"The Origin and Nature of Property

"In 1813, Jefferson, responding to a query from Isaac McPherson whether there exists a natural right to the 'exclusive property' in ideas and inventions, delivered his most complete thoughts on the nature and origin of property. Jefferson made short shrift of McPherson's question: there is no natural right to inventions or ideas. If anything, nature intends the opposite: 'ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, an improvement of his condition.' More than any other form of property, ideas are 'incapable of confinement or exclusive appropriation.' Societies may, of course, choose to protect the property of ideas in order to encourage useful inventions, and Jefferson earlier indicated that he favored such protection; there is, however, no natural right for property and ideas.

"But the true significance of the letter lies in Jefferson's reflections on the origin and nature of property rights in general. Jefferson's approach is historical rather than philosophical. He does not seek (as Locke did) to discover the origin of the right to property in some hypothetical state of nature but instead looks to how the first societies understood the term. Following the lines laid down in Kames’s tract on property, which Jefferson had entered into his Commonplace Book while a student nearly a half a century earlier, Jefferson notes how the earliest property relations were based on the principle of first occupancy. In these primitive societies, which are composed of nomadic hunters and shepherds, property 'by universal law belongs to all men equally and in common, [and] is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it.' This is why there is no natural right to 'a separate property in an acre of land.' In the earliest societies, property, whether 'fixed or movable,' belongs to an individual only as long as he is indirect possession or occupancy and, it would seem, is able to defend his position. Thus, there is ‘property' in these primitive societies, but it does not extend to what Jefferson considers the core of private property: exclusive and stable ownership. This latter form of property comes into existence only with the emergence of agriculture, which comes relatively 'late in the progress of society' and, far from being the natural original condition, is 'the gift of social law.' Hence Jefferson's observation that it is 'a moot question whether the origin of any kind of property [in the sense of exclusive and stable ownership] is derived from nature at all.'

"If property rights are not strictly speaking natural rights, we can now appreciate why Jefferson omits them from the inalienable rights listed in the Declaration. For, as we have seen, inalienable rights refer to that category of natural rights that we cannot give up or transfer to another, either because it is not possible for others to exercise these rights for us (e.g., the right of conscience) or because such a transfer runs contrary to our own good. Although all unalienable rights are natural rights, deriving their inalienability from man’s inherent nature, not all natural rights are inalienable. Stable and exclusive property, being less than a natural right, cannot be inalienable.

"Nevertheless, it would be a mistake to conclude that property rights are simply conventional, that they rest on no firmer foundation than the wishes of the majority. Although 'stable ownership' was established by consent, it does have a certain natural foundation. As Jefferson elsewhere observes, 'The right to property is founded on certain natural wants, and the means by which we are given to satisfy these wants, and the right to what we acquire by these means, without violating the similar rights of other sensible beings.' The implications of this statement become clear when we compare it with Madison's famous argument in Federalist No. 10. Whereas Madison sees the rights of property originating in men's unequal faculties alone and concludes that society's first task is to protect his unequal faculties, Jefferson holds that property is grounded in two natural principles that are to some extent in tension with each other: men's equal rights and their unequal talents for satisfying these needs. Through its conventions, society must somehow reconcile these two contradictory aspects of human nature that lie at the core of property relations. If, as an prerevolutionary France, society fails to do so, then existing property laws must give way to the more 'fundamental rights to labor.' Although there is no natural right to the secure and exclusive ownership of property, particular property laws either accord with or 'violate natural right.' Insofar as property arrangements are based on each individual’s 'natural wants' and natural talents, they are not simply conventional" (Yarbrough 89-91).

Works Cited

Yarbrough, Jean M. American Virtues: Thomas Jefferson on the Character of a Free People. Lawrence, KS: University Press of Kansas, 1998.