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.
Where moral issues alone are involved, we may perhaps accept the view that
the well considered opinion of the majority is as near as may be to
infallibility. But it is very rarely the case that the question of the
legitimacy of a property interest can be reduced to a purely moral issue.
Usually there are also at stake, technical and broad economic issues in
which majority judgment is notoriously fallible. Thus we have at times had
large minorities who believed that the bank as an institution is wholly
evil, and ought to be abolished. This was the majority opinion in one
period of the history of Texas, and in accordance with it, established
banking interests were destroyed by law. It is only within the last
fifteen years that the majority of the citizens of that commonwealth have
admitted the error of the earlier view.
In the course of the last twenty-five years, notable progress has been
made in the art of preserving perishable foods through refrigeration.
There are differences of opinion as to the effect upon the public health
of food so preserved; and further differences as to the effect of the cold
storage system upon the cost of living. On neither the physiological nor
the economic questions involved is majority opinion worthy of special
consideration. None the less, legislative measures directed against the
storage interests have been seriously considered in a large number of
states, and were it not for the difficulties inherent in the regulation of
interstate commerce, we should doubtless see the practice of cold storage
prohibited in some jurisdictions. Those whose property would thus be
destroyed would accept their losses with much bitterness, in view of the
fact that the weight of expert opinion holds their industry to be in the
public interest.
What still further exacerbates the feeling of injury on the part of those
whose interests are proscribed, is the fact that the purity of motives of
the persons most active in the campaign of proscription is not always
clear. Not many years ago we had a thriving manufacture of artificial
butter. The persons engaged in the industry claimed that their product was
as wholesome as that produced according to the time-honored process, and
that its cheapness promised an important advance in the adequate
provisioning of the people. We destroyed the industry, very largely
because of our strong bent toward conservatism in all matters pertaining
to the table. But among the influences that were most active in taxing
artificial butter out of existence, was the competing dairymen's interest.
It is asserted by those who would shift the whole burden of taxation onto
land that they are animated by the most unselfish motives, whereas their
opponents are defending their selfish interests alone. Yet a common Single
Tax appeal to the large manufacturer and the small house-owner takes the
form of a computation demonstrating that those classes would gain more
through the reduction in the burden on improvements than they would lose
through increase in burden on the land. Let it be granted that personal
advantage is not incompatible with purity of motives. The association of
ideas does not, however, inspire confidence, especially in the breasts of
those whose interests are threatened.
Extinction of property interests without compensation necessarily makes
our legislative bodies the battleground of conflicting interests. Honest
motives are combined with crooked ones in the attack upon an interest;
crooked and honest motives combine in its defense. Out of the disorder
issues a legislative determination that may be in the public interest or
may be prejudicial to it. And most likely the law is inadequately
supported by machinery of enforcement: it is effective in controlling the
scrupulous; to the unscrupulous it is mere paper. In many instances its
net effect is only to increase the risks connected with the conduct of a
business.
When England prohibited importation of manufactures from France, the
import trade continued none the less, under the form of smuggling. The
risk of seizure was merely added to the risk of fire and flood. Just as
one could insure against the latter risks, so the practice arose of
insuring against seizure. At one time, at any rate, in the French ports
were to be found brokers who would insure the evasion of a cargo of goods
for a premium of fifteen per cent. At the safe distance of a century and a
half, the absurd prohibition and its incompetent administration are
equally comic. At the time, however, there was nothing comic in the
contempt for law and order thus engendered, in the feeling of outrage on
the part of those ruined by seizures, and in the alliance of respectable
merchants with the thieves and footpads enlisted for the smuggling trade.