The problems of the world cannot possibly be solved by skeptics or cynics whose horizons are limited by the obvious realities. We need men who can dream of things that never were. Kelso, Louis O. [From “Karl Marx: The Almost Capitalist,” American Bar Association Journal , March 1957.]: Error No. 2: Marx’s Failure to Understand the Political Significance of Property. Before examining Marx’s second critical error, it may be helpful to take note of what the concept “property” means in law and economics. It is an aggregate of the rights, powers and privileges, recognized by the laws of the nation, which an individual may possess with respect to various objects. Property is not the object owned, but the sum total of the “rights” which an individual may “own” in such an object. These in general include the rights of (1) possessing, (2) excluding others, (3) disposing or transferring, (4) using, (5) enjoying the fruits, profits, product or increase, and (6) of destroying or injuring, if the owner so desires. In a civilized society, these rights are only as effective as the laws which provide for their enforcement. The English common law, adopted into the fabric of American law, recognizes that the rights of property are subject to the limitations that (1) things owned may not be so used as to injure others or the property of others, and (2) that they may not be used in ways contrary to the general welfare of the people as a whole. From this definition of private property, a purely functional and practical understanding of the nature of property becomes clear. Property in everyday life, is the right of control. Property in Land. With respect to property in land, we need merely note that the acquisition of an original title to land from a sovereign is a political act, and not the result of operations of the economy. If the original distribution of land unduly favors any group or type or persons, it is a political defect and not a defect in the operation of the economy as such. A capitalistic economy assumes and recognizes the private ownership of land. It may, as under the federal and state mining laws and federal homestead acts, encourage private ownership of land by facilitating private purchasing of mining, timber, agricultural, residential or recreational lands. Property in Capital. In a capitalistic economy, private ownership in all other articles of wealth is equal in importance to property in land. From the standpoint of the distributive aspects of a capitalistic economy, property in capital–the tools, machinery, equipment, plants, power systems, railroads, trucks, tractors, factories, financial working capital and the like–is of special significance. This is true because of the growing dependence of production upon capital instruments. Of the three components of production land is the passive1 source of almost all material things except those which come from the air and the sea, while labor and capital are the active factors of production. Labor and capital produce the goods and services of the economy, using raw materials obtained, for the most part, from land. Just as private property in land includes the right to all rents, the proceeds of sale of minerals and other elements or substances contained in land, private property in capital includes the right to the wealth produced by capital. The value added to iron ore by the capital instruments of a steel mill becomes the property of the owners of the steel mill. So in the case of all other capital instruments. Property in Labor. What is the relationship of the worker to the value which he creates through his work? It has been said that no one has ever questioned the right of a worker to the fruits of his labor. Actually, as was long ago recognized by John Locke and Jean Jacques Rousseau, the right of the worker to the value he creates is nothing more than the particular type of private property applicable to labor. Each worker, they said, has a right of private property in his capacity to produce wealth through his labor and in the value which he creates.
1. The right of private ownership of land is abolished forever; land cannot be sold, nor leased, nor mortgaged, nor alienated in any way. All dominical lands, lands attached to titles, lands belonging to the Emperor’s cabinet, to monasteries, churches, possession lands, entailed lands, private estates, communal lands, peasant free-holds, and others, are confiscated without compensation, and become national property, and are placed at the disposition of the workers who cultivate them.
(1.) All private ownership of land is abolished immediately without compensation.
[I]n the view of the Founding Fathers of this country, a widespread distribution of property ownership was essential to the preservation of individual liberty and a republican form of government. In their day, of course, they assumed that the seemingly limitless land of the new nation afforded the opportunity for every man to own a freehold farm. Some, however, looked ahead to the important role of property ownership in preserving the American experiment in a distant day and age, when America would lose its predominately agricultural character. As James Madison said in 1787: In future times a great majority of the people will not only be without land, but without any sort of property. These will either combine under the influence of their common situation; in which case the rights of property and the public liberty will not be secure in their hands, or, which is more probable, they will become the tools of opulence and ambition; in which case there will be equal danger on another side. Today, of course, America has come a long way from its origins as a nation of Jeffersonian yeomen. As we became urbanized and industrialized, we tended to lose sight of the importance of widespread property ownership. No longer can we return, as a people, to an 18th century way of life. Yet we should remember that private property is an indispensable part of the foundation of a free country. As time and technology advance, we need to reshape the Founding Fathers’ idea of the importance of widespread property ownership to fit new circumstances. This is particularly true in a Nation in which millions of families now have no ownership stake in anything greater than a television set or secondhand automobile. [ Congressional Record , June 8, 1971, p. S8483.]
In our time, in particular, there exists another form of ownership which is becoming no less important than land: the possession of know-how, technology and skill . The wealth of the industrialized nations is based much more on this kind of ownership than on natural resources. [ Centesimus Annus, §32, 1991.]
The broad rich acres of our agricultural plains have been long preserved by nature to become her untrammeled gift to a people civilized and free, upon which should rest in well-distributed ownership the numerous homes of enlightened, equal and fraternal citizens.…Nor should our vast tracts of land be yielded up to the monopoly of corporations or grasping individuals, as appears to be much the tendency under the existing statute. I cannot help but think it perilous to suffer these lands or the sources of their irrigation to fall into the hands of monopolies, which by such means may exercise lordship over the areas dependent on their treatment for productiveness. [Message to Congress, December 3, 1888.]
The hated system of land tenure, so contributory to general unrest in Asia, has been abolished. Every farmer is now accorded the right and dignity of ownership of the land he long has tilled. He thus reaps the full fruits which result from his toil and labors with the incentive of free enterprise to maximize his effort to achieve increasing production. Representing over a half of Japan’s total population, the agriculture workers have become an invincible barrier against the advance of socialistic ideas which would relegate all to the indignity of state servitude. [Address at Cleveland, Ohio, September 6, 1951.]
The fact that God has given the earth for the use and enjoyment of the whole human race can in no way be a bar to the owning of private property. For God has granted the earth to mankind in general, not in the sense that all without distinction can deal with it as they like, but rather that no part of it was assigned to any one in particular, and that the limits of private possession have been left to be fixed by man’s own industry, and by the laws of individual races. Moreover, the earth, even though apportioned among private owners, ceases not thereby to minister to the needs of all, inasmuch as there is not one who does not sustain life from what the land produces. Those who do not possess the soil contribute their labor; hence, it may truly be said that all human subsistence is derived either from labor on one’s own land, or from some toil, some calling, which is paid for either in the produce of the land itself, or in that which is exchanged for what the land brings forth. Here, again, we have further proof that private ownership is in accordance with the law of nature. Truly, that which is required for the preservation of life, and for life’s well-being, is produced in great abundance from the soil, but not until man has brought it into cultivation and expended upon it his solicitude and skill. Now, when man thus turns the activity of his mind and the strength of his body toward procuring the fruits of nature, by such act he makes his own that portion of nature’s field which he cultivates — that portion on which he leaves, as it were, the impress of his personality; and it cannot but be just that he should possess that portion as his very own, and have a right to hold it without any one being justified in violating that right. [ Rerum Novarum , §§ 7-8, 1891.]
Under the influence of feudal ideas and the growth of the modern views as to ownership of land, the chiefs and other lords of clans claimed in modern times the right of best owing the tribe-land as _turcrec_, instead of stock, and receiving rent not for cattle and other chattels as in former times, but proportionate to the extent of land given to them. The _turcrec_-land seems to have been at first given upon the same terms as _turcrec_-stock, but gradually a system of short leases grew up; sometimes, too, it was given on mortgage. In the Highlands of Scotland _ceiles_ who received _turcrec_-land were called "taksmen." On the death of the chief or lord, his successor either bestowed the land upon the same person or gave it to some other relative. In this way in each generation new families came into possession of land, and others sank into the mass of mere tribesmen. Sometimes a "taksman" succeeded in acquiring his land in perpetuity, by gift, marriage or purchase, or even by the "strong hand." The universal prevalence of exchangeable allotments, or the rundale system, shows that down to even comparatively modern times some of the land was still recognized as the property of the tribe, and was cultivated in village communities. Entry: A
To group (a) belong territorial differences in regard to ownership of land and rights of fishing at sea; to group (b) belong pecuniary claims in respect of acts wrongfully done to one or more subjects of one state by, or with the authority of, another state. To enumerate even a tenth part of the successful arbitrations in recent times would occupy too much space. Some prominent examples (dealt with elsewhere under their appropriate titles) are the dispute between the United States and Great Britain respecting the "Alabama" and other vessels employed by the Confederate government during the American Civil War (award in 1872); that between the same powers respecting the fur-seal fishery in Bering Sea (award in 1893); that between Great Britain and Venezuela respecting the boundary of British Guiana (award in 1899); that between Great Britain, the United States and Portugal respecting the Delagoa railway (award in 1900); that between Great Britain and the United States respecting the boundary of Alaska (award in 1903). The long-standing Newfoundland fishery dispute with France (finally settled in 1904) is dealt with under Newfoundland. Other examples are shortly noticed in the tables on p. 329, which although by no means exhaustive, sufficiently indicate the scope and trend of arbitration during the years covered. The cases decided by the permanent tribunal at the Hague established in 1900 are not included in these tables. They are separately discussed later. Entry: ARBITRATION
The land of a feudal owner was subject to the risk of forfeiture for treason, and to military and other burdens. The common law did not allow him to dispose of it by will. By the law of mortmain religious houses were prohibited from acquiring it. The desire to escape from these burdens and limitations gave rise to the practice of making feoffments to the _use_ of, or upon trust for, persons other than those to whom the seisin or legal possession was delivered. The common law recognized only the legal tenant; but the _cestui que use_ or beneficial owner gradually secured for his wishes and directions concerning the profits of the land the strong protection of the chancellors as exercising the equitable jurisdiction of the king. The resulting loss to the crown and the great lords of the feudal dues and privileges, coupled with the public disadvantages arising from ownership of land which, in an increasing degree, was merely nominal, brought about the passing in the year 1535 of the famous Statute of Uses, the object of which was to destroy altogether the system of uses and equitable estates. It enacted, in substance, that whoever should have a use or trust in any hereditaments should be deemed to have the legal seisin, estate and possession for the same interest that he had in the use; in other words, that he should become in effect the feudal tenant without actual delivery of possession to him by the actual feoffee to uses or trustee: In its result the statute was a fiasco. It was solemnly decided that the act transferred the legal possession to the use once only, and that in the case of a conveyance to A to the use of B to the use of or upon trust for C, it gave the legal estate to B, and left C with an interest in the position of the use before the statute. Thus was completed the foundation of the modern system of trusts fastened upon legal estates and protected by the equitable doctrines and practice of the judicature. Entry: CONVEYANCING
All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out; but slavery continued to exist. The Church, however, was preparing the transformation of the slave into the serf, by giving force and validity to their marriages, in cases, at least, when the master had approved of them, and by forbidding the latter unjustly to seize the slave's _peculium_. But between the free man (_ingenuus_) and the slave lay a number of persons of intermediate status; they possessed legal personality but were subject to incapacities of various kinds, and had to perform various duties towards other men. There was, to begin with, the Roman colonist (_colonus_), a class as to the origin of which there is still a controversy, and of which there is no clear mention in the laws before the 4th century; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the _liti_ (_litus_ or _lidus_), a similar class of Germanic origin; also the greater number of the freedmen or descendants of freedmen. Many free men who had fled to the great landowners for protection took, by arrangement or by custom, a similar position. Under the Merovingian régime, and especially under the Carolingians, the occupation of the land tended to assume the character of tenure; but free ownership of land continued to exist under the name of _alod_ (_alodis_), and there is even evidence for the existence of this in the form of small properties, held by free men; the capitularies contain numerous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of these properties. Entry: FRENCH
_Roman Period._--It was the Roman conquest and rule which really formed Gaul, for she was Romanized to the point of losing almost completely that which persists most stubbornly in a conquered nation, namely, the language; the Breton-speaking population came to France later, from Britain. The institutions of Roman Gaul became identical with those of the Roman empire, provincial and municipal government undergoing the same evolution as in the other parts of the empire. It was under Roman supremacy too, as M. d'Arbois de Jubainville has shown, that the ownership of land became personal and free in Gaul. The law for the Gallo-Romans was that which was administered by the _conventus_ of the magistrate; there are only a few peculiarities, mere Gallicisms, resulting from conventions or usage, which are pointed out by Roman jurisconsults of the classical age. The administrative reforms of Diocletian and Constantine applied to Gaul as to the rest of the empire. Gaul under this rule consisted of seventeen provinces, divided between two dioceses, ten in the diocese of the Gauls, under the authority of the praetorian prefect, who resided at Treves; and the other seven in the _dioecesis septem provinciarum_, under the authority of a _vicarius_. The Gallo-Romans became Christian with the other subjects of the empire; the Church extended thither her powerful organization modelled on the administrative organization, each _civitas_ having a bishop, just as it had a _curia_ and municipal magistrates. But, although endowed with privileges by the Christian emperors, the Church did not yet encroach upon the civil power. She had the right of acquiring property, of holding councils, subject to the imperial authority, and of the free election of bishops. But only the first germs of ecclesiastical jurisdiction are to be traced. In virtue of the laws, the bishops were privileged arbitrators, and in the matter of public sins exercised a disciplinary jurisdiction over the clergy and the faithful. In the second half of the 4th century, monasteries appeared in Gaul. After the fall of the Western empire, there was left to the Gallo-Romans as an expression of its law, which was also theirs, a written legislation. It consisted of the imperial constitutions, contained in the Gregorian, Hermogenian and Theodosian codes (the two former being private compilations, and the third an official collection), and the writings of the five jurists (Gaius, Papinian, Paulus, Ulpian and Modestinus), to which Valentinian III. had in 426 given the force of law. Entry: FRENCH
In endeavouring, with the aid of the church, to establish his kingship on the Western model Stephen had the immense advantage of building on unencumbered ground, the greater part of the soil of the country being at his absolute disposal. His authority, too, was absolute, being tempered only by the shadowy right of the Magyar nation to meet in general assembly; and this authority he was careful not to compromise by any slavish imitation of that feudal polity by which in the West the royal power was becoming obscured. Although he broke off the Magyar tribal system, encouraged the private ownership of land, and even made grants of land on condition of military service--in order to secure an armed force independent of the national levy--he based his new principle of government, not on feudalism, but on the organization of the Frankish empire, which he adapted to suit the peculiar exigencies of his realm. Of the institutions thus borrowed and adapted the most notable was the famous county system which still plays so conspicuous a part in Hungarian national life. Central and western Hungary (the south and north-east still being desolate) were divided into forty-six counties (_vármegyek_, Lat. _comitatus_). At the head of each county was placed a count, or lord-lieutenant[15] (_Föispán_, Lat. _comes_), who nominated his subordinate officials: the castellan (_várnagy_), chief captain (_hadnagy_) and "hundredor" (_százados_, Lat. _centurio_). The lord-lieutenant was nominated by the king, whom he was bound to follow to battle at the first summons. Two-thirds of the revenue of the county went into the royal treasury, the remaining third the lord-lieutenant retained for administrative purposes. In the county system were included all the inhabitants of the country save two classes: the still numerous pagan clans, and those nobles who were attached to the king's person, from whom he selected his chief officers of state and the members of his council, of which we now hear for the first time. Entry: II
_The Fujiwara Era._--In the _Chronicles of Japan_ the year 672 is treated as a kind of interregnum. It was in truth a year of something like anarchy, a great part of it being occupied by a conflict of unparalleled magnitude between Prince Otomo (called in history Emperor Kobun) and Prince Oama, who emerged victorious and is historically entitled Temmu (673-686). The four centuries that followed are conveniently designated the Fujiwara era, because throughout that long interval affairs of state were controlled by the Fujiwara family, whose daughters were given as consorts to successive sovereigns and whose sons filled all the high administrative posts. It has been related above that Kamako, chief of the Shinto officials, inspired the assassination of the Soga chief, Iruka, and thus defeated the latter's designs upon the throne in the days of the empress Kogyoku. Kamako, better known to subsequent generations as Kamatari, was thenceforth regarded with unlimited favour by successive sovereigns, and just before his death in 670, the family name of Fujiwara was bestowed on him by the emperor Tenchi. Kamatari himself deserved all the honour he received, but his descendants abused the high trust reposed in them, reduced the sovereign to a mere puppet, and exercised Imperial authority without openly usurping it. Much of this was due to the adoption of Chinese administrative systems, a process which may be said to have commenced during the reign of Kotoku (645-654) and to have continued almost uninterruptedly until the 11th century. Under these systems the emperor ceased directly to exercise supreme civil or military power: he became merely the source of authority, not its wielder, the civil functions being delegated to a bureaucracy and the military to a soldier class. Possibly had the custom held of transferring the capital to a new site on each change of sovereign, and had the growth of luxurious habits been thus checked, the comparatively simple life of early times might have held the throne and the people in closer contact. But from the beginning of the 8th century a strong tendency to avoid these costly migrations developed itself. In 709 the court took up its residence at Nara, remaining there until 784; ten years after the latter date Kioto became the permanent metropolis. The capital at Nara--established during the reign of the empress Gemmyo (708-715)--was built on the plan of the Chinese metropolis. It had nine gates and nine avenues, the palace being situated in the northern section and approached by a broad, straight avenue, which divided the city into two perfectly equal halves, all the other streets running parallel to this main avenue or at right angles to it. Seven sovereigns reigned at Heijo (castle of peace), as Nara is historically called, and, during this period of 75 years, seven of the grandest temples ever seen in Japan were erected; a multitude of idols were cast, among them a colossal bronze Daibutsu 53½ ft. high; large temple-bells were founded, and all the best artists and artisans of the era devoted their services to these works. This religious mania reached its acme in the reign of the emperor Shomu (724-748), a man equally superstitious and addicted to display. In Temmu's time the custom had been introduced of compelling large numbers of persons to enter the Buddhist priesthood with the object of propitiating heaven's aid to heal the illness of an illustrious personage. In Shomu's day every natural calamity or abnormal phenomenon was regarded as calling for religious services on a large scale, and the great expense involved in all these buildings and ceremonials, supplemented by lavish outlays on court pageants, was severely felt by the nation. The condition of the agricultural class, who were the chief tax-payers, was further aggravated by the operation of the emperor Kotoku's land system, which rendered tenure so uncertain as to deter improvements. Therefore, in the Nara epoch, the principle of private ownership of land began to be recognized. Attention was also paid to road-making, bridge-building, river control and house construction, a special feature of this last being the use of tiles for roofing purposes in place of the shingles or thatch hitherto employed. In all these steps of progress Buddhist priests took an active part. Costumes were now governed by purely Chinese fashions. This change had been gradually introduced from the time of Kotoku's legislative measures--generally called the Taikwa reforms after the name of the era (645-650) of their adoption--and was rendered more thorough by supplementary enactments in the period 701-703 while Mommu occupied the throne. Ladies seem by this time to have abandoned the strings of beads worn in early eras round the neck, wrists and ankles. They used ornaments of gold, silver or jade in their hair, but in other respects their habiliments closely resembled those of men, and to make the difference still less conspicuous they straddled their horses when riding. Attempts were made to facilitate travel by establishing stores of grain along the principal highways, but as yet there were no hostelries, and if a wayfarer did not find shelter in the house of a friend, he had to bivouac as best he could. Such a state of affairs in the provinces offered a marked contrast to the luxurious indulgence which had now begun to prevail in the capital. There festivals of various kinds, dancing, verse-composing, flower picnics, archery, polo, football--of a very refined nature--hawking, hunting and gambling absorbed the attention of the aristocracy. Nothing disturbed the serenity of the epoch except a revolt of the northern Yemishi, which was temporarily subdued by a Fujiwara general, for the Fujiwara had not yet laid aside the martial habits of their ancestors. In 794 the Imperial capital was transferred from Nara to Kioto by order of the emperor Kwammu, one of the greatest of Japanese sovereigns. Education, the organization of the civil service, riparian works, irrigation improvements, the separation of religion from politics, the abolition of sinecure offices, devices for encouraging and assisting agriculture, all received attention from him. But a twenty-two years' campaign against the northern Yemishi; the building of numerous temples; the indulgence of such a passionate love of the chase that he organized 140 hunting excursions during his reign of 25 years; profuse extravagance on the part of the aristocracy in Kioto and the exactions of provincial nobles, conspired to sink the working classes into greater depths of hardship than ever. Farmers had to borrow money and seed-rice from local officials or Buddhist temples, hypothecating their land as security; thus the temples and the nobles extended their already great estates, whilst the agricultural population gradually fell into a position of practical serfdom. Entry: IX