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§ 133.: What is meant by “private property in lands?”— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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What is meant by “private property in lands?”—
An accurate answer to this question is exceedingly important, because attacks have repeatedly been made upon the existing land tenure of England and the United States by political economists, as being the chief cause of human woes; and promises are made of the advent of an era of universal prosperity, only a little short of millennium, if private property in land be only abolished. The latest writer upon this subject, Mr. Henry George, has created no little stir by his vigorous attacks upon private property in land, and has succeeded, in no small degree, in unsettling preconceived notions of the right to own land. Our interest in this connection, as a jurist and a student of police economics, lies chiefly in Mr. George’s conceptions of the existing law of real property, and the meaning he and other political economists attach to the phrase “private property in land.” If we have not mistaken the writer’s main idea, it is no less and no more than what is set forth by Mr. Herbert Spencer in his Social Statics,1 with a greater display of rhetoric, however, and an elaborate scheme for the confiscation of the so-called “private property in land.” Both writers present their views under the impression that the existing law recognizes an absolute right of private property in land, and they both propose that this private property be abolished, and land become the common property of all, of the State or society.
Mr. Spencer’s entire argument is based upon his first principle of sociology: “Every man has freedom to do all that he wills provided he infringes not the equal freedom of any other man,” and in applying this principle—which we most hearily indorse as the ruling principle of police power in the United States,2 and the necessary fundamental principle in every system of sociology in a free State—to the right of property in land, he maintains that no one “may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law.” Both writers maintain that land is the free gift of nature, and must ever remain the inalienable property of society. But Mr. Spencer, readily perceiving the practical objections that might be raised to his scheme of a common property in lands, if left unqualified, proceeds to deny that we must, as a result of a common property in lands, “return to the times of uninclosed wilds, and subsist on roots, berries and game.” In further explanation of this scheme he says: “Such a doctrine is consistent with the highest state of civilization; may be carried out without involving a community of goods; and need cause no very serious revolution in existing arrangements. The change required would simply be a change of landlords. Separate ownerships would merge into the joint stock ownership of the public. Instead of being in the possession of individuals, the country would be held by the great corporate body—society. Instead of leasing his acres from an isolated proprietor, the farmer would lease them from the nation. Instead of paying his rent to the agent of Sir John or his Grace, he would pay it to an agent or deputy agent of the community. Stewards would be public officials, instead of private ones; and tenancy the only land tenure.”1 Tersely stated, Mr. Spencer’s idea is that all men must become tenants of the State or of society, and must pay rent to the State for the exclusive use of the land. Mr. George’s proposition is essentially the same. He says: “I do not propose either to purchase or to confiscate private property in land. The first would be unjust; the second needless. Let the individuals who now hold it still retain, if they want to, possession of what they are pleased to call their land. Let them continue to call it their land. Let them buy and sell, and bequeath and devise it. We may safely leave them the shell, if we take the kernel. It is not necessary to confiscate land; it is onlynecessary to confiscate rent.”1 And in order that the State need not “bother with the letting of lands,” secure the benefits arising out of the position of landlord without being subjected to its annoyances, he proposes to “appropriate rent by taxation.”
Both writers recognize the absolute right of private property in the improvements which the possessor may put upon the land, and neither would claim the right of confiscation of them, directly or indirectly, except that Mr. George recognizes the right to confiscate those “improvements which in time become indistinguishable from the land itself.”2 But as a general proposition, they both recognized this right to the improvements, which are of course products of man’s labor.
Mr. Spencer claims that this proposed tenantry is in strict conformity with his first principles. He says: “A state of things so ordered would be in perfect harmony with the moral law. Under it all men would be equally landlords; all men would be alike free to become tenants. A., B., C., and the rest, might compete for a vacant farm as now, and one of them might take that farm, without in any way violating the principles of pure equity. All would be equally free to bid; all would be equally free to refrain. And when the farm had been let to A., B., or C., all parties would have done that which they willed—the one in choosing to pay a given sum to his fellowmen for the use of certain lands—the other in refusing to pay that sum. Clearly, therefore, on such a system, the earth might be inclosed, occupied, and cultivated, in entire subordination to the law of equal freedom.” In effect, Mr. George’s position is identical. They both assert the natural right of one man to the exclusive possession of a tract or plot of land, for the period of his tenancy, provided he pays the proper rent or equivalent to society. Who is to determine what rent would be a fair equivalent for the right or privilege thus secured? Clearly, the legal representative of society in its organized condition, in other words, the government of the State.
If the tenancy be for one year, of course the rent will in proportion be smaller than what would be payable in a tenancy for ten, twenty, one hundred, and one thousand years; and there would possibly be a different amount of rent exacted for a tenancy for the life of the tenant. Of course, legal limitations could be imposed upon the duration of the tenancy,1 but would this be wise? May not cases arise, in which it would be no inducement for a tenant to make improvements, unless he was given a long lease? The desire for a permanent “local habitation” is very strong in the human breast, and Blackstone tells us that under the feudal system it was considered “that the smallest interest, which was worthy of a freeman, was one which must endure during his life.”2 Apart from any express legal restrictions, which of course may be imposed under this theory of property in lands, if the consideration or rent is adequate, there would be no more injustice to the rest of the human race to give one man the exclusive possession of a piece of land during his life, than it would be if his tenancy was only for one year. Having paid to society a fair equivalent for the use of the land, is society at all concerned in the manner of his using the land, provided he injures no one else? Would it be an act of natural injustice to society, if he for some satisfactory consideration lets some one else utilize the land, instead of doing so himself? The right of subletting is therefore a natural incident of a tenancy, unless expressly taken away.
One step farther: suppose society finds out that in a given case it can procure, through individual activity, a long felt want, but the individuals in question will not undertake the project unless they have in certain lands a more permanent right of possession than what a tenancy for life gives them. Suppose society conclude that it must have this want supplied, and in order to gratify this desire it gives to these parties and to their heirs and assigns the exclusive possession of certain land, as long as they pay a certain rent, the amount of which is to be determined by society from time to time, and provided further, that the land may be at any time reclaimed by society, if the public exigencies shall require it, upon the payment to these parties or their heirs and assigns of a compensation for the loss of improvements, which have become inseparable from the land, and for future profits in the continued possession? Would such a contract be in violation of Mr. Spencer’s first principle? Would not the State be still the ultimate owner of the land, and the so-called proprietor only vested with the right of possession and enjoyment, in other words, a qualified property? Would he not be essentially a tenant of the State, and his interest in the land a tenancy?
That is all “the private property in land” which the American and English laws recognize. The present writer has stated elsewhere1 this limitation upon the right of property in land in the following language:—
“It may be stated as a general rule, though controverted by eminent authority, that in any system of jurisprudence, there cannot be an absolute ownership in lands. The right of property or interest in them must always be qualified, that interest being known in the English and American law as an estate. A man can have only an estate in the land, the absolute right of property being vested in the State. An estate has, in respect to the real property, the three elements, the right of possession, right of enjoyment, and right of disposition, subject to the right of the State to defeat it, and appropriate it to the public use, or for the public good. In what cases, and under what circumstances, the State can exercise this power of appropriation, and to what extent the rights of possession, enjoyment and disposition, may be limited by the imposition of restrictions, depends upon the policy of each system of jurisprudence. In some States the restrictions are numerous, while in others they are few, the right of property being almost absolute in the individual. But nowhere can the private right of property be said to be absolute. The absolute right of property being in the State, the right of ownership, which an individual may acquire, must, therefore, in theory at least, be held to be derived from the State, and the State has the right and power to stipulate the conditions and terms upon which the land may be held by individuals. These conditions and terms, and the rights and obligations arising therefrom, constitute what is known as tenure or land tenure.”1
Is not then this statement of the law correct? In the constitution of New York, Art. I, § 10, it is declared that “the people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State.” And this is the implied, if not expressed, doctrine of the law in every State of this Union. Is there an acre of land in this country, that is not held subject to taxation and to the right of eminent domain? Taxation of real estate is essentially the same as rent, for it is not imposed as an obligation of citizenship. Although the power of taxation generally cannot properly be considered of feudal origin, yet in its application to real property it assumes a decidedly feudal character. If the power to tax real property rested solely upon the obligations of citizenship, then it could only be levied upon those proprietors of lands who were citizens. As a matter of fact, all lands situated within the jurisdiction of the government which levies the tax are taxed for their proportionate share. The levying of a tax upon land and the enforcement of the levy, are usually proceedings inrem against the land, and not in personam against the proprietor.1
The right of eminent domain surely can rest only upon the claim that the State is the absolute proprietor of all lands within its jurisdiction, which consequently makes all private owners merely tenants of the State.2
Our conclusion therefore is that there is no “private property in land” in the sense in which Mr. Spencer and Mr. George employ the term, and the provisions of the law in respect to the tenancy of lands are in strict conformity with the principles they advocate. It may be, as Mr. George asserts, that certain cunning men in days gone by cheated society out of its dues, and obtained from it fee simple tenancies without rendering an adequate equivalent; and it may be true (we shall not question the proposition in this place), that the present returns to the State for the private enjoyment of these tenancies are grossly inadequate to the benefits thus received: Mr. George may possibly be just in his claim that taxation of lands ought to be increased far beyond its present rate; but the economic problem would be very much simplified, if it is clearly understood that the scheme proposed for the nationalization of land involves no legal, as it does an economic, revolution.
See ante, secs. 1, 2.
Social Statics, p. 141.
Progress and Poverty, p. 364.
Progress and Poverty, p. 308.
See post, § 134.
2 Bla. Com. 237.
Tiedeman on Real Property, § 19.
Tiedeman on Real Property, § 19.
See post, § 160.
See post, § 139.