Economic Liberty and the Official Law Books in Colonial Massachusetts
Smith, Charles Edward, The Cato Journal
Hernando de Soto's The Mystery of Capital traces the essential developments of land registration and titling in 19th century U.S. history. But his chronology omits implementation of mid-17th century English legal reform initiatives in colonial Massachusetts concerning land registration, creditor-debtor law, and market regulations. Massachusetts's legislators were pursuing a reform agenda in an agrarian, semi-literate, and pre-contract society, conditions that are similar to many developing countries today. This article expands on de Soto's work by examining the vehicle that colonial Massachusetts utilized to communicate its ordinances and regulations: the official law books printed and distributed to colonists.
The Historical Mystery of Capital
In his celebrated work, The Mystery of Capital Hernando de Soto (2000) recounts his campaign to assist impoverished communities around the world to register and title their undocumented property holdings, and secure for themselves vast reservoirs of their own ready-made capital. To assist his endeavor de Soto surveyed experts in several disciplines to review the history of property titling and registration in Western industrialized countries, only to realize that in most aspects such a history is not only unwritten but seldom contemplated. How could there be such an omission in the historical record? Perhaps, he reasoned, these legal processes are so part of the daily routine of Western countries that they have not been attractive topics for study, or maybe their evolution has been so complex and occurred over such an extended period of time that their secrets are barely perceptible. Whatever the case, in the absence of an established and thorough history of property titling and registration de Soto realized that developing countries had no extant model to follow. So he undertook his own survey in order to "reopen the exploration of the source of capital and thus explain how to correct the economic failures of poor countries" (de Soto 2000: 1-10, 105-8).
In de Soto's model, based on secondary sources and interviews of experts in the fields of economics, history, and international development, the critical historical omission appeared to occur during the 19th century U.S. westward migration. As he explained in his chapter "The Missing Lessons of U.S. History":
I found many examples that reminded me of developing and former communist countries today: massive migrations, explosions of extralegal activity, political unrest, and general discontent with an antiquated legal system that refused to acknowledge that its doctrines and formulas had little relevance to the real world. I also found how U.S. law gradually integrated extralegal arrangements to bring about a peaceful order--... the law must be compatible with how people actually arrange their lives. The way law stays alive is by keeping in touch with social contracts pieced together among real people on the ground [de Soto 2000: 108].
De Soto (2000: 158-88) returns repeatedly to the idea of social contracts that, by his definition, are local agreements legitimizing informal property ownership not already certified by official state documentation. The identification of informal agreements certifying such ownership is vital to gaining official recognition of informal property holdings and transactions. At the same time, an equitable transmission of informal to formal ownership encourages informal property holders to accept official titling processes and leave the shadows of illegal regimes like black markets. But when de Soto (2000: 188-206) discusses the necessity of political implementation of any transformation of informal property arrangements to those officially recognized by the state, he acknowledges that many features of a modern state's machinery stand ready to frustrate an equitable and comprehensive settlement: political parties, state bureaucracies, and legal professions tend to uphold a status quo. …