Page:Popular Science Monthly Volume 36.djvu/795

Rh Rousseau's first and second great doctrines having thus collapsed, what is to be said to the third?

Of course, if there are no rights of property but those based on contract, conquest, that is to say, taking possession by force, of itself can confer no right. But, as the doctrine that there are no rights of property but those based on the consent of the whole human race—that is, that A. B. can not own anything unless the whole of mankind formally signify their assent to his ownership—turns out to be more than doubtful in theory and decidedly inconvenient in practice, we may inquire if there is any better reason for the assertion that force can confer no right of ownership. Suppose that, in the old seafaring days, a pirate attacked an East Indiaman—got soundly beaten and had to surrender. When the pirates had walked the plank or been hanged, had the captain and crew of the East Indiaman no right of property in the prize—I am not speaking of mere legal right, but ethically? But if they had, what is the difference when nations attack one another; when there is no way out of their quarrel but the appeal to force, and the one that gets the better seizes more or less of the other's territory and demands it as the price of peace? In the latter case, in fact, we have a contract, a price paid for an article—to wit, peace—delivered, and certain lands taken in exchange; and there can be no question that the buyer's title is based on contract. Even in the former alternative, I see little difference. When they declared war, the parties knew very well that they referred their case to the arbitrament of force; and if contracts are eternally valid, they are fully bound to abide by the decision of the arbitrator whom they have elected to obey. Therefore, even on Hobbes's or Rousseau's principles, it is not by any means clear to my mind that force, or rather the state of express or tacit contract which follows upon force successfully applied, may not be plausibly considered to confer ownership.

But if the question is argued, as I think it ought to be, on empirical grounds if the real question is not one of imagined a priori principle, but of practical expediency—of the conduct which conduces most to human welfare—then it appears to me that there is much to be said for the opinion that force effectually and thoroughly used, so as to render further opposition hopeless, establishes an ownership which should be recognized as soon as possible. I am greatly disposed to think, that when ownership established by force has endured for many generations, and all sorts of contracts have been entered into on the faith of such ownership, the attempt to disturb it is very much to be deprecated on all grounds. For the welfare of society, as for that of individual