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),
1:06 pm on August 11, 2005It 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.
