Fiddling While Rome Burns, Part Two

What is called “consumerism” is one important aspect of the degraded nature of modern man who depends on mass production of unnecessary goods to make himself content with his servility.  Leftists who claim to deplore consumerism, can only offer more government, while Libertarians and Classical Liberals, whose ideology of individualism began the process that culminates in Marxist-feminist-transgenderist consumerism, can promise only more servility and the degradation of the human person into an object for twisted scientific experimentation.

Hilaire Belloc’s friend GK Chesterton had started out as a Liberal individualist, but came to understand that freedom, like charity, begins at home.  Home is, as Chesterton says

the one anarchist institution.… it is older than law, and stands outside the State. By its nature it is refreshed or corrupted by indefinable forces of custom or kinship.

A family home is something more than a building in which a group of individuals have chosen to inhabit.  It is more, even, than a source of nostalgia at Christmas or a sentimental refuge from the strife of beating your brains out in the marketplace.  Just to say the word “home” summons images of a life lived together and of a common identity that is passed from one generation to another.  Even today the home represents a substantial part of a family’s wealth and its greatest investment, though the mere fact of treating a home as an investment lowers its significance. 

The home with its surrounding land—whether a quarter acre of yard or vast acres of farms and rolling parkland—is the essential and indispensable form of real property.  And, although the nature of home-ownership has changed radically in the modern age, most of us can still appreciate the distinction between a duplex that is bought as an investment and the home in which children are to be brought up, but it is not the size or configuration of a building that makes a home, but the ties that bind the dwellers together.  Our sentimental attachment to home, even when that home is a rented apartment, is revealed in every alarmist newspaper article written about the plight of the homeless.   

There is scarcely anything more frightening than homelessness.  Not to have a home implies more than a lack of the comforts provided by beds, chairs, and central heating.  To be homeless is to be plunged into a mode of existence far more primitive than that of nomads who make their annual treks, back and forth from customary pastures, dragging their tent-homes with them.  Our very sense of what it means to be human is bound up with having a home; indeed, the establishment of a home base appears to have been among the earliest “breakthroughs” in the development of human social life. 

The home is the first place where we belong and the foundation of future allegiances to kinfolk, neighborhood, and country.  The house, in a strictly material sense, provides protection from the elements and constitutes a barrier against an attack by outsiders.  The home is also a “castle,” that is, a defensible fortress against all enemies, and there was a time when this expression was something more than metaphor. 

Anything so vital to our interest and identity must be secure from invasion, if it is to be functional.  ”A man's home is his castle" is more than a proverbial assertion of privacy.  The proverb hearkened back to the age when fortified castles enabled a free man to bid defiance to the world.  By the end of the Middle Ages the concept of the castle was extended to every house in England.  In the Common Law, as Blackstone comments,"The house of every one is to him, his castle and fortress, as well for his defence against injury and violence as for his repose."  

Felons were, of course denied this sanctuary,  but the officers of the crown could not force their way in on some trivial pretext.  A man might accumulate huge debts, but so long as he did not leave his home, his person was safe. 

Despite the Common Law restrictions on the power of the King's agents to enter a home without the owner's permission, the habit of general warrants gradually developed, giving customs officers the right to search property without having a named warrant for a specific household. 

By the early 18th century, the abuse was deeply engrained in the English constitution.  The numerous and various excise statutes, for example on sugar and molasses, gave customs officials the right to search vessels and warehouses on mere suspicion, and the infamous Cider Act of 1763 permitted inspection even of private homes.  Enforcement attempts in England caused riots.

It may have been the Cider Act that inspired William Pitt's celebrated eulogy of the Englishman's home:  “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,--but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.”

The excise issues that led to the American Revolution may seem like paltry affairs, and even James Otis, the leading spirit of New England's tax rebellion, only reluctantly signed the protest against the Stamp Act.  For Otis, the question was not Parliament's right to tax but the Common Law rights of Englishmen in the colonies.  Otis only became rebellious when he defended Boston merchants against the customs officials who had seized their property under general "writs of assistance."  Arguing that no Parliamentary action could overrule the common law, Otis declared the writs to be invalid, describing them in 1761 as "the worst instrument of arbitrary power, the most destructive of English liberty and fundamental principles of the constitution that ever was found in an English law book."

It was the invasion of property as much as the taxes and confiscations themselves that annoyed the Americans and prepared them to resist the Stamp Act of 1765, in which Parliament for the first time reached into the colonies to tax their documents and journals.  If enforced, the act would have empowered British agents to search property, seize unstamped documents, and try—without benefit of jury—the offenders in an admiralty court.  Arbitrary taxation and the invasion of private property were joined together, in the minds of the colonists, to form a monster that was no myth.  

The opponents were not all Yankees.  In 1774 Charleston’s William Henry Drayton in his Letter from Freeman complained that “a petty officer has power to cause. . . locks of any Man to be broke open, to enter his most private cabinet . . . .”

 The memory of abuse was still fresh during the debates on the new Constitution.  In a contribution to the press war that preceded ratification, the sister of James Otis, Mercy Otis Warren, demanded a bill of rights "to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure." Both New York and Virginia demanded inclusion of what would become the 4th amendment guaranteeing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Patrick Henry was particularly vehement in arguing for a Bill of Rights to safeguard property rights.  The Constitution failed to protect “[e]very thing the most sacred [might] be searched and ransacked by the strong hand of power.”

If our homes were castles, how did eminent domain law ever develop?  The history of property rights and eminent domain is not a subject for an after-dinner talk.  Let me offer the 30 second executive summary.  

Ancient Greeks, Romans, and Jews, who inherited a home property could not ordinarily be forced to give it up for taxes or for any public good the rulers imagined.  When barbarians took over France and England, the ultimate ownership of the land belonged to the sovereign of the territory, and the land titles of barons, knights, and even free peasants were contingent on services required by the ruler.  

It is a long story with many exceptions, but the result is that in England the only true freeholds exempt from confiscation are owned by corporations—the Church, and universities.  In America, it has been said, there are none.  Your home belongs to the State, which can confiscate it for unpaid taxes, failure to maintain the property, a variety of criminal offenses, or simply to accommodate a large corporation that has bribed a group of politicians.  At the time of the Revolution, however, the home-castle was felt to be exempt from invasion, and householders were free defend their homes and even to kill invaders.  If there were a conservative legal defense organization in America worth their tax-exempt status, they would be working to privilege the home and its property above all other forms of property, so that the couple in Missouri who merely brandished weapons to warn off rioters and looters could not be prosecuted. 

Thomas Fleming

Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

2 Responses

  1. Avatar Roger McGrath says:

    I would very much like to see a Tom Fleming article on eminent domain. The power of the government to confiscate one’s land has been abused for venal and corrupt reasons as Tom mentioned–but the Constitution does require the government to pay just compensation for land taken. There are good reasons for eminent domain–a military installation in time of war or the building of a dam or bridge or some such thing–but the government having that power should remind us of the need for eternal vigilance. I grew up with a reminder that occasionally a large corporation and bribed politicians trying to exercise eminent domain can be defeated. In the late 19th and early 20th centuries the Southern Pacific RR owned the state government of California. The SP built a line south through the San Joaquin Valley and over the Tehachapi to Los Angeles. The land for the right-of-way was acquired through eminent domain. The SP wanted a second line down the coast to L.A. To avoid the Big Sur coastline the SP had a right-of-way condemned through the Salinas Valley and out to the coast at San Luis Obispo. Then straight down the coast until a problem developed below Oxnard. The state constitution contained a provision that eminent domain could not be exercised for a RR right-of-way if the new proposed RR route merely paralleled the route of an already established RR. At the time the Rindge family owned Rancho Topanga Malibu Sequit, commonly referred to as Malibu. The family hurriedly built a narrow gauge RR on the property, which took the only available route along the coast. The humble little line stopped the powerful SP in its tracks.

  2. Thomas Fleming Thomas Fleming says:

    Roger, as a sort of side-interest, I have been studying the history of property and eminent domain for about 20 years. I am no expert but what has interested me is the concept of ownership and how it has varied in different cultures. Eminent domain law grows out of feudal law and even here in America, where the lawyers have denied it and claimed that our law is based on democracy, the old fable that the sovereign is the ultimate possessor is really the foundation. As you rightly point out, exercise of ED was normally limited to emergencies and overwhelming public interest, e.g., the need to tear down houses that abut the city wall when an enemy is approaching, the need to burn buildings affected by plague, or, less urgent, the construction of roads, bridges, and water mills eagerly desired by the vast majority of ordinary farmers, merchants, etc. I’ve written and not published a number of things that got too bogged down in technicalities but as I finish some other projects, I have some chapters on property, including discussions of ED, that I can put together.