Changing Concepts of Private Property; B. Sparks

For whether the legal topic under consideration is the Code of Ham murabi or the most recent pro nouncement from the nearest local court, the rule of law involved is Bertel M. Sparks is Professor of Law at Duke University School of Law, Durham, N.C. likely to be concerned primarily with the relations of individuals to things. That is to say, it will concern some· concrete application of society's attitude toward or understanding of property. All this leads to the conclusion that any complete story of the changing concepts of private prop erty would include a complete his tory of civilized society. No such Herculean task is undertaken here. This paper will be limited to a consideration of the multiple nature of property rights and the power of the state to add to or subtract from those rights. Par ticular emphasis will be focused upon the owner's right to transfer his property interests regardless of how those interests may be defined.

583 584 THE FREEMAN October Property, a Bundle of Rights As stated earlier, the concept of private property is a legal con cept. That fact calls for some pre liminary explanation. When the layman uses the word property, he ordinarily thinks of houses and lands, articles of clothing, tools, machinery, and other things capa ble of being owned. To the lawyer the word property has an entirely different meaning. When the law yer uses the word property, he is not thinking of a man's posses sions or holdings. Instead he is thinking of a man's legal rights with respect to those things. There is the right to use, the right to exclude others, the right to sell, the right to mortgage or pledge, and many others. The legal pro fession has rarely ever attempted any complete catalogue of these rights. As lawyers they deal with particular rights as they present themselves without too much thought concerning other rights that may exist in the same object.

A man's "property" in a given object consists of the total bundle of rights he has in that object. This bundle of rights may be broken up and divided into its component parts in much the same way that a bundle of sticks may be broken into the individual sticks of which the bundle is com posed. The use of the term "private property" necessarily refers to the rights individual_ persons have in or to that particular thing. But no analysis of such private rights is complete without some atten tion being given to the rights of the group. It is the rights of the group, either real or pretended, that often places restrictions upon the rights that may exist in the individual. The expertise of the lawyer must be called upon to provide a working definition of the boundary between the rights of the private owner and the pow er of the state to regulate the use and enjoyment of those rights. Individual vs. Groups In his efforts to layout that boundary the lawyer is faced with the fundamental question whether the rights of dominion and control over the wealth of the world should rest in the individual or in the group. If such rights rest ultimately in the group, then we have common ownership which places title to the earth's re sources in the state and gives the individual only such rights of user as the state chooses to confer upon him. That theory is antag onistic and foreign to Western traditions, if not in fact to all civilized traditions. Nevertheless, it is a theory which, if not under stood, is in danger of being un wittingly accepted.

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 585 No Absolute Right Almost every American is ready to declare a strong belief in pri vate property but very few Amer icans can give any intelligible explanation of what they mean by private property. Sir William Blackstone, a famous legal scholar who has had tremendous influence upon Anglo-American institutions, began his definition of property by calling it an "absolute right ... which consists in the free use, enjoyment, and disposal of all [a person's] acquisitions without any control or diminution .... "1 Most Americans who have not given serious thought to the matter would probably be satisfied to end the definition there and to accept it as absolute dogma. But any careful examination of that in complete definition will convince us that it is insufficient standing alone. We know that that absolute right does not actually exist. The presence of a property tax, how ever small, places somequalifica tion upon it. But there are other qualifications. Our pious assertion that a man may do as he pleases with that which is his own is always qualified by the equally pious assertion that a man may not use his own in a manner to injure that of another. Blackstone 1 1 Blackstone, Commentaries 138 (Sharswood ed. 1874).

recognized that the right was less than absolute but neither he nor anyone else has ever been able to state clearly how much less. Blackstone completed his defini tion. by adding a phrase that tends to make his entire statement sound paradoxical. He said proper ty was an "absolute right ... with out any control or diminution, save only by the laws of the land." There is the rub. A man's prop erty in a given object includes absolute dominion over that ob ject except in so far as that dominion is qualified by the laws of the land. To what extent is that dominion qualified by the laws of the land? A more fundamental question could be, to what extent may it be so qualified? These are not hypothetical or purely academic questions. They are questions that are being en countered daily in the market place within the context of con crete cases. And when so en countered they must be answered.

The primary responsibility for providing the answers rests upon the legal profession, but at least some of that responsibility must be shared by every responsible citizen. When the state attempts to remove a particular right from that bundle of rights constituting private ownership, it is the lawyer who is called upon to decide whether that right is removable 586 THE FREEMAN October while private property remains, but it is the citizen whose right is being taken who must bear the consequences. If private property is a bundle of rights, the lawyer must search for the source of those rights before he can analyze any possible restriction upon their exercise. He must ask, from whence comes this right of private property anyway? Is it a funda mental, inalienable right or is it a mere privilege granted by the state as a matter of grace? If it is a mere pri vilege, it may be withdrawn by the state. If it may be withdrawn with impunity, the citizens are little more than slaves.

"Before and Higher Than Any Constitutional Sanction ll Numerous state constitutions have sought to give expression to the right of private property as being something that is funda mental and beyond the reach of political power in a free society. One of the strongest of such state ments is that found in the Consti tution of Arkansas where it is declared that "the right of prop erty is before and higher than any constitutional sanction."2 But that declaration probably does more to intensify than to solve the inquiry into the true source of this right that is "before and higher than any constitutional sanction." 2 Ark. Const. art. 2, sec. 22. John Locke, whose writings were well known and highly re garded by the founders of the American Republic, found a phil osophical basis for private prop erty in man's right to the integri ty of his own body. Locke inter preted the Holy Scriptures, which he considered binding upon all men, as granting all wealth of the earth to mankind in common. But Locke regarded every man as hav ing a prope~ty in his own person, in his own labor. He then con cluded that a man could by his labor remove a thing from its state of nature and place it within his private domain. 3 Locke's anal ysis of this point was accepted by Blackstone 4 and through him be came a part of the thinking of ordinary citizens of this country.

The extent to which this approach was diffused among all levels of the citizenry a few generations ago is illustrated by the fact that it was included as part of the grade school reading material pro vided in one of the most widely used series of texts available dur ing the latter part of the nine teenth and the early part of the twentieth centuries.!> 3 Locke, Two Treatises on Civil Gov ernment, Bk. II, c. V (George Routledge & Sons, 2nd ed. 1887). 4 2 Blackstone, Commen taries 1-15 (Sharswood ed. 1874). 5 McGuffey, Sixth Eclectic Reader410 415 (rev.ed. 1879).

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 587 Qualifications Upon the Rights of Ownership But Locke, Blackstone, and the state constitutions all recognize that property ownership is some thing less than absolute domin ion. Reference has already been made to .the qualification ex pressed by Blackstone. When the writers of the Arkansas Consti tution declared the right of prop erty to be "before and higher than any constitutional sanction," they hastened to add that "private property shall not be taken . . . without just compensation,"6 thus recognizing that there were cir cumstances under which private property could be taken. And when Locke set forth his doctrine con cerning a man's right to assert his private dominion over the earth's resources by joining his labor to those resources, he has tened to add the precaution that this is true, "at least where there is enough and as good left."7 Thus there is implicit in every analysis available thus far a recognition of a basic conflict between private ownership and public control.

There is an awareness that owner ship of a thing does not necessar ily mean absolute dominion over that thing. 6 Ark. Canst. art. 2, sec. 22. 7 Locke, Two Treatises on Civil Gov ernment, Bk. II, c. V. sec. 27 (George Routledge & Sons, 2d ed. 1887). What Incidents of Ownership Does the Law Recognize? All this leads to an inquiry into the meaning of ownership. A man's property in a thing has al ready been described as a bundle of rights with reference to that thing. Each right in the bundle of rights may be described as an incident of ownership. In so far as particular rights may be added to or subtracted from that bundle without destroying the bundle, ownership is an arbitrary term. Its meaning depends upon what incidents of ownership the law recognizes. The law's recognition of these incidents has never been a constant or a static thing. There has been a continuous change, and each change has brought with it a change in the meaning of owner ship and has thereby caused an alteration in the basic concept of private property.

Even during the early feudal period in England it was said that the man occupying and using a given tract of land owned it, but his ownership was a very limited one. It was a system of land ten ure under which, in the strictest sense, land was "held" but not "owned." The occupant or "own er" on the land actually held it under a superior lord to whom he owed certain obligations. The lord in turn usually held under a still higher lord and so on in an ascend588 THE FREEMAN October ing pyramid with the crown at the apex as chief lord who, in legal theory, owned all the land in Eng land. In a very real sense the "owner" actually on the land till ing the soil was bound to that land. He could not sell it without the lord's consent. 8 It was thought that this was necessary to avoid the possibility of having the lord's enemy installed on the land. The right of inheritance was restricted in that, when the owner died, his heir could not take up the estate until he was of age and then only upon payment of the approp~iate fees.

There were other incidents of feudal tenure which tended to re strict the meaning of ownership but it was the restrictions upon the freedom to transfer that held the center of the stage. Even in this tenurial system men occupying the land were called freemen but in fact they were not free. The restrictions upon the individual's right to transfer his holdings lit erally tied him to the land. His station in life was determined more by his status with reference 8 The exact extent and nature of this restriction upon alienability is a bit un certain but it is clear that restrictions did exist. In this connection it is interesting to note that in 1256 Henry III issued a writ declaring it an invasion of Royal rights to sell without his consent lands held under him. See 1 Pollock & Maitland, History of English Law, sec. 9 (2d ed. 1923). to the land than by his own efforts and ingenuity. Of course the intermediate lord was under a similar burden so far as his efforts to transfer his own holdings were concerned. But his position was different in that his holdings were larger and of a higher order. He was economically secure and had a comfortable in come. It was the fellow who had the least that was under the heav iest burden, for until the man higher up let loose, there was nothing available for the man at the bottom to acquire. And wheth er a clog on the right to sell is labeled a medieval doctrine of feudal tenure or some civil rights act of the twentieth century, its effect in the market place is the same and the man at the bottom is always the loser.

Political freedom and the whole gamut of civil rights were impos sible until there existed the free dom of property which emerged as the burdens of feudal tenure were cast off. While these burdens were not cast off at a single stroke, what is probably the most signifi cant step along the way took place in 1290 when an act of Parliament extended to every free man the right to sell his lands or any part thereof without any interference from any intermediate lord. 9 Even !l "Statute Quia Emptores," 18 Edw. I, CC. 1-3 (1290).

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 589 after this enactment numerous burdensome incidents remained. Prominent among these were the control the lord had over the es tates of infant heirs and the ob ligation of the heir to pay a fee prior to taking up his inheritance. The Struggle Toward Freedom But with the single leap for ward taken in 1290 there began a step-by-step process which reached its climax when the last substan tial burden imposed by the ten urial system inaugurated by the Normans who conquered. England in 1066 was finally abolished in 1660.10 But it should be remem bered that it was truly a step-by step process and tha t each step was characterized by a bitter struggle. The legal history of that entire period can be quite accu ratelydescribed as a struggle for more incidents of ownership in the individual. Burdens and restric tions were being removed and new rights were being acquired by the owner. The bundle of private rights was expanding.

But the right to sell, including the right to give away or dissipate according to the owner's own wishes, continued to hold the cen ter of the stage. That right to sell, that economic mobility, or in the 10 "Statute Abolishing the Court of Wards and Liveries," 12 CaT. II, c. 24 (1660), jargon of the legal profession that freedom of alienation soon became the chief factor in the develop ment of individual freedom of all kinds. It also stimulated the eco nomic use of property. When the occupant of land became free to sell at a price agreeable to him without seeking the consent of his lord and without paying a fine to his lord for having done so, he began to take on the coloration of a free man in the true sense of that word. Ownership took on new meaning. It included a power to cash in as well as a power to use. And when that freedom was achieved, men no longer remained serfs, they no longer remained slaves, and the economy no longer remained static.

It is no mystery that the real beneficiaries of this political and economic transition were those who possessed the least; it was the "have nots" rather than the "haves." In any society those who are already wealthy, who are al ready entrenched, who "have it made" are more likely to be in terested in preserving their wealth than they are in searching for easier means of transferring it. Those of lesser means are the ones who are in a position to gain from freedom of exchange. And as soon as free economic mobility was achieved, the fellow at the very bottom of the feudal pyramid 590 THE FREEMAN October could exchange his services for a share of what was held by the man near the top. In this system of free exchange, not only was there no necessity for serfs or slaves, but there ceased to be any place for para sites. Property tended to shift to those who put it to the most eco nomic use. And there emerged the day of plenty which, although it is unique in the history of the world and is to this day confined to a comparatively smaIl part of the earth's surface, is so taken for granted in this country that there is a tendency to forget its source.

Restraints on future Use But as soon as man became free to transfer his property by either deed or wiIl without interference from the state, other kinds of in terference began to appear. There developed a theory of absolute ownership whose very existence tended toward its own destruction. If property ownership meant ab solute dominion, it was only log ical to assume that it included the power of the owner to dispose or transfer on his own terms. He could create any estate or interest he chose and the fact that the es tate or interest chosen tied up the property in an unproductive use long after the transferor had ceased to live appeared to make no difference. Property became tied up in families and became unavail able to future generations. The ty ing up of property in this manner is an exercise of freedom of the wiIl, a· favorite freedom of John Locke, but a fair question to ask is freedom of whose will? It be came a freedom of the dead to control the economic affairs of the living.

Both the advantages of freedom and the manner in which that freedom could be used to tie up property in a most unfortunate way can be iIlustrated by imagin ing some Sir Galahad emerging from the feudal period and finding himself the owner of a farm. What does that ownership mean? The farm, that is the soil, was there before Sir Galahad came; it will be there after he is gone. Sir Gal aha d's ownership, his property, does not refer to the soil. It refers to the rights Sir Galahad has in that soil. What are those rights? He has the important right of rais ing crops of his own choosing. He may erect whatever buildings he is capable of erecting. He may live in and occupy those buildings. He may exclude others from them. In addition to all these, and stiIl other rights, he has the right to trans fer his ownership to another. He may sell it or even give it away if he chooses. He may do either with out consulting any overlord or any one else other than his transferee.

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 591 He sells his farm and buys an other. He sells that one and buys still another. He finds that this freedom of alienation which is now an attribute of ownership is one of his most important free doms. It gives him mobility. It gives him freedom to change his occupation, to move his home to a new location. He is no longer bound to the land. Sir Galahad is a diligent worker and a shrewd businessman. His farming opera tions prosper. He invests and re invests. He buys and sells at a profit until he becomes the wealth iest man in the community. Sir Galahad acquired his vast holdings through the exercise of his own ingenuity in a free econ omy. It was the annexation of his own labor and his own skill to the wealth involved that made it his own. It would seem that he should be perfectly free to dispose of it, not only to a person of his own choosing, but upon conditions of his own choosing. Suppose he chooses to dispose of it through a system of complicated contingent and conditional schemes some of which might not become absolute for three or four generations. The motive for such a plan might be nothing more sinister than a de sire to keep that which has been earned by the sweat of the brow within the family blood line.

But if this is permitted in unlimited measure, the freedom to dispose tends to become a freedom to tie up which in turn becomes a freedom to prevent rather than encourage future development. If the possessory owner has a mere life estate or some other restricted interest, he will have little inter est in making permanent improve ments which will endure beyond his period of ownership. And even if he is so inclined, it is unlikely that he will have the ability to do so. He is not in a position to give the kind of .mortgage necessary to get a favorable loan. Under these circumstances the freedom en joyed by Sir Galahad extends be yond his own lifetime and re stricts the freedom of future gen erations. Rules Against Perpetuities But a people who had made great personal sacrifice to free themselves of one kind of restric tion upon their right to deal with the fruits of their own labor could hardly be expected to remain pas sive about accepting the same or similar restraints in another form. Having freed themselves from so many stultifying public restraints imposed by a system of feudal tenure, Englishmen were well prepared to resist any effort to impose the same restrictions through private arrangements. The result was a modification of the 592 THE FREEMAN October law of entails and the invention of numerous rules designed to pre vent any private interference with economic mobility.

It was in this atmosphere that those rules known to lawyers as the destructibility rule and the rules against perpetuities, accum ulations, and restraints on aliena tion came into being. While a sub stantial body of rather complex law has grown up around the op eration of these rules, in their es sence they are nothing more than efforts to secure to the living gen eration control of the world's as sets without interfering with the freedom of alienation any more than is absolutely essential to the accomplishing of that purpose. Thus it was that the freedom of alienation, that is the individual's freedom to buy and sell as he sees fit, became the policy goal that gave birth to numerous rules of property law that persist to this day. In addition to its being the sole justification for the rules referred to above, much of the modern law of conveyancing is law designed to foster the free transferability of property. It is a frequent topic for discussions at bar association meetings and legal institutes. Title standards are adopted and marketable title legis lation is enacted for this purpose.

The American Founding Fa thers and those concerned with the framing of state constitutions appear to have been thoroughly convinced that the free institution of property was the cornerstone upon which all other freedoms de pend. This fact is demonstrated by the frequency with which provi sions were inserted into their statutes, or even their constitu tions, declaring that all lands are allodial, that is free, and that feu dal tenures of every kind are for ever prohibited. ll They looked upon the right to cash in on the product of one's own labor as an essential element of any meaning ful concept of a free man. They saw it as the right to elevate the human personality from a position of status where one's social and economic course is predetermined to a position of contract where each one is free to determine his own course. Or as a more recent writer has expressed it, "in or ganized societies the degree of liberty among human beings is measured by the right to own and manage property, to buy and sell it, to contract."12 freedom of Movement Experience has shown that where free movement of property 11 E.g., Minn. Const. art 1, sec. 15; Wis. Const. art. 1, sec. 14. See generally, 1 Powell, Real Property. par. 158 (1949).

12 Garber, Of Men and Not of Law, 34 (1966) .

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 593 has existed the economy has pros pered and the wealth, especially the wealth of the least wealthy, has multiplied. This is not a sur prising result. It is merely the normal and natural result of giv ing a man an opportunity to em ploy his talents in. a way most pleasing to him and to enjoy the fruits of his efforts in the manner he selects. If he is denied the right to make his own choice, society is denied the benefit of the produc tive efforts that choice would de mand. The productive capacity of the individual, and hence the pro ductivecapacity of society as a whole, will tend to decline. This principle is implicit in the state ment of Jeremy Bentham that "no man can be so good a judge as the man himself, what it is gives him pleasure or displeasure."13 The same idea is supported by Ludwig von Mises' declaration that "the average man is both better in formed and less corruptible in the decisions he makes as a consumer than as a voter in political .elec tions."14 But this long history of the ex pansion of individual rights to property does not mean that pri vate dominion has now become ab solute. It never has been absolute and it is doubtful if anyone will 13 Bentham, Principles of Morals and Legislation, 172 (Oxford at the Claren don Press, 1879).

14 Mises, Socialism, 21 (1951). seriously contend that it should be made absolute. The state still does, and it is believed it must, retain some control. Property taxes are still collected. The right of emi nent domain is still exercised. Dur ing times of war or other national emergency, property has been req uisitioned or expropriated when necessary to the state's defense. These acts by the state are neces sarily encroachments upon the in dividual's dominion over the things he acquires. The significant question to ask is. how far may these encroachments extend? Zoning and Planning Fundamentally, it is a problem of defining the point· at which the inalienable rights of the private owner end and the inherent power of the state begins. It is not too much to say that that question presents the most challenging problem facing the legal profes sion, and in fact the entire Ameri can society, at the present time.

The future 'course of man's prog ress toward personal liberty, hu man dignity, and civil rights de pends upon how he answers that question. In recent years zoning and city planning have become important parts of American law .. It is not within the scope of this paper to make any judgment as to whether that development is good or bad.

594 THE FREEMAN October But it is within the scope of this paper to· point out that it is a de velopment that constitutes a di rect encroachment upon the free dom of the individual to do as he pleases with his own property. Where such schemes are in opera tion the individual owner is not free to devote his property to the uses most suitable to his needs. An incident of property ownership has been removed. An important right has been taken from the bundle of rights constituting the owner's property in a given tract of land. Rent Control Other rights are slipping from the bundle from time to time. It is conceivable that in some in stances the loss might be neces sary to the well-being of society. The distressing thing is that the loss often goes unnoticed. During World War I it was felt neces sary to place statutory restric tions upon the amount of rent a man could receive for a given housing unit. After the war most of these regulations were removed.

During World War II rent con trols were again inaugurated and this time they have been a little slower in their disappearance. Some are still in effect. And in some quarters statutory rent con trol is now being accepted as a permanent institution. Effect on the Landlord This paper is not an appropriate place to debate the merits or de meri ts of this kind of legislation but it is an appropriate place to call attention to its meaning. It was first presented to the public as an emergency war measure but more recently it has been referred to as an instrument for the crea tion of a new type of tenancy. It has been said that the "statutory tenant," that is a tenant whose rent is determined by a, statute rather than by the market, has a new type of estate hitherto un known to the law. He probably does. But that kind of analysis· is incomplete unless it goes further and identifies the kind of estate held by the "statutory landlord."

And this second step has rarely ever been taken. If the question is raised at all, the answer is likely to be that the landlord has a fee simple which is defined as the highest estate, that is the highest kind of ownership, known to the law. If that answer is ac cepted as satisfactory, then it must be admitted that the owner of the highest estate known to the law is denied the privilege of using his holdings in the manner most desirable to him. He is not permitted to rent at a price mu tually agreeable to him and his tenant. A substantial incident of ownership has been removed.

1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 595 In 1948 the Supreme Court of the United States struck at the very heart of private ownership as traditionally understood. Although the decision received wide pub licity, very few people gave any indication of being disturbed; or if they were disturbed, it was for reasons other than the court's at tack upon private ownership. Prior to 1948 the power to dispose of real property included the power to make certain covenants mutually agreeable to the buyer and seller. Prior to 1948 these covenants were said to run with the land and to be binding upon subsequent owners. The existence of such covenants became a part of the title itself and entered into the calculation of property values. But in 1948, in the case of Shelley v. Kraemer,15 the Supreme Court of the United States was faced with a covenant against sale or lease to members of a par ticular race. Such covenants had long been inserted in deeds and had become quite common in all sections of the United States.

Nevertheless, the Supreme Court chose to ignore the covenant's ex istence. The fact that property values depended upon the cove nant and that mortgage loans might have been extended in re liance upon it made no difference. This might possibly have been an 15 334 U.S. 1 (1948). appropriate time for a judicial determination that covenants of this particular kind were incon sistent with American public policy and therefore without any legal effect. No position is taken here as to whether such a deci sion would have been wise or un wise. But in any event that route was not taken. Instead, the court, in an opinion written by the Chief Justice, displayed a total lack of concern for private property by declaring that the covenant was valid but would not be enforced. Any effort to rationalize the 1948 decision on the theory of state action is antagonistic to civ ilized society unless that society is ready to deny recognition of private property altogether and adopt absolute group ownership. A man does not have a property in anything unless he has a right which the state will protect. As soon as the state extends any pro tection there is clearly a case of state action. If protection is with held while the right is officially recognized, there is an express in vitation to self help where the law of the jungle prevails.

"Open Housing" An even more serious inroad on private ownership has appeared in recent years in the so-called "open housing" legislation. When this type of enactment appeared 596 THE FREEMAN October on the local scene in New York City in 1957,lG it caused very little excitement among the nominal ad herents of the free market con cept. This in spite of the fact that it almost completely abandoned the theory. of freedom of aliena tion by taking away from the seller the 'right to choose his own customers. More specifically, it prohibited sellers in certain clas sifications from discriminating among buyers because of the buyers' race or religion. Freedom of alienation was theoretically preserved, but anyone who has had any experience in buying or selling real estate knows that freedom of alienation has very little meaning if it does. not in clude the freedom to choose one's own customers.

The freedom that was preserved by this legislation is remarkably similar to the freedom that pre vailed in England prior to 1290 when the property owner was free to sell except that the lord (the king being the supreme lord) had a veto power over the choice of a buyer. Nevertheless, the legisla tion in varying forms became popular, spread to other states, and found its way into a Federal enactment in 1968. 17 Prior to its enactment on the Federal level 16 Local Laws, City of N.Y., 1957, No. 80. 17 42 U.S.C.A. sees. 3601-3619 (1970). testimony before the Senate Sub committee on Constitutional Rights pointed out that its effect in the market place would be to reduce the amount of new housing available in coming years and to decrease rather than increase the access of minority groups to that which was available. 18 It would be a mistake to attribute the recent decline (some might prefer to say crisis) in the hous ing industry to that cause alone but it would also be a mistake to ignore the possibility that it might have been a contributing factor.

Back to Feudalism The concept of private property appears to be moving in a circle that is almost closed. The feudal ages found "freemen" in virtual serfdom. Private ownership ex isted but it was a very limited concept. The incidents of owner ship were comparatively few and such as existed were substantially restricted by the recognized power of the state. But that period was a period of struggle for more and more freedom and more civil rights in the individual. Men were demanding more control over their own destiny - more of the fruits of their own labor. The result was a steady increase in the inci dents of private ownership and a corresponding reduction in the IS 112 Congo Record, 14715-14717 (1966), 1971 CHANGING CONCEPTS OF PRIVATE PROPERTY 597 state's power to control. The sig nificant legal developments were centered around efforts of the law to preserve the freedom of move ment of private property. This trend continued until very recent times when the individual's free dom both to use and to dispose of the fruits of his own labor seemed virtually secure.

But throughout this period of development there never was any clear line between the conflicting forces, that is to say, between the incidents of ownership sacred to the individual on the one hand and the rights exercised by the state on the other. Eventually the trend toward individual freedom found itself in reverse. The bundle of rights constituting ownership began to shrink. Sticks were withdrawn from the bundle and handed over to the state. The state took a more active part in con trolling the use of things still owned by individuals. The owner lost his right to fix the price at which he was willing to rent. He lost the right to dispose of prop erty on terms of his own choosing. He lost the right to select his own customers. Default Rather than Design Why is this decline in the im portance of the indi vidual to gether with the corresponding in crease in the function of the state taking place? It could be the re sult of a conscious choice by a so ciety which believes it has· gone too far in the direction of private ownership and that a retreat is desirable. It is doubtful if that is the case. It is doubtful that any such conscious choice is being made.

What is more likely is that the transition is going more by de fault than by design. We have concerned ourselves so much with other things that we have almost forgotten that there is a right of property which "is before and higher than any constitutional sanction." We talk about such things as freedom of speech, freedom of the press, freedom of religion, and freedom from false arrest, without giving much at tention to the foundation upon which all these freedoms rest. We have forgotten that these are but the symbols, the ornaments, and the outward manifestations of a solid structure without which none of them could exist. We have become so interested in the cake's icing that we have ignored the cake. We have become victimized by the often repeated but abso lutely false assertion that there is a conflict between property rights and human rights. The truth is that private ownership of prop erty is the greatest instrument of freedom ever designed and it is 598 THE FREEMAN October sheer folly to speak of granting a man freedom while withholding that instrument from him.

Facing the Issue It is a long way from the serf dom of the medieval manor to the American statutes and constitu tions abolishing feudal tenures. Americans have arrived at an age when freedom of ownership is so taken for granted that there is a danger that we might inadver tantly allow it to slip out of our hands. If our freedom is to be taken seriously, we must acquaint ourselves with what is actually happening in the name of social justice, equal protection of the law, and other glittering generali ties that are without meaning until they are given meaning in the context of human experience. "Social justice" can become a slo gan used to promote both social and personal injustice. "Equal protection of the laws" can be used as a mask for universal op pression through law. As we move from one age to an other there is but one fundamen tal change in the concept of pri vate property. The rate of the change as well as the direction of the change may shift from time to time. But the question is al ways one of deciding what inci dents of ownership rest in the in dividual and what incidents are claimed by the state. If human freedom is to be preserved, that question must be faced squarely.

Questions concerning zoning, rent control, restrictive covenants, and all the others cannot be intelli gently answered until they are placed within the context of that basic issue. When they are placed within that context, it is likely that the most vocal proponents of some of these new schemes will become their most violent critics. ~ IDEAS ON LIBERTY The Source of Wealth IT IS the great multiplication of the productions of all the dif ferent arts, in consequence of the division of labour, which oc casions, in a well-governed society, that universal opulence which extends itself to the lowest ranks of the people. ADAM SMITH Wealth of Nations, 1776 OWNERSHIP as a SOCIALFUNCTION PAUL L. POIROT In the market society the proprietors of capital and land can enjoy their property only by employing it for the satisfaction of other people's wants. They must serve the consumers in order to have any advantage from what is their own. The very fact that they own means of production fO'/'ces them to submit to the wishes of the public. Ownership is an asset only for those who know how to employ it in the best possible way for the benefit of the· consumers. It is a sooial function.