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The Colonial Origins of Liberal Property Rights

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The Colonial Origins of Liberal Property Rights University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Fall 1-1-1992 The Colonial Origins of Liberal Property Rights Elizabeth B. Mensch University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Legal History Commons, and the Property Law and Real Estate Commons Recommended Citation Elizabeth B. Mensch, The Colonial Origins of Liberal Property Rights, 31 Buff. L. Rev. 635 (1992). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/769 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. THE COLONIAL ORIGINS OF LIBERAL PROPERTY RIGHTS ELIZABETH V. MENSCH* INTRODUCTION At least since the time of Locke, the notion of a "right" to property has played a central role in liberal political thought. Oddly, however, given the subject's significance, scant attention has been paid to the emergence of property rights conceptualiza- tion in early American legal history. Often commentators assume, for example, that when the framers of the Constitution solemnly promised to protect "property," they had in mind something with a clear and commonly understood definition. A close examination of colonial law, however, reveals that prior to the Revolution the notion of property right contained within it more incoherence and self-contradiction than clarity. Moreover, that incoherence did not result simply from the frontiersmen's crude disregard for common law forms or unenlightened failure to apply rigorous legal reason- ing to the task of defining property relations. Instead, the self-con- tradiction stemmed directly from the fact that the idea of property in the colonies was inextricably linked to two irreconcilable visions of social life-visions which were simultaneously moral, political, and economic. Each contained its own account of the proper role of property within the social order and its own version of the source of legitimate title. Since the struggle between those visions re- * Associate Professor of Law, Faculty of Law and Jurisprudence, State University of New York at Buffalo. J.D., Faculty of Law and Jurisprudence, State University of New York at Buffalo, 1976; L.LM., Harvard University, 1978. Thanks are due, first and always, to the faculty at the State University of New York at Buffalo Law School-a rare instance of genuine community in an otherwise secular world. In particular, Jim Atleson, David Engel, Alan Freeman, Bob Gordon, Al Katz, Fred Konef- sky, Janet Lindgren, and Jack Schlegel have been an unfailing source of help, inspiration, advice, encouragement and information. Second, special thanks are also due to Morton Hor- witz, who with gentle and perceptive criticism guided the initial research for this project and read the first draft; and to Duncan Kennedy, whose conversations helped give shape to parts of the argument. Finally, the Legal History Workshop at the University of Wisconsin Law School, under the direction of Bob Gordon, Willard Hurst, Stanley Kutler, and Dave Trubeck, provided a pleasant and stimulating summer during which to finish this article and start research for a follow-up project, while also providing an invaluable opportunity to share ideas and information with other legal historians. 635 BUFFALO LAW REVIEW [Vol. 31 mained unresolved, a coherent definition of property was im- possible. For purposes of this Article, those two competing visions have been labeled hierarchy and voluntarism. The first assumed the in- herent legitimacy of a securely structured and paternalistic politi- cal, economic, and ecclesiastical hierarchy, with a corresponding structure of semi-feudal property relations premised on a divinely ordained inequality. The second directly challenged that hierarchy by proclaiming equality and freedom as the only possible founda- tion for a true republican community and also by regarding actual settlement and use of land as the only legitimate source of title. The degree to which the conflict between these two alternative visions dominated colonial American thought cannot be overem- phasized. They struggled against one another in political and reli- gious debate and were lived out as part of the daily experience of colonial settlers. It was within the context of that struggle that the idea of rights began to gain its ascendancy as an organizing princi- ple of American legal thought. The main purpose of this Article is to examine closely the meaning of property rights in provincial New York, where its defi- nition was especially problematic and closely bound up with the conflict between the hierarchical and voluntarist models of social organization. As a preliminary point, however, it is worth noting that the New York experience was representative of a conceptual dilemma well recognized by the most sophisticated of early liberal theorists. Indeed, much early liberal. writing was devoted to the creation of mediating concepts which served to mask the inevitable irreconcilability of hierarchy and voluntarism. As one key example, modern readers of Adam Smith might be struck by the extent to which Smith's description of a "free" market economy incorpo- rated both contradictory models; as Smith recognized, those mod- els carried with them contradictory assumptions about the nature of law and morality. Smith's first model was the voluntarist model of free exchange and cooperative, value-enhancing barter,1 which Smith explicitly associated with equalitarian societies where each member was a self-reliant producer and where laws were made by the participation of equal, independent citizens. Only such socie- 1. See generally A. SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS (R. Campbell, A. Skinner & W. Todd eds. 1976). 1982] ORIGINS OF PROPERTY RIGHTS 637 ties, Smith maintained, were wholly consistent with the "law of na- ture."'2 According to Smith, however, conditions of completely free exchange and legal consensualism existed only in parts of the colo- nies, where easy availability of land made each colonist potentially self-reliant. In other countries, "rent and profit eat up wages,"3 and free exchange is inevitably distorted by the fact that some members of society are dependent on others.4 Nevertheless, such deviations from the purity of the volunta- rist model were inevitable for the sake of promoting Smith's sec- ond model: the concentrated accumulation of capital and division of labor which was required for the efficient production of goods. Because that second model was premised on the protection of ine- quality, it required a legal, religious, and even epistemological sys- tem characterized by hierarchical authority rather than pure con- sensualism, reason rather than passion, aristocracy rather than republican equality, Anglicanism rather than radical puritanism.5 Smith never envisioned an economy-or a legal sys- tem-premised wholly on the hierarchy which seemed implicit in the protection of inequality. Such a hierarchy would lead to the king's monopoly over resources and the stagnation Smith associ- ated with crown regulation, entail and primogeniture, and the mo- nopoly engrossment of the free market. On the other hand, Smith's system obviously meant deviation from the model in which each person is an economically self-reliant republican citizen and there- fore a truly free bargainer.' What Smith envisioned instead was a complex interaction between hierarchy and voluntarism. Each was denied in its static, pure form, but elements of each were incorpo- rated into a new and dynamic middle ground. 2. See generally A. SmiTH, LECTURES ON JURISPRUDENCE (R. Meek, D. Raphael & P. Stein eds. 1978). 3. A. SbirrH, supra note 1, at bk. 4, ch. 7, pt. 2, § 3. 4. Id. See also 1 K. MARX, CAprrAL 770-71 (F. Engels ed. 1967): The labourers most distinctly decline to allow the capitalist to abstain from the payment of the greater part of their labour.. What is now ... the conse- quence of this unfortunate state of things in the colonies? A 'barbarizing ten- dency of dispersion' of producers and national wealth. The parcelling-out of the means of production among innumerable owners, working on their own' account, annihilates, along with the centralization of capital, all the foundations of com- bined labour. 5. See generally A. SMrrH, TH THEORY OP MORAL SENMENTS (D. Raphael & A. Mac- tie eds. 1976). 6. See generally A. SMrrH, supra, note 2. 638 BUFFALO LAW REVIEW [Vol. 31 This incorporation of extremes within a dynamic middle ground required a complex set of mediating devices. With respect to the market, the key mediator was the market price, that single figure which claimed objectivity and incorporated the effects of hi- erarchically imposed inequality, while at the same time reflecting the free play of subjective values on a supply and demand market. Similarly, theorists inserted the new notion of "self-interest" be- tween the paternalistic authority of reason and the unpredictable disruptiveness of passion, describing interest as the driving force in economic and political life.7 Smith's own conceptual mediator (still very crude, compared to later rights formulations) was the "natural spectator" standard of justice. The natural
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