CHAPTER II. RIGHTS OF PROPERTY. DUTIES AND CRIMES CORRELATIVE TO THOSE RIGHTS. 1. LET us now pass to the consideration of the rights of property; of the duties which are correlative to those rights; and of the acts which are considered wrong, because they violate those rights. Property, as Bentham has ably and clearly shown, is nothing but a Basis of expectation.* The idea of property consists in the expectation of being able to draw certain advantages from the thing possessed; an expectation, which in a limited number of cases, arises anterior to all law or convention, and affords a foundation for the earliest laws; such, for example, as the expectation entertained by men even in the most savage state, of deriving advantage from the huts they have built, the weapons they have made, the fruits they have gathered, the game they have taken, and the hunting grounds which they and their fathers have possessed. But in far the greater number of cases, at least in a civilized community, that basis of expectation which constitutes property owes not only its firmness and its certainty, but its total existence, to usage and mutual understanding, in one word, to Law. 2. To disappoint this expectation, to deprive a man of that which the law has authorized him to * Theory of Legislation, Vol. I. Principles of the Civil Code, Part 1. ch. 8. regard as his property, inflicts upon that man a pain of disappointment; it cuts him off from all the pleasures which the possession of that property might have conferred;, and exposes him to suffer all those pains, against which the possession of that property might have enabled him to defend himself. An additional pain of inferiority is also attendant upon the idea of being plundered, whether by superior force or superior art. It is this latter pain which renders the idea of being cheated or robbed, even of a small amount, so very disagreeable. 3. All codes of morals, even those which exist among thieves, cheats, and robbers by profession, regard the violation of acknowledged rights of property as wrong and immoral. This, however, is only the case when those whose property is violated, are, to a greater or less degree, objects of our benevolence. If they are objects of our malevolence, the infliction of pain upon them does not give us any pain; and we may even regard the violation of their rights of property, with a certain degree of moral approbation. Such is the case of a city taken by storm, and generally, of the plunder of enemies; such is the case of pulling down the houses and destroying the furniture of those who have become obnoxious to popular prejudice. The excessive obloquy attached to some particular violations of the right of property, such, for instance, as theft, is in a great measure artificial. Upon any just estimate, the moral turpitude of fraud is quite as great as that of theft. 4. Mystical doctors have given the most unlimited license to violations of the rights of property. It was enough to point out the Canaanites as the enemies of God, to make the Jews regard them and their country as lawful plunder. Both Christian and Mussulman doctors held, if they do not still hold, that the lands, goods, and chattels, and, indeed, the very persons of infidels and heretics, are the rightful spoil of orthodox believers; and robberies the most atrocious and extensive have been committed under this pretext, both in the Old World and the New. That the saints shall inherit the earth, is a favorite doctrine with fanatics of every creed; and whenever they have possessed the slightest ability, they have always shown a corresponding disposition to carry that doctrine into practice. 5. The effect of antipathy, or malevolence, in producing disregard for rights of property, will enable us to understand how it happens, that in those countries in which property is very unequally distributed, where there are a few rich, and a vast many poor, both the poor and the rich are apt to consider each other as fair plunder. Two such classes look upon each other with mutual antipathy, and have very little disposition to respect each other's rights. Hence it happens that property is best respected and most secure in communities in which. it is most equally distributed; and that appears, also, to be the arrangement most favorable to the increase of wealth and the happiness of society.* * If any one should incline to cite England as a country in which, though wealth be very unequally distributed, the rights of property are respected, I would beg him to call to mind the enormous criminal 6. It is very unfortunate that the laws regulating the distribution of property, being founded, for the most part, upon the customs of barbarous times, and being almost always controlled by a few rich men misled by narrow views of self-interest, are almost everywhere in a very imperfect state; and do by no means correspond so exactly as they might and ought to do, with the natural basis of expectation. Hence it happens that law and equity are so often at variance; and that prejudices against the rights of property by no means destitute of plausibility, have spread far and wide through society. 7. There is one kind of property of so anomalous a character, that although it has existed in most parts of the world, and still exists in many parts of it, it has at length been wholly repudiated by the more humane and civilized nations; and that is, property in men, slaves. 8. Slavery originated in war.* Instead of killing the prostrate enemy, he was seized and made a slave of. This hardly took place till men began to keep flocks, or to cultivate the earth; because, prior to that state of things, slaves would have been a mere incumbrance. Hence it has happened, that at a certain stage of advancing civilization, slavery has been calendar of that country, composed, in a great measure, of offences against property. The laws of property are enforced and upheld in the British Isles; but it can hardly be said that the rights of property are respected. * See this subject fully treated in a work by the author of this treatise, entitled, "Despotism in America," ch. 2. See also, Theory of Politics. introduced into almost all communities. From this circumstance some reasoners have concluded, that, at a certain stage of civilization, the introduction of slavery becomes an element necessary to the further advancement of society; a conclusion which the premises do by no means warrant. It has, also, been pretended that when the prostrate enemy, instead of being killed, is made a slave of, there is a triumph of benevolence over malevolence, at which humanity ought to rejoice, and which proves that slavery originates in benevolence, and tends to the increase of human happiness.. The defenders of the African slave trade alleged that it annually saved thousands of wretches from being put to death; as though slavery were not an evil, upon any just estimate, infinitely greater than death. Benevolence, in fact, had nothing whatever to do with the introduction of slavery. It was a feeling of malevolence joined to a desire of superiority, and the expectation of advantage from the services of the slaves, that made men slaves in the first place; it is the continued operation of these same motives, that keeps them so. 9. Slavery has always been acknowledged, and for good reasons, to be the most miserable condition into which a man can fall. It subjects him to constant pains of inferiority, and to a great many pains of other kinds. It is impossible for men of ordinary humanity to inflict so great an evil upon their fellowmen, unless they be, at the same time, objects of malevolence; and it is only by keeping up against the slaves a feeling of malevolence, that is, making |