William Ogilvie, The Right of Property in Land, 1781.

ESSAY ON THE RIGHT OF PROPERTY IN LAND.

PART I.

SECTION I

Of the Right of Property in Land as derived from the Law of Nature

I. All right of property is founded either in occupancy or labour. The earth having been given to mankind in common occupancy, each individual seems to have by nature a right to possess and cultivate an equal share. This right is little different from that which he has to the free use of the open air and running water; though not so indispensably requisite at short intervals for his actual existence, it is not less essential to the welfare and right state of his life through all its progressive stages.1

2. No individual can derive from this general right of occupancy a title to any more than an equal share of the soil of his country. His actual possession of more cannot of right preclude the claim of any other person who is not already possessed of such equal share.2

3. This title to an equal share of property in land seems original, inherent, and indefeasible by any act or determination of others, though capable of being alienated by our own. It is a birthright which every citizen still retains. Though by entering into society and partaking of its advantages, he must be supposed to have submitted this natural right to such regulations as may be established for the general good, yet he can never be understood to have tacitly renounced it ' altogether; nor ought anything less to establish such alienation than an express compact in mature age, after having been in actual possession, or having had a free opportunity of entering into the possession of his equal share.

4. Every state or community ought in justice to reserve for all its citizens the opportunities of entering upon, or returning to, and resuming this their birthright and natural employment, whenever they are inclined to do so.

Whatever inconveniences may be thought to accompany this reservation, they ought not to stand in the way of essential justice.

Although at first sight such reservation may appear incompatible with the established order of societies and the permanent cultivation of the earth, yet ought it on the other hand to be presumed, that what is so plainly founded on the natural rights of men, may by wise regulations be rendered at least consistent with the best order and prosperity of societies, and with the progress of agriculture, perhaps, very beneficial to the one, and the highest encouragement to the other.

5. In many rude communities, this original right has been respected, and their public institutions accommodated to it, by annual, or at least frequent partitions of the soil, as among the ancient Germans, and among the native Irish even in Spenser's time.

Wherever conquests have taken place, this right has been commonly subverted and effaced.

In the progress of commercial arts and refinements, it is suffered to fall into obscurity and neglect.

6. Whatever has been advanced by Mr Locke and his followers, concerning the right of property in land, as independent of the laws of a higher original than they, and of a nature almost similar to that divine right of kings, which their antagonists had maintained, can only be referred to this original right of equal property in land, founded on that general right of occupancy, which the whole community has, to the territory of the State. This equal right is indeed antecedent to municipal laws, and not to be abolished by them. But it were a mistake to ascribe any such sacred and indefeasible nature to that sort of property in land which is established by the regulations of municipal law, which has its foundation in the right of labour, and may be acquired by individuals, in very unequal degrees of extent, and to the accumulation of which very few states have thought fit to set any limits.

7. That right which the landholder has to an estate, consisting of a thousand times his own original equal share of the soil, cannot be founded in the general right of occupancy, but in the j labour which he and those to whom he has succeeded, or from whom he has purchased, have bestowed on the improvement and fertilization of the soil. To this extent, it is natural and just: but such a right founded in labour cannot supersede that natural right of occupancy, which nine hundred and ninety-nine other persons have to their equal shares of the soil, in its original state. Although it may bar the claim of individuals, it cannot preclude that of the legislature, as trustee and guardian of the whole.

8. In every country where agriculture has made considerable progress, these two rights are blended together, and that which has its origin in labour is suffered to eclipse the other, founded in occupancy. As the whole extent of soil is affected by both rights at once, and not different parts by each; as these rights subsist together in the same subject, the limits by which their influence and extent may be discriminated from each other do not readily present themselves to the mind; and could these limits be distinctly ascertained, it may seem still more difficult to suggest any practicable method by which the subjects of each could be actually separated and detached.

9. That every man has a right to an equal share of the soil, in its original state, may be admitted to be a maxim of natural law. It is also a maxim of natural law, that every one, by whose labour any portion of the soil has been rendered more fertile, has a right to the additional produce of that fertility, or to the value of it, and may transmit this right to other men. On the first of these maxims depend the freedom and prosperity of the lower ranks. On the second, the perfection of the art of agriculture, and the improvement of the common stock and wealth of the community. Did the laws of any country pay equal regard to both these maxims, so as they might be made to produce their respective good effects, without intrenching on one another, the highest degree of public prosperity would result from this combination.

10. Plans for the establishment of this combination are not, it must be owned, very obvious, nor have they on the other hand been very industriously sought for. Scarcely has any nation actually carried or attempted to carry into execution any plan having this for its object; and not many can be said to have attained in any period of their history those enlarged views of the public interest which might lead to the investigation or establishment of such a plan.

Rude nations have adhered to the first of these maxims, neglecting the second. Nations advanced in industry and arts have adhered to the second, neglecting the first.

Could any plan be proposed for uniting these two maxims in operation and effect, still, in rich and industrious nations, the supposed (not the real) interests of the less numerous but more powerful orders of men, would be found in opposition to its establishment.

11. To establish a just combination of these two maxims, at the original foundation of states, so as to render it a fundamental part of their frame and constitution, or to introduce it after wards with as little violence as may be, to the actual possessions and supposed rights and interests of various orders of men, ought to be the object of all Agrarian laws; and this object being once distinctly conceived, if wise and benevolent men will turn their attention towards it, no doubt need be entertained that very practicable methods of carrying it into execution will in time be discovered, by comparison of projects, or from the result of trials.

12. When any piece of land is sold, the price paid by the purchaser may be considered as consisting of three parts, each being the value of a distinct subject, the separate amount of which, men skilful in agriculture, and acquainted with the soil of the country, might accurately enough appreciate.

These parts are:

If, in England, 100 acres of arable are sold for £1500, money being at 5 per cent., the contingent value may be reckoned £500 -- for the superior value of that security which land gives may, in a general argument, be supposed to be counterbalanced by the trouble of management. Of the remaining £1000, two or three hundred may be computed to be the original value of the soil, a judgment being formed from the nature of the adjoining common, and the £700 or £800 remaining is to be accounted the amount of the accessory or improved value. In this example, these three parts of the general value are to one another as 2, 8, and 5. If the example is taken from a hundred acres in Bengal, or the lower Egypt, the proportion of the parts may be supposed to be 10, 4, and 1. If from 100 acres of uncultivated moorland, in Ireland, or the northern counties of England, the proportion of the parts may be as 1, 0, and 14.

13. The estate of every landholder may, while j he possesses it, be considered as capable of being analysed into these three component parts; and could the value of each be separately ascertained by any equitable method (as by the verdict of an assize), it would not be difficult to distinguish the nature and the extent of his private right, and of that right also which still belongs to the community, in those fields which he is permitted, under the protection of municipal law, to possess. He must be allowed to have a full and absolute right to the original, the improved, and contingent value of such portion of his estate, as would fall to his share, on an equal partition of the territory of the State among the citizens. Over all the surplus extent of his estate, he has a full right to the whole accessory value, whether he has been the original improver himself, or has succeeded to, or purchased from the heirs or assignees of such improver. But to the original and contingent value of this surplus extent he has no full right. That must still reside in the community at large, and, though seemingly neglected or relinquished, may be claimed at pleasure by the legislature, or by the magistrate, who is the public trustee.3

14. The difficulty of ascertaining these different sorts of value, and of separating them from one another, if ascertained, may be supposed in general to have prevented such claims from being made. It is particularly difficult to distinguish the original from the accessory value; nor is the community much injured by suffering these to remain together in the hands of the greater landholders, especially in countries where land-taxes make a principal branch of the public revenue, and no tax is imposed on property of other kinds. The original value of the soil is, in such states, in fact, treated as a fund belonging to the public, and merely deposited in the hands of great proprietors, to be, by the imposition of land-taxes, gradually applied to the public use, and which may be justly drawn from them, as the public occasions require, until the whole be exhausted. Equity, however, requires that from such land-taxes those small tenements which do not exceed the proprietor's natural share of the soil should be exempted. To separate the contingent value from the other two is less difficult, and of more importance; for the detriment which the public suffers by neglecting this separation, and permitting an exclusive right of improving the soil to accumulate in the hands of a small part of the community, is far greater, in respect both of the progress of agriculture, and the comfortable independence of the lower ranks.4