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be born into the world, and to find all nature's gifts previously engrossed, and no place left for the new-comer. To reconcile people to this, after they have once admitted into their minds the idea that any moral rights belong to them as human beings, it will always be necessary to convince them that the exclusive appropriation is good for mankind on the whole, themselves included. But this is what no sane human being could be persuaded of, if the relation between the land-owner and the cultivator were the same everywhere as it is in Ireland.
Landed property is felt, even by those most tenacious of its rights, to be a different thing from other property; and where the bulk of the community have been disinherited of their share of it, and it has become the exclusive attribute of a small minority, men have generally tried to reconcile it, at least in theory, to their sense of justice, by endeavoring to attach duties to it, and erecting it into a sort of magis tracy, either moral or legal. But if the state is at liberty to treat the possessors of land as public functionaries, it is only going one step farther to say, that it is at liberty to discard them. The claim of the land-owners to the land is altogether subordinate to the general policy of the state. The principle of property gives them no right to the land, but only a right to compensation for whatever portion of their interest in the land it may be the policy of the state to deprive them of. To that, their claim is indefeasible. It is due to land-owners, and to owners of any property whatever, recognized as such by the state, that they should not be dispossessed of it without receiving its full pecuniary value, or an annual income equal to what they derived from it. This is due on the general principles on which property rests. If the land was bought with the produce of the labor and abstinence of themselves or their ancestors, compensation is due to them on that ground; even if otherwise, it is still due on the ground of prescription. Nor can it ever be necessary for accomplishing an object by which the community altogether will gain, that a particular portion of the community should be immolated. When the property is of a kind to which peculiar affections attach themselves, the compensation ought to exceed a bare pecuniary equivalent. But, subject to this proviso, the state is at liberty to deal with landed property as the general interests of the community may require, even to the extent, if it so happen, of doing with the whole, what is done with a part, whenever a bill is passed for a railroad or a new street. I do not pretend that occasions can often arise in which so drastic a measure would be fit to be taken into serious consideration, or that it should be thought of as anything else than an extreme remedy, which may happen to be the only suitable one for an extreme case. But even if this ultimate prerogative of the state could never require to be actually exercised, it ought nevertheless to be asserted, because the principle which permits the greater of two things permits the less, and though to do all which the principle would sanction might never be advisable, to do much less than all, not only may be so, but often is so in a very high degree. The community has too much at stake in the proper cultivation of the land, and in the conditions annexed to the occupancy of it, to leave these things to the discretion of a class of persons called landlords, when they have shown themselves unfit for the trust. The legislature, which if it pleased might convert the whole body of landlords into fundholders or pensioners, might, a fortiori, commute the average receipts of Irish land-owners into a fixed rent charge, and raise the tenants into proprietors; supposing always (without which these acts would be nothing better than robbery) that the full market value of the land was tendered to the landlords, in case they preferred that to accepting the conditions proposed. There will be another place for discussing the various VOL. 1.
modes of landed property and tenure, and the advantages and inconveniences of each ; in this chapter our concern is with the right itself, the grounds which justify it, and (as a corollary from those grounds) the conditions by which it should be limited. To me it seems almost an axiom that property in land should be interpreted strictly, and that the balance in all cases of doubt should incline against the proprietor. The reverse is the case with property in movables, and in all things the product of labor; over these, the owner's power both of use and of exclusion should be absolute, except where positive evil to society would result from it; but in the case of land, no exclusive right should be permitted in any individual, which cannot be shown to be productive of positive good. To be allowed any exclusive right at all, over a portion of the common inheritance, while there are others who have no portion, is already a privilege. No quantity of movable goods which a person can acquire by his labor, prevents others from acquiring the like by the same means; but, from the very nature of the case, whoever owns land, keeps it from somebody else. The privilege, or monopoly, is only defensible as a necessary evil; it becomes an injustice when carried to any point to which the compensating good does not follow it.
For instance, the exclusive right to the land for purposes of cultivation does not imply an exclusive right to it for purposes of access; and no such right ought to be recognized, except to the extent necessary to protect the produce against damage, and the owner's privacy against invasion. The pretension of two Dukes to shut up a part of the Highlands, and exclude the rest of mankind from many square miles of mountain scenery to prevent disturbance to wild animals, is an abuse; it exceeds the legitimate bounds of landed property. When land is not intended to be cultivated, no good reason can in general be given for its being private property at all; and if any man
is permitted to call it his, he ought to know that he holds it by sufferance of the community, and on an implied condition that his ownership, since it cannot possibly do them any good, at least shall not deprive them of any, which they could have derived from the land if it had been unappropriated. Even in the case of cultivated land, a man whom, though only one among millions, the law permits to hold thousands of acres as his single share, is not entitled to think that all this is given to him to use and abuse, and deal with as if it concerned nobody but himself. The rents or profits which he can obtain from it are his, and his only; but with regard to the land, in everything which he does with it, and in every thing which he abstains from doing, he is morally bound, and should, whenever the case admits, be legally compelled, to make his interest and pleasure consistent with the public good. The species at large still retains, of its original claim to the soil of the planet which it inhabits, as much as is compatible with the purposes for which it has parted with the remainder.
$ 7. Beside property in the produce of labor, and property in land, there are other things which are or have been subjects of property, in which no proprietary rights ought to exist at all. But as the civilized world has in general made up its mind on most of these, there is no necessity for dwelling on them in this place. At the head of them, is property in human beings. It is almost superfluous to observe, that this institution can have no place in any society even pretending to be founded on justice, or on fellowship between human creatures. But, iniquitous as it is, yet, when the state has expressly legalized it, and human beings, for generations, have been bought, sold, and inherited under sanction of law, it is another iniquity to abolish the property without full compensation. This wrong was avoided by the great measure of justice in 1833, probably the most virtuous act, as well as one of the most practically beneficent, ever done collectively by a nation. Other examples of property which ought not to have been created, are properties in public trusts; such as judicial offices under the old French regime, and the heritable jurisdictions which, in countries not wholly emerged from feudality, pass with the land. Our own country affords, as cases in point, that of a commission in the army, and of an advowson, or right of nomination to an ecclesiastical benefice. A property is also sometimes created in a right of taxing the public; in a monopoly, for instance, or other exclusive privilege. These abuses prevail most in semi-barbarous countries, but are not without example in the most civilized. In France there are several important trades and professions, including notaries, attorneys, brokers, appraisers, printers, even bakers and butchers, of which the numbers are limited by law. The brevet or privilege of one of the permitted number consequently brings a high price in the market. There is in England a court of justice (the Palace Court at Westminster) in which the number of barristers permitted to practice is restricted to four, who buy their places from their predecessors. In these various cases, compensation probably could not with justice be refused, on the abolition of the privilege. There are other cases in which this would be more doubtful. The question would turn upon what, in the peculiar circumstances, was sufficient to constitute prescription; and whether the legal recognition which the abuse had obtained, was sufficient to constitute it an institution, or amounted only to an occasional license. It would be absurd to claim compensation for losses caused by changes in a tariff, a thing confessedly variable from year to year; or for monopolies like those granted to individuals by Queen Elizabeth, favors of a despotic authority, which the power that gave was competent at any time to recall.