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Nor does it improve the matter to put forward the hypothesis of a tacit and implied consent. For, in order reasonably to take for granted that a man has tacitly and validly consented to a law or custom which must needs be created, strengthened and made valid by that same consent, it is absolutely necessary that he should, at least substantially, be fully aware of the whole import and extent of that law or custom, and also that he should be at liberty to give or to refuse that consent, and whilst thus free from any kind of compulsion, should cheerfully and of his own accord accede to that law or custom.
Now, will the Compactists affirm that the majority of mankind have sufficiently reflected upon the comprehensiveness and extent of the law of individual property, that they have formed and passed an internal judgment and verdict as to its utility and advantage? Is it not true, on the contrary, that men have merely taken things as they found them, and, without any reflection or consideration, have adapted themselves to the condition of things in which they were born and brought up? How, then, in the name of logic, can they be supposed to have given an intelligent and free consent to an institution which purports to have been created and supported and maintained by such assumed agreement?—Rosmini, Fil. del Diritto, loc. cit.)
But conceding this consent, formal or tacit, on the conditions alleged by our friends the Compactists, we may inquire further into the reasons and motives which induced mankind to consent to such a division and appropriation, and ask on what ground both were allowed to be introduced ? Not certainly on the ground that they were imperatively demanded by the intrinsic nature of things, as in such case they would take their rise in the natural law; for what is imperatively demanded by the necessary relations of things springs from the nature and essence of things, results from the natural law, and is obligatory and binding independently of the consent of any one.
This is freely admitted by the Compactists, who teach that the division of goods and private ownership commend themselves very strongly to human reason, as a better, easier and safer mode of deriving from those goods all possible advantage on behalf of the individual and of society ; but they insist that both would never have been introduced, nor commanded respect, nor be obligatory, without the consent of mankind. Modern authors, therefore, conclude from this that, if private ownership was introduced, it was simply because men were willing to yield their own rights, if any, for the sake of deriving those advantages supposed to accrue to all from individual ownership.
But did such right exist ? Had those who entered upon this compact any such claim ?
Certainly not, on the principle of the Compactists. Their principle is that the natural law neither countenances the possession of permanent goods in common nor in private; that it keeps an absolutely negative, unarmed neutrality between them. Now it is asked by our modern authors what possible right, in the face of such principle, could any individual of the human race claim in the earth or in any other permanent object? The answer must be that in force of the natural law (and at the period we are alluding to there was no other law to go by), any individual of the human race, every person constituting the human family, could claim no other right in these permanent goods than such a temporary precarious tenancy and use of them as would be consistent with that perfect indifference of nature's law proclaimed by the principle. A logical consequence of this is that men in consenting that the earth and other goods should be divided and private ownership of them introduced, were giving away a right which they never had or could have, and went beyond all reasonable powers. If by the natural law they had no other right to the earth or other permanent goods than the mere temporary occupancy and use thereof, and that not absolutely and exclusively, but for as much and as long as their present wants required, it is evident that they could yield no more than what they had, and that a jus gentium establishing individual proprietorship in those objects is as vain and futile as the right of those who are presumed to have set it up. The trite axiom, Nemo dat quod non habet, applies, to the very letter, to this case. In agreeing expressly or by implication to sacrifice their own individual right, the contracting parties consented to make over what they did not possess, and stepped beyond the limit of their authority.
But suppose they did go beyond their power and created the right of individual proprietorship by the jus gentium, would such a jus exhibit that essential condition to every human law, the sanction of the natural law? On the fundamental principle of the Compactists such a jus would have no sanction of the natural law, nay, it would be in positive conflict with it.
This fundamental principle is, as we have so often remarked, that the natural jus in the matter of holding the earth and all other permanent goods is absolutely and perfectly neutral ; it neither sanctions the possession of such goods in common nor the appropriation of them by individuals. It has no preference for either. This, of course, must be understood in the limits of strict natural necessity ; in other words, suppose it is asked which of the two means is simply and absolutely necessary to man's life and welfare, considering him either individually or collectively, in the family or in society, the holding of permanent goods in
common, or their division and apportionment to distinct indviduals to be held and administered as exclusively their own?
The natural law proclaims loudly-neither the one nor the other is simply necessary. Divisio rerum facta est non jure nature ; quia jus naturæ neque eam præcipit, neque ad eam inclinat ut quid simpliciter necessarium. (Bill., loc. cit.). But it should be added that our friends the Compactists have no choice in this matter; they must hold on to the supreme indifference of the natural law on pain of having the whole of their theory scattered to the four winds of heaven. Let them give up this fundamental principle of the indifference of the natural jus, and the whole system falls to the ground. Suppose they should say the natural law demands the communion of goods; then it would follow that individual proprietorship is in flat contradiction with the natural law, and therefore unjust and immoral. On the other hand, imagine them asserting that individual ownership is imperatively prescribed by the natural law, then it would follow as a necessary inference that private property takes its rise in the natural law, and not in the consent of any human will. Whichever way they turn, by the logical necessity of their system the Compactists must necessarily maintain, as the foundation principle of their system, that the natural law, so far as prescribing any necessary means is concerned, neither commands the division of goods nor is inclined towards it, but is simply neutral.
But if such a principle is a necessity of their system, we ask by what right, by what natural justice or equity is this indifference of the natural law practically abolished to introduce a partisanship of the most odious kind, that of dividing the earth and allotting the different portions thereof to certain individuals to the exclusion of others for all future time? What has become of the neutrality of the natural law? In other words, either this boasted neutrality and indifference of the natural law is true and real and a bona fide neutrality, or it is not. If it is not, the Compactists must give up their theory; if it is, then what right have any number of men or the whole human family together to abolish this neutrality, to do away with this indifference by setting up arbitrarily and without necessity a jus which can only be defended on the assumption that there is no such theory as nature's indifference in this matter? For whatever the Compactist may assert to the contrary, this boasted indifference and neutrality is absurd, as it would render the possession of permanent goods impossible, either by the community or by individuals. If these goods were in common, one might ask, by what right do you hold these goods when nature neither demands nor countenances such manner of possession? If, on the other hand, they were held in private by distinct individuals, one might inquire by what reason or title do you hold in private as your own these goods, when nature neither prescribes nor leans towards any such means of possession ? The principle, therefore, is absurd, and whilst theoretically admitting it as a dire necessity of their theory, the Compactists practically deny it. For it is evident that they unconsciously assume the very opposite principle, whilst they are insisting on this indifference of the law of nature as to either means of possessing permanent goods; the real principle underlying their theory being that mankind collectively understood really and positively owned those goods in common according to the natural law; and that is the very reason why in that supposed convention, real or imaginary, they considered themselves authorized to agree to divide them and to set up individual proprietorship.
Without that assumption they could do nothing, because on the principle of indifference they positively and really had no right by the natural law either to own those goods in common or to possess them in private. Therefore they could not, according to the same law, enact any jus introducing either the one or the other.
But mankind, say the Compactists, did not introduce the holding of these goods in private as necessary; they did not enact a peremptory and imperative law; they introduced it simply as a means which commended itself to their common sense as the best to improve the resources of the earth, to enhance its value, and to draw from every individual all the good he can produce, and also as the most expedient means to avoid litigations, quarrels and difficulties of every kind. Strange contradiction of the Compactists! To maintain that the right of private ownership originates in a supposed consent of mankind, and not in the natural law, first they must start with admitting the absurd principle that the natural law is negatively indifferent as to either mode of possessing; then, being pushed into a corner by their adversaries, that, even admitting such a principle, men had no right to abolish it practically, because when they set up private ownership in those goods they practically did away with the neutrality of the natural law; and at this stage of the proceedings, to get over the difficulty they assert another strange theory, that the consent of mankind did not command or prescribe private ownership, but simply introduced it as a more advisable means. What is the logical consequence of this ? That such a jus so introduced, as simply more expedient and advisable, is by no manner of means obligatory and imperative, that it has no binding moral force whatever, and that no one is morally bound to respect or maintain the institution it created. And it is what Socialists and Communists have said and proclaimed loudly for the last two centuries. As individual proprietorship, they say, originates in human authority, in a jus supposed to have been created by a real or imaginary consent of mankind, in contravention of the indifference of the natural law; as that jus did not even proclaim private ownership as a simply necessary means, but as something more expedient and more admirable, we insist that no one is bound to pay any attention to it, to respect it; we affirm that the whole thing is a usurpation, a violation of the rights of all, a fraud and a theft. La propriété, c'est le vol.
This naturally introduces the other remark which modern writers make against the theory of the Compactists, which is to the effect that stealing in that system is no longer an act really and intrinsically evil, as the Church has always believed, but simply an action evil because forbidden. According to their theory, to own anything in private, to the exclusion of all other men, does not originate in the natural, intrinsic, essential relations of things, but simply in human authority. I own a piece of ground. On what authority do I own it? On the authority of the natural law? On the strength of the essential relations of things ? Certainly the contrary; otherwise the right of individual proprietorship would be derived from the natural law; I own it, therefore, on the authority of the jus gentium, which all Compactists admit to be purely and simply human law. If any one, therefore, by fraud or violence takes that piece of ground from me, he violates a human law, breaks a human enactment, goes counter to human authority, but does not contravene the natural essential relations of things. To steal. therefore, in the system of the Compactists, cannot be but a violation of a human law, a thing bad, to be sure, because prohibited by a human law, but not bad in se, of its nature, because conflicting with the essential relations of things; so much so that if the prohibition were removed or were to cease, it would no longer be evil, but either an indifferent or a praiseworthy action, according to circumstances.
Billuart is aware of the consequence resulting from his principles, and endeavors to get over it, with what success we leave our readers to determine. He proposes the objection, and it is of the simplest nature. “He who steals contravenes the natural jus. Therefore, he who owns anything does so by virtue of the same jus. Qui furatur peccat contra jus naturæ; ergo alter possidet jure naturæ.” (De Modis Acquirendi Dom. Diss. 4.) The author very summarily dispatches the whole difficulty by denying the consequence of his entimema, and insisting that from the fact that stealing is contrary to the natural law, it does not follow that the right to own private property must spring from the same law. We have already proved that it does. Comprehending under the word stealing all kind of injury done to a man's property, we may define it to be the taking or the keeping away from a man, against his