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CHAPTER FIVE THE RIGHT TO GOVERNMENT In seeking to reconstruct the foundations of American government as they were laid by the Founding Fathers, the greatest risk we run is that we no longer understand the purpose and scope of eighteenth-century rights as they were understood in the eighteenth century. Do we today understand the eighteenth-century right to property? Current twentiethcentury law and social theory lead to the hypothesis that the type of "property " intended to be secured was tangible goods, especially the material assets of substantial estates. The concept of property and the principle of the right to property- a "doctrine, so convenient to all property owners , and so perfectly adapted to the existing social and political situation "- was put forth not to secure privileges for all people, but to guarantee the material holdings of the most propertied, and to liberate the very wealthy from political, legal, and moral control. The point is best made for Great Britain in the age of the American Revolution by considering the striking extent to which the death penalty punished offenses against material property.l There is evidence supporting these suppositions, especially if we give weight to the influence of John Locke, for he and his followers were concerned with the security of material gain. Moreover, during the eighteenth century the traditional, customary property rights of the peasantry- in 39 THE RIGHT TO GOVERNMENT open fields, pannage, pasture, and the forest - were eroded by judgments at common law and by parliamentary statutes promoting the emerging capitalist aspirations of the dominant landed class. Even the champions of democratic reform in the late eighteenth century sought mainly to broaden the electoral base of representation, and not to tamper with the existing economic order.2 Yet we must be careful that an anachronistic appraisal of the economic and social order, realistic perhaps by twentieth-century standards, does not intrude on the theoretical premises of received constitutional doctrine . There is no evidence that political and legal theorists of the eighteenth century understood economic matters as we understand them today , or that the hundreds of writers who praised the "best" of all possible constitutions did not believe that it shed its blessings on all economic classes, poor as well as rich, and that they did not think the rights of property benefited the masses as much as the few. The doctrine of security of property was not concocted to justify the contemporary economic arrangement . It existed during all of recorded English history, going back to the prefeudal Saxon era of the "good old law" when the "rights in property " possessed by individuals constituted "an absolutely sacred part of the whole absolutely sacred legal order."3 The right to property and the right to security can be understood only in their eighteenth-century context, not from the latter-day insight of Marxist revelation. The concept of property and security of property were civil rights that encompassed a view of the world that defined for eighteenth-century English-speaking people the meaning of law, liberty, and constitutional government. It defined, in fact, yet another right, the right to government of a certain type, to a limited government of constitutionalism such as was believed to exist only in Great Britain. In the last chapter it was noted that Thomas Burnet defined government as the execution of laws securing rights and properties. A good government, a fit government, "a mild and propitious Government," was one that "pursues for its end the Security, Ease, and Welfare of its People." For the individual citizen of Great Britain that meant a constitution securing private property, a security that "will continue his birthright as long as that constitution shall remain inviolate and in its full vigor." It meant, in other words, the right to limited, or what today is called, constitutional government.4 Not only was the security of property the purpose of government, it was the very definition of government by law, for a government that failed to protect property ceased to be a government. It was, in fact, a definition encompassing the entire American constitutional case against parliamentary taxation. "If," a writer observed in a 1774 issue of the Lon- THE RIGHT TO GOVERNMENT 41 don Gazetteer, "any man, or body of men, claim a right to take away at pleasure from other men their property, and to dispose of it as they please such claim tends to a dissolution of society." This constitutional theory was based on a combination of the ancient...

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