Property and society

Front matter

Google to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

Author's Preface

THE reason for this little book lies in the realization that the right to property has always been associated with the right to personal liberty and that liberty is more often talked about than thought about. In this age of transition and revolution and when everyone is demanding his personal rights, it is very necessary that we should seek to determine what those rights are. We are rapidly approaching an era of pure democracy. Judicial decisions are no longer accepted as the law, but are discussed upon the political stump, and judges are recalled, or, what is the same thing, refused re-election, not because they have been dishonest, but because their economic and social ideas are not in accordance with popular theories, which are often merely momentary. Lawyers and judges everywhere, however, argue in the language of the law books, while the public thinks in the language of today. Neither party, as a rule, goes beneath the surface. The former base their decisions upon the adjudicated cases and the latter their judgment upon the emotions and desires of the present moment. Both parties need to study

Author^ s Preface economic and social and historical truths rather than the dicta of the writers or of the campaign orators. In social and political matters we call each other names rather than seek to analyze our foundations or to arrive at the truth. We need to think of the present wants, but at the same time not to ignore the experience of the past and the upward and centuries old struggle of the race. Legal concepts and economic dicta need to be expressed in terms of human life.

The author is indebted to the Michigan Law Review and the Quarterly Journal of the University of North Dakota for permission to cull from articles formerly contributed by him to these magazines. He also desires to express his thanks to his wife, Elizabeth Bruce, and to Mr. Iver Acker of the North Dakota Legislative Reference Bureau, for valuable assistance rendered.

Andrew A. Bruce.

Bismarck, North Dakota.

October 17, 191 6.

f

Contents

CHAPTER PAGE

I The Legal and Social Concept of Property. . . i

ir" The Origin of the Private Property Idea 14

Chapter I The Legal And Social Concept Of Property

THE right to private property, and the intellectual and legal concept that it involves have always extended, and must, in the nature of things, always extend further than does the mere right to the personal ownership and control of that which is tangible and physical. They involve the right to acquire and to create, ^^^ as well as to own and to use, that which has |\; already been created, and has already been re duced to possession. Incident to the right to acquire is the right to contract, and the right to property and liberty which is guaranteed by the American State and Federal Constitutions has always been understood to involve this element. The Supreme Court of Illinois says :

Property in its broader sepse is not the physical thing which may be the subject of ownership, but is the right of dominion, possession,' and power of dis- . position which may be acquired over it; and thej right of property preserved by the Constitutions is! the right not only to possess and enjoy it, but also to acquire it in any lawful mode, or by following any

X

\lawful industrial pursuit, which the citizen in the exercise of the liberty guaranteed may choose to adopt. Labor is the primary foundation of all wealth. The property which each one has in his own labor is the common heritage, and, as incident to the right to acquire other property, the liberty to enter into contracts by which labor may be employed in such a way as the laborer shall deem most beneficial and of others to employ such labor, is necessarily included in the constitutional guaranty.

And this decision no doubt correctly states the historical truth as well as the economic \ fact. You canndl, indeed, dissociate the terms ^ >liberty and right to property, for in the Anglo- Saxon world, at any rate, the desire for the ownership and control of things which are exterior to oneself is but an expression of personality, and true liberty involves an opportunity for that expression. This further idea has also been expressed by the Illinois court in another opinion in which it says :

There can be no liberty protected by government, that is not protected by such laws as will preserve the right of each citizen to pursue his own advancement and happiness in his own way, subject only to thejiegtraintsnecesaaix ^ secure the sarBe ngh'tsTo aHotheriPTlhe fundamental prmCipl€""upon which liberty is based in free and enlightened governments is equality under the law of the land. It has accordingly been everywhere held that liberty, as that term is used in the Constitution, means not only freedom of the citizen from servitude and restraint, but is

I deemed to embrace the right of every man to be free in the use of his powers and faculties, and to adopt and pursue such avocation and calling as he may choose, subject only to the restraints necessary to secure the common welfare. ' V^'^/

Involving as it does the right to contract' ^j/y and to acquire, and since in the last analysis ^W^ all contracts are dependent upon the sanction of an organized society, the private property' right is a right which is social, rather than nat-^ ural. Organized society involves a public peace ^ and a more or less extended reign of law, and, when once the right to take and to hold by force is denied, the protection which is afforded by the state or the community is the only guarantee of property even in that which is tangible and physical. A right, indeed, whic^ society refuses to recognize and protect can! have but little value. J

Says Sir William Blackstone:

The foundations of society are the wants and the fears of individuals. Single families formed the first natural society among themselves. Its limits were daily extended, and laid the first imperfect rudiments of civil or political society. When it grew too large to subsist conveniently in that pastoral state in which the patriarchs lived, by migrations it became subdivided. Afterwards as agriculture increased, migrations became less frequent and various tribes reunited, sometimes by compulsion and conquest, sometimes by accident, and occasionally by compact. Undoubtedly mankind is kept together by the sense of weakness, which shows the necessity of union. This, therefore, is the solid foundation and cement of civil society. This we term the original contract of society. It may never have been expressed at the first institution of a state, yet is understood in the very act of associating together, namely, that the whole should protect its parts, and that every part should pay obedience to the will of the whole ; or, in other words, that the community should guard the rights of each individual, and that in return for this protection each individual should submit to the laws of the community.

It has been the fear, indeed, of the finan- J cially strong but of the numerically weak that , without law and order there would be no security to private property that has been at the \ foundation of our law and our courts, our police system, the lighting of our streets and cities, and, to a large extent, of our standing » armies. We have, however, yet to find any writ- \ ten definition of the terms "property" and " liberty,** except perhaps that of the leader of i the Shay Rebellion, which does not presuppose 1 the duty of a social use and the right of an ^ ultimate public control, and the uniformity of these definitions and conceptions can only be due to the fact of the realization and belief in the necessity of public protection, and as an incident thereto of governmental regulation.

We hear much of the autocracy of the Prus- "^ sian Government, but, after all, the Prussian \ conception of property and of property rights IS to all intents and purposes identical with that / of the English law. We hear much of the superimposed law of the Civil Codes and of the Code Napoleon, and often compare it unfavorably with the individualism of the Anglo- Saxon Common Law. Its conception, how-' ever, of the attributes and extent of property rights in no way differs from that of the Anglo-Saxons. The only difference between the Code Napoleon and the English Common Law, as far as property is concerned, is that the Code Napoleon seeks to define specifically the limitations of property while the English , and the American law seems to be contented with saying that one shall so use his own as not to injure that of another, and that the public welfare is the highest law. This also is true of the definitions of the Prussian writers. Innonej of these countries does the right of property / involve the right to misuse nor the right to use j it to a social disadvantage, an^ in all of them \ the ultimate control of the public is presupposed. The Prussian Code of the eighteenth century says:

The proprietor is that one who is competent directly himself or indirectly through an agent to exercise control over the substance of a thing or of a right to the exclusion of others. . . . No one may use his property to injure others.

The Code Napoleon says :

Property is a right to use things and of controlling them in the most absolute manner provided that one does not make a use of them prohibited by the laws or ordinances.

Lord Erskine says :

The sovereign or real rigKt is the right of property which is the right of using and disposing of a subject as our own, except in so far as we are restrained by law or paction.

Lord Mackenzie says :

Property is a right to the absolute use, enjo3rment, and disposal of a thing without any restraint except what is imposed on the owner by law or paction.

The new Civil Code of the German Empire says, in effect :

The proprietor has a right to use a thing as he sees fit to the exclusion of others in so far as there are no limitations which come through law or through the rights of third persons.

The idea, indeed, is nowhere better stated than by the great exponent of the English Common Law, Sir William Blackstone, individualist though he was, when he said :

Liberty, rightfully understood, consists in the power of doing whatever the laws permit, which is only to be effected by the general conformity of all

—J orders and degrees to those equitable rules of action by which the meanest individual is protected from the insults and oppression of the greatest. . . . The absolute rights of man considered as a free agent endowed with discernment to know good from evil and with power to choose those measures which appear to him to be the most desirable, are usually stunmed up in one general appellation and denominated the natural liberty of mankind.

This natural liberty consisting principally in a power of acting as one thinks fit without any restraint or control, unless by the law of nature, being a right inherent in us by birth and one of the gifts of God to man at his creation when he endowed him with the faculty of free will, and every man when he enters into society gives up a part of his natural liberty as the price of so valuable a purchase and in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws which the community has thought proper to establish. ...

Political, therefore, or civil liberty, which is that of a member of society, is not other than natural . liberty so far restrained by human laws and no far- • ther than is necessary and expedient for the generaV — acjYantage^of the public. Hence we' may calculate that the law which restrains a man from doing mischief to his fellow citizens diminishes the natural and increases the civil liberty of mankind, but that every wanton. and useless restraint of the will of the subject, whether practiced by a monarch or expedited by a popular assembly, is a degree of tyranny; nay, that often laws whether made with or without our consent, if they regulate and restrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty.

i

Whereas, if any public advantage can arise from observing such precepts and control of our private inclinations in one or two particular points they will conduce to preserve our general freedom in others of more importance, by supporting that state of ^ society which alone can secure our independence.

Thus the statute of King Edward iv which forbade the fine gentlemen of those times (under the degree of a lord) to wear spikes upon their shoes or boots of more than two inches in length, was a law that savored of oppression; because, however ridiculous the fashion then in use might appear, the restraining it by pecuniary penalties could serve no purpose of common utility. But the statute of King Charles ii which prescribes a thing seemingly as indifferent (a dress for the dead which are all ordered to be buried in woolen) is a law consistent with public liberty, for it encourages the staple trade, on which in a great measure depends the universal good of the nation.

So that laws, when prudently framed, are by no means subversive but rather introductive of liberty, for as Mr. Locke has observed, where there is no law there is no freedom. But then, on the other hand, that constitution or frame of government, that system of laws, is alone calculated to maintain civil iberty, which leaves the subject entire master of his i own conduct, except in those points which the public ^ ood requires some direction or restraint.

Individualism and personal liberty were, it is true, the backbone of the Germanic and Anglo-Saxon social bodies. But, though the backbone supports, it is itself dependent for its vitality upon the blood vessels and nerves which "^ ramify throughout the whole body and connect it with the Hfe-preserving and life-giving heart and lungs. In the same manner, as civilization developed and the needs and wants of

f men increased and foreign foes gathered and threatened the growing communities, it must have soon become apparent that the fullest liberty of the individual, that is to say, his fullest opportunity for self -development and for selfassertion, could only be secured in society; and if in society, with the growth and protection of it. We thus early find in, and running throughout the whole of the English and American Law, the legal and metaphysical but feudal theory of relationship which reasserts the doc-^ trine of individual liberty but which opens the way for the protection of the community as a whole, and for all manner of governmental control.

I This doctrine is based upon the premise that

a free man need not enter into certain relation-

. ships, but that if he does, he assumes the duties

^ and obligations which are incident thereto and which organized society for purposes of its own protection and for the public weal has placed upon them. The English and American law, it is true, has not, like the Roman, dealt : with individuals, but with classes and with relationships. But it has* none the less been able , to control individual action. One need not, for . instance, have sought protection of a feud^l-^ p lo Property and Society

lord or to have held land under him, but if he did, he was compelled to be his man and follow him in battle and to render him the services I which the relationship required. One need not / "^ psnter into a partnership or make a contract, but iN if he does so, he is subject to the general laws applicable to all partnerships and to all contracts. One need not be a common carrier or nA an inn-keeper, but if he chooses to become one, J^he is subject to the restrictions and limitations y which are placed upon these callings. One X -A^ieed not engage in business or in trade, but if / he does so, and seeks the protection of the I courts to further his interests and to enforce I his contracts, he must yield to a measure of \ governmental control ; and, in these later years, one need not become an employer of labor, but if he does, he is subject to the regulations which society imposes for the protection of the laborer and which pertain to the industry.

Fanciful as this theory may be, it is nevertheless deeply entrenched in the English and American Law. It is inadequate to our modem needs, but in the past it has made the individualism of the Common Law surprisingly elastic. It is, of course, a survival of feudalism, but it is merely an adaptation of feudal theories to meet the social needs and pressure of the times. The Roman lawgiver would have met the problem directly and restrained the individual without reference to or under color of the class. The Anglo-Saxon, however, has adopted the other method. Nowhere is this theory shown more clearly than in the cases where humanity is involved. We have yet to find a case where an ordinary citizen has been held liable in damages for failure to rescue a drowning comrade, or to risk his own life for the benefit of another, or to be a good Samaritan. Yet when he has once assumed the duty, or entered upon the work, he has been held liable in damages for negligence in its performance. A railway company, for instance, has been held not liable where, without negligence on its part, it has run over a drunken trespasser on its tracks, and has afterwards allowed the man to bleed to death without stopping or adopting any measures for his protection. Wherever it has picked up the injured person and undertaken his care, it has been held liable for negligence in his treatment.

Though the ordinary passenger may not be held liable for refusing to rescue a drowning comrade, there are numerous cases where the crew of a ship has failed to do so and has been held liable. A most famous case, indeed, is one in which a lifeboat was overloaded. It was necessary that some person should be thrown into the ocean in order that the others might be saved, and a lot was cast. The lot fell upon a passenger, but the crew were held guilty of manslaughter because their relation to him demanded his protection and that if any lives w^re to be sacrificed it should be their own. >/Thus it will be seen that the concept oi X Private Property carries with it a legal and ( social philosophy that limits the actions of individuals and associated groups.

The purpose of this book is to discuss private property from the social viewpoint, to show the value to society of the private property right, and to learn to what extent this right has been and should be recognized. It may, however, be well to anticipate and to say now that the author has arrived at the conclusion that a soci^ly beneficial use has always been, and always should be, the one test and \ basis of the so-called property right; that [no A man in society has a natural and unlimited */ \ right to own and to do as he pleases, and that \the public welfare has always been, and always Will be, the highest law and the test and the jbasis of the only lasting title deed. The conclusion also is irresistible that, as society evolves and grows and becomes more Christian and enlightened and humane, our social concepts will grow also, and with them our ideas as to what in fact really are and are really not beneficial and social uses. It is to be accepted that we shall neither have anarchism nor socialism, but rather a sane compromise between these two extremes. Anarchism, which is no law, can never be permanent in a physical uni- ^ verse that is itself builded on law. Socialism, if defined as it should be, "government ownership and control of all of the agencies of production," is both undesirable and humanly impossible. In the course of the discussion it will be shown that the laissez-faire individualism of the nineteenth century, and of the modem commercialist, though serving its purpose, and a natural result of the arbitrary restrictions which were enforced by the superimposed governme;its of the past, is entirely inadequate to the needs of our modern social development, and that it finds no justification or support in the legal history, the great charters, or the social and ethical concepts of the Anglo-Saxon peoples. It will also be the purpose of the author to show the economic value of the industrial combination, and that the solution of the problem that is presented by it, and the cure for the evils which are incident thereto, are to be found, not in the destruction but in the regulation of the property right

Chapter II The Origin Of The Private Property Idea

THE idea of private property is a counterpart of the idea of personal liberty. It is a wider expression of personality which has extended from the human body to that which has been created or acquired, and the desire for the freedom to acquire and to individually own has been the most potent factor in civilization. It is evidenced in the ^ctions of the infant who first makes discoveries of itself, its fingers, and, above all, of its far-away toes, and who early seeks to gain control and possession over them ; who gradually stretches out and seizes the ball, the stick, the spoon, or the pla)rthing — in fact, everything that is within its reach, and vigorously resents every effort to deprive it of them.

After the words "papa" and "mamma," the word "mine" is perhaps the earliest and the best understood in the infant vocabulary. It is the meaning of " thine," indeed, and not of "mine" that the normal child needs to be taught. We hear much about communism having been the conception and system of the original nomadic tribes of Asia, and of our

It

K

Teutonic ancestors, but it was a communism which was only in part. It was, except at a very early period, a commimism of land merely, and then only when there was an abundance and more than any one needed or desired. In the primitive German village, the pasture lands and woodlands were alone held in common, and this for the family or clan. The truth of Professor Veblen's statement is to be doubted when he declares :

The earliest occurrence of ownership seems to fall in the early stages of barbarism, and the emergence of the institution of ownership is apparently a concomitant of the- transition to a predatory habit of life. It is a prerogative of that class in the barbarian culture. As distinguished from the peaceable phase of life that precedes it is the element of exploit, coercion, and seizure. In its earliest phases ownership is the habit of coercion and seizure reduced to system and consistency under the surveillance of usage.*

Of course, where military leaders and peoples have taken by the strong hand, they have always been anxious to give the force of law to their holdings, but the idea of property is much more fundamental and has a much more general foundation. The taking of slaves in war had, it is true, much to do with the growth

*VebIen, T. B. Theory of the Leisure Class, The Macmillan Company, New York.

of the idea that one could acquire a propefef right in the labor of others besides hims^^ but why should the result of a foray on a neighboring people or tribe give rise to S the private property sense any more than would a raid upon a herd of bison or of deer? The Indian on our plains owned his own horse, his own weapons, and his own wigwam, as well as his own squaws and, to a large sense, his own children. Was not the communism in land due to the abundance of it, and to the fact y that it was used merely as a hunting ground ? j And was not the communism in the result of the hunt due merely to cooperation, and to the fact that with primitive weapons it took the efforts of many to surround and kill the buffalo and the deer? Even today there is an international commimism in the oceans of the world, while the fisheries and seal rookeries of the islands are nationally claimed and are jealously guarded. Is not the first fact due to i necessity, immensity and plenty, and is not the

. latter due to scarcity and to use ?

' The sense of and desire for private owner- ^ ship is, indeed, one of the earliest and most fundamental of human instincts. It is quite probable that it was the property idea in things external to one's self and to one's own creation that arose out of the capture and enslaving of females, which first brought about fie institution of marriage, accompanied as it .as been in all civilizations and ages, with the . symbols of ownership, the ring, the unbinding \' t of the hair, and the renunciation of property I rights. A man wants, and has always, with I rare exception, wanted his own wife and his i own children. There is much in the German I expressions, meine Frau and mein Mann, It is this instinct in the woman which makes her, and has always made her, though often without other extended private property rights or desires of her own, strenuously insist on a private property right in her husband and in her children. It is this instinct which has destroyed polygamy throughout the civilized world, and practically destroyed the harem in the few countries where polygamy may still be found ; for, though polygamy may bring sexual gratification to the man, where this instinct exists, it can bring to him no domestic peace. It is also to be noted that it has only been comparatively recently that the offenses of rape and of adultery have in any measure been looked upon as offenses against society. They have for a long period of time and in every country been regarded as offenses against property merely, and it has been the property of the husband rather than the chastity of the woman which has been sought to be protected. Until woman, indeed, began to be looked upon as an individual capable of owning property, and not as a mere chattel herself, the protection of her virtue seems, except in so far as it was the property of others, to have been a matter of but little concern.

It is hardly true that the individualism of the Anglo-Saxon as now developed has in the history of the pjast been the rule rather than the exception, or that it is the rule even today. For the communistic idea was perhaps to a large extent the original idea, and the system once being established, it took centuries to uproot it, and in many instances it has never been uprooted. The communistic idea has, indeed, everywhere at one time or another had a footing where wants were few and nature beneficent, and all that men had to do was to gather and to take. It perhaps began, as far as the inheritance of the modem world is concerned, in the steppes of Asia, America, and South Africa, where nomad peoples spread over boundless prairies, where the domestic cattle would grow and increase as the buffalo, and where wants and desires were few and intercourse with other races had not yet stimulated the desire for private land or private cattle.

Gradually, however, as men began to think of fine raiment and jewels and " coats of many colors " ; and we might say everywhere, when the struggle for existence became tense, we seel/ the idea of private property springing forth,// first in one's weapons and in his clothing, then ( in his cattle and personal property and last, perhaps, in the land. As these primitive races emerged from their strictly nomad and pastoral stage, we find them blindly clinging to their primary formation, but we see the communistic idea breaking down wherever there was any real competition or desire or necessity for a fixed location.

The gradual evolution of the Hebrew law of property is very suggestive and typical.. These Hebrews, though a nomad people, had early come in contact with the Chaldean civilization. Abraham, though a nomad, had emigrated from Ur of the Chaldees. The Chaldeans had not merely a highly developed system of agriculture, but factories and industries and a highly developed trade. Abraham, then, it is fair to assume, had other wants than those of food and clothing which would merely cover his nakedness, and saw the value in flocks and in herds which was above those primitive wants. He seems, also, when he made the arrangement with Lot ( Gen. xiii ) as to the division of th^ grazing grounds, to have realized to some extent the necessity of definite landed areas, v