By:Thomas Fleming | March 31, 2014
The English/American household was more than a fortified building with locks and bars to keep out unwanted intruders: It was also an autonomous community, whose existence antedated the state. This was the teaching of both philosophers and jurists, who cited approvingly Cicero's famous statement that the family was the seed-bed of the commonwealth. This was the teaching of Aristotle and the Stoics, of Thomas Aquinas and Martin Luther. The American Revolution was fought to maintain this position, while the French and Russian Revolutions did their best to destroy it.
Within its own sphere, the family household, until fairly recent times, functioned as a self-governing community. The male householder was responsible for his wife, children, and servants: He was supposed to support them appropriately, of course, but he also had to pay their debts and was held liable for torts and misdemeanors. On the other hand, if the father of the family needed to chastise his wife or child, no sheriff's deputy or social worker could intervene to challenge his methods. Punishment of wife-beaters was left up to other members of the family, and many a duel has been fought between brothers-in-law for this very reason—and to the church parish, which could excommunicate an abusive husband. This was no inconsiderable punishment in a Christian society.
When households were sovereign within their sphere, there were no state schools, and no school attendance requirements. It was assumed that a man who got married and sired children would do the best he could to bring them up. Such an upbringing by no means required formal schooling. An English or American farmer or blacksmith would expect his sons to carry on in their father's tradition, and he might well have seen no reason for his children to be taught Latin poetry, much less sociology, sex education, or gender studies. The family in the household was a semi-sovereign institution, and no government agent had the right to impose its opinions or its political ideology on the conduct of the parents. Modern public education, by contrast, is based on the theory that parents do not know or even care about the present welfare or future success of their children. Those important matters are best left up to complete strangers with degrees from the Wizard of Oz University.
Despite all the revolutionary talk about American exceptionalism you'll hear from so-called conservatives who have borrowed the language of radicals, the American colonists were socially quite conservative in their family life. Throughout the colonial period the autonomous household integrated into a local community was the American norm. Work was not arranged through a wage system but within families, and parents held onto to legal control of their shop farm and expected to be taken care of, in old age, by the children they had brought up. The family, including children and servants, constituted a community, or as one American Puritan (quoted by John Demos in a book of this title) described it, a "little commonwealth." This was the Protestant position going back to Martin Luther. Indeed, Luther's rebellion was partly inspired by his conviction that the Catholic church, in upholding the validity of clandestine marriages without parental approval, had meddled too much in the affairs of marriage and family.
This understanding of family and household as equal and prior to the state did not disappear in the 18th century: Court rulings down to the early and mid 20th century frequently upheld parental rights against the supposed interests of the state or the imagined rights of the child.
But household sovereignty and the sanctity of property were not the invention of English Protestants. Here is a passage from a well-known Catholic document from the later 19th century:
…The family has at least equal rights with the State in the choice and pursuit of the things needful to its preservation and its just liberty. We say, "at least equal rights"; for, inasmuch as the domestic household is antecedent, as well in idea as in fact, to the gathering of men into a community, the family must necessarily have rights and duties which are prior to those of the community, and founded more immediately in nature. [Rerum Novarum 1891]
In Rerum novarum, Pope Leo XIII was not putting forth any new ideas. This defense of the family's rights reflected a long-standing tradition going back to Saint Thomas Aquinas, Cicero, and Aristotle. While the specific concept of the family-castle is a development of Feudal Europe, it is paralleled in most details by ancient Greek city-states, by Republican and Imperial Rome, as well as in the Old Testament. Indeed, the autonomous and self-defending family household is a norm of Western civilization, particularly of Christendom.
The Castle Under Siege
This ancient liberty of the family-castle is now sadly run down. Zoning laws everywhere restrict the homeowner, denying him the right to enlarge or renovate his house and outbuildings as he sees fit. I am not referring to reasonable restrictions that apply to historic neighborhoods or are drawn up by neighborhood associations but to arbitrary environmental regulations and building codes invented, it sometimes seems, for the sole purpose of making life difficult for the property owner and making property rights dependent on the government. Similar requirements are attached to mortgages authorized through government agencies. Proudhon's crackpot notion that property is theft now appears to be the official doctrine of the bureaucrats who run the federal, state, and local governments.
Through the power of Eminent Domain, a man's ancestral property might be confiscated and not just for the purposes of national defense. This is no new development. Under the Tennessee Valley Authority, established in 1933 by the President for Life Franklin Roosevelt, land was taken from families whose ancestors had settled there more than a century before and for what? Cheap power for industrialists and resort lakes for tourists. A family's home may now be taken for sports stadiums, amusement parks, or even for privately owned shopping malls.
As the new millennium was dawning, some states were improving upon eminent domain with procedures for “quick take” that enabled the government to seize private property without justification, leaving it up to the owners to make a counter-claim. The justification could be as lofty as the discovery of a “wetland” in need of protection or so mean as the greed of developers. Since I have written a great deal on this subject, I am not going to go over the history of Eminent Domain but shall confine my discussion to a few general points.
First) Modern Eminent Domain laws go back to Feudal law, when most property was viewed as a grant from the king or Emperor. In England, for example, the Norman Conquest transferred title to over 90% of land from Anglo-Saxon owners to King William the Conqueror who re-granted it on condition to his Norman barons, who had to perform certain services, such as support the king in battle. If they failed, the land could be taken away and granted to another. In Britain and America, for the most part, there is no tradition of unconditional ownership. This means that the power of eminent domain, which lay comparatively dormant until the 20th century, was always available to governments which claimed ultimate control over all the property in the country.
At root is the distinction between feudal or fee simple property that is held conditionally from the crown or government and allodial property that is not only owned outright with no strings attached but also inalienable. The concept of allodial property goes back to ancient Rome, much of whose great body of law is concerned with the rights of property. In much of the Empire, these rights were mostly eliminated by the barbarian invasions, but in some parts of Medieval France, the possessors of property, as descendants of Roman citizens, claimed property rights independent of the feudal structure. This is a very real difference.
Legal historians often cite the case of Naboth’s vineyard Kings (1 Kings 21: 1-14) as the first case of eminent domain or at least as biblical precedent. Ahab, you will remember, coveted a vineyard belonging to Naboth and when Naboth rejected his offer, the King took the property and had the recalcitrant owner stoned to death. But this was by no means a legal act. In fact, Ahab’s confiscation was a sign of his despotism, as was foretold by Samuel who warned his people against setting up Saul as a king: “And he will take your fields, and your vineyards, and your olive-yards, even the best of them, and give them to his servants.” 1 Samuel 8: 14]
Ahab was not so tyrannical as to seize the property without offering another piece of land in exchange. Naboth refused compensation, not because the property offered was not a fair exchange or because his individual rights were being invaded but because his family’s patrimony was a sacred trust: “The Lord forbid it me, that I should give the inheritance of my fathers unto me.” When the prophet Elijah heard of Ahab’s double crime, he pronounces doom upon him: “In the place where the dogs licked the blood of Naboth shall the dogs lick thy blood, even thine.”
Property rights were sacred in ancient Israel. Likewise, in ancient Greek and Roman societies, real property was virtually inalienable. When an aqueduct was run across a Roman citizen’s land, it robbed him of very little space and the construction was a thing of beauty. Nonetheless, the owner could take water at no cost, which as a more than generous compensation.
Since we are celebrating the assassination of the dictator-for-life Julius Caesar, we should note that he only confiscated the property of his enemies who were condemned traitors. His heir and successor, the emperor Augustus, in laying out a new forum for the public good, was so reluctant to confiscate property that he had to scale down his plans. Augustus’ less benevolent successor, Tiberius, was viewed by critics as a tyrant but he still compensated a landowner who complained that his property was damaged by the construction of a road and aqueduct.
The great difference between ancient and modern laws of property is that ancient laws assume the sanctity of property that is passed down from one generation to another, while under modern English and American law, the state ultimately is viewed as the owner of all property, and we householders only have contingent rights that can be taken away for some imagined good purpose. In 19th century America, jurists pretended that we had a democratic basis for eminent domain that did not stem from the king's primary and ultimate ownership, but this was merely a legal fiction: In a democracy, so goes the argument, since the people is sovereign and owns the land, the representatives of the people have the right to revoke the contingent privileges of ownership in order to build a shopping mall that enriches a set of businessmen who just happen to have given money to the right politicians.
There is another important difference between ancient and modern systems of property law. In Greek and Roman law, the primary property right was the right to retain property, especially property inherited from ancestors. In Roman law, it was no easy matter to confiscate property for back taxes—the whole idea flew in the face of their understanding of property. But if the right to hold onto inherited property was a primary goal of ancient property law, in our system we are far more likely to speak of the right to buy or sell, as if property was simply a commodity. Small wonder if we should then treat our homes as mere investment, and even less wonder if governments are willing to take advantage of our cynicism.
Property rights in America, then, are very weak and they are getting steadily weaker. The Constitution offers no remedy, because Eminent Domain is actually included in the Fifth Amendment. Although the primary aim of that amendment was (I strss the past tense) to protect people from the tyranny of the federal government, it nonetheless stipulates that “No person… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Admittedly, the purpose was to restrict the Federal government's power of Eminent Domain, but in naming it as a right of government, the framers of that amendment unthinkingly imported the feudal understanding of property.
By eminent domain, then, the state exercises a regal authority over all the subjects’ property, wherever the sovereign decides that “the public good is concerned.” It does not require the Machiavellian genius of the late Samuel Francis to realize that, in each and every case, public good means the sovereign’s good, and it hardly matters whether sovereignty is exercised by ward-heeling city councilman or the state-heeling members of the U.S. Senate.
The threat of Eminent Domain is less in a monarchy than in a democracy, especially a democracy like ours that espouses the anti-Christian theory of the social contract: In such a democracy, each citizen is supposed to acquiesce gracefully in every arbitrary measure enacted by an absolute sovereign because in principle, though not in reality, the citizen makes part of part of the sovereign. The right to vote requires the voter to accept any arbitrary or illegal or immoral enactment—such as gay marriage—when it receives the support of a majority of votes cast. Though the increasingly abused principle of Eminent Domain is only a rather small part of the government's assault on the Family Castle, it poses a fundamental threat, not just against our property but against our families and our liberty.
To be completed…