Chapter Five
The gigantic landmass that barred the Europeans’ westward route to the South Seas forced them to deal with the unexpected challenge of organizing its possession. For obvious reasons, all of the newcomers attempted to impose a system based on the one they knew at home. But the sheer expanse of territory and the exuberance of wealth that fell into their hands defeated their best intentions. Each of the European powers who colonized the New World, from the Spaniards in Mexico and the Portuguese in Brazil down to the Swedes in Delaware and the Danes in the Caribbean, suffered the same fate. As though it were a giant distorting mirror, the Americas reflected an image of European land ownership, but one pulled out of proportion and sprouting strange protuberances unknown in the Old World.
Its extravagant fertility can be sensed in the language used by the English when they arrived: “the millionous multitudes” of seabirds, the “huge flights of wild Turkies,” “such infinite Herds of Deare,” “innumerable of Pines, tall and good for boards or masts,” and forests of oaks with “great Bodies tall and streight from 60 to 80 foot, before there be any Boughs in height,” all of it fed by soil that was “like to manure” so that “we cannot sett downe a foot, but tread on Strawberries, raspires, fallen mulberrie vines, acchorns, walnutts, saxafras etc.”
But soon after that first rapture came a sharp consideration of the profit it represented. “The mildnesse of the aire, the fertilitie of the soile, and the situation of the rivers,” Captain John Smith wrote of Virginia in 1624, “are so propitious to the nature and use of man as no place is more convenient for pleasure, profit, and mans sustenance.” Ten years later, the Jesuit priest Andrew White felt a similar stab of greedy delight in the richness of Maryland’s untouched country: “the place abounds,” he wrote, “not alone with profit, but also with pleasure.” And in 1654, Francis Yeardley, exploring south into Carolina, found “a most fertile, gallant, rich soil, flourishing in all the abundance of nature, especially in the rich mulberry and vine, a serene air, and temperate clime.” Admiration immediately prompted him to buy the entire territory for £200 from the native inhabitants, “and so the Indians totally left the lands and rivers to us, retiring to a new habitation.”
In New Spain, Hernán Cortes had felt the same gluttonous shiver as he contemplated the city of Tenochtitlán in 1521, capital of Moctezuma’s Aztec Empire, containing wealth and art beyond imagination, criss-crossed by canals and avenues and studded with public squares and thriving markets. “There is one square,” he wrote to his king, Charles V, “twice as large as that of the city of Salamanca, surrounded by porticoes, where are daily assembled more than sixty thousand souls, engaged in buying and selling; and where are found all kinds of merchandise that the world affords, embracing the necessaries of life, as for instance articles of food, as well as jewels of gold and silver, lead, brass, copper, tin, precious stones, bones, shells, snails, and feathers . . . what can be more wonderful than that a barbarous monarch, as [Moctezuma] is, should have every object found in his dominions imitated in gold, silver, precious stones, and feathers; the gold and silver being wrought so naturally as not to be surpassed by any smith in the world.”
In Canada, Samuel de Champlain, exploring the land on behalf of his patron, Pierre de Mons, noted acquisitively that islands in the lake now named for him contained “very fine woods and meadows, with abundance of fowl and such animals of the chase as stags, fallow-deer, fawns, roe-bucks, bears, and others, which go from the main land to these islands. We captured a large number of these animals. There are also many beavers, not only in this river, but also in numerous other little ones that flow into it.” The fact that Champlain’s sponsor expected to make his profits from fur rather than land or gold explained the difference in emphasis. Already, Champlain assured him in 1608, he had set up a trading system by which the native inhabitants close to Quebec contacted others living deep in the interior and exchanged “the merchandise we give them for their furs, such as beaver, marten, lynx, and otter, which are found there in large numbers, and which they then carry to our vessels.”
Each of these accounts was written at least partly as a prospectus, emphasizing the riches in order to encourage backers to commit more resources to their exploitation. Cortes concentrated on the gold, primarily to distract royal attention from his mutinous conduct in attacking the Aztecs, but also because he could not own any of the territory. When his small army captured Tenochtitlan that year, it took possession of Moctezuma’s empire, following a pattern that had been developed by the Spanish crown during the long campaign to recapture Spain from the Muslims. Ownership of the retaken ground belonged to the crown, but the adventurer who drove out the Muslims from a particular area was entrusted—encomendado—with the use of the inhabitants to farm it and extract its minerals. The young gentlemen hidalgos who followed Cortes to seek their fortune in New Spain did so knowing that, in strict legal terms, all they could own was the produce of the earth and the labor of the Indians—a reality encapsulated in the aphorism they coined, sin indios non hay Indias (“without Indians, there’s no Indies”), meaning that without their ownership of the people, the rich land was worthless.
France’s empire offered its settlers, the habitants, even less scope for ownership. Pierre de Mons had been granted a monopoly in the fur trade, and French colonists living close to the fortified trading post Champlain founded at Quebec were expected merely “to dwell there, and to trade with the savage inhabitants of the said places.” Quite simply, it was impossible for the French habitants of Canada, as it was the Spanish conquistadores or the ordinary Dutch settlers who arrived at the same time in the Hudson valley, to own the land in the way that the English did. The culture did not exist for such an eventuality. But even the English found it difficult to adapt their ideas of property to the vast land before them.
In the giant American mirror, one aspect of English land ownership, almost obscured in the original, stood out sharply. It sprang into prominence as a result of a bad-tempered spat that erupted in 1674 between the Lords Proprietors of Carolina and the villainous figure of Sir John Yeamans, widely suspected of poisoning his best friend in order to marry his widow, and largely responsible for introducing slavery to Barbados by importing hundreds of captured Africans to work on his sugar plantations on the island. Despite his sinister background, the wealthy Yeamans carried influence among his fellow planters in the West Indies, and the Lords Proprietors had gone to great lengths to persuade him to settle in their new colony.
They had secured him his title (he had been plain Mr. Yeamans until 1665) and in 1669 drawn up a constitution—the Fundamental Constitution of Carolina—that was shaped to appeal to him in particular and in general to “the adventurers of the Island of Barbadoes” and other British colonies in the West Indies. The West Indian sugar planters stood at the pinnacle of a highly stratified society built on slave and indentured labor with clearly defined grades of social class dividing rich from poor. The Fundamental Constitution envisioned Carolina becoming an equally hierarchical society where slavery was legal and rank and power were based solely on land ownership. In each county, 40 percent of the territory was to be set aside for the Lords Proprietors and an instant nobility of landgraves and caciques. The remainder was available for sale at three pounds per acre; the owner of twelve thousand acres became a baron with powers over local government; three thousand acres made the purchaser a manor lord with powers of administering justice; and a mere fifty acres qualified the owner to vote.
As a real estate advertisement, the constitution did its work. From the 1670s to the 1690s more than half of Carolina’s colonists came from Barbados, and many more, “a hodge-podge” by contemporary accounts, arrived from other West Indian islands, Jamaica, Saint Kitts, and Montserrat. Prominent among them was Sir John Yeamans, who arrived in 1673 and was appointed governor the following year.
Carolina was not exceptional in offering such inducements to would-be immigrants. Soon after they had received their royal charters, the proprietors of New Jersey and Pennsylvania had both issued a list of concessions “to the Adventurers and all such as shall settle there.” The concessions were in effect advertisements designed to attract new settlers. Two items appeared on each list, clear ownership of land and political representation.
One of the most important promises made was the assurance that the land would be surveyed and registered and, as the Carolina Lords Proprietors put it, “to avoid deceits and lawsuits [the register] shall record and enter all graunts of land from the Lords to the planters; and all conveyances of Land, Howse or Howses from man to man.” The Calvert family, owners of the old established province of Maryland, followed suit, promising in their 1718 constitution to divide the territory into counties, and appoint no fewer than nine public surveyors for each county, as well as an efficient form of land registration. Finally, because as Petty had explained, land needed labor to release its value, the concessions also offered a free headright grant of land, up to 150 acres, either to heads of families, or to every adult, who paid their own passage to the new colonies.
Such inducements had a powerful effect. By 1751 the population of Britain’s North American colonies had risen to more than one million, far outstripping the fifty-two thousand colonists in New France, and more or less equalling the Spanish-descended population that had begun to arrive in New Spain a century before the first English settlers in Virginia.
Both the royal charters and the lords proprietors’ concessions also outlined the political consequence that went with property. To ensure that their interests would be safeguarded, once the adventurers had transformed themselves into landowners and thus qualified as “freemen,” they would be eligible to vote for a representative in the provincial assembly, or, in the sales pitch made by William Penn, “to chuse out of themselves seventy-two persons of most note for their wisdom, virtue and ability . . . [to] act as the provincial Council.”
To their bewilderment, all the proprietors, even the Penn family who offered the most generous concessions, found themselves subjected to a barrage of criticism and occasionally violent attack from the settlers. By the mid-eighteenth century, the crown had been forced to take direct control of all the embattled proprietors’ colonies. In every conflict, one vital question was posed: Who in fact owned the American land? The proprietors who had received it by the power of the king’s “mere motion” and the “divine grace” that had seated him on the throne, or the settlers who had worked, improved, and defended the soil? Nowhere was the question posed more abrasively than in Carolina, a gigantic province taking in the modern states of North and South Carolina and most of Georgia. And since the experience fed directly into the thinking of the secretary of the Lords Proprietors of Carolina, John Locke, nowhere was there a more interesting answer given.
The relationship of the six Carolina proprietors with the egregious Yeamans was summed up in an angry letter written on their behalf by Locke in 1674 in response to Yeamans’s demand for more tools, more cattle, and more plants to help him and his fellow colonists make a living from the land. Angrily, Locke pointed out that the proprietors had already spent “several thousand pounds” in assistance, and instead of thanks from Yeamans, there had been “complaints made and reproaches insinuated.” Dismissing his request for more help, Locke wrote “it must be a bad soil that would not maintain industrious people, or the Lords Proprietors must be very silly that would maintain the idle.”
But other discontented colonists soon joined Yeamans at his palatial mansion at Goose Creek and added their own complaints. They included settlers annoyed by the dues they were forced to pay on their land, such as the annual quit-rent to the proprietors; devout Anglicans irritated by the policy of religious tolerance that gave equal rights to Jews and Quakers; fur traders infuriated by the proprietors’ insistence that they alone had the right to buy pelts from Native Americans; and slave owners chafing against the proprietors’ refusal to allow raids on the Spaniards who harbored runaway slaves in Florida.
There was a pattern to this apparently incoherent range of discontents. And despite the tone of his letter, Locke showed that he understood its cause when he came to write the work for which he is now best known, Two Treatises on Government. From the start, it betrays his long experience, from 1669 to 1675, of dealing with the correspondence and negotiations with the recalcitrant settlers of Carolina. Thus in imagining the earliest state of nature before there was government, the picture he painted was not of Hobbes’s brutish savagery, but of limitless possibility where people lived in perfect freedom surrounded by empty land. “In the beginning,” he wrote simply, “all the world was America.” It was from this unconstrained state, he argued, that private property spontaneously, naturally, and inevitably occurred. For more than three centuries, his thesis has shaped democratic thought in private property societies. Yet, even today, the explosive quality of his argument is only half-understood.
As a student, Locke was known as “a man of turbulent spirit, clamorous and never contented,” but as he grew older, any public display of this rebellious passion was hidden by an austere demeanor and a narrow, unrevealing, hatchet-nosed face, as sharp as a ship’s prow. “I believe there is not in the world such a master of taciturnity and passion,” one of his Oxford colleagues declared, and Locke himself alluded to the effort it cost, declaring that the guiding principle “of all Vertue and Excellency lies in a power of denying our selves the satisfaction of our own Desires, where Reason does not authorize them.”
His well-camouflaged radicalism makes the revolutionary nature of his argument—that people, not laws, created property—less surprising. Indeed, the timing of the first Treatise’s composition in 1681, when Locke’s employer, Lord Shaftesbury, was suspected of planning a coup to overthrow the increasingly dictatorial and Catholic rule of King Charles II, suggests that its real purpose might have been aimed at justifying popular sovereignty. In outline, Locke was harking back to Winthrop’s old Puritan thesis that labor itself created privately owned property independently of the common law. Unlike the Puritans, however, Locke turned not to biblical precedent but to Overton’s subversive Leveller idea that everyone naturally owned his or her own person, with its rights to life and liberty.
Like the politics of Hobbes and Smith, Locke’s Treatises make most sense in relation to his ideas about human nature. In his own lifetime, Locke was better known for his four-volume Essay Concerning Human Understanding, which depicted the personality as an individualized organism, born a separate blank receptacle for experience, but growing in such complexity and richness of thought from youth to age as to be barely recognizable as the same person. What connected the child with the adult, Locke concluded, was the sense of identity that came from consciousness, particularly the consciousness of being a separate self. “Consciousness always accompanies thinking, and ’tis that that makes everyone to be, what he calls self; and thereby distinguishes himself from other thinking beings . . . it is by the consciousness it has of its previous Thoughts and Actions, that it is self to its self now; and so will be the same self as far as the same consciousness can extend to actions past or to come.”
This extraordinarily modern focus on personal self-awareness only made sense to a readership familiar with Hobbes’s greedy individualism, and the unique social importance attached to privately owned property. Even in the advanced society of the Netherlands, it would have been impossible for Locke’s contemporary, Baruch Spinoza, perhaps the supreme philosopher of the seventeenth century, to write baldly as Locke did in the Essay, “Self depends on consciousness.” People in Spinoza’s philosophy were not alienated, autonomous psyches, but part of the natural world and subject to its universal, rational laws.
Consequently, when Locke wrote about the origins of popular sovereignty, his explanation centered on individual action. In the bounteous, unlimited America that existed before government, the land and everything that it produced was held in common ownership. By working a parcel of the earth and improving it, however, a person separated it from what had been shared and thereby acquired exclusive ownership. “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person; this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property.”
Although often overlooked, it was essential to Locke’s reasoning that such self-ownership had a divine origin. The act of creation made each person God’s property, and the same creative process enabled people to own the earth they had cultivated, in the way that a craftsman owned what he had created. But wealthy individuals could also purchase the property-making powers of others, much as they would when commissioning a craftsman to make an object for them: “the Turfs my Servant has cut; and the Ore I have digg’d in any place where I have a right to them in common with others, become my Property.”
The inequality that resulted made it more difficult to secure property, and so people were forced to accept that it was better to give up some of their unconstrained freedom in order to protect what they owned: “The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property.” This is the classic formulation of the argument that sovereignty in a democratic state lies ultimately with the people. In a state of freedom, autonomous individuals agree with one another to give up some of their natural liberty in order to preserve what they already own.
It is not difficult to discern the influence of Locke’s American experience in his depiction of the contractual nature of government. However hostile he might have been as secretary to the Lords Proprietors of Carolina, by the time he came to write the Treatises, it was evident that Locke understood the conflict with the settlers to have arisen from their different understanding of what constituted ownership.
The settlers’ natural rights of ownership came from their daily labor in clearing the ground of its giant trees, of planting rice and herding cattle, and of dealing with the emergency demands of floods, hurricanes, and wars against Native Americans and Spanish marauders. Underlying their complaints was the basic assumption of a contract between two equal parties: if the settlers were to be governed by the Lords Proprietors, they must receive protection for their property. Sustained by their legal rights, the proprietors saw the matter differently: the settlers were tenants who should be expected to make their living from the land, and to pay the proprietors for its use. This attitude soon turned even the proprietors’ handpicked supporters against them, prompting the accusation that, “like a Landlord to his Tenant, they [the proprietors] have their Eyes [only] upon the Rent.” A sullen stand-off developed that continued long after the death of Yeamans in 1674 and Locke’s departure from his post the following year. The dispute was not resolved until the next generation of settlers took more assertive action in the eighteenth century.
When the Treatises first came to prominence more than fifty years after they were published, British commentators shifted Locke’s emphasis away from the contractual nature of government toward the sacredness of property. In his Commentaries on the Laws of England, published in 1765, William Blackstone cited Locke in support of his theory that individually owned property constituted one of three natural rights “which every man is entitled to enjoy, whether out of society or in it . . . the right of personal security, the right of personal liberty, and the right of personal property.” Although the mixing-labor theory could justify the creation of any kind of ownership—where wives and children were expected to work alongside fathers in the fields, for example, it would logically support a concept of family possession—Blackstone insisted that it created only a monopolized ownership. In short, natural rights and the common law were at one in privileging “the sole and despotic dominion” of the land, as Blackstone put it, of one man. And it was a right that no government could challenge: “So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.”
It followed that without the assent of the property owner, any form of taxation was oppressive and should be resisted as an attack not just on his possessions, but his standing as a free person. “If taxes are laid upon us in any shape, without our having a legal representation where they are laid,” Samuel Adams demanded in 1764, “are we not reduced from the character of free subjects to the miserable state of tributary slaves?” Locke’s contractual theory of government thus became the intellectual fulcrum for American resistance to British taxation, and his forecast that free people were justified in rebellion if subjected to “a long train of abuses, prevarications and artifices all tending the same way” made its way almost unaltered into the Declaration of Independence.
In 1973, the economist Robert Nozick developed this argument to build the dazzling libertarian vision of a minimal government whose sole purpose was to protect property and, stripped of power, to raise taxes or take action beyond what was necessary to achieve that goal. Echoing Blackstone, he argued that property “to which . . . people are entitled may not be seized, even to provide equality of opportunity for others.” The idea that any increase of government diminished individual liberty by threatening the primacy of property rights acquired such popular appeal by the end of the twentieth century that it became a sort of orthodoxy. Yet in that form, the argument lost sight both of Locke’s thesis and the moral force that gave it such power.
The argument for popular sovereignty that is actually put forward in the Treatises is grounded in an infinitely grander vision than title to a parcel of land. Quite explicitly Locke sets out to show that democracy grows out of a sense of fairness common to all individuals. This is “the law of nature” that exists when people live in a state of total freedom. Reason reveals to each of them that “no one ought to harm another in his Life, Health, Liberty of Possessions.” As self-conscious individuals, people cannot help making things that belong to them, but these things, land included, can only become exclusive property “where there is enough, and as good left in common for others.”
By this reasoning, the long list of dispossessed—women, villeins, Irish, and Native Americans among them—might seem to render the selfish monster of private property illegitimate from the start. But Locke was concerned with every claim to possession, theirs included. What he described was a dynamic process rather than a static situation.
From the first chapter of the first Treatise, he is clear that the right to own exclusively what you have made comes out of a sense of justice, because justice demands that the craftsman and laborer has a right to own what he or she has created. But justice cuts both ways, and automatically gives rise to other rights: “As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much of another’s Plenty, as will keep him from extream want, where he has no means to subsist otherwise.”
That justice rather than labor-mixing should be the real basis of Locke’s argument for a natural right to private property is what makes him revolutionary. The difference is crucial. By its nature fairness is all-inclusive and applicable equally to everyone. Otherwise it becomes its opposite. The moral authority that fairness gives to private property is what allows the institution to exist independently of law and government. To lose sight of that universal morality must lead to property having another, man-made basis, one that logically could be destroyed by man.
But repeatedly, and in the starkest terms, Locke set out the consequences of fairness. “[N]o man could ever have a just power over the life of another, by right of property in land or possessions, since it would always be a sin in any man of estate to let his brother perish for want of affording him relief out of his plenty . . . God the lord and father of all has given no one of his children such a property in his peculiar portion of the things of this world but that he has given his needy brother a right to the surplusage of his goods.”
To the next generation, living in a world populated by nine billion humans, the awkward implications of Locke’s premise will be an everyday reality. It is increasingly common already to defend the existence of private property and its inevitable inequalities on the utilitarian grounds of its incentive to greater productivity. But productivity is a shallow foundation for such a great edifice.
The democracy that Locke discerned in the 1680s was grounded in the moral principle that underpinned both property and popular government. And the dynamic forces it incorporated would ultimately enable the dispossessed to regain the rights they had lost.
Nevertheless, by the early years of the eighteenth century, Locke’s criterion that private property could only be justified “where there is enough, and as good left in common for others” appeared close to impracticable even in the vast expanses of America. That was made obvious by the stiffening resistance of Native Americans to the land hunger of the new immigrants, and in Carolina, a bloody war would shortly consign the native Yamassee to the long line of the despoiled. Yet despite the carnage inflicted by individual ownership of land, it was apparent that the system also contained a mechanism of restitution.
From its birth in sixteenth-century England, the acquirers of private landed property found it necessary to take account of those they had dispossessed. A series of measures beginning in 1536 and culminating in the 1601 Poor Law Act imposed local taxes on “every occupier of lands” to provide welfare relief for the “lame, impotent, poor, old, blind and such other among them being poor and not able to work” who had been deprived of support following the abolition of the manors and the monasteries. The poor law tax was imposed by the representatives of the landed gentry and, until the early 1800s, the cost of this system of welfare—it gradually rose from 1 to 2 percent of GDP compared to almost 5 percent levied in advanced economies today—was borne solely by landowners.
The debates that accompanied a torrent of legislation averaging almost two bills a decade during this period revealed that their motives swung constantly between self-interest—to preserve social order—and genuine social concern. But the roots of these conflicting motives ran deeper than mere politics.
In 2003, Sarah Brosnan, a young psychology professor at Emory University, conducted an experiment with five capuchin monkeys who were paired up and trained to return a token in order to receive a reward of cucumber slices. When the exchange was then skewed so that one of the pair was offered a more desirable reward in the form of grapes, the other would frequently refuse to participate, often throwing away either the token or the cucumber. Such irrational behavior—effectively denying oneself nourishment—clearly had some deep-rooted cause. Brosnan and her colleague, primatologist Fran de Waal, concluded that it pointed toward “an early evolutionary origin of inequity aversion.” The finding sparked a furious debate that revolved around the possible effect of what was quickly dubbed a “fairness gene.”
Much of the argument about Brosnan and de Waal’s findings as well as the results of other experiments arose from the difficulty of defining what a sense of fairness, or “inequity aversion,” entailed: did it mean expecting to share a reward equally, or simply hoping to receive a small part of the reward given to another, or even forgoing all reward so that another, more deserving (in primate terms, higher-ranking) participant could benefit? Yet unmistakably, the subjects’ behavior changed in reaction to a perceived disparity of reward; as one otherwise skeptical researcher put it, “seeing another individual receive high-quality food creates the expectation to receive the same food.”
Human experiments involving games such as Prisoner’s Dilemma (two prisoners each with the choice of staying silent or betraying the other) and the Ultimatum Game (sharing out of money so that each of two players is satisfied) gave rise to equally irrational behavior. Alongside the understandable selfishness of homo economicus who could be expected to maximize his own gain ran an equally deep-seated sense of injustice, so strong it could operate against the best interests of the individual. Thus in the Ultimatum Game, where one person was given one hundred dollars with the proviso that the money had to be shared with a second person or it would be lost, the second person, who theoretically should have been happy to receive any share because it represented pure gain, was almost always ready to refuse a sum less than what he or she considered a fair share (usually somewhere between twenty and fifty dollars), even though it deprived both participants of any gain.
As in primate experiments, the conclusions were blurred by semantics—did apparently altruistic behavior really conceal a deeper selfishness?—but what could not be overlooked was the visceral response to perceived unfairness. Indeed, medical research suggested that the response began with the release of a hormone, cortisol, associated with tension; its opposite, oxytocin, generated most powerfully in recovery after childbirth, was similarly associated with the generous impulses of sharing. Although the action of a single hormone is invariably mediated through other endocrinal responses, making it impossible to ascribe behavior directly to its effects, the release of cortisol in these situations underlined the profound nature of the response to injustice. Taken in conjunction with the equally automatic release of oxytocin, these findings demonstrated how intrinsic to human nature are the contrary impulses of selfishness and fairness.
In a sense, all social history reveals the interplay of these two drives. What was particularly intriguing about their role in the private property societies taking shape on either side of the Atlantic was not so much the primacy accorded to selfish behavior as the factors that gave an almost equal weight to the impulse toward fairness. Significantly, both Locke and Adam Smith held the latter quality to be vital both to property and to free-market economics.
In its most efficient form, Smith argued, a free-market economy showed how “the obvious and simple system of natural liberty establishes itself of its own accord. Every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest his own way, and to bring both his industry and capital into competition with those of any other man, or order of men.”
His phrase “the laws of justice” pointed to the principle that Locke identified as the basis of property. Freedom exercised at the expense of someone else’s liberty became a form of tyranny. It had to be equal and inclusive. Consequently it was fundamental to Smith’s description of the free-market system that everyone, rich and poor, should have an equal opportunity to profit from their labor. Because there was no mechanism more effective in regulating wages and prices than the “invisible hand” of the free-market, it was incumbent on government to maintain open and equal access to it. Morality and efficiency coincided.
The same reasoning required the laws of justice to underpin the system of private property. Perhaps surprisingly, the strongest modern advocate of this approach was the libertarian Robert Nozick. Holders of property were “entitled” to claim what amounted to a natural right to ownership, he proposed, when three principles of justice were observed: the property had to have been justly acquired by the original holder and justly transferred to the present owner, and any injustice in these processes had to be made good by a policy of “rectification.” Both Nozick’s supporters and his critics tended to overlook the degree of government intervention entailed by this last requirement, but his rationale for believing that justice had to provide the foundation of a private property society hardly differed from that of Adam Smith: crudely put, the system would work better, offer more freedom, and require less adjustment if everyone, propertied and unpropertied, believed its rewards and penalties to be distributed fairly. The paradoxical outcome was that the most selfish system of ownership had an altruistic motive for promoting fairness even at the expense of its immediate self-interest.
The mechanism by which this took place was provided by the recognition of rights. And the achievement of the dispossessed in using that mechanism to regain or at least compensate for what was taken from them constituted a major part of the history of private property societies.
In March 1656, more than 350 years of institutional intolerance were swept aside in England when twenty-five Jewish families living in disguise in London were formally given permission to live and worship freely. The decision overturned a royal edict issued in 1290 by King Edward I that expelled all Jews from England—the first such action by a European ruler—and declared any who remained in the country to be outlaws whose goods were forfeited to the crown. By the seventeenth century, however, the example of the Netherlands, where Jewish merchants made a vital contribution to the growth of the country’s international trade, had shown that, as William Petty argued, an open society benefited by attracting such enterprising outsiders.
Out of a curious mixture of pragmatic belief in the importance of encouraging trade and millenarian faith that the Jews needed to be converted before Christ could return, England’s enigmatic Lord Protector, Oliver Cromwell, wanted to have the royal ban abolished and Jews permitted to live freely in England. Privately he gave the London Jews permission to stay in the country, and he had the 1290 edict of expulsion abolished on the grounds that it did not have parliamentary approval. But even his near-dictatorial power could not persuade either Parliament or a special conference of leading clergy and lawyers to overcome their unshakable prejudice and allow the Jews a public right to residence and freedom of worship. To the Puritans, they were “as full of blasphemy as any under the sun,” while the anti-Semitic feeling among London merchants surfaced in a letter written by one to a friend in Amsterdam in which he commented, “touching Judaism, some corners of our city smell as rank of it as doth yours there.”
Yet where Cromwell was powerless, the law of property provided the necessary lever. The London Jews had passed themselves off as Spanish merchants, a disguise that fell apart when war against Spain was declared in 1655. Taking advantage of the outbreak of hostilities, a rival had the goods of the counterfeit Spaniards confiscated as enemy spoil. But one victim, Antonio Robles, publicly declared, “I am a Portuguese Jew,” and as a legal resident petitioned the Council of State to have his property restored. Ignoring his status as a Jew, the Council declared that since he was a property owner, he enjoyed the full protection of the law, and that his goods must be immediately returned. By itself that decision was sufficient to overturn almost four centuries of legal discrimination, and with Cromwell’s written permission to worship freely and bury their dead in a separate burial ground, England became a more or less safe haven for Jews from all over Europe. Prejudice remained, but the common law’s protection of property rights also ensured their legal protection.
Other legal outcasts—unpropertied males, women, and displaced indigenous races—would follow a similar if more prolonged and complex course in securing legal and political rights equivalent to those of a white, Protestant, propertied male. The process could only begin once the group had the legal capacity to own property, a privilege specifically denied to slaves and married women until the nineteenth century. But time and again, where ownership of land was secured, the disadvantaged group was able to lever property into civil rights.
One early example led to the resolution of the stand-off between Carolina’s proprietors and settlers. In the wake of a drawn-out war with the native Yamassee inhabitants that by 1717 had devastated half the province and left debts of £235,000, the settlers’ anger exploded at the failure of the Lords Proprietors to protect them from their enemies. Although still treated as tenants subject to the owner’s dictates, their representatives in the provincial assembly now declared that they were “unanimously of Opinion they would have no Proprietors’ Government.” On December 21, 1719, they mustered the militia, armed with muskets, in the main square in Charleston, and forcibly replaced the Lords Proprietors’ governor with their own man, James Moore Jr., who had previously led them in wars against the Indians and Spaniards. The success of the coup went beyond the physical seizure of power. Even London recognized that the settlers’ right to have their property protected had been ignored by the proprietors, invalidating the latter’s legal claim to govern them. Their charter was revoked in 1729, putting the colony under direct royal control, a change that embodied the settlers’ status as colonists rather than tenants. Barely fifty years later, those colonists would again assert their rights as property owners, this time against the exercise of royal power, and eventually establish an understanding of liberty beyond any that property alone had made possible.
Despite itself, the privileged, selfish system of private property proved to have a mechanism for openness and equality built into it. Antonio Robles had demonstrated that the laws that created a monopoly of rights in a male property owner had to apply to everyone who enjoyed that status. And the prize for those able to use the mechanism was the enjoyment of a legally protected liberty that was independent of government because it originated in human existence.