§6. Similar delicate questions as to the line to be drawn between the intervention of Government to protect, and its interference to control, the freedom of individuals, arise when we try to determine exactly the limits of the right of property according to the system of natural liberty. Granting that the natural right of property includes the power of absolutely excluding others from the use and enjoyment of any material thing over which the right has been acquired, it still remains to be asked what kinds of things natural liberty would allow to be thus appropriated---how far, in particular, it should be allowed with regard to land, the great permanent instrument and store of material for human industry. The extremest advocates of laisser faire have never disputed either the justice or the expediency of keeping in common ownership certain portions of land obviously more useful when freely used in common---such as roads, rivers, and other portions required for communication and conveyance. Further, in modern European countries even such land as has been allowed to pass completely into private ownership has been held liable to special burdens to public purposes; and the right of the community to take from individuals land specially needed for important public objects, at a price corresponding to the market value that it would have had independently of such special need---which in recent times has been generally admitted and to some extent exercised in the important case of railways---may perhaps fairly be regarded not as an encroachment on private ownership, but as a reservation tacitly understood when such ownership was allowed. Again, so far as a community owns land as yet unappropriated, but likely to be more useful if allowed to pass into private ownership, it is a difficult and subtle question to determine whether the principles of natural liberty prescribe any one method of effecting this transition rather than any other: and whether any of the various complicated and elaborate regulations of the sale of public land which in English and other colonies have been adopted or proposed with a view to improve the process of colonization can properly be regarded as species of governmental interference.
A different kind of problem has somewhat perplexed and divided the adherents of natural liberty in respect of property in the results of intellectual labour. On the one hand it has seemed clear that the man who works with his brain has as much right to have the fruits of his labour secured to him as the man who works with his hands. On the other hand since the only effective way of protecting such fruits is to prohibit imitation on the part of others, it is not surprising that this very exceptional interference with the freedom of action of those others should have been thought by some persons to conflict with the principles of natural liberty. In the case of copyright, however, this latter view appears to me superficial; so far at least as the protection is limited to results which persons other than the author protected could not conceivably have produced by independent effort---as is mainly the case with copyright. It can hardly be an interference with A's natural liberty to exclude him, in the interest of B, from the gratuitous use of utilities which be could not possibly have enjoyed except as a result of B's labour. Hence I should be disposed to regard at least any limitation of copyright to a period falling short of the author's life, as an encroachment on natural liberty in the interests of the community. But I should hesitate to take a similar view in the case of patents; since here the difficulty of preventing the protection of A from interfering with the independent action of B seems practically insuperable. It is almost always within the limits of human probability that in protecting a technical invention we may be suppressing the possibility of a similar invention which might otherwise have been made by some one else; indeed such coincidence of inventions may even be said to be positively probable, whenever several ingenious minds are simultaneously pondering over the best method of meeting some definite technical need. Owing to this inevitable danger of conflicting claims, and to the undeniable hampering of industrial progress that is consequently liable to result from the protection of the first inventor, it seems hardly possible to frame the regulations of a patent law on any other principle than that of carefully balancing opposite expediencies. Indeed some able men who are not generally socialistic in their views, nor in any way opposed to the principle of copyright, have yet thought it desirable on the whole to do away with patents altogether, and to leave inventors to be rewarded by the state. And the majority of competent judges, who consider it practically impossible to give the inventor sufficient inducement to work except by securing him a legal monopoly of the results of his labour, are yet generally of opinion that the duration of this monopoly should be limited to a comparatively short term of years, in the interests of industrial progress: and many of them think it further desirable that a patentee should be compelled to allow his invention to be used by others, at a price fixed by Government, under certain circumstances; that is, either (1) when the patentee does not use the invention himself, or (2) when any other inventor has made substantial improvements in it.
Another doubtful point in the definition of the rights of private property, on the principles of laisser faire, relates to the right of bequest. Many even among the jurists of an earlier age, in which the hypothesis of a Law of Nature was generally accepted, preferred to treat the right of bequest as established by Positive rather than Natural law; and in fact it is difficult to maintain that we interfere with a man's natural liberty by not letting his wishes determine the relations of other men to a material world in which he is no longer living. There are, indeed, two obvious and forcible reasons for allowing free bequest in a general way, independently of the actual sentiment in its favour; first, that any law prohibiting it would be likely to be frustrated by gifts before death; and secondly, that such a law, so far as effective, would tend to diminish seriously the inducements to productive labour and care during the closing period of a man's life. But arguments of this kind can hardly be pressed to prove the inexpediency of all restrictions on freedom of bequest; and any such restrictions that tend to increase the utility of the wealth bequeathed by enlarging the freedom of action of those to whose management it is left, may fairly be advocated in the name of Natural Liberty, no less than in the interests of production. And in fact the tendency of modern English legislation has been to introduce, to a continually greater extent, two different kinds of limitations on the individual's right of disposing of his property after death; first in the case of bequests for public purposes, by treating the testator's dispositions as liable to an indefinite amount of revision and modification in the interests of the public, after a certain interval of time has elapsed; and secondly, in the case of private bequests, by restricting the testator's power of preventing the alienation of the property bequeathed, on the ground that such inalienable ownership is liable to lead to inferior management, especially in the case of land.
Again, since through accident, neglect or indecision a certain number of persons die without exercising the right of bequest, the government has the strictly necessary function of determining in such cases the devolution of the property left behind. Ceteris paribus the obvious end to be aimed at in distributing, such intestate inheritances is to satisfy as far as possible any definite expectations which the general habits of bequest may have created: but the guidance of this principle is liable to be obscure and ambiguous, even on fundamental points: and even where it is not so, it cannot be regarded as an interference with natural liberty to deviate from the ordinary customs of bequest, in order to adopt an economically preferable rule of distribution---as (e.g.) by abolishing the law of primogeniture in a country where it is found to have an unfavourable effect on agriculture.
In short; neither ``protection to property'' nor ``enforcement of contract'' turn out to be in practice the simple matters that some theorists appear to suppose them. The determination of substantive or primary rights under either of these heads involves disputed questions of great moment, in the settlement of which the effects of different rules on the production of wealth have to be carefully considered; and further questions of hardly less importance arise in the regulation of procedure and penalties, especially in respect of enforcement of contract---e.g. as to the nature of the penalties for non-payment of debt, and the order of priority in claims to be allowed to different classes of creditors. The consideration of economic consequences should in my opinion be generally paramount in deciding important issues in these departments of law: as for instance in determining the law of Bankruptcy, the law of Patents, and the main restrictions on Bequest. Since, however, this view has not generally been taken by jurists and legislators, it has seemed to me best to treat these questions as lying on a kind of debateable border-ground where the Art of Political Economy merges in the wider Art of Politics.[Back to:]