The law of the land of make-believe

The way to prevent theft is to abolish property

Here, if a man wants a coat, he takes it, and the owner reimburses himself from the great reservoir of the world’s goods, which is open to all men as integral parts of a unit.

• What check have you upon the unreasoning rapacity of a thief, who will take ten times as much as he requires?

The system operates directly against the development of that trait. Here, men are only too anxious to have their goods admired and taken; for, being certain of their own maintenance, they feel a pride in contributing to that of others, and there is no temptation to take that which can not be kept, since his neighbor has equal right to take from him an idle surplus.

Here the laws are the reverse of ours, for here a man is encouraged in the taking, but never in the holding. Wealth is measured by what a man disburses; hence all are anxious to part with their individual property for the advancement of the commonwealth, knowing that the one can only thrive when the many are prosperous.

(Ah Ben explains property to Henley on their visit to Levachan.)

Charles Willing Beale: The Ghost of Guir House

Image: the Gelsenkirchen savings bank. Apparently, no one heard the drilling.¹

Theft is constantly on the rise. We live in a world in which consumerism (and not the consumer) is king, and that all means that we produce more and more, so that there is always more and more to nick. And, until such time as one single nation state owns the entire globe (a prospect which may yet not be so very far off), that will also go for land.

Theft has always been one of the more popular sins, coming in a close second to covetousness. But whereas covetousness is a sin that will readily be confessed to (with utterances such as I really love it! and I can just imagine that on my wall!, and the ilk), theft, which is one natural consequence of covetousness, lurks in the shadows of confidentiality and dark secrecy. I understand that the Empress’s jewels, which were nicked from the Louvre in Paris recently, still haven’t pitched up, which means either that they have been fenced extremely well, or the thieves haven’t a clue what to do with them.

I find it interesting that both theft and covetousness are covered as two of the Ten Commandments, for I should have thought that covetousness on its own ought to have been sufficient. There is always method in God’s messages and very little in the way of legal nicety, so that’s a strange thing that will need more thinking about.

Speaking of the Ten Commandments, it is worth pausing for a mo’ on the fact that theft itself is predicated on the existence of a legal concept, of property, not in itself a biblical notion. Theft, aside from being a biblical sin, is the legal foundation upon which the very concept of a nation state is based (the idea that this is ours, and them over there can’t have it). So, the nation state is not only the foundation for the idea of nationality, and therefore the idea of defence, but also automatically gives rise to the concept of that which is defended, which is persons and property.

The idea that just being somewhere could confer rights of ownership in the land on which that existence was done is a relatively recent development. It is staked down in concepts of law such as positive prescription, which is the expedient answer to a most relevant observation that just standing somewhere surely oughtn’t to grant you ownership of where you stand. Oh, yes, it does, the doctrine of positive prescription retorts almost pantomimically, provided you stand there long enough. It varies from jurisdiction to jurisdiction, but the claim by the Ukrainians to be rooted in their country of Ukraine on the basis of having been established there for in excess of a thousand years is belt and braces argumentation for even the longest periods of positive prescription, under which 30 is generally seen as enough.

Unwilling to wait even that time—more than half a man’s lifetime at the time that that was that time—Locke declared that a man’s property in land could be earned simply by combining it with his labour: sticking a spade in it (and turning the sod) makes the sod turning the sod the land’s owner. The fact that the land belonged to someone else before that is only of relevance if they come at you with a big gun. But, if it’s you who’s holding the big gun, the existence of previous owners is irrelevant. And one of the biggest legal guns for rendering the existing owner irrelevant is if they don’t even know what the concept of land ownership is. One should always beware of people who brandish legal arguments: they are invariably devices made up to sound clever, regardless of how flawed they in fact are.

Like when the English king Henry VIII enacted the Statute of Uses of 1536, by which the benefit of using land was transformed into its ownership, in order to stop people avoiding the tax imposed on inheritances of ownership of land by devolving use (or benefit) of the land to their heirs instead (the alternative to paying the tax had been losing ownership altogether). The Statute of Enrolments 1535 introduced the requirements for transfers to be registered (with the effect of evidencing that the Statute of Uses was working). With the fiscal security of the Exchequer ensured by the first two acts, there followed a third, in 1540, by which testamentary dispositions in the form of wills were for the first time allowed in England. These generously allowed people (as long as they paid the tax, mind) to bequeath their land to anyone they wished. But, that said, not to bequeath quite all of what was under it because, in 1568, Elizabeth I enacted legislation to reserve to the English Crown the metals and minerals contained under the surface of someone’s land. This reinforced the principle, if it needed reinforcing, that theft by act of parliament (or by war) is not theft, even if it does entail quite a large helping of covetousness.

The Louvre heist was a source of great amusement to much of the unaffected general public. I once paid at the Tower of London to be able to go into a darkened room to see the British crown jewels. Only later did I learn that I paid to view paste. What I saw were not the real crown jewels, but copies. The real ones are kept hidden away in a vault. To make sure no one steals them. But, because they’re kept hidden away, how can we be sure they haven’t already been stolen? Or that King Charles didn’t flog them and pocket the proceeds? When he was crowned, dignitaries from around the Commonwealth were invited to attend the ceremony, and the Indian delegation pointed out beforehand that they were uncomfortable with the idea of Queen Camilla wearing the famed Indian diamond, the Koh-i-Noor (which Charles’s forebears had effectively purloined from the Sub-continent). Buckingham Palace replied that they would arrange matters so that the Queen wore a less contentious diamond. But they didn’t offer to return it (which would also be consistent with not being able to return something that you don’t actually have in your possession …). What exactly would stop the royal household from breaking the Koh-i-Noor up into smaller diamonds and selling them off, and then wearing the paste replica on official occasions? After all, no one would be getting close enough to see the difference You mean to say King Charles wouldn’t ever dare to do that? Listen, what people dare and don’t dare these days—all bets are off.

The Louvre heist aside, Gelsenkirchen is reeling today after a daring heist at its local savings bank, the Sparkasse. Mega-drills were deployed to simply force a way into the safety deposit box room, the thieves making off with upward of 300 million euros worth of stuff. One chap had gold bars worth 600,000 euros and has lost them to the scoundrels. It was to be the basis for his well-earned retirement.

I’ll say it was well-earned. Perhaps you also have gold salted away in a bank deposit box and I dare say you earned every penny that was put towards buying it. Sweat of your brow. Perhaps some of it came from an inheritance, so the sweat of your father’s brow. And maybe even the sweat of his father’s brow before him. After all, it is only meet and right that we should inherit the fruits of our ancestors’ labours.

The self-evidential nature of that statement really does preclude any challenge to its logic or natural-law status. And yet there is nothing natural in it whatsoever. For instance, it was not a natural consequence of dying prior to the reign of the English king Henry VIII, as we have seen. Henry did make it a natural consequence, but he did so for the sole purpose of taxing it. Those who argue against inheritance taxation on the grounds that a father should be able to bequeath his property to his sons free from intromission by the state are entirely missing the whole point: taxed or not, no one should be leaving land by testamentary disposition to anyone. And, until 1540, no one did.

I can already hear the objections when I start to talk about feudal land tenure: every man and woman should have the right to own their own Englishman’s castle, if need be through the expedient of a mortgage loan. Only that way can true liberty be attained. Does that more or less encapsulate the argument?

Feudal enfeoffment was predicated on a few fairly simple principles, even if the terminology does look somewhat antediluvian. The first principle was that all land, wherever it was located in the nation, belonged to the king—it was his desmesne. When we try to get our minds around complex issues like Donald Trump’s claim over Greenland, in the course of which the question has been pertinently raised By what title does Denmark even claim ownership of the island?, it is feudal law that somehow gives us perspective, if not the answer. The perspective is that it belongs to Frederick X (without getting into the fine details). And taking Greenland from Frederick X may seem a brazen act of theft, except that the manner in which Eric the Red of Norway originally acquired the territory was itself a brazen act of theft, even if the joint Danish/Norwegian settlement of their holdings in the island involved less purloinment than the original sin itself. In short, if Denmark stole it, why can’t America?

One answer to that question is that it comes up against the stern face of international law. But international law is, just like the law against theft, a theatrical decor wheeled onto the world stage from its wings in order to create an impression (one that is nevertheless easily seen through by the audience) of stability and permanence and fairness. That impression is not, however, created for the benefit of the players on the stage (who all the time know that it’s a flimsy canvas on rollers, which can just as easily be wheeled back off stage) but rather for the audience, whose entrancement is induced by the art of make-believe. And when, tra-la!, the scene is suddenly changed, the transformation is effected entirely in the dark, by indiscernible stage hands of no particular identity. And not in the courts of international justice.

But there is another answer to the question, one that relies less on contrived definitions of sovereignty, legitimacy and justifiable acts of defence. Ancient land law, based as it was on the idea of all land being the king’s, and all enfeoffments beneath him being authorised in favour of dukes, manorial mesnes and rights of gavelkind (if you happened to live in Kent), founded in the principle of service. At the foot of this hierarchy were serfs, or peasants (or soldiers in the case of chivalric grants of land). The peasants worked the land and produced its fruits, and they lived upon it for as long as they lived. If they were law-abiding, they would be buried upon the consecrated premises of its church and, if they were criminals, they would be executed outside the boundaries of the property and banished for eternity from what had once been their home. When, in Shakespeare’s play, King Lear banishes the Earl of Kent, the effect is as if to execute him outside the bounds of the realm, like some common criminal: to commence eternity during the man’s lifetime and thus augment his suffering.

Archaeologists know that the possessions of nobles and tribal chiefs were buried with them, to accompany them into the hereafter. They were not handed down to children or hangers-on. Nor did peasants bequeath their property, such as they even had any in terms of moveables. They gifted sentimental objects, and they gifted their history through plainsong and story telling. They gifted their characters through their children and their children’s upbringing. And, when they themselves departed this life, what they left behind was the spirit of ancestry. But they did not bequeath land. They lived on the land and recognised that the land upon which they had lived would be needed for future generations also to live upon. They didn’t own it, they curated it. They husbanded the land, and they thrived on its fruits. That was how communal existence was; until 1535.

When a peasant died, his share in the common property passed in equal measure to all the remaining members of the community. That was the same principle as applies in monasteries and abbeys (and modern corporations and cricket clubs): the brotherhood or sisterhood held the assets of the institution in common ownership. That was part of what Henry VIII sought to dissolve when he dissolved the monasteries after he had broken with the Church of Rome. And in its place, he instituted the acts of 1535-1540.

Those who look at these changes may well say how relieved they are that they took place; that the right to live on a plot of land is no longer made dependent on serfdom, the provision of services to the lord of the manor (or of fighting services to an army)—a status often viewed as being akin to slavery. But today (at least for those who do not inherit their property from their forefathers), land ownership is still dependent on service, even if the term serfdom has been well and truly consigned to the past (the words service, serf and slave all derive from the Latin servus): for 20 years (typically), a woman and her husband must labour long and hard (and under a constant threat of dispossession should they miss any of their loan repayments), in order one day finally to be able to declare their erstwhile mortgaged home as indeed being their castle. As in so many things, the interposition of banks into the ownership-acquisition process does nothing to deprive that process of its original character, even if it does increase the onus on him who needs to pay. And when the survivor of them passes on and the house devolves upon the children, King Henry’s tax still gets levied. The feudal system may be history, but the king still taxes his country as were it his own.

The old form of land holding (whose bequest to us modern lawyers is the word tenant itself—meaning he who holds land without owning it) still clings to the modern world in the form of common land, common grazing and, in the civil law countries, common property (indivisibilité—like the landings and stairwells of an apartment block). But, in the years that preceded the 1500s, land tenure was not fundamentally different to how it is now: you were born, lived by work thus acquiring the right to live where you lived, and then you died. And in those far-off days, what happened to your earthly possessions was of little concern to you at that point: much rather, it was the possessions you had accumulated in the realm of God that were of far greater importance to you. And there is a strangely clean aspect to that: it may or may not be so; but as long as men held to that idea’s widespread truth, their proprietorial disputes on Earth were few and of little consequence. Instead, it was, as it is now, the proprietorial disputes of our kings that were, and are, the cause of so much discontent. If you think that right should vanquish might in the Greenland question, then you delude yourself: nations have never waged wars on the basis of what was right, but have always entailed their vassals in bellicose servitude to serve their own proprietary interests. It is property interests that will determine where Greenland goes, not what is right under international law.

The newspaper reports of the Gelsenkirchen bank heist are written in terms that invoke our sympathy for those whose life savings have been purloined. Some of them lost considerable amounts of value. How these assets came to be owned by them and by what title they insist on their own interests in the property, we are left unaware. One thing we can conclude: by whatever means it was, all property was at one time, by someone, from someone or something, taken without consent. That is the definition of theft. I seem to recall from my law studies a legal precept which says that no man can acquire any better title in property than was enjoyed by him who previously held it. So that no right can be conferred over that which is stolen that is better than the right of property in the item prior to its theft.

The law against theft must nevertheless be of great comfort to us: because of that law, the incidence of theft must be far less than it would be without Man’s (not to mention God’s) proscription of the act. Of course, the best prevention against theft is to keep one’s possessions close by at all times, and then secure them with locks and vicious guard dogs. Failing that, there is always the even more vicious insurance.

Except that the poor victims of Gelsenkirchen revealed to no one what they had placed in their deposit boxes (one says he had gold worth 600,000 euros, but he cannot prove that) and, if they had, none of them would be adducing evidence of how it came into their possession. Therefore, a heist directed at safety deposit boxes is the purest form of theft there is: the bank secures the vault to the requisite standard (whatever that might be, since it was clearly not requisite enough to withstand the thieves’ drilling operations), whereupon the putatively innocent public deposit their valuables on a basis that is nothing more substantial than pure trust (i.e. in the definition of requisite, as in the good faith actings of the bank), and when they awake to find all the booty gone, what then do they have as recompense, when the insurer declines their claims with an almost conspiratorial snigger?

All that work for nothing, slaving away to accumulate the 600 thou-worth of gold? They only need to imagine themselves back in 15th century England. Let us eat, drink and be merry, for tomorrow we shall die!

1. By GeorgDerReisende@Vicuna - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=181085233