My Dearest Gentlefolk,

Greetings once again from lovely (rainy) Boston. This week's quote is drawn from a letter written by Thomas Jefferson in August of 1813 to Isaac McPherson.

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."

VI Writings of Thomas Jefferson, at 180-181 (Washington ed.).

What strikes me immediately upon reading this passage is the convergence of the view it reports with Jefferson's contemporaneous interest in the fostering of the Yeoman farmer. For Jefferson, property is plainly and inescapably an instrument of public policy: private industry is encouraged or frustrated by the manner in which its benefits are permitted to accrue. The public good is served, not by the direct accumulation and protection of wealth in private hands, but by the public discourse stimulated therewith. This he considered to be a product of the natural fruits of industry coupled with the creation of a stake in the outcome of governmental decision making.

If Jefferson's view of property can be generalized in this fashion (and not limited to what we now call "intellectual property"), then it is remarkable how far he has departed from Locke: the fruit of one's industry is not by nature annexed to the personhood of its creator. Indeed, social order is not essentially or inescapably wedded to rigid property norms. Rejecting the very idea of a landed aristocracy, the essence of Jefferson's new social order, and the legal system that organizes it, is a furtive public discourse in all of its republican zeal. But how could he so blithely reject the view of property as a natural right, even if in a more subdued form?

Jefferson was surely aware of Roman reports that the Germanic tribes on its northern frontier had no sense of property. Justinian reports the astonishment of a young Caesar upon witnessing the practice of tribesmen who would simply take whatever he needed, to surrender it only when the need abated. Roman "law" could not countenance such liberty, and the barbaric practice was actively discouraged. Despite a practice that appeared to violate bedrock (Roman) notions of material entitlement, the Germanic tribes remained orderly. Need we also mention Sparta, or the tribes inhabiting pre-Columbian North America? Rigid property norms, or as Jefferson put it "stable property", does appear to be a social fiction.

But if stable property is a social fiction, and Locke is simply wrong about the nature of personhood with respect to the fruits of one's labor, then the alienation experienced by the proletarian worker and reported by Marx ought to be illusory (or at least it can not be seen as arising by the force of some unnatural deprivation of one's personhood).

Another view of the matter is possible, and is suggested by modern intellectual property norms. The law of copyright provides a limited fair use exception to the power an author retains over his creation. This fair use exception requires, among other things, that the originating author be identified as such. Even when a copyright lapses, and the writing falls into the public domain, a relatively strict norm of attribution is maintained. He who breaches is a plagiarist, and is guilty of the author's most cardinal sin. While it lacks the bite of full legal sanction, the norm of plagiarization suggests that an understanding of labor as productive of personhood survives. Indeed, the fair use exceptions to both copyright and trademark, where these rights continue to carry full legal force, suggest that the author's person (her "dignity") is harmed when her work is fraudulently claimed to be that of another.

It is difficult to know what sanctions existed, if any, to punish the plagiarist among the Germanic tribes, pre-Columbian America, or even Sparta, or even whether such a concept existed. Such a sanction would not be incompatible with a refusal to see the fruits of one's labor as flowing exclusively to oneself. The gift-norms among many North American tribes could only have been possible if attribution-norms were also observed. Likewise, Germanic use-norms may have required the maintenance of clear source-identifying practices.

Might Jefferson have tempered his view had he understood property to involve more than possessory norms?

There is so much more I could say of the legal and moral norms of possession, of personhood-in-being as the product of our labor, and so on. But this is Monday, and the new week demands an audience with my mind.

I remain,

David Robert Foss