The Distribution of Ownership 9780231893152

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3 THE DISTRIBUTION OF OWNERSHIP

STUDIES IN HISTORY, EOONOMIO8 AND PUBLIC LAW EDITED B Y T H E F A C U L T Y O F POLITICAL S C I E N C E OF COLUMBIA UNIVERSITY

Volume XXVIII]

[Number 3

T H E DISTRIBUTION OF OWNERSHIP BT

JOSEPH HARDING UNDERWOOD

AMS P R E S S NEW YORK

COLUMBIA UNIVERSITY STUDIES IN THE SOCIAL SCIENCES 77

The Series was formerly known as Studies in History, Economics and Public Law.

Reprinted with the permission of Columbia University Press From the edition of 1907, New York First AMS EDITION published 1968 Manufactured in the United States of America

Library of Congress Catalogue Card Number: 68-56691

AMS PRESS, INC. New York, N.Y. 10003

PREFATORY N O T E FOR opportunity and aid the writer is grateful to Professor Isaac A. Loos, of the University of Iowa; to Miss Margaret A. Schaffner, Ph. D„ now of the University of Wisconsin, and to Professors Franklin H. Giddings and Edwin R. A. Seligman of Columbia University. 349]

5

TABLE OF CONTENTS CHAPTER

I

OWNERSHIP MSB

Outer Personality Private Property and Estate The Forms of Ownership

11 ia 14 CHAPTER

II

DISTRIBUTION

The Impossibility of Absolutely Private Property Social Limitation of Property The Impossibility of Permanency of Estate The Continuity of the Progress of Liberty CHAPTER ANCIENT

16 18 20 22

III

OWNERSHIP

Primitive Possession Primitive Communism Barbarian Private Property, etc Patriarchal Ownership, etc Dominium Hebrew Hindoo, etc Greek Roman Teutonic CHAPTER

23 23 24 35 30 30 32 33 34 40 IV

O W N E R S H I P IN E N G L A N D

Limitation of Ancient Slavery Limitation of Ancient Land Ownership Limitation of Ancient Corporate Property Modern Liberty to Own Men 351]

41 43 47 50 7

8

CONTENTS

[352

Modern Liberty to Own Land Centralization under Henry II Development of Taxation Detachment of Political Character from Land Ownership Detachment of Feudal Tenantry from Land Ownership The Development of Modern Tenantry The Right of Disposition Incorporeal Rights Right of Bequest Modern Liberty of Corporate Ownership The Trading Companies Freedom of Association Limitation of Ownership in the Nineteenth Century

na

53 54 56 57 58 60 6a 67 68 73 74 77 78

CHAPTER V L I B E R T Y T O O W N S L A V E S IN A M E R I C A

Indenture Black Slavery Government Aid Concentration

84 89 94 98 CHAPTER

VI

L I B E R T Y TO O W N L A N D I N A M E R I C A

Colonial Limitations Development of Allodial Tenures Legal Private Fights in Land Rights of Possession "Rights of Use Rights of Disposition The Land Policy of the Government CHAPTER

100 104 104 106 m 112 116 VII

L I B E R T Y TO O W N C O R P O R A T E P R O P E R T Y IN A M E R I C A

Early Commercial Regulation Beginning of Corporations General Laws of Incorporation Chapters as Contracts The Fourteenth Amendment Ease of Incorporation The Aggressions of Corporations Concentration

118 119 122 122 124 126 127 129

353]

CONTENTS

9

CHAPTER VIII

"U™

L I M I T A T I O N OF S L A V E O W N E R S H I P

The Abolitionists State Opposition The Civil War Negro Freedom

133 134 135 136

CHAPTER

IX

L I M I T A T I O N OP L A N D O W N E R S H I P

Social Subtractions from Private Property From the Right of Possession From the Right of Use From the Right of Disposition

CHAPTER

137 138 148 150

X

L I M I T A T I O N OF C O R P O R A T E O W N E R S H I P

The Abuse of Power Public Partial Rights Ultra Vires A c t s The Modification of Patent Rights Modification of the Dartmouth College Decision The Common Law Constitutional Provisions against Monopoly Constitutional Provisions against Combination National Legislation and Cases Police Regulation of Corporations Of Banking and Insurance Of Railroads Of Incorporation Public Promotion of Commercial Interests Labor Contracts Laws Protecting Labor in Employment Laws Securing Labor in Employment Strikes Conciliation and Arbitration Employers' Associations Labor Unions The Inefficacy of Laws

154 157 159 159 159 161 161 162 163 165 166 167 170 171 171 176 180 180 181 182 183 183

IO

CONTENTS

[354 PACK

Ameliorations of Inequitable Distribution Public Charities Municipal Ownership Corporate Profit Sharing Stock Ownership Cooperation Insurance Welfare Work of Corporations Private Philanthropy The Creation of a Social Interest in Private Property The Centralization of Government The Continuity of the Progress of Liberty CHAPTER

184 185 185 186 187 187 188 189 189 190 191 192 194 195

XI

THE ETHICS OF OWNERSHIP

The Inherency of Restriction Shown In History Shown in Law According to the Theories of Property Right According to the Economic Theory of Distribution The Arrogance of Privilege Stewardship Economic Opportunism Mutualism Economic Republicanism Socialism and Individualism Social Gains from Readjustment

197 197 197 197 198 199 200 202 205 205 206 207

CHAPTER I OWNERSHIP

" OH, wealth, sought after, much prized, which we abuse while we have it not, which w e forget to hate when it is in our grasp." 1 Herr V o n Vollmar, the socialist, hates the idea of " private property." Herr V o n Vollmar, the gentleman, loves his estate, because it makes Herr V o n Vollmar, the socialist, a more efficient advocate of social ownership. There is no mystery in this forgiveness, for an " exemption from self love is not to be found in this world."2 Wealth is a part of the self that is loved. " Property is but the periphery of my person extended to things." 4 " Property is the environmental complement of the personal spiritual heritage of the ages." " Das Eigenthum ist ein unzertrennliches Attribut der Persönlichkeit des Menschen." 4 " Proprietary rights are extensions of the power of a person over portions of the physical world." " Certainly an " attribute " or a " personal periphery " o r a " power " is a " property " of that to which it attaches. Call possessed wealth, then, the outer personality of its possessor. If this outer personality is completely subject to the inner personality, it may be called the peculiar property 1

Rig Veda, sect, i, lect. I, hymn v : 4.

2

Laws of Manu, ii: 1.

4

V o n Ihering, quoted in American

Law Review,

Samter, Adolph, Das Gesellschaftliche Grundlage der Socialpolitik, p. 5. 4

® Holland, T . E., Elements

355]

29: 171.

und Privat-Eigenthum

of Jurisprudence,

p. 178.

11

als

12

THE DISTRIBUTION

OF OWNERSHIP

[356

of the individual—it is his " private property." Thus on Herr Von Vollmar's estate one man is a servant, one is a tenant, one is a landlord. Now the land is the " environmental complement " of whatever " spiritual heritage " each of these several men has got out of the ages. Only the landlord, however, has his will. The land is peculiarly the outer personality, then, only of Herr Von Vollmar—is his " private property." Peripheral expansion, then, may be impeded. Certainly the personality—if -will is personality —of Herr Von Vollmar's tenant cannot expand as freely as that of his master. Private property, then, is not merely appropriation but disappropriation. The same stimuli of internal wants and the same stimuli of external satisfactions of those wants that led one person to look upon the world, t