abuse of the right of property would
suggest any questioning by society of the use made of it by
legal owners.
The tendencies of Hobbes and Locke may well represent two
main lines which the modern speculations on property have
taken; viz., the characteristically German subjective, and the
distinctively British objective - i.e., utilitarian and economic
-way of looking at the subject; the French genius being per-
haps more influential in brilliant exposition and criticism than
in profound theoretic construction. To group theories accord-
ing to these affinities of method, is, at any rate, more to the
purpose of this sketch, than it would be to arrange them in
view of the different bases of right of property formally set
forth in them; of which Laveleye distinguishes six principal
ones. And account must necessarily be taken, also, of the new
light thrown upon the whole subject by the investigations of the
historical school in jurisprudence, and the now active influence
of the modern doctrine of evolution.
The subjectivism of the German mind leads it naturally to
approach the problem of the right of private property through
the consideration of will and the requirements of personality.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
 No. ,.j THEORIES OF PROPERTY. 603

This method of thought, primarily favoring the highest individ-

ualism in the interpretation of property rights, is yet capable of
supporting quite opposite tendencies, when the personality is
viewed rather on the side of its needs than of its energies
and responsibilities, and when this view is combined with a
broad conception of the nature and ends of the state. Yet
ground is also given for the reconciliation of the claims of
the individual with those of society, in the conception of
personality as truly developed in and through the state,
so that the whole draws its life from the parts, and the
parts from the whole.
Kant's theory of property, though modified somewhat by his
allegiance to a form of the contract idea, is profoundly in
accordance with the drift of his whole philosophy, which
assigns such central importance and dignity to the human
person. In personality and its rights, personality being invio-
hable, he sought for property a rational and spiritual origin.
The ego is indeed so exalted in his thought that property rights
tend to predominate over social obligations. Thus the laissez
faire theories as to the limits to state interference and the
sacredness of free contract and unlimited competition, which
have been so potent in our political and commercial life, derived
support from his doctrine and authority.

It was with the immediate intention of narrowing the sphere assigned

to government [says Bluntschli] that Kant and Wilhelm von Humboldt
declared the state to be a " legal state " (Rechtsstaat), in the sense that
its sole duty was the maintenance of the legal security of each individual.

It is an elevating and refining idea (which derives sanction

from Kant thoug,h developed by later thinkers) that associates
property with person and its sacredness. Here is the secret
spring of that impulse of rights which speaks in the uncalculat-
ing utterance: " Not one cent for tribute, millions for de-
fence !" By reason of their connection with our personality,
claims on external good are invested with what Jhering has
called ideal in contrast with their purely material value. It is
this ideal value, as he explains, that makes an infringement of

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
604 POLITICAL SCIENCE QUARTERLY [VOL. I.

one's legal rights not a question of merely pecuniary damage;

a materialistic measure which cannot satisfy the requirements of
the case.

In making the object my own I stamped it with the mark of my own

person; whoever attacks it attacks me; the blow struck it strikes me,
for I am present in it. Property is but the periphery of my person ex-
tended to things.'

Fichte, sharing the profound sentiment of individuality,

develops, however, the passive side of its requirements; and
thus was "the first in Germany to raise the Social Question."
"As soon as any one can no longer live from the results of his
labor, that which belongs to him (i.e., a suitable living) is no
longer his; the agreement with him is completely annulled, and
he is no longer legally bound to respect the property of any one
else."2 This involves provision of work; supply of the needy
from the general store; and the transfer to government of a
right which all have to watch that each labors sufficiently.
Hence socialism of the theoretic variety. Hegel puts the mat-
ter in a fashion much more consonant with the average sense,
in emphasizing the dztty instead of the right of property and
regarding the distribution of goods as dependent upon industry.
Hegel emphasizes the assertion of will over a thing as the source
of property right.
"The best German writers have noticed," says Mr. Amos,
"that the general effect of law is to enlarge man's empire over
the outward world of men and things." This generalization
points in the general direction indicated by the great German
philosophers for the basis of property right. And it is not as
a merely selfish right that it thus fulfils the ends of law. Thus
Trendelenberg, in his Naturreclt, shows how the recognition
of the whole gives to the individual will permanence in the
thing, and warrants to him the universal disposition of it by
means of which external and separable things become, as it were,
man s organs ; the acquirer is "invested" with a thing; and
what is thus first of all strengthening to the individual is also
1 The Struggle for Law, Am. ed., p. 55.
2 The Science of Rights, part ii., book iii.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
No. 4.] THEORIES OF PROPERTY. 6o5

the invigoration of all. Property, first an instrument of the in-

dividual, also serves the moral purpose of the family, the corpo-
ration, the state. And as, in the measure that the circle of
property grows, the power of the owner is strengthened through
the security afforded by the recognition of the whole, the very
important deduction follows that the oblzigations of ownership
toward the whole increase in the same measure. On the other
hand, property being the formed instrument or organ of will, it
follows that it, like the person, must be socially protected.
Trendelenberg applies the conception of property as beseelt,
as the instrument of will, to the various forms of property right,
removing arbitrariness from the claims of the law. Property
is to be as little subject to conditions and interferences as may
be; since the more thoroughly it is subjected to one will, the
more it heightens the power of the individual, and through him
of the whole. The logical and ethical motives of prescription
are worked out from the general principle of property.
In general it is seen that, from this subjective view of its
inner ground, private property receives a moral character which
tends at once to limit that which can be property, and impart a
certain sacredness to a soundly established right. It also yields
a less profound support to merely conventional and expedient
titles, adopted "to avoid strifes"; emphasizing at once the right
obtained by the personal energy which enters into realized
property, and the requirement that real effort should have en-
tered in to give the clearest title. Jhering says with great
force: "'Only through a lasting connection with labor can
property maintain itself fresh and healthy. Only at this source
is it seen clearly and transparently, to the very bottom, to be
what it is to man." Fraudulent practices of acquisition, within
the lines of law, obscure the right of property; since in these
cases is absent every vestige of its moral idea. " Communism
thrives only in those quagmires in which the true idea of
property is lost. At the source of the stream it is not to be
found." 1 These thoughts are vital in relation to the "Social
Problem "
1 The Struggle for Law, Am. ed., pp. 49, 50.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
6o6 POLITICAL SCIENCE QUARTERLY. [VOL. I.

To the German way of looking at this whole topic, the char-

acteristic procedure of the English mind, so long as it follows
its native bent, offers a marked contrast. By the English mind
the property problem is objectively viewed, from the standpoint
of utilitarian ethics or in connection with the generalizations of
political economy.
Bentham and J. S. Mill represent adequately the scope of
English utilitarian ethics and the political philosophy founded
upon these views. Bentham, whose life was devoted to the
reform of law, could not fail to perceive clearly the intellectual
character of property - a mere " foundation of expectation,"
which expectation can only be the work of the law. There is,
therefore, he argues, no natural property; property is entirely
the creation of law. The law, however, is not arbitrary and
supported by force or fear as in Hobbes' theory. Its institu-
tions, and notably that of property, prove to be attended with a
thousand advantages.

The laws [he says] in creating property have been benefactors to

those who remnain in their original poverty. They participate more or
less in the pleasures, advantages, and resources of civilized society;
their industry and labor place them among the candidates for fortune;
they enjoy the pleasures of acquisition; hope mingles with their labors.'

There are enough other lucid and impressive passages in

the same vein to make a readable and effective tract for the
levellers of to-day. The peculiar genius of Bentham is happily
exercised in elucidating what is involved in the conception of
security, which is "far more fundamental to happiness than
equality." For this reason the distribution actually established
should be maintained by the legislator; and no less are taxes
which spare the rich to the prejudice of the poor "attacks upon
security." The general strain of Bentham's deductions was thus
conservative of private property, though it has been said that
while Bentham enunciates the principle of the greatest good
of the greatest number, he seems to neglect the individual.
The principle of "greatest happiness" is apt to appear, to
privileged minorities, pregnant with revolution, since the calcu-
1 Principles of the Civil Code, I, 8.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
 No. 4.] THEORIES OF PROPERTY. 607

lation is difficult to make and most liable to be disturbed by

interests and sympathies. If utility be the ground of legis-
lation, and a majority of needy persons acquire in any country
political power, it would be difficult, it will be thought, to enable
them so intelligently and profoundly to conceive and apprehend
their happiness as Mr. Bentham does. Sir Henry Maine, in his
Popular Government, remarks that Bentham overestimated hu-
man intelligence. "He wrongly supposed that all the truths
which he saw clearly cut and distinct in the dry light of his in-
tellect, could be seen by all men, or by many of them." It is
certainly much easier for the average man to feel directly the
moral force of the claim of right one makes to what he has
himself saved or labored for, than to deduce the rule of prop-
erty from the probable general consequences of its violation.
Yet the utilitarian argument is of great value to social order;
and when Mr. J. S. Mill amends Bentham's scheme, by recog-
nizing differences of quality in pleasures, distinct from and over-
riding differences of quantity, the line of distinction between
ideal morality and the utilitarian standard is no longer sharply
drawn.
Mr. Mill in his investigations of property failed to maintain
the optimistic view of the existing distribution of wealth char-
acteristic of a true Benthamite. He had felt the influence of
the social philosophy of Comte, and had been led to doubt the
absolute conclusiveness of some of the deductions of the ac-
cepted political economy.
The direct effect of the doctrines of the English school of
political economy was to justify, from a utilitarian point of
view, the institution of private property as legally established.
But while the modern economic and legal system was clearly
justified from the point of view of production of wealth, it
began to be apparent in the present century that in respect of
distribution its results in human happiness left very much to be
desired. The attempts to meet in part this difficulty by the
Malthusian and Ricardian theories (which also generated at last
the conception of the survival of the fittest as an evolutionary
social end) aided to arm the criticism which had gathered force

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
 6o8 POLITICAL SCIENCE QUARTERLY. [VOL. I.

under the name of "scientific socialism." Views which had

been put forward to show the necessity of existing arrange-
ments (e.g., the so-called " iron law of wages ") were held up to
prove in turn their viciousness and the need of an economic
reconstruction. Misleading deductions were also made from
the Ricardian doctrine that labor is the only productive agent.
The speculations concerning property in a state of nature,
which great thinkers have expended such pains in elaborating,
though not wholly divested of logical significance, have been
rendered obsolete by the researches into the history of early
institutions, which have been pursued by Sir Henry Maine and
others in recent years. The development of the historical
school in jurisprudence has also discouraged all the explanations,
once so favored, which partook of immediatism, and were miarked
by confidence in the power of convention and legislation to pro-
duce social institutions. The present laws of property have not
been of mushroom growth.
The conception of progress from the lower to the higher,
from simple to complex forms, - in a word, the doctrine of evo-
lution, enters of late into most conceptions of the past and
future of property, as of other social institutions. Thus the
relativity of property rights is clearly apprehended. Human
nature changes in the direction of higher capacity; its environ-
ment also changes; and with these change correspondingly the
relations of fitness to conditions which are recognized in just
laws.
The doctrine of evolution is, however, invoked in opposite
directions, as the basis of their expectations or hopes, by ex-
treme individualism on the one hand, and on the other by scien-
tific socialism. The former school, if it may be called such, sees
the only prospect of a noble human race in the strict mainte-
nance by the state of the non-interference policy, with unchecked
play for individualism in competition; the result of which, it is
alleged (though far from shown), would be attainment through
selection of the fit, of a race capable of the highest enjoyment
and virtue.
In the view of evolutionary socialists, the present organization

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
No. 4.1 THEORIES OF PROPERTY. 609

of property and arrangement for distribution by competition

was g-ood for its time, but is bound in the order of progress to
disappear. In the natural course of things that which Fichte
prophesied, socialists of this sort hold, is coming to pass:
" Property will lose its exclusively private character and become
a social institution." Of the mode of evolution of higher forms
of property which is to take place according to " scientific
socialism," it is the less needful to speak here, as an elaborate
exposition of these views appears in another article in the pres-
ent number of the QUARTERLY. The chief present significance
of socialism appears to be that of a criticism upon the anti-social
effects of extreme individualism in conceptions of property
right, and that of a finger-post pointing toward the advantages
to be obtained by profit-sharing or some form of co-operative
industry or even by extension, within certain not wide limits, of
the economic functions which the American state discharges.
Its protests against certain wastes and burdens of the modern
industrial system must be felt as impressive; but the recon-
struction it proposes appears utopian while men and their
motives remain as now. Indeed it seems necessarily to involve
a subordination of individualities which means a reactionary
movement of society, a "disguised return to feudalism." And
from the highest conception of man's welfare this is too great
a sacrifice to make even for ease. Of economic it may be said
as Montesquieu said of political freedom: "Whatever be the
price of this glorious liberty, we must be content to pay it to
heaven."
This brief review of theories seems to warrant the general
deduction that a complete discussion of property rights can be
conducted only by combining the points of view given by the
study of man's personality with its implications, the circle of
observed and reasoned utilities, and the historic development
of property institutions as indicating something of the normal
course of progress in the future. And the combined work of a
series of thinkers converges from different lines toward clear
elucidation of the basis of property in general, and just concep-
tion and definition of particular rights.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
6io POLITICAL SCIENCE QUARTERLY. [VOL. I.

To conclude with some concise suggestions in addition to or

development of points brought out in the foregoing discussion:
(i) Private property, rightly based, defined, and limited,
appears in such sense a natural right that it appeals for sup-
port to the universal element in human nature. The titles by
occupation and labor are most clearly justified by the necessity
of occupation as the condition of labor, the right of which to its
produce is evident both to intuition and from utility; and this
necessity of occupation is as apparent as regards the soil as it is
in regard to other material conditions of labor. The arguments
by which philosophers have endeavored to ground the title by
szuccession upon natural right or universal usefulness have been
less conclusive.
(2) The feeling of property right, the respect for property, is
of course strengthened by whatever in property laws and usages
keeps it in vital connection with its rational and moral grounds,
and is weakened in proportion to the lack of such vital connec
tion. The respect for property is greater to-day because the
right is more rationally defined and exercised. If held and
used in the spirit of the barbarian captor, with arbitrary will
and assertion of the ancient claim to "use or abuse," the
effect is that which Bentham might describe as "weakening
security." The obligations of property also increase as wealth
is increasingly due to the co-operation of the social forces, and
this is properly recognized in legislative adjustment of the
social burdens as well as in the use private individuals make of
their own.
Our philosophy of human nature will necessarily influence
our conception of human rights and obligations with regard to
property. A just view of man's nature grounds his right in
rational and moral capacity; as a materialistic view tends to a
hard and narrow egoism. Because man is a person, he is capa-
ble of the property trust; and this suggests that artificial or
juristic persons are not equally capable of this right, without
such restrictions or qualifications as may tend to prevent its
being exercised in a merely wholesale and mechanical way.
Materialistic conceptions of man's nature and requirements

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms
No. 4.] THEORIES OF PROPERTY. 6II

tend moreover to foster the impossible claims of communism.

So Iong as man is looked at mainly from the side of his external
life and its requirements, the demands which arise are beyond
any power of social arrangement to satisfy. But the good of
life which all can share is better than riches and not affected
by competition. Indeed, from the point of view of the require-
ments of mind and character, anything like equality of external
conditions might seem undesirable even if attainable. For,
while individualism in economic affairs may be further qualified
in the interest of both production and distribution of wealth,
private property and inequality of fortune appear to be perma-
nent conditions for the highest development of personality.

GEORGE B. NEWCOMB.

This content downloaded from 157.39.174.86 on Mon, 08 Apr 2019 11:10:14 UTC
All use subject to https://about.jstor.org/terms