intervals. The true protection of individual property demands likewise the exclusion of confiscation. For, although confiscation as a punishment is to be rejected, on account of the undefined character of the punishment, depending not upon itself but upon the fact whether the punished person has any property, and how much, it is likewise inadmissible on the ground that individual property implies individual transmission, which confiscation totally destroys. It would perhaps not be wholly unjust to deprive an individual of his property as a punishment for certain crimes, if we were to allow it to pass to his heirs. We do it in fact when we imprison a man for life, and submit him to the regular prison discipline, disallowing him any benefit of the property he may possess; but it is unjust to deprive his children or other heirs of the individual property, not to speak of the appetizing effect which confiscation of property has often produced upon governments.

The English attainder and corruption of blood, so far as it affects property, is hostile to this great principle of the utmost protection of individual property, and has come down to the present times from a period of semi-communism, when the king was considered the primary owner of all land. Corruption of blood is distinctly abolished by our constitution.

Individual property is coexistent with govern

4 The subject of individual inheritance has also been treated at length in the Essays mentioned in the preceding note.

ment. Indeed, if by government be understood not only the existence of any authority, but rather the more regular and clearly established governments of states, property exists long before government, and is not its creature; as values exist long before money, and money long before government coin. We find, therefore, that the rightful and peaceful enjoyment of individual property is not mentioned as a particular item of civil liberty, as little as the institution of the family, except when communistic ideas have endangered it, or, in particular cases, when private

5 I shall not have room to give a whole chapter to the subject of communism, or, rather, a single chapter would be wholly insufficient on this interesting subject. I shall mention, therefore, this only, that I use in these pages the word communism in its common adaptation, meaning a state of society in which individual property is abolished, or in which it is the futile endeavor of the lawgiver to abolish it, such as hundreds of attempts in ancient times, in the middle ages, and in modern epochs, in Asia and in Europe have been made, among the Spartans, the anabaptists, and French communists. I do not take here the term communism in that philosophical sense, according to which every state, indeed every society whatever, necessarily consists of the two elements, of individualism and socialism. The grave error of the socialist is that he extends the principle of socialism, correct in itself, to the sphere where individualism or separatism, equally correct, ought to determine our actions. The socialist is as mistaken an enthusiast as the individualist would be, who, forgetting the element of socialism, should carry his principle to the extreme of sejunctive egotism, and insist upon a dissolution of government and a disavowal of the sovereignty of society in political matters. It is instructive to observe how also in this case the extremes meet; for works have been actually published by socialists which wind up with an entire denial of government, and an avowal of “individual sovereignty."

6 See the Constitution of the French Republic of 1848, in the appendix. It contains a paragraph acknowledging private pro

property must be given up for the public benefit, and laws or constitutions settle that it shall not be done except for equivalents given by the public through government."

Our constitution goes farther. It distinctly enacts that "no state shall pass any law impairing the obligation of contracts," which includes contracts with governments, and not only common contracts, but rights conferred for equivalents.

8

The right of self-taxation has been mentioned as a guarantee of private property, for, no matter what form taxation may assume, it must always consist in the appropriation of private property for public ends. Taxation has, however, another, purely political and highly important meaning, and we shall

perty, the family, &c. It was right to insert it, under the circumstances. If the Spartans had ever reformed their government and passed from their socialism to individualism, they would have been justified in proclaiming the sanctity of the family and the acknowledgment of private cookery, however ludicrous this might be under other circumstances.

7 Points belonging to this subject and its primordial character were pronounced with clearness in the late pleadings in the French courts, when it was endeavored to show, unfortunately in vain, that Louis Napoleon had no right, even as a dictator, to confiscate the private property of the Orleans family, and that the courts were competent to restore it to the lawful owners.

8 See judge Story, in his Commentaries on the Constitution of the United States, and his Opinion, as well as chief-justice Marshall's in the celebrated Dartmouth College case, 4 Wheaton R. 518, and also Mr. Webster's Works for his argument in that case.

The English go much farther than ourselves, not indeed in principle, but because they consider many rights, places and privileges as vested property which we by no means consider as such.

consider it under this aspect in another part of this work.

Every single subject here mentioned, monopolies," freedom of trading, freedom of home production, freedom of exchange, possession of property, taxation and confiscation-each one has a long history, full of struggle against error and government interference, running through many centuries and even a thousand years. On each a separate and instructive history might be written. Each shows the continued course of gradually, though very slowly, expanding freedom. Nor has this history of development reached its close, although it has attained to that period in which we acknowledge the highest protection of individual property as an element of our freedom.

That the so-called repudiation-it is always unfortunate and suspicious when offences that have long received their proper name, are stamped with a new and apparently innocent one; still worse it is when the error is elevated into a commendable act; and Bacon is right when he says Pessima enim res est errorum apotheosis-that repudiation is a violation of the sacred principle we treat of, no one now will have the hardihood to deny. Still, it is true that abroad it is almost universally treated erroneously, as well in regard to its causes as to its extent, the inferences drawn from it regarding republican

9 An act of Parliament, under James the First (21 James I. i. 3) prohibited all monopolies granted by the crown, after the courts had repeatedly, even under Elizabeth, declared certain monopolies null and void.

government, and the supposed novelty of the case. We could give a long list of monarchical repudiation. But we do not claim this as an excuse. It was a serious wrong, yet we totally deny the correctness of the assumed facts and inferences drawn from them by sir A. Alison.10

10 Paragraph 59, chap. i. vol. i. of History of Europe from the Fall of Napoleon to the Accession of Louis Philippe. Possibly an opportunity may offer itself some day to treat of this melancholy subject at length and in all its details.

I cannot forbear however to copy a passage of sir A. Alison, viz., "The principal states of the Union have, by common consent, repudiated their state debts as soon as the storms of adversity blew; and they have in some instances resumed the payment of their interest only when the sale of lands they had wrested from the Indians afforded them the means of doing so, without recurring to the dreaded horrors of direct taxation"-and to add that there is not one fact in this whole passage. The principal states did not repudiate; the repudiation was not by common consent; no land has been wrested from the Indians and sold for the benefit of the states, and direct taxation exists in most states; perhaps in all the states to some extent. Many of those readers who have been my pupils will remember that for a number of years I was in the habit of delivering a course of lectures on repudiation, in which, I trust, I showed no disposition to mince matters; but to repudiate the representative principle as sir Archibald does when treating of repudiation; and to present the latter as a natural consequence of republicism, transcends the bounds of reason. What element in the English polity, we would ask, is it that makes English credit so firm? Is it the monarchical? This cannot well be, for many monarchs have more than loosely dealt with credit, public funds and even private property. I believe, on the contrary, that the credit of England mainly rests on her representative, her republican principle. I do not mean to say that people lend their money, just because she has a parliament. What I mean is that the reliance of the world on the good faith of England in money matters, has been built up by her parliamentary government and would not have been built up without it.