By Morriss, Andrew P.
Freeman , Vol. 57, No. 1
When Europeans arrived in the Americas and began to claim the rich lands they encountered, they brought with them an equally rich European tradition of property law and justifications for establishing property rights. Today these are often mistakenly lumped together into the law of conquest, sometimes in an attempt to cast modern titles into doubt by rooting them in violence. However, the ideas about property that the Spanish, Portuguese, French, Dutch, and especially English colonists brought to the Americas were far more complex than "might makes right." Many of those ideas became established in American soil and some were transformed by their encounter with the New World. In some of the new nations of the Americas, the result has been a long tradition of respect for property rights. In others, an opposing tradition of contempt for property rights took root.
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 precontact 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. WiUiam 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. ParticularIy 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. …