Bloomberg – by Andro Linklater
The 102 Pilgrims who sailed to the New World in 1620 were destined to be communists. Under the terms of their agreement with the Plymouth company, they were to work communally for the first seven years, ‘‘during which time, all profits & benefits that are got by trade, traffick, trucking, working, fishing or any other means … remaine still in ye comone stock.’’ After that time the proceeds would be shared with the investors in England.
The arrangement was particularly welcome to the tightly knit core of migrants united by the common experience of persecution by the Church of England. Their chief spokesman, Robert Cushman, condemned personal greed as ungodly, and pointed to the better example of the early Christian societies where property had been held ‘‘in common.’’
Arriving late in the year, they spent most of the first bitter winter living aboard ship, but when the 53 hardy souls who survived the disease that raged through the Mayflower dragged their weary bodies onshore in the springtime, the hard business of farming for the common good aroused little enthusiasm. ‘‘The young men, that were most able and fit for labour and service, did repine that they should spend their time and strength to work for other men’s wives and children without any recompense,’’ William Bradford, their future governor, wrote. Only repeated whipping kept them at work.
Work Argument
A rift opened between those who thought it an injustice that a hard worker should receive no more food than a feeble one and those, like Cushman, who denounced anyone who worshipped the ‘‘belly-god’’ of selfishness instead of seeking ‘‘the good, the wealthe, the profit, of others.’’
This was not anticipated by the merchants of London and Plymouth who invested in the company. They had expected the settlement to operate as a trading post, acquiring salt cod and beaver skins for sale in Britain. The desire for religious freedom was what drove the tiny band of separatist Puritans to accept the contract to be shipped across the Atlantic. Neither side thought the ownership of land to be of any importance.
Beset by quarrels and threatened by starvation, the colony struggled on until the spring of 1623. With a new planting season at hand, the majority decided to change the company rules. They persuaded the governor that ‘‘they should set corn every man for his own particular, and in that regard trust to themselves,’’ Bradford noted in his history of the Plymouth colony. And so each family was assigned a parcel of land ‘‘according to the proportion of their number.’’
This decision, Bradford added, ‘‘had very good success for it made all hands very industrious.’’
Smaller matters had been debated and resolved before, but that this, the first major democratic decision taken on American soil, should have been in favor of individual ownership carried a symbolism that echoes down the centuries.
The failed experiment in communal ownership convinced Bradford that it was contrary to human nature. Yet he found that the new regime came at a cost. ‘‘And no man now thought he could live except he had catle and a great deale of ground to keep them all,’’ he observed sadly, ‘‘all striving to increase their stocks. By which means they were scattered all over the bay quickly and the towne in which they lived compactly till now was left very thinne.’’
Ownership Impossible
Among many settled animist cultures, including the Wampanaog people on whose land the Pilgrims had come to live, parcels of ground could be used and occupied by individual families, even passed on to the next generation, often from mothers to daughters, but exclusive ownership was impossible. Massasoit, a Wampanaog leader who befriended later settlers, used an analogy common in such cultures to explain why: ‘‘The land is our mother,’’ he said, ‘‘nourishing all her children, beasts, birds, fish, and all men. The woods, the streams, everything on it belongs to everybody and is for the use of all. How can one man say it belongs only to him?’’
A similar belief that people could use but not possess the earth held good under Judaic law, springing from Yahweh’s commandment in the book of Leviticus that ‘‘the land is mine’’ and that mortals, as mere ‘‘strangers and sojourners,’’ were unable to own it. Islam adopted the same view, incorporating it into Shariah. Even in cultures where land could be owned in secular terms, it belonged to the human ruler, the monarch, emperor or khan, who represented divine power on earth.
The feudal system in Christian Europe understood the contract between lord and tenant to be part of a chain of mutual obligation leading through the chief barons to the king, who granted them use of the territory he ruled by the grace of God.
Thus a relationship with the earth that began as a spiritual connection ended as a contract on which constitutional authority ultimately rested.
The experience of the Plymouth colony played heavily on the minds of the 700 Puritans who assembled in Southampton in March 1630 to take ship to Massachusetts Bay. Many, including their governor, John Winthrop, had left comfortable homes that were furnished with fireplaces and private bedrooms and surrounded by enclosed fields. They were under no illusions about the hard conditions ahead.
The original Pilgrims had had nothing to lose, but those in the second wave were giving up security and worldly achievement. They had a pressing need to know that braving the dangers and harsh climate would win them the freedom not only to worship as Puritans but also to live in a new English society where land could be individually owned. The question was whether a concept recognized by English common law could exist in the American wilderness.
Natural Right
To reassure them, Winthrop put forward a revolutionary proposal, usually ascribed to John Locke half a century later. In a pamphlet published in 1629, he argued that private ownership of the earth did not depend upon the law, but was created by human toil. He constructed this novel explanation by weaving together Puritan doctrines and the pragmatic outlook of the enclosers. ‘‘God has given to the sonnes of men a double right to the earth,’’ Winthrop declared, ‘‘a natural right, and a Civill Right.’’
Winthrop was breaking new ground when he asserted that the purely English civil or legal right to own land as private property came about when men enclosed and improved that land. The natural right was established by use and occupancy.
It must have seemed a convincing argument to readers who had heard from their grandparents firsthand accounts of the way enclosure had enabled common ground to be converted into legally recognized property. And few would have quarreled with Winthrop’s conclusion: ‘‘As for the Natives of New England they inclose noe land neither have any settled habitation nor any tame cattle to improve the land by, & soe have noe other but a natural right to those countries. Soe as if we leave them sufficient for their use wee may lawfully take the rest, ther being more than enough for them & us.’’
Yet because Puritans were guided by conscience in such matters, they sought their ultimate authority not in the law but in the Bible. As they waited in Southampton before sailing to America, they heard a sermon from the Reverend John Cotton that gave private property the biblical backing they needed to hear.
Cotton’s sermon was based on a passage in the book of Genesis about Abraham’s search for a place to settle among the Philistines. When he was prevented from using a well he had dug in the dry land of Beersheba, Abraham appealed to the Philistine king, Abimelech, claiming that he had the right to draw water because he was the person who had sunk the well. In Cotton’s sermon, however, Abraham also made a specific claim of individual ownership, based on ‘‘his owne industry and culture in digging the well.” In other words, there was biblical evidence to reassure the new Americans that their right to individually owned, landed property depended on their own efforts in improving the ground, and not on English law.
If property was created by individual effort, and not just by the king’s “mere motion,” then there was another authority in the land whose power rivaled that of the royal prerogative. And it was one that everyone possessed.
Measurement Change
In every country where the concept of individually owned landed property has taken hold, one unmistakable indicator of its arrival has been provided by a change in the way land is measured.
In a localized, peasant economy where the earth was valued primarily for its ability to support people, measurements that varied according to the fertility of the soil provided the most useful indication of what a farmer needed to know. Around the world, the amount of seed that had to be sown to feed a family from the harvest provided a basic and perhaps primeval unit of measurement of the earth. Even in the 20th century, fields in Guangdong Province next to Hong Kong continued to be measured in “dou,” roughly equivalent to a quarter of a bushel of rice, while up the mid-19th century land in New Mexico was computed by the “fanega,” approximately two bushels of wheat.
But in a market involving buyers with no local knowledge, an objective, unchanging quality such as area allowed strangers to compare the value of different commodities. Thus one unmistakable indicator that a true market in land had developed was the appearance of exact, invariable measurement in place of local, organic units.
The need for accurate measurement was met by a new breed of surveyor, not the old feudal “overseer” who ensured that rents were in line with the productivity of the land, but “measurers” equipped with instruments akin to theodolites and compasses, and employing mathematical innovations such as trigonometry.
As surveyors gave shape to property, a subtle change in mortgage law allowed it to be translated into financial muscle. In its old use, a mortgage meant “dead pledge,” signifying that a borrower automatically forfeited his land if he failed to repay the money in full on the specified date. As Thomas Lyttleton, the leading legal authority of the 16th century, put it, “If he doth not pay, then the land which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so is dead to him.”
The forfeiture of an entire property as a penalty for failing to repay every penny that had been borrowed naturally struck the new landowners as inequitable. Sympathetic judges began to interpret the law so that failure to repay the debt at the required date did not totally extinguish an owner’s title to the land. Instead, under the principle known as “the equity of redemption,” the courts ruled that so long as a borrower paid off the mortgage, even years late, he could reclaim his property.
Modern mortgage law grew out of this interpretation, but so too did modern finance. To regain his money, the lender now had to get a writ to foreclose, forcing the borrower to sell the land. Once the debt was paid, however, the remainder of the proceeds belonged to the former landowner. This was his equity in the land. As the new idea took hold during the 17th century, equity, meaning fairness, would gradually morph into equity, meaning capital.
(Andro Linklater is the author of “Measuring America,” “The Fabric of America” and “Why Spencer Perceval Had to Die.” This is an excerpt from his latest book, “Owning the Earth: The Transforming History of Land Ownership,” which will be published Nov. 12 by Bloomsbury. Linklater died on Nov. 3.)
To contact the editor responsible for this article: Mary Duenwald at mduenwald@bloomberg.net.
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