Sunday, April 20, 2014

More On Owning Unowned Land

This follows an earlier post by me on April 17 on "Who Owns Unowned Land," which argued that in the US it is the states in the original 13 colonies and the federal government in the rest of the nation, with the precise legal code defining the tenure rights being those of the nation that was ruling the land when ownership was first established.  Which gets us back to this matter of how does this first ownership get established on previously "unowned land," with the implicit question for the US being, "why are not the Indian tribes the original owners?"

So, in a paper by T.W. Merrill from the Yale Law School in 2009, "Accession and Original Ownership," he addresses British common law views on how "original ownership" comes about, finding that the theory presumes that prior to individuals (or sub-national corporate entities) coming to own land, it was presumed to be "held in common," as in traditional medieval grazing commons in England that came to be enclosed, without it quite being clear who ultimately owned such grazing commons.  Merrill cites John Locke on this who wrote, amazingly enough, that we should think of the world as originally "being America," that is a giant commons.  For Locke it was mixing one's labor with the land that established ownership, a labor theory of ownership as it were.  The matter of "accession" is posed as an alternative, but this simply involves a modification of this labor mixing principle, altering it to the first owner is the one who establishes effective control over the land. Once that is recognized, then a chain is established that simply continues, which is why we have this matter of the code holding when land first becomes clearly owned being the relevant one for later property transfers, particularly real estate ones.

Now in fact this does not really answer our question, although it does highlight important details to some extent, particularly when we consider Locke's view of "America."  Why is it that the Indians did not "own" the land, or were not considered to be the owners by the British (and Spanish and French)?  Needless to say, certain areas were used regularly by certain tribes, arguably enough that Locke should have granted them property rights, unless he wanted to argue that they could not due to being subhuman or something like that (am not aware of Locke ever making such arguments).

No, obviously what is involved is recognizing that behind property rights, certainly in land, there is assumed to be some sort of government or state with an organized legal code and system of courts to enforce it, even if it is one that has evolved "spontaneously" a la the common law of Britain, in contrast to the continental codes derived from Roman law, although the argument of  Shleifer and his allies about the differences between these has been way overblown and often full of errors, the famous "Legal Origins" QJE paper by Glaeser and him being notorious for its myriad mistakes, even as it is one of the most heavily cited economics papers of all time.

So, private property comes into play when a government with a legal system recognizes that somebody has "mixed their labor" or otherwise assumed some recognized degree of control over some land with, very importantly, that person recognized as someone with legal rights to do so within the law code of the state involved, with that state itself ultimately having some degree of control or claim to control the land in question.  This gets us back to the question of how America did not come to belong to the Indian tribes, although now reservation lands do, and many individual Indians own land privately in many places.  It was simply a matter of force, although it must be recognized that none of the tribes had organized legal systems of the sort that one found in Europe.  These "commons," in many cases recognized among tribes as being "territory" of one tribe or another, became the property of the relevant European-backed governmental entity that took them from the Indians, one of those acts of "primitive accumulation" of which Marx wrote at length.

In any case, in the eastern US, those entities were the individual colonies, thus allowing them to "own unowned  land," with private ownership being recognized either by the Crown directly or by governors of the colonies assigned by the Crown, and the priority of  their rights continuing into the independence era of the US.  This  also explains how certain areas that had been settled while there was French or Spanish rule with individual properties being established under their rule continued to have their tenure determined by the system of legal land tenure in place when the original ownership was established.  But when the US would take control of these territories by either conquest or purchase, that land not already privately owned would belong to the US federal government, which did the conquering or purchasing, although which agency of the US government might come to have responsibility for such land would depend on acts of Congress.  And, of course, the various Homestead Acts all followed the Lockean principles of mixing labor with the land to assert control and ultimately private property rights.

So, running this back to the matter of Clive Bundy in Nevada and his claim that the "sovereign" state of Nevada owns the BLM lands that he has been grazing cattle on for decades without paying any fees, his argument continues to be completely legless.  If he wants to argue that somebody other than the US federal government is the owner of these lands, then the most legitimate alternative candidates would be either nearby Indian tribes (Shoshones?) or maybe the government of Mexico, from whom the lands were taken by force in the Mexican War.  I am sure he does not want to recognize either of them, who would also presumably demand fees from him to graze his cattle.  I know that he claims that some sort of rights were granted to one of his grandfathers, and maybe he did  "mix labor" with the lands, but the courts have not recognized  that claim.  And the matter of him and his armed friends flying lots of American flags while denying the very existence of the US federal government at all is completely absurd.

Barkley Rosser


Bruce Webb said...

Hi Barkley. As it happens this was one of my foci back in the day when I was an honest to God budding academic in UC Berkeley's History PhD program.

Let's just say the whole question is complicated and to the degree it is explicable at all is due to the efforts of the lawyers in the reign of England's Edward II. Which is laid out in a very famous book (for its genre) short titled Pollack and Maitland 'History of English Law'

perhaps the most accurate explanation of the basis of English and so American land law is "elephants all the way down". But in around the 13th century English lawyers managed to regularized thingies, at least conceptually by a bastard mix of Roman and Feudal Law that concluded that every acre had to have an owner (in the Roman sense) and that in almost all cases that title derived from one or another grant by the King who in one formulation gained such by Rigth of Conquest as heir of William the Conqueror at Hastings in 1066.

As such the King's lawyers managed to conclude that ANY grant of the rights to commons was subsequent to and subordinate to some sort of fee simple ultimately residing with the King. Convenient enough since the King was paying their salaries.

But the historical evidence is clear that William the Conqueror did not see any such Right of Conquest and that the who,e structure of the 1086 Land Survey known then and now as Domesday Book was totally incompatible with the views of his at hat point remote Plantangenet descendants.

Still the whole Right of Conquest schtick stuck leading to various folk claiming this or another land in America or Africa or Australasia as property of the relevant King or Queen and so subject to Land Grants from this newfound 'patrimony'. That subsequent sub-grantees in 'New England' chose to treat certain parts of their grants as 'commons' can only at a stretch be linked t ideas that remaining 'commons' in England actually were some sort of ownership (as compared to grant of use). Legally that idea had been stamped out before the Americas were 'discovered'

In fact I wrote a graduate paper called 'Why Kill the Lawyers' that tried to explain why lawyers were the prime target of the English Peasant's Revolt of 1381 rather than the Lords' stewards and bailies as such. And suggested it was a reaction to the extinguishment of legal rights to the commons by lawyers of two or three generations prior. And so centuries before the
Public Lands Act that in the U.S undergirds much of relevant land law here. (interestingly passed under the Articles of Confederation and simply absorbed by the system established by the Constitution) said...

Interesting, Bruce. And this led to Social Security? :-).

In any case, I suspect that the Roman Law precedent, which seems in fact to be the real underpinning of all European law, despite the tale that English common law is its own thing, separate but equal, is that the emperor had this primordial ownership right that he could use to grant lands to those whom he favored, and certainly many of them did that, with many aristocratic titles and lands dating back that far, particularly dukedoms in areas ruled by Rome, with Dux being originally a Roman military position. I gather you know far more than I do about William the Conqueror's views and how those may have differed with the pre-existing Anglo-Saxon law, which was probably heavily influenced by the Vikings.

The most famous of historic commmons in the US is the Boston Commons, which, in effect became the property of the City of Boston eventually, although with some peculiar and idiosyncratic rights and traditions associated with it. I know that at least until recently, and maybe still, it is legal to graze one's cow there, and it used to be one of those pranks of Harvard students to get a cow or some cattle and haul it/them down to the Boston Commons in the dead of night to graze them, but this may have since been outlawed in more recent years.

Bruce Webb said...

Barkley just ran across a work on Maitland that I had never seen before that seems to go right to this point:
F.W. Maitland and the Making of the Modern World by Alan MacFarlane
The PDF runs 102 pages with bibilography and is more a 'monograph' than a book as such.

I'll be reading it with interest. But my take based on previous readings in Maitland is that there never was any Reception of Roman Civil Law in the King's Courts and so in the ones that governed land tenure. There was such in the Courts of Equity which originally fell under the authority of the Chancellor. But what you did have in the course of the 13th century was an adoption of the METHODS and certain underlying PRINCIPALS of Roman Law that were then grafted onto a complex multi-layered system ultimately rooted in Germanic and Scandinavian Law (for the Normans and their land law was the latter and not that of France). Another compatible way of seeing this process was that of Medieval Scholastism imposing a two-valued true/false either/or logic on a system that had a spectrum of rights and more to the point uses over land that just didn't break down that neatly. Until 13th century lawyers unsheathed their swords and did the slicing/logic chopping. At a stroke English Land Law BECAME 'Feudal' and so largely congruent with a Continental system that (in some formulations) simply derived all title from the Emperor. But even there I would dispute that as a misread of the situation inside Italy as represented by the bounds of the pre-Caesar Republic. And even outside it. It would be hard to identify some time in Roman history where land titles were simply wiped out in favor of the Emperor on more than a strictly local basis.

(And Social Security just started as a (rather odd) hobby in my post academic days as a building department bureaucrat back in 1997. No link at all.) said...

Well, Bruce, I do not know this book and am not really an expert on this, but will note two points based on my understanding of this.

1) It is my impression that the Roman aspects came from the French, even if there was some sort of 13th century codification/agreement. This mixing of Roman and Viking elements happened with the Normans, and in fact the Domesday Book was a manifestation of Roman Law influence.

2) The precise matter of unowned land was not that much of an issue, although there were commons. Most land in Europe, particularly the areas once ruled by Rome, were more or less settled with the land largely chopped up and identified as belonging in some sense or other to this or that party or group. There simply was no, or very little, seriously unowned land, so that the question of whether or not the emperor or somebody else owned it was not a big deal, in contrast with America later. However, these various preexisting arrangements in Roman Europe were in theory backed up by the emperor and his authority regarding the land and the law as some sort of ultimate power, even if he did not hand out lands initially, although eventually Roman emperors would do that for their favorites, the later dukes and other notables.

Kaleberg said...

In the northeastern states there are a lot of founding stories about Europeans buying or otherwise obtaining land rights from the natives. For example, the right to settle the town of Concord, MA was supposedly purchased from a local tribe. Manhattan, legend has it, was purchased by Peter Minuet on behalf of the Dutch company backing the colony. I get the impression that a number of these stories were, to use a modern term, retconned into the origin story in the 19th century to legitimize the then current ownership, especially as by that time the original tribes were vestigial at best.

(Hawaiian land ownership is a better documented case as the Hawaiian aristocracy had their own system of land ownership and allowed no commons. You can sometimes find old boundary stones in the highlands defining sectors of land down to the coast. In general, ambitious New Englanders, for the most part, married into the local aristocracy and took title that way.)