Biblical Principles of Law
by Herbert W. Titus
Ch. 6 – DOMINION AND PROPERTY
Few lawyers who are engaged in the daily practice of their profession take the time or make the effort to explore why the law is the way it is. Most leave such questions to the professors or to others who enjoy the “philosophical aspects” of the law. Yet the answers to the question, “why,” provide the key to a successful practice. This is true about every area of law, but is especially true in estate planning and in the drafting of wills and trusts.
As advocate, an estate planning lawyer can do a very effective job if he drafts the necessary legal documents to effect the property owner’s will under the existing rule of law. As counselor, the lawyer may by simply knowing the legal rules help a property owner avoid unwanted tax liability or avoid probate delays, but he cannot by that same knowledge help he owner to know his duties to his family, to his God, and to his country. Yet many clients seek such counsel from their lawyers.
No lawyer can give good counsel in these areas if he does not know the foundational principles upon which property ownership and family inheritance are based. Yet most lawyers have never been taught those principles. The purpose of this chapter is to uncover the foundation for private property ownership, the existence of which makes an estate planning practice possible, and to state the justification for the system of private property and family inheritance. From this study, a lawyer will learn how to guide his clients’ efforts to plan their estates consistent not only with the laws of men, but the Law of God.
- There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, to the total exclusion of the right of any other individual in the universe.1
With this sentence Sir William Blackstone introduced the reader of his Commentaries to the subject of the law of private property. Not content with teaching only the rules that governed personal and real property ownership in his time, Blackstone sought to uncover the foundations of private property law. He found them in chapter 1 of the book of Genesis;
- In the beginning of the world, we are informed by holy writ, the all-bountiful Creator, gave to man “dominion over all the earth;” and “over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.”2
In short, Blackstone believed that the biblical account of origins was true. Moreover, he believed that Genesis 1:26 and 1:28 gave man “the only true and solid foundation of man’s dominion over external things” and, thereby, he dismissed “whatever airy metaphysical notions may have been stated by fanciful writers upon this subject.”3
While Blackstone did not identify what those “airy metaphysical notions” and who those “fanciful writers” were, his American counterpart, James Kent, did. Author of the Commentaries On American Law and a jurist and law teacher of great stature in his time, Kent spelled out the ideas and the writers that both he and Blackstone found unpersuasive;
- To suppose a state of man prior to the existence of any notions of separate property, when all things were in common, and when men throughout the world lived, without law or government, in innocence and simplicity, is a mere dream of the imagination. It is the golden age of poets which forms such a delightful picture in the fictions, adorned by the muse of Hesiod, Lucretius, Ovid, and Virgil.4
What ideas about man’s origins did Blackstone and Kent reject when they dismissed writers like Hesiod and Lucretius? Hesiod was a Greek poet who lived in the Eighth century before Christ. In his poem, “Works and Days,” he traced the history of mankind from a golden age, in which all men lived happily upon a fruitful earth that spontaneously satisfied all men’s needs, to an age of iron, in which men worked to meet their needs but failed. For Hesiod, exercising dominion over the land through hard work had been necessitated by the evil conditions in which man lived. But there had been a better time when man had known an easier way of life, and in Hesiod’s opinion, this had been lost because the “gods” had failed to create the kind of men that they had at first.5
Lucretius, a Roman poet who lived in the 1st century before Christ, claimed that the earth, not “gods,” had given birth to mankind. In Book V of his great work, On the Nature of Things, Lucretius claimed that all life had evolved over time and that these evolutionary processes of “Mother Nature” accounted for the origin of all things. He believed that only the “fittest survived” and that man had slowly evolved from a nomadic insecure cave-like existence to a more secure and settled life in cities and town. According to Lucretius, then, men invented property ownership and its rules and procedures, in order to survive as a species.6
Blackstone and Kent rejected both views. Kent wrote:
- It has been truly observed, that the first man who was born into the world killed the second; and when did the times of simplicity begin? And yet we find the Roman historians and philosophers rivalling the language of poetry in their descriptions of some imaginary state of nature, which it was impossible to know and idle to conjecture.7
Instead, they relied upon the Bible as offering man the only reliable true account of man’s origins:
- No such state was intended for man in the benevolent dispensation of providence; and in following the migration of nations, apart from the book of Genesis, human curiosity is unable to penetrate beyond the pages of history . . ..8
By relying upon the book of Genesis as the true history of origins, Blackstone and Kent rejected the evolutionary speculations of Lecretius and, therefore, the notion that man invented private property in order to meet the necessities of survival as a species. Instead, Kent concluded that “the sense of property is inherent in the human breast” having been put there by God, Himself:
- Man was fitted and intended by the Author of his being for society and government, and for the acquisition and enjoyment of property. It is to speak correctly, the law of his nature . . ..9
In short, Blackstone and Kent attributed the origin of the common law of private property ownership to God’s law as revealed in the Bible. They rejected all Greek and Roman authorities who held to a view of origins inconsistent with the book of Genesis. Blackstone and Kent could not have built a common law of property ownership upon the Genesis foundation had not the church succeeded in earlier centuries to displace the Greek and Roman world view that had theretofore dominated the entire western world.
Paul, the great apostle of the early church, launched the first attacks upon Roman and Greek thought. In his letter to the church at Rome, Paul wrote specifically about the evolutionary theories of men that apparently were widely held:
- Professing themselves to be wise, they become fools, and changed the glory of the incorruptible God into an image made like to corruptible man, and to birds, and four-footed beasts, and creeping things.10
Paul further stated that men who, like Lucretius, embraced views that man was made in the image of animals did not do so out of ignorance. To the contrary, Paul asserted that they knew better; they had suppressed the truth because of their desire to deny God.11 Indeed, Lucretius was a follower of the Greek philosopher, Epicures, who believed that man should “eat, drink and be merry for tomorrow he may die.” In order to free men to follow the Epicurean call to personal pleasure, Lucretius characterized the entire universe and its creatures, including man, as having occurred by chance through the working of impersonal naturalistic forces. Thereby, he hoped to prove that the world was not directed by God or any other divine agency and that, therefore, man need not fear punishment for any wrongdoing.12
Paul asserted that just the opposite was true. God’s law operated whether man believed it or not. And the consequences of man’s denying God and God’s having created man in His image, were devastating:
- For this cause God gave them up unto vile affections . . . And even as they did not like to retain God in their knowledge, God gave them over to a reprobate mind, to do those things which are not convenient . . ..13
Among the things that Paul listed were “covetousness,” “envy,” and “covenant breakers.”14 In other words, a system of private property ownership cannot survive long after the Genesis world-view has been rejected.
In early America, the security of property ownership was maintained because its leaders and its people adhered to the belief that Genesis accounted for the origin of man and that account justified private property ownership. Thus, one of the classic examples of an unconstitutional law that was repeated again and again was summarized as follows: That no legislature may pass “a law that takes property from A and gives it to B.”15
While that phrase is repeated even today, it has hollow ring to it as legislatures have attempted to redistribute wealth through a variety of subtle schemes, including urban renewal, graduated income taxes, confiscatory inheritance and estate taxes, and corporate and individual social welfare programs like farm price support and aid for dependent children.
An open attack against private property ownership was successfully waged by the Hawaii legislature in its Land Reform Act of 1967.16 Under that Act a group of lessees living on single-family residential lots within tracts of at least five acres in size may force the owner to “sell” the lots to them at a price set by the Hawaii Housing Authority. This Act was justified on the ground that too few people owned too much land in Hawaii and that, consequently, land prices were inflated and the public tranquility and welfare was injured.
A unanimous United State Supreme Court upheld this act of the Hawaii legislature. It summarized its holding in one sentence: “Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power.”17 In effect, the Hawaii legislature and the Supreme Court have said that it is all right to covet another person’s property and to take it so long as you pay him what you want to pay him and so long as there are more of you than there are of him. Indeed, the entire Hawaii land redistribution scheme is a macrocosmic picture of that painted in I Kings chapter 21 of the Bible where King Ahab sought to force Naboth to sell his vineyard because it was “near unto my house,” and where Ahab’s wife, Jezebel, succeeded in acquiring Naboth’s property through the misuse of civil power. Such views of private property ownership and of the power of the civil authorities are possible only in societies where men have “changed the truth of God into a lie, and worshipped and served the creature more than the Creator . . ..”18
Paul’s Christian world view set forth in the book of Romans and Blackstone’s and Kent’s endorsement of Genesis in their chapters on private property law have been abandoned in America because men have lost faith in the historicity of the Biblical account of man’s origins. That common faith was shattered in 1859 upon the publication of Charles Darwin’s The Origin of Species. Gradually, Darwin’s “modern scientific speculations” gave new life to the long-discredited Greek and Roman view of the origin of man. As the historicity of the book of Genesis was lost, the security of property ownership was put in jeopardy. That fact is best proved by a brief examination of the works of Karl Marx and Frederick Engels, the father of modern day communism.
Marx and Engels hypothesized a “pre-history of society” that included “common ownership of land” and “the primitive form of society everywhere from India to Ireland.”19 They claimed that these early societies, characterized by common ownership of all property and by economic classlessness, were, in fact, the ideal “primitive Communistic society” towards which all naturalistic historical forces were directed. Marx called in his Communist Manifesto for a return to that ideal state by urging the destruction of the artificial “bourgeois society” and the “abolition of bourgeois property.” Thus, he summarized the major program of any new Communistic society to be: “The Abolition of private property.”20
Marx’s and Engel’s thesis of the early history of mankind is, in reality, a synthesis of the views of Hesiod and Lucretius. Hesiod hypothesized an early golden age of mankind without economic distinctions and Lucretius hypothesized a world governed by naturalistic forces. Marx and Engels simply posited a world corrupted by a capitalistic economic system that was doomed by nature to fail on an inevitable road back to an ideal state where all property was used by all people in common. But they rested their thesis upon nineteenth century anthropological studies that claimed that primitive man had lived a tranquil life because all property had been held in common.21
Without the wide acceptance of the Darwinian evolutionary thesis, the Genesis record of special creation would have been an insurmountable barrier to wide-spread acceptance of Communist views. At first the Darwinian revolution swept the “propertied class” who defended the status quo by reliance upon the law of the survival of the fittest.22 The heyday of social Darwinism peaked in the 1920’s and 1930’s when the opponents of the “propertied class” claimed that “economic necessity” required the state to take control of property in order to protect the lives of the “less fortunate.”23 Having themselves abandoned the notion that God had given them the right to own and to control their own property, the owners were unable to withstand the relentless attack upon private property being waged at all levels and in all departments of civil government.
If man is free to speculate about his origins and consequently, about the origin of property ownership, then he is free to institute whatever “law” he wishes to govern that ownership or to abolish private property altogether. Only if man returns to the faith of Blackstone and Kent is private property secure.
As Creator of all things, God is the rightful owner of all that He has created. God revealed that truth to Abraham when the latter saved Lot from the kings who had conquered Sodom where Lot then lived: “And Melchizedek . . . priest of the most high God . . . said, Blessed be Abram of the most high God, possessor of heaven and earth.”24 So Abraham gave God a tenth of the spoils that he obtained in recognition that all that he had was a gift form God.25
As Creator, God is the sole rightful owner of all that He has created.26 In the book of Revelation, John wrote of God: “[F]or thou hast created all things, and for thy pleasure they are and were created.”27 Thus, Paul wrote about Christ, the Word by which all things were made by God:28 “[A]ll things were created by him, and for him . . ..”29
As sole proprietor of the heavens and the earth and all things therein, God has sole and unlimited authority to determine how and by whom those created things will be used, possessed, disposed of, and otherwise dealt with. In the beginning, God granted authority to man over His created order with these words:
- Let us make man in our image, after our likeness: and let them have dominion over the fish of the sea and over the fowl of the air, and over the cattle, and over all the earth, and over every creeping thing that creepeth upon the earth.30
This grant of authority was a limited one. First, God gave dominion authority to man and to no other of his creatures. Second, God gave man dominion authority over all of the earth’s creatures, including the birds of the air, but not over his fellow men. Third, God gave man dominion authority over the earth, but not over the heavens, including the earth’s atmosphere. Finally, God gave dominion authority to man in his capacity as husband or wife; In other words, God gave dominion authority to the family unit, not to the church, or to the state, or to any other institution. All of these limitations have significance for the law of property, but the last one is the very foundation for the law of private property.
After God created man, both male and female, He blessed them and said: “Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion . . ..”31 By these words, God made unmistakably clear that dominion authority was to be exercised by the family. Only a husband and wife were able and authorized to have children. By coupling His command to have children with his grant of dominion authority, God specified the institution through which dominion was to be exercised. Thereafter, the Bible records from Adam and Eve onward that the family was to carry out, and in most instances, did carry out the dominion mandate. It was, after all, Adam and Eve as husband and wife who were to till the garden of Eden.32 Even after they were expelled from the garden, their sons, Abel and Cain, exercised dominion, the former was a sheepherder and the latter was a farmer.33 After the flood, Noah became a “husband man, and he planted a vineyard.”34
In the times of Abraham, Isaac, and Jacob, families owned lands, animals, and other properties. Private property held by families was normative. From time to time, disputes arose over the ownership of property and were resolved, in favor of one family or another. Not until the great famine throughout the Middle Eastern world, was there a significant disruption of this pattern of family ownership of property as recorded in Genesis. In those days, Joseph “bought all the land of Egypt for Pharaoh; for the Egyptians sold every man his field, because the famine prevailed over them: so the land became Pharaoh’s.”35 As a consequence of this destruction of family ownership, the people of Egypt became Pharaoh’s slaves.36 Only the Jews in Egypt kept their property and their freedom. After the death of Joseph and of the Pharaoh whom he served, the Jews lost their property and became slaves of Pharaoh.37
Before Moses led the people of Israel out of bondage to the promised land, they had experienced first hand what happens to a people that no longer had family dominion over property. Before they entered the promised land, God spoke through Moses that the land would be divided among the twelve tribes politically and distributed by lot to each family within the tribal political boundary.38 After they entered the land, the tribal political boundaries were established and the land was distributed family by family.39
In order to preserve family property ownership, several laws were given by God through Moses; the jubilee and the right of redemption were two of the most important. Each was designed to preserve a family’s property inheritance.40 The authority of the rulers of Israel was to protect and to preserve the families and their properties, not to displace them and to take over their dominion responsibility.
The dominion mandate that placed families in authority over God’s created order to subdue it and rule over it remained unchanged in the New Testament. Christ, Himself, affirmed the law of private property in his teachings. For example, in the Sermon on the Mount He promised that God would give to all those who “seek first His kingdom and His righteousness” dominion over those things necessary to feed, house, and to clothe oneself and his family.41 Thus, He reminded his disciples who had left family, friends, and possessions that they would “receive an hundred-fold now in this time, houses, and brethren, and sisters, and mothers, and children, and lands . . ..”42
Moreover, Christ used the law of private property to teach God’s kingdom truths through several of his parables. In Matthew 20, Jesus likened the kingdom of heaven to a landowner who paid all of his laborers the same wage even though some had worked longer than others. In justification, Jesus said on behalf of the landowner: “Is it not lawful for me to do what I will with what is mine own? Is thine eye evil, because I am good?”43 That property ownership was a family affair enabled Jesus to teach about the future of the Kingdom of God in the parable of the landowner who planted a vineyard and went on a journey.44 The lessees who desired to have the landowner’s vineyard for themselves were destined for destruction when they took it upon themselves to kill the landowner’s son who was the rightful heir to the property.45
The apostles of the first century church followed Christ’s footsteps. Even when the people were sharing everything in common,46 Peter affirmed the right of each individual believer to keep what property they owned. Thus, he told Ananias who secretly kept part of the sales price of one of his possessions: “[W]hy hath satan filled thine heart to lie to the Holy Ghost, and to keep back part of the price of the land? While it remained, was it not thine own? And after it was sold, was it not in thine own power?”47 Moreover, Paul affirmed that even though the church would take care of the poor and the needy, it would not do so as a substitute for the family whose responsibility for its own could not be shirked:
- Honour widows that are widows indeed. But if any widow have children or nephews, let them learn first to show piety at home, and to requite their parents; for that is good and acceptable before God.48
Indeed, Paul went beyond this simple example of family responsibility by stating a general proposition: “But if any provide not for his own, and specially for those of his own house, he hath denied the faith, and is worse than an infidel.”49 Such commands to provide for family members presupposed a system of private property ownership family by family as authorized by the dominion mandate.
Not surprisingly then, when the institution of private property is attacked, then so is the family. For example, it is recorded in the first chapter of Exodus that before they were enslaved “the children of Israel were fruitful, and increased abundantly, and multiplied, and waxed exceeding mighty; and the land was filled with them.”50 Fearing a takeover of their own country, the Egyptians enslaved the Jews, “[b]ut the more they afflicted them, the more they multiplied and grew . . ..”51 Recognizing that they could not eliminate the threat of a Jewish take-over solely by confiscating their property and enslaving them, the Egyptians set about to destroy the Jewish families by eliminating all of their new born sons. The Egyptians failed only because the Jewish “midwives” feared God and delivered the sons as well as the daughters alive.52
As the Egyptians attempted to destroy the Hebrew families in order to exercise total dominion over their lives, so the Marxists realize that the Christian family must be abolished if they are to succeed in their goal of abolishing private property. Karl Marx believed that the family would inevitably vanish as private property ownership was eliminated:
- Abolition of the family! Even the most radical flare up at this infamous proposal of the Communists. On what foundation is the present family, the bourgeois family, based? On capital, on private gain . . . The bourgeois family will vanish as a matter of course when its complement vanishes, and both will vanish with the vanishing of capital.53
Marx’s Communist comrade, Frederick Engels, explained why monogamous marriage would disappear with the abolition of private property:
- With the transfer of the means of production into common ownership, the single family ceases to be the economic unit of society. Private housekeeping is transformed into a social industry.54
Engels, then, contended that with the abolition of the Christian family a woman would be free to give herself completely to the man that she loved without having to consider the economic consequences. In fact, Engels argued that the elimination of private property would “bring about the gradual growth of unconstrained sexual intercourse” for all.55
The foundational assumption of the Marx/Engels thesis that with the abolition of private property would come the abolition of the family was simple:
- It [the monogamous family] was the first form of the family to be based, not on natural, but on economic conditions – on the victory of private property over primitive, natural communal property.56
So, the basis for the Communist program to eliminate the Christian family was the same as that upon which they rested their case against private property: A rejection of the historicity of the book of Genesis in favor of a view that originally man held all things in common.
While the Marxist view has not completely triumphed even in those nations that have become Communist, it would be a mistake to ignore the influence that Marxist thought has had even in countries that are not Communist. For example, the so-called women’s liberation movement in America has hardly helped the woman who desires to be a full-time housewife and mother. Careful examination of the feminist cries for equal rights, comparable pay for comparable work, tax-supported day care centers, and the like all favor women who desire to establish an economic life independent of their families. The blueprint of these efforts in the 1970’s and 1980’s was written by Lenin in 1920:
- The working woman’s movement has for its objective the fight for the economic and social, and not merely formal, equality of women. The main task is to draw the women into socially productive labour, extricate them from ‘domestic slavery,’ free them from their stultifying and humiliating resignation to the perpetual and exclusive atmosphere of the kitchen and nursery. It is a long struggle . . . But the struggle will end with the complete triumph of Communism.57
Indeed, Lenin’s blueprint for the emancipation of women included “the abolition of the private ownership of land and the factories.” For, in his opinion, “This and this alone opens up the way towards a complete and actual emancipation of woman, her liberation from ‘household slavery’ through the transition of petty individual housekeeping to a large-scale socialized domestic services (sic).”58
Any attack upon the Christian family necessarily threatens the institution of private property because God coupled the two at the very beginning of creation. And any effort to destroy either the family or private property is doomed to fail because as the writer of Ecclesiastes has aptly stated: “Consider the work of God, For who is able to straighten what he has bent?”59 Even the most zealous Communist nations have had to accommodate the Christian family and private property, for the forced socialization of property and mankind is an unattainable figment of man’s imagination.
Ownership of property by entities other than families may be justified as a means for families to carry out their dominion authority, but never as a substitute. Corporate and partnership ownership are such means because ultimately the ownership resides in the families represented by the corporate shareholders and by the partners. But state ownership for the purpose of carrying out the dominion mandate can never be justified as such a means because the taxpayers do not have ownership rights in the civil government’s property. Civil governments may own property but only for the limited purpose of carrying out its legislative, executive, and judicial duties. Therefore, the power of eminent domain, that is, the taking of property for “public purposes,” may be exercised only for that limited proprietary purpose. Urban renewal projects and land redistribution programs are for dominion purposes and, therefore, within the family’s authority alone.
While God granted man authority to exercise dominion in Genesis chapter 1, it would be a serious mistake to assume that the grant of authority conveyed any title to any man or to mankind in general. Yet that mistake was made by two great spokesmen for the institution and the preservation of private property. Sir William Blackstone simply assumed that the dominion mandate constituted an “immediate gift of the Creator” of the “earth . . . and all things therein” which thereby became “the general property of all mankind.”60 John Locke, relying solely upon King David’s statement in Psalm 115:16, also assumed that God had given the earth and its contents “to mankind in common.”61
Having made this assumption, Blackstone and Locke were forced to find justification for private and exclusive ownership. Blackstone decided that private ownership came into being out of “necessity”: As men multiplied, they could no longer share all things in common, so men began to appropriate particular lands, animals, and goods to themselves on a permanent basis. Therefore, Blackstone concluded that “bodily labour . . . is universally allowed to give the fairest and most reasonable title to an exclusive property therein.” Of course, as Blackstone himself admitted, sometimes the only labor necessary to acquire such title was to take possession before anyone else.62
Before Blackstone, John Locke had developed the classic defense of the labor theory of private property. He believed that, even while all property was held in common by all men, of necessity some of that property became exclusively owned by individual men; otherwise, how could a man eat or sleep. In order, however, to give greater permanency to private property ownership, Locke reasoned as follows:
- Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person: this nobody has a right to but himself. The labor of his body and the work of his hands, we may say, are properly his.63
From this simple truth, Locke then stated his thesis:
- Whatsoever then he [a man] removes out of the state that nature has provided . . . he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.64
He backed up his thesis with a repetition of his initial assumption:
- God gave the world to men in common; but since he gave it them for their benefit and the greatest convenience of life they were capable to draw from it, it cannot be supposed that he meant it should always remain in common . . . He gave it to the use of the industrial and rational – and labor was to be his title to it . . ..65
Karl Marx’s attack against the institution of private property was, in reality, an attack on Blackstone’s and Locke’s labor justification for private property ownership. Marx observed that the extent of private property ownership was not directly proportioned to the labor of the individual who owned the property. Indeed, he claimed that the working class were being deprived of their fair share of private property by a ruling class that had used its political and economic power to exploit those who had not been “born into the right family.” So Marx concluded that if the labor theory of property ownership was to work as Blackstone and Locke described it, property must be owned by the State and distributed equally to all productive members of society.66
But Locke and Blackstone were wrong in their description of the origin of private property ownership and, therefore, were wrong to justify private property ownership on the basis of the owner’s labor. If Locke and Blackstone were wrong, then so was Marx. In fact, the Bible teaches from the beginning that men have title to property as a gift from God, not as a result of their labor and that men hold that title and increase their holdings in proportion to their obedience to God or to the unmerited grace of God.
No man received any title to any land, living creature, or created thing as a consequence of God’s statement of the dominion mandate. The grant of dominion to man was a statement of authority, not a conveyance of title. God did not convey title to anyone until he did so by putting Adam into the Garden of Eden. And he gave Adam the garden before, not after, Adam did any work in it.67 Adam and Eve lost title to the garden as a direct consequence of their disobedience to the Lord; and their act of disobedience had nothing to do with their labor; rather it was eating a fruit that God, Himself, had produced and had told them not to eat.68
This brief account of God’s relationship with Adam and Eve proves that God never gave title of all the earth and its contents to all mankind in common. Rather, he gave to two, Adam and Eve, title to a specific piece of real estate in a specific geographic location. Moreover, this account reveals that even Adam and Eve did not earn title to the garden, it was given to them by God.
While the Bible does not specifically deal with all of God’s property transactions with all men thereafter, it does give several examples from which one may infer that God has never changed from that first property conveyance. For example, Abraham became a rich man, but it was certainly not because he deserved it. In obedience, Abraham responded to God’s call to move from Haran to Canaan. Upon Abraham’s arrival in Canaan, God promised to give the land to Abraham’s seed. In the meantime, a famine struck the land so that Abraham went to Egypt where his wife was taken into Pharaoh’s court. In payment the Pharaoh gave to Abraham “sheep, and oxen, and he asses, and menservants, and maid servants, and she asses, and camels.” But Abraham had lied to Pharaoh; he had told him that Sarah, his wife, was his sister. Notwithstanding, God was merciful; He sent a plague upon the Pharaoh. Pharaoh returned Sarah to Abraham and sent Abraham away “and all that he had.”69 “And Abram [Abraham] was very rich in cattle, in silver and in gold.”70
Later, Abraham lied again about Sarah to Abimelech, another rich king. Even when Abimelech discovered Abraham’s deceit, he returned Sarah to her husband along with “sheep, and oxen, and manservants, and womanservants” and along with “a thousand pieces of silver.”71 Truly, Abraham prospered not because of his own personal labor or even because of his righteousness, but because of God’s unmerited grace and mercy.
Abraham’s son, Isaac, likewise prospered. In fact, he pulled the same trick on Abimelech as had his father by telling Abimelech that his wife, Rebekah, was his sister.72 Even though Abimelech discovered Isaac’s deceitful act, he allowed Isaac to remain in his land:
- Then Isaac sowed in that land, and received in the same year an hundredfold: And the Lord blessed him. And the man waxed great . . . and grew until he became very great: For he had possession of flocks, and possession of herds, and great store of servants . . ..73
As God blessed Isaac, he blessed Isaac’s son, Jacob. While Jacob worked diligently for his father-in-law, Laban, he did not become rich until God supernaturally intervened and increased Jacob’s flocks and cattle out of proportion to the labor that he exerted.74 From that time on, God watched over Jacob and his twelve sons. While their fortunes waxed and waned, God prospered them even while slaves in Egypt. And when it came time for the Israelites to leave Egypt for the promised land, God moved upon the Egyptians to do a remarkable thing:
- And the children of Israel did according to the word of Moses; and they . . . [requested] of the Egyptians jewels of silver, and jewels of gold, and raiment: And the Lord gave the people favor in the sight of the Egyptians, so that they . . . [let them have their request]. And they spoiled the Egyptians.75
Forty years later after God had met their every need in the wilderness,76 the people of Israel entered the promised land where God distributed to each family, except for Joshua and Caleb, their real estate by lot.77 This method of distribution and conveyance was chosen by God to forever remind the people that the land they owned was a gift from God:
- The lot is cast into the lap; but the whole disposing thereof is of the Lord.78
God’s property transactions with his chosen people, Israel, reflect a normative principle that governs all men: No man earns any title to any property, real or personal, it is a gift of God. That is the testimony of the Old Testament book of Job. Job, a rich man by the standard of any nation and of any time,79 lost all that he had. Through it all, Job was sustained by his knowledge that all he had was a gift from God:
- Naked came I out of my mother’s womb, and naked shall I return thither: The Lord gave, and the Lord hath taken away; blessed be the name of the Lord.80
Job was restored to even greater material prosperity after his trial of faith not because Job earned it by his labor, but because God “gave Job twice as much as he had before.”81 God’s blessing came because of His mercy and His goodness, not because Job deserved it. In the end, it was for Job as it had been in the beginning. God had placed a hedge of protection about Job and his household and had blessed “the work of his hands, and his substance is increased in the land.”82
The New Testament confirms the Old: private property ownership is a gift of God. In the Sermon on the Mount, Christ reminded his listeners that God blesses all men with whatever material prosperity that He, God, chooses for each to have. Because God care for each human being even more than all of His other creatures, Christ assured mankind that, as God takes care of the birds and the flowers, He will take care of man. Therefore, Christ promised to those who seek first God’s kingdom and God’s righteousness that all their material needs – food, clothing, and housing – would be met.83 Thus, He urged men not to serve “mammon” but to serve God.84
Still, Christ acknowledged that material prosperity may come even to those who serve “mammon.” Again, such prosperity is a gift of God because in His mercy and lovingkindness God “maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.”85 God’s mercy triumphs over judgment, as James put it in James 2:13; therefore, God extends his material blessings even to those who do not know or fear Him.86
But the material prosperity of the wicked will be short-lived. God preserves his blessings only for those who fear Him and obey Him.87 Jesus reminded his followers of this truth through a simple parable. Warning a man who sought Jesus’ help to obtain his rightful family inheritance, Jesus taught that a man’s wealth was not measured by the abundance of his material possessions for
- The ground of a rich man brought forth plentifully: and he thought . . . What shall I do . . . And he said . . . I will . . . build greater [barns]; and there will I bestow all . . . my goods. And I will say . . . take thine ease, eat, drink and be merry.88
Then Jesus said that God required “the soul” of that man that very night so that he never enjoyed the wealth that he had accumulated: “So is he that layeth up treasure for himself and is not rich toward God.”89
Richness toward God may or may not come in the form of material wealth. But as in the case of Abraham, Isaac, and Jacob, it may. In all cases, however, God has promised to meet every material need – food, clothing, housing – of those who fear Him.90
At the heart of God’s plan for man, however, is the dominion mandate. Therefore, those who act to subdue and to rule over God’s earth and its creatures will by God’s law prosper materially. Those who do not will not.91 Prosperity in the former case comes because of obedience; poverty in the latter case comes because of disobedience. Again, no man earns anything by his labor, only by his obedience.
That is the teaching of the Old Testament. In Deuteronomy 29, Moses reminded the people of Israel that, if they kept “the words of the covenant” and did them, they would “prosper” in all that they did.92 Earlier in chapter 28, Moses gave God’s promise that He would bless them for their obedience with an overwhelming material prosperity. But that prosperity would elude Israel if they disobeyed, even if they worked hard:
- Thou shalt carry much seed out into the field, and shalt gather but little in; for the locust shall consume it.93
This was proved true not only at the time when Israel was taken captive by the Babylonians but seventy years later when they returned to the promised land:
- Now therefore thus saith the Lord of hosts; Consider your ways. Ye have sown much, and bring in little . . . and he that earneth wages earneth wages to put it into a bag with holes . . . Ye looked for much and lo, it came to little . . ..94
Through the prophet Haggai, God gave the reason why: The people of Israel had failed to rebuild God’s temple as He had commanded:
- Therefore the heaven over you is stayed from dew, and the earth is stayed from her fruit. And I called for a drought upon the land . . . and upon men . . . and upon all the labour of the hands.95
Material prosperity through obedience and by God’s mercy is, also, the teaching in the New Testament. Christ taught this lesson vividly through the parables of the talent and of the unjust steward. In the parable of the talents, each of three people is given a certain amounts of money; one is given five talents, another two, and a third one. The first gained five more talents; the second gained two additional; and the last none. The first two received a reward not for their labor but for their faithfulness: “Well done thou good and faithful servant . . ..”96 The third one lost even what his master had given him because he had no faith to invest it in anything.97
In the parable of the unjust steward, Christ’s message is once again that the one who is faithful will be rewarded by God. This time the lesson is directly related to material prosperity:
- He that is faithful in that which is least is faithful also in much: And he that is unjust in the least is unjust also in much. If therefore ye have not been faithful in the unrighteous mammon, who will commit to your trust the true riches?98
So it is God’s mercy and man’s faithfulness and obedience that accounts for a man’s possessions, not a man’s labor. Because god has created all men equal before Him, then all are equally eligible for God’s material blessings. That was the faith of America’s forefathers when they wrote these words of the Declaration of Independence: “That all men are created equal, that they are endowed by their Creator with certain unalienable rights; that among these . . . [is] the pursuit of happiness; that to secure these rights governments are instituted among men . . ..”
One of the means by which the “pursuit of happiness” was secured was the common law of property that defined and defended men’s interests in personal and real property. One of the great principles of the common law was that of possession. Ownership of property often was proved by evidence of possession, with proof of first possession tantamount to proof of ownership. A man was not required to prove that he had labored for the claimed property or that he had worked to enhance its value. It was enough that he had been the first one to reduce it to his possession. One of the classic cases at common law used by law teacher to teach the importance of possession is Pierson v. Post. In this 1805 New York case, a dispute was resolved between two men who claimed to win the same wild fox. One man claimed ownership because he had flushed out the fox and was in “hot pursuit” of it; the other claimed ownership because, while the other was in “hot pursuit,” he shot, killed and carried the fox away. The Court ruled for the latter because he alone had possession of the fox.99 No one argued and no one discussed whose “labor” had been expended in obtaining the fox!
Not only did the concept of possession in the common law of property reflect the assumption that ownership did not depend on the claimant’s labor, so did the description of the deed to real estate.
In America, a deed to a home has long identified the land upon which it sits as a specifically number “lot” in a particular subdivision or other part of the city of county. Significantly, this use of the term “lot” directly reflected the biblical influence on the common law of property. In his 1828 dictionary, Noah Webster included several definition for the word “lot,” all of which reflect its divine meaning:
1. That which, in human speech, is called chance, hazard, fortune; but in strictness of language is the determination of Providence; as, the land shall be divided by lot. Num. xxvi.
2. That by which the fate or portion of one is determined; that by which an event is committed to chance, that is, to the determination of Providence; as, to case lots, to draw lots. The lot is cast into the lap, but the whole disposing thereof is of the Lord. Prov. xvi.
6. In the U. States, a piece or division of land; perhaps originally assigned by drawing lots, but now any portion, piece or division. So we say a man has a lot of land in Broadway, or in the meadow . . ..100
Given that Blackstone, Kent, and other great expositors of the common law of property attributed its very origins to the Bible, it is not surprising that its principles, its practices, and its language were directly, or indirectly, derived from the Bible.
God’s grant of authority to man to exercise dominion wa a grant of stewardship responsibility. Man was to bring God’s earth and His creatures into order and into productivity in order that God’s creative purpose be realized. Therefore, God placed Adam in the Garden of Eden “to dress it and to keep it.”101 Only because man sinned has he in his frustration perverted God’s original instructions. Through the ages, man often has not “dressed” the land, he has “stripped” it; and he has not “kept” the land, had has “destroyed” it. Indeed, man has been “at war” with God’s creation because the land has been cursed by Adam’s sin:
- [C]ursed is the ground for My sake . . . Thorns . . . and thistles shall it bring forth to thee . . ..102
This curse will not be lifted until Jesus Christ comes again for as Paul has written in his letter to the church at Rome: “[T]he whole creation groaneth and travaileth in pain together until now,” but it “shall be delivered from the bondage of corruption into the glorious liberty of the children of God.”103
In the meantime, man is required by God to carry out his stewardship responsibilities under the dominion mandate.
First, because man has been made in the image of God and because God as Creator is the owner of the heavens and the earth, man has the capacity to create and thereby become an owner of that portion of God’s creation to which he has applied his creative ability. Udo Middleman has put it this way:
- Property rights . . . exist in Scripture . . . [W]hat is really protected is man’s creative mental activity – his ideas which are externalized into things which he owns and has a right to possess and to enjoy.104
Second, because God has given all men all that they have, they, in turn, ought to be ready to give back to God and to others. Such a duty cannot, however, be enforced by civil law without destroying the very community of love and sharing that God has intended. Again, Udo Middleman has captured the very essence of the injustice perpetuated by “enactment and execution of social legislation” that has pulled society “into an uncreative redistribution of wealth:”
- Men who have made real contributions have had their creativity destroyed because their right over what they have created have been violated. The work of their hands has been taken from them. On the other hand, those who have received the property of others have had their own creativity destroyed because they no longer are required to search for ways to support themselves.105
This latter point was emphasized twice by Paul in his letters to the Thessalonians where he urged all Christians to work and not to expect a free ride if they did not.106 As Middleman has observed:
- If it because our general outlook that even if a man does not work he will nevertheless live on the basis of the wealth of those who do work, then man as a creative agent dies. Paul says, if a person does not work, he should not eat. If he does not work, he has no property. Let him live without property, let him live without bread. When bread comes by free distribution, then man really dies.107
Third, those who do work and are blessed by God with material prosperity should be content with what they have,108 should not make the accumulation of wealth their goal,109 but should give of what God has given to them:
- Charge them that are rich in this world, that they be not highminded; nor trust in uncertain riches, but in the living God, who giveth us richly all things to enjoy; That they do good, that they be rich in good works, ready to distribute . . ..110
In order for this to occur, those who have must have the liberty to choose to do as God commands. Otherwise, the very essence of his duty to the poor will be violated by transforming what can only be voluntary giving into an involuntary taking.
But man’s first responsibility before God is not the taking care of the poor; rather, it is the taking care of the members of his family. At common law, this duty was recognized by laws that required a husband to support his wife and a father to meet the needs of his children.111 The earliest common law guaranteed support for the wife until her death and an inheritance for the children. Later, a child’s inheritance could be modified or taken away if the decedent chose to do so by a duly executed will.112
If the decedent could disinherit his children, could the civil government do so? Sir William Blackstone though it could. He believed that a child inherited from his father only because he was most likely to be present at his father’s death, and therefore, to take possession of his father’s property immediately after his death. The common law that guaranteed the child’s inheritance, in Blackstone’s view, was simply an expedient rule to resolve disputes over a dead man’s property.113
But America’s James Kent disagreed. He believed that the owner alone had “[t]he right to transmit property by descent, to one’s own offspring” and that that right was “dictated by the voice of the law of nature . . ..”114 Some, like Virginia’s great legal scholar St. George Tucker, agreed with Kent:
- The affection of parents towards their children is the most powerful and universal principle which nature has planted in the human breast; and it cannot be conceived, even in the most savage state, that anyone is so destitute of that affection and of reason, who would not revolt at the position, that a stranger has as good a right as his children to the property of the deceased parent.115
Other, like United States Supreme Court Justice Joseph Story, agreed with Blackstone:
- Whatever right a man may have to property, it does not follow that he has the right . . . [to] transmit it, at his decease, to his children, or heirs.116
Early in the history of the American common law, Blackstone’s and Story’s views were adopted by the courts. For example, the Virginia Supreme Court announced that
- [T]he right to take property by devise or descent is the creature of the [civil] law and secured and protected by its authority. The legislature . . . may tomorrow, if it pleases, absolutely repeal the statute of wills and that of descents and distributions and declare that upon the death of a party, his property shall be applied to payment of his debts and the residue appropriated to public uses.117
No American state legislature had done what the Virginia court suggested that it could. In fact, all sates have provided by statue protection for a surviving spouse and for surviving children if the property is not disposed of by a will. Indeed, even heirs outside the members of the immediate family take precedence over the state.118 As for property disposed of by a will, most states protect the inheritance right of a child unless it is crystal clear that the deceased parent deliberately intended to disinherit him.119
Notwithstanding these statutory protections of family inheritance, the states have assumed that they may impose inheritance and estate taxes as a means by which property may be redistributed for the good of the whole. The assumption upon which such taxes are imposed is that the state could take the entire estate for public purposes if it so desired. But such an assumption is contrary to the law of dominion. God gave the family authority to own property for dominion purposes. The State has duly constituted to secure that dominion authority not to usurp it. Therefore, only the owner has authority to dispose of his property at death. And he has a duty to see that his family is provided for. Both the Old and the New Testament establish this fact. The writer of the book of Proverbs affirmed that “[h]ouses and riches are the inheritance of fathers”120 not the civil rulers. And Paul, although speaking of spiritual matters, confirmed this principle when he wrote to the church at Corinth: “[F]or the children ought not to lay up for the parents, but the parents for the children.”121
It would be a mistake, however, to assume that a child was entitled to an inheritance no matter what. To the contrary, a rebellious child, or a lawless child could and should be disinherited by his father. Only those children who has given evidence that they will exercise dominion in a responsible manner should be blessed by a father’s inheritance. “He that troubleth his own house shall inherit the wind”122 wrote the wise author of the book of Proverbs. But the decision to disinherit belongs to the owner of the property not to the State.
Likewise, the owner has the sole authority to include in his will provision for charity and for the church. Because God has graced him with the blessings of material things he ought to give to the needy not only his lifetime but upon his death.123 He should also tithe his estate for the benefit of the works of God.124 Both of these are to be done voluntarily as they are duties enforceable solely by God.
Payment of debts and of taxes, however, may be enforced by the civil ruler. As for taxes, the civil government is entitled to a portion in return for any service rendered in the administration of the estate, including its protection while awaiting disposition. In addition, the civil government may receive taxes that are owed for the protection that it afforded the owner from such threats as theft.125 Under no circumstances, however, should a tax be levied for any other purpose. Such a tax would be confiscatory in nature and, therefore, theft. The prophet Ezekiel warned those who would rule Israel in the latter days to be careful not to levy taxes that compromised a family’s inheritance:
- [T]he prince shall not take of the people’s inheritance by oppression, to thrust them out of their possession; but he shall given his sons inheritance out of his own possession: that my people be not scattered every man from his possession.126
The laws of God presuppose private property rights. Two of the Ten Commandments specifically protect them: “Thou shalt not steal” and “Thou shalt not covet . . ..”127 “Moreover,” as Udo Middleman has so aptly observed, “true communion and true community are based upon property rights. For unless a person owns something he can share, there can be no community.”128
Private property, and its necessary partner – the free enterprise system – are, therefore, required by God’s law. Efforts to centralize dominion of property in the State violate God’s grant of dominion authority to the family and God’s grant of limited protective authority to the State. Nevertheless, no private property or free enterprise system will long endure unless those who prosper materially under that system acknowledge in both word and deed that all that they have is a gift of God. Selfish pride and greed will not only destroy those who live by them, but they will, if widespread, destroy the nation in which they live:
- Hear this, O ye that swallow up the needy, even to make the poor of the land to fail, saying, When will the new moon be gone, that we may sell coin? and the sabbath, that we may set forth wheat, making the ephah small, and the shekel great, and falsifying the balances by deceit? . . . The Lord has sworn by the . . . [pride] of Jacob . . . Shall not the land tremble for this, and everyone mourn that dwelleth therein? and it shall rise up wholly as a flood; and it shall be cast out and drowned . . ..129
* Copyright © 1987, 2006 Herbert W. Titus. Used by permission.
1. W. Blackstone, Commentaries on the Laws of England (1776), Vol 2, 2.
2. Genesis 1:28.
3. W. Blackstone, supra note 1, at 3.
4. J. Kent, Commentaries on American Law (1827), Vol 2, 255.
5. Hesiod, Works and Days (c. 65 B.C.), 90-180.
6. Lucretius, On the Nature of Things, (c. 65 B.C.) pt. 5.
7. J. Kent, supra note 4, at 255-266.
10. Romans 1:22-23.
11. Romans 1:18-21,25.
12. Funk and Wagnalls New Encyclopedia (R. Phillips ed., 1979), Vol. 15, 325.
13. Romans 1:26-28.
14. Romans 1:29-31.
15. See, e.g., Calder v. Bull, 3 U.S. (3 Dallas) 386 (1798).
16. The fact summary is taken from the United States Supreme Court opinion in Hawaii Housing Authority v. Midkiff, 81 L.Ed. 2d 186 (1984).
17. Id., at 199.
18. Romans 1:25.
19. F. Engels, “The Communist Manifesto” in Man and the State: The Political Philosophers (S. Commins & R. Linscott 1947), 487-488, n. 1.
20. K. Marx, The Communist Manifesto (1847), pt. 2.
21. See, H.L. Morgan, Ancient Society (1877).
22. R. Hofstadter, Social Darwinism in American Thought (rev. ed. 1959), 5-7.
23. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937).
24. Genesis 14:18-19.
25. Genesis 14:20.
26. Psalms 24:1, 50:9-12.
27. Revelation 4:11.
28. John 1:3.
29. Colossians 1:16.
30. Genesis 1:26.
31. Genesis 1:28.
32. Genesis 2:15,18.
33. Genesis 4:2.
34. Genesis 9:20.
35. Genesis 47:20.
36. Genesis 47:20-23.
37. Exodus 1:11.
38. Numbers 26:52-56.
39. See, e.g., Joshua 16:1-8.
40. See, Leviticus 25:10,23-27.
41. Matthew 6:25-33.
42. Mark 10:30.
43. Matthew 20:15.
44. Matthew 21:33-40.
45. Matthew 21:41.
46. Acts 2:44-45.
47. Acts 5:3-4.
48. 1 Timothy 5:3-4.
49. 1 Timothy 5:8.
50. Exodus 1:7.
51. Exodus 1:12.
52. Exodus 1:16,17.
53. K. Marx, supra note 20.
54. F. Engels, Origin of the Family, Private Property, and the State (1884), 67.
56. Id., at 57.
57. Lenin, Women and Communism (1950), 63.
58. Lenin, The Emancipation of Women (1966), 84.
59. Ecclesiastes 7:13.
60. W. Blackstone, supra note 1, at 3.
61. J. Locke, Second Treatise of Government (1764), 18.
62. W. Blackstone, supra note 1, at 5.
63. Locke, supra note 61, at 19.
66. See, Marx, supra note 20.
67. Genesis 2:15.
68. Genesis 3:22-23.
69. Genesis 12:16,20.
70. Genesis 13:2.
71. Genesis 20:2,14,16.
72. Genesis 26:6-8.
73. Genesis 26:12-14.
74. Genesis 30:25-43.
75. Exodus 12:35-36.
76. Deuteromony 8:3-4.
77. Joshua 14:1-2.
78. Proverbs 16:33.
79. Job 1:1-3.
80. Job 1:21.
81. Job 42:10.
82. Job 1:10.
83. Matthew 6:25-33.
84. Matthew 6:24.
85. Matthew 5:45.
86. See, Psalms 36.
87. Psalms 37.
88. Luke 12:16-19.
89. Luke 12:21.
90. Psalms 37:22-26.
91. Proverbs 6:6-11.
92. Deuteronomy 29:9.
93. Deuteronomy 28:38.
94. Haggai 1:5-6,9.
95. Haggai 1:10-11.
96. Matthew 25:21,23.
97. Matthew 25:24-29.
98. Luke 16:10-11.
99. 3 Caines 175 (1805).
100. N. Webster, American Dictionary of the English Language (1828).
101. Genesis 2:15.
102. Genesis 3:17-18.
103. Romans 8:22,21.
104. U. Middleman, Proexistence (1974), 41.
105. Id., at 42-43.
106. 1 Thessalonians 4:9-12, 2 Thessalonians 3:10-12.
107. U. Middleman, supra note 104, at 46.
108. 1 Timothy 6:6-8.
109. I Timothy 6:9-10.
110. 1 Timothy 6:17-18.
111. H. Clark, Law of Domestic Relation (1968), 181-82, 189.
112. W. Blackstone, supra note 1, at 12.
113. W. Blackstone, supra note 1, at 10.
114. See, e.g., J. Kent, supra note 4, at 263.
115. W. Blackstone, supra note 1, (Tucker ed., 1803), Vol. 3, at 10 (fn.).
116. J. McClellan, Joseph Story and the American Constitution (1971), 320.
117. R. Chester, Inheritance, Wealth and Society (1982), 37.
118. See,R. Mennel, Wills and Trusts in a Nutshell (1979), 6-7.
119. See, Id., at 26-27.
120. Proverbs 19:14.
121. 2 Corinthians 12:14(b); Cf. Proverbs 13:22(a).
122. Proverbs 11:29.
123. Cf. Leviticus 19:9-10.
124. Cf. Malachi 3:8-10.
125. Romans 13:4,6-7(a).
126. Ezekiel 46:18.
127. Exodus 20:15,17.
128. U. Middleman, supra note 104, at 42.
129. Amos 8:4-5,7-8.