10. THE PROBLEM OF LAND THEFT
A PARTICULARLY IMPORTANT APPLICATION of our theory of property titles is the case of landed property. For one thing, land is a fixed quotal portion of the earth, and therefore the ground land endures virtually permanently. Historical investigation of land titles therefore would have to go back much further than for other more perishable goods. However, this is by no means a critical problem, for, as we have seen, where the victims are lost in antiquity, the land properly belongs to any non-criminals who are in current possession. Suppose, for example, that Henry Jones I stole a piece of land from its legitimate owner, James Smith. What is the current status of the title of current possessor Henry Jones X? Or of the man who might be the current possessor by purchasing the land from Henry Jones X? If Smith and his descendants are lost to antiquity, then title to the land properly and legitimately belongs to the current Jones (or the man who has purchased it from him), in direct application of our theory of property titles.
A second problem, and one that sharply differentiates land from other property, is that the very existence of capital goods, consumers goods, or the monetary commodity, is at least a prima facie demonstration that these goods had been used and transformed, that human labor had been mixed with natural resources to produce them. For capital goods, consumer goods, and money do not exist by themselves in nature; they must be created by human labor’s alteration of the given conditions of nature. But any area of land, which is given by nature, might never have been used and transformed; and therefore, any existing property title to never-used land would have to be considered invalid. For we have seen that title to an unowned resource (such as land) comes properly only from the expenditure of labor to transform that resource into use. Therefore, if any land has never been so transformed, no one can legitimately claim its ownership.
Suppose, for example, that Mr. Green legally owns a certain acreage of land, of which the northwest portion has never been transformed from its natural state by Green or by anyone else. Libertarian theory will morally validate his claim for the rest of the land—provided, as the theory requires, that there is no identifiable victim (or that Green had not himself stolen the land.) But libertarian theory must invalidate his claim to ownership of the northwest portion. Now, so long as no “settler” appears who will initially transform the northwest portion, there is no real difficulty; Brown’s claim may be invalid but it is also mere meaningless verbiage. He is not yet a criminal aggressor against anyone else. But should another man appear who does transform the land, and should Green oust him by force from the property (or employ others to do so), then Green becomes at that point a criminal aggressor against land justly owned by another. The same would be true if Green should use violence to prevent another settler from entering upon this never-used land and transforming it into use.
Thus, to return to our Crusoe “model,” Crusoe, landing upon a large island, may grandiosely trumpet to the winds his “ownership” of the entire island. But, in natural fact, he owns only the part that he settles and transforms into use. Or, as noted above, Crusoe might be a solitary
Note that we are not saying that, in order for property in land to be valid, it must be continually in use. The only requirement is that the land be once put into use, and thus become the property of the one who has mixed his labor with, who imprinted the stamp of his personal energy upon, the land. After that use, there is no more reason to disallow the land’s remaining idle than there is to disown someone for storing his watch in a desk drawer.
One form of invalid land title, then, is any claim to land that has never been put into use. The enforcement of such a claim against a first-user then becomes an act of aggression against a legitimate property right. In practice, it must be noted, it is not at all difficult to distinguish land in its natural virgin state from land that has at some time been transformed by man for his use. The hand of man will in some way be evident.
One problem, however, that sometimes arises in the validity of land titles is the question of “adverse possession.” Let us suppose that a man, Green, comes upon a section of land not obviously owned by someone—there is no fence perhaps, and no one on the premises. Green assumes that the land is unowned; he proceeds to work the land, uses it for a length of time, and then the original owner of the land appears on the scene and orders Green’s eviction. Who is right? The common law of adverse possession arbitrarily sets a time span of twenty years, after which the intruder, despite his aggression against the property of another, retains absolute ownership of the land. But our libertarian theory holds that land needs only to be transformed once by man to pass into private ownership. Therefore, if Green comes upon land that in any way bears the mark of a former human use, it is his responsibility to assume that the land is owned by someone. Any intrusion upon his land, without further inquiry, must be done at the risk of the newcomer being an aggressor. It is of course possible that the previously owned land has been abandoned; but the newcomer must not assume blithely that land which has obviously been transformed by man is no longer owned by anyone. He must take steps to find out if his new title to the land is clear, as we have seen is in fact done in the title-search business. On the other hand, if Green comes upon land that has obviously never been transformed by anyone, he can move onto it at once and with impunity, for in the libertarian society no one can have a valid title to land that has never been transformed.
In the present world, when most land areas have been pressed into service, the invalidating of land titles from never being used would not be very extensive. More important nowadays would be invalidating a land title because of a continuing seizure of landed property by aggressors. We have already discussed the case of Jones’s ancestors having seized a parcel of land from the Smith family, while Jones uses and owns the land in the present day. But suppose that centuries ago, Smith was tilling the soil and therefore legitimately owning the land; and then that Jones came along and settled down near Smith, claiming by use of coercion the title to Smith’s land, and extracting payment or “rent” from Smith for the privilege of continuing to till the soil. Suppose that now, centuries later, Smith’s descendants (or, for that matter, other unrelated families) are now tilling the soil, while Jones’s descendants, or those who purchased their claims, still continue to exact tribute from the modern tillers. Where is the true property right in such a case? It should be clear that here, just as in the case of slavery, we have a case of continuing aggression against the true owners—the true possessors—of the land, the tillers, or peasants, by the illegitimate owner, the man whose original and continuing claim to the land and its fruits has come from coercion and violence. Just as the original Jones was a continuing aggressor against the original Smith, so the modern peasants are being aggressed against by the modern holder of the Jones-derived land title. In this case of what we might call “feudalism” or “land monopoly,” the feudal or monopolist landlords have no legitimate claim to the property. The current “tenants,” or peasants, should be the absolute owners of their property, and, as in the case of slavery, the land titles should be transferred to the peasants, without compensation to the monopoly landlords.
Note that “feudalism,” as we have defined it, is not restricted to the case where the peasant is also coerced by violence to remain on the lord’s land to keep cultivating it (roughly, the institution of serfdom). Nor is it restricted to cases where additional measures of violence are used to bolster and maintain feudal landholdings (such as the State’s prevention by violence of any landlord’s sale or bequest of his land into smaller subdivisions). All that “feudalism,” in our sense, requires is the seizure by violence of landed property from its true owners, the transformers of land, and the continuation of that kind of relationship over the years. Feudal land rent, then, is the precise equivalent of paying a continuing annual tribute by producers to their predatory conquerors. Feudal land rent is therefore a form of permanent tribute. Note also that the peasants in question need not be the descendants of the original victims. For since the aggression is continuing so long as this relation of feudal aggression remains in force, the current peasants are the contemporary victims and the currently legitimate property owners. In short, in the case of feudal land, or land monopoly both of our conditions obtain for invalidating current property titles: For not only the original but also the current land title is criminal, and the current victims can very easily be identified.
Our above hypothetical case of the King of Ruritania and his relatives is one example of a means by which feudalism can get started in a land area. After the king’s action, he and his relatives become feudal landlords of their quota1 portions of Ruritania, each one extracting coercive tribute in the form of feudal “rent” from the inhabitants.
We do not of course mean to imply that all land rent is illegitimate and a form of continuing tribute. On the contrary there is no reason, in a libertarian society, why a person transforming land may not then rent it out or sell it to someone else; indeed, that is precisely what will occur. How, then, can we distinguish between feudal rent and legitimate rent, between feudal tenancies and legitimate tenancies? Again, we apply our rules for deciding upon the validity of property titles: we look to see if the origin of the land title is criminal, and, in the current case, whether the aggression upon the producers of the land, the peasants, is still continuing. If we know that these conditions hold, then there is no problem, for the identification of both aggressor and victim is remarkably clear-cut. But if we don’t know whether these conditions obtain, then (applying our rule), lacking a clear identifiability of the criminal, we conclude that the land title and the charge of rent are just and legitimate and not feudal. In practice, since in a feudal situation criminality is both old and continuing, and the peasant-victims are readily identifiable, feudalism is one of the easiest forms of invalid title to detect.
This was the use-theory of landed property propounded by Joshua K. Ingalls in the nineteenth century. On Ingalls, see James J. Martin, Men Against the State (DeKalb, Ill.: Adrian Allen Associates, 1953), pp. 142-52.
As Leon Wolowski and Emile Levasseur have eloquently written in “Property,” Lalor’s Cyclopedia of Political Science, etc. (Chicago: M.B. Cary, 1884), vol. 3, p. 392:
Nature has been appropriated by . . . [man] for his use; she has become his own; she is his property. This property is legitimate; it constitutes a right as sacred for man as is the free exercise of his faculties. It is his because it has come entirely from himself, and is in no way anything but an emanation from his being. Before him, there was scarcely anything but matter, since him, and by him, there is interchangeable wealth. The producer has left a fragment of his own person in the thing which has thus become valuable, and may hence be regarded as a prolongation of the faculties of man acting upon external nature. As a free being he belongs to himself; now, the cause, that is to say, the productive force, is himself; the effect, that is to say, the wealth produced is still himself. Who shall dare contest his title of ownership so clearly marked by the seal of his personality?
There are, as I have demonstrated elsewhere, excellent economic reasons why land, in particular, may remain unused; for above-subsistence living standards depend on the supply of labor being scarcer than the supply of land, and, when that happy situation obtains, considerable land will be “sub-marginal” and therefore idle. See
Of course, everyone should have the right to abandon any property he wishes; in a libertarian society, no one can be forced to own property which he wishes to abandon.
The term “feudalism,” as used here, is not intended to apply to any specific landed or other relation during the Middle Ages; it is used here to cover a single kind of action: the seizure of land by conquest and the continuing assertion and enforcement of ownership over that land and the extraction of rent from the peasants continuing to till the soil. For a defense of such a broader use of the term “feudalism,” see Robert A. Nisbet, The Social Impact of the Revolution (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1974), pp. 4–7.
Serfdom, like slavery, constituted a continuing aggression by the lord against the person of the serf, as well as against his rightful property. For a discussion of various definitions of feudalism, see Marc Bloch, Feudal Society (Chicago: University of Chicago Press, 1961), chap. 1.
Such measures include entail (forcibly preventing the landowner from selling his land) and primogeniture (coercively preventing him from bequeathing his land except intact to his eldest son).