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Peculium, and the State as Overlord

From a 2005 post on LRC:

Reading Alan Watson’s Roman Law and Comparative Law, I came across this passage, describing the status of slaves in ancient Rome:

A slave could own no property, but from early times it was customary to give the slave a peculium, a fund that he could administer as if it belonged to him. Technically, this sum belonged to the master, but to some extent it was treated as a separate estate with which the master did not interfere except for good reason. [p.40]

It occurred to me that our property and income today is basically merely a pecunium–since the state presumes the right to take as much of it as they want, leaving a discretionary amount to us serfs, at their pleasure. Further proof that taxation enslaves.

And as I have pointed out here, the state does technically “own” our property–I have noted this before in this law review article (endnote 59),

It is interesting to note one (only apparent, as will be seen below) theoretical difference between the civilian and common law conception of real property ownership, concerning the right of the sovereign (king or state) to ultimate ownership of land. In Louisiana, “Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.” CC 477. Lands in the thirteen original American colonies were held in tenure, however, with the king as the ultimate lord and owner of the land. CORNELIUS J. MOYNIHAN, INTRODUCTION TO THE LAW OF REAL PROPERTY, 7-8, 22 (2d ed. 1988); see also ROGER A. CUNNINGHAM, WILLIAM B. STOEBUCK, AND DALE A. WHITMAN, THE LAW OF PROPERTY, Chapter 1 (West 1984). “The American Revolution clearly ended any tenurial relationship between the English king and American landholders. Some of the original thirteen states adopted the view that the state had succeeded to the position of the English king as ‘lord’ and that tenure continued to exist, while other states enacted statutes or constitutional provisions declaring that land ownership should thenceforth be ‘allodial,’ or otherwise declaring that tenure was abolished.” Cunningham, et al., at 25 (footnotes omitted). However, “In the remaining states it would seem that lands are still held in tenure of the state as overlord.” Moynihan, at 23. “Throughout the rest of the United States, it seems clear that tenure never existed.” Cunningham, et al., at 25 (footnote omitted).However, despite this theoretical difference between civilian and common law ownership, at least in some states such as Pennsylvania and South Carolina, Moynihan, at 23, “Even in the states where tenure may theoretically still exist between the state and one who owns land in fee simple, tenure would appear to have little or no practical significance. For all practical purposes, one who owns land in fee simple anywhere in the United States has ‘complete property’ in (full ownership of) the land.” Cunningham, et al., at 25 (footnotes omitted).

It must be pointed out that, in reality, in none of the 50 United States do nominal “landowners” really have “complete property” in “full ownership of” “their” land. To say that land is owned “allodially” is a fiction. For land is subject to expropriation by way of eminent domain. See, e.g., La. Civil Code 2626 [now La. R.S. 9:3176]:

The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.

Article 2627 [now La. R.S. 9:3177] further provides:

If the owner of a thing necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law.

Furthermore, it cannot truly be said that one “owns” property which is subject to divestment if annual “rents” (i.e., property taxes) must be paid to the sovereign for the privilege of retaining possession of one’s property. Tenure, then, exists after all, in all fifty states, and the theoretical difference pointed to above is not really a difference at all.

Update: See also Charles A. Reich, “The New Property,” Yale L.J. 73, no. 5 (April 1964): 733-87, p. 770:

This feudal philosophy of largess and tenure may well be a characteristic of collective societies, regardless of their political systems. According to one scholar, national socialism regarded property as contingent upon duties owed the state; Nazism denied the absolute character of property and imposed obligations conditioning property tenure: “In practice the development seems to have been toward a concept of property based on the superior right of the overlord.”‘

{ 7 comments… add one }
  • David C. June 23, 2009, 1:27 pm

    The extent to which people believe those managing the state are apt to steal their property (real estate, bank balances, gold coins, etc.) is a significant part of that property’s value on the market. In this respect, we could compare this man-made reduction of value to that of nature when evaluating the price of a beach house in an active hurricane zone (not that this is much of a revelation).

    Thus we see that what we’re talking about is a facet of mass psychology, a perception that is only tangentially related to the “facts.” In this regard, as with other markets, fluctuations of price are heavily impacted by the perception of the state’s managers’ kleptocratic tendencies.

    Since we (the U.S., and largely the West) entered a bear market in social mood of magnitude not seen since the 1720-1784 bear market (British stock prices), political uncertainty will play a large role in the collapse in dollar prices of many asset classes during the next 5-8 years and periodically thereafter for a long, long time.

    While logic does not dictate market prices, your point about the state’s final ownership of property, combined with a current and continuing collapse in tax receipts as income, sales, and property taxes plummet, tells us that real tax rates are going to skyrocket.

    Guido always gets his pound of flesh.

  • B. Wayne July 27, 2010, 3:22 pm

    Stephan, thanks for sharing your thoughts and ideas. I have come to believe that debt is how our economic system motivates people to toil past their desire, or in an undesirable role. Consume past your means, live in debt, and die before you can tax the social security system. To break out of the system, eliminate debt.

    I can hardly control my tax situation so I look past it like gravity. I deal with it during tax season then try to forget about it the rest of the year. But you’re right, tax enslaves us, and property rights are limited and fleeting. But then I’m reminded that we all enslaved to some earthly master at any given time of the day; be it a customer, spouse, parent or child. Even states can be enslaved by debt, taxes, aid or protection, just look at our own 50.

    Where ever there is commerce, or military authority there is slavery, just as sure there is gravity.

    • Stephan Kinsella July 27, 2010, 4:19 pm

      Wayne, my buddy, one is not “enslaved” by customers or family members. To treat this as the same as real crime is … untenable.

  • twv July 27, 2010, 5:00 pm

    But any obligation to engage in a positive service or actual diminishing of personal resource can seem like a form of slavery. This is what William Graham Sumner was driving at in his great essay that settled on the hobo as “most free.”

    But, as Sumner suggested elsewhere, and as Georg Simmel persuasively argued, the only palpable freedom we have is to select the obligations we take on, through our actions. Political freedom of the individual is a freedom to choose. Any politically free person will be circumscribed on many (if not most) sides by obligations that can — contrary to the value of his/her basic freedom — weigh one down.

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