Turning back, wherever there is light to guide us, we may everywhere see that in their first perceptions, all peoples have recognized the common ownership in land, and that private property is an usurpation, a creation of force and fraud.
As Madame de Stael said, “Liberty is ancient.” Justice, if we turn to the most ancient records, will always be found to have the title of prescription.
CHAPTER V.
OF PROPERTY IN LAND IN THE UNITED STATES.
In the earlier stages of civilization we see that land is everywhere regarded as common property. And, turning from the dim past to our own times, we may see that natural perceptions are still the same, and that when placed under circumstances in which the influence of education and habit is weakened, men instinctively recognize the equality of right to the bounty of nature.
The discovery of gold in California brought together in a new country men who had been used to look on land as the rightful subject of individual property, and of whom probably not one in a thousand had ever dreamed of drawing any distinction between property in land and property in anything else. But, for the first time in the history of the Anglo-Saxon race, these men were brought into contact with land from which gold could be obtained by the simple operation of washing it out.
Had the land with which they were thus called upon to deal been agricultural, or grazing, or forest land, of peculiar richness; had it been land which derived peculiar value from its situation for commercial purposes, or by reason of the water power which it afforded; or even had it contained rich mines of coal, iron or lead, the land system to which they had been used would have been applied, and it would have been reduced to private ownership in large tracts, as even the pueblo lands of San Francisco, really the most valuable in the State, which by Spanish law had been set apart to furnish homes for the future residents of that city, were reduced, without any protest worth speaking of. But the novelty of the case broke through habitual ideas, and threw men back upon first principles, and it was by common consent declared that this gold-bearing land should remain common property, of which no one might take more than he could reasonably use, or hold for a longer time than he continued to use it. This perception of natural justice was acquiesced in by the General Government and the courts, and while placer mining remained of importance, no attempt was made to overrule this reversion to primitive ideas. The title to the land remained in the government, and no individual could acquire more than a possessory claim. The miners in each district fixed the amount of ground an individual could take and the amount of work that must be done to constitute use. If this work were not done, any one could re-locate the ground. Thus, no one was allowed to forestall or to lock up natural resources. Labor was acknowledged as the creator of wealth, was given a free field, and secured in its reward. The device would not have assured complete equality of rights under the conditions that in most countries prevail; but under the conditions that there and then existed—a sparse population, an unexplored country, and an occupation in its nature a lottery, it secured substantial justice. One man might strike an enormously rich deposit, and others might vainly prospect for months and years, but all had an equal chance. No one was allowed to play the dog in the manger with the bounty of the Creator. The essential idea of the mining regulations was to prevent forestalling and monopoly. Upon the same principle are based the mining laws of Mexico; and the same principle was adopted in Australia, in British Columbia, and in the diamond fields of South Africa, for it accords with natural perceptions of justice.
With the decadence of placer mining in California, the accustomed idea of private property finally prevailed in the passage of a law permitting the patenting of mineral lands. The only effect is to lock up opportunities—to give the owner of mining ground the power of saying that no one else may use what he does not choose to use himself. And there are many cases in which mining ground is thus withheld from use for speculative purposes, just as valuable building lots and agricultural land are withheld from use. But while thus preventing use, the extension to mineral land of the same principle of private ownership which marks the tenure of other lands has done nothing for the security of improvements. The greatest expenditures of capital in opening and developing mines—expenditures that in some cases amounted to millions of dollars—were made upon possessory titles.
Had the circumstances which beset the first English settlers in North America been such as to call their attention de novo to the question of land ownership, there can be no doubt that they would have reverted to first principles, just as they reverted to first principles in matters of government; and individual land ownership would have been rejected, just as aristocracy and monarchy were rejected. But while in the country from which they came this system had not yet fully developed itself, nor its effects been fully felt, the fact that in the new country an immense continent invited settlement prevented any question of the justice and policy of private property in land from arising. For in a new country, equality seems sufficiently assured if no one is permitted to take land to the exclusion of the rest. At first no harm seems to be done by treating this land as absolute property. There is plenty of land left for those who choose to take it, and the slavery that in a later stage of development necessarily springs from the individual ownership of land is not felt.
In Virginia and to the South, where the settlement had an aristocratic character, the natural complement of the large estates into which the land was carved was introduced in the shape of negro slaves. But the first settlers of New England divided the land as, twelve centuries before, their ancestors had divided the land of Britain, giving to each head of a family his town lot and his seed lot, while beyond lay the free common. So far as concerned the great proprietors whom the English kings by letters patent endeavored to create, the settlers saw clearly enough the injustice of the attempted monopoly, and none of these proprietors got much from their grants; but the plentifulness of land prevented attention from being called to the monopoly which individual land ownership, even when the tracts are small, must involve when land becomes scarce. And so it has come to pass that the great republic of the modern world has adopted at the beginning of its career an institution that ruined the republics of antiquity; that a people who proclaim the inalienable rights of all men to life, liberty, and the pursuit of happiness have accepted without question a principle which, in denying the equal and inalienable right to the soil, finally denies the equal right to life and liberty; that a people who at the cost of a bloody war have abolished chattel slavery, yet permit slavery in a more widespread and dangerous form to take root.