The Development of the Concept of Property in Political Philosophy: A Study of the Background of the Constitution

Richard McKeon
1938 Ethics: An International Journal of Social, Political, and Legal Philosophy  
E XPOSITORS of the language of political debate and of political documents derive their most spectacular elucidations either from study of the history of ideas and ideals or from examination of material conditions and individual careers. To explain the course taken by such discussions or to understand the sense of pronouncements incidental to them may involve searching out philosophic and scientific principles supposed to underlie them, or it may involve analyzing private interests and
more » ... erests and ambitions which the words conceal and by reference to which they must be understood. Both modes of interpretation, indeed, are part of the technique of the debate itself. The language of the federal Constitution and the state constitutions, the numerous letters, papers, and debates that preceded their adoption have, naturally enough, suggested to commentators the phrases and doctrines in turn of every possible political philosopher-not merely Locke, Harrington, and Montesquieu, who were well known in pre-Revolutionary America, Sidney, Milton, Grotius, and Pufendorf, who are quoted from time to time, but also Suarez, Bellarmine, and the Jesuit philosophers of the sixteenth and seventeenth centuries, who might have been known to some of the participants in the debate, the numerous French or English philosophers of the seventeenth and eighteenth centuries whose influence, whether or not there be evidence of actual influence, might have reached America, and even Thomas Aquinas, Seneca, Cicero, Aristotle, and Plato. I Read in part before the American Historical Association, Philadelphia, December 3I, I937. 297 Reproduced with permission of the University of Chicago Press. For personal, noncommercial use only. INTERNATIONAL JOURNAL OF ETHICS Liberty, justice, security, benefit, well-being, the pursuit of happiness have been clarified, as they have also been confounded, by reference to such philosophic antecedents. But other terms, which occur along with the foregoing in eighteenth-century discussions, seem to have indicated more frequently a need for investigation of current conditions than for consultation of earlier philosophers: interest, faction, passion, and always prominent among them-sometimes the general term inclusive even of life and liberty, often the fundamental term instrumenting the highest ideals-property. Since economic words are prominent even in the philosophic terminology of the time, not only is it possible to claim for any philosopher that his doctrines are reflected in the language of the Constitution, but any item of information concerning social or economic conditions of the time may be presented as indicative of the forces that determined the content of the articles of the Constitution and therefore as relevant to interpretation of the language used. Both modes of explanation encounter difficulties which are fundamentally the same and fundamentally philosophic in character. A single statement may occur in the same words in the writings of two philosophers; yet, in the differing contexts of principles and definitions of terms it may have different meanings. The discovery that philosophers have used the same words, the same phrases, the same expressions of ideals as are found in a political document is not a sound basis for the argument, even when an influence is probable, that the meanings are the same. The constant recourse of politicians to philosophic distinctions would seem to indicate that philosophic principles are influential in political statement and action, but the specific importance of the philosophic influence would be negligible if philosophers who thought themselves in opposition could be made to father the same political organization. On the other hand, if the multiplication of philosophers affords little insight into the meaning, and less into the motivation, of political debate, there is no possibility of explaining a statement by the DEVELOPMENT OF THE CONCEPT OF PROPERTY 299 social and psychological forces that led to its formulation so long as the sense of the statement is in doubt. Psychoanalysis and sociology have, to be sure, prepared us to assume that consideration of psychological and social facts is more important than study of expressed intention in the interpretation of any statement, but it is still prudent to try to determine what a writer thought he meant before determining what he must have wanted to mean. The writings of statesmen are documents, philosophic in their way, developed according to methods of investigation and disputation which statesmen share, whatever their motives or learning, with philosophers. The shifts of meanings which occur in philosophic writings, though numerous, are not indiscernible, unanalyzable, or casual. Private interest or suppressed desire may motivate the change of meaning; but the change itself appears in the terms, old or new, that are used to define and develop the altered terms. The history of political philosophy can furnish not merely other instances of statements that recur in the discussions of the Constitution but also, and even more significantly, other instances of the variety of meanings, expressed in terms which from context to context are variable but which in their specific contexts are fixed. The instability of words not controlled by scientific or dialectical means introduced into the discussions which preceded the adoption of the Constitution a sense of alteration and change which the men active in its consideration felt, although they seemed unable or unwilling to state the precise nature of the change or to indicate its causes. One of the objections most strongly urged in I787-88 against the adoption of the new Constitution was the argument that it involved a repudiation of the political theory which underlay the Revolution, the Articles of Confederation, and the state constitutions framed in the early years of independence. "We do not now admit the validity of maxims which we once delighted in," Patrick Henry told the Virginia Convention in I788. "We have since adopted maxims of a different, but more refined nature-new maxims, which 300 INTERNATIONAL JOURNAL OF ETHICS tend to the prostration of republicanism. 12 His fellow-Virginian, Richard Henry Lee, wrote: It will be considered, I believe, as a most extraordinary epoch in the history of mankind, that in a few years there should be so essential a change in the minds of men. 'Tis really astonishing that the same people, who have just emerged from a long and cruel war in defense of liberty, should now agree to fix an elective despotism upon themselves and their posterity.3 The anti-Federalist governor of New York, George Clinton, urged the citizens of that state to compare their past opinions and sentiments with the present proposed establishment. He added: .... you will find, that if you adopt it, that it will lead you into a system which you heretofore reprobated as odious. Every American Whig, not long since, bore his emphatic testimony against a monarchical government, though limited, because of the dangerous inequality that it created among citizens as relative to their rights and property . 4.. . 4 With this objection in mind Hamilton, in the second of the Letters of Caesar, stigmatized such appeals to liberty as selfish and ambitious devices by which to work on the passions and prejudices of the less discerning classes of citizens and yeomanry. It is the plan of men of this stamp to frighten the people with ideal bugbears, in order to mould them to their own purposes. The unceasing cry of these designing croakers is, My friends, your liberty is invaded! Have you thrown off the yoke of one tyrant to invest yourselves with that of another? Have you fought, bled and conquered for such a change? If you have-go-retire into silent obscurity, and kiss the rod that scourges you. To be serious: These state empirics leave no species of deceit untried to convince the unthinking people that they have power to dowhat? Why truly to do much mischief, and to occasion anarchy and 2 wild uproar. And for what reason do these political jugglers incite the peaceably disposed to such extravagant commotions? Because until the people really discover that they have power, by some outrageous act, they never can become of any importance. The misguided people never reflect during this frenzy, that the moment they become riotous, they renounce, from that moment, their independence, and commence vassals to their ambitious leaders, who instantly, and with a high hand, rob them of their consequence, and apply it to their present or future aggrandizement; nor will these tyrants over the people stick at sacrificing their good, if an advantageous compromise can be effected for themselves.5 It is not difficult to find the mark of class interest and faction in Hamilton's argument, but many men saw a doctrinal change where he saw interest, and they could express that change in terms of right, liberty, and property lost in the encroachments sanctioned by the Constitution. We are not in a position today to serve as impartial judges of this preference for terms, or as a result to appreciate the differences which the preference expresses, for by virtue of our own terminology Hamilton's doctrines have the savor of a preferred realism. Many of the fundamental terms of eighteenth-century political thought have lost their central place in the vocabulary of later philosophy, and it may seem improper to treat natural right, liberty, natural law, equality, in any other fashion than as symbols of power, as, indeed, Hamilton and many other participants in the discussions viewed them, manipulated by men seeking their own advantage, but without proper content and application in practice. Property, however, which appears in the company of those terms and is shared by both sides to the debate, has become even more prominent in later political discussions. It has retained, therefore, the semblance of a term of fixed significance and practical application, of peculiar importance consequently in determining the meaning of more nebulous terms. To translate the movement of thought that preceded and prepared for the adoption of the Constitution into terms based on solid economic 5 Ibid., p. 289. 302 INTERNATIONAL JOURNAL OF ETHICS considerations, even when the concern for property is hidden in the discussion of political principles, seems, therefore, a justifiable, if not the only, device by which to fix the basic intentions and differences in a wordy discussion. Yet, property is itself a term of no fewer meanings than the more idealistic and suspect terms that accompany it, for the meaning of property is fixed by the meanings of liberty and right no less surely than they are determined by the meaning of property. Neither the political discussion nor the significance of property in the discussion can be understood if the position opposed to the economic interpretation of Hamilton is taken to be meaningless or simply mistaken. A consideration of the many meanings which the term property had come to have in the eighteenth century and of the central place which it had come, in its various meanings, to occupy in political philosophy may have the double effect (i) of clarifying the positions taken in the discussion of the advantages and disadvantages of a federal Constitution and (2) of indicating one reason why the entire debate seems so constantly on the verge of translation into economic terms. The fundamental terms that lie, frequently unexamined, behind the consideration of property and determine its definition, are terms descriptive of the nature of man and the nature of his group organizations. There is scarcely a political treatise from the time of the Greeks to the eighteenth century that does not explicitly raise the question whether man's political powers and acts are determined by man's nature or wait for determination upon the conventions which he institutes, and the question whether his social activities in various groups-in family, household, city, and state-are the same or different. The central importance of such questions to the authors of the fundamental document of a nation dedicated to the conviction that all men are born free and equal and that property may be classified among man's inalienable rights suggests their relevance to the definition of property. The variations in meaning and in doctrinal importance which DEVELOPMENT OF THE CONCEPT OF PROPERTY 303 the term property displays in the eighteenth century are expressed in the context of these questions and reflect the long history of their discussion. Thus Locke, having, in the first of the Two Treatises on Government, refuted Sir Robert Filmer's derivation of the natural powers of kings from Adam's private dominion and paternal jurisdiction, opens the second Treatise with a careful distinction of political power from other types of power. To this purpose, I think it may not be amiss to set down what I take to be political power. That the power of a magistrate over a subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave ..... Political power, then, I take to be a right of making laws, with penalties of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and the defense of the commonwealth from foreign injury, and all this for the public good.6 Property is not instituted in the civil state, but exists in the state of nature and under the law of nature; according to that law all men are free and equal, and no one ought to harm another in his life, health, liberty, or possessions.7 But under property Locke includes life, liberty, and estate,8 and property is understood in that broad sense when he says that the chief end for which men unite into commonwealths is the preservation of their property.9 All the terms used by Clinton and Hamilton in their discussion of the Constitution-liberty, power, property, freedom-as well as many more that are equally familiar in the American discussions, occur in the preliminary remarks of Locke's Treatise. Yet, the fashion in which he combines those terms differs from their usage no less than from the usage of other philosophers, and the consequent definitions of the terms vary in the history of philosophy much as they do in the history of political debate. The problem with which Locke 6 Second Treatise on Government, chap. i, secs. 2-3. 7 Ibid., chap. ii, sec. 6. 8Ibid., chap. vii, sec. 87. 9Ibid., chap. ix, sec. I24. INTERNATIONAL JOURNAL OF ETHICS opens his work, however, the identity or difference of the qualifications and powers of the magistrate, the father, the husband, the master, and the lord, may be taken as a fixed point in the formulations of political theoryI0 about which to trace the varying histories of the terms used in the discussion of property. I Aristotle's Politics begins with a treatment of the same problem as is found in the opening pages of Locke; and his solution of it, directed against Plato, is in many points comparable with Locke's solution, directed against Filmer. "Whosoever think," he says-and the statement to which his remarks refer can be found in Plato's StatesmanII-"that the statesman, the king, the householder, and the master are the same, speak poorly, for they think that each of these differ from the others not in kind, but only in the number of their subjects .... as if there were no difference between a large household and a small state.' I2 Aristotle therefore undertakes, in accordance with his statement of the method of political science, an examination of the elements of which the state is compounded: the state is composed of many villages; the village, of many households; the household, finally, of master and slave, husband and wife, father and child. On the basis of that literal differentiation of social groups IO The problem continues to be discussed in only slightly altered terms. Pietro Bonfante (Histoire du droit roman [i919; French translation from 3d ed. by J. Carrere and F. Fournier, Paris, 1928], I, 73-75) criticizes as the doctrine prevalent during the nineteenth century the position that "le lien de l'agglomeration primitive est precis6ment celui qui unit entre eux les membres de la famille, c'est-&a-dire le lien de la parents', le lien du sang. L'organization politique nalt posterieurement dans la cite et dans l'Etat, sous l'influence du territoire, c'est-a-dire de la cohabitation stable d'individus de diverses origines a la meme place," and sets up, instead, his own doctrine that "ni la famille primitive, ni la gens, ni la tribu n'ont une nature different de l'Etat; ce sont des agglomerations nees pour l'ordre et la defense et uniformes dans leur composition." Cf. Aristotle is able to define property univocally and to place it in a context of similarly defined related terms; he is able by these means to delimit the application of the term; and finally he is able to associate the problems of property uniquely with one of the fundamental social groups, the household, and to exclude them from the problems of political philosophy. This distinction of problems into various kinds, and the consequent exclusion of problems of a given kind from a science or a discipline based on other concerns and directed to other ends, is so characteristic of the approach which Aristotle exemplified, and it enters in so deceptive a fashion into the later discussions, that clear statement of it is essential to understanding the history of the problem itself or any later phase of the debate. The early version of such distinctions may be stated in terms of the Aristotelian doctrine of causes by saying that the material cause of the state, the subject matter with which the legislator is concerned, is man in his group associations; that the final cause of the state, the purpose with which the legislator should be concerned, is the end that the citizens be enabled to live, as well as possible, under the circumstances with which the legislator deals; to this end he sets up the formal cause, as effective a social organization as possible; there remain, therefore, the means which the legislator disposes of to effect his end, the efficient cause, and these are land and other wealth. A possession (KTr-pa), according to Aristotle, is an instrument for living; property (KMriff) is a number of such instruments;13 riches (irXoiros) is a number of household and of political instruments.'4 All these are "natural," but with the invention of money an artificial standard of value is introduced; and wealth (Xpt'tara) is defined, though not in the Politics, as those things whose value is measured by money.'5 Property, so conceived, is, in Aristotle's carefully considered sense of "part," a part of '1 Ibid. 4. 1253b31-32 r4 Ibid. 8. I256b36-37. '5 Nicomachean Ethics ivy i. i.iib 306 INTERNATIONAL JOURNAL OF ETHICS the household;i6 it is not a part of the state,'7 for though states require property, the parts of the state are determined by those functions which are indispensable to the end of the state, that is, the best life possible. Aristotle lists six such functions: they concern food, arts, arms, revenue, religion, and the determination of public interest and justice. Property has no place, not even in connection with food or revenue, in the list of such political functions; it may, to be sure, become prominent in particular forms of polity: riches (7rXovros) is the ground on which the oligarchical party claims power in a state,'8 and in the Rhetoric riches is set as the end of the oligarchical state.'9 Politics is a science concerned with the actions of men, not with the making or exchange of things. The legislator's interest in property may therefore be stated in terms of two possibilities. To pursue its end the state must have a sufficiency of property: if (i) the territory of the state is self-sufficing and if the state produces all that the citizens require, the problem of the legislator is to enact and enforce such laws as will lead the citizens who happen to inhabit his state "to live in leisure at once freely and temperately" ;20 if (2) the state is not self-sufficient, either by means of its own produce or by means of commerce, the problem is not one to be solved by political devices, and the solution of it, by whomever undertaken, involves considerations of commerce and business. The problem of the statesman is not that of the acquisition of wealth (that is the problem of the household, the trader, the merchant); it is not the problem of the right use of wealth (that is the problem of the moralist); rather, the problem of the statesman is so to organize social relations, in a situation in which there is a sufficiency of property, that all will have a minimum necessary for subsistence and a maximum possibility of living well. The character of property as an efficient cause appears more clearly in the 26 Politics i. 4. I253b23 '8 Ibid. iii. 8. 128oal. 17 Ibid. vii. 8. I328a33-1I328bI5. '9 Rhetoric i. 8. 1366a5. 20 Politics vii. 5. I326b3I-32; cf. ii. 6. I265a32-33, and vii. 8. I328bi6-24. 107 De pauperie salvatoris, IV, cc. I-3 (pp. 435-41). lo8 De civili domino, I, c. i8 (ed. R. L. Poole [London, I885], pp. I24-29). Cf. De domino divino, I, C. 3, pp. I5-I9. 109 De civili domino, I, c. I, pp. I-8. '3I Second Treatise on Government, chap. xi, sec. I38. 132 Oceana, ed. S. B. Liljegren (Heidelberg, 1924), p. I4. I33 Ibid., p. 20. 348 INTERNATIONAL JOURNAL OF ETHICS things, and confine himself to a quiet and secure enjoyment of such part as should be allotted him: Thence came in Ownership, or Property; to maintain which it was necessary to consent to Laws, and a Government to put them in Execution.I34 Political power is derived from possessions and the dependence of vassals and tenants,'35 and the unica corruption political proceeds from alteration of property.136 The people of England have, by the fundamental laws, that is, by the Constitution of the. government of England, entire freedom in their lives, properties, and persons; they can suffer in these only by laws already made or to be made by Parliament.'37 The harmonious government of England, having been founded on property, could not be shaken so long as property remained where it was placed. But tenures have been changed in such fashion that the yeomanry no longer depends on the lords. The consequence is, That the natural part of our Government, which is Power, is by the means of Property in the hands of the People, whilst the artificial part, or the Parchment, in which the Form of Government is written remains the same. Now Art is a very good servant and help to Nature, but very weak and inconsiderable, when she opposes her, and fights with her: it would be a very Impar congresses, between Parchment and Power: This alone is the cause of all the disorder you heard of, and now see in England.I38
doi:10.1086/290002 fatcat:5k4d6asxhnhj3otplfgeculopy