English sought to avoid publicity of transfer. Systems of registration have been common in America, with provisions that certified copies of the records shall be admissible in evidence and that unrecorded deeds shall be of no effect against subsequent purchasers without actual notice. When land has been registered a certificate of title is made. out and kept in the office of the register and a duplicate given to the owner. The deeds made subsequently, instead of passing title operate only as contracts to convey and as authority to the registrar to transfer the title. The transfer itself is effected by the surrender of the duplicate certificate of title and the issuing of a new certificate to the transferree. Transfers by descent, devise or judicial process are made by the registrar on the authority of the court having jurisdiction. Transfer is facilitated throughout the west by the rectangular land survey system.

The land policy of the government has fostered private property. From 1784 to 1801 land was sold by the government in large quantities by special contracts. From 1800 to 1820, 18,000,000 acres were sold in small lots on credit. In the next twenty years 76,000,000 acres in lots to suit purchasers were sold for cash. After 1837 by the preemption system the most desirable lands were reserved for actual settlement at a low price. Under the homestead system (1862), and the timber culture act (1873) 150,000,000 acres have passed into private hands. Since 1880 sales have averaged 4,000,000 acres yearly. The minimum price of ordinary lands has been for many years $1.25 an acre. The new states have been granted 25,500,000 acres for internal improvements, 500,000,000 acres of saline lands, 68,000,000 acres for school purposes, 1,000,000 acres for universities and 10,000,000 acres for agricultural colleges. 23,000,000 acres were granted to new states in 1890-1, and 50,000,000

acres to railroads before 1873.1 The total amount of public lands passing into private ownership between 1898 and. 1905 was 51,917,215.15 acres.2

The multiplication and complexity of the laws defining and protecting the individual right in property indicate the extreme of the prevalence of the conception of private property, while on the other hand they emphasize the dependence of such property on the social sanction. "The payment of a debt cannot be enforced against the government by a suit, but claims against it are none the less legal or equitable on that account.'

" 3

In illustration of the recent definition given to private property may be cited the special laws of Kentucky (1892) and New York (1903) for the protection of ginseng gardens from burglary. Thirteen states passed laws relating to interference with electric wires, or the diversion of electric currents. Florida (1903) increased the penalty for malicious injury to fences to a possible ten years imprisonment and $10,000 fine. Minnesota punishes the thief who sweeps any railroad car while in transit or standing on any railroad track in the state."

The extreme conception of liberty to own was expressed by John Quincy Adams: "The moment that the idea is admitted into society that property is not as sacred as the laws of God, anarchy and tyranny begin." The American liberty to own land as nearly as possible as a chattel is the most complete in history.

1 See Hart, in Bullock's Readings in Finance, pp. 64-9.

2 Congressional Record, June 27, 1906, p. 9574.

3 Emerson vs. Hall, 13 Peters (U. S.), 412.

4 N. Y. Lib. Bul. of Leg., 87, d18.

N. Y. Library Bulletin of Legislation, 87, d18-20.

• Quoted in Willoughby, Rights and Duties of American Citizenship,

p. 65.

CHAPTER VII

LIBERTY TO OWN CORPORATE PROPERTY IN AMERICA

INDUSTRY and commerce being of a more evidently public nature than slaves and land were more slowly reduced to private property. American enterprise was harassed and repressed by the British mercantile theory, of buying nothing and selling everything. Thus in 1631 an export duty of 3s. 4d. was put on every piece of woolen broadcloth.' The colonists themselves limited commercial freedom. Thus the Massachusetts Laws of 1649 show regulations of prices and rates of interest, and as late as 1777 an elaborate tariff of charges for labor and merchandise was enacted for Boston, although it was soon repealed.2

Liberty increased in the form of lawlessness in the long continued evasion of the navigation acts by which the colonies were excluded from the carrying trade. Thus in 1700 one-third of the trade of New York and Boston was in violation of the law. Writs of assistance and the like served only to make liberty lawful.

Before there could be real liberty in the ownership of trade and industry, there must be a stable national unity to guarantee freedom from foreign aggression and end the commercial wars at home, which caused Washington to say: "We are one nation today and thirteen tomorrow. Who will treat with us on these terms." The "more per

1 Wright, Industrial Evolution of the U. S., p. 7.

2 Freund, The Police Power, p. 384.

118

[462

fect union" and the constitutional power of Congress to regulate commerce, and the decisions of the courts sustaining the sovereignity of the United States secured such unity.

The increase of machinery and population and the resulting interdependence and intricacy of relations in associative production and ownership developed a form of exchangable representatives of individual relations. This capitalization of status appears in the enormous extension of credit and in the shares of corporations. In 1904 there was $3,908,509,152 of deposit currency,' which was a sum greater than the coinage of the mints of the United States from 1792 to 1897.

The mere partnership in which each partner was bound for the entire indebtedness and which was dissolved by death of a partner was inadequate for the large enterprise necessary to commercial development. Industry was developed by the device of an artificial person with larger powers and smaller responsibilities than individuals and with larger economic responsibilities and smaller powers than the state. "As touching corporations the opinion of Manwood, chief baron was this that they were invisible, immortal, having no conscience or soul and that therefore no subpoena lieth against them, they cannot speak, nor appear in person but by attorney." Nevertheless this corporation is an institution whose profits accrue to individuals. The fiction of a corporate entity has served chiefly as a cloak of innocence. "The fact must be constantly kept in review that the metaphysical entity has no thought or will of its own, that an act ascribed to it emanates from and is the act of individuals personified by it." Since these corporations are "artificial, intangible invisible and existing only in contemplation

2

1 Statistical Abstract, 1905, p. 114.

2 49 Ohio, 137, cited by Horack, Industrial Corporations, p. 15.

1

of the law," and thus are more clearly creatures of the state than landed property, and since they are more evidently "affected with a public interest," it has not been possible for ownership in them to grow into such private property as has been conceded to mere physical possession. But a series of liberties to own corporate shares has approximated them to private property. Before the right to share in the management of corporate enterprise could be conceded to any man with capital to invest, political prerogatives must be diminshed. Earlier corporations were distinctively municipal. Jealousy of the prerogatives of government led England to oppose the exercise of political corporate functions by the colonists and to insist that the colonies had never been public governments. The necessity of granting municipal corporate powers and charters to religious bodies led Massachusetts to the incorporation of Harvard College in 1650, but upon the restoration of the king this act was punished as an invasion of the rights of the crown. The same jealousy of corporate powers, through their experience with proprietary government caused the colonists themselves to oppose charters. This jealousy also led Parliament in 1741 to forbid incorporation for business purposes. Up to that time there had been but three such incorporations. Connecticut (1732) gave a perpetual charter to a "society for promoting and carrying on trade and commerce with any of his majesty's dominions and for encouraging the fishery, etc., as well for the common good as for their own private interest." This institution became a bank, inflated the currency and was suspended “as not for the peace and health of the government." 2 In 1688 a petition was presented to the crown for a charter of incorpor

1 Marshall, quoted in Small, Am. Journal of Sociology, i, p. 398. 2 Baldwin, Modern Political Institutions, p. 185.