A blupete Essay

Notes, to blupete's Essay
"On Property Rights"

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 setup 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.


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