Analysis
Power, right, prohibition, duty, obligation, burthen, immunity, exemption, privilege, property, security, liberty-all these with a multitude of others that might be named are so many fictitious entities which the law upon one occasion or another is spoken of in common speech as creating or disposing of … Would a man know what it is that the law really does in any case, and in what condition it leaves the parties that are concerned? He must know in such case the acts which it takes into contemplation, and the aspect which it bears to them. He must know who the persons, and what the things, if any, which are in question: what the acts are of those persons, whether for their termination they look to other persons or to things: and in what circumstances if in any the act is prohibited or permitted, commanded or left un commanded. Knowing this much, we shall have ideas to our words: not knowing it, we shall have none….
Exposition
Now there can be no such thing as an act which is not the act of some person or of some sentient thing: nor can there be any act of law which is not either a command or a prohibition, or the reverse of the one or the other of those operations: nor lastly, can there be any command or prohibition which has not for its object some sort of act . . . By this means alone can the import of such words as duty, obligation, power, right and other names of fictitious watak entities be laid open: by these means alone can a regular analysis of the contents of a body of laws be exhibited ….
It follows that whatever number of these fictitious entities may be created or brought into play, it must all be done in the course of some or other of those operations by which the several sorts of offences are created. They are a sort of vapours which during the course of the legislative process are as it were generated and sublimed ….
As yet there is no law in the land…. This is the first day of the political creation: the state is without form and void. As yet then you and I and everyone are at liberty. Understand always, as against the law: for as against one another this may be far from being the case…. You and your neighbour, suppose, are at variance: he has bound you hand and foot, or has fastened you to a tree: in this case you are certainly not at liberty as against him … Since the legislator then takes an active part, how is it that he must demean himself? He must either command or prohibit: for there is nothing else that he can do . . . Liberty then is of two or even more sorts, according to the number of quarters from whence coercion, which it is the absence of, may come: liberty as against the law, and liberty as against those who first in consideration of the effect of their conduct upon the happiness of society, and afterwards in consideration of the course taken against them by . the law, may be styled wrong-doers. These two sorts of liberty are directly opposed to one another: and in as far as it is in favour of an individual, that the law exercises its authority over another, the generation of the one sort is, as far as it extends, the destruction of the other. . . .
The law, after certain exceptions made, prohibits in one and in others all such acts as it thinks advisable to prevent . . . What then is the result? To me and the rest of the community, restraint: to you, personal security and protection. . . .
Now property before it can be offended against must be created: and the creation of it is the work of law . . . Conceive any material thing at pleasure: a piece of land for instance. The law issues no mandate at all to me or anyone with respect to that piece of land . . .What is the result? on all sides liberty as before. Moreover, considering that it might have commanded us all, you and me and others, not to exercise any act upon that land, and that such are the commands which to you to me and to everybody but one or a few it actually does give with respect to by far the greatest part of the land under its dominion, it is on that account frequently spoken of as if it had done something in favour of those whom it has left thus at liberty: it is spoken of as having given them or rather left them a power over the land: it may also be said to have left them a property in the land. As this same sort of property is given not to you only, but to me and everybody else, no restraint with respect to the use of the land being laid on anybody, that which is given to you may on that account be styled inexclusive: an inexclusive power over the land: an inexclusive property in the land. The land in this case is said to be the common property of us all: and each of us is said to have a property in it in common with the rest: and each man may even be said to have the property of it, so as this phrase be added “in common with the rest.”. . . .
The law forbids everybody but you from exercisina any act upon the land. In this case it gives you alone a power over the land: it makes the land your property, your estate: it makes you sole owner, the proprietor of the land: it gives you not only an estate, an interest, in the land in severalty, but the property of the land, the estate of the land, both also in severalty.
As to this case it may be proper to ob. serve that in reality it is never completely verified. Under any system of law some occasions there are in which for the carrying on of government it is necessary that any man’s ownership over any object of property would be liable to be suspended: as if for instance there were need to make use of the land in question for the encampment of an army. But when these periods are not long, and the commencement of them is casual only and contingent, as in the case just stated, such slight exceptions are not in common speech considered as derogating from the general rule….
The error against which these observations are leveled is at least a general one among jurists, not to say a universal one. It is by no means an innocent one: from speculation it creeps into practice, producing obstinacy, ill humor, blindness, turbulence, and in the end disobedience to law. The right 1 have to my property, to my possessions is derived from physical, from natural acts: being derived from natural acts it is a natural right: being derived from nature it is not derived from law: its origin, its existence was antecedent to law: for nature existed before law. Being antecedent to law, it was not created by law: not being created by law it cannot be taken away by law. Law was instituted to protect a man in the enjoyment of such his rights, not to deprive him of them, or of any part of them: these rights like all other natural rights are sacred and indefeasible. So far as it protects him accordingly, it is conform able to natural justice: so far as it deprives him of such his rights or any part of them it is repugnant to natural justice. Laws conformable to natural justice are valid, and ought to be observed: laws repugnant to natural justice are ipso facto void, and instead of being observed ought to be resisted. Those who make them are tyrants, those who attempt to enforce them are the tools of tyrants: both the one and the other ought to be resisted, made war upon, and destroyed. . . .
Of rights thus self-evident the existence requires not to be proved but only to be declared: to prove it is impossible because the demonstration of that which is self-evident is impossible: to doubt of it argues of want of sense: to express a doubt of it argues not only a want of sense but a want of honesty.
All this talk about nature, natural rights, natural justice and injustice proves two things and two things only, the heat of the passions, and the darkness of the understanding….
Property the creature of law?-Oh, no Why not? because if it were the law that gave everything, the law might take away every thing….
The case is that in a society in any degree civilized, all the rights a man can have, all the expectation he can entertain of enjoying any thing that is said to be his is derived solely from the law. Even the expectation which a thief may entertain of enjoying the thing which he has stolen forms no exception: for till it is known to have been stolen the law will as fully protect him in the enjoyment of it, as much as if he had bought or made it.
But what it may be said was the ground the law went upon at first in choosing whom it should take for the object of its protection, and for what things? a time there must always have been in which men were entertaining a natural expectation of enjoying certain things, an expectation derived from sources anterior to law. Certainly occasions there must have originally been, and will have been still in which one man must have found a greater facility in securing to himself the enjoyment of certain things than any other man: but how narrow and how fleeting the security Without the aid of law a savage, it is true, who has hid in a cave some fruits he has gathered or some animals which he has killed may keep them to himself so long as the cave remains undiscovered, without the aid of law … An expectation in any degree strong and permanent can only be derived from law. Till law existed, property could scarcely be said to exist.