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Page 5
There can be little doubt that by the adoption of the principle of
adequate compensation, an American commonwealth could extinguish any
property interest that majority opinion pronounces anti-social. We may
have industries that menace the public health. Under existing conditions
the interests involved exert themselves to the utmost to suppress
information relative to the dangers of such industries. With the principle
of compensation in operation, these very interests would be the foremost
in exposing the evils in question. It is no hardship to sell your interest
to the public. Does any one feel aggrieved when the public decides to
appropriate his land to a public use? On the contrary, every possessor of
a site at all suited for a public building or playground does everything
in his power to display its advantages in the most favorable light.
And with this we have admitted a disadvantage of the compensation
principle--over-compensation. We do pay excessively for property rights
extinguished in the public interest. But this is largely because the
principle is employed with such relative infrequency that we have not as
yet developed a technique of compensation. German cities have learned how
to acquire property for public use without either plundering the private
owner or excessively enriching him. The British application of the Small
Holdings Acts has duly protected the interests of the large landholder,
without making of him a vociferous champion of the Acts.
Progressive public morality readers one private interest after another
indefensible. Let the public extinguish such interests, by all means. But
let the public be moral at its own expense.
A revolting doctrine, it will be said. Because men have been permitted,
through gross defect in the laws, to build up interests in dealing out
poisons to the public, are they to be compensated, like the purveyors of
wholesome products, when the public decrees that their destructive
activities shall cease? Because a corrupt legislature once gave away
valuable franchises, are we and our children, and our children's children,
forever to pay tribute, in the shape of interest on compensation funds, to
the heirs of the shameless grantees? Because the land of a country was
parcelled out, in a lawless age, among the unworthy retainers of a
predatory prince, must we forever pay rent on every loaf we eat--as we
should do, in fact, even if we transformed great landed estates into
privately held funds? Did we not abolish human slavery, without
compensation, and is there any one to question the justice of the act?
We did indeed extinguish slavery without compensation to the slave owners.
But if no one had ever conceived of such a policy we should have been a
richer nation and a happier one. We paid for the slaves, in blood and
treasure, many times the sum that would have made every slave owner eager
to part with his slaves. Such enrichment of the slave owner would have
been an act of social injustice, it may be said. The saying would be open
to grave doubt, but the doctrine here advanced runs, not in terms of
justice, but in terms of social expediency.
And expediency is commonly regarded as a cheap substitute for justice. It
is wrongly so regarded. Social justice, as usually conceived, looks to the
past for its validity. Its preoccupation is the correction of ancient
wrongs. Social expediency looks to the future: its chief concern is the
prevention of future wrongs. As a guide to political action, the
superiority of the claims of social expediency is indisputable.
VII
In the foregoing argument it has been deliberately assumed that the
interests to be extinguished are, for the most part, universally
recognized as anti-social. Slavery, health-destroying adulteration, the
maintenance of tenements that menace life and morals, these at least
represent interests so abominable that all must agree upon the wisdom of
extinguishing them. The only point in dispute must be one of method. It is
the contention of the present writer that when even such interests have
had time to become clothed with an appearance of regularity, the method of
extinction should be through compensation. By its tolerance of such
interests, the public has made itself an accomplice in the mischief to
which they give rise, and accordingly has not even an equitable right to
throw the whole responsibility upon the private persons concerned.
Interests thus universally recognized to be evil are necessarily few. In
the vast majority of cases the establishment of interests we now seek to
proscribe took place in an epoch in which no evil was imputed to them. At
first a small minority, usually regarded as fanatics, attack the interests
in question. This minority increases, and in the end transforms itself
into a majority. But long after majority opinion has become adverse, there
remains a vigorous minority opinion defending the menaced interests. A
hundred years ago the distilling of spirituous liquors was almost
universally regarded as an entirely legitimate industry. The enemies of
the industry were few and of no political consequence. Today in many
communities the industry is utterly condemned by majority opinion. There
is, however, no community in which a minority honestly defending the
industry is absolutely wanting. Admitting that the majority opinion is
right, it remains none the less true that adherents of the minority
opinion would regard themselves as most grievously wronged if the majority
proceeded to a destruction of their interests.
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