It’s Independence Day in America. The declaration on this day, July 4th, in 1776 was the culmination of many decades of becoming a distinct nation, apart from and opposed to the British crown. But how did the America of 1776, this brand new nation out of nothing, come to be, and how did those 13 precarious colonies turn into the continental superpower of today?
In this post I’m going to look at just one specific facet of the development of the United States of America, and it’s relevance to us all and the unjust capitalist system we endure.
Capitalism requires private property. When property is acquired today, legitimate ownership is based on the legitimate ownership of the previous owner. A title deed is transferred, a receipt is issued, a contract is signed, and if you have those, then the state will use its power to defend you and your right to exclusive ownership.
Through these practices and documents, capitalists claim that their fortunes are hard earned from their own toil, intelligence and entrepreneurial spirit. In many cases today this may well be true, but follow the transactional chain back far enough; the previous-previous owner, the previous-previous-previous owner, and you must reach a point where there is no previous owner and there was no transfer.
Speaking specifically about land, a part of the earth’s surface which was once either held communally by all, or as yet undiscovered and held by none (and in practical effect, ownership by none is the same as ownership by all), was taken by an individual or group into their exclusive control.
Private property begins with theft.
The Old Land
In a short BBC lecture from the 1980s, available on Youtube here, philosopher Jerry Cohen asks the simple question;
“How did it come to be anybody’s private property in the first place?”
In Europe, any kind of ‘original theft’ is lost to unrecorded prehistory, and subsequent events have made and remade political and social relationships to such an extent that it’s very easy to instinctively convince ourselves that there’s no way our whole culture could rest on such a series of unjust acts. Furthermore, this appropriation and redistribution of land into the hands of the few is deeply ingrained in a lot the institutions and cultural practices of today; the Church of England, the Sovereign Grant, the City of London, the Duchy of Cornwall and so on. Throughout history, events like the dissolution of the monasteries, the interregnum, natural disasters, economic catastrophes, world wars and the creation of MPs, dukes, duchesses and peers have all obfuscated the theft.
But we can be sure that it took place, by returning to the logic I laid out above and considering this simple fact; At some point in the past, long long before any of us were alive, all land was held by none/by all, while today, some own a small amount of land, a few own vast tracks, and many have no permanent rights to the land whatsoever.
The Land of the Free
This muddled history was the case more-or-less the world over, until 1492. America after 1492 illustrates precisely the process I laid out earlier, for the United States is a nation built conspicuously upon the theft of land, both straight-up theft from one private owner to another, but also significant ‘original theft’ in the privatisation of communally held land.
I’m going to concentrate on this ‘original appropriation’ for the rest of the article, for a three main reasons. One is that Native American tribes covering the majority of the landmass in the 15th century and onward were semi-nomadic and did not claim exclusive, enduring rights over the land they called home. Secondly, in the vast majority of cases, until existentially threatened, Native Americans were friendly and helpful towards European settlers and were happy to share the land with them. Finally, in cases where Native Americans did claim bequeathable private property, the only just act could be to return it to public ownership. The act of seizing another’s private land for your own private use is theft all the same, since the crux is that you continue to deny the land to everyone else.
Unlike in Europe, in America this history is stark. By and large in 1492 none of the land in North America is owned by anyone and by 1945, all of the land is owned by someone.
This took place to some degree through war, conquest, treaty and purchase. But most of the once freely held land was claimed and privatised by individuals and groups simply moving onto it, then waiting for the national government to defend their ownership claim.
European rulers didn’t have the military resources to launch actual invasions of the Americas, nor did they have a population they could easily move to fully occupy the swathes of land they could gain effective control over. They sent explorers, and permitted adventurous groups and parties to set sail, and later board wagons, to colonise the continent.
They couldn’t offer their explorers a blank cheque along the lines of ‘wherever you land, that’s British sovereign soil’, since such a claim would invite similar claims from other European nations, and how long would it be before British coastal towns were invaded and settled by Spaniards? What if British explorers settled on land already claimed by the French crown, committed crimes against the French there and began extracting and trading their resources? This would invite war and worse – excommunication for attacking another Christian nation.
The solution was the doctrine of discovery.
The Discovery Doctrine
This was first announced by a series of Papal Bulls in the 15 and 16th centuries, but the British crown quickly followed, and these precedents were subsequently adopted into American law when they declared independence 241 years ago today.
The critical tests of the ‘legitimate’ appropriation of commonly held Native American land were concisely laid out in the 1823 Supreme Court ruling on Johnson v. M’Intosh:
“On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession. . .
. . . The right of discovery given by this commission is confined to countries “then unknown to all Christian people,”. . .
. . . The charter granted to Sir Humphrey Gilbert in 1578 authorizes him to discover and take possession of such remote, heathen, and barbarous lands as were not actually possessed by any Christian prince or people.”
The two necessary factors, then, to ‘legitimately’ perform this original theft of land were to be European and Christian.
By the time this doctrine was upheld as law in 1823, the first is simply a racist requirement to be white, as most land claims were by that stage being made by those born in America, not Europe. The second directly contravenes the first amendment to the US Constitution, which reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.
Perhaps, perhaps one could look back and laugh at this illogical rationalisation of a theft that, being so integral to the founding of their nation and continued prosperity of themselves that the judges could never possibly denounce it. Having said that, it was less than 200 years ago and thus clearly has a directly traceable effect on the world we live in today.
But putting that aside, what if the very same ruling and the very same racist, unconstitutional doctrine had been used over and over and over in legal decisions since then? What if it were cited in the majority opinion of the Supreme Court permitting the New York government to continue collecting income taxes on Oneida Indian Nation territory in 2005? In 2005, just twelve years ago, Justice Ruth Ginsberg wrote that;
“Under the ‘Doctrine of Discovery’ . . . fee title to the lands occupied by Indians
when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original states and the United States”
An Independence in Chains
Capitalism requires the theft of that which was once held by all, so that it comes under the private ownership of some. Certainly many will reach the end of this article and claim that the original distribution may not have been just and fair, but the wonderfully long, fulfilling lives we are able to live today far and away justify this ‘original sin’. They might cite problems such as the ‘tragedy of the commons’ or ‘prisoner’s dilemma’. I’m not disagreeing that some of us, and in developed Western nations indeed many of us, live lives of such wealth, ease and fulfilment that our pre-1492 ancestors could not imagine.
And so, shouldn’t it follow that we maintain public services of the highest quality for all? Shouldn’t the winners under this economic system give amply to the losers instead of stealing more each day? Shouldn’t we recognise gross historical injustices and seek to rectify them? The Discovery doctrine should serve as proof that this doesn’t require a witch-hunt investigation into the crimes of everyone’s ancestors. When the theft of land and taking of life was so egregious, and it was only possible for the crooks to rationalise it to themselves with recourse to argumentation so twisted and unjustifiable as to bestow such a fundamental right as the right to use the Earth’s land one was born on upon another, simply by virtue of their religion and ancestral birthplace (and implicitly, the colour of their skin). Then, it is indefensible.
Yet America, with such an obvious history of unjust appropriation, and having become so wealthy and powerful off it, continues to enslave great swathes of its people. It denies them basic rights like healthcare and leaves them with only one right; to sell their labour to pay for their continued existence. This year the American government has designs to impoverish and enslave many, many more.
We in Europe are little better. Capitalism makes worshipers of the illogic of the Discovery doctrine of us all. Perhaps it is irredeemable.
This Independence Day, strive for some real freedom.
This post was updated on 5th July 2017 to add more detail and sources.
More information on the Doctrine of Discovery can be found in the ‘Preliminary study of the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery‘, published by the United Nations Economic and Social Council in 2010.