History and Law Website Home Supreme Court and Public Policy – LS 138

U. S. Supreme Court Cases – Edited Property and Liberty – LS 140

PROFESSOR R. BEN BROWN’S LAW AND HISTORY SITE

Syllabus for LS 140 Pride and Prejudice John Locke

Property in Eve Online Rousseau on Property and Inequality

Karl Marx – The Communist Manifesto J.S. Mill – Principles of Political Economy

George – Progress and Poverty George – Ode to Liberty Finkelman -Batter Up

Popov v. Hayashi Treaty of Waitangi Johnson v. McIntosh Dawes Act

Somerset v. Stewart Bryan v. Walton State v. Mann State v. Boyce

Rose – Property Law and the Rise, Life, and Demise of Racially Restrictive Covenants

Shelley v. Kraemer Bell v. Maryland

Sumner – W hat Social Classes Owe to Each Other Veblen – Theory of the Leisure Class

Roe – Backlash Cassidy review of Thomas Piketty, Capital in the Twenty-first Century

Ostrom – Sustainable Development Boomer v. Atlantic Cement

Dan Ariely Ted Talk Dan Pink Ted Talk Pennsylvania Coal v. Mahon

Just v. Marinette County Kelo v. New London

Reich – The New Property – Read pp 771-777 Goldberg v. Kelly

Lessig – Free Culture – Read Chap. 5 Lessig – Remix (Optional Source)

SF Homeless Project

John-Jacques Rousseau

Discourse on the Origin and Foundations of InequalityDiscourse on the Origin and Foundations of Inequality

THE SECOND PART

THE first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people

simple enough to believe him, was the real founder of civil society. From how many crimes, wars and murders,

from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or

filling up the ditch, and crying to his fellows, “Beware of listening to this impostor; you are undone if you once

forget that the fruits of the earth belong to us all, and the earth itself to nobody.” But there is great probability that

things had then already come to such a pitch, that they could no longer continue as they were; for the idea of

property depends on many prior ideas, which could only be acquired successively, and cannot have been formed

all at once in the human mind. Mankind must have made very considerable progress, and acquired considerable

knowledge and industry which they must also have transmitted and increased from age to age, before they arrived

at this last point of the state of nature. …

So long as men remained content with their rustic huts, so long as they were satisfied with clothes made of the

skins of animals and sewn together with thorns and fish-bones, adorned themselves only with feathers and shells,

and continued to paint their bodies different colours, to improve and beautify their bows and arrows and to make

with sharp-edged stones fishing boats or clumsy musical instruments; in a word, so long as they undertook only

what a single person could accomplish, and confined themselves to such arts as did not require the joint labour of

several hands, they lived free, healthy, honest and happy lives, so long as their nature allowed, and as they

continued to enjoy the pleasures of mutual and independent intercourse. But from the moment one man began to

stand in need of the help of another; from the moment it appeared advantageous to any one man to have enough

provisions for two, equality disappeared, property was introduced, work became indispensable, and vast forests

became smiling fields, which man had to water with the sweat of his brow, and where slavery and misery were

soon seen to germinate and grow up with the crops.

Metallurgy and agriculture were the two arts which produced this great revolution. The poets tell us it was gold

and silver, but, for the philosophers, it was iron and corn, which first civilised men, and ruined humanity. Thus

both were unknown to the savages of America, who for that reason are still savage: the other nations also seem to

have continued in a state of barbarism while they practised only one of these arts. One of the best reasons,

perhaps, why Europe has been, if not longer, at least more constantly and highly civilised than the rest of the

world, is that it is at once the most abundant in iron and the most fertile in corn.

It is difficult to conjecture how men first came to know and use iron; for it is impossible to suppose they would of

themselves think of digging the ore out of the mine, and preparing it for smelting, before they knew what would

be the result. On the other hand, we have the less reason to suppose this discovery the effect of any accidental fire,

as mines are only formed in barren places, bare of trees and plants; so that it looks as if nature had taken pains to

keep that fatal secret from us. There remains, therefore, only the extraordinary accident of some volcano which,

by ejecting metallic substances already in fusion, suggested to the spectators the idea of imitating the natural

operation. And we must further conceive them as possessed of uncommon courage and foresight, to undertake so

laborious a work, with so distant a prospect of drawing advantage from it; yet these qualities are united only in

minds more advanced than we can suppose those of these first discoverers to have been.

With regard to agriculture, the principles of it were known long before they were put in practice; and it is indeed

hardly possible that men, constantly employed in drawing their subsistence from plants and trees, should not

readily acquire a knowledge of the means made use of by nature for the propagation of vegetables. It was in all

probability very long, however, before their industry took that turn, either because trees, which together with

hunting and fishing afforded them food, did not require their attention; or because they were ignorant of the use

of corn, or without instruments to cultivate it; or because they lacked foresight to future needs; or lastily, because

they were without means of preventing others from robbing them of the fruit of their labour.

When they grew more industrious, it is natural to believe that they began, with the help of sharp stones and

pointed sticks, to cultivate a few vegetables or roots around their huts; though it was long before they knew how to

prepare corn, or were provided with the implements necessary for raising it in any large quantity; not to mention

how essential it is, for husbandry, to consent to immediate loss, in order to reap a future gain — a precaution very

foreign to the turn of a savage’s mind; for, as I have said, he hardly foresees in the morning what he will need at

night.

The invention of the other arts must therefore have been necessary to compel mankind to apply themselves to

agriculture. No sooner were artificers wanted to smelt and forge iron, than others were required to maintain them;

the more hands that were employed in manufactures, the fewer were left to provide for the common subsistence,

though the number of mouths to be furnished with food remained the same: and as some required commodities in

exchange for their iron, the rest at length discovered the method of making iron serve for the multiplication of

commodities. By this means the arts of husbandry and agriculture were established on the one hand, and the art of

working metals and multiplying their uses on the other.

The cultivation of the earth necessarily brought about its distribution; and property, once recognised, gave rise to

the first rules of justice; for, to secure each man his own, it had to be possible for each to have something. Besides,

as men began to look forward to the future, and all had something to lose, every one had reason to apprehend that

reprisals would follow any injury he might do to another. This origin is so much the more natural, as it is

impossible to conceive how property can come from anything but manual labour: for what else can a man add to

things which he does not originally create, so as to make them his own property? It is the husbandman’s labour

alone that, giving him a title to the produce of the ground he has tilled, gives him a claim also to the land itself, at

least till harvest, and so, from year to year, a constant possession which is easily transformed into property. When

the ancients, says Grotius, gave to Ceres the title of Legislatrix, and to a festival celebrated in her honour the name

of Thesmophoria, they meant by that that the distribution of lands had produced a new kind of right: that is to say,

the right of property, which is different from the right deducible from the law of nature.

In this state of affairs, equality might have been sustained, had the talents of individuals been equal, and had, for

example, the use of iron and the consumption of commodities always exactly balanced each other; but, as there

was nothing to preserve this balance, it was soon disturbed; the strongest did most work; the most skilful turned

his labour to best account; the most ingenious devised methods of diminishing his labour: the husbandman

wanted more iron, or the smith more corn, and, while both laboured equally, the one gained a great deal by his

work, while the other could hardly support himself. Thus natural inequality unfolds itself insensibly with that of

combination, and the difference between men, developed by their different circumstances, becomes more sensible

and permanent in its effects, and begins to have an influence, in the same proportion, over the lot of individuals.

Matters once at this pitch, it is easy to imagine the rest. I shall not detain the reader with a description of the

successive invention of other arts, the development of language, the trial and utilisation of talents, the inequality of

fortunes, the use and abuse of riches, and all the details connected with them which the reader can easily supply

for himself. I shall confine myself to a glance at mankind in this new situation.

Behold then all human faculties developed, memory and imagination in full play, egoism interested, reason active,

and the mind almost at the highest point of its perfection. Behold all the natural qualities in action, the rank and

condition of every man assigned him; not merely his share of property and his power to serve or injure others, but

also his wit, beauty, strength or skill, merit or talents: and these being the only qualities capable of commanding

respect, it soon became necessary to possess or to affect them.

It now became the interest of men to appear what they really were not. To be and to seem became two totally

different things; and from this distinction sprang insolent pomp and cheating trickery, with all the numerous vices

that go in their train. On the other hand, free and independent as men were before, they were now, in consequence

of a multiplicity of new wants, brought into subjection, as it were, to all nature, and particularly to one another;

and each became in some degree a slave even in becoming the master of other men: if rich, they stood in need of

the services of others; if poor, of their assistance; and even a middle condition did not enable them to do without

one another. Man must now, therefore, have been perpetually employed in getting others to interest themselves in

his lot, and in making them, apparently at least, if not really, find their advantage in promoting his own. Thus he

must have been sly and artful in his behaviour to some, and imperious and cruel to others; being under a kind of

necessity to ill-use all the persons of whom he stood in need, when he could not frighten them into compliance,

and did not judge it his interest to be useful to them. Insatiable ambition, the thirst of raising their respective

fortunes, not so much from real want as from the desire to surpass others, inspired all men with a vile propensity

to injure one another, and with a secret jealousy, which is the more dangerous, as it puts on the mask of

benevolence, to carry its point with greater security. In a word, there arose rivalry and competition on the one

hand, and conflicting interests on the other, together with a secret desire on both of profiting at the expense of

others. All these evils were the first effects of property, and the inseparable attendants of growing inequality.

Before the invention of signs to represent riches, wealth could hardly consist in anything but lands and cattle, the

only real possessions men can have. But, when inheritances so increased in number and extent as to occupy the

whole of the land, and to border on one another, one man could aggrandise himself only at the expense of

another; at the same time the supernumeraries, who had been too weak or too indolent to make such acquisitions,

and had grown poor without sustaining any loss, because, while they saw everything change around them, they

remained still the same, were obliged to receive their subsistence, or steal it, from the rich; and this soon bred,

according to their different characters, dominion and slavery, or violence and rapine. The wealthy, on their part,

had no sooner begun to taste the pleasure of command, than they disdained all others, and, using their old slaves

to acquire new, thought of nothing but subduing and enslaving their neighbours; like ravenous wolves, which,

having once tasted human flesh, despise every other food and thenceforth seek only men to devour.

Thus, as the most powerful or the most miserable considered their might or misery as a kind of right to the

possessions of others, equivalent, in their opinion, to that of property, the destruction of equality was attended by

the most terrible disorders. Usurpations by the rich, robbery by the poor, and the unbridled passions of both,

suppressed the cries of natural compassion and the still feeble voice of justice, and filled men with avarice,

ambition and vice. Between the title of the strongest and that of the first occupier, there arose perpetual conflicts,

which never ended but in battles and bloodshed. The new-born state of society thus gave rise to a horrible state of

war; men thus harassed and depraved were no longer capable of retracing their steps or renouncing the fatal

acquisitions they had made, but, labouring by the abuse of the faculties which do them honour, merely to their

own confusion, brought themselves to the brink of ruin.

Attonitus novitate mali, divesque miserque,

Effugere optat opes; et quæ modo voverat odit.55

It is impossible that men should not at length have reflected on so wretched a situation, and on the calamities that

overwhelmed them. The rich, in particular, must have felt how much they suffered by a constant state of war, of

which they bore all the expense; and in which, though all risked their lives, they alone risked their property.

Besides, however speciously they might disguise their usurpations, they knew that they were founded on

precarious and false titles; so that, if others took from them by force what they themselves had gained by force,

they would have no reason to complain. Even those who had been enriched by their own industry, could hardly

base their proprietorship on better claims. It was in vain to repeat, “I built this well; I gained this spot by my

industry.” Who gave you your standing, it might be answered, and what right have you to demand payment of us

for doing what we never asked you to do? Do you not know that numbers of your fellow-creatures are starving,

for want of what you have too much of? You ought to have had the express and universal consent of mankind,

before appropriating more of the common subsistence than you needed for your own maintenance. Destitute of

valid reasons to justify and sufficient strength to defend himself, able to crush individuals with ease, but easily

crushed himself by a troop of bandits, one against all, and incapable, on account of mutual jealousy, of joining with

his equals against numerous enemies united by the common hope of plunder, the rich man, thus urged by

necessity, conceived at length the profoundest plan that ever entered the mind of man: this was to employ in his

favour the forces of those who attacked him, to make allies of his adversaries, to inspire them with different

maxims, and to give them other institutions as favourable to himself as the law of nature was unfavourable.

With this view, after having represented to his neighbours the horror of a situation which armed every man

against the rest, and made their possessions as burdensome to them as their wants, and in which no safety could

be expected either in riches or in poverty, he readily devised plausible arguments to make them close with his

design. “Let us join,” said he, “to guard the weak from oppression, to restrain the ambitious, and secure to every

man the possession of what belongs to him: let us institute rules of justice and peace, to which all without

exception may be obliged to conform; rules that may in some measure make amends for the caprices of fortune,

by subjecting equally the powerful and the weak to the observance of reciprocal obligations. Let us, in a word,

instead of turning our forces against ourselves, collect them in a supreme power which may govern us by wise

laws, protect and defend all the members of the association, repulse their common enemies, and maintain eternal

harmony among us.”

Far fewer words to this purpose would have been enough to impose on men so barbarous and easily seduced;

especially as they had too many disputes among themselves to do without arbitrators, and too much ambition and

avarice to go long without masters. All ran headlong to their chains, in hopes of securing their liberty; for they had

just wit enough to perceive the advantages of political institutions, without experience enough to enable them to

foresee the dangers. The most capable of foreseeing the dangers were the very persons who expected to benefit by

them; and even the most prudent judged it not inexpedient to sacrifice one part of their freedom to ensure the rest;

as a wounded man has his arm cut off to save the rest of his body.

Such was, or may well have been, the origin of society and law, which bound new fetters on the poor, and gave

new powers to the rich; which irretrievably destroyed natural liberty, eternally fixed the law of property and

inequality, converted clever usurpation into unalterable right, and, for the advantage of a few ambitious

individuals, subjected all mankind to perpetual labour, slavery and wretchedness. It is easy to see how the

establishment of one community made that of all the rest necessary, and how, in order to make head against united

forces, the rest of mankind had to unite in turn. Societies soon multiplied and spread over the face of the earth, till

hardly a corner of the world was left in which a man could escape the yoke, and withdraw his head from beneath

the sword which he saw perpetually hanging over him by a thread. Civil right having thus become the common

rule among the members of each community, the law of nature maintained its place only between different

communities, where, under the name of the right of nations, it was qualified by certain tacit conventions, in order

to make commerce practicable, and serve as a substitute for natural compassion, which lost, when applied to

societies, almost all the influence it had over individuals, and survived no longer except in some great

cosmopolitan spirits, who, breaking down the imaginary barriers that separate different peoples, follow the

example of our Sovereign Creator, and include the whole human race in their benevolence.

But bodies politic, remaining thus in a state of nature among themselves, presently experienced the

inconveniences which had obliged individuals to forsake it; for this state became still more fatal to these great

bodies than it had been to the individuals of whom they were composed. Hence arose national wars, battles,

murders, and reprisals, which shock nature and outrage reason; together with all those horrible prejudices which

class among the virtues the honour of shedding human blood. The most distinguished men hence learned to

consider cutting each other’s throats a duty; at length men massacred their fellow-creatures by thousands without

so much as knowing why, and committed more murders in a single day’s fighting, and more violent outrages in

the sack of a single town, than were committed in the state of nature during whole ages over the whole earth. Such

were the first effects which we can see to have followed the division of mankind into different communities. But

let us return to their institutions.

I know that some writers have given other explanations of the origin of political societies, such as the conquest of

the powerful, or the association of the weak. It is, indeed, indifferent to my argument which of these causes we

choose. That which I have just laid down, however, appears to me the most natural for the following reasons. First:

because, in the first case, the right of conquest, being no right in itself, could not serve as a foundation on which to

build any other; the victor and the vanquished people still remained with respect to each other in the state of war,

unless the vanquished, restored to the full possession of their liberty, voluntarily made choice of the victor for

their chief. For till then, whatever capitulation may have been made being founded on violence, and therefore ipso

facto void, there could not have been on this hypothesis either a real society or body politic, or any law other than

that of the strongest. Secondly: because the words strong and weak are, in the second case, ambiguous; for during

the interval between the establishment of a right of property, or prior occupancy, and that of political government,

the meaning of these words is better expressed by the terms rich and poor: because, in fact, before the institution

of laws, men had no other way of reducing their equals to submission, than by attacking their goods, or making

some of their own over to them. Thirdly: because, as the poor had nothing but their freedom to lose, it would have

been in the highest degree absurd for them to resign voluntarily the only good they still enjoyed, without getting

anything in exchange: whereas the rich having feelings, if I may so express myself, in every part of their

possessions, it was much easier to harm them, and therefore more necessary for them to take precautions against

it; and, in short, because it is more reasonable to suppose a thing to have been invented by those to whom it would

be of service, than by those whom it must have harmed.

James Madison

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