Howard I. Schwartz Ph.D.

I am going to publish here an interesting set  of quotes and study questions  related to private property rights that I have run into and written about in the course of my studies and research. Hope others find this useful.

Selections from:

• Declaration of Independence (Thomas Jefferson)
• The Virginia Bill of Rights (George Mason)
• John Locke’s, Second Treatise on Government
• Thomas Hobbes, Leviathan
• Milton Friedman, Capitalism and Freedom

Declaration of Independence, July 4, 1776

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security

Food for thought:

• Where did Jefferson get his idea of liberty?
• Is the definition of liberty central to the purpose of the Declaration of Independence?
• What is the basis for Jefferson thinking that rights are natural and self-evident?
• What is the relationship between Jefferson’s statement of self-evident rights and George Mason’s wording in the Virginia Declaration of Rights?
• How does Jefferson’s statement of rights relate to Locke’s, Hobbes’s, Mason’s and others that will be quoted here.
• if Jefferson was relying on Locke or Mason, why do you think he did not include property in his list?
• Why does Jefferson say, “we hold these truths to be self-evident”
• What notion of God authorized Jefferson’s view that  everyone is “endowed by their Creator with certain unalienable Rights”

The Virginia Declaration of Rights, June 12, 1776

Virginia’s Declaration of Rights was very possibly drawn upon by Thomas Jefferson for the opening paragraphs of the Declaration of Independence. It was widely copied by the other colonies and became the basis of the Bill of Rights. Written by George Mason, it was adopted by the Virginia Constitutional Convention on June 12, 1776.

A DECLARATION OF RIGHTS made by the representatives of the good people of Virginia, assembled in full and free convention which rights do pertain to them and their posterity, as the basis and foundation of government .

Section 1. That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Food for thought:

• How does Mason’s language relate to Locke’s? Are there differences and if so are they meaningful?
• Is Mason’s or Jefferson’s language closer to Locke’s?
• Is Mason deviating in conception from Locke’s views?

John Locke’s, Second Treatise on Government, is often thought as one of the most important modern statements of natural rights. Locke’s formulation is thought to have influenced Jefferson and Mason, among other founders.

John Locke, Second Treatise on Government II § 6 1678-83

The State of Nature has a Law of Nature to govern it, which obliges every one: and Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty or Possessions: For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order, and about his business, they are his Property, whose Workmanship they are, made to last during his, not one anothers Pleasure. And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers use, as the inferior ranks of creatures are for ours. Every one as he is bound to preserve himself, and not to quit his Station willfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb or Goods of another.

Food for thought:

• What is the role of reason in discerning our rights?
• What do you make of the fact that Locke includes Health in his list of rights?
• What is the basis here of Locke’s view that

John Locke, Second Treatise on Government, II §25 On property

Whether we consider natural Reason, which tells us, that men, being once born, have a right to their Preservation, and consequently to Meat and Drink, and such other things, as Nature affords for their subsistence: Or Revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his Sons, ‘tis very clear, that God, as King David says Psal. CXV.xvi  [115.16] has given the earth to the children of Men; given it to Mankind in common. But this being supposed, it seems to some a very great difficulty, how anyone should ever come to have a Property in any thing:…But I shall endeavour to shew, how Men might come to have a property in several parts of that which God gave to mankind in common, and that without any express Compact of all the Commoners.

Food for thought:

• How does Genesis 1.26 and Genesis 9.6 figure into Locke’s justification of private property?
• Why do you think Locke quotes Psalm 115.16 to supplement the reference to Adam and Noah?
• In Locke’s view, what is the relationship of Revelation and Reason in determining the right to property?
• Where does Locke arrive at his view that God gave nature to humans in common?
• What problem does Locke identify with the idea that God gave humans natural things in common?

John Locke, Second Treatise on Government, II§26

God, who hath given the World to Men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The Earth, and all that is therein, is given to Men for the Support and Comfort of their being. And though all the Fruits it naturally produces, and Beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature; and no body has originally a private Dominion, exclusive of the rest of Mankind, in any of them, as they are thus in their natural state: yet being given for the use of Men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular Man. The Fruit, or Venison, which nourishes the wild Indian, who knows no inclosure, and is Still a Tenant in common, must be his, and so his, i.e. a part of him that another can no longer have any right to it, before it can do him any good for the support of his Life.

Food for thought:

• What problem arises with the idea of private property if everything is given by God in common?
• How does Locke know that it must be possible for people living close to nature to take food to preserve their lives?
• What image does Locke have of native Americans and why does he invoke them in his argument?

John Locke, Second Treatise on Government, II§27

Though the Earth, and all inferior Creatures, be common to all men, yet every Man has a Property in his own Person: This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other Men: for this Labour being the unquestioned Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good, left in common for others.

Food for thought:

• How does Locke resolve the question of how what is in common can become private?
• How does labor transform something into private property? Is this a physical process?
• Is private property a social convention or a natural right?
• Are there any limitations on taking what is in common?

Thomas Hobbes, Leviathan (selections) 1651

Chapter 13

13.13 To the war of every man against every man, this also is consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force and fraud, are in war the two cardinal virtues. Justice, and injustice are none of the faculties neither of the body, nor mind. If they were, they might be in a man that were alone in the world, as well as his senses, and passions. They are qualities, that relate to men in society, not in solitude. It is consequent also to the same condition, that there be no propriety, no dominion, no mine and thine distinct; but only that to be every man’s, that he can get; and for so long, as he can kept it. And thus much for the ill condition, which man by mere nature is actually placed in; though with a possibility to come out of it, consisting partly in the passions, partly in his reason.

13.14 The passions that incline men to peace, are fear of death; desire of such things as are necessary to commodious living; and a hope by their industry to obtain them. And reason suggesteth convenient articles of peace, upon which men may be drawn to agreement. These articles, are they, which otherwise are called the Laws of Nature: whereof I shall speak more particularly, in the two following chapters.

Chapter 14

1. THE RIGHT OF NATURE, which writers commonly call jus naturale, is the liberty each man hath, to use his own power, as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reasons, he shall conceive to be the aptest means thereto.

2. By LIBERTY, is understood, according to the proper signification of the word, the absence of external impediments: which impediments, may oft take away part of a man’s power to do what he would; but cannot hinder him from using the power left him, according as his judgment, and reason shall dictate to him.

3. A law of nature (lex naturalis) is a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving the same; and to omit, that, by which he thinketh it may be best preserved. For though they that speak of this subject, use to confound jus, and lex, right and law; yet they ought to be distinguished; because right, consisteth in liberty to do, or to forbear; whereas Law, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same matter are inconsistent.

4. And because the condition of man, (as hath been declared in the precedent chapter) is a condition of war of every one against every one; in which case every one is governed by his own reason; and there is nothing he can make use of, that may not be a help unto him, in preserving his life against his enemies; it followeth, that in such a condition, every man has a right in every thing; even to one another’s body. And therefore, as long as this natural right of every man to every thing endureth, there can be no security to any man, (how strong or wise soever he be,) of living out the time, which nature ordinarily alloweth men to live. And consequently it is a precept, or general rule of reason, that every man ought to endeavor peace, as far as he has hope of obtaining it; and when he cannot obtain it, that he may seek, and use, all helps, and advantages of war. The first branch of which rule, containeth the first, and fundamental law of nature, which is, to seek peace, and follow it. The second, the sum of the right of nature; which is, by all means we can, to defend ourselves.

 Chapter 15

15. 3 But because covenants of mutual trust, where there is a fear of not performance on either part, (as hath been said in the former chapter,) are invalid, though the original of justice be the making of covenants; yet injustice actually there can be none, till the cause of such fear be taken away; which while men are in the natural condition of war, cannot be done. Therefore before the names of just, and unjust can have place, there must be some coercive power, to compel men equally to the performance of their covenants, by the terror of some punishment, greater than the benefit they expect by the breach of their covenant; and to make good that propriety, which by mutual contract men acquire, in recompense of the universal right they abandon: and such power there is none before the erection of a commonwealth. And this is also to be gathered out of the ordinary definition of justice in the Schools: for they say, that justice is the constant will of giving to every man his own. And therefore where there is no own, that is, no propriety, there is no injustice; and where there is no coercive power erected, that is, where there is no commonwealth, there is no propriety; all men having right to all things: therefore where there is no commonwealth, there nothing is unjust. So that the nature of justice, consisteth in keeping of valid covenants: but the validity of covenants begins not but with the constitution of a civil power, sufficient to compel men to keep them: and then it is also that propriety begins.

Food for thought:

• What is the state of the human being in mere nature?
• In mere nature, what rights of property do humans have? What is the justification?
• When does the legal concept of “mine” and “thine” arise?
• What type of justification of rights and property does Locke use that Hobbes lacks or ignores?
• Do Locke and Hobbes agree that everything is in common in the state of nature? In what ways are they in agreement?
• What creates property or “propriety” according to Hobbes?
• What is the relationship between a coercive power of the commonwealth and the notion of justice and injustice?

Genesis 1.26-28

²⁶ And God said, Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.

²⁷ So God created man in his own image, in the image of God created he him; male and female created he them.

²⁸ And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.

²⁹ And God said, Behold, I have given you every herb bearing seed, which is upon the face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you it shall be for meat.

³⁰ And to every beast of the earth, and to every fowl of the air, and to every thing that creepeth upon the earth, wherein there is life, I have given every green herb for meat: and it was so.

Food for thought:

• What does it mean to be made in God’s image?
• Whom is God speaking to when saying “Let us make man…”
• If we translated the verse this way, “Let us make Adam (Man)…” would that affect your interpretation?
• What does “dominion” (RDH) mean in the creation narrative?
• How is Locke interpreting Genesis 1?
• Does Hobbes care about Genesis 1?

Thomas Aquinas, Summa Theologicæ ST 2a2æ, 66, 1 (or ST II-II, 66, 1)

QUESTION 66
OF THEFT AND ROBBERY
Prologue
We must now consider the sins opposed to justice, whereby a man
injures his neighbor in his belongings; namely theft and robbery.
Under this head there are nine points of inquiry:
(1) Whether it is natural to man to possess external things?
(2) Whether it is lawful for a man to possess something as his own?
(3) Whether theft is the secret taking of another’s property?
(4) Whether robbery is a species of sin distinct from theft?
(5) Whether every theft is a sin?
(6) Whether theft is a mortal sin?
(7) Whether it is lawful to thieve in a case of necessity?
(8) Whether every robbery is a mortal sin?
(9) Whether robbery is a more grievous sin than theft?

I provide my commentary on these passages here.

ARTICLE 1. Whether it is natural for man to possess external things?

Objection 1: It would seem that it is not natural for man to possess external things. For no man should ascribe to himself that which is God’s. Now the dominion over all creatures is proper to God, according to Ps. 23:1, “The earth is the Lord’s,” etc. Therefore it is not natural for man to possess external things. My commentary

Objection 2: Further, Basil in expounding the words of the rich man (Lk. 12:18), “I will gather all things that are grown to me, and my goods,” says [Hom. in Luc. xii, 18]: “Tell me: which are thine? where did you take them from and bring them into being?” Now whatever man possesses naturally, he can fittingly call his own. Therefore man does not naturally possess external things. My commentary

Objection 3: Further, according to Ambrose (De Trin. i [De Fide, ad Gratianum, i, 1]) “dominion denotes power.” But man has no power over external things, since he can work no change in their nature. Therefore the possession of external things is not natural to man.  My commentary

On the contrary, It is written (Ps. 8:8): “Thou hast subjected all things under his feet.”

I answer that, External things can be considered in two ways. First, as regards their nature, and this is not subject to the power of man, but only to the power of God Whose mere will all things obey.

Secondly, as regards their use, and in this way, man has a natural dominion over external things, because, by his reason and will, he is able to use them for his own profit, as they were made on his account: for the imperfect is always for the sake of the perfect, as stated above (Question 64, Article 1). It is by this argument that the Philosopher proves (Polit. i, 3) that the possession of external things is natural to man. Moreover, this natural dominion of man over other creatures, which is competent to man in respect of his reason wherein God’s image resides, is shown forth in man’s creation (Gn. 1:26) by the words: “Let us make man to our image and likeness: and let him have dominion over the fishes of the sea,” etc.

My commentary

Reply to Objection 1: God has sovereign dominion over all things: and He, according to His providence, directed certain things to the sustenance of man’s body. For this reason man has a natural dominion over things, as regards the power to make use of them.

Reply to Objection 2: The rich man is reproved for deeming external things to belong to him principally, as though he had not received them from another, namely from God.

Reply to Objection 3: This argument considers the dominion over external things as regards their nature. Such a dominion belongs to God alone, as stated above.

Thomas Aquinas, Summa Theologicæ ST 2a2æ, 66, 2 (or ST II-II, 66, 2)

ARTICLE 2. Whether it is lawful for a man to possess a thing as his own?

Objection 1: It would seem unlawful for a man to possess a thing as his own. For whatever is contrary to the natural law is unlawful. Now according to the natural law all things are common property: and the possession of property is contrary to this community of goods. Therefore it is unlawful for any man to appropriate any external thing to himself.

Objection 2: Further, Basil in expounding the words of the rich man quoted above (Article 1, Objection 2), says: “The rich who deem as their own property the common goods they have seized upon, are like to those who by going beforehand to the play prevent others from coming, and appropriate to themselves what is intended for common use.” Now it would be unlawful to prevent others from obtaining possession of common goods. Therefore it is unlawful to appropriate to oneself what belongs to the community.

Objection 3: Further, Ambrose says [Serm. lxiv, de temp.], and his words are quoted in the Decretals [Dist. xlvii., Can. Sicut hi.]: “Let no man call his own that which is common property”: and by “common” he means external things, as is clear from the context. Therefore it seems unlawful for a man to appropriate an external thing to himself.

On the contrary, Augustine says (De Haeres., haer. 40): “The ‘Apostolici’ are those who with extreme arrogance have given themselves that name, because they do not admit into their communion persons who are married or possess anything of their own, such as both monks and clerics who in considerable number are to be found in the Catholic Church.” Now the reason why these people are heretics was because severing themselves from the Church, they think that those who enjoy the use of the above things, which they themselves lack, have no hope of salvation. Therefore it is erroneous to maintain that it is unlawful for a man to possess property.

I answer that, Two things are competent to man in respect of exterior things. One is the power to procure and dispense them, and in this regard it is lawful for man to possess property. Moreover this is necessary to human life for three reasons. First because every man is more careful to procure what is for himself alone than that which is common to many or to all: since each one would shirk the labor and leave to another that which concerns the community, as happens where there is a great number of servants. Secondly, because human affairs are conducted in more orderly fashion if each man is charged with taking care of some particular thing himself, whereas there would be confusion if everyone had to look after any one thing indeterminately. Thirdly, because a more peaceful state is ensured to man if each one is contented with his own. Hence it is to be observed that quarrels arise more frequently where there is no division of the things possessed. The second thing that is competent to man with regard to external things is their use. In this respect man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need. Hence the Apostle says (1 Tim. 6:17,18): “Charge the rich of this world . . . to give easily, to communicate to others,” etc.

Reply to Objection 1: Community of goods is ascribed to the natural law, not that the natural law dictates that all things should be possessed in common and that nothing should be possessed as one’s own: but because the division of possessions is not according to the natural law, but rather arose from human agreement which belongs to positive law, as stated above (Question 57, Articles 2,3). Hence the ownership of possessions is not contrary to the natural law, but an addition thereto devised by human reason.

Reply to Objection 2: A man would not act unlawfully if by going beforehand to the play he prepared the way for others: but he acts unlawfully if by so doing he hinders others from going. In like manner a rich man does not act unlawfully if he anticipates someone in taking possession of something which at first was common property, and gives others a share: but he sins if he excludes others indiscriminately from using it. Hence Basil says (Hom. in Luc. xii, 18): “Why are you rich while another is poor, unless it be that you may have the merit of a good stewardship, and he the reward of patience?”

Reply to Objection 3: When Ambrose says: “Let no man call his own that which is common,” he is speaking of ownership as regards use, wherefore he adds: “He who spends too much is a robber.”

My Commentary

Milton Friedman, Capitalism and Freedom, 15, 8

‘Underlying most arguments against the free market is a lack of belief in freedom itself,’ and ‘freedom in economic arrangements is itself a component of freedom broadly understood, so economic freedom is an end in itself.’’’

Questions for thought:

• Is Friedman making a claim from rights or the definition of freedom or from the consequences of economic freedom.
• What is his source of justification of the claim that free markets is part of the definition of freedom? Jefferson, Locke, Scripture?
• Who gets to define freedom and on what basis?
• Is freedom as Friedman defines it, from Scripture, from Jefferson, from Locke from someplace else?

On Property

Opponents of private property, write Jean Bodin in the sixteenth century, are foolhardy dreamers. “In taking away these words of Mine and Thine, they ruine the foundation of all Commonsweales, the which [sic] were chiefly established to yeeld unto every man that which is his own.” Since Bodin wrote, many men have thought that the protection of private property is in fact the primary task of governments, and that the wholesales abolition of rights of ownership is the essential characteristic of social revolution. But if justice is the rendering to each man of that which is his own, if the determination of men and thine is the principal object of political wisdom, the poltiical scientist must elucidate the principles of ownership. What reasons can a man give for calling a thing his own? Who are we to distinguish valid claims of ownership from those which are unjust? A history of the answers to these questions is a history of the theory of property.

Richard Schlatter, Private Property, The History of an Idea, 9

Cicero, De Officiis ^[1]http://www.constitution.org/rom/de_officiis.htm

I.VII {20}
Of the three remaining divisions, the most extensive in its application is the principle by which society and what we may call its “common bonds” are maintained. Of this again there are two divisions — justice, in which is the crowning glory of the virtues and on the basis of which men are called “good men”; and, close akin to justice, charity, which may also be called kindness or generosity. The first office of justice is to keep one man from doing harm to another, unless provoked by wrong; and the next is to lead men to use common possessions for the common interests, private property for their own.

{21} There is, however, no such thing as private ownership established by nature, but property becomes private either through long occupancy (as in the case of those who long ago settled in unoccupied territory) or through conquest (is in the case of those who took it in war) or by due process of law, bargain, or purchase, or by allotment. On this principle the lands of Arpinum are said to belong to the Arpinates, the Tusculan lands to the Tusculans; and similar is the assignment of private property. Therefore, inasmuch as in each case some of those things which by nature had been common property became the property of individuals, each one should retain possession of that which has fallen to his lot; and if anyone appropriates to himself anything beyond that, he will be violating the laws of human society.

{22} But since, as Plato has admirably expressed it, we are not born for ourselves alone, but our country claims a share of our being, and our friends a share; and since, as the Stoics hold, everything that the earth produces is created for man’s use; and as men, too, are born for the sake of men, that they may be able mutually to help one another; in this direction we ought to follow Nature as our guide, to contribute to the general good by an interchange of acts of kindness, by giving and receiving, and thus by our skill, our industry, and our talents to cement human society more closely together, man to man….

{25}…VIII Fine establishments and the comforts of life in elegance and abundance also afford pleasure, and the desire to secure it gives rise to the insatiable thirst for wealth. Still, I do not mean to find fault with the accumulation of property, provided it hurts nobody, but unjust acquisition of it is
always to be avoided.

{50} XVI.

The interests of society, however, and its common bonds will be best conserved, if kindness be shown to each individual in proportion to the closeness of his relationship. But it seems we must trace back to their ultimate sources the principles of fellowship and society that Nature has established among men. The first principle is that which is found in the connection subsisting between all the members of the human race; and that bond of connection is reason and speech, which by the processes of teaching and learning, of communicating, discussing, and reasoning associate men together and unite them in a sort of natural fraternity. In no other particular are we farther removed from the nature of beasts; for we admit that they may have courage (horses and lions, for example); but we do not admit that they have justice, equity, and goodness; for they are not endowed with reason or speech. {51} This, then, is the most comprehensive bond that unites together men as men and all to all; and under it the common right to all things that Nature has produced for the common use of man is to be maintained, with the understanding that, while everything assigned as private property by the statutes and by civil law shall be so held as prescribed by those same laws, everything else shall be regarded in the light indicated by the Greek proverb: “Amongst friends all things in common.”

Furthermore, we find the common property of all men in things of the sort defined by Ennius; and, though restricted by him to one instance, the principle may be applied very generally:

Who kindly sets a wand’rer on his way
Does e’en as if he lit another’s lamp by his:
No less shines his, when he his friend’s hath lit.

In this example he effectively teaches us all to bestow even upon a stranger what it costs us nothing to give.

{52} On this principle we have the following maxims: “Deny no one the water that flows by;” “Let anyone who will take fire from our fire;” “Honest counsel give to one who is in doubt;” — for such acts are useful to the recipient and cause the giver no loss.

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