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April 2017 Policy Study, Number 17-7

   

A Commentary on Property and Taxation

   

Part 1

   

 

Private property and its attendant blessings would seem to be a rather easy topic on which to expound.  After all, most of us own some private property, and we believe we understand the topic reasonably enough.  Just what remains to be said?  This author takes exception to the notion that a very great number of persons in this nation have an adequate understanding of private property or of its major blessing — liberty.  The proof of this statement is found in the fact that if we did have an adequate understanding of private property, we, as a people, wouldn’t so casually allow our unalienable right to private property to be negated.  And yes, as a people, we have done exactly that.  Why does it matter?  Because there is no such thing as liberty in the absence of private property.  That is an exceptionally strong statement.  It is unequivocal and absolute in its dimension.  And, at least in the author’s opinion, it is unequivocally true.  That’s why an understanding of private property, together with the unquestionable right to private property, is of such importance.

 

In this essay, I mean to prove to you that what was stated in the prior paragraph is indeed fact.  In order that we may begin this discussion with a common starting point, it is necessary to define our terms.  We shall use three sources:  a reasonably current Webster’s Dictionary, the original 1828 Webster’s Dictionary, and a reasonably current Barron’s Law Dictionary.  The reason for the 1828 Webster’s Dictionary is to provide you with a bona fide source as near the establishment of this country as possible.  This should give us some perspective as to the meanings of these words and to the beliefs on this topic that were held by our Founders.  Noah Webster standardized the spelling of words and “codified” our common language, if you will.  Congress used his 1828 dictionary as the dictionary of record then, and that is the case to this very day.  This signifies that the definition of a word in our legal codes holds, or is at least supposed to comport to, the meaning found in the 1828Webster’s Dictionary:

 

Private: [belonging to oneself, not public or pertaining to the state]

1. of, belonging to, or concerning a particular person or group of persons; not common or general; as, private property.

2. not open to, intended for, or controlled by the public . . .

 

Property: [one’s own]

1. the right to possess, use, and dispose of something; ownership; as property in land. private property; any property, real or personal, which the owner has the right to control, use, and dispose of as he wills. (Emphasis in original).  (Webster’s New Universal Unabridged Dictionary).

 

In order to correctly comprehend the meanings of these words in the 1828 dictionary, it is necessary to define another word and imbue it with its meaning at that time, as it was used in the subsequent definitions.  The word is “peculiar.”

 

Pecu’liar (sic), a. [adjective] Appropriate; belonging to a person and him only.

Pecu’liar (sic), n. [noun] Exclusive property; that which belongs to a person in exclusion of others. 

 

    Private,

      4. Properly, separate; unconnected with others; hence peculiar to one’s self, belonging to or concerning the individual only; as in . . . private property . . .

      5. Peculiar . . . to a company or body politic . . .

      6. Individual; personal; in contradistinction from public or national.

    Property,

      4. The exclusive right of possessing, enjoying and disposing of a thing; ownership.  In the beginning of the world, the Creator gave man dominion over the earth, over the fish of the sea and the fowls of the air, and over every living thing.  This is the foundation of man’s property in the earth and in all its productions.  Prior occupancy of land and of wild animals gives to the possessor the property of them.  The labor of inventing, making, or producing anything constitutes one of the highest and most indefeasible titles to property.  Property is also acquired by inheritance, by gift, or by purchase.  Property is sometimes held in common, yet each man’s right to his share in common land or stock is exclusively his own.  One man may have the property of the soil, and another the right of use by prescription or by purchase.

      5. Possession held on one’s own right.

      6. The thing owned; that to which a person has the legal title, whether in his possession or not.  It is one of the greatest blessings of a civil society that the property of citizens is well secured.

Literary property,

the exclusive right of printing, publishing, and making a profit by one’s own writings.  No right or title to a thing can be so perfect as that which is created by a man’s own labor and invention.  The exclusive right of a man to his literary productions, and the use of them for his own profit, is entire and perfect, as the facilities employed and labor bestowed are entirely and perfectly his own.  (1828 Webster’s Dictionary).

 

 

Please take note in the difference of the regard for property which was expressed in the modern dictionary and of that which was expressed by Webster himself in the original dictionary.  And also, please don’t fail to note the parallel view of property expressed by Webster with that expressed by John Locke.  Although Locke’s view will follow shortly, Locke actually preceded Webster in time.  Our Founders lived in between the two and no doubt shared the view of property held by them.

 

PROPERTY “every species of valuable right or interest that is subject to ownership, has an exchangeable value, or adds to one’s wealth or estate.” 107 A. 2d 274, 276.  “Property” describes one’s exclusive right to possess, use, and dispose of a thing, 202 P. 2d 771, as well as the object, benefit, or prerogative which constitutes the subject matter of that right. 331 U.S. 1.  (Emphasis in original).  (Barron’s Law Dictionary).

 

(As strange as it may seem, a specific mention of “private property” could not be located in Barron’s Law Dictionary.)

 

Private.  Affecting or belonging to private individuals, as distinct from the public generally. 

Property.  That which is peculiar or proper to any person; that which belongs exclusively to one.  The term is said to extend to every species of valuable right and interest.  More specifically, ownership; the unrestricted and exclusive right to a thing, the right to dispose of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it.  The highest right a man can have to anything…
Private property.  As protected from being taken for public use, is such property as belongs absolutely to an individual, and of which he has the exclusive right of disposition.  (Emphasis in original).  (Black’s Law Dictionary, sixth edition).

 

After reading the above definitions of “private” and “property,” do you feel confident you know what “private property” even is?  There are at least two potential definitions of private property contained in the cited definitions, and their meanings can be quite divergent.  When doing the research for this essay, the lack of a legal definition for private property in a law dictionary did indeed strike me as exceedingly strange.  And knowing that in the legal field things are done, or not done, for a purpose, it caused me to think about the matter a little further.  Webster determined that “private” meant belonging to oneself, not pertaining to the state and not controlled by the public.  Webster further determined that “property” was the right to possess, use, and dispose of something.  It was ownership. And the owner has the right to control, use, and dispose of his property as he wills.

 

If we were to determine our own meaning for “private property” based on what we have gleaned from the definitions of “private” and “property” found in Webster’s dictionaries, it would probably look something like this:  “Private property” is the right of exclusive ownership of a thing by an individual, upon which neither the state nor the public at large has any rightful claim; and which the individual can possess, control, use, and dispose of as he wills.

 

Compare this to Barron’s definition of “property.”  Barron’s states that “property,” not “private property,” but just “property,” is “‘every species of valuable right or interest that is subject to ownership . . . ’  ‘Property’ describes one’s exclusive right to possess, use and dispose of a thing . . . which constitutes the subject matter of that right.”  Next, compare Black’s definition of property:  “The term [property] is said to extend to . . . ”

 

If we were to determine our own meaning for “private property” based on what we have gleaned from the definition of “property” found in Barron’s and/or Black’s, it would probably look something like . . . Truth to tell, I really don’t know what it would look like; but with their use of phrases like “that is subject to”, “describes”, “which constitutes,” and “is said to extend to,” I am fairly certain it doesn’t mean the same thing as our definition from Webster’s.  It would appear that it would at least have the potential to mean whatever some barrister or judge could weasel out of it.  And your right to private property would be diminished by whatever that may be.  In other words, the security of your private property is vanishing.

 

You will note that the author said, “Webster determined” and “Barron’s states” what the definition of property is.  Webster made up his own definition from the meaning of his day.  Barron’s did not.  If you will cast a glance at the original definition from Barron’s, you will notice some letters and numbers, which may not make much sense to you.  I strongly suspect these are references to the areas of the United States’ legal code where Barron’s found them.  Why would our legal code be any less forthright than a dictionary definition?  As was mentioned before, when anything is done, or not done, in the legal field, there is a purpose.  You may draw your own conclusion; but as for me, I suspect that if there were an honest definition of “private property” in our code, that is, one that “we the people” could comprehend and would support, then government might have to be bound by it in a court of law, and that would cramp their style.  And I also strongly suspect a case of perfidy.

 

Black’s does give a definition of private property, which contains the phrases, “as belongs absolutely to an individual” and “he has the exclusive right of disposition.”  There should be little argument that these terms do indeed describe two very important qualities of what we think of as “private property.”  The problem is that it is extremely difficult to create a very long list of items with any real, significant value that qualify as “private property” as defined by these terms.  Remember, one of the qualities of “property” as defined by Black’s is “to exclude everyone else from interfering with it.”  Is your home private property when it can be sold at a sheriff’s sale if you don’t pay your property taxes?  Is your automobile private property when you can be denied the benefits of its use on the public roadways if you don’t pay your annual licensing fee?  These things certainly strike me as comprising interference by the public.  The question generated is:  just what is the current status of our private property rights?

 

   

 

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