The battle for the preservation and advancement of liberty is a battle not against personalities but against opposing ideas. The French author Victor Hugo declared that “One resists the invasion of armies; one does not resist the invasion of ideas.” This is often rendered as, “More powerful than armies is an idea whose time has come.”

In the past ideas have had earthshaking consequences. They have determined the course of history.

The system of feudalism existed for a thousand years in large part because scholars, teachers, intellectuals, educators, clergymen, and politicians propagated feudalistic ideas. The notion “once a serf, always a serf” kept millions of people from ever questioning their station in life.

Under mercantilism, the widely accepted concept that the world’s wealth is fixed prompted men to take what they wanted from others in a long series of bloody wars.

The publication of Adam Smith’s The Wealth of Nations in 1776 is a landmark in the history of the power of ideas. As Smith’s message of free trade spread, political barriers to peaceful cooperation collapsed, and virtually the whole world decided to try freedom for a change.

Marx and the Marxists would have us believe that socialism is inevitable, that it will embrace the world as surely as the sun will rise in the east tomorrow. As long as men have free will (the power to choose right from wrong), however, nothing that involves this human volition can ever be inevitable! If socialism comes it will come because men choose to embrace its principles.

Socialism is an age-old failure, yet the socialist idea constitutes the chief threat to liberty today. As I see it, socialism can be broken into five ideas.

1. The Pass-a-Law Syndrome. Passing laws has become a national pastime. Business in trouble? Pass a law to give it public subsidies or restrict its freedom of action. Poverty? Pass a law to abolish it. Perhaps America needs a law against passing more laws.

Almost invariably a new law means: a) more taxes to finance its administration; b) additional government officials to regulate some heretofore unregulated aspect of life; and c) new penalties for violating the law. In brief, more laws mean more regimentation, more coercion. Let there be no doubt about what the word coercion means: force, plunder, compulsion, restraint. Synonyms for the verb form of the word are even more instructive: impel, exact, subject, conscript, extort, wring, pry, twist, dragoon, bludgeon, and squeeze.

When government begins to intervene in the free economy, bureaucrats and politicians spend most of their time undoing their own handiwork. To repair the damage of Provision A, they pass Provision B. Then they find that to repair Provision B, they need Provision C, and to undo C, they need D, and so on until the alphabet and our freedoms are exhausted.

The Pass-a-Law Syndrome is evidence of a misplaced faith in the political process, a reliance on force, which is anathema to a free society.

2. The Get-Something-from-Government Fantasy. Government by definition has nothing to distribute except what it first takes from people. Taxes are not donations.

In the welfare state this basic fact gets lost in the rush for special favors and giveaways. People speak of “government money” as if it were truly free.

One who is thinking of accepting something from government that he could not acquire voluntarily should ask, “From whose pocket is it coming? Am I being robbed to pay for this benefit or is government robbing someone else on my behalf?” Frequently the answer will be both.

The end result of this “fantasy” is that everyone in society has his hands in someone else’s pockets.

Everyone Else’s Problem

3. The Pass-the-Buck Psychosis. Recently a welfare recipient wrote her welfare office and demanded, “This is my sixth child. What are you going to do about it?”

An individual is victim to the Pass-the-Buck Psychosis when he abandons himself as the solver of his problems. He might say, “My problems are really not mine at all. They are society’s, and if society doesn’t solve them and solve them quickly, there’s going to be trouble!”

Socialism thrives on the shirking of responsibility. When men lose their spirit of independence and initiative, their confidence in themselves, they become clay in the hands of tyrants and despots.

4. The Know-It-All Affliction. Leonard Read, in The Free Market and Its Enemy, identified “know-it-allness” as a central feature of the socialist idea. The know-it-all is a meddler in the affairs of others. His attitude can be expressed in this way: “I know what’s best for you, but I’m not content to merely convince you of my rightness; I’d rather force you to adopt my ways.” The know-it-all evinces arrogance and a lack of tolerance for the great diversity among people.

In government the know-it-all refrain sounds like this: “If I didn’t think of it, then it can’t be done, and since it can’t be done, we must prevent anyone from trying.” A group of West Coast businessmen once ran into this snag when their request to operate barge service between the Pacific Northwest and Southern California was denied by the (now-defunct) Interstate Commerce Commission because the agency felt the group could not operate such a service profitably.

The miracle of the market is that when individuals are free to try, they can and do accomplish great things. Read’s well-known admonition that there should be “no man-concocted restraints against the release of creative energy” is a powerful rejection of the Know-It-All Affliction.

5. The Envy Obsession. Coveting the wealth and income of others has given rise to a sizable chunk of today’s socialist legislation. Envy is the fuel that runs the engine of redistribution. Surely, the many soak-the-rich schemes are rooted in envy and covetousness.

What happens when people are obsessed with envy? They blame those who are better off than themselves for their troubles. Society is fractured into classes and faction preys on faction. Civilizations have been known to crumble under the weight of envy and the disrespect for property it entails.

A common thread runs through these five socialist ideas. They all appeal to the darker side of man: the primitive, noncreative, slothful, dependent, demoralizing, unproductive, and destructive side of human nature. No society can long endure if its people practice such suicidal notions.

Consider the freedom philosophy. It is an uplifting, regenerative, motivating, creative, exciting philosophy. It appeals to and relies on the higher qualities of human nature such as self-reliance, personal responsibility, individual initiative, respect for property, and voluntary cooperation.

The outcome of the struggle between freedom and serfdom depends entirely on what percolates in the hearts and minds of men. At the present time the jury is still deliberating.

Locke’s fame rests on his Two Treatises of Government. Thanks to Peter Laslett’s introduction (1960), we know Locke wrote his First Treatise answering Sir Robert Filmer’s Patriarcha (1680) at a time when his Second Treatise was well underway. The Second Treatise defended (prospectively) the conservative revolution of 1688. Its argument owed much to a Calvinist political tradition in which certain political authorities oppose other authorities that are breaking the social compact. Seeking to justify government by consent regardless of historical specifics, Locke deployed a version of natural law.

The point of the rights adduced—labor-based property and so on—was to buttress an argument that the king could not (should not) expropriate English gentlemen–a rather meager result, unless of course all their rights eventually “trickle down” to the rest of us. To reach his goal Locke undermined the natural-law assumption that God gave the earth to men “in common.” First, Locke set up each individual as a self-owner, rightfully appropriating natural resources to sustain life. By “mixing” their labor with resources (land), individuals rightfully acquired property, provided enough was left for others: the famous “proviso.” (You could not, for example, grab all the acorns and then leave them to rot.) Next, he introduced money, an “invention” of civilized men, which can accumulate without “spoiling.” A monetized economy overcame the problem of “waste” (spoilage) and allowed men to build large estates through production, exchange, and purchase. The increased productivity of larger estates assured that enough was left for others (provided bare subsistence from wage labor is “enough”). Arguing from economies of scale, Locke built an apology for the land enclosures into his system (not to mention a kind of Lockean multiplier whereby enclosed lands yield 10 times the product of commons). Paying wages made other men’s efforts count as “mine” in appropriating property out of common resources (“The turfs my servant has cut,” and so on).

These market activities precede the creation of states. Since individuals’ personal “execution” of the natural law caused predictable problems, property holders created government through a social contract to provide impartial judicial services and common defense, putting their rights in trust. Accordingly, Locke held that property cannot (normally) be alienated even by conquest. Locke’s applied system was less obviously liberal. From the theoretical high ground we suddenly descend to actual English property holdings in the late seventeenth century, with Locke pretending they rest on individual labor and free exchange rather than on conquest and expropriation.

So far Locke appears to be an advanced Whig and founder of liberalism with a nice rationale for infrequent and minimally disruptive uprisings by a consensus of great landholders, gentry, merchant capitalists, and bankers, duly supported by respectable tradesmen, shopkeepers, and farmers who survived enclosure. These are “the people,” moderately and prudently redressing their grievances, even if (as Christopher Hill notes) Locke never actually defined who “the people” are. Americans took Locke fairly literally during our Revolution, and as a result his ideas sometimes seem the only American political tradition, as Louis Hartz complained.

Locke’s Problems

Since at least the eighteenth century, frustrated readers of Locke have “corrected” his system to purge it of apparently foreign elements. Some take Lockean rights as a starting point and move on (see Robert Nozick); others reject Locke’s system while extracting congenial points from it (Murray Rothbard). Truncated or not, Locke has left us some serious problems.

Social Contract. Whether seen as historical possibility or useful fiction, the social contract was always nebulous. The key perhaps was that something like a social contract “must have” happened, otherwise governments would not rest on voluntary consent. Further deductions from that premise would grind to a halt. Deductions were saved, but at a considerable cost in realism.

Mercantilism and Colonial Empire. As a political associate of the First Earl of Shaftesbury, Locke had access to the highest Whig circles. He was both a policymaker and theorist, serving as secretary to the Lords Proprietors of Carolina from 1668 to 1675 and writing (presumably with Shaftesbury) that peculiar neofeudal document Fundamental Constitutions of Carolina in 1669. He was a substantial stockholder in the slave-trading Royal African Company, and in 1696 we find him serving at the Board of Trade.

No stranger to mercantilism and colonial imperialism, Locke nevertheless argued that land is not rightly acquired by conquest unless it has been lying idle. This exception is extremely important, since Locke artfully fitted his “natural” right to property to English Protestant practices. Non-Europeans need not apply. Locke conceded that God had given land to mankind in common. On the other hand, the “industrious and rational” can—indeed must—prevent its being “wasted.” They can “mix” their labor with land to acquire it but must maximize the product. Anyone failing to maximize could rightfully be dispossessed—Indians in America, non-enclosing peasants at home. In effect, Locke promoted freedom for a minority of industrious Englishmen—a freedom to be paid for through constant growth premised in part on overseas empire. Like his successor Adam Smith, Locke favored relaxing the rules “within one part of the system” (as William Appleman Williams put it), which otherwise continued to require overseas expansion.

Locke and Slavery. For Locke slavery arises in a sort of social-theoretical Guantánamo. It was not part of any social contract but arose in “war,” private or public. In Locke’s view anyone who (in a state of nature) attacks another or steals his property “forfeits” all rights and becomes an “unnatural man” subject to death, outlawry, or enslavement in lieu of death. (Paragraph 19 of the Second Treatise wonderfully conflates defense with “war.”) Reject one step here, and the whole thing falls to the ground. (Locke’s reasoning nonetheless seems to inspire those war-prone libertarians who characterize the U.S. government’s enemies of the day as “pirates,” “common enemies of mankind,” and so on.)

This apparent “exception” to liberty hidden inside liberal State theory causes much interpretive anguish. Some writers see Locke as departing here from his real views. Others have him bending his theory to achieve a desired end. Still others believe Locke’s slavery doctrine reveals hidden premises in his system. Given Locke’s investments, it was perhaps convenient that he could accommodate slavery. His moves here involve some of his favorite hobby horses—aggression, forfeiture of rights, and enslavement.

Locke had labored to get around men’s “in-common” right to the earth and thought he had justified English gentlemen’s large estates. Looking abroad, however, he argued that some lands remained common, after all, owing to non-Europeans’ waste (failure to maximize). It seems a fair implication of the text that where such people resist European efforts to develop those “idle resources,” wars with them would be “just” and they might rightfully be enslaved if the conquerors forwent their “right” to kill them. In fairness, Locke never specifically said that “just wars” in West Africa accounted for the current supply of slaves, although Laslett believes Locke rationalized the matter thus.

Bastard Feudalism

Land and State. Why should anyone born after the imaginary social contract obey the current government? Here Locke’s claims about political obligation and consent reach their goal through what I shall call the Law of Conservation of Feudal Assumptions. As George Gale suggests, territoriality was Locke’s key (but hidden) premise: that is, civil society’s (the State’s) sovereign jurisdiction over a given territory to the exclusion of other States. But where has this come from? After adducing so many unlikely natural rights, Locke has suddenly become very conventional.

Now Locke might be describing a mere contract between neighboring property holders establishing a common defense agency (á la Murray Rothbard and Hans-Hermann Hoppe). In time this agency might assert a monopoly over “its” territory (the lands of its principals) and successfully march from Dominant Agency to minimal State (as in Nozick). Now the erstwhile agency would start commanding its former principals. But Locke took a shortcut and tied “Enjoyment of Land” to “a submission to the Government of the Country of which the land is part.” Civil society turns out to have a spatial dimension. All the “voluntary” consent Locke relied on to ground the social contract seems to vanish when he states that no one can withdraw himself and his lands from civil society. No secession here. He can of course emigrate, forfeiting his property.

State ownership of land has arrived, quite unexplained. One wonders what the State has “mixed” its labor with. Perhaps it has mixed its swords and cannon with another State’s soldiers or civilians. In any case, the social contract has somehow “annexed” individuals and their property to the community (State), and State control of land tenure becomes a chief means of enforcing obedience. So much then for all the “natural law” grounding of Locke’s system.

Naturalized immigrants have to pledge express allegiance. Native citizens are bound by the State’s not-so-hidden power to vacate their property titles. Further, the State is free to enclose outliers and renegades (and their lands) politically, without limit—no proviso here about leaving “enough” for others. Actual State practice has supplied Locke’s rules, leaving individual “owners” at the mercy of the State. Now Locke seems about as liberal—or as feudal—as William Blackstone.

Locke meant it when he described the “chief end” of government as “Preservation of Property.” But if the State is in some way the ultimate owner, the chief end now amounts to preserving the government’s claims—suggesting a modernized “bastard” feudalism, that is, feudalism without the advantages of the real thing: decentralization and reciprocal obligations. Like the Common Lawyers, Locke helped bridge the intellectual transition from one form of State to another. Accordingly, his liberalism is not in too much tension with his feudal recommendations for the Carolinas. Longstanding assumptions about (State) superiorities over land persist, while a modernizing State replaces feudal intermediaries.

Executive Liberalism. A closely related theme involves unknowably large emergency powers. Henry Parker, parliamentary propagandist in the Civil War (d. 1652), domesticated Machiavelli’s “reason of state” with all its unknown powers “outside” the law. Hobbes and Locke inherited this principle. Uniting a broad “Federative” (foreign affairs) power with ordinary executive power, Locke extended the executive’s arbitrary wartime capacities into domestic life. (On these matters, see Sheldon Wolin, “Democracy and the Welfare State,” Political Theory, November 1987.)

But Locke hardly bothered grounding this dual-use (“prerogative”) power and merely derived it from what men surrendered on becoming “one Body.” With men’s personal enforcement of the law ceded to the State, the king had a roving, “at-will” commission to do good at home or abroad. The king could suppress customary law to foster increased productivity (and thus greater State revenue) so as to outdistance his foreign rivals. Here is Locke the near-Hobbesian, employed by defenders of Lincoln’s executive dictatorship (“outside” or “beyond” the Constitution) and by latter-day “securitarians,” who dwell on eternally returning emergencies and national survival.

Seventeenth-Century “Natural Law” Swindles

How we got here on the high road of natural rights is an interesting tale. In it Locke is but one of many theorists who packed new content into the old shell of natural law in a kind of seventeenth-century Wrong Turn. The new international lawyers Suarez and Vitoria, seconded by Grotius, Locke, and others, asserted various unlikely “rights” belonging to natural individuals in hypothetical stateless societies. (I rely here on Richard Tuck, Brian Tierney, and Heinrich Rommen, among others.)

There were two jokes here. First, these “rights” derived from the observed behavior of States—such as Locke’s claim that someone has a “right” to kill his defeated enemy out of hand, and therefore may enslave him. Next, the theorists aggregated these State-like “individual rights”—private war-making, private death penalty, private enslavement—and gave them (back) to the State by way of imaginary general consent. Taken seriously, this “consent” bound actual persons even tighter, the gains being therefore rather murky. State practices were now justified by a collectivization of “rights” that individuals never had and which in the genuine, Christian natural-law tradition might never arise. Locke’s generously broad war powers—first private, then governmental—lead away from any serious just war theory toward total war.

These unhappy results hinge crucially on an explicit premise of the seventeenth-century “natural law” writers, namely, that promises must always be kept. (Hobbes claimed that even promises made under duress were valid; Locke disagreed.) “Will,” once expressed, supposedly provides full justification for both a contract and its enforcement. Skepticism seems warranted, especially regarding fictitious “contracts.” Justification, if we find it, will probably not be in some bare union of “wills” and nothing further.

The Devious Locke?

C. B. Macpherson remarked on the common “underestimate” of how much Locke subjected individuals to political power. He wondered why Locke’s landowner-State should have any jurisdiction over rural and town proletarians. The analogy that came to his mind involved merchant companies chartered by the king and empowered by sovereign bluster to use native labor (or imported slaves)—and land—wherever their enterprises took them. After all, if Locke’s property holders have created a real State—and on Locke’s account they have—they will use it. Once again Locke and imperial practice are not far apart, especially since Locke’s community (State), having eliminated law enforcement by individuals, does everything through legislation or prerogative. Here Locke’s model begins to approach legal positivism.

In Locke’s finished model a majority of qualified property owners controls the State, while the State commands each individually. Once more, property—considered as part of an imposed mechanical order—counts more than specific owners of naturally occurring property. And security of property requires obedience. It is not surprising that Locke took rather little interest in constitutional issues or bills of rights, despite his involvement in Shaftesbury’s revolutionary Whig projects.

It is the contrast with Thomas Hobbes that makes Locke seem a great liberal. True, he does give us some “outs” (very narrow ones), which Hobbes denies us. But with the Whig Oligarchs’ triumph in 1688, Locke’s ideas gave valuable rhetorical cover for newly entrenched interests. Soon enough they shifted over to simple Hobbesian practices buttressed with feudal-statist legalisms. (Enter Blackstone.)

In connecting Locke to colonialism, slavery, and more, the point is not to condemn him but to ask how much we want to owe him. (After all, Hobbes seems a better guide on how States actually operate and on what premises.) Anticipating the Thatcher-Reagan program of “free market and strong State,” Locke wanted an active imperial State, along with liberty for the right sort and their right to revolt if things went sour. The point is not that Locke “failed” to be an anarchist; it is that despite appearances, he did not make a case for genuinely limited government. He would, however, have made a wonderful contemporary Republican politician.

The first and probably the most important subsidy of history is land theft, by which peasant majorities were deprived of their just property rights and turned into tenants forced to pay rent based on the artificial “property” titles of state-privileged elites.

Of course, all such artificial titles not founded on appropriation by individual labor are completely illegitimate.

As Ludwig von Mises pointed out in Socialism, the normal functioning of the market never results in a state of affairs in which most of the land of a country is “owned” by a tiny class of absentee landlords and the peasant majority pay rent for the land they work. Wherever it is found, it is the result of past coercion and robbery.

Murray Rothbard, in The Ethics of Liberty, explained the injustice of feudal landlordism:

But suppose that centuries ago, Smith was tilling the soil and therefore legitimately owning the land; and then that Jones came along and settled down near Smith, claiming by use of coercion the title to Smith’s land, and extracting payment or “rent” from Smith for the privilege of continuing to till the soil. Suppose that now, centuries later, Smith’s descendants (or, for that matter, other unrelated families) are now tilling the soil, while Jones’s descendants, or those who purchased their claims, still continue to exact tribute from the modern tillers.Where is the true property right in such a case? It should be clear that here . . . we have a case of continuing aggression against the true owners—the true possessors—of the land, the tillers, or peasants, by the illegitimate owner, the man whose original and continuing claim to the land and its fruits has come from coercion and violence. Just as the original Jones was a continuing aggressor against the original Smith, so the modern peasants are being aggressed against by the modern holder of the Jones-derived land title. In this case of what we might call “feudalism” or “land monopoly,” the feudal or monopolist landlords have no legitimate claim to the property. The current “tenants,” or peasants, should be the absolute owners of their property, and, as in the case of slavery, the land titles should be transferred to the peasants, without compensation to the monopoly landlords.

So rather than defending all existing land titles in the name of the “sanctity of property” and protesting when some left-wing government institutes a land reform that transfers feudal land titles to the peasantry, Rothbard favored 1) dividing up Southern plantations and giving freed American slaves “forty acres and a mule,” and 2) transferring the latifundia from Latin American landed oligarchies to the peasants.

In the Old World, especially Britain (where the Industrial Revolution began), the expropriation of the peasant majority by a politically dominant landed oligarchy took place over several centuries in the late medieval and early modern period. It began with the enclosure of the open fields in the late Middle Ages. Under the Tudors, Church fiefdoms (especially monastic lands) were expropriated by the state and distributed among the landed aristocracy. The new “owners” evicted or rack-rented the peasants.

Expropriating from the Peasantry

The Restoration Parliament of the seventeenth century carried out a series of land “reforms” that abolished feudal land tenure altogether—but only upward. There were two ways Parliament could have abolished feudalism and reformed property. It might have treated the customary possessive rights of the peasantry as genuine title to property in the modern sense, and then abolished their rents. But what it actually did, instead, was to treat the artificial “property rights” of the landed aristocracy, in feudal legal theory, as real property rights in the modern sense; the landed classes were given full legal title, and the peasants were transformed into tenants at will with no customary restriction on the rents that could be charged. The most important component of this “reform” was the Statute of Frauds of 1677, which nullified rights of copyhold by making them unenforceable in royal courts.

Finally, the Parliamentary Enclosures of the eighteenth and early nineteenth century robbed the peasantry of their rights of common. The propertied classes of England saw the economic independence provided by the commons as a threat, first to an adequate supply of agricultural wage labor on the landed oligarchy’s own land, and later to an adequate supply of factory labor willing to work the long hours and low pay demanded by the owners. The literature of the propertied classes of the time was quite explicit on their motivation: the laboring classes would not work hard enough or cheaply enough so long as they had independent access to the means of subsistence. They had to be made as poor and hungry as possible so that they would be willing to accept work on whatever terms it was offered.

A version of the same phenomenon took place in the Third World. In European colonies where a large native peasantry already lived, states sometimes granted quasi-feudal titles to landed elites to collect rent from those already living on and cultivating the land; a good example is latifundismo, which prevails in Latin America to the present day. Another example is British East Africa. The most fertile 20 percent of Kenya was stolen by the colonial authorities, and the native peasantry evicted, so the land could be used for cash-crop farming by white settlers (using the labor of the evicted peasantry, of course, to work their own former land). As for those who remained on their own land, they were “encouraged” to enter the wage-labor market by a stiff poll tax that had to be paid in cash. Multiply these examples by a hundred and you get a bare hint of the sheer scale of robbery over the past 500 years.

Contrary to Mises’s rosy version of the Industrial Revolution in Human Action, factory owners were not innocent in all of this. Mises claimed that the capital investments on which the factory system was built came largely from hard-working and thrifty workmen who saved their own earnings as investment capital. In fact, however, they were junior partners of the landed elites, with much of their investment capital coming either from the Whig landed oligarchy or from the overseas fruits of mercantilism, slavery, and colonialism.

In addition, factory employers depended on harsh authoritarian measures by the government to keep labor under control and reduce its bargaining power. In England the Laws of Settlement acted as a sort of internal passport system, preventing workers from traveling outside the parish of their birth without government permission. Thus workers were prevented from “voting with their feet” in search of better-paying jobs. You might think this would have worked to the disadvantage of employers in underpopulated areas, like Manchester and other areas of the industrial north. But never fear: the state came to the employers’ rescue. Because workers were forbidden to migrate on their own in search of better pay, employers were freed from the necessity of offering high enough wages to attract free agents; instead, they were able to “hire” workers auctioned off by the parish Poor Law authorities on terms set by collusion between the authorities and employers.

Legalized Discrimination Against Laborers

The Combination Laws, which prevented workers from freely associating to bargain with employers, were enforced entirely by administrative law without any protections of common-law due process. And they were only enforced against combination by workers, not against combination by employers (such as blacklisting “troublemakers” and collusive setting of wages). The Riot Act (1714) and other police-state legislation during the Napoleonic Wars were used to stem the threat of domestic revolution, essentially turning the English working class into an occupied enemy population. Such legislation criminalized most forms of association.

Even fraternal associations for mutual aid, burial and sick benefits, and the like operated in the face of hostility from the state, according to historians of the friendly-society movement such as Bob James and Peter Gray. Under the terms of the Combination Act, friendly societies were subjected to close judicial supervision lest direct craft production be organized for barter among the unemployed, or the societies’ benefits cross the line and function as de facto unemployment insurance for striking workers. The Corresponding Societies Act, passed around the same time, prohibited all societies that administered secret oaths or were federated on a national scale.

So the Industrial Revolution was, in fact, built on a system of legal peonage in which employers were directly implicated. The form taken by the factory system surely reflects this history. In a Britain composed of peasant smallholders, with no restraints on free association, workers would have been free to mobilize their own properties as capital through mutual credit institutions. Absentee ownership and hierarchy would likely have been far, far less prevalent, and the factory system where it existed far less oppressive and authoritarian.

A similar process occurred in the colonization of settler societies like America and Australia, by which the colonial powers and their landed elites attempted to replicate feudal patterns of property ownership. In such colonies, the state preempted ownership of vacant land and restricted working people’s access to it. Sometimes they gave title to vacant land to privileged land speculators, who were able to charge rent to those who homesteaded it (the legitimate owners).

E. G. Wakefield, an early nineteenth-century British theorist of colonialism, advocated just such preemption on the same grounds that the propertied and employing classes of Britain had supported Enclosure: it was easier to hire labor on favorable terms to the employer. In England and America, he wrote:

In colonies, labourers for hire are scarce. The scarcity of labourers for hire is the universal complaint of colonies. It is the one cause, both of the high wages which put the colonial labourer at his ease, and of the exorbitant wages which sometimes harass the capitalist. . . .

Where land is cheap and all men are free, where every one who so pleases can obtain a piece of land for himself, not only is labour very dear, as respects the labourers’ share of the product, but the difficulty is to obtain combined labour at any price.

Consequently, “[f]ew, even of those whose lives are unusually long, can accumulate great masses of wealth.”

Wakefield’s disciple, Thomas Merivale, wrote of the “urgent desire for cheaper and more subservient labourers—for a class to whom the capitalist might dictate terms, instead of being dictated to by them.”

Land preemption was a major element of colonial policy in early American history. Gary Nash, in Class and Society in Early America, described land grants in colonial America comparable to those of William I in England after the Conquest. In New York, for example, the largest estates granted by the British colonial administration (after the New Netherlands was acquired in the Dutch Wars) ranged from the hundreds of thousands to over a million acres. Governors continued to grant tracts of land in the hundreds of thousands of acres to their favorites, well into the eighteenth century. Under Governor Fletcher, some three-quarters of available land was granted to 30 persons.

Albert Jay Nock, in Our Enemy, the State, argued that “from the time of the first colonial settlement to the present day, America has been regarded as a practically limitless field for speculation in rental values.” Many leading figures in the late colonial and early republican period were prominent investors in the great land companies, including George Washington in the Ohio, Mississippi, and Potomac Companies; Patrick Henry in the Yazoo Company; Benjamin Franklin in the Vandalia Company, and so forth.

In The Ethics of Liberty, Rothbard condemned such preemption (“land-engrossing, where arbitrary claims to virgin land are used to keep first-transformers out of that land”) on the same grounds that he criticized feudal landlordism. He called for voiding all current titles to vacant and unimproved land, and opening it up to free homesteading. In addition, in cases where current mortgage holders and landlords trace their title to state grants of land, the proper claim lies with those who first homesteaded the land, or their heirs and assigns.

The Homestead Act of 1862, an apparent exception to this general trend, was really just another illustration of it. The majority of land, rather than being claimed under the terms of the Homestead Act, was auctioned to the highest bidder. Even for land covered by the Act, according to Howard Zinn, the $200 fee was beyond the reach of many. As a result, much of the land was not homesteaded on Lockean principles at all, but initially went to speculators before being partitioned and resold to homesteaders. And compared to the 50 million acres covered by homestead legislation, 100 million acres were given away as railroad land grants during the Civil War—free of charge! In other words, the privileged classes got the gravy, and ordinary homesteaders got the bone.

Keeping the System Going

What I have described here are only the initial acts of coercion and robbery on which our existing form of industrial capitalism was founded. Of course it didn’t stop there. Once the system was up and running, it depended on the state’s ongoing efforts to maintain a legal structure of privilege, based on artificial property rights and artificial scarcity: enforcement of absentee titles to vacant and unimproved land; entry barriers for the banking industry to make credit artificially expensive and scarce; the artificial property rights of patent and copyright; and more. And starting in the late nineteenth century the modern form of corporate capitalism depended on even more massive state intervention: subsidies to long-distance shipping to make market areas and firm size artificially large; the cartelizing effects of patents and tariffs; regulatory cartelization; and entire industries and sectors of the economy either brought into existence or guaranteed a taxpayer-funded market by the post-1941 perpetual war economy.

Contrary to popular mythology, the New Deal was not a departure from some preexisting idyllic state of “laissez faire.” There never was anything remotely approaching laissez faire. Capitalism—that is, the existing historical system as it actually developed—has had very little to do with free markets and a great deal to do with robbery and coercion.

This is not to say that all avenues to economic advancement through independent entrepreneurship have been closed off. But it’s much more of an uphill struggle than it would be in a free market, and the field is unfairly tilted in favor of the big players.

In seeking to institute a genuine free market, libertarians shouldn’t lose sight of these facts. What lessons are libertarians to learn from the previous historical account?

First, there is nothing “libertarian” about the instinctive tendency to rally to the defense of existing property titles without regard to justice. As Karl Hess said in The Libertarian Forum, back in 1969,

[L]ibertarianism wants to advance principles of property but . . . it in no way wishes to defend. . . all property which now is called private. Much of that property is stolen. Much is of dubious title. All of it is deeply intertwined with an immoral, coercive state system which has condoned, built on, and profited from slavery; has expanded through and exploited a brutal and aggressive imperial and colonial foreign policy, and continues to hold the people in a roughly serf-master relationship to political-economic power concentrations.

Second, in advocating free-market reform, we must consider the role of this historical legacy of injustice (the subsidy of history) in determining the winners under the present system. A “free-market reform” that simply locks in the beneficiaries of past robbery and privilege, and ratifies the past theft from which they benefit, will merely reward injustice and secure its ill-gotten gains.

From a libertarian ethical standpoint, the standard model of “privatization” (selling off state property to a large, politically connected private corporation, on terms most advantageous to the corporation) is therefore highly dubious. That’s especially true considering that much of the property was created in the first place—at taxpayer expense—for the primary purpose of subsidizing the operating costs of big business. Much of the state-owned utility and transportation infrastructure in the Third World was created, at the behest of transnational financial elites, as a precondition for profitable Western capital investment. And the odious debt thus incurred, often by corrupt dictatorships acting in collusion with global finance, is then used by the World Bank to blackmail those countries into selling off their infrastructure to the very same transnational corporations it was created to benefit—usually at pennies on the dollar.

An Appropriate Model for Privatization

Rothbard’s model of privatization is far superior: to void state titles to property and treat it as unowned, subject to immediate homesteading by those actually mixing their labor with it. That would mean that state universities would be transformed into the property of their students or faculty, as consumer or producer cooperatives. Government-owned utilities would become consumer cooperatives owned by ratepayers, and state-owned factories would be handed over to the work force and reorganized as worker cooperatives.

We must also be wary of pseudo-Coasean arguments that it “doesn’t matter” who the property was originally stolen from, because it will end up in the hands of the “most efficient” owner. That’s essentially the same argument used for eminent domain. Regardless of whose hands the property winds up in, the rightful owners and their descendants—who never received compensation—are out the value of what was stolen from them. And even the most inefficient ways of organizing production are pretty “efficient,” comparatively speaking, when you have the competitive advantage of working with stolen property.

Besides, there is no such thing as generic “efficiency”; efficiency depends on the owner’s purpose. The most efficient technique for subsistence farming on a small plot—economizing on land by building soil and adding intensive labor inputs—is entirely different from that for a feudal oligarch producing cash crops with access to more stolen land than he could possibly use, and often holding a majority of his stolen land out of use altogether. In any case, the rightful owner would no doubt find it far more “efficient” to be feeding himself on his own land, than starving in a shantytown because he can’t afford to buy even the cheapest food from those “efficient” plantations occupying his stolen land.

The actual system of political economy that so many corporate apologists refer to as “our free market system” has in fact been characterized from the beginning by robbery. We must beware of “free market reforms” carried out by the robbers. They amount in practice to allowing the robbers—hands still full of loot—to say: “All right, no more stealing, starting . . . now!”

One of the most enduring myths of the pre-European Americas is that the cultures were a kind of property-less Eden, in which various peoples existed in harmony with one another and with nature. Even a brief survey of the major pre-Columbian civilizations of the Inca, Aztec, Maya, and North American tribes quickly demonstrates that such a view neglects well-established customs that included recognizable forms of property in scarce resources, from weapons to hunting territories, as well as conflicts among tribes and other groups over control of territories.

Native Americans encountering Europeans may have been unfamiliar with their particular forms of property ownership, but such unfamiliarity did not long survive extended contact between Europeans and Native Americans. In part these differences were the result of the differences between Europe and the Americas. For example, Europe was more crowded than the eastern seaboard of North America, and so land was scarce. Population estimates of the pre-contact populations vary wildly, but it seems clear that even the highest estimates put the population density well below contemporary European levels. As a result, land was more abundant than it was in Europe, so its allocation was less likely to be worth the effort to make boundaries and claims precise. But the scarce resources in any particular area, such as good hunting grounds, were the subject of property rights.

In short, many if not all of the pre-contact residents had their own well-developed systems of property rights before the arrival of Europeans. Those property rights evolved in response to European contact, with new rights delineated as trade with the Europeans made previously undelineated rights valuable. Harold Demsetz’s classic 1967 article, “Toward a Theory of Property Rights,” for example, showed how rights to beaver pelts developed among North American tribes in response to the European demand for fur.

The Europeans added a wide range of ideas about property to the mix. The European feudal tradition made property contingent on grants from the monarch. Vassals held their land, known as a “feud,” on condition of providing service and homage to the lord above him. William the Conqueror brought feudalism to England, redistributing English estates to his supporters in 1066. (Nine of these received almost all the land in England.) The king could reclaim his property if the feudal tenant failed to comply with his obligation, committed treason, or died. In some parts of Europe this absolutist conception of property rights as dependent on the state survived relatively unchallenged. In Property and Freedom historian Richard Pipes ties the lack of political and economic liberty in tsarist Russia to the weakness of property rights in that society.

A second tradition, more friendly to liberty, also existed in Europe, one which saw property as independent of the monarchy and the state. Particularly in England, but also among groups of thinkers ranging from the Spanish Scholastics to those in the Dutch Republic, many Europeans saw property as a natural right. While Americans are most familiar with John Locke’s statement of this argument in his Second Treatise, continental writers including Hugo Grotius and Samuel Pufendorf also developed influential natural-rights theories of property. Among the colonies in America this idea took strongest root in the North American English colonies. In particular, the Puritans argued that land was held not of the king but as a gift from God alone. As a result, the owners of these “allodial” (the opposite of feudal) land holdings owed no service to any lord.

American colonists from Britain brought with them both this natural-rights heritage and a significant set of common-law principles dealing with property in general and property in land in particular. In his 1765 essay “A Dissertation on the Canon and Feudal Law,” for example, John Adams argued that American land titles were not feudal. And Thomas Jefferson, in his 1774 instructions to the Virginia delegation to the Continental Congress, “A Summary View of the Rights of British America,” went even further, linking the colonists’ allodial titles to Americans’ “Saxon ancestors” who had held their land “in absolute dominion . . . disencumbered with any superior.” For Jefferson and many others, the Norman Conquest had produced only a temporary exception to the English tradition of liberty and allodial ownership rather than a permanent reduction in rights.

Further, even with respect to the feudal institutions introduced by William the Conqueror, British land law had evolved—and the point that it evolved rather than developing through pronouncements from on high is important—into a complex set of arrangements that enabled individuals to engage in a wide range of property transactions. Land originally held “of” the king and transferred from generation to generation only by the king’s grace became a commodity that the owner could sell and leave to his heirs without permission of the Crown. By the 1700s the evolution of English property toward more marketable forms had reached the point that the idea of an individual having a freehold estate in land independent of the government was both philosophically well grounded in natural law and practically established in property law.

Evolution Was Not Inevitable

How did English property law come to evolve in this direction? There was nothing inevitable about an evolution toward property rights, as Russia demonstrates. Pipes has documented how Russian property rights withered under the sustained assault of the tsarist autocracy, leaving Russians dependent on the central government’s forbearance rather than independent of the state.

There was no grand liberal design by the English aristocracy behind the evolution of property rights in England. Rather, two factors appear critical. First, the English crown was relatively poor and so dependent on the aristocracy for regular support. Even successful English monarchs like Elizabeth I struggled for funds. Elizabeth, for example, left her successor, James I, a virtually empty treasury containing only £200 and 3,000 dresses. Crucially, it was not England that was short of resources but the monarchy. Indeed, James, coming from impoverished Scotland, termed his arrival in England “a Christmas time” because of the far greater wealth he found there. This dependence forced even absolutist English monarchs such as the Stuarts to summon Parliaments and to regularly concede power to them simply to obtain the resources necessary to rule.

Second, England had a competitive system of courts. Multiple jurisdictions existed, including common-law and equity courts, merchant courts, and canon-law courts, each seeking business from litigants. This competition bred independence, giving litigants a fairer chance against the Crown in litigation than in many other European states. Further, the competition among courts allowed lawyers opportunities to develop tactics that brought their clients greater security of property rights. Indeed, legal historians agree that the primary focus of medieval common law was land law, what William Camden, a Stuart-period historian, summed up, saying, “[T]he declaring of the meum and tuum [mine and thine] . . . is the very object of the laws of England.”

The result of this combination was supremacy of law. Parliament, courts, and lawyers regularly pushed the boundaries of royal power back, expanding liberty by protecting property rights in the pursuit of the resolution of private conflicts. The monarchy’s need for cash forced England’s kings and queens to repeatedly acquiesce in limits on their power. In both cases, because land was the key form of wealth, the result was strengthening of property rights and steady evolution toward higher estates.

The highest estate, and the form in which American land came to be held almost universally, was the fee simple. It included rights we often take for granted today but that were hard-won rights of Englishmen: the descent of land to the heir without reversion to the state, perpetual tenure, complete freedom to transfer by contract or will, the ability to change the use of the property, and freedom from “incidents uncertain,” making the state of title known at the time of transfer. The ultimate result was, as Jonathan Hughes has written, to turn the American understanding of property “inside and out” by making property rights so complete that the Fifth Amendment did not even bother to specify the content of the rights it guaranteed.

Of course, Europeans brought not only natural-law justifications of property rights but also philosophical critiques of them. Both the Jamestown colonists and the Plymouth colonists initially attempted to hold property in common. In Jamestown land was to be held and managed collectively and each colonist was to receive an equal share of the colony’s production regardless of his contribution. Two-thirds of the initial 104 colonists died of starvation and disease before the first winter, and the population, after soaring as hundreds of new colonists arrived from England, plummeted to 60 after the winter of 1609. When Governor Thomas Dale visited the colony in 1611 he found living skeletons bowling in the streets while fields went untended. After Dale partially converted the communal lands to individual three-acre tracts in 1614, productivity increased seven-fold. The remainder of the communal land was privatized by 1617.

Similarly, the Plymouth colonists began in 1620 with communal land and were near starvation when land was privatized in 1623. As William Bradford noted, the change “made all hands very industrious, so as much more corn was planted than otherwise would have been.” Taken together, natural-rights theories, legal doctrines, and practical experience combined to give the American colonists a strong sense of the role of private property rights in ensuring their survival and prosperity.

Competing Claims to Property

The problem of establishing property rights in the New World rested not only on the relationship between individual and monarch but also on the relationship between monarchs. As Europeans began exploring the continent, competing claims to property in the Americas quickly appeared. Not only did various Native American tribes hold claims to different areas (and sometimes more than one had a claim to a particular area), but the European monarchs had conflicting claims to various territories. Individual European settlers also began to assert claims based on both the fact of their settlement or their own contracts with native peoples. Desiring to avoid conflicts over the new territories, the European powers reached an accord dividing much of the Americas among them. Spain and Portugal negotiated a partition of territory (based on a division by Pope Alexander VI). European powers more generally recognized a rule of discovery, granting to the European power that first found a new land the right to determine how to acquire the territory from the native inhabitants, whether by conquest or contract. The implementation of this principle varied from country to country. Britain generally prohibited individuals from making their own bargains with the native peoples, while France permitted such bargains.

Despite the claim to rights based on discovery, British colonists often acquired land by contract. For example, almost all of Massachusetts was acquired by purchase from local tribes. The primary exceptions there, Salem and Boston, were uninhabited areas, having been depopulated earlier by the diseases the colonists unwittingly brought with them. Although the British crown claimed the sole right to negotiate transfer of land rights from the Native Americans, many colonists thought otherwise and regularly made individual arrangements with various tribes to secure land. Such contracts led to one of the seminal cases in American land law, Johnson v. M’Intosh, an 1823 Supreme Court opinion by Chief Justice John Marshall that is still a foundation stone of law-school property classes. Although Marshall unfortunately sided with the state over the individual in that case, the principle of self-initiated land transactions proved hard to eradicate and continued as a means of establishing private property rights well into the nineteenth century as the frontier moved westward.

As noted, while European settlers brought their ideas about property to America, they also encountered something new here: vast tracts of fertile land. To acquire a parcel, one needed only to head west past the settled edge, find a desirable spot, possibly contract with a local tribe, and then build a farm. Instead of Europe’s scarcity, America offered abundance. In 1800 an English laborer had to spend a third of his income to rent ten acres, while an American farm laborer could rent the same amount with only 1 percent of his income.

This abundance was not costless even if no cash had to change hands. Property-law casebooks used in the first year of law school often begin with a quote from John Locke’s Second Treatise—“In the beginning all the world was America”—most often as a way of introducing the question of how property rights are initially established. However, Locke’s point was not that America was unowned but that property’s value depended on there being a means of storing value to encourage trade. In a world without money, he asked, what value would there be even for the best land? “[W]hat would a man value ten thousand, or an hundred thousand acres of excellent land, ready cultivated, and well stocked too with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the enclosing, and we should see him give up again to the wild common of nature, whatever was more than would supply the conveniencies of life to be had there for him and his family.”

Only then did Locke say, “Thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known. Find out something that hath the use and value of money amongst his neighbors, you shall see the same man will begin presently to enlarge his possessions.”

Locke’s grasp of Native American societies was questionable, for as noted earlier there is ample evidence that Indians had both well-developed property systems and measures of value. However, his central point that property was valuable only to the extent it was embedded in a market economy, where the goods produced on it could be exchanged for other goods, is critical to understanding the role of property in the economy.

The economic impact of secure property rights comes about because property makes possible positive-sum transactions between individuals. Those who own property will hire labor from those who do not, enriching both parties through trade. Likewise someone with property suited to growing apples will exchange with another whose property is suited for growing corn and is likely to do so on the property of a third person that is situated at a convenient crossroads between the apple orchard and cornfield.

Land’s abundance in America also offered an important limit on the power of government. Fixed assets such as land have traditionally been vulnerable to expropriation and confiscatory taxation because it is hard
for their owners to escape the state’s grasp. In colonial America, excessive taxes could be readily evaded by moving west. Because property owners could move more readily than they could in Europe, American governments were constrained in their ability to tax.

America’s vastness also offered enormous opportunities for land speculation. In Our Enemy, The State, libertarian writer Albert Jay Nock wrote that “land-speculation may be put down as the first major industry established in colonial America.” While speculation can serve an entrepreneurial role, rewarding those who see possibilities in undeveloped land, it can also all too often become yet another exercise in political rent-seeking. Unfortunately, in many cases, land speculators in the New World were able to turn to governments to gain access to land resources or to locate valuable state institutions in such a way as to increase the value of their lands.

Property on the Frontier

English property concepts and law thus survived their transplant to American soil. Indeed they did more than survive; they thrived. As settlers pushed further west into new territories, they were faced with the problem of establishing property rights far from “civilization.” They did so repeatedly, expanding first the colonies and ultimately the United States westward, as Jonathan Hughes put it, cutting settlements “into the wilderness primarily by privately motivated frontiersmen making small family farms acquired by purchase or homesteading.”

After the Revolution, the new federal government faced the problem of determining how to govern the western territories the states ceded to it. Although it took until after the War of 1812 to finally settle all the U.S. land claims with Britain, even before then, American territory was advancing through the 1803 Louisiana Purchase.

Jefferson devised a system for the new lands, embodied first in the Ordinance of 1784 and then in the Northwest Ordinance of 1787. Not only did the ordinance create the mechanism by which territories could become states, it also explicitly guaranteed property rights. Following English law, the Northwest Ordinance provided for intergenerational land transfers both by will and by contract, with provisions that took into account the frontier difficulties in registering deeds with distant officials. The Ordinance also promised “the utmost good faith” toward the Indians, including within that term “that their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress. . . .”

Like many other aspirations of the new nation, the Northwest Ordinance’s promises of fair treatment for Native Americans were ultimately unfulfilled, and the division of land in the Northwest Territory had its share of fraud and corruption. Ultimately, however, the combination of European notions of natural rights, the transformed and transplanted English common law of property, and American conditions led to the land’s distribution into private hands with secure titles, forming the basis for the expansion of a free society westward.

When the modern Peruvian economist Hernando de Soto set out to discover why some nations were rich and some were poor, he found that the legal and economic experts he consulted could not satisfactorily explain the success of the West. One reason, he determined, was what he termed the “missing lessons of U.S. history.” These lessons are not simply American, however, but universal lessons from history. What de Soto discovered was that the experts had failed to recognize the centrality of secure property rights in the development of the United States and the West in general. Rather, they mistakenly believed that prosperity grew out of the thicket of regulations and rules that exist today. Recapturing those missing lessons is important if we are to avoid inadvertently destroying the foundations of our freedom and prosperity. What then are the lessons of the colonial experience with property rights?

The first is simple: property matters. The second is the power of ideas. Property rights derived from British law and natural-rights philosophy developed into stronger, more effective guarantees of liberty over time. First in Britain and then in America, ideas introduced into the law evolved beyond their original, limited scope. Though gradual, this expansion of property rights ultimately produced a significant force for liberty.

Third, institutions that facilitate positive-sum transactions flourish. Such institutions produce peaceful and prosperous societies, a combination that is no accident. Property rights instantiate no particular vision of how property is to be used, leaving that to individual property owners to determine through voluntary transactions and so reducing social conflict over resources. Individual ownership in turn creates a powerful incentive for entrepreneurs who, envisioning a new, more valuable use for a piece of property, may purchase it and realize the gain. Change occurs peacefully in such circumstances because it is a byproduct of trade rather than the result of the decision of an autocrat. That peace and prosperity flow from property is the ultimate lesson, one that too few remember today.

The Delenes are not alone. Indeed, across the nation individuals and families are discovering that the lands they thought were their own are only thews in trust. To make use of the land requires obtaining permission from federal, state, or local authorities, and sometimes all three. The right to make private use of private land can be taken by the government, and rarely does the state have to make the owner whole. It is as if the land is actually owned by the state, and not those who possess it. It is the modern equivalent of feudalism.

Americans are increasingly unhappy with this state of affairs, and hence this book. There is a growing rebellion against the wanton violation of property rights, and Bruce Yandle has put together a valuable volume to chronicle its development and explain its roots. Land Rights is the first reference book for the property rights movement.

The book has nine chapters, each by a different author. The contributions cover the legal history of property rights litigation, important Supreme Court cases, and political developments at the state and local level. A chapter each is devoted to the Endangered Species Act and the wetlands provisions of the Clean Water Act—the two laws under which the greatest property rights violations occur. There is even a chapter that explains how current environmental laws have come to approximate federal land-use planning of the sort explicitly rejected in the 1970s. Land Rights covers the gamut of issues relating to the property rights rebellion, and explains why property rights have become such an important political issue.

Most federal affronts to private property are the result of environmental legislation. Environmental laws, such as the two mentioned above, are premised on the idea that only government agencies can act in defense of environmental quality. Fortunately Yandle has included a chapter by Roger Meiners that spells out a property-based alternative that is grounded in the common law tradition. As Meiners points out, what is now often considered environmental protection was once considered the protection of private property from outside assaults. Rights were vindicated not due to the watchful eye of agency bureaucrats. Rather property rights enable individuals, families, and communities to vindicate their cases in court. So long as courts upheld this approach, potential polluters were forewarned about the economic repercussions of violating the property rights of others. It was a superior system that has fallen out of favor.

Americans believe in private property; majorities polled want them to receive far more protection. Land Rights helps one understand why property rights are an issue, and why they are so important. In the words of Noah Webster, “Let the people have property and they will have power that will forever be exerted to prevent the restriction of the press, the abolition of trial by jury, or the abridgement of any other privilege.”

Jonathan Adler is director of environmental studies at the Competitive Enterprise Institute in Washington, D.C., and the author of Environmentalism at the Crossroads: Green Activism in America (Capital Research Center).