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ARTICLE

Prophets, Jurists, and Property

FEBRUARY 01, 1967 by WILLIAM J. PALMER

Mr. Palmer is a retired Judge of the Superior Court of California for Los Angeles County. This article is slightly condensed from a paper prepared for a Conference on the Humane Economy at The Institute of Paper Chemistry, Appleton, Wisconsin, August 1966.

The most distinguishing charac­teristic of the human being is his urge to amplify the natural pow­ers of his body and mind by in­venting and creating devices and by the acquisition, ownership, and dealing with property. Through both of these activities he enters into relationships with other per­sons, into the realm of negotia­tions, agreements, and contracts, into the status of bearing personal obligations and responsibility, and into the demands of management. He increases his understanding of other humans and his foresight; he develops a capacity for per­sonal, independent judgment; he learns the inevitable penalties for mistaken judgment and dishon­esty and the equally inevitable re­wards for good judgment and in­tegrity. In summary, he grows in stature as a constructive, trust­worthy being.

Out of this extension and en­largement of the person through the ownership of property and the related contractual activities come men and women qualified to do the big jobs, to carry the heavy re­sponsibilities of our economic re­gime. For them we reserve one of the highest encomiums of our work-a-day lives and associations, namely, "His word is as good as his bond."

To cut off from the individual person the medium of self-exten­sion and development provided by freedom to acquire and own property is to do damage to his person in analagous manner as cutting off an arm or a leg or destroying the sense of sight or of hearing would do to his body. It is an in­evitable, logical result that to a mind that has suffered such dam­age, a mind molded in the philoso­phy and practices of communism, even a solemn treaty-contract car­ries no binding obligation, is only a device by which to buy time, to deceive or to gain some other ad­vantage, a mere contractual form to be broken whenever to honor it would appear to be fraught with some disadvantage to the signing communist body.

The Law of Usefulness and Returns

When we turn to the larger, composite, social aspects of pri­vate ownership of property, as ex­hibited in our business corpora­tions, we are compelled, if we would be true, to acknowledge this fact: In the long pull, such pri­vately owned property can and does serve its owners only and commensurately as it serves all the people. Even as to personal hold­ings, basic data compiled by the Internal Revenue Service justify the conclusion that at least 85 per cent of the personal wealth of our wealthiest citizens is in the active service of the general, total econ­omy in the form of corporation capital, government bonds, invest­ments in insurance, bank accounts and loans, paying wages, creating tools, building homes, and provid­ing security for others.

These facts are joined by an­other: the natural and particular concern that the private owner has for the care, improvement, and usefulness of his own property. The brevity of that observation should not obscure the far-reach­ing vitality and effectiveness of its truth. When we substitute the politician dealing with other peo­ple’s money for the businessman dealing with his own, the result is certain to be extravagance and waste and often corruption and failure. A thousand and more ex­amples of this truth, from our own governments and from around the world, could be cited if neces­sary. But no knowledgeable person needs such proof.

These conjoined facts give to private ownership and manage­ment an exclusively distinctive en­dowment for benefiting the whole economic and social structure. They constitute what Adam Smith referred to as an "invisible hand" serving the best interests of so­ciety. To use a metaphor that con­forms with modern science, these factors might be called the genes that have determined the magnifi­cent posture and performance of our organisms of private property and private adventure, and the absence of which has determined the numerous failures of socialism and totalitarianism.

Modern Mythology

This is a unique period in human history for thoughtful people to spend a while focusing their thoughts on the concepts of pri­vate property and ownership. Cur­rent in the world is the notion which, stated with the same gen­erality as it usually is expressed, assumes that an intrinsic antag­onism exists between property rights and human rights. The con­flicting factors intended to be de­noted by the slogans and shibbo­leths are, on the one hand, the ownership of property by individ­ual persons, and, on the other, the well-being of all members of a so­ciety.

Not only are large national groupings of the world’s peoples under the absolute domination of autocrats who profess to believe that this notion is true, but in our own country the shibboleth is commonly used, or truth is im­plied in it, by seekers and holders of public office, demagogues, so­cialists, and communists. Into the minds of thousands of school and college students the notion has been implanted by teachers and by influences organized and directed from outside the school grounds and campuses.

Perhaps we ought promptly to dispatch this proposition that property rights are inimical to human rights by pointing to the illogicality and/or the insincerity of its proclaimers and apologists. What they seek to obtain is prop­erty, either directly for themselves or to hold or control, with auto­cratic power of distribution and dissipation. Property delivered to them, property controlled by or for them, is their own barked guaran­tee of human rights and their one cure for a real or alleged absence of such rights. They, themselves, are the arch proponents of the fan­tasy that property is the panacea for the ills, ignorance, indolence, evils, confusion, and muddles of mankind.

Although it is quite proper in controversial dialogue to thus dis­miss a current myth or fallacy, it is for us, rather, to think construc­tively and to try, at least, to ex­press truths that can flow into the mental vacuum wherever it may exist. Let us examine anew cer­tain premises that we usually as­sume a priori. What are the genu­ine human values in which we are or ought to be concerned?

These are Human Values

The basic one, of course, is free­dom. Lest there be misinterpreta­tion or misrepresentation, let us substitute a term evolved in enlightened political and juristic phi­losophy, namely, "civil liberty." This term embraces all the famil­iar inalienable rights of man. No fact has been more convincingly proved by history and no conclu­sion is logically more unavoidable than this: civil liberty is impossi­ble without the right and freedom of individual persons through their own efforts to acquire and own property and to have all authority in the management of the same as will not infringe upon the equal rights of others and as will con­form with a reasonable exercise of police power by government.

When, by some governing pow­er, individual persons are deprived of opportunity to acquire and to own property, they necessarily are dependent upon and are the liege-men of the power that claims to own all property and, having means of violence to enforce its claims, exercises the prerogatives of ownership — whether that pow­er be king, feudal lord, or ruling persons bearing any vestment of authority. All are vassals of the king, be he robed, crowned, and on a throne, or a coterie of commis­sars or an assembly or bureau of government officials, when the con­trol of all property has been usurped by that king through myth, general ignorance, custom, deception, violence, or election.

The destiny of liberty is the destiny of the private ownership of property.

"A Man’s Castle"

Another human value of inesti­mable significance is the home, the house-home which, upheld by en­lightened Anglo-American juris­prudence, is a man’s castle, a place of refuge, and a place for privacy. But a man’s home cannot be his castle, a personal fortress, unless he, himself, owns the right of pos­session, a right that he acquires through ownership of either the fee title or a leasehold. A pater­nalistic, all-owning government might provide him revocable shel­ter, but whether that be in a hovel, a crowded room, apartment, or a palace, he never can receive from it the gratifications and the human values, nor the security, that de­rive from himself being the owner and master of a home.

Probably no human value sur­passes that of the man who loves the fertile soil and the useful and beautiful creations that grow from it, who presides over an area of ground of which he can say: "This is my own," and on which he can labor in the near-God enterprises of tilling, planting, harvesting, and animal husbandry, knowing that the fruits of his toil and the earth’s fertility will belong to him. He is the lord of what has been called "a corner of tranquility," wherein he knows the spiritual satisfactions of being a self-di­rected, free man. But no "corner of tranquility" exists after preda­tors, by violence or the inoculation of deceiving ideas, have stolen from individual persons their own and, through sneaking and violent devices of suppression, have closed the avenues for private ownership of property.

Control of Cultural Environment

Another human value is one which no intelligent person, hav­ing once enjoyed, will surrender willingly: the value derived from being free to create the cultural environment to which he and his family will be exposed and within which, patterns of thought, taste, and character will be formed. This value derives not alone from re­specting his own thinking and judgment, but from being free to pursue them in the selection of books, newspapers, magazines, fur­nishings and decor, works of art, radio and television programs, other forms of entertainment, re­ligious institutions, and methods of education.

But this immeasurable human value can be had only when nu­merous individual persons are the respective private owners of nu­merous properties: newspapers, publishing houses, churches, schools, factories, radio and tele­vision stations, theaters, mercan­tile establishments, banks and other financial institutions, and countless items of machinery and equipment.

The destiny of culture is the destiny of the private ownership of property.

The Means of Benevolence

No attempt is being made here to inventory all the human values that are made possible by and are dependent upon the private owner­ship of property. Yet another ought to be mentioned, because, although not the most fundamen­tal, it is the crowning, irradiating capstone of the structure. It con­sists of the coexistence of benevo­lent impulses in the psyche of the individual person and his private ownership of the means by which to materialize those impulses in charitable giving. It is doubtful if many of us have a fitting appre­ciation of the manifold, far-reach­ing fruitfulness of that human value, although its personal grati­fications have been widely experi­enced.

A reliable estimate based on various records is that in 1963 gifts made by citizens and insti­tutions of the United States to philanthropic causes amounted to more than ten billion dollars. The varied purposes of those gifts em­braced immediate help to the needy; religious activities; educa­tion in many areas; projects in art, literature, and other phases of culture; health, medical, and hos­pital care; scholarships, fellow­ships, advanced studies and re­search, and explorations in science.

Out beyond the realm of records and statistics, in those areas where countless kind persons ask no credit and no acclaim, are the continuing, numerous, silent gifts of money and valuable things from one to another.

Of the more than ten billion dol­lars in traceable charity, gifts to­taling nearly eight billion dollars were those of individual persons. More than 50 million volunteer, unpaid persons, including three million of America’s business and professional leaders, gave of their time and energy to carry on the benevolent services involved and to do the soliciting and gathering in of the gifts.

Nearly half of all this giving of private property was done for the support of churches and church-related activities, including church-affiliated hospitals. Anoth­er 15 per cent of the gifts made possible such welfare and educa­tional activities as youth organiza­tions, Boy Scouts, Girl Scouts, and similar programs, community planning for various phases of bet­terment, and projects for the pre­vention of juvenile delinquency.

Fifteen thousand foundations, endowed by gifts of private prop­erty, made possible major philan­thropic enterprises by their contri­butions of 819 million dollars. Twenty-four of those foundations, the ones best known, having no purpose other than to promote through their benefactions the well-being and progress of human beings around the world, have as­sets of over six billion dollars.

The existence of numerous pri­vate schools and colleges, where independence of political controls and pressure groups can be re­tained, and religious and cultural ideals and disciplines can be main­tained, is made possible only by gifts of private property. In the fiscal year, 1963-1964, 35 of the better known colleges and univer­sities of our country received gifts totaling 343 million dollars. But numerous other colleges and uni­versities received gifts. The total of all gifts of private property to education in one form or another in the year 1963 has been esti­mated to have been over one bil­lion, seven hundred million dollars.

The contorted mind of the com­munist can only sneer at all this fruitage of human values from the private ownership of property. He would, if he could, destroy all the benevolent foundations. He tells you that under his system no charity is needed, because the state, claiming to own all prop­erty, renders to each of its prole­tariat according to his needs. He does not tell you that a handful of tyrants decide what everyone needs. He does not tell you that in their philosophy and absolutism, the greater portion of what is ac­complished by our private charity is deemed to be not needed, is poison and hallucinatory to minds conditioned and regimented by the tyrants. And he does not tell you that no socialist society ever has been able to satisfy the reasonable needs of its people.

The Sum of Human Values

All the human values which rea­sonably can be expected to benefit the race can be summed up in these words: a valuable human. Use of this term requires us to confront two antithetic ideas of value. To the power-hungry or glory-seeking despot, a person is valuable only if he is useful to the ruler’s ambition. He is an en­meshed part of an apparatus. But to the enduring wisdom of reality, the valuable human is an individ­ual, an honest, self-reliant, self-thinking, working individual, pro­ductive of useful things, useful ideas, or useful service.

It has been demonstrated time and time again that the incentives, opportunities, disciplines, and ne­cessities provided by a regime of law-protected private property have no rival in producing valua­ble humans, no enduring rival in paternalism, socialism, or any kind of absolutism. If we needed more proof of this fact than exists in our own history, especially mod­ern proof, we would find it in the prodigious recovery of West Ger­many from the ruins of World War II and in the seemingly mi­raculous achievements of the free Chinese of Formosa in rising from a war-caused desolation.

We are long overdue in the gen­eral indignation certain to result when we recognize the buncombe of the political medicine man and the swindle of the political gang­ster in their preachments and in­nuendo that an intrinsic conflict exists between human rights and property rights.

Law, Scholars, and Kings

The concept of private property and the laws that have been de­signed to implement and safeguard it were born of an instinct that manifests itself even in some areas of animal life, presumably below the level of humans. The relation­ship in this respect is like that which exists between the instinct of self-preservation and the many laws designed to protect human life. These instincts are an expres­sion of the wisdom and purpose of the intelligence behind all the phe­nomena of nature.

One of the most brilliant orna­ments of man’s efforts and achievements on our planet has been the considerable number of extraordinary minds who, as jur­ists and scholars of the law, helped to create the great legal systems wherein, among other achieve­ments, the rights of private prop­erty in its numerous aspects were defined, classified, and protected. Not one of these pre-eminent legal scholars proposed the abolition of private property. The idea would have been anathema to them all.

Law in its inherent nature has profound depth and an affiliation with truth. It is not exclusive, but rather is universal, and it under­lies and feeds the intuitive minds of the great who sincerely seek to know it. In medieval Germany a theory was prevalent among schol­ars of law that the whole body of the law had latent existence in the consciousness of the people.² Theo­retically this concept is true if we think of law in its only justifiable function, and if we regard as tem­porary and counterfeit the mis­guided dictates of authoritarian holders of political power. And if this true concept were self-execut­ing, if it had any means of en­forcement, no people in the world today would be governed by com­munists, and none would be be­guiled by those who would destroy the rights logically incident to the private ownership of property. Yet a majority of the world’s people today do live under totali­tarian regimes wherein any rights of private property that may ap­parently or actually exist do so only precariously and without firm fixation in dependable law. This state of affairs is not modern, ex­cept only that it now exists. It is older than recorded history.

The earliest legal system which, in juristic thinking, can be recog­nized as a system, was that of Egypt, established about 6,000 years ago and surviving for about 4,000 years.3 An underlying theory of this system was that every square yard of land and every person within the kingdom were the property of the king. The king was also the sole legislator. But overlying that foundational princi­ple was a superstructure of pri­vate rights, including contractual rights and private ownership, con­ferred from above, with laws gov­erning marriage contracts, deeds of lands and houses, leases, sales, wills, and numerous other transac­tional instruments such as are fa­miliar in an advanced society. To enforce these rights and the king’s laws a judicial system existed. It embodied high ideals of judicial qualification and some enlightened principles of justice.

We should take thoughtful note of this Egyptian principle of uni­versal ownership residing in the king, for in probably the most ex­traordinary atavistic regression in history, we are headed and have gone a long way in that direction — we, a people whose government was founded on the principle that certain inalienable rights, includ­ing the private ownership of prop­erty, were vested in each of us by our Creator. No one can be quite sure who today’s king is, whether the people, the President, Con­gress, the Supreme Court, the po­litical party in power, the mon­archs of labor unions, the theorists of totalitarianism, or a verbalized society.

The Meaning of Ownership

At this point one example will suffice. But first we should ask ourselves what we mean, and what have constitutions and laws meant, by the term ownership. Certainly two essentials of the concept are dominion and exclu­siveness — at least in some sub­stantial measure. Without these factors the private ownership of property would be a delusion, its prime function being to place a mask of justice upon the collection of taxes.

Over 100 years ago, 100 years nearer the concepts of the Fed­eral Constitution, a law dictionary quoted by the highest court of New York defined property as "the highest right a man can have to anything," as a term "used for that right which one hath in lands and tenements, goods and chat­tels, which in no way depends on another man’s courtesy."4

Nearly 100 years ago, the Cali­fornia Legislature dictated this typical definition into its Civil Code (sec. 654):

The ownership of a thing is the right of one or more persons to pos­sess and use it to the exclusion of others.

That enactment was supple­mented by another law (Civil Code, secs. 678. 669):

The ownership of property is either absolute or qualified.

The ownership of property is abso­lute when a single person has the ab­solute dominion over it, and may use it or dispose of it according to his pleasure, subject only to general laws.

Both of those laws are normal expressions of an enlightened jurisprudence and neither of them ever has been modified, repealed, declared unconstitutional, or di­rectly adulterated.

Another typical pronouncement of an advanced sovereign is this edict of the California Constitu­tion (Art. 1, Sec. 1):

All men are by nature free and in­dependent, and have certain inalien­able rights, among which are those of…. acquiring, possessing, and pro­tecting property….

It never has been even hinted that this avouchment violates the Constitution of the United States.

In 1944 four of the ablest jus­tices ever to serve on the Supreme Court of California joined in this official pronouncement:

It is a principle of universal law that wherever the right to own prop­erty is recognized in a free govern­ment, practically all other rights be­come worthless if the government possesses an uncontrollable power over the property of the citizen.5

Government, as referred to in this lucid statement, of course, included the courts. The pronounce­ment never has been repudiated or adulterated.

Brothers in Bond

Having thus reminded ourselves of the meaning of ownership, we can better appraise the example of regression previously men­tioned.

A judicial decision momentous and epochal in United States his­tory was that of the Supreme Court in the case of Wickard, Secretary of Agriculture v. Fil­burn, delivered in 1942 and re­ported in 317 United States Re­ports at page 111. The decision dealt with an Ohio farmer who maintained a herd of dairy cattle and raised poultry. His income was derived from selling milk, poultry, and eggs in the local market. It was his practice to grow a small acreage of winter wheat mainly to use on his own farm for feed, for homemade flour and seedings for the next crop. It would appear from the story that in some past year or years he had sold a portion of his small wheat crop not needed on his own farm; but no evidence existed that any of the crop in question was sold or intended to be sold or in any way to be placed on the wheat market.

Acting pursuant to the Agri­cultural Adjustment Act, the government ordered that he plant only 11.1 acres in wheat, to pro­duce 20.1 bushels an acre. He planted 23 acres in wheat, and from the forbidden use of 11.9 acres he harvested 239 bushels. For that crime he was fined 49 cents for each forbidden bushel, a total fine of $117.11. The penalty was upheld by the United States Supreme Court as being perfectly in harmony with the Constitution. With that decision came one of the most truthful and potential confessions ever made by govern­ment, the court saying (page 131 of 317, United States Reports):

"It is hardly lack of due process for the government to regulate that which it subsidizes."

Summing up the juristic effect of that and other court decisions, an eminent encyclopedic legal work, American Jurisprudence, says:6

There is authority for the rule that one taking the benefit of a farm aid statute, or anyone claiming under him with actual notice, is estopped to deny the validity of the statute, the applicability of its benefits to him, or the regularity of the procedure in granting him aid there under.

And so it has come to pass that the American farmer, although his deed purports to grant him fee title to his farm, actually is vested with no greater degree of owner­ship, and probably less, than was held by his Egyptian counterpart of 6,000 years ago. As it was with the ancient Egyptian, so it is with him: his "bundle of privileges" are in the superficial, not the basic, area of ownership. But lest sympathy be wasted, it should be noted that this American farmer compositely, although with indi­vidual exceptions, voluntarily and happily relinquished his owner­ship for profit.

On second thought, however, perhaps we should have both sym­pathy and concern for him be­cause of the disappointments that have come to him and the danger of his position in the long pendu­lum swings of time. We are told that his debts have increased in the last five years from 27 to 41 billion dollars, some portion of which, no doubt, reflects capital investments; and that in the same period 3,200,000 farm families have renounced their farms and farming.

Timeless Lawgivers

Commencing with the ancient civilization of Mesopotamia, the land between the watersheds of the Tigris and the Euphrates rivers and centered in the city of Babylon, we can follow an inter­mittent chain of law-making which, in its intent to define, direct, and protect the rights of private property, denies to us of today any just sense of pride in our own juristic performances.

The legal system of Mesopota­mia dates back about 6,000 years, and, about 4,000 years ago, reached an apex in the reign of King Hammurabi, whose code of laws still stands as a monument of intelligent, extraordinary achievement in law and the con­cepts of private property. In this land, commerce, banking, and ju­dicial proceedings were highly de­veloped, and laws existed that rec­ognized in detail, guided, and protected private contractual and property rights, relating to deeds, leases, loans, promissory notes, sales, bank deposits, bills of lading, agency, partnership, and the many transactional instruments and pri­vate rights involved in an active, communicating, competitive so­ciety.

The most concise and most fa­mous law recognizing, and designed to protect, the rights of private property was delivered about 3,000 years ago. It was one of the Ten Commandments, a founda­tion stone in Hebrew history and Hebrew law:

Thou shalt not steal.

But knowing that laws do not enforce themselves, that if they are to have life and impetus, they must abide in the conscience of the people, the author of the Deca­logue, whether prophet or God, supplemented that terse command­ment with another:

Thou shalt not covet thy neighbor’s house, thou shalt not covet thy neigh­bor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neigh­bor’s.

And when the enlightened and powerful teacher from Nazareth delivered his message to the peo­ple of his land, he clearly sanc­tioned those laws in these words:

Think not that I am come to destroy the law, or the prophets: I am not come to destroy, but to fulfill. For verily I say unto you, Till heaven and earth pass, one jot or one tittle shall in no wise pass from the law, till all be fulfilled. (Matthew 5:17,18)

In addition to the plain, specific statements of that utterance, it carries two implied truths, with­out the knowledge of which there can be no wisdom in the business of law. One has been stated: that laws do not enforce themselves. The second is that government al­ways is of men, never of law. As­tonishing as the fact may be to us, this truth was an articulated prin­ciple of Chinese law in regimes that began 4,500 years or more ago and continued in similar legal framework for more than 4,000 years, always recognizing the rights of private ownership, and providing rules, methods, and moral principles for contractual transactions.

The Classical Respect for Private Ownership

Among the many contributions of the Greeks to our culture were patterns of legislation in which were clear, precise recognition of private property rights, provisions for their protection, laws govern­ing inheritance and defining the methods of numerous transac­tional instruments and the rights involved. The most noted of the lawmakers was Solon, Athenian statesman who lived about 600 years before Christ. One of his laws concerning theft reflects the conscience of the age and place in relation to the rights of owner­ship. It provided that if the owner of a stolen article recovered it, the thief was condemned to pay twice its value; if the article was not recovered by the owner, the thief’s penalty was to pay tenfold the value and, if the jury so deter­mined, to be confined in the stocks for five days.

Over a thousand years later, the achievements of the Greeks in de­fining and protecting private property and contractual rights were equalled, if not surpassed, by Mohammedans, whose creed and legal system, within about a hun­dred years after the Arabian prophet’s death, had spread across an area from India to Spain. The law of this Islamic empire was de­rived from the Koran, the words and conduct of Mohammed, and the writings of jurists who be­longed to the faith. One of the re­ported sayings of Mohammed was this:

I swear by God that if Fatima my daughter were to be found guilty of theft, then I would have her hands cut off.

Before turning our attention to the greatest lawmakers of all, the Romans, let us skip ahead in time to have a look at one of the stran­gest dichotomous characters of history, the Mongolian conqueror, Tamerlane, known also as Timour. By about the beginning of the fif­teenth century, he had become the ruler of much of Asia, India, and all Asia Minor. As cruel and mur­derous in war as communists are in pursuit of their aims, he was an able and even a kindly ruler in peace, doing much to promote art, science, and intelligent law in his dominions. Of him the noted Eng­lish historian, Edward Gibbon, wrote:

Timour might boast that, at his ac­cession to the throne, Asia was the prey of anarchy and rapine; whilst under his prosperous monarchy, a child, fearless and unhurt, might carry a purse of gold from east to the west.

Such an experience would be a supreme test today of law in its protection not only of private property, but of children.

The Everlasting Contribution of Rome

The story of Rome is known at least in a general and fuzzy way to every well-educated person. But few appreciate the magnitude and penetration into many lands of the Roman contribution to jurispru­dence, which, among other accom­plishments, defined, guided, and protected private rights in prop­erty and contracts in the various activities and transactions of an energetic people.

Let it suffice here to mention only a few of the Roman jurists whose names never will be forgot­ten by genuine sages of the law.

Gaius wrote his treatise, The Institutes, in the second century, A.D. The work was then original in its method of classification and generalization whereby he con­structed a comprehensive system of juristic principles. It was used as a textbook for students of law in a number of countries for three centuries after the author’s death, about 200 A.D. This is an example of his style and concepts:

Things subject to human dominion are either public or private.

Things public belong to no individ­ual, but to a society or corporation; things private are subject to individ­ual dominion.

It was Ulpian, the Counselor, who at about the beginning of the third century wrote 23 treatises on law and gave us a definition of justice which never has been im­proved:

Justice is the constant and per­petual will to allot every man his due.

Justinian I, at Byzantium, Em­peror of the Eastern Roman Em­pire, in the sixth century under­took direction of the task of or­ganizing and greatly reducing in wordage the Roman law, employ­ing a commission of seventeen jurists headed by one said to be the most learned man of his time, Tribonian. Three works were pro­duced, the Digest, the Code, and the Institutes, of which the Digest was the most famous and the most influential through many different eras and cultures. Although with the fall of the Roman Empire, the Digest disappeared for five cen­turies, one complete and reliable copy then was found, and it has influenced the jurisprudence of many lands and centuries. These words from the first chapter of the Digest have been translated into various languages:

Three things the law enjoins upon all: to live honestly; to cause no vexa­tion or harm to another; and to ren­der to every one his due.

No more just, practical, and ex­pedient principles to govern the private ownership of property ever have been conceived.

The Trail of One Great Work of Law

We can follow the development of modern law in Western Europe and the British Isles, before the blackouts by totalitarian despots, by following the trail of Justini­an’s Digest, one of the best-selling books for some years after the art of printing was mastered. This is so not because the Digest was the sole influence and pattern, but be­cause it was amalgamated with lo­cal customs and systems, always recognizing, defining, and protect­ing rights of private contracts and property.

Disregarding the chronology, the trail would lead us to France and the Code of Napoleon, a work that has been translated into al­most every language and has in­fluenced the world. Concerning it, Napoleon, in exile at St. Helena, said:

My glory is not to have won forty battles; for Waterloo’s defeat will destroy the memory of many vic­tories. But what nothing will destroy, what will live eternally, is my Civil Code.

The trail, with legal scholars from Italy often leading or follow­ing, would take us to Austria, Bo­hemia, Serbia, Germany, Poland, and the British Isles, and finally to America and all the English settlements insofar as Justinian’s Digest played a role in the design of the English Common Law, mainly through the studies and writings of such prodigious schol­ars of law as Bracton, Chief Jus­tice Littleton, Coke, Bacon, Selden, Mansfield, and Blackstone.

Modern Destroyers of Private Property

It would seem that one of the most difficult or unattractive or disagreeable things for human be­ings to do, even in the presence of history’s judgments, is to heed the advice of the Apostle Paul: "Prove all things; hold fast to that which is good."

Among the destroyers of private property and the privileges of pri­vate ownership, two of the wreck­ers do not here call for our con­cern. They are (1) acts of fortuity and (2) negligence. Although either can be disastrous to the in­dividual, in their general conse­quences they are of minor signifi­cance compared with two others. Our brilliant, comprehensive pro­grams of insurance, privately con­ceived and executed, and our per­sonal accomplishments in mechan­ics, engineering, and all realms of science, have been alert to and dili­gently encountering these minor destroyers.

But two others, crime and gov­ernment, of which the latter is the more dangerous, do demand our thought and vigilance, lest private ownership of property becomes only a nominal superficiality while continuing to carry the responsi­bility for management and care, and the burden of financing the government.

It is reasonable to conclude that a relation exists between the in­crease in crime, now a menace to every person, and the govern­ment’s increasing attacks upon and subversion of private rights in property. When government does not respect, and ceases to have concern for, those rights, the atmosphere thus created is in ac­cord with and supports the crimi­nal’s philosophy.

The reported fact that in one year’s time 10,000 trays, 2,000 salt and pepper shakers, and near­ly 1,200 sugar dispensers disap­peared from the Pentagon’s cafe­terias and snack bars, is, no doubt, a minor indication of an atmos­phere created by government not fearfully charged with integrity and discipline.

It does not seem possible to ar­rive at an accurate estimate of the total property losses suffered by our people resulting from crime: from robbery, burglary, embezzle­ment, fraud, confidence-trickery, vandalism, malicious mischief, ar­son, and theft of all kinds and dimensions: from a woman’s purse and a store’s merchandise to costly jewelry, furs, money, bank robberies, trade secrets, drug cultures, secret formulas, and life­time savings.

An estimate probably well sup­ported by facts is that crimes against the ownership of property have been increasing at a rate four times as great as the rate of population increase. But crime takes vastly more from the citi­zenry than the immediate losses. Money needed for law enforce­ment, investigation, courts, court proceedings, institutions of con­finement, punishment, and treat­ment is derived from private prop­erty.

The Alert Citizen’s Three Questions

But the potentials of private crime for separating property from its owners and for destroy­ing property and the privileges of ownership are piddling com­pared with the potentials of gov­ernment for like effects. An alert citizenry will ask these questions of its public officials:

1. Is there a point beyond which, when public officials take your money through the entrusted pow­er of taxation and hand it over to others without consideration, without justice, and without in­telligent mercy, they violate the eighth commandment: "Thou shalt not steal"?

The answer to that question, of course, is "yes," unless through miseducation, suppression of news and guileful propaganda, or just being dull, we have retrogressed to the ancient belief that the king can do no wrong.

2. Is there a point beyond which public officials cannot go in caus­ing inflation through their fiscal, money, paternal, and foreign poli­cies, their extravagances, subsidies, gifts, and favoritisms, thus destroying substantial value in everyone’s money and in t

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February 1967

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