Evaluating Property & Property Rights in the Founding Era

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In appraising much of the available literature on the subject of property and property rights, there are two related, common and elementary considerations missing. The first consideration is that most authors do not understand or accept the fact that the American founders differ, sometimes seriously, on a specific definition or concept of property rights. The second consideration, related to the first, is that most commentators on the American founding refuse to accept that it is virtually impossible to ascertain one, specific, monolithic understanding of property rights during this period. Though many of the American founders agreed (or more precisely, accepted) the opinions of their peers, there was wide disagreement as to the relationship between property rights and public policy, and even on so-called first principles. I shall illustrate this point by selecting specific examples found in many of the authoritative works that treat this subject.

Gordon Wood The Creation of the American Republic and the Radicalism of the American Revolution

Professor Wood has many valuable things to say in both of his seminal works, and his scholarship is unquestionably superior. Scholarship, however, does not conceal the fact that Professor Wood has sought to present specific, systematic, and authoritative definitions of property rights in the colonial and republican eras of American political history. Professor Wood does this without considering the diversity of opinion among the American founders vis-a-vis this subject, and like Jennifer Nedelsky, focuses instead on what is most prominent, that being the thought of James Madison, on this topic. In this confusion, it seems that implicit in Professor Woods thesis is a tacit acceptance of the fact that James Madisons (and many, but not all of the Federalists) views on property rights represented the summa of relevant political thought in this area. Only passing references are made to such important figures as Thomas Jefferson, and mention of disagreement among the American founders is even more scarce. In the end, this does make Professor Woods thesis believable, but it seems to fail to consider that American history is different from that of Rome.

Professor Wood is quick (and correct, I believe) to emphasise the importance of property in determining representation, and as a substitute for aristocracy. Where Professor Wood is premature, however, is in concluding, by the mere citation of language from the Essex Convention of 1778, that from a measure for determining the natural elite, property later was to become an interest in its own right, which he then posits against what he calls the traditional republican and Whig views on the matter. It is understandable why he reaches this conclusion, in light of his thesis, but substantively he fails to consider that Madison and Jefferson (not to mention John Locke) might not have considered the representation of persons and property in separate chambers of a legislature (as in the House of Representatives and the Senate) to represent merely an understanding of, or focus on interest, as opposed to the typical Whig view.

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When making his point, Professor Wood assumes that, since Americans began to openly discuss different factions in society and openly consider the aristocratic and democratic elements found in a society, Americans (and the American founders) had somehow rejected the traditional, unitary view of proprietary rights (as in the French sense of the word proprit). This represents a logical leap which I believe one should be loath to take. Simply because the American founders (and the demos) began to engage in a more enlightened, historical based inquiry on the nature of the best regime does not immediately translate into a rejection of person and property existing under one label.

Rather than considering that the Americans were somehow radical in their understanding of property, rights, and representation, one might consider how influenced the American founders were (Madison and Hamilton in particular) by ancient history. This does not escape Professor Woods attention, but it seems not to be applied to this section of his work. The fact is that, not only did the American founders consider Roman antiquity and the various modes and orders set down throughout the ages, but also the words of Montesquieu laid down in 1748. By dividing property into sub-categories, real property and the property one has in ones person, the American founders were simply following a maxim of good government In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalised themselves; and it is on this the duration and prosperity of democracy have ever depended. In following Montesquieus understanding of good government, Americans were becoming more sophisticated, rather than more radical; they were beginning to understand liberty better. To achieve a level of liberty among all citizens, those who possess the rights of persons, and those who possess the rights of property, Americans followed a path that was not similar to Lilburne and the Levellers, but one that echoed the common sense and historical perspective of Montesquieu. Americans were beginning to understand that,

In countries where they [the people] have no share in the government, we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state. The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire.

Property, for Professor Wood, was transformed from a means of finding a natural aristocracy to govern, to a separate interest in society. In reality, however, property underwent no evolution of this sort.

The American founders viewed wealth and property as legitimate ways to segregate the natural aristocracy. At the same time, it is clear from the primary sources that the rights of property and person were interests to be guarded in any good body politic. Professor Wood seems to be unwilling to realise that to assume the latter does not injustice to the former. Both ideas coexisted and became harmonised in the American mind. If this is the definition of radicalism, then so be it, but a more appropriate word for it might be synthesis. Finally, in addition to his assertions regarding a transformation of property, Professor Wood is incorrect in citing Blackstone as somehow differing from Madison. Nowhere in his Commentaries does Blackstone assert, or even suggest that, the interests of all property-holders [are] generally coincident with the interests of the people as a whole.

Considered as a whole, there is a great deal of evidence to support the fact that Professor Wood is making a highly unusual judgment. Considering the words of James Madison himself, one can see that there is no plausible evidence to conclude that the American founders (or the American people) wished to side with Lilburne and the Levellers (after all, they did not advocate a redistribution of property), as Professor Wood concludes. The American founders had only instituted a reasonable practice confirmed by history and experience, as James Madison states

The necessity of thus guarding the rights of property was for obvious reasons unattended to in the commencement of the Revolution. In all the Governments which were considered as beacons to republican Patriots & lawgivers the rights of persons were subjected to those of property. The poor were sacrificed to the rich. In the existing state of American population & American property the two classes of rights were so little discriminated that a provision for the rights of persons was supposed to include of itself those of property, and it was natural to infer from the tendency of republican laws, that these different interests would be more and more identified. Experience and investigation have however produced more correct ideas on this subject. It is now observed that in all populous countries, the smaller part only can be interested in preserving the rights of property.

These are not the words of an individual who wished to redefine republican theory; they are only the words of a man who understood that an explicit identification and embodiment of property in the American regime was necessary to avoid the chimerical schemes of individuals like Lilburne and the Levellers. These are not the words of Lilburne, but rather the words of Montesquieu and Hume passed through the medium of experience. Madisons statement represents a conscious move away from the idealism of the American Revolution in this respect--a conscientious avoidance of fortune--in favour of virtù. This quotation also illustrates the fact that Madison did not simply regard property as a means of finding the natural elite, but also a faculty worth protecting for other reasons.

Professor Wood also implies that the American founders and those who felt victimized by the actions of popular assemblies invented a new principle in their assertion that men surrendered their natural rights to property only in so far as the surrender promoted the welfare of the whole society or conformed to what were variously and ambiguously referred to as the eternal principles of social justice. This is not such a novel innovation. After all, Blackstone, to whom Professor Wood refers with authority, said himself that all laws respecting the property or natural rights of men must yield to public necessity and the general welfare. The ambiguous principles of eternal social justice, then, can be said to be the eternal principles of natural right. There is no conclusive evidence to support the claim that the American founders, or even many of the American people themselves were interested in defying the good sense of republican theorists.

James Madison was clearly a student of Blackstone when he penned his famous article, Property in the National Gazette, saying that property means that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual. He shows his indebtedness to Blackstone by placing his definition in quotation marks, as he should, because these precise words were used by Blackstone in the opening of his chapter treating property in his Commentaries. If we accept that James Madison considered Blackstones words to be authoritative, then at some point it might be useful to consider Blackstone himself.

Gordon Woods Radicalism of the American Revolution

In his Radicalism of the American Revolution, Professor Wood continues the theme developed in The Creation of the American Republic, namely the unique and radical nature of the American founding, politics, and day-to-day activities. While advocating a characterisation of a radical America in the Radicalism of the American Revolution, Professor Wood frequently departs from political theory to illustrate the typical Americans attitudes towards an array of political and economic matters. His most useful discussion of property and property rights occurs in his chapter on political economy, The Celebration of Commerce.

In this chapter, Professor Wood describes the increasing tendency of Americans, after the ratification of the Federal constitution, to wholeheartedly dedicate their efforts at commerce and industry. As Professor Wood recounts, the universal roar is Commerce! Despite the fact that his discussion on political economy takes a more empirical tone, there are theoretical implications of a celebration of commerce. In citing Henry Clays statement to the House of Representatives describing commerce, that, It is a passion as unconquerable as any with which nature has endowed us, and, You may attempt to regulate--you cannot destroy it., perhaps Professor Wood wishes that we remember the words of James Madison in Federalist No. 10, or the idea developed in his Creation of the American Republic that property was transformed from simply an instrumentality to determine the natural aristocracy, to an interest in its own right. While we have disagreed with Professor Wood as to the transformation of property into merely an interest, the important point here is that Madisons logic was having some resonance with members of the public (at least in 181), and with politicians such as Henry Clay. Henry Clays statement to the House of Representatives is, in fact, a concise statement of reality which informed James Madisons Federalist No. 10. It recognises that diversity in the faculties of men is the source of property, and that to destroy property (or commerce) means to destroy human nature, which is either impracticable, or tyrannical. The Federalist view (or, perhaps more properly the Madisonian view) was indeed a view of property and interest that had begun to gain currency in the early American republic.

After briefly considering the nascence of commerce in the American republic, Professor Wood immediately senses that something must have been wrong in colonial America. To justify this claim, Professor Wood cites skeptics of commercialism. In a similar fashion of The Creation of the American Republic, Professor Wood almost seems to suggest a psychological argument for his view of history. His logic proceeds thus unmitigated commerce and interest had destroyed the fabric of American society; it had destroyed the social bonds that men had previous to, and immediately after the American revolution. These social bonds might be described as family, trade, and faith, or they might be described as aristocratic pride, guild membership, and churchgoing. In any event, the preeminence of commerce in 1th century America cannot be taken as a fact itself, or as independent of a problem or crisis in the American soul. To explain this unique history, it is necessary to present the American people as secretly longing for something different, and to implicitly blame Federalism for its abandonment of republican principles and its promotion of interest over public spiritedness. Here, Professor Wood speculates once again that the historical manifestation of one set of circumstances must be related to the historical manifestation of another set of circumstance, and thus to the act of founding. It is impossible to dispute this apparent fact to those who give credence to historical, psychologically-grounded determinism, but it is also impossible to convince a skeptic that the phenomena of the destruction of social bonds, and the celebration of commerce are somehow causally related. To secure this emphatic point, Professor Wood even enlists the assistance of a New England minister in citing his words that, [Christianity is] the central attraction, which must supply the deficiency of political affinity and interest. Is it possible that the New England preacher Lyman Beecher was without interest himself, the passion which nature endowed every man?

As before, Professor Wood presents much that is valuable in terms of scholarship and research in his Pulitzer Prize-winning Radicalism of the American Revolution. Nevertheless, as in The Creation of the American Republic, he is quite reliant on historical dialectics to make his historical point. In The Creation of the American Republic, one is presented with the dialectic of property qua tool for ordering society, versus property qua interest. In his Radicalism of the American Revolution, Professor Wood presents the reader with a new dialectic, that of commerce and interest, versus political affinity. Implicit in both books is an assertion that the American founding somehow unwittingly unleashed these forces into the fabric of American society without appreciating the full consequences.

In appraising where my work might fit in relative to the works of Professor Wood, it is important for me to mention that my work will not be predicated on an explicit rejection of Professor Woods historical theories. Rather than being a reactionary piece, my work will seek to portray property qua tool for ordering society, property qua interest (or right), and commerce as discrete categories in the mind of the American founders. My work will seek to develop the various understandings of property prevalent at the time of the American founding, and immediately afterwards, as diverse teleologies from a single genesis. My work will seek not to exonerate the Americans of any particular charge being proffered against them, but rather to illustrate how, on the one hand, the American founders were aware of the different uses of property in the ordering of a regime; and on the other hand, how the American founders often differed significantly as to their definition and perceived role of property in the new American regime. It can be said, then, that my work will fit into Professor Woods works as a complement to his thorough research on the American founding and the works of the American founders, and that it will go beyond what Professor Woods works in that it will consider more thoroughly the diversity of the American founders opinions on the matter of property and property rights. My work will not be a rejection of Professor Woods thesis, so much as it will implicitly seek to reject the notion of a single founding consciousness prevailing among the American founders. My work will seek to portray the American founders as integral parts of their own theories on government, and will implicitly seek to explode the myth that the American founders were not discussing themselves as much as the demos when they asserted the obvious presence of the diversity of the faculties of men, and faction. Lastly, considering Professor Woods work, in the interest of historical scholarship my work will not psychologically, or dialecticaly attempt to offset certain ideas in the American founding with other ideas, or historical conclusions. My work will explore the history of the role of property in the American founding as a multi-faceted idea which changed, sometimes with the help of introspection and historical study, but more often because of different prevailing circumstances, and different actors controlling the mise en scene.

It may be useful here to explain what I consider to be the reason for a departure from the Revolutionary sentiments on property during the Founding era. Gordon Wood asserts that,

[T]he entire Revolution could be summed up by the radical transformation Americans made in their understanding of property. In classical republican thought, property, landed property in particular, was not some special interest needing representation or protection. Rather, property had been considered in proprietary terms as part of a persons identity and the source of his authority. Such proprietary property was regarded not as the product of ones labor or as a material asset to be bought and sold in the market but as a means of maintaining ones gentility and independence from the caprices of the market. ...[P]roprietary property was designed to protect its holders from external influence or corruption, to free them from the scramble of buying and selling, and to allow them to make impartial political judgments. But by making landed property merely another interest among all the other market interests to be promoted or protected, Kent and the other Federalists unwittingly stripped property of its older, sanctified, static meaning and turned it into a mere material possession or capital commodity.

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