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CHAPTER II

DISTRIBUTION

THE history of ownership is the history of an alternation between relatively private property and tendency to estate. Absolute private property could be found only in an absolute tyranny or in seclusion. Complete equilibrum could be found only in some chimerical 'pure democracy. There is no such thing as "private property." As the inner personality is not private but rather a synthesis of derived emotions and ideas, is social, indeed, as "one's individual personality is for the most part a product of one's intercourse with other personalities," so the outer personality or property cannot be entirely private. Entire privacy of either the inner or the outer personality would be the direst poverty to the "social animal." "The right of property has two elements, social and individual." The "orbit" of the individual's outer personality contains the “infringement " of the personalities of other individuals. That the term "private property" is not used in an absolute sense is seen in the common definitions. Blackstone says: 3 "Private property is the sole and despotic dominion which one man claims and exercises over external things of the world in total exclusion of any one else in the universe." Suppose for a moment that "sole and despotic dominion" and 1 Giddings, F. H., Democracy and Empire, p. 31.

2 Fichte, quoted in de Laveleye, de la Propriété, p. 54.

3 Bk. ii: I.

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"total exclusion" were possible, these alone would give little value to property. A man might be in the middle of a field of a thousand acres all alone. If he were unable to cultivate it himself, and other men should determine to concede to him his right of "total exclusion," so that he could command no assistance in the cultivation of his field, his "sole and despotic dominion" would be worth little more than the empire over an iceberg. "Private prop

erty is the right to enjoy and dispose of certain things in the most absolute manner, as he pleases, provided he makes no use of them prohibited by law.' But the law is nothing but the social infringement of the individual's "absolute manner." "Private property is the right in chattels in no way dependent upon another man's courtesy.” 2 The universal existence of laws of property is evidence of the tenure of property by "courtesy." Austin defines private property as "a right over a determinate thing, indefinite in point of user, unrestrained in point of disposition and unlimited in point of duration.” 3 An examination of the conditions of ownership makes it seem necessary to drop the negatives of the last definition. John Stuart Mill says that private property is the right to one's own faculties. But ownership of only one's own faculties would be poverty. To these loose definitions may be opposed the more exact statement of Von Ihering: "It is not true that property carries with it an absolute right of control. Property in such a form cannot be tolerated by society and never has been tolerated. The idea of property cannot carry with it anything that is contrary to the idea of society."

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1 Dow vs. Guild, 31 Cal., 637.

2 American and English Law Encyclopedia, xix: 284.

3 Jurisprudence, p. 477.

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+ Political Economy, i, 28.

How does the idea of society limit the idea of property? "The right of property is so far limited that its use may be regulated from time to time by law, so as to prevent its being injurious to the equal enjoyment by others of their property or inconsistent with the rights of the community." 1 The power of the state over private property is well defined: "it may take the property for a public use, upon compensation being made or secured. It may take by taxation. It may control the use so as to secure equal enjoyment.

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Since absolute private property is impossible, what content shall be given to the necessary term private property? Property is all the undefined uses of a thing which remain over after the definite and specific uses of others have been deducted." It is an "indefinite residuum." It is essential to the individual's self realization that he possess the greatest allowable residuum. "A man does not possess a demesne because he is a prince, but he is a prince because he possesses a demesne." + Seneca said: "It is the census that raises a man to the dignity of a senator." "Die Mensch ohne Eigenthum hört auf Mensch zu sein.' The financial magnate is more potent politically than the politician. His power is like that of the Nukahiva chieftain, who had a right to be chief because of the number of his breadfruit and cocoanut trees; or of the old Brehon chieftain whose authority was based on the number of his cows. If material property is essential to the complete expression

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1 Washburn, Real Property, vol. 2, p. 2.

2 Anderson, Dictionary of Law, Private Property."

3 Commons, J. R., Distribution of Wealth.

4 Haller, quoted in Loria, Economic Foundations of Society, p. 331.

5 Quoted in Loria, op. cit., p. 137.

Samter, op. cit., p. 3.

7 Letourneau, op. cit., p. 70.

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of powerful personality, it is no less essential to that of lesser persons. "Property is an absolute condition of liberty." Booker Washington says: What the negro needs is private property, Christian character and education." Civil duties and capacities attach chiefly to economic property, as does the sense of responsibility. If then democracy is desirable, it is equally desirable that those who shall exercise civil duties shall have that security that develops responsibility. Aristotle said: " Make even the poor owner of a small inheritance. The equalization of fortunes is the only method of preventing discord." Aristotle and Plato sought equality of conditions in ideal constitutions by limiting accumulations, as Lycurgus and Minos are said to have based real constitutions on new divisions of property; and every political idealist since has based the state on a relatively equalized property.

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If social institutions guarantee inviolability of person, they must also guarantee security of outer personality or property. The sacredness of private property was expressed by Plato: "If a man leaves behind him some part of his property, whether intentionally or unintentionally, let him who may come upon the left property suffer it to remain, reflecting that such things are under the protection of the goddess of ways and are dedicated to her by the law." "Thou shalt not, if thou canst help, touch that which is mine, or remove the least thing which belongs to me without my consent; and may I be of a sound mind and do to others as I would that they should do to me." "May I never pray the gods to find the hidden treasure which another has laid up for himself and his family, he not being one of my ancestors, nor lift if I should find such a treas2 Politics, v: I.

1 Laveleye, op. cit., p. 334.

3 Laws, bk. xi.

ure." This divinity of property has been assailed by thieves and communists and most effectually by the covetous, who has most violated Plato's golden rule of property, whose one prayer to the gods is that he may find the hidden treasure, whose wand for its location is a representative of a thing, a stock, a bond, a mortgage, an usury. Naboth lost his patrimony by force; he would now lose it by mortgage or by speculation, and the new possessor need not appease the paternal divinities. The modern stock exchange makes the altar of the goddess of ways a cashier's counter and exhibits in new ways the anthropomorphism of the divinity of property. The avaricious deface their own Hermes. Since property is relation to men, sacred regard for any relation among men which subjects some men to others can be preserved only by the stability of the visible symbols of ownership. Accordingly patrimony loses sacredness with greater ease of transfer, with the developing immateriality of property. Immaterial rights facilitate encroachments on property. Then the efforts of government to fix the elusive quantity lessen private prerogative and bring social interest into plainer view. Not anarchism but the unsocial use of privilege is to be feared by those who lament the loss of content in the term private property. By the enforced intervention of government the social interest is made more conscious of itself, and less assured of the divinity of its institutions. It is then governed less by reverence and more by expediency.

As there is no private property which is not subject to social subtractions, so no completely balanced state is possible. The sacredness of property is not more a protection to the possessors of external physical nature and of servants than it is an incentive to those who do not possess to struggle for a share. The more secure a position the more desirable is its attainment. The struggle to attain