Property, Domination, Married Women, 'Indians': Part One - Legal Context

An essay on two paths in property law: “marriage and family law” on one side and "federal Indian law" on the other

Here is one of the curious anomalies that make legal history so intriguing. Two areas of law apparently widely separated are in fact creatures of a single complex set of ideas and practices: “marriage and family law” on one side and "federal Indian law" on the other.

The story begins in 1816 with the first American treatise on “domestic relations” law by Attorney Tapping Reeve, bearing the complicated title, The Law of Baron and Femme; of Parent and Child; of Guardian and Ward; of Master and Servant; and of the Powers of Courts of Chancery. With An Essay on the Terms, Heir, Heirs, and Heirs of the Body. In it, Attorney Reeve argued for emancipating married women from feudal-era property law concepts that bound them to the domination of a husband. That story will be told in Part Two.

The story continues in 1823 with the US Supreme Court case, Johnson v. McIntosh, where the court applied feudal-era property law concepts to bind Indigenous Peoples to the domination of the federal government. That story will be told in Part Three.

In a nutshell, the overall story is that what was happening in the property law of marriage coincided with — but diametrically opposed — what was happening in US property law as the US claimed title to Indigenous Peoples’ lands. While Reeve wrote to transform law away from feudal restrictions regarding women and property, Johnson v. McIntosh, decided seven years after the publication of Baron and Femme, imposed feudal conceptions to deprive Native Peoples of property.

---

Legal Theory: Property as “Despotic Dominion”

In legal theory property is not a thing; it is a definition of human relations regarding things. Moreover, property relations are not dyadic as in “A owns B” — but triadic as in "A owns B against C." Claims of property ownership always and necessarily imply relations with others.

As William Cronon explained in Changes in the Land (1983), his momentous study of the ecological consequences of the difference between colonizer and Indigenous concepts of property, the triadic structure of property relations creates social boundaries:

Although ordinary language seems to suggest that property is generally a simple relationship between an individual person and a thing, it is actually a ... complicated social institution.... The classic definition is that...: "the property relation is triadic: 'A owns B against C...." ... To define property is thus to represent boundaries between people....

Tzvetan Todorov, in The Conquest of America (1985), insisted that social “otherness” in general is triadic: It implicates not only self and other but self and all others:

... [T]he touchstone of alterity [otherness] is not the present and immediate second person … but the absent or distant third person….

Sir William Blackstone’s Commentaries on the Laws of England (1765–69) is the best-known description of English Common Law doctrines. Volume 1, Book 2, Chapter 1, “Of Property in General” opens by expanding the “others” of the property relationship as encompassing the universe:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.

Summarizing, we can say:

• “Property” defines relationships between an “owner” and all other persons.

• The specific stance of a property “owner” is “despotic dominion” over what is “owned”.

---

The Revolution Didn’t Change Property Domination

Property relations were central to the American revolution; they were the basis of political structures that fomented and won the war. In the largest sense, the American Revolution was a claim of a right of property domination over the lands of the continent as against all others in the world.

Fifty years later, John L. O’Sullivan, the editor of The United States Magazine, and Democratic Review, a magazine that served as an organ for the Democratic Party, coined a name for this Revolutionary claim of continental domination: “manifest destiny”.

Viewed as a claim of “despotic dominion”, the American Revolution was more a coup d'état by an oligarchy of property owners and land speculators than an overthrow of the "Crown" in favor of "the people."

When Daniel Shays and his fellow farmers and even some men of wealth in Massachusetts realized this, they rose against the state government, closing courthouses and seizing arsenals. Shays’ Rebellion (1786–87) became a major catalyst for urgent meetings of the “founding fathers” in Philadelphia to devise a federal constitution strong enough to protect property from democracy.

The "Founding Fathers" saw property as the basis of "freedom"; they also knew that only a minority of society were property owners.

As Paul Baran and Paul Sweezy explained in Monopoly Capital (1966):

The nation's Founding Fathers were acutely aware of the latent contradiction in the democratic form of government, as indeed were most political thinkers in the late eighteenth and early nineteenth centuries. They recognized the possibility that the propertyless majority might, once it had the vote, attempt to turn its nominal sovereignty into real power and thereby jeopardize the security of property, which they regarded as the very foundation of civilized society. They therefore devised the famous system of checks and balances, the purpose of which was to make it as difficult as possible for the existing system of property relations to be subverted.

In 1819, the US Supreme Court used the Constitution in just this way when it decided Dartmouth College v. Woodward. The case involved New Hampshire's attempt to transform Dartmouth College from a private into a public university. The court ruled that the college corporation created by Crown grant in 1769 was protected from the state legislature by the “contract clause” of the Constitution.

Chief Justice Marshall emphasized that the constitutional clause only applied to property contracts:

The provision of the Constitution never has been understood to embrace other contracts than those which respect property.

He also emphasized that property rights from the Crown were not overthrown by the revolution:

It is too clear to require the support of argument that all contracts and rights respecting property, remained unchanged by the revolution.

And that’s not all. Marshall took the opportunity of protecting a Crown corporation from political oversight to lay the cornerstone for the doctrine of “corporate personality”.

The Chief Justice wrote:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. … Among the most important [possessions of the corporation] are immortality, and, if the expression may be allowed, individuality….

[Immortality and individuality] enable a corporation to … hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand.

It is chiefly for the purpose of clothing bodies of men…with these qualities and capacities that corporations were invented, and are in use.

Marshall added in a fit of irrationality that this immortality had no special political power:

Immortality no more confers on it [the corporation] political power, or a political character, than immortality would confer such power or character on a natural person.

---

Rich Man, Poor Man, Government

Let’s leave the last word in Part One to Adam Smith, sometimes called "the father of capitalism," who wrote in his classic An Inquiry into the Nature and Causes of the Wealth of Nations (1785):

Wherever there is great property, there is great inequality. For one very rich man, there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. ...

…Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all.

---