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 Title

Property and Law

 Author

Paul Elmer More

 Author Notes

American critic and scholar, proponent of the New Humanism advanced by Irving Babbitt.

 Essay -

There has been, as every one knows, a long strike in the mines of Colorado, with violence on both sides and bitter recriminations. On the 27th of April, 1914, there was a meeting of some two thousand persons in Carnegie Hall, of New York, before whom Morris Hillquit made this savage statement:

"The investment of the Rockefellers in the coal fields of Colorado is largely for the hiring of criminals and thugs to shoot the strikers, and the pious son of America's money king knows and sanctions the object. When it was alleged of ex-Lieutenant Becker [the convicted police officer of New York] that he had hired four gunmen to kill one gambler, he was indicted on the charge of murder in the first degree. Why not indict the man who has admittedly hired whole bands of gunmen to kill scores of workers?"

In sympathy with this idea that in hiring men to protect his property a mine owner is in the same class with a sordid murderer, it will be recalled that a number of men and women paraded before the office of Mr. John D. Rockefeller, Jr., wearing bands of crepe. On April 28 Mr. Rockefeller issued an official reply, of which the gist was contained in the following paragraph:

"Are the labor unions, representing a small minority of the workers of the country, to be sustained in their disregard of the inalienable right of every American citizen to work without interference, whether he be a union or a non-union man? Surely the vast majority of American citizens will, without fear or favor, stand for evenhanded justice under the Constitution, and equal rights for every citizen."

To this appeal the United Mine Workers responded the next day:

"Of course the right to work is inherent. If, however, the miners exercise their rights as guaranteed by the Constitution and the laws of our country to have a collective voice in establishing the conditions under which they shall work or shall not work, it ought not and cannot be denied by Mr. Rockefeller."

In the same issue in which this response was published, the New York Sun printed a brief and pungent editorial, to this effect:

"Whatever the demagogues prate, an elementary and indispensable and indefeasible right is at stake in Colorado. In defending that right to labor, in refusing to yield to timorous counsels from Washington, Mr. Rockefeller has shown civic courage and a just sense of the equal claim of all to liberty and protection."

Now in regard to the truth of the charges of violence and other misconduct urged alternately by the strikers and the owners and by their sympathizers, one may be unable to decide on the evidence; nor is that the question here considered. The remarkable point is that not a single word was uttered on either side for property itself, as at least a substantial element of civilization. Such a silence was no doubt natural on the part of the strikers; but what of the owners? One suspects that Mr. Rockefeller, away from the Sunday school, and in his private office, thinks a good deal about the privileges of property, and one knows that the Sun is interested in those privileges. Yet for these neither Mr. Rockefeller nor the Sun would appear to have the slightest concern; they are only voluble in behalf of the independent labouring man and on the indefeasible rights of labour! Is this self-deception, or hypocrisy, or merely the policy of men who understand the feelings of a democratic populace, and desire to present their case in the most plausible light? A hundred years ago, in England or America at least, their present attitude would have been impossible; they would have appealed boldly to the public, their public, on the basis of sheer property rights. Twenty years ago such a position as they now assume could scarcely have been anything but ignoble hypocrisy. To-day their motives cannot be classified in any such simple fashion. It is not improbable that, along with the transparent motive of policy, they are a little troubled to know whether their instinctive feelings as property owners are not in some way unethical. At least we can say with entire confidence that such, under such circumstances, would be the complex state of mind of a considerable, certainly also a growing, body of men.

Now what is the meaning of all this? What is the origin of this state of mind which is so manifestly illogical and self-contradictory?

We shall perhaps discover the first plain enunciation of such a growing view of property in the writings of that master of truth and sophistry, Jean-Jacques Rousseau, especially in the Discours sur l'origine de l'inegalite and the Contrat social. According to the theory there developed, the most blessed stage of human existence was that exemplified by our North American Indians, who, as Rousseau pictured them from certain travellers' fairy tales, had risen to the beginning of social life, but possessed no property beyond the most rudimentary sort---none at all in our sense of the word. Happy indeed was such a state, if innocence is happiness: for, as the all-knowing Locke had observed, there can be no wrong-doing where there is no property. "It was," adds Rousseau sententiously, "the discovery of iron and grain that civilized men, and ruined the human race." Two consequences followed the creation of property: civilization and injustice. There is, Rousseau admits, a natural inequality of faculties among men, but this is of little moment until fixed and reinforced by extrinsic advantages. An unnatural inequality, or injustice, arises as soon as those who are the stronger by nature acquire increase of strength by the aid of superior possessions. And this injustice is fixed by a clever ruse. The few whose natural strength has been enhanced by property, seeing that they should still be at the mercy of the united mass of the poor and weak, delude the mass into binding themselves by passing laws in defence of property. Law is thus the support at once of civilization and of injustice.

The syllogism is rigid, and the inevitable conclusion would be: abolish law, and let mankind return to the happier condition of barbarism. But such a conclusion forces us to reconsider our premises, and we immediately see that the argument rests on two assumptions, one true and the other false. It is a fact that property has been the basis of civilization, and that with property there has come a change from natural inequality to what is assumed to be unnatural injustice. But it is not a fact that barbarism is in general a state of innocence and happiness. Rousseau himself really knew this, and he felt also, when his words began to be taken seriously by men of affairs, that he should be merely stultifying himself if he called on them to abolish what he recognized as the basis of civilized society: under no glamour of a remote paradise would men go to work deliberately to destroy civilization, whatever might be the evils it embraced.

Hence Rousseau proceeds to develop a theory of the State which shall retain the civilization created by property, while avoiding the injustice inherent in it. To this end he would make tabula rasa of the existing forms of authority in government, and in their place introduce, as sole sovereign, a power which he describes as the volonte generale. By this he does not precisely mean socialism: for still regarding private ownership as the basis of civilization, he cannot admit collective ownership. His notion is that a government by means of the "general will," while acknowledging the need of private ownership, would do away with injustice, because, in such a State, "the sovereign, being formed only of the individuals which compose it, neither has nor can have any interest contrary to theirs. This may be a true proposition metaphysically, if, in the manner of the medieval realists, we regard the general idea of humanity as an active entity, and individual men as mere accidents. But what does the "general will," when stripped of its metaphysical disguises, mean for Rousseau? Nothing but the unrestricted desire of the majority at any given moment. Now we, who are the inheritors of the French Revolution and the humble audience of socialistic oratory, have seen the operation of a government, or at least have heard the demands of much applauded demagogues, close enough to the spirit of Rousseau's philosophy, to know what the immediate and unrestricted will of the majority means in practice. Whether it means justice to you or not, may depend on your particular sympathies and interests; it manifestly does not mean a careful regard for the rights of property.

Rousseau's scheme, in fact, involves a self-contradiction: by a juggling of words it supposes that the innocence of man in a state of nature, itself an assumption contrary to fact, can somehow be made to continue in a society which has built itself up on what he regards as the cause of injustice. In simple truth, property may rightly be called the cause of civilization, but, strictly speaking, it is only the occasion of injustice: injustice is inherent in the imperfection of man, and the development of the means of living merely brings into greater prominence what is an unavoidable feature of existence, not for man only but for the whole range of creation, in this puzzling world of ours. Rousseau, by inflaming the passions of men against the wrongs of society which by his own hypothesis are inevitable, was, and still is, the father of frightful confusions and catastrophes; but he performed a real service to philosophy by stating so sharply the bare truth that property is the basis of civilization.

The socialistic theories of communal ownership give the argument, I admit, a new turn. Socialism rests on two assumptions. First, that community of ownership will, for practical purposes, eliminate the greed and injustice of civilized life. This I deny, believing it to be demonstrably false in view of the present nature of most men, and, I might add, in view of the notorious quarrelsomeness of the socialists among themselves. Secondly, that under community of control the material productivity of society will not be seriously diminished. This question I leave to the economists, though here too it would appear to follow demonstrably from the nature of man that the capacity to manage and the readiness to be managed are necessary to efficient production. Certainly, there has been a convincing uniformity in the way in which wealth and civilization have always gone together, and in the fact that wealth has accumulated only when private property was secure. So far as experience or any intelligent outlook goes, there is no sufficient motive for the creation of property but personal ownership, at least in a share of joint property. The burden of proof is entirely on those who assert the sufficiency of communal property; their theory has never been proved, but in innumerable experiments has always failed. And, in fact, the real strength of socialism, the force that some think is driving us along the edge of revolution, is in no sense a reasoned conviction that public ownership is better than private ownership, but rather a profound emotional protest against the inequalities of ownership. The serious question is not in regard to the importance of property, but in regard to the justice of its present distribution. Despite all the chatter about the economic interpretation of history, we are to-day driven along by a sentiment, and by no consideration of economics.

Not even a Rousseau could cover up the fact of the initial inequality of men by the decree of that great Ruler, or Law, call it what you will, which makes one vessel for dishonour and another for honour. That is the so-called injustice of Nature. And it is equally a fact that property means the magnifying of that natural injustice into that which you may deplore as unnatural injustice, but which is a fatal necessity, nevertheless. This is the truth, hideous if you choose to make it so to yourself, not without its benevolent aspect to those, whether the favorites of fortune or not, who are themselves true--ineluctable at least. Unless we are willing to pronounce civilization a grand mistake, as, indeed, religious enthusiasts have ever been prone to do (and humanitarianism is more a perverted religion than a false economics), unless our material progress is all a grand mistake, we must admit, sadly or cheerfully, that any attempt by government or institution to ignore that inequality, may stop the wheels of progress or throw the world back into temporary barbarism, but will surely not be the cause of wider and greater happiness. It is not heartlessness, therefore, to reject the sentiment of the humanitarian, and to avow that the security of property is the first and all-essential duty of a civilized community. And we may assert this truth more bluntly, or, if you please, more paradoxically. Although, probably, the rude government of barbarous chiefs, when life was precarious and property unimportant, may have dealt principally with wrongs to person, yet the main care of advancing civilization has been for property. After all, life is a very primitive thing. Nearly all that makes it more significant to us than to the beast is associated with our possessions--with property, all the way from the food we share with the beasts, to the most refined products of the human imagination. To the civilized man the rights of property are more important than the right to life.

In our private dealings with men, we may, if we choose, ignore these claims of civilization with no harm resulting to society; but it is different when we undertake to lay down general rules of practice. In allowing our emotions and our sense of abstract right to oversway us in our attitude towards politics and government, we forget that it is not ours to determine the fundamental relation of things, or to define justice, but to make rules of action in accordance with the decrees, immutable so far as we can see, of a superior power. We are, essentially, not legislators but judges.

And what then, you ask, of human laws? In sober sooth it is not we who create laws; we are rather finders and interpreters of laws registered in a court beyond our control, and our decrees are merely the application of our knowledge, or ignorance, of the law to particular conditions. When our decrees are counter to the law of fact, they become at best dead letters, and at worst, agents of trouble and destruction. The office of the legislator in general is not unlike that of the jurisconsult of the Roman Empire, upon whom was bestowed the right of giving binding responses to a judge when he was not clear in a question of equity or interpretation, and who thus helped to mould the law into the form in which it was finally codified and handed down to the modern world. And in a more special sense, the spirit that guided the trend of their opinions is worthy of scrutiny to-day, as its influence is still vastly stronger than is commonly understood. The expansion of Roman affairs had already begun to force the courts to substitute in general practice the jus gentium, or principles of law which seemed to be in effect among all peoples, for the old jus civile, or custom which prevailed among Roman citizens when these were a small and comparatively homogeneous body. The responses of the jurisconsults inevitably followed and emphasized this tendency, and, under the influence of late Greek philosophy, went even further in generalization. On the conception of a jus gentium these Stoic legalists superimposed the conception of a jus naturale, or law implanted by Nature in the heart of man, to which custom and statute should, so far as possible, be made to conform. It is not too much to say that this is one of the profoundest conceptions of the human mind; but it was as dangerous as it was profound. It brought into legislation the idea conveyed by the word nature, which is, perhaps, the most treacherous that ever slipped from the tongue of man. The ambiguity came from the philosophers themselves, especially from the Stoics, who used the word at one time to signify the forces and material of the world as they actually are, and at another time to signify the world as it ought to be. There might be no great harm in this ambiguity, were it not for the resulting confusion in ideas and practice. When we repeat the Stoic command to Follow nature, we really mean, as the Stoic meant, to follow our ideal of nature. We do not mean that a man should imitate the conduct of a tiger, which is yet entirely natural, nor of men as we see them daily acting, but that he should imitate his ideal of what a man should be. The command is unmeaning enough, and has force only because it seems to render the ideal concrete by confounding it with the actual. And there is its peril. We are prone to laziness and self-flattery, and so we are constantly justifying ourselves in imitating the baser actions of men, under cover of the command to follow human nature. Is not nature what all men are doing? It would, in fact, be easy to show that in the sphere of private morals this command has resulted in a curious mixture of good and evil, by clothing custom in the garb of the ideal.

But the peril for law, as law is what we propose for other men in the mass rather than for ourselves, is of the contrary sort. Law is not a code of ideal virtues nor a guide to individual perfection, but a rule for regulating the relations of society for practical purposes. Just so soon as, in any large measure, it fails to recognize the actuality of human nature, or pronounces in conformity with an ideal of human nature, it becomes inoperative or mischievous. If law supposed that all men were honest, what would be the consequence? Or, if law demanded that all men should be kind-hearted, what would be the consequence? These are absurd extremes, but an error of really the same character has obtained a kind of philosophical excuse through the treachery of such a phrase as jus naturale. The experience and hard-headedness of the earlier jurisconsults saved the Roman law from falling a prey to an undue idealism, although it is a fact that in Byzantine times there was introduced a certain degree of humanitarianism corresponding with the decay of civilization.

But for reasons which lie deeply imbedded in the sources of our modern life, we are in great and continual peril of a humanitarianism springing from a mistaken conception of the jus naturale. The whole impetus of Rousseau's revolutionary philosophy is really derived from his reassumption and eloquent expansion of that conception. We are bound, in any clear-sighted view of the larger exigencies of the relations of man with man, to fortify ourselves against such a perversion of the institutions of government as would adapt them to the nature of man as he ought to be, instead of the nature of man as he actually is, and would relax the rigour of law, in pity for the degree of injustice inherent in earthly life. If our laws, as we call them, being indeed but attempts to copy a code we have not made and cannot repeal, are to work for progress rather than for retrogression, they must recognize property as the basis of civilization, and must admit the consequent inequality of conditions among men. They will have little or no regard for labour in itself or for the labourer in himself, but they will provide rigidly that labour shall receive the recompense it has bargained for, and that the labourer, as every other man, shall be secure in the possession of what he has received. We may try to teach him to produce more and to bargain better, but in face of all appeals of sentiment and all reasonings of abstract justice, society must learn again to-day that it cannot legislate contrary to the decrees of Fate. In this way, looking at the larger good of society, we may say that the dollar is more than the man, and that the rights of property are more important than the right to life.

So directly is the maintenance of civilization and peace and all our welfare dependent on this truth, that it is safer, in the utterance of law, to err on the side of natural inequality than on the side of ideal justice. We can go a little way, very slowly, in the endeavour to equalize conditions by the regulation of property, but the elements of danger are always near at hand and insidious; and undoubtedly any legislation which deliberately releases labour from the obligations of contract, and permits it to make war on property with impunity, must be regarded as running counter to the first demands of society. It is an ugly fact, as the world has always seen, that, under cover of the natural inequality of property, evil and greedy men will act in a way that can only be characterized as legal robbery. It is strictly within the province of the State to prevent such action so far as it safely can. Yet even here, in view of the magnitude of the interests involved, it is better that legal robbery should exist along with the maintenance of law, than that legal robbery should be suppressed at the expense of law.

No doubt there is a certain cruelty in such a principle, as there is a factor of cruelty in life itself. But it does not, in any proper sense of the word, involve the so-called economic interpretation of history. On the contrary, this principle recognizes, far more completely than does any humanitarian creed, that there is a large portion of human activity lying quite outside of the domain of physical constraint and legislation, and it is supremely jealous that the arms of government should not extend beyond their true province. All our religious feelings, our aspiring hopes, our personal morality, our conscience, our intellectual pursuits, all these things, and all they mean, lie beyond the law--all our individual life, as distinguished from the material relations of man with man, reaches far beyond the law's proper comprehension.

Our most precious heritage of liberty depends on the safeguarding of that realm of the individual against the encroachments of a legal equalitarianism. For there is nothing surer than that liberty of the spirit, if I may use that dubious word, is bound up with the inequality of men in their natural relations; and every movement in history to deny the inequalities of nature has been attended, with an effort to crush the liberty of distinction in the ideal sphere.

As the rights of property do not involve the economic interpretation of history, so neither do they result in materialism. The very contrary. For in this matter, as in all other questions of human conduct and natural forces, you may to a certain degree control a fact, but if you deny a fact it will control you. This is the plain paradox of life, and its application is everywhere. Just so sure as you see a feministic movement undertaking to deny the peculiar characteristics and limitations of the female sex, you will see this sex element overriding all bounds --you will, to take an obvious illustration, see women dressing in a manner to exaggerate their relative physical disability and their appeal to the other sex. I do not say that the feministic denial of facts is the only cause that may bring about this exaggeration; but it is indisputably one such cause. So, in a more general way, the denial of the body, or the romantic idealization of love, will end by producing a state of morbid eroticism, as history abundantly testifies. And, in another direction, the encouraging of a false sentimentality in the idea of marriage, and the slurring over of its importance as a social institution and as the basis of the family, is one of the sure ways of degrading that natural relation into something we do not like to consider.

Again, if you hear a man talking overmuch of brotherly love and that sort of thing--I do not mean the hypocrite, but the sincere humanitarian whom you and I have met and had dealings with and could name--if you hear such a man talking overmuch of serving his fellows, you are pretty sure that here is a man who will be slippery or dishonourable in his personal transactions. I do not say that there are no exceptions; but the "reformer" is a type well known. And societies are much like individual men. As soon as a nation begins to deny officially the inherent combativeness of human nature, it is in a fair way to be hurried into war. We have seen a group of obstinate humanitarians in Washington, by denying the facts of the Mexican situation, drag this country at Vera Cruz into the hypocritical but fortunately short-lived pretence of waging a "war for service." What is the cause of the evils, physical and moral, that have perplexed our Southern States since the era of Reconstruction? Certainly in large measure the humanitarian ideas of justice and equality which were in flagrant disregard of the facts of a particular stage of civilization, and made a cover for every kind of rascality and stupidity. We are seeing something of the same sort beginning to happen in Turkey and Persia and China, and are like to see it in many other places. Again, of course, I do not say that humanitarian denial of the facts is the only cause of war and national dissolution--would to heaven it were!--but it is just as certainly one such cause, or contributing cause, as it is certain that we shall hurt our fingers if we grasp a burning coal under the notion that it is not hot.

And the same paradox holds true of property. You may to a certain extent control it and make it subservient to the ideal nature of man; but the moment you deny its rights, or undertake to legislate in defiance of them, you may for a time unsettle the very foundations of society, you will certainly in the end render property your despot instead of your servant, and so produce a materialized and debased civilization. Let me illustrate what I mean by a single example of the practical working of humanitarianism. I quote from a striking article on The Law's Delays, by Professor Tyrrell Williams:

The apotheosis of debtors in America began about a hundred years ago, and has continued to the present time. In its origin the movement was humanitarian and praiseworthy. Imprisonment for debt was a reality in those days. But has not the movement gone too far, and become ridiculous? The traditional debtor is a hardworking farmer or mechanic struggling to keep the wolf from the door. Is that a true picture of the twentieth-century debtor, who glories in delay of justice? Most certainly not. The typical debtor of the twentieth century is a corporation organized along the lines that were so popular in New Jersey before Woodrow Wilson was elected Governor. The transportation and other public-service corporations are the champion debtors of America. They have been very clever. They have capitalized the ordinary American's sentimental affection for debtors. These corporate debtors are the chief beneficiaries of delay of justice in America, and they know it. That is why directly and indirectly they oppose all serious efforts to reform judicial procedure, and why they employ attorneys who are experts at "filling the record full of error."

This is but a single instance of a false sentiment opening the door to the prowling thieves of the highway. More generally, it is in accordance with the law of human nature that the sure way to foster the spirit of materialism is to unsettle the material basis of social life. Manifestly, the mind will be free to enlarge itself in immaterial interests only when that material basis is secure, and without a certain degree of such security a man must be anxious over material things and preponderantly concerned with them. And, manifestly, if this security is dependent on the rights of property, and these rights are denied or belittled in the name of some impossible ideal, it follows that the demands of intellectual leisure will be regarded as abnormal and anti-social, and that he who turns to the still and quiet life will be despised as a drone, if not hated as an enemy of the serious part of the community. There is something at once comical and vicious in the spectacle of those men of property who take advantage of their leisure to dream out vast benevolent schemes which would render their own self-satisfied career impossible.

No doubt the ideal society would be that in which every man should be filled with noble aspirations, and should have the opportunity to pursue them. But I am not here concerned with such Utopian visions, nor, as I have said, am I arguing with those who are honestly persuaded that a socialistic regime is, in our day, or any day, economically or psychologically feasible. My desire is rather to confirm in the dictates of their own reason those who believe that the private ownership of property, including its production and distribution, is, with very limited reservations, essential to the material stability and progress of society. We who have this conviction need very much to-day to strengthen ourselves against the insidious charms of a misapplied idealism; we need to remind ourselves that laws which would render capital insecure and, by a heavy income tax or other discrimination in favour of labour, would deprive property of its power of easy self-perpetuation, though they speak loudly in the name of humanity, will in the end be subversive of those conditions under which alone any true value of human life can be realized.

This, I take it, is the reason that the Church and the University as institutions have almost invariably stood as strongly reactionary against any innovations which threaten the intrenched rights of property. It is not at bottom the greed of possession that moves them--though this motive also may have entered into the attitude of their governors, as into all the theories and practices of men--nor are we justified in casting into their teeth the reproach that they who profess to stand for spiritual things are in their corporate capacity the most tenacious upholders of worldly privilege. They are guided by an instinctive feeling that in this mixed and mortal state of our existence, the safety and usefulness of the institutions they control are finally bound up with the inviolability of property which has been devoted to unworldly pursuits, and removed from the control of popular passions and hasty legislation. They are the jealous guardians of that respite from material labour which they hold in fee for those who are by character destined more specifically to be the creators and transmitters of the world's intellectual and spiritual heritage. Nor does the need of privilege end with institutions. One shudders to think of the bleak pall of anxiety and the rage of internecine materialism that would fall upon society were the laws so altered as to transfer the predominant rights from property acquired to the labour by which it is produced. For if property is secure, it may be the means to an end, whereas if it is insecure it will be the end itself.


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