Spencer Heath Archive

Item 2374

Exchange of letters between Heath at 11 Waverly Place, New York City 3, June 20, 1954, and Roscoe Pound, Dean Emeritus, Harvard Law School, 6 Beacon Street, Boston 8, MA, June 28, 1954. Heath sent similar letters, different but largely based on this one, to Arthur T. Vanderbilt (July 27, 1955, Item 2425) and to Wilber G. Katz (December 3, 1956, Item 2482).

 

 

 

Dear Sir:

 

For many years I have admired and enjoyed your various writings (much wider in scope than those of other jurists) and your philosophic views with respect to the judicial process and public administration. Your reviews of past thinkers in these lines, their contrasting modes of thought, bespeak an enormous background of scholarship and keen discrimination.

 

 Lately reviewing quite a number of your writings I have been much impressed by your review of legal theory from Aristotle and Socrates on down as involving two contrasting views of authentic law: one, that a people should be ruled by a body of abstract precepts more or less idealized to which all legal enactments and decisions should conform. The other, that the authentic law consists in whatever political power decrees or enacts as such.

 

 I think you show a commendable bias in favor of the former, but I can not help wondering if you have ever entertained a third alternative differing from and transcending both of these. It is to be observed that both of these historical theories rest on a single pre­sumption — namely, that, entirely apart from those persons who are given to violent or otherwise anti-social behavior, it is the normal function of the public authority to prevent certain kinds of behavior which it is normal for civilized men to engage in and to coerce the law-abiding population generally into conformities to which they will not otherwise submit.

 

 It would seem that if there is a higher alternative than coercion; if there is a means of conducting the public and community affairs without resort to coercion, violence, and ultimately war, such alternative should be carefully looked into.

 

 A key to this seems to be given in your distinction between the dominium and the imperium; between property right and the political prerogative; the right of ownership resting on title and consent and exercised by contract, and the right of expropriation springing from discovery, conquest, or surrender, and exercised by force. With your profound scholarship you are of course aware that the imperium historically has in most cases been preceded by a proprietary administration of community services and needs on the continent of Europe and especially in England for some five centuries before the Conquest. This proprietary administration has in most cases been broken down by rivalries between proprietors of communities necessitating taxation to maintain their petty wars. Corruption of this proprietary authority seems to have been delayed in England by reason of re­moteness from continental practices derived from the   spirit of Rome and the proprietary system not completely broken down until the Conquest in 1066.

 

 To me it is significant that much of the English common law was socially evolved between the fifth century and the tenth, during which time proprietary communities were the rule and civilization advanced to the Alfredian Renaissance shortly before the Conquest. The typical community, however crudely administered, was owned by a land lord and occupied by free men — men who were free because they were related to the public authority by con­tract instead of by compulsion, the rent they paid being at least approximately the equivalent of the protection and other community services they as occupants severally received.

 

 May it not be possible in the foreseeable future that the highly specialized owners of metropolitan communities will merge their separate holdings by vesting in a single corporation in exchange for shares of stock according to the appraised value of their several and respective contributions?

 

 Such a community corporation would then be in busi­ness for the protection of its total properties and of their rent-paying inhabitants and thereby in position to produce and distribute services and amenities of every kind for the benefit of the population and for the enhancement of rent thereby accruing voluntarily to the public authority.

 

 A public authority of this kind, having its own legitimate revenue, would be under no need to seize pro­perty or coerce its customers and would have every legitimate profit motivation for protecting them from undue political depredation and for themselves providing such public services as would be necessary and beneficial to their rent-paying inhabitants.

 

 This is the alternative, as I see it, to the present anomalous practice of coercing the community inhabitants in order to protect and otherwise serve them.

 

 I am sending on a separate sheet a suggested pros­pectus under which such a community-owning corporation might be established.

 

 I should be most happy to have you advise me what you think of the possibility of a new advance in social evolution through the development of proprietary and contractual in lieu of political and coercive community administration. It may seem an unlikely avenue of investigation, but it should be remembered that great advances after long delays often spring from the most unexpected sources.

 

 Congratulating you on the notable contributions you have made in the juridical and related fields and with profound respect I am,

 

                            Sincerely yours,

 

                                 Spencer Heath

SH:sm

 

____________________________________

 

Dear Mr. Heath:                            June 28, 1954

 

The subject about which you write me, and the enclosed notes on the organiza­tion of real estate raise questions which I certainly am not prepared to write about offhand. I can see that here is something deserving careful thought and study which I cannot give to it at present. I have undertaken all that I can possibly do between now and September. It is quite impossible to take on an ad­ditional matter of such magnitude.

Yours very truly,

 

(signed) Roscoe Pound