TABLE OF CONTENTS.

NO.1 - Real and Personal Property:-	NO.2 - Three Great Principles:-
NO.3 - Possession of Property as a Natural Right:-	NO.4 - Hobbesian Theory:-
NO.5 - Lockian Theory:-	NO.6 - Labour Theory of Value:-
NO.7 - A Side Note on Inheritance:-	NO.8 - A Constitutional Right:-
NO.9 - A Note on Enterprise and Money:-	NO.10 - Slave State:-
NO.11 - Achilles' Heel of Socialism:-	NO.12 - Notes:-

William Graham Sumner1 described property as a "most fundamental and complex of social facts." Given Sumner's description, it will be no surprise to learn that the legal rules surrounding the posession and transfer of property are equally "fundamental and complex." I make no attempt to sort out these rules or to explain their complexities, here, at this place. But, I choose to say this much: property, as most do understand, is something physical, something that can be possessed. Lawyers break it down into two categories real property (land) and personal property (moveable stuff).2 Personal property, for the purposes of discussion, can be further broken down, physically speaking, into two sub-categories: into that which is easily possessed (pocket property) and that which is not so easily possessed (jumbo property). "Jumbo property" and real property are by their nature difficult or impossible to be physically possessed by a person or a group of persons; guardians are often employed to watch over these kinds of property. With personal property, possession is often good enough to show ownership. Not so with the other kinds of property. Because it cannot be physically possessed there is often difficulty in proving ownership; invariably, papers will have to be produced. (As a lawyer, I can tell you that much paper comes about when ever the question of ownership comes into play in respect to real property and/or "jumbo property.") Now, it is much easier to move paper around than the property itself (indeed, real property, by its nature, cannot be moved at all). In the final analysis, it's not the paper that is of value. The paper (more and more, now, it's just so much electronic bits and bites) is but a large social accounting system to keep track of who owns what.

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No.2 - The Three Great Principles of English Law:-

The right to possess and use property is a legal concept. It is a right which can only be lawfully obtained through the creation of the property itself, or more commonly in advanced societies, through a voluntary exchange between people by way of contract -- "I will trade you this right of mine, in exchange for that right of yours." The beauty of a contract is that it comes about on a strictly voluntary basis, with the state only getting involved to enforce the contractual obligations where they are not voluntarily discharged by the parties themselves: and, which they do, 99.9% of the time. Without the legal concept of contract nothing would move in our economy and we all would have to go back to the caves. Thus, it is, that property and the full freedom to deal with it has become essential to our very civilization.3 The right to our property and the right to do with it as we wish, within the bounds of criminal law, is something to be left entirely to the citizens. This is and has been the great canon which has guided people into civilized society. It is one of the three great principles of English law as was stated by Blackstone: First is the Security of the Person; Second, the Liberty of the Person; and, Third, "inherent in every Englishman," the Right to Hold Property.4 Though, as you will see from the arguments next following, the possession of property is a natural right -- the reason the right to hold property is one of three great principles of English law (indeed, I would assert, the great principle upon which the others rest) is, that, as a practical matter, if a person, who labours to bring property into existence or into a useful form, believes that he might lose it to the first brute who comes along -- why, then, that person will not make the effort in the first place. The end result will be that the life sustaining products, meant for the consumption of all, will, therefore, not come into existence, and; well -- without basic security, food and shelter; it is useless to talk of the value of life and liberty. Only when a nation is wealthy, will the great numbers of people of which it is composed have the basics with which to carry on in life. "The natural tenancy," as Macaulay has said, "Of every society in which property enjoys tolerable security is to increase wealth." That wealth, is created by different people in different degrees depending on their natural talents and greater opportunities, is, beside the point.5

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No.3 - Possession of Property as a Natural Right:-

Is the recognition of the right to possess property, natural, or not? Or, is it just a creature of the law? To answer these questions will take some acquaintance with the political thoughts as expressed by Thomas Hobbes and John Locke, and more generally, on one's view of the nature of man, a subject on which I have written.6

That people have a right to possess all the property which have come into their hands as the fruit of their labour or through voluntary trade, is, I submit, a natural right.7 This proposition raises the question as to what life was like to pre-civil man. We first turn to Hobbes.

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No.4 - Hobbesian Theory:-

Thomas Hobbes wrote a book, which he called the Leviathan, a treatise on the origin and ends of government. While I deal with Hobbes and his work elsewhere, I am obliged to say a few words at this place. Leviathan was written during the time of the Puritan Commonwealth, and was a defence to "secular monarchy." To Hobbes "Good" and "evil" are inconstant names applied haphazardly by different people depending on what might attract or repel them. This egotistical psychology, according to the theory, made the life of man in a pre-social state of nature, "nasty, brutish and short, a constant war of everyman with everyman." Hobbes then draws an inference or comes to a conclusion which does not follow from the premise: non sequitur. Somehow, man -- nasty, brutish and unrational, as Hobbes thought he might have been -- became rational and enlightened, such that he put himself under government. Thus, for our purposes here, it is important to understand Hobbes' view that the first principle of human behavior was egoism, or self-interest; and it was this egoism, that was the root of all social conflict. Hobbes had a nauseating view of man in his natural state (a state which, I should mention in passing, lasted millions of years); men were no better, seemingly worse, than a bunch of animals.

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No.5 - Lockian Theory:-

John Locke, while likewise justifying the existence of government, had different views than that of Hobbes. Locke, consistent with his philosophy, viewed man as naturally moral.8 The reason man would willingly contract into civil society is not to shake off his supposed brutish state, but rather that he may advance his ends (peace and security) in a more efficient manner. To achieve his ends, man gives up, in favour of the state, a certain amount of his personal power and freedom. Locke maintained that the original state of nature was happy and characterized by reason and tolerance. He further maintained that all human beings, in their natural state, were equal and free to pursue life, health, liberty, and possessions; and that these were inalienable rights.9 Pre-social man, as a moral being and as an individual, contracted out "into civil society by surrendering personal power to the ruler and magistrates," and did so as "a method of securing natural morality more efficiently." To Locke, natural justice exists and this is so whether the state exists, or not, it is just that the state might better guard natural justice.

Locke taught that individual property, along with life and liberty, was a natural right -- a right existing in the state of nature.10 The only purpose of government, according to Locke, is the preservation of these pre-existing natural rights. It follows, incidentally, that since the ownership of property is a natural right, the state, in the taking of it through taxation, save the situation where the individual consents, does so by breaching one of the three fundamental rights: the right to life, the right to liberty, and the right to property.

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No.6 - Labour Theory of Value:-

One prominent theory of value is grounded on the notion that the origin of property is labour. Labour -- the "exertion of the faculties of the body or mind" -- is, indeed, indispensable to the production of most property.11 Whether the resulting product, or commodity of production, has value, or not, may have little to do with the labour spent in bringing it into being. Value is "that amount of some commodity, medium of exchange, ... which is considered to be an equivalent for something else; a fair or adequate equivalent or return." Value is not determined by the maker or makers of the commodity; it is determined by the market.

Thomas Carlyle, an individual who had much influence during the 19th century, preached that "work is noble." To Carlyle, as was the case for Marx who came after him, labour was the real source of wealth. John Stuart Mill spread the same idea in his work Principles of Political Economy (1848) where he concluded that the production of wealth12 came about only through physical human activity. Mill concluded -- wrongly, as so many economists have done since -- that a value, as struck by the market, of any particular commodity or service, is the result of some person's or persons' labour, and not (which in fact it is) a signal to a person or persons that they have made a right (or for that matter a wrong) decision or series of decisions, encouraging others to do, or not to do likewise. Value and labour can not be equated.

So, the thought is, that a man gains a right to property because he removed something from nature and mixed his labour with it. And this is so, as long as he keeps possession of it. A right to property, by long established law, comes from the possession of it.13 Of course, he may be deprived of his possession of it, if it can be proven that he took possession of it illegally, through fraud or thief14; otherwise, he has a right to it whether he took a hand in the production of it, or not. This is a very important point which was lost on many early economists. Belief that property rights were founded in labour (Labour Theory of Value) is wrong and has led to some fruitless economic conjectures; and, worse, such a theory in the heads of collectivists, proved to be, as history will readily show, destructive to the state and the overall welfare of mankind.

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No.7 - A Side Note on Inheritance:-

Locke's theory of property, while primarily resting on the right of labour to what it produced and on the ability of man to acquire it through legitimate trading activities, allows that a person might acquire property through inheritance. This question of inheritance is one that has long bothered me as it did Blackstone:

"Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title... not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the domination of land: why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him."

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No.8 - A Constitutional Right, The Right to Property:-

The raison d'etre of government -- and, this is classic (Locke et al.) -- is for the protection of property rights. It follows, therefore, in order to legitimize government, that property rights must be incorporated as a cornerstone to a country's constitution.15 As a practical matter, such a preservation is essential. Let me make just two arguments.

The first argument: A country's economy is driven by the enterprise of its citizens; one could call it "free enterprise," but for myself, I would call it "independent enterprise," that is -- free enterprise under the rule of law. There is, as is to be taken from the lessons of history, no other production and distribution system to which a freedom loving population can turn -- absolutely, none.

The second argument, which is simply a repetition of the Lockeian theory previously set out, depends on an understanding of each of the concepts of both property and government, and the interrelationship of these two concepts. What is property? Property is a thing, short of another person, which, within the bounds of natural law, a person can use. Property comes about through the productiveness and inventiveness of a person or persons.

Governments, essential to larger societal groups, came into being at the very earliest part of human history. All any of us can do is to speculate; but many, many, years must have passed before humans went about organizing themselves beyond a simple family group, or a tribe. For the well-being of any group, - or, for that matter, an individual - the exercise of discipline and control is always necessary. It is important to accept, in these developments, that people in their primitive state (before governments came into existence) recognized the concept of personal property, viz., the right to possess and call certain property their own; and, as a corollary right, the right to defend (either themselves personally or through the agency of another, or others) against any person or group who is about to deprive them of their property. The important point, however, in this analysis, is that, on the time continuum, the notion of property precedes the notion of government. There exists, in connection with society's political organization, an unspoken compact between all the members of society, that governments are necessary and therefore formed "for the mutual preservation of their lives, liberties, and estates, which I call by the general name, property." (Locke, 1690.)

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No.9 - A Note on Enterprise and Money:-

On looking up the definition of the word enterprise one should find this, "the readiness to engage in undertakings, to obligate oneself to do something." Enterprise, is, to the right of ownership, as a house is to its foundation; enterprise is dependant on the right of ownership. Except in certain private relationships, it is in the nature of an enterprise for a person to give over his or her labour, or the fruits thereof, in exchange for the labour, or the fruits of labour, of another. The fruits of labour are objects which, if desired by a significant number of other humans, may be valuable in exchange of other objects or goods. In our system of free exchange it is goods which we exchange; more often than not, in our modern society, goods will be found only on one side of the exchange, on the other side will be found money. Money is a voucher which the population readily recognizes as an answerable call on goods in the system, now or in the future. While money is not the only voucher acting as evidence of transferable rights of ownership, it is, by far and away, in a stable system, the most readily recognizable, the most acceptable and the most transferable. Things do not work well without money; without money one is left with a very primitive and unwieldy system of barter. Money is property rights. Money only works well as a medium of exchange when people have an absolute faith in it as a way to store, even for a small amount of time, the fruits of labour. Without faith in their country's money, people will be inexorably drawn first to a barter system, and its inefficiencies; then to anarchy and revolution and the human misery attending. Thus, property rights are essential to the constitution of a country.

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No.10 - Slave State:-

When one imagines a state vested with all property rights (read the power of confiscation) and the individual with none, then one imagines the desperate state or life of the slave; it is exactly the same feeling which a member has in a collectivist setup. In an absolute state of slavery everything belongs to the master or masters. A slave is powerless and senses it; he or she has no self-esteem or ambition: and this because, by the very definition of slavery, the individual is reduced to having no property rights. A collectivist state is a state of many slaves and a few masters (as such it can never last long). The notions of property rights and slavery are inextricably tied up with one another. It follows, therefore -- if freedom, or liberty is the highest good -- that property is to belong to those, without infringing the rights of another, who acquire it.

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No.11 - Achilles' Heel of Socialism: The Lack Of Husbandry:-

No one has to be told about how pride of ownership will normally compel a person to take care of what he or she owns. It applies to items of personal use; and, also, importantly, to all capital goods in this vast economy of ours.

Arthur Seldon:

"The central advantage of capitalism over socialism in the husbandry of property is that the real owners in capitalism take care of their property; the nominal owners in socialism cannot because they do not know what they own. What belongs nominally to everyone on paper belongs in effect to no-one in practice. Coalfields, railways, schools and hospitals that are owned 'by the people' are in real life owned by phantoms. No nominal owner can sell, hire, lend, bequeath or give them to family, friends or good causes. Public ownership is a myth and a mirage. It is the false promise and the Achilles' heel of socialism. The effort required to 'care' for the 50-millionth individual share of a hospital or school owned by 50 million people, even if identifiable, would far outweigh the benefit; so it is not made, even if it could be. The task is deputed to public servants answerable to politicians who in turn are in socialist mythology answerable to the people. In this long line of communication the citizen is often in effect disenfranchised. The wonder is that the myth of public ownership continues to be propagated by men and women who aspire to political leadership."16

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No.12 - NOTES:

¹ Sumner, who taught at Yale at the turn of the 20th century, continues, "it is, therefore, the hardest to understand, the most delicate to meddle with, and the easiest to dogmatize about." This quote come from Sumner's work, The Family and Property, (1888). I have put up, and commend to you its reading, Sumner's essay, "The Forgotten Man."

² The sun and the rain are common to all men. This only because they cannot be possessed, or excluded, or improved upon.

³ "Few enjoyments are given us from the open and liberal hand of nature; but by art, labor and industry we can extract them in great abundance. Hence the ideas of property became necessary in all civil society." (Hume's Enquiry.)

⁴ As a wise judge once said, and I forget who: "It should be remembered that of the three fundamental principles which underlie government, and for which government exists, the protection of life, liberty and property, the chief of these is property; not that any amount of property is more valuable than the life or liberty of the citizen, but the history of civilization proves that, when the citizen is deprived of the free use and enjoyment of his property, anarchy and revolution follow, and life and liberty are without protection."

⁵ Emerson compared the creation of wealth to the falling of snow, "if snow fall level today, it will be blown into drifts tomorrow." (Nature, 1836.) It is, unquestionably, one of the great functions of government, to continue this metaphor, to get some strategically placed snow fences in place; but it is impossible for it to call for the right snowfall and the right winds, or to bulldoze it off of one field and onto another.

⁶ The socialist grounds his argument for state control on the Hobbesian notion that man is fundamentally corrupt (cf. John Locke's theory). And, yet, the socialist "proceeds on the assumption that all concerned will judge rightly and act fairly - will think as they ought to think, and act as they ought to act; and he assumes this regardless of the daily experiences which show him that men do neither the one nor the other, and forgetting that the complaints he makes against the existing system show his belief to be that men have neither the wisdom nor the rectitude which his plan requires them to have." (Herbert Spencer.)

⁷ "The instinct of ownership is fundamental in man's nature." (William James.)

⁸ It was to be the middle of the 19th century before the theories of evolution (theories supported by hard facts) were to be discussed and accepted; Locke's view are consistent with evolution. That which distinguishes man from the animals, is man's capacity to communicate and cooperate with one another, a capacity which evolved slowly over millions of years and which could not possibly evolve in the "solitary and brutish" world which Hobbes thought existed.

⁹ The most important question for us all is: What is the nature of man? One's view of this will completely colour his life. Shelley in Queen Mob painted two views:
"Man is of soul and body, formed for deeds
Of high resolve; on fancy's boldest wing
To sour unwearied, freelessly to turn
The keenest pangs to peacefulness, and taste
The joys which mingled sense and spirit yield;
Or he is formed for objectiveness and woe,
To gravel on the dunghill of his fears,
To shrink at every sound, ..."
Neither one of Shelley's poetic views are correct. Man in his natural state was, in this writer's opinion, proud and full of "high resolve." He had to be to survive. Life for "primitive man" was objective. He had to be to survive. The masses of "primitive man" could not long be carried away with mysticism, for him there was the reality of chasing down supper and hauling it back to his hard fought for, and defended, shelter. He hardly could afford "to gravel on the dunghill of his fears," or "to shrink at every sound." "Primitive man" was led, by his careful observations, to proper conclusions, or he died.

¹⁰ I should add that the idea that the right to property was a natural right was not something newly asserted by Locke; it was a fundamental concept of the medieval church, one that was first proposed by Aristotle. The English constitutional principle as to the right of a person to possess and own property continues to be fully supported by the Roman catholic church as it came into the 20th century. "Every man has by nature the right to possess property of his own. This is one of the Chief points of distinction between man and the lower animals." (Pope Leo XIII, Rerum novarum, May 15th, 1891.) "The right to hold property is a natural right. It is the safeguard of family life, the stimulus and the reward for work." (Pastoral Letter of the French Roman Catholic Hierarchy, Spring, 1919.)

¹¹ There are, of course, fruits of the earth that readily come to us with little or no labour; and, often, as a result have little or no value.

¹² Mill's Principles of Political Economy, "Property," Book II.

¹³ "The law does not say to a man, 'Work, and I will reward you;' but it says to him, 'Work, and by stopping the hand that would take them from you, I will insure to you the fruits of your labour, its natural and sufficient reward, which, without me, you could not preserve.' If industry creates, it is the law which preserves; it, at the first moment, we owe everything to labour, at the second, and every succeeding moment, we owe everything to the law." (Bentham's, The Principles of the Civil Code.)

¹⁴ Men -- those without any moral ties to family or community -- will resort to plunder whenever plunder is easier than work. Plunder usually will stop when it becomes more painful and more dangerous to acquire the sought after property than it is to expend the labour necessary to acquire it honestly. It is this reason that the law evolved to protect property and punish plunder. Of course, in a collectivist state, with nobody owning property then no one will be able to plunder another -- and that's true; however, in a socialistic state, almost everybody will be too busy plundering the state; and, I might add, the state will be busy plundering its citizens to make up for its losses (the whole set up soon collapses). How does it all come to this? It all starts out with the social engineers, the collectivists who from the start are driven by their Platonic ideas and the noble notion of governing people in a manner that will make them happier.

¹⁵ It explicitly exists in the written constitution of the United States; and, it exists in the unwritten constitution of Canada. That it was not written down in the Canadian Charter of 1985 should not give a moment's bother to a constitutional historian. The right to property is a constitutional right which has long existed in the English constitution, and the English constitution is one in which the Canadian constitution is firmly rooted. Further, it is to be noted, that The Constitution of 1774 (The Quebec Act) confirmed that people had a "constitution and system of laws, by which their persons and property had been protected," a provision which was specifically retained by section 26 of the 1985 Charter.
This is not a proposition which has been much appreciated by the Canadian courts. It seems, almost, that our judges have been proceeding on the basis that The Canadian Charter of Rights is the fountain-head of our constitutional rights: this is demonstratively, not so. Justice Dickson, in his written decision in the Irwin Toy case (SSC,1989) is illustrative of the point. The Supreme Court of Canada was focused on the application on a particular group who were advancing the notion that people had a Constitutional right to welfare. Dickson, J., wrote:

"What is immediately striking about this section [s. 7 of The Charter] is the inclusion of 'security of the person' as opposed to 'property'. This stands in contrast to the classic liberal formulation, adopted, for example, in the Fifth and Fourteenth Amendments in the American Bill of Rights, which provide that no person shall be deprived 'of life, liberty or property, without due process of law'. The intentional exclusion of property from s. 7, and the substitution therefor of 'security of the person' has, in our estimation, a dual effect. First, it leads to a general inference that economic rights as generally encompassed by the term 'property' are not within the perimeters of the s. 7 guarantee. This is not to declare, however, that no right with an economic component can fall within 'security of the person.' ... We do not, at this moment, choose to pronounce upon whether those economic rights [the learned judge had given examples: rights to social security, equal pay for equal work, adequate food, clothing and shelter] fundamental to human life or survival are to be treated as though they are of the same ilk as corporate-commercial economic rights."

That the Supreme Court of Canada seemingly has forgotten our constitutional roots is further seen by Lamer, J's. decision in the Prostitution Reference case (SSC,1990):

"... I pause to note that in applying principles developed under a provision of the U.S. Constitution to cases arising under our Charter, the court must take into account differences in wording and historical foundations of the two documents. (1166) ... I therefore reject the application of the American line of cases that suggest that liberty under the Fourteenth Amendment includes liberty of contract. As I stated earlier these cases have a specific historical context, a context that incorporated into the American jurisprudence certain laissez-faire principles that may not have a corresponding application to the interpretation of The Charter in the present day. ..." (1170.)

This "history" to which Justice Lamer obliquely refers is the same history for both Canada and the United States, a history I deal with in an another essay of mine, "The Canadian Constitution, A History Lesson." Lamer, J., continues and points out that the courts will not let section 7 get in the way of "the realm of general public policy dealing with broadly social, political and moral issues which are much better resolved in the political or legislative forum and not in the courts. ... It is important to note that the onus is on the person bringing the challenge to demonstrate not only the restriction of the rights but also that the state has not abided by the principles of fundamental justice." (1176.) And finally: "... it is desirable to maintain a conceptual distinction between the rights guaranteed by s. 7 and the other freedoms in The Charter." And with these pronouncements, it seems, important constitutional rights, which have taken hundreds of years to build up, are swept away.

¹⁶ Capitalism (1990) (Oxford: Blackwell, 1991) p. 150.