Part 3 (1/2)

Yet, on the other hand, and by the development of identically the same principles, the individual gains. His tenure of land becomes far less a matter of contract. He himself escapes from his feudal chief, and his inferior tenants slip also from his control. He is no longer one in a pyramid of grouped social organisation, but stands now as an individual answerable only to the head of the State. He has duties still; but no longer a personal relations.h.i.+p to his lord. It is the King and that vague abstraction called the State which now claim him as a subject; and by so doing are obliged to recognise his individual status. This new and startling prominence of the individual disturbed the whole concept of owners.h.i.+p. Originally under the influence of that pure feudalism which nowhere existed in its absolute form, the two great forces in the life of each member of the social group were his own and that of his immediate lord. These fitted together into an almost indissoluble union; and therefore absolute owners.h.i.+p of the soil was theoretically impossible. Now, however, the individual was emanc.i.p.ated from his lord.

He was still, it is true, subject to the King, whose power might be a great deal more oppressive than the barons' had been. But the King was far off, whereas the baron had been near, and nearly always in full evidence. Hence the result was the emphasis of the individual's absolute dominion. Not, indeed, as though it excluded the dominion of the King, but precisely because the royal predominance could only be recognised by the effective shutting out of the interference of the lord. To exclude the ”middle-man,” the King was driven to recognise the absolute dominion of the individual over his own possessions.

This is brought out in English law by Bracton and his school. Favourers as they were of the royal prerogative, they were driven to take up the paradoxical ground that the King was not the sole owner of property. To defend the King they were obliged to dispossess him. To put his control on its most effective basis, they had no other alternative left them than to admit the fullest rights of the individual against the King. For only if the individual had complete owners.h.i.+p, could there be no interference on the part of the lord; only if the possessions of the tenants were his own, were they prevented from falling under the baronial jurisdiction. Therefore by apparently denying the royal prerogative the civil lawyers were in effect, as they perfectly well recognised, really extending it and enabling it to find its way into cases and courts where it could not else well have entered.

Seemingly, therefore, all idea of socialism or nationalisation of land (at that date the great means of production) was now excluded. The individualistic theory of property had suddenly appeared; and simultaneously the old group forms, which implied collectivism in some shape or other, ceased any longer to be recognised as systems of tenure.

Yet, at the same time, by a paradox as evident as that by which the civilians exalted the royal prerogative apparently at its own expense, or as that by which Wycliff's communism is found to be in reality a justification of the policy of leaving things as they are, while St.

Thomas's theory of property is discovered as far less oppressive and more adaptable to progressive developments of national wealth, it is noticed that, from the point of view of the socialist, monarchical absolutism is the most favourable form of a State's const.i.tution. For wherever a very strictly centralised system of government exists, it is clear that a machinery, which needs little to turn it to the advantage of the absolute rule of a rebellious minority, has been already constructed. In a country where, on the other hand, local government has been enormously encouraged, it is obviously far more difficult for socialism to force an entrance into each little group. There are all sorts of local conditions to be squared, vagaries of law and administration to be reduced to order, connecting bridges to be thrown from one portion of the nation to the next, so as to form of it one single whole. Were the socialists of to-day to seize on the machinery of government in Germany and Russia, they could attain their purposes easily and smoothly, and little difference in const.i.tutional forms would be observed in these countries, for already the theory of State owners.h.i.+p and State interference actually obtains. They would only have to subst.i.tute a _bloc_ for a man. But in France and England, where the centralisation is far less complete, the success of the socialistic party and its achievement of supreme power would mean an almost entire subversal of all established methods of administration, for all the threads would have first to be gathered into a single hand.

Consequently feudalism, which turned the landowners into petty sovereigns and insisted on local courts, &c., though seemingly communistic or socialistic, was really, from its intense local colouring, far less easy of capture by those who favoured State interference. It was individualistic, based on private rights. But the new royal prerogative led the way to the consideration of the evident ease by which, once the machine was possessed, the rest of the system could without difficulty be brought into harmony with the new theories.

To make use of comparison, it was Cardinal Wolsey's a.s.sumption of full legatine power by permission of the Pope which first suggested to Henry VIII that he could dispense with His Holiness altogether. He saw that the Cardinal wielded both spiritual and temporal jurisdiction. He coveted his minister's position, and eventually achieved it by ousting both Clement and Wolsey, who had unwittingly shown him in which way more power lay.

So, similarly, the royal despotism itself, by centralising all power into the hands of a single prince, accustomed men to the idea of the absolute supremacy of national law, drove out of the field every defender of the rights of minorities, and thus paved the way for the subst.i.tution of the people for itself. The French Revolution was the logical conclusion to be drawn from the theories of Louis XIV. It needed only the fire of Rousseau to burn out the advent.i.tious ornamentation which in the shape of that monarch's personal glorification still prevented the naked structure from being seen in all its clearness.

_L'Etat c'est moi_ can be as aptly the watchword of a despotic oligarchy, or a levelling socialism, as of a kingly tyranny, according as it pa.s.ses from the lips of the one to the few or the many. It is true that the last phase was not completed till long after the Middle Ages had closed, but the tendency towards it is evident in the teachings of the civil lawyers.

Thus, for example, State absolutism is visible in the various suggestions made by men like Pierre du Bois and Wycliff (who, in the expression of their thoughts, are both rather lawyers than schoolmen) to dispossess the clergy of their temporalities. The principles urged, for instance, by these two in justification of this spoliation could be applied equally well to the estates of laymen. For the same principles put into the King's hand the undetermined power of doing what was necessary for the well-being of the State. It is true that Pierre du Bois (_De Recuperatione Terre Sancte_, pp. 39-41, 115-8) a.s.serted that the royal authority was limited to deal in this way with Church lands, and could not touch what belonged to others. But this proviso was obviously inserted so arbitrarily that its logical force could not have had any effect. Political necessity alone prevented it from being used against the n.o.bility and gentry.

Ockham, however, the clever Oxford Franciscan, who formed one of the group of pamphleteers that defended Louis of Bavaria against Pope John XXII, quite clearly enlarged the grounds for Church disendowment so as to include the taking over by the State of all individual property. He was a thinker whose theories were strangely compounded of absolutism and democracy. The Emperor was to be supported because his autocracy came from the people. Hence, when Ockham is arguing about ecclesiastical wealth, and the way in which it could be quite fairly confiscated by the Government, he enters into a discussion about the origin of the imperial dignity. This, he declares, was deliberately handed over by the people to the Emperor. To escape making the Pope the original donor of the imperial t.i.tle, Ockham concedes that privilege to the people. It was they, the people, who had handed over to the Caesars of the Holy Roman Empire all their own rights and powers. Hence Louis was a monarch whose absolutism rested on a popular basis. Then he proceeds in his argument to say that the human positive law by which private property was introduced was made by the people themselves, and that the right or power by which this was done was transferred by them to the Emperor along with the imperial dignity.

Louis, therefore, had the same right to undo what they had done, for in him all their powers now resided. This, of course, formed an excellent principle from which to argue to his right to dispossess the Church of its superfluous wealth--indeed of all its wealth. But it could prove equally effectual against the holding by the individual of any property whatever. It made, in effect, private owners.h.i.+p rest on the will of the prince.

Curiously, too, in quite another direction the same form of argument had been already worked out by Nicole Oresme, a famous Bishop of Lisieux, who first translated into French the _Politics_ of Aristotle, and who helped so largely in the reforms of Charles V of France. His great work was in connection with the revision of the coinage, on which he composed a celebrated treatise. He held that the change of the value of money, either by its deliberate depreciation, or by its being brought back to its earlier standard of face value, carried such widespread consequences that the people should most certainly be consulted on it. It was not fair to them to take such a step without their willing co-operation. Yet he admits fully that, though this is the wiser and juster way of acting, there was no absolute need for so doing, since all possession and all property sprang from the King. And this last conclusion was advocated by his rival, Philip de Meziers, whose advice Charles ultimately followed.

Philip taught that the king was sole judge of whatever was for public use.

But there was a further point in the same question which afforded matter for an interesting discussion among the lawyers. Pope Innocent IV, who had first been famous as a canonist, and retained as Pontiff his old love for disputations of this kind, developed a theory of his own on the relation between the right of the individual to possess and the right of the State over that possession. He distinguished carefully between two entirely different concepts, namely, the right and its exercise. The first he admitted to be sacred and inviolable, because it sprang from the very nature of man. It could not be disturbed or in any way molested; the State had therefore no power to interfere with the right.

But he suggested that the exercise of that right, or, to use his actual phrase, the ”actions in accord with that right,” rested on the basis of civil, positive law, and could therefore be controlled by legal decisions. The right was sacred, its exercise was purely conventional.

Thus every man has a right to property; he can never by any possible means divest himself of it, for it is rooted in the depths of his being, and supported by his human nature. But this right appears especially to be something internal, intrinsic. For him to exercise it--that is to say, to hold this land or that, or indeed any land at all--the State's intervention must be secured. At least the State can control his action in buying, selling, or otherwise obtaining it. His right cannot be denied, but for reasons of social importance its exercise well may be.

Nor did this then appear as a merely unmeaning distinction; he would not admit that a right which could not be exercised was hardly worth consideration. And, in point of fact, the Pope's private theory found very many supporters.

There were others, however, who judged it altogether too fantastical.

The most interesting of his opponents was a certain Antonio Roselli, a very judiciously-minded civil lawyer, who goes very thoroughly into the point at issue. He gives Innocent's views, and quotes what authority he can find for them in the Digest and Decretals. But for himself he would prefer to admit that the right to private property is not at all sacred or natural in the sense of being inviolable. He willingly concedes to the State the right to judge all claims of possession. This is the more startling since ordinarily his views are extremely moderate, and throughout the controversy between Pope and Emperor he succeeded in steering a very careful, delicate course. To him, however, all rights to property were purely civil and arguable only on principles of positive law. There was no need, therefore, to discriminate between the right and its exercise, for both equally could be controlled by the State. There are evidences to show that he admitted the right of each man to the support of his own life, and, therefore, to private property in the form of actual food, &c., necessary for the immediate moment; but he distinctly a.s.serts as his own personal idea that ”the prince could take away my right to a thing, and any exercise of that right,” adding only that for this there must be some cause. The prince cannot arbitrarily confiscate property; he must have some reasonable motive of sufficient gravity to outweigh the social inconveniences which confiscation would necessarily produce. Not every cause is a sufficient one, but those only which concern ”public liberty or utility.” Hence he decides that the Pope cannot alienate Church lands without some justifying reason, nor hand them over to the prince unless there happens to be an urgent need, springing from national circ.u.mstances. It does not follow, however, that he wishes to make over to the State absolute right to individual property under normal conditions. The individual has the sole dominion over his own possessions; that dominion reverts to the State only in some extreme instance. His treatise, therefore (Goldast, _De Monarchia_, 1611-1614, Hanover, p. 462, &c.), may be looked upon as summing up the controversy as it then stood. The legal distinction suggested by Innocent IV had been given up by the lawyers as insufficient. The theories of Du Bois, Wycliff, Ockham, and the others had ceased to have much significance, because they gave the royal power far too absolute a jurisdiction over the possessions of its subjects. The feudal contractual system, which these suggested reforms had intended to drive out, had failed for entirely different reasons, and could evidently be brought back only at the price of a complete and probably unsuccessful disturbance of the social and economic organisation. The centralisation which had risen on the ruins of the older local sovereignties and immunities, had brought with it an emphasised recognition of the public rights and duties of all subjects, and had at the same time confirmed the individual in the owners.h.i.+p of his little property, and given him at the last not a conditional, but an absolute possession. To safeguard this, and to prevent it from becoming a block in public life, a factor of discontent, the lawyers were engaged in framing an additional clause which should give to the State an ultimate jurisdiction, and would enable it to overrule any objections on the part of the individual to a national policy or law. The suggested distinction that the word ”right”

should be emptied of its deeper meaning, by refusing it the further significance of ”exercise,” was too subtle and too legal to obtain much public support. So that the lawyers were driven to admit that for a just cause the very right itself could be set aside, and every private possession (when public utility and liberty demanded it) confiscated or transferred to another.

Even the right to compensation for such confiscation was with equal cleverness explained away. For it was held that, when an individual had lost his property through State action, and without his having done anything to deserve it as a punishment, compensation could be claimed.

But whenever a whole people or nation was dispossessed by the State, there was no such right at all to any indemnity.

Thus was the wholesale adoption of land-nationalism to be justified.

Thus could the State capture all private possessions without any fear of being guilty of robbery. It was considered that it was only the oppression of the individual and cla.s.s spoliation which really contravened the moral law.

The legal theories, therefore, which supplanted the old feudal concepts were based on the extension of royal authority, and the establishment of public rights. Individualistic possession was emphasised; yet the simultaneous setting up of the absolute monarchies of the sixteenth century really made their ultimate capture by the Socialist party more possible.

CHAPTER VI

THE SOCIAL REFORMERS