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Are Property Rights the Result of Natural Law or Social Convention?

Richard Hildreth's Theory of Morals, Part Three

Hildreth examines the origins of private property and presents his Jacksonian audience with a critique of slavery: it is simply repugnant to a free people.

Editor’s Note

Our third selection from Richard Hildreth’s Theory of Morals continues to build a “forensic” approach to ethics. In his presentation of a more fully articulated practical ethic, Hildreth begins with an analysis of property and property rights, both of which he believed were social conventions. Following Bentham, Hildreth treats property as a “basis of expectation” for social behavior, a sort of social technology allowing humans to efficiently allocate scarce resources by establishing clear rules for delineating what material is reserved for whom and under what conditions. Societies differ greatly over the specific application of this “social technology,” and even individuals within a particular culture disagree a great deal over what rules should govern and how they should be implemented. The practical, forensic ethicist should not bother so much, however, with the details of any particular property rights scheme. The important thing for one seeking to build an ethical system from actual human practice was that wherever scarcity exists, people attempt to socially allocate scarce resources. Some of these methods will no doubt be better than others at satisfying human desires.

To illustrate the point, Hildreth first notes the obvious and overwhelming social benefits accruing from a liberal private property regime like the one surrounding him in Jacksonian America. Next, he isolates the most powerful example of positively malevolent private property—itself also surrounding him in Jacksonian America—the institution of southern chattel slavery. Hildreth spent a considerable amount of time touring the American South, and though in every respect a Yankee, he was well aware of exactly how cruel and regressive slavery was.

Hildreth then pivots to argue that though individuals owe obedience to good governments and their laws, so soon as government becomes injurious to the rights and well-beings of citizens their reciprocal bonds of loyalty and support were dissolved. Hildreth notes that mystical systems of ethics often fall prey to—or are entirely designed to support—the ruling regime. It is a relatively easy feat for a powerful monarch or a magnetic office-holder to convince people that their will is the will of Heaven, and under such influences ethics is not a reasoned enterprise in the discovery of moral truths. Yet even divine-right kings could not dictate the natural laws of economics or sociology; they could not, as it were, make water flow uphill without significant deadweight loss to the public welfare. Forensically good governments, therefore, recognized neither slavery nor any other sort of servitude of one class of human beings to another. The individual and social costs were simply too vast for a benevolent society to accept.

Anthony Comegna, PhD
Assistant Editor for Intellectual History

Theory of Morals: An Inquiry Concerning the Law of Moral Distinctions and the Variations and Contradictions of Ethical Codes (Excerpts)

By Richard Hildreth. Boston: Charles C. Little and James Brown. 1844.

Part Second. Solution of Moral Problems, and Conciliation of Ethical Codes.

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 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 per sons of infidels and heretics, are the rightful spoil of orthodox believers; and robberies the most atrocious and extensive have been committed under this pre text, 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.

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 every where 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 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.  lt 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 fellow men, 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 them objects of hatred, upon the ground that they are heathens, savages, destitute of the ordinary degree of humanity, and certain, if they are set free, to murder their masters; an inferior order of beings, made to be slaves, incapable of civilization, not able to take care of themselves, and, therefore, or for some other reasons, proper objects of hatred and contempt; it is only while malevolence is kept up by some such artifices, that slavery can continue to exist. Hence the great anxiety evinced by slave holders and their friends to foster such prejudices and to diffuse them; and hence the destruction of these prejudices ought to be the chief object of those who aim at the abolition of slavery.

10. It appears, then, that while the respect which is paid to property in general originates in the sentiment of benevolence, slave property owes both its origin and its continuance to the sentiment of malevolence, —a very essential distinction between these two kinds of property, —a difference which puts them in decided opposition to each other.

11. All who have ceased to be influenced by those sentiments of malevolence towards the enslaved to which slavery owes its origin and its continuance, or to whom the slave-owners are not, for some reason or other, objects of peculiar sympathy, are apt to feel a high degree of commiseration for the enslaved, and a corresponding degree of indignation against the masters; a commiseration and an indignation, which reach, in general, the highest pitch, with those whose knowledge is confined to the simple fact, that the one party are slaves, and the other party masters; but who, beyond that fact, have no personal or precise knowledge of either party.  The degraded condition of the slaves, if it makes them objects of pity, is very apt, at the same time, to make them objects of contempt; while the superior condition of the masters, their wealth, authority, leisure, education, and manners, often present them to us in a very agreeable light.  Hence it happens that those who have a personal knowledge of masters and their slaves, not unfrequently expend all their benevolence upon the masters, while they regard the slaves with a malevolent contempt.

12. Slavery, though generally condemned by modern forensic moralists, has found numerous apologists and defenders among the mystics.  They tell the slave that since God has seen fit to place him in that condition, it is his duty to be contented with his lot.  Rebellion against his master, or any attempt to evade or to shake off the burdens imposed upon him, is neither more nor less than rebellion against God. The greater part of the Christian mystical doctors insist, and, critically speaking, with apparent reason, that the Christian scriptures, and especially the apostle Paul, give countenance to slavery; and it is held, or at least, till very lately, it has been held by the highest authorities among them, that there is no in consistency between ,the characters of a saint and a slave-trader.

Chapter IV. Political Duties.

1. We come now to the consideration of a class of duties of the most interesting and important character, called Political Duties. The duty of obedience to civil magistrates, and of conformity to the laws, and the correlative duty of legislators to make just and equal laws, and of magistrates to administer those laws with equity, are evidently founded upon the benefits which society derives from a settled government, and from just laws faithfully administered and submissively obeyed.

Hence, in all forensic codes of morals, when the government is administered in such a way as to produce more harm than good, or much less good than it might or ought to produce; when laws are enacted injurious to the public; when government, instead of contributing to the benefit of all, is made an instrument for elevating or enriching one or a few at the expense of the many, civil obedience is no longer esteemed a duty; in fact, it may become a duty to disobey, and even to rebel.

It is, however, a matter so nice and difficult to determine when that point is reached which makes rebellion, civil war, and the danger of anarchy preferable to further submission to a tyrannical government and unjust [and] unequal laws, — that all cases of disobedience and rebellion give rise to infinite controversies and disputes, both as to the rectitude of the rebellion itself, and as to the motives and moral character of those engaged in it. In this case, as in several others, for want of any better test, vulgar opinion is commonly decided by the failure or success of the enterprise; though that success often depends upon circumstances impossible for those who commence a revolution to foresee…

2. Mystic morality views this matter in a very different light.  Having laid it down as a first principle, that man has been created by God, solely for God’s pleasure, hence it follows, as we have seen already, that it is man’s duty to serve God in every thought, word, and deed, and to obey him in all things.  But how are the will and wishes of God to be known, except from those to whom he specially communicates them, and whom he has established as a separate and distinct order, peculiarly devoted to his service, and the special interpreters of his will?  Hence the duty which priests have always taught, of an implicit and absolute submission on the part of the laity, not only so far as regards actions, but even as regards thoughts, to the control of the priest hood, the select and inspired interpreters of the will and pleasure of God.

3. Thus, wherever mystical doctrines have obtained complete sway, a theocratic despotism has been the result; as, at one time, in ancient Egypt, among the Jews, among the Mexicans, and Peruvians, and at present, in the territories of the Pope and the Lama.  The Saracen Caliphs, the successors of Mahomet, claimed to be God’s supreme vicegerants upon earth, and the present Turkish sultans pretend to be the successors of the caliphs, and to be entitled to exercise the same spiritual despotism.  The emperor of Russia is head of the church as well as of the state, and there can be no perfect and permanent despotism, where these functions are not united. It seems likely that theocracy prevailed at one time throughout India.  It existed among the Druids, in ancient Gaul and Britain, and, perhaps, had some influence in making the inhabitants of those countries, already accustomed to servitude, fall a prey to Roman conquerors whom the freer Germans successfully resisted.

Wherever theocracy has long prevailed, it has produced an enervating effect, against which even the fervors of religious enthusiasm, which are always limited to a few, and which soon become exhausted, furnish but a doubtful and unsteady counterbalance.  Theocracy, during the Middle Ages, came to the very point of consolidating all Europe into one great papal monarchy.  Evident traces, even very perfect specimens of it, are to be found among the most savage tribes of Africa, America, and the South Sea.  It has laid the foundation of many empires, and has prevailed so universally, that even the candid, acute, and philosophic Guizot has been seduced into the conclusion, that it is an element essential to civilization. Without stopping here to controvert that opinion, we will only remark, that wherever theocracy has been permanently established, or has approached towards establishment, as in modern Spain and Italy, and in the Spanish and Portuguese conquests and colonies, it has proved the most fatal bar to all freedom, whether of thought or action; and has congealed society to a condition almost perfectly stationary…

4. The priesthood, alike during the infant weakness of theocracy, and when it begins to tremble under the decrepitude of age, have affected to content themselves with controlling the thoughts and private actions of mankind; and have courted the aid, or at least the countenance, of the civil magistrates, by ostentatiously yielding up to them all control of civil and political affairs. Hence the doctrine, that those who have power govern by divine ordination; and that passive obedience to the powers that be, is a duty to God.  This, indeed, is an obvious and necessary deduction from that pure mysticism which ascribes all existences and events to immediate volitions of the Deity.

5. This doctrine is equally applicable to all forms of government.  When it is kings who are in power, kings have a divine right to govern.  Under aristocracies, this same divine right belongs to the aristocracy; and whenever democracy begins to rear its head, we presently begin to hear of the divine right of democracies.  Indeed, it is an ancient mystical maxim, that the voice of the people is the voice of God ; a maxim which came into vogue at a time when the priesthood were the people’s spokesmen, and when they employed the name and the strength of the people for the accomplishment of their own private ends.

The priesthood, in every age and country, readily become the advocates of those who rule de facto.  Whoever gets the power, no matter how, the priests are ready to crown and consecrate…

6. [In the early medieval period,] a divine right was claimed for the clergy, over kings as well as over the people.  At the period, however, of the great Protestant rebellion, the doctrine of the divine right of princes was revived as a means of keeping the kings of Europe faithful to the Catholic creed.  Their assistance was further secured by sharing with them a large proportion of the property and patronage of the church; an expedient which proved perfectly successful, except with Henry the Eighth of England, who was involved in a personal quarrel with the Pope, and in the four northern kingdoms of Scotland, Sweden, Norway, and Denmark, in which the nobility were at blows with their sovereigns who remained faithful to the Holy See ; and where the wealth of the church, seized upon by the rebellious nobles, made them great zealots in the Protestant cause.  

The Protestant clergy were driven, in consequence, to adopt a similar policy.  They surrendered up to their princes and supporters a great portion of the church revenues and patronage ; and soon began to outbid the Catholics, in the zeal with which they preached the doctrine of the divine right of kings.

7. Though the doctrine of the divine right of kings was of mystical origin, the doctrine of the in defeasible right of kings, which by a different road reached the same point of unlimited despotism, originated in forensic and feudal ideas.  Under the feudal system, the right of property and the right to govern were indissolubly connected; and hence by degrees these two rights came to be confounded together, as if they had been one and the same.  According to the theory of the feudal system, which was, indeed, nothing but a legal fiction, the king was the source of all power, and also the source of all property; all titles, both those of honor and jurisdiction, and those of private possession, being traced back, if not historically, at least assumptively, to his gift.  Certain jurisdictions were annexed to certain estates, and both became hereditary together. Hence sprang the idea that the king had the same right to rule that the subject had to the property he possessed ; if not, indeed, a prior and superior right; and that it would be just as great a violation of justice, if not greater, to deprive the king of his crown, as to deprive the subject of his estate. Thus arose that strong feeling of loyalty which once reigned in European monarchies, and which, yet, is not wholly extinct; and hence the political doctrines of Hobbes, who, though an innovator in philosophy, was a conservative in politics, and an enthusiastic lover of peace, greatly alarmed at the revolutionary spirit of his times.  He attempted to supply a philosophical basis for these feudal notions of kingly right, and taught, that, men having once conferred absolute authority on a prince, as the only means of escaping out of an original and natural state of anarchy and private war, the right to govern thus conferred, like the original distribution of landed property, was morally indefeasible, and for ever binding, and for precisely the same reason, to wit, the good of society.  In more modern phrase, the right of the king to govern had become a vested right, which could not be disregarded without fatal consequences.  Society, for its own benefit, had armed the prince with unlimited power, and for the sake of escaping the greater evils of perpetual anarchy, had consented beforehand to every thing he might do.  Absolute power in the prince being essential to the welfare of society, no imaginable misconduct on his part could justify resistance to his authority, since the anarchy and universal war of men against each other, which must result from the overthrow of an established government, is a far greater evil than any isolated or temporary acts of oppression.  The conclusion of Hobbes, though he was very little of a mystic, was precisely that of Luther.  Princes are not responsible to their subjects, but only to God.

But though the right to rule was morally indefeasible, that is to say, not to be defeated without a great violation of right, a great crime, Hobbes held, that, this crime being once committed, the usurper stood exactly in the position of the former ruler, and was equally entitled to implicit submission.  In this point he departed from the feudal doctrine, for the sake of escaping those destructive wars of succession which had grown out of it.

The English clergy detested Hobbes’s system of philosophy and morals not so much from any particular errors in it, as because, being founded upon reason and observation, and not upon authority, it struck a great and fatal blow at mysticism, and however narrow and erroneous in many particulars, yet tended directly and avowedly towards the emancipation of mankind from priestly domination.  But they were delighted with his conservative politics, which seemed to tend the other way; and while they repulsed him with one hand, they caressed him with the other.  This same odd procedure upon their part was repeated over again in the case of Hume, and for similar reasons.

8. Against Hobbes and the bishops, against the doctrines of the divine right, and of the indefeasible right of kings, it was argued by Locke and the English Whigs, that if kings and governments have rights as against their subjects, they have also duties towards them; duties for the performance of which they are responsible, not only to God, but to man; the non-performance of which duties works a forfeiture of their rights, and creates in the people a right of resistance and revolution.

9. But the English Whigs were aristocrats and even monarchists; the friends of liberty and equality took higher ground. They availed themselves of the admission of Hobbes, that all men are naturally equal, and following in the footsteps of Locke, presently hit upon the idea of setting up the natural rights of men, as a counterpart to the divine right of kings, priests, and nobles.  The terms, nature and natural rights, possessed a happy ambiguity very favorable to the spread of these new ideas.  With those whom the instructions of their childhood, habit, and general consent, still kept adherents to the mystic hypothesis, nature was but another name for God, and natural rights were rights emanating from the Divine will; in fact, Divine rights.  But while these terms corresponded so well to mystical ideas, they were also fully susceptible of a philosophic interpretation.  Nature, in the philosophic sense, is the apparent constitution of things, such as men perceive and feel it; and natural rights are the rights which spring out of that constitution of things.  According to the exposition of morality contained in this treatise, the Natural Rights of men are those benefits from others, and that abstinence on the part of others from the infliction of pains, which the average force of the moral sentiment gives us ground to expect. Of course, they are not fixed, but always varying with the varying average force of the sentiment of benevolence.

10. But the partisans of Natural Rights, ignorant of their true nature, that is, of the true foundation of moral distinctions, following the scholastic instead of the inductive method of reasoning, and anxious to encounter the arrogant pretensions of kings, priests, and nobles, by corresponding pretensions on the part of the people, fell into paradoxes which ex posed their doctrine to danger and disgrace.  They attempted to set aside the indefeasible rights of kings maintained by their opponents, by setting up against them the doctrine of the absolute indefeasibility of all natural rights.  Thus they pronounced life, liberty, and the pursuit of happiness to be indefeasible and unalienable rights; a doctrine which has been justly characterized, when thus broadly laid down, as utterly anarchical; since, if these rights be really indefeasible, every restraint of any kind is against right; and government itself becomes a wrong…

11. Laying aside, as untenable, the idea of indefeasible rights, whether natural or divine, either on the part of governors or the governed, the duties of good citizenship include all the duties of private morality; and in addition, a certain readiness to make sacrifices and to submit to pains and labors for the benefit of the community.  It is this disposition which we denominate Patriotism or Public Spirit.  The ordinary degree in which it exists differs greatly under different forms of government.  In theocracies and most absolute monarchies, it is hardly found at all.  Under such governments, the ruling power is all, the community is nothing; and patriotism is replaced by obedience and loyalty.  In aristocracies, among members of the privileged class, it frequently reaches a high pitch.  In democracies it becomes diffused through the whole body of the people.  In mystical systems of morals the virtue of patriotism is hardly recognized; in forensic systems the rank it holds in any given community depends upon the extent, in that community, of political rights…

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