The Communist Commons

There is a nexus of issues: property and ownership, land and Lockean rights, the Commons and enclosure, free range and fences. This has been a longtime interest of mine. It goes back to the enclosure movement in England. It led to tumultuous conflict in England and Ireland. This then set the stage for the issues in the American colonies that brought on revolution. The issues remain unsettled going into the 19th century.

There are many angles to this, but I would first offer some background. Traditional European society, as with other traditional societies, was built on various notions of shared land and shared rights. This was well established in the land known as the Commons and guaranteed as part of common law and the rights of commoners (what in the colonies came to be thought of as the rights of Englishmen), established by precedent which is to say centuries old tradition involving centuries of legal cases, going back to the early history of the “Charter of the Forest” and Quo Warranto.

In writing about Thomas Paine’s ‘radicalism’, I noted that it particularly “took shape with the Country Party, the “Country” referring to those areas where both the Commons survived the longest and radical politics began the earliest; the strongholds of the Diggers and Levellers, the Puritans and Quakers; the areas of the much older Celtic, Anglo-Saxon, and Scandinavian ancestries.” From another post that was even more scathing, it is made clear what are the consequences of the true radicalism of early capitalism in privatizing what was public: “The land enclosure movement shredded the social contract and upended the entire social order. It was the most brazen act of theft in English history. It was theft from the many to profit the few.”

This is how millions of English and Irish serfs were made landless and impoverished. In droves, they headed for the cities where many of them died of sickness and starvation. Others were imprisoned, hung, put into workhouses, or sent overseas as indentured servants. Yet more died along the way. Once they were inseparable from the land they lived on, but now their lives were cheapened and so their lives became brutal and short. The earliest indentured servants rarely lived long enough to see the end of their indenture. Those like Thomas Paine saw all of this firsthand and experienced some of it on a personal level.

This is the world out of which the American Revolution was fomented and a new nation founded. The issues themselves, however, remained unresolved. This should be unsurprising, considering Europeans had been fighting over these issues for millennia. Still, for most of history, there was a shared worldview. John Locke wrote about the right of land being based on who used it and improved upon it, but this was simply what most people took as common sense going back into the mists of the ancient world. Feudal serfs thought they had a right to the land that they and their ancestors had lived and worked on for centuries. Native Americans assumed the same thing. Yet Lockean land rights, without any sense of irony, was implemented as rhetoric to justify the theft of land.

Even so, the old worldview died slowly. The notion of private property is a modern invention. It remained a rather fuzzy social construct in the centuries immediately following the Enlightenment thinkers. This was particularly true in the American colonies and later on the frontier of the United States, as claims of land ownership were an endless point of contention. The same land might get sold multiple times. Plus, squatter’s rights had a Lockean basis. Use was the primary justification of ownership, not a legal document.

In early America, there was such vast tracts of uninhabited land. It was assumed that land was open to anyone’s use, unless clearly fenced in. Even if it was known who owned land, law initially made clear that others were free to hunt and forage on any land that wasn’t enclosed by a fence. Both humans and livestock ranged freely. It was the responsibility of owners to protect their property and crops from harm: “Livestock could range freely, and it was a farmer’s responsibility to fence in his crops and to fence out other people’s animals!” This was the origin of the open range for cattle that later on caused violent conflict in the Wild West when, like the wealthy elite back in England, ranchers enclosed public land with claims of private ownership. Barbed wire became the greatest weapon ever devised for use against the commons.

This struggle over land and rights was an issue early on. But the ancient context was already being forgotten. The traditional social order was meaningless in this modern liberal society where claims to rights were individualistic, not communal. Not long after the American Revolution, James Fenimore Cooper had inherited much family land. It apparently wasn’t being used by the property owner and, according to custom, the locals treated it as a public park. Cooper was offended at this act of trespass defended in the his neighbors making a Lockean-like claim of their use of the land. It wasn’t fenced in, as law required, to deny use by the public.

There was a simple reason for this early attitude toward land. It was an anti-aristocratic response to land accumulation. The purpose was to guarantee that no one could deny use of land that they weren’t using. This meant someone couldn’t buy up all the land in monopolistic fashion. Land had one purpose only in this worldview, in terms of its usefulness to humans. Basically, use it or lose it. And many people did lose their land according to such claims of use. That remains true to this day in US law. If a neighbor or the public uses your land for a certain period of time without your challenging their use, a legal claim can be made on it by those who have been using it. In many states, a squatter in a building can go through a legal process to make a claim of ownership.

The conflict involving Cooper and his neighbors was a minor skirmish in a larger battle. It only became a central concern with the large numbers of immigrants putting greater pressure on land ownership. This was exacerbated by conflicts with Native Americans, such as President Andrew Jackson’s forced removal of multiple tribes that had sought to gain legitimacy of legal rights to their land such as building houses and farming, along with assimilating to American culture. This act was the blatant betrayal of Lockean land rights and of the entire justification of law. These tribal members were free citizens of the United States who had both legal title and Lockean claim.

Tensions grew even worse after the Civil War. That was when settlers claiming land ownership came into conflict with both Native Americans and open range cowboys. Then as the railroads encroached, many squatters were kicked off their land, Lockean land rights be damned once again. Interestingly, Abraham Lincoln as a young lawyer worked for the railroad companies in kicking these poor people off their own land. As president, Lincoln wasn’t any kinder to the Native Americans, for the progress of capitalism superseded all quaint notions of rights and ownership.

Another point of conflict was Emancipation (see Ballots and Fence Rails by William McKee Evans). All of the freed blacks became a major problem for the racial order, not unlike how feudal serfs had to be dealt with when feudalism ended. Emancipation also caused disarray in relation to land and property. The Civil War decimated the South. In the process, a large number of Southerners were killed or displaced. There was no one to tell blacks what to do and so they went about living their own lives, squatting wherever they so pleased as long as it wasn’t occupied by anyone else. There was plenty of land for the taking.

This was intolerable to the white ruling class, despite it being entirely within the law. Fraudulent charges were brought against blacks with accusations of trespass, theft, and poaching. It was assumed that anything a black had couldn’t rightfully be theirs and so everything was taken from them, even property they had bought with money made with their own labor. Blacks were often forced off their land and made to return to their former plantations, now as sharecroppers… or else made into forced prison labor, since the law only made private and not public slavery illegal.

All of this led to property laws becoming more narrow and legalistic. Over time, further restrictions were placed on the public use of lands. The Depression Era was the last time when large numbers of Americans were able to live off of the commons. My mother’s family survived the Depression by hunting and foraging on public land and on open private land, as did millions of other Americans at that time. Yet conflicts still happen, such as the Bundy standoff where ranchers thinking they were cowboys in the Wild West pointed guns at federal agents over a disagreement about grazing rights on public lands. It’s amusing that these right-wingers, however misguided in their understanding of the situation, were fighting for the public right to the commons.

Pursuit of Happiness and Consent of the Governed

Conservatives prefer to see the American Revolution and Founding as part of a Lockean lineage. This would be true for some of the Founders, but not true for all. One Founder conservatives take as an example of a Lockean founder is Thomas Jefferson.

Many scholars have assumed a connection of Jefferson’s “Life, Liberty and the pursuit of Happiness” and Locke’s “life, liberty and estate”:

“Locke argued in his Two Treatises of Government that political society existed for the sake of protecting “property”, which he defined as a person’s “life, liberty, and estate”. In A Letter Concerning Toleration, he wrote that the magistrate’s power was limited to preserving a person’s “civil interest”, which he described as “life, liberty, health, and indolency of body; and the possession of outward things”. He declared in his Essay Concerning Human Understanding that “the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness”.”

Even if that were the case:

“According to those scholars who saw the root of Jefferson’s thought in Locke’s doctrine, Jefferson replaced “estate” with “the pursuit of happiness”, although this does not mean that Jefferson meant the “pursuit of happiness” to refer primarily or exclusively to property. Under such an assumption, the Declaration of Independence would declare that government existed primarily for the reasons Locke gave, and some have extended that line of thinking to support a conception of limited government.”

Besides, Jefferson wasn’t alone in his views:

“Benjamin Franklin was in agreement with Thomas Jefferson in downplaying protection of “property” as a goal of government. It is noted that Franklin found property to be a “creature of society” and thus, he believed that it should be taxed as a way to finance civil society.”

Furthermore, other scholars have offered and alternative interpretation:

“Garry Wills has argued that Jefferson did not take the phrase from Locke and that it was indeed meant to be a standard by which governments should be judged. Wills suggests Adam Ferguson as a good guide to what Jefferson had in mind:

“If, in reality, courage and a heart devoted to the good of mankind are the constituents of human felicity, the kindness which is done infers a happiness in the person from whom it proceeds, not in him on whom it is bestowed; and the greatest good which men possessed of fortitude and generosity can procure to their fellow creatures is a participation of this happy character. If this be the good of the individual, it is likewise that of mankind; and virtue no longer imposes a task by which we are obliged to bestow upon others that good from which we ourselves refrain; but supposes, in the highest degree, as possessed by ourselves, that state of felicity which we are required to promote in the world.”
—Adam Ferguson, An Essay on the History of Civil Society

“The 17th-century cleric and philosopher Richard Cumberland wrote that promoting the well-being of our fellow humans is essential to the “pursuit of our own happiness”. Locke never associated natural rights with happiness, but his philosophical opponent Gottfried Wilhelm Leibniz made such an association in the introduction to his Codex Iuris Gentium. William Wollaston’s The Religion of Nature Delineated describes the “truest definition” of “natural religion” as being “The pursuit of happiness by the practice of reason and truth”. An English translation of Jean-Jacques Burlamaqui’s Principles of Natural and Politic Law prepared in 1763 extolled the “noble pursuit” of “true and solid happiness” in the opening chapter discussing natural rights. Historian Jack Rakove posits Burlamaqui as the inspiration for Jefferson’s phrase.”

A more nuanced view is offered by Howard Schwartz in Liberty In America’s Founding Moment (Kindle Locations 485-506):

“I offer a different approach to the question of the Declaration’s position on rights, arguing that a key aspect of the Declaration’s meaning and function has been missed. Instead of asking whether the Declaration is Lockean or what literary documents are the source of its ideas, I will suggest that the Declaration’s position on natural rights and independence is much more equivocal than has been typically realized. The question about the source of Jefferson’s ideas is less relevant and interesting than the question of what position on rights was getting articulated. The answer to that question is more ambiguous than typically thought. And the equivocation is one part of the Declaration’s meaning and function. Indeed, one central purpose of the Declaration was to unite the colonies behind the decision to declare independence. As such, the Declaration had to evade and sidestep any disagreements about rights that might still have lingered. In this sense, the Declaration had to speak as if “debate had ended,” to use the words of Thomas Paine in Common Sense, when in fact on the matter of American rights, the debate had not completely ended and there remained some significant disagreements about the foundations of and nature of natural and American rights. Jefferson himself did not agree with the view endorsed by the First Continental Congress in 1774, though that constituted the official view endorsed by the Congress on behalf of the colonies. When Jefferson sat down to write the Declaration, he had to find words to unite those who otherwise had diverging views. On this interpretation of the situation, Jefferson’s brilliance was not only in his powerful rhetorical performance, but in finding an articulation of rights that would seemingly be amenable to as many parties as possible, including himself. In this sense, “all its authority rests then on the harmonizing sentiments of the day,” to use Jefferson’s own words, is a more profound and ironic interpretation than anyone has fully appreciated.21 If Jefferson’s Declaration of Independence captures the American Mind, then it does so in all the complexity and disagreement that characterized the “American Mind” at the time. There was arguably no single American Mind on the question of rights.22 And the Declaration was harmonizing a tradition that did in fact have divergent views and loose ends. This statement on rights would have to speak not just to those who endorsed the position of the First Congress, but also those who did not, including its author. This interpretation of the Declaration thus takes a position that both affirms and criticizes all of the various the positions in the debate. The Declaration does endorse natural rights language and a Lockean-like view but at the same time it exhibits some of ambivalence about natural rights and the way natural rights are linked up to American rights. It thus affirms that Locke’s ideas were in the air but also argues that these ideas were contested and doubted. The American foundation of rights was not a settled matter.”

As for Jefferson’s personal view, a fundamental right related to happiness had to do with consent. A government earned consent by ensuring the happiness of citizens. When that happiness abated, so did the requirement of consent. This puts “pursuit of Happiness” in a whole other context.