Observations on the Nature of Civil Liberty, Part XI: Illogical, Unthinking, Hypocritical Britain, contd.

            The next several paragraphs of Richard Price’s Observations represented a slight shift in tone from that were preceded them. Whereas Price had theretofore attempted in Part II, Section I to explore and discount the various claims made by his countrymen to Britain’s inherent superiority over the Thirteen Colonies in terms of relative population, wealth, and intellectual achievement, financial investment, and even by way of the metaphor of the parent/child relationship, he now endeavored to focus on the logic of certain fundamental aspects of Britain’s political philosophy and political culture. Specifically, he asked his fellow Britons to project the implications of their various assumptions to their furthest extreme and then contrast the result against the basic constitutional principles by which the contemporary British state was supposedly governed. If contradictions surfaced as a result of this exercise – if what Britain was demanding of the inhabitants of America amounted to more than most British subjects would acquiesce to themselves – then the validity of the British position could accordingly be called into question. Price thus evidently attempted to turn the focus of the discussion surrounding the burgeoning conflict between Great Britain and the Thirteen Colonies away from what was essentially an accounting of power dynamics and towards an interrogation of what it was his countrymen actually believed about themselves, their nation, and their values as a people.

            The author of Observations made his entrez into this more theoretical area of discussion by first investigating the claim – again, made by the hypothetical supporter of the North Ministry and its policy towards America – that the colonies were of a right subordinate to Britain because, “The Land on which they settled was ours.” There appeared to Price, notwithstanding a number of philosophical questions having to do with the nature of sovereignty tied up in this kind of claim, several factual errors present therein. For one, he asserted, the fundamental right of property celebrated as one of the essential principles of the British Constitution could not easily be reconciled to the traditional European colonial practice of claiming vast swaths of land at a distance merely by way of a declaration to that effect. “If sailing along a coast can give a right to a country,” he mused accordingly, “Then might the people of Japan become, as soon as they please, the proprietors of Britain.” This was, of course, a nonsensical scenario, but purposefully so. Ridiculous as it was to imagine a Japanese vessel sailing up the Thames in 1776 and laying claim for the Emperor to every square inch of soil sighted by its crew, Price invited his readers to consider that the equivalent gesture on the part of 17^th century English sailors exploring the coast of America was no more sensible as a means of establishing legal ownership over a given plot of land. Real property – in the sense of landed property – belonged to those who lived upon it, worked it, or improved it.

This was not a doctrine, it bears noting, which would have necessarily sat all that well with the contemporary British gentry or the Anglican Church. Both of these bodies collectively owned acres upon acres of land that they subsequently rented or leased to those who themselves made the actual improvements. But it certainly seemed to accord with Price’s evidently Lockean sensibilities when it came to matters of sovereignty. Observe, to that end, Price’s further claim in the same paragraph cited above. “If the land on which the Colonies first settled had any proprietors,” Price affirmed,

They were the natives. The greatest part of it they bought of the natives. They have since cleared and cultivated it; and, without any help from us, converted a wilderness into fruitful and pleasant fields. It is, therefore, now on a double account their property; and no power on earth can have any right to disturb them in the possession of it, or to take from them without their consent, any part of its produce.

The author of Observations thus demonstrated his understanding of property rights as being essentially opposed to that expressed by his hypothetical opponent. Whereas this supposed Northite appeared to believe that Britain had claimed America for itself by way of some mysterious right of imperial possession and then sold or rented the land to the various colonial founders, Price maintained that in fact the region’s indigenous inhabitants had possessed the original claim to the territory in question and traded it to the colonists in exchange for whatever money or commodities they possessed. While the difference between these perceptions might appear somewhat slight, the contrary is in fact the case.

Price posited a clear chain of possession from one title-holder to the next – from tribal polity to migrant community – with deed being transferred via a (theoretically) consensual procedure. His opponents conversely failed to explain precisely how the property in question passed into the hands of its American cultivators. Certainly they had agreed to purchase or rent it from Crown authorities – or else some agent of the same – but it was not at all clear how they themselves had come into possession of it initially. Certainly they hadn’t purchased it from a local authority in exchange for something of equal value, settlement tending to precede first contact during the formative years of the American colonial venture. And yet, some ineffable, alchemical process must have taken place for land that no English person had previously laid eyes on to suddenly become the possession of the English monarch. Presumably, the relevant individual(s), acting on behalf of the Crown, had just gazed upon the land from afar, decided that it should belong to England, and then it did. Impressive though such a power might have been, however – and certainly convenient for the monarch who wished to dole out land at will without having to pay for the privilege – the implications thereof were also nothing short of terrifying.

 By entertaining the notion that the Crown was the original owner of the land upon which the Thirteen Colonies were founded, one would at the same time be given to tacitly accept that this same authority – or its agent – could unilaterally claim a given piece of property by way of simple declaration alone. It did not matter if said property was already in someone else’s possession – as Price affirmed that the colonial territory was – and no exchange, discussion, or even notification was necessary. Bearing in mind that British authorities would very likely have been less inclined to exercise this privilege upon the property of their own subjects than upon the property of the non-Christian, non-European indigenous inhabitants of North America, there was nothing inherent to the principle itself that stood to prevent the former for occurring. If the Crown could claim property it had never seen some three thousand miles away with no more than a declaration to that end, why could it not do the same to the lots and acreages in its own backyard? How could something as comparatively narrow as property rights stand against as expansive a power as that? How could the Bill of Rights? How could any part the British Constitution? That there were no clear answers to these questions was doubtless in large part why Price tended to oppose the very idea. Allowing the British government to subvert property rights in certain cases arguably opened the door for it to subvert property rights in all cases. Better, then, to demand a clear derivation of authority, a clear chain of possession, and a clear rationale for intrusions upon individual sovereignty.

There was also, of course, the question of ownership by way of cultivation. As aforementioned, Price seemed to evince in the text of his Observations a very Lockean sensibility in matters of property and its possession. The paragraph cited above was particularly explicit on this count. Of the land settled by the American colonists, Price affirmed that, “They have since cleared and cultivated it; and, without any help from us, converted a wilderness into fruitful and pleasant fields.” Turning to the relevant text of John Locke (1632-1704) – i.e. Two Treatises of Government – one finds much the same explanation for the relationship between labor and property. “He that so imployed his pains about any of the spontaneous products of nature,” Locke asserted therein,  

As any way to alter them from the state which nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them […] The same measures governed the possession of land too: whatsoever he tilled and reaped, laid up and made use of, before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed, and make use of, the cattle and product was also his.

By thus mixing one’s labor with what was otherwise common property – by tilling a field, picking an apple, killing and dressing a deer, or chopping down a tree – the object in question was made more useful and ownership was transferred from the commons to the individual. This was, at its heart, a matter of compensation, whereby productivity was rewarded with the outcome of the same. Consider, to that end the untilled field. Left fallow, it aides no one; made to sprout wheat, corn, barley, or buckwheat, however, it could feed any number of people or animals. In return for accomplishing this transformation – for making something useless to human society incredibly useful by the expenditure of certain resources – the laborer takes possession of the value they have created.

            Applied to the context of the American colonial project, this kind of Lockean analysis would seem to paint the colonists themselves – who worked the plots and acreages in question – as the truest owners of their land. However they acquired it – by purchase from its original indigenous possessors or by grant from the Crown – their efforts greatly increased its productivity, making it useful in a way that it had not been previously. And while it was certainly possible for the native peoples whose land it was originally to have accomplished this same feat of transformative labor – a number of the indigenous communities then residing in North America engaged in subsistence agriculture, after all – the likelihood thereof should form no part of the question at hand. Price did not claim that the ability of the colonists to improve the land they took possession of gave them a right to appropriate it from the native peoples they encountered. Indeed, he stated explicitly of said land that, “The greatest part of it they bought from the natives [.]” thus obviating any need to establish right or claim. Rather, he was arguably attempting to affirm that even if one really did believe the Crown to be the rightful original possessor of the land in question, there was no way that said authority could have improved it, cultivated it, or otherwise increased its value to a greater extent than the colonists. This task instead fell to the colonists who, in exchange for their labor, gained a superior claim to the land in question.

            One might in fact be inclined to say that the colonists gained an exclusive claim, but for the myriad complications then existing within the contemporary Anglo-American legal system vis-à-vis the use and possession of land. Granting that it was certainly possible – and far from uncommon – for a given acreage to be sold unconditionally and in its entirety by one individual to another, this was far from the only means by which the practical use of land could be transferred between parties. Concepts like entail and escheat, for example, served to ensure that certain estates could not be disposed of as their present owners desired and provided for the automatic Crown appropriation of property in the event of its holder expiring without a legally valid heir. In both cases, the notion that legal possession was fundamentally absolute – i.e. that holding the deed to a piece of property entitled a person to dispose of it as they wished – was called into question. Entailed estates arguably belonged as much to the original contract holder as any of their legal heirs in the way that they limited the ability of said estate to be sold piecemeal rather than as a whole. Escheat, by establishing the Crown as the default possessor of otherwise unclaimed land, meanwhile arguably implied that all property falling within the bounds of the British Empire actually belonged to the monarch of the same. Deeds stating otherwise were thus in some sense temporary, to be honored only so long as the relevant bloodline could be maintained.

Then, of course, there was the matter of rental. Land rental was exceedingly common in British America, consequent to the widespread use of freehold title. Within most of the relevant colonies, property was generally purchased on an individual basis from the appropriate government – said government having commonly acquired is through negotiation with or conquest of regional indigenous authorities – which in turn absolved the resulting tenants from all obligations save the annual payment of so-called “quit-rents.” Whereas these yearly payments historically functioned as monetary compensation for non-performance of various feudal obligations – military service chief among them – their remaining purpose by the end of the 18^th century was generally to act as an ongoing acknowledgment of the property in question’s ultimate owner. As the aforesaid colonial governments were administered either by an executive appointed by the Crown or a proprietary owner possessing the sanction of the same, the payment of quit-rents thus effectively acknowledged that the paramount authority in matters of property in America was the reigning British monarch. Principles like entail and escheat arguably also supported this basic assertion by likewise implying that the average landholder in the Anglo-American world – the person who lived upon the land in question, worked it, and or otherwise made productive use of it – remained in a legal sense subordinate to a higher authority whose interest in or even knowledge of said property was often exceedingly limited.

            Price’s understanding of landed property – and by extension that of John Locke – tended to be somewhat simpler. Land, he affirmed in the text of his Observations, ultimately belonged to the individual(s) whose labor demonstrably increased the productivity of the same. And while the primacy of this principle did not preclude a plot or acreage from being transferred between owners absent an effort of improvement – via a payment of cash, say, or an exchange of goods, or even as a gift – it did imply that sufficient labor inherently generated interest. In consequence, regardless of who held the deed on a particular piece of property, the improvement of it conveyed a right upon the improver to determine the manner in which it was used. Indeed, taking Locke’s aforementioned definition of value and ownership at its most fundamental, it may even have conveyed the superior right. After all, to what extent could an absentee landlord contribute towards increasing the value of a given plot once they had assigned that task to a rent-paying tenant? And if it could be proven that said landlord had in fact contributed nothing at all, why should they then determine what became of the property in question? While the sheer complexity of contemporary British property law was not necessarily conducive to these kinds of questions being posed – nor, indeed, would landlords and leaseholders been inclined to answer them – they do at least serve to frame Price’s state of mind as compared to his hypothetical Northite opponent. Fundamentally a supporter of the status quo, a supporter of the North Ministry would likely have argued that the fate of all property always fell to the ultimate deed-holder. Conversely an advocate of individual sovereignty, Price would have meanwhile affirmed that the fate of a given property was rightly decided by the person(s) who actually made use of it.

            As it concerned the burgeoning conflict between Great Britain and the Thirteen Colonies, this difference of opinion on matters of property spoke to the opposing perspectives of Price and his ideological foes on the aforementioned subject of sovereignty and authority. Holding that the Crown had been the original owner and granter of all land subsequently held by the American colonists, and at the same time maintaining that a transfer of physical ownership did not necessarily involve a transfer of legal authority, the theoretical supporter of the North Ministry would naturally be given to conclude that Britain remained the supreme power – the paramount feudal lord, as it were – over all matters transpiring in the aforesaid Thirteen Colonies. The amount of time that had passed since the transfer took place made no difference, nor did the fact that the relevant colonists had added tremendous value to the property itself. The Crown had owned the land originally, and in very real sense always would. Price, conversely maintaining that the colonists had purchased the land fairly and legally from its original indigenous owners, meanwhile asserted that the labor exerted by the individuals in question, and the value generated as a result, entitled them to a greater share of discretion than any authority claiming nominal ownership over their property. Quit-rents, leases, and escheats notwithstanding, the land belonged to those who made it useful, “And no power on earth can have any right to disturb them in the possession of it, or to take from them without their consent, any part of its produce.”

            Having established this basic ideological dichotomy between his own affirmation of individual sovereignty and his opponent’s support for a kind of perpetual tenancy, Price next attempted to juxtapose the implications of the latter against some of the essential principles of contemporary British citizenship. Granting, for the sake of argument, the basic premise to which he was opposed – i.e. that Great Britain had been the original possessor of the land subsequently distributed to the various American colonies – he asked his readers to then imagine what this logical construction said about the colonists themselves. Specifically, Price asserted that the original settlers of the various Anglo-American communities – Virginia, the Plymouth Colony, Pennsylvania, etc. – would have been unlikely to migrate from Britain to America had they known that the property they were thereby acquiring would belong to them in something less than an absolute sense. Being inculcated with the same understanding of their sovereign rights as those of their countrymen who chose to remain behind in Britain, these pioneering settlers would surely not have agreed to take part in such a hazardous venture where they not convinced that the liberties to which they were entitled as subjects of the Crown were guaranteed to the same extent in America as they had been in the land of their birth. That the colonial charters these same people labored under appeared to support exactly this expectation – documents, “Which promised them the enjoyment of all the rights of Englishmen; and allowed them to tax themselves, and to be governed by legislatures of their own” – appears very strongly to validate this claim.

And even if this weren’t the case, Price further avowed that the basic dictates of reason argued powerfully against the scenario that his hypothetical opponent seemed to be proposing. As he described their position, certain contemporary supporters of the North Ministry evidently believed that the original settlers of British America, by the act of migration, had tacitly agreed that the government they were ostensibly leaving behind – over which they would no longer possess even the barest measure of control – could and should continue to exercise final authority over the disposition of their property and the fulfilment of their rights. This particular understanding was undeniably a convenient one as suited the priorities of the North Ministry, fundamentally absolving them of any need to respect the claimed rights of the inhabitants of the Thirteen Colonies. To Price’s thinking, of course, it was also almost wholly illogical. “It is inconsistent with common sense to imagine,” he wrote accordingly, “That any people would ever think of settling in a distant country, on any such condition, as that the people from whom they withdrew, should forever be masters of their property, and have power to subject them to any modes of government they pleased.” Had terms to this effect been made plain to the relevant individuals at the time of their departure from Great Britain, it followed, the sense of their sovereign rights possessed by each of them would surely have prevent their departure, or else ensured that more reasonable stipulations were agreed to. To affirm that Britain was the original distributor of property in America, and that it retained final authority over the disposition of the same, was thereby also essentially to argue that the first settlers of said territory gave up their rights – knowingly or unknowingly – upon their departure in such a way as to make them impossible for their descendants to ever recover.

Doubtless Price’s intention was for his readers to interpret this scenario as being fundamentally preposterous. Not only was it essentially unthinkable within the context of Britain’s libertarian, rights-conscious political culture that any individual or group would agree to forfeit the exercise of their rights and those of their progeny in exchange for land and isolation, but it would surely have beggared belief for the average Briton to realize that their liberties could so easily be abrogated by way of physical distance and the possession of property. Certainly, it would be difficult to imagine any contemporary British observers of the ongoing Anglo-American crisis agreeing to make such a bargain themselves. Decades of cultural self-assurance, the mythologizing of the Glorious Revolution (1688) and the Bill of Rights (1689), and the consequent ideological sanctification of the British Constitution would have offered tremendous barriers to the same. Likewise – laying aside for a moment the functional novelty that the Thirteen Colonies represented – it would take a concerted effort of will to conceive of very many constituents of the contemporary British government who would have granted that Parliament and the Crown could ignore the fundamental rights of certain of their subjects depending on where they lived or from whom they acquired what landed property they possessed. Mainstream British constitutional theory simply couldn’t account for that kind of discretionary power. Even residents of under-represented boroughs – burgeoning industrial centers like Manchester, Leeds, and Glasgow, for example – at least enjoyed the recognition of their property and the security of their basic civil rights. The inhabitants of British America were evidently to be denied even these seemingly meagre guarantees, and for no more convincing reason than that it suited the ministry of Lord North to do so.

Price quite naturally refused to countenance the kind of senseless, slipshod reasoning that would have to be deployed in order to support such a position. The founding settlers of the Thirteen Colonies, being proud, rights-conscious Britons, would no more have agreed to curtail their own liberties by migrating than would any of their 18^th century counterparts. Nor would they have agreed to such an exchange if it had been clearly presented to them. It therefore only made sense to conclude that they had not done so, that their rights were in the same state upon arriving in America as they had been on departing from Britain, and that their descendants had inherited said rights undiminished and fully extant. Logic would accept nothing less. Neither would any right-thinking British person. Ever fond of granting a premise only to then tear it down, of course, Price carried this assertion yet further by arguing that even consent could not have altered the state of American liberties. Even if the pioneering settlers of the Thirteen Colonies had known what it was there were supposedly in for – if, for example, the limits to be placed on their rights were spelled out explicitly in their respective governing charters – he nevertheless avowed, “They would, in my opinion, be no more bound by them, than if it had been stipulated with them, that they should go naked, or expose themselves to the incursion of wolves and tigers.” Though this obviously represents a somewhat fanciful construction, the intention behind it was most certainly an earnest one. To Price’s thinking, being deprived of one’s sovereign rights – unknowingly or by mutual agreement – was tantamount to being exposed to potentially life-ending peril. No government had the power to compel its subjects to make such an agreement, or the right to hold them to one that was freely offered. Government – in the Lockean sense – being of essence the result of a consensual bargain whereby the lives of those involved were made more secure, stable, and safe, no institution so conceived could ever rightfully support policies that contributed to a loss of these same guarantees. The North Ministry, in this regard, was no exception, the claims of its supporters notwithstanding.