not coincide with what is generally accepted. Considerations of practicability enforce this course upon the courts. The task of reconciling conflicting precedents itself gives the widest leeway for the exercise of ingenuity, and the frequency with which cases are decided by a divided opinion indicates the difficulty involved in finding a definite course. The application of legal principles is consequently far more than the readaptation of past rules to present situations. The growth of new social environments changes the force of old arguments and compels a modification of many rules. The precedent which was at first stated in a broad and abstract form is given definite meanings by concrete applications. Its logical relationship to other precedents is developed as occasion requires, and the extent of its scope is definitely determined by an interaction with other precedents. Into the old rules is infused the spirit of the new developments; the outworn and archaic elements are cast out and new elements are added. The whole system of jurisprudence is made to grow by mingling into the substance of the law the viewpoints of each successive age.

B. PRIVATE PROPERTY

320. The Development of the Right of Property'

BY GEORGE B. NEWCOMB

Private property, which we are wont to regard as essential to liberty, was the product of experiment rather than the conscious device of reason. Authorities on primitive peoples have given us the strongest reason "for thinking that property once belonged, not to the individuals, but to larger societies, composed on the patriarchal model." Actual examination of existing village communities affords support to the conjecture "that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of the community."

Progress in the history of nations is certainly marked by the recognition of private property; and by an increase, as well, in the amount and variety of individual, compared with public or unappropriated goods, as in the abstractness or far-reachingness of the individual claim. This indicates that society is unconsciously adapting itself to the necessity of altered conditions. Practices introduced

Adapted from "Theories of Property," in the Political Science Quarterly, I, 595-599. Copyright (1886).

accidentally became habitual and universal by the experience of their advantages. At first the ethical feeling of society was undoubtedly against property, since everything that tended to individualism was discouraged by the tribal feeling of self-preservation. Its establishment was a mere concession to necessity.

The right of private property was vigorously asserted by the Romans and inserted in their law. The close binding up of property with the person of the owner was due to the influence of the time when the claim to private property was founded in the personal prowess of the warrior. The principle of law referred the right of property to "first possession, labor, succession, and donation."

The life and thought of the Middle Ages were unfavorable to the development of the feeling of individual right in property, though the way was slowly preparing for this. The influence of the Christian conception of the sacredness of the human person was operating silently; the laborer was not absolutely enslaved. And the power of the military chief over his domain land gives an absolute conception of property, which is transferred to individual ownership generally after the dissolution of feudal institutions. Hence, so long as feudalism held its sway, modern property conceptions could not make way. The rights of labor could have no standing; for, "if any tenant were allowed to acquire property in the improvements effected by him, the whole feudal system of mutual dependence and obligation would have been at an end." The feudal baron expressed his title in the robber-motto: Per Deum et ferrum, obtinui. The bucolic contentment of this simpler period, the absence of trade to awaken multifarious desires, and the influence of religion, all contributed to repress economic individualism. As for the last-mentioned influence, property was regarded as an encroachment on the original rights of all the members of the human family.

Very different were the ideals of that time from those of the industrial age soon to follow: in the one, poverty canonized; in the other, poverty remanded to the fit society of stupidity and indolence! But even when the whir of industrial activity began in the Middle Ages, the spirit and method of work is still comparatively communal.

It is not necessary to point out all the causes-notably the development of industrialism, the growth of the contract system, and the increase of wealth by trade and commerce-which aided to give that strength to the feeling of right attending private possession, which has in modern times made it so self-asserting. Only it should not be overlooked that with the growth of property man became intensely attached to what he owns.

321. Property and Stewardship

BY ST. BASIL

The rich man argues, Whom am I wronging so long as I keep what is my own? Tell me, just what things are your own? From whom did you get them to make them an inseparable part of your life? You act like a man in a theater who hastens to seize all the seats and prevent the others from entering, keeping for his own use what was meant for all. How do the rich become rich save by the seizure of the things that belong to all? The earth is given in common to all men. Let no man call his own that which has been taken in excess of his needs from a common store. If everyone were to take simply what he needed, there would be no distinction of rich and poor. Were you not born naked? Shall you not return naked to the earth? Whence then the goods you now possess? If you ascribe them to fate you are godless, neither recognizing the Creator nor being grateful to the giver. But you acknowledge they are from God. Tell us, then, why you received them. Is God unfair in the equal distribution of the good things of life? Why is it that you are rich and another is in need? Isn't it wholly that you may win the reward of kindness and of faithful stewardship, and that he may be honored with the great prize of patience? Now after seizing all things in your insatiable greed, and thus shutting out others, do you really think you are wronging no man? Who is the man of greed? He who is not content with a sufficiency? Who is the thief? He who seizes everybody's goods? What are you but a greedy miser? What are you but a thief? The things you received to dispense to others, these you made your own. The man who steals a coat from another is called a thief. Is he who can clothe a naked man and will not, worthy of any other name? The bread you keep in store is the hungry man's bread. The cloak which you guard in the chest belongs to the naked man. The silver you hide away belongs to the needy. Thus it is that you are wronging as many men as you might help if you chose.

322. The Ethics of Property

BY PIERRE JOSEPH PROUDHON

If I were asked to answer the question, "What is slavery?" and I should answer in one word, "It is murder," my meaning would be "Adapted from Migne, Patrologiae Cursus Completus, Series Graeca, XXXI, col. 275 (370).

"Adapted from What Is Property? 12-13. Tr. by Benjamin R. Tucker (1840).

understood at once. No extended argument would be required to show that the power to take from a man his thought, his will, his personality, is a power of life and death; and that to enslave a man is to kill him. Why, then, to this other question, "What is property?" may I not likewise answer, "It is robbery," without the certainty of being misunderstood; the second proposition being no other than a transformation of the first?

One author teaches that property is a civil right, born of occupation and sanctioned by law; another maintains that it is a natural right, originating in labor—and both of these doctrines, totally opposed as they may seem, are encouraged and applauded. I contend that neither labor, nor occupation, nor law, can create property; that it is an effect without a cause: am I censurable?

But murmurs arise!

Property is robbery! That is the signal of revolutions.

Reader, calm yourself. I am no agent of discord, no firebrand of sedition. I anticipate history by a few days; I disclose a truth whose development we may try in vain to arrest; I write the preamble of our future constitution. This proposition which seems to you blasphemous--property is robbery-would, if our prejudices allowed us to consider it, be realized as the lightning-rod to shield us from the coming thunderbolt; but too many interests stand in the way! Alas! philosophy will not change the course of events: destiny will fulfil itself regardless of prophecy. Besides, must not justice be done and our education be finished?

323. Progress and Property?

BY PAUL ELMER MORE

Not even a Rousseau could cover up the fact of the initial inequality of men by the decree of that great Ruler or Law which makes one vessel for dishonor and another for honor. This is the so-called injustice of nature. And it is equally a fact that property. means the magnifying of that natural injustice into that which you may deplore as unnatural injustice, but which is a fatal necessity, nevertheless. This is the truth, hideous if you choose to make it so to yourself, true to those, whether the favorites of fortune or not, who are themselves true-ineluctable at least.

Unless we are willing to pronounce civilization a grand mistake, as, indeed, religious enthusiasts have ever been prone to do (and humanitarianism is more a perverted religion than a false economics), unless our material progress is all a grand mistake, we must

'Adapted from an article entitled "Property and Law," in the Unpopular Review, III, 259-268. Copyright (1915).

admit, sadly or cheerfully, that any attempt by government to ignore that inequality may stop the wheels of progress or throw the world back into temporary barbarism, but will surely not be the cause of wider or greater happiness. It is not heartlessness, therefore, to reject the sentiment of the humanitarian, and to avow that the security of property is the first and all-essential duty of a civilized community.

And we may assert this truth more bluntly, or, if you please, more paradoxically. Although, probably, the rude government of barbarians, when the person was scantily covered or surrounded by property, may have dealt principally with wrongs to persons, yet the main care of advancing civilization has been for property. One reason, of course, is that the right of life is so obvious, and in the nature of things has been so long and universally recognized. But, after all, life is a very primitive thing. Nearly all that makes it more significant to us than to the beast is associated with property. To the civilized man the rights of property are more important than the right to life.

In our private dealings with men, we may ignore the laws of civilization with no harm resulting to society; but it is different when we undertake to lay down general rules of practice. We are essentially, not legislators, but judges. And what then, you ask, are human laws? In sober sooth, it is not we who create laws; we are rather finders and interpreters of natural laws, and our decrees are merely the application of our knowledge, or our ignorance, to particular conditions. When our decrees are counter to natural law, they become at best dead letters, and at worst, agents of trouble and destruction. Law is but a rule for regulating the relations of society for practical purposes. We are bound to deal with man as he actually is. So, if our laws are to work for progress, they must recognize property as the basis of civilization, and must admit the consequent inequality of conditions among men. They will have relatively little regard for labor in itself or for the laborer in himself, but they will provide rigidly that labor shall receive the recompense it has bargained for, and that the laborer shall be secure in the possession of what he has received. We may try to teach him to produce more, or to bargain better, but in the face of all appeals of sentiment society must learn again today that it cannot legislate contrary to the decrees of Fate. Law is concerned primarily with the rights of property.

So directly is the maintenance of civilization and peace and all our welfare dependent upon this truth-that it is safer, in the ut