Subtitled, "How the
United States was Shaped by the Greatest Land Sale in
History."
A
booknote:
This book about our
system(s) of weights and measures traces the origin and meaning of the legal
concept and term 'property' as used popularly and by the founding fathers in the
Constitution, and shows the role the thirst for property played in the westward
movement of the colonials and later.
The author, Andro
Linklater, traces the idea of property to "the greatest land sale in
history," referring to Henry VIII's dissolution of some 400 Catholic
monasteries, with title reverting to him as the feudal
overlord. He sold the land for cash, to pay for England's
defenses.
A new way of
thinking about land resulted, for no longer was its value in the number of
people it could support but in how much cash it cost, would produce, and would
bring when sold. So
long as land was held in exchange for (feudal) services the number of people it
could feed and make available to perform those services were more important than
its exact area.
Land that could be
sold was now property. Essential to land sale and mortgage was a means of
defining boundaries with precision. Land had been (and continues to
be in large areas) described for legal purposes by a written system stating
where one's parcel met various identifiable features which bounded it,
hence the system of description called "Metes and
Bounds."
Linklater says that
if a single date is wanted for when the "idea of private property can be said to
have taken hold," it is 1538, the year Sir Richard Benese published a book
'showing the manner of measuring all manner of land,' in which he described how
to calculate the area of a field or estate, essentially by subdividing it into
measurable parcels and aggregating the result in acres, with the aid of a 16
1/2' staff, rod or cord, and describing the results in words and a
sketch.
Prominent purchasers
of monastery land included sheep-raisers who had been enclosing land and
throwing off villeins and tenants. One such family, Winthrop, produced a
grandson, John, who emigrated to America in 1630 as governor of the
Massachusetts Bay Company. Estates that had been worked as widely separate
rigs and shares of common land would become more valuable when consolidated into
fields, which required measuring.
The great
breakthrough in measuring was the invention of the surveyor's chain by Edmund
Gunter, a mathematician, professor of astronomy at Gresham College,
London, and instrument maker. He had devised for student use an
early slide rule, a quadrant and a cross-staff. The slide rule
enabled surveyors to calculate (without walking off) distance from known data,
trigonometrically, after the Dutch mathematician Frisius (1533). In his
instruction books for the instruments, Gunter described, in Latin, a
precisely made iron chain 22 yards in length consisting of 100 links. He
produced a translation to English at the request of surveyors and sailors who
were using his techniques for measuring land and sailing.
Because Gunter's
iron chain had 100 links, it could be used decimally to state
measurements. Even more simply, it was useful in laying out plots based on
doubling the chain and redoubling it, or halving or quartering it as
needed. Gunter's chain became the basis for western U.S. land measurement,
with the "Point of Beginning" being established in 1785 at the request of
Congress by Thomas Hutchins, the first Geographer of the
U.S., appointed by Washington, at East Liverpool, Ohio, on the Ohio
River near Pittsburgh. Here began the grid that eventually covered the
U.S.
When the U.S. was
established, several of the colonies, now states, owned western land, which
became the Northwest Territory, western states beyond the Appalachians, the
Yazoo in the Southwest (Alabama and Mississippi) of Fletcher v. Peck fame,
the Louisiana Purchase, and later still railroad land to the coast. This
was all surveyed using Gunter's Chain (and other instruments such as the
theodolite) in a system of square plots along North-South and East-West
lines called Township and Range, far different from the metes and bounds
system of England and the coastal colonies.
The plotting of the
land gave each parcel an identifiable map address, allowing it to be sold,
unviewed, in distant financial centers such as New York (1787, based on
Hutchins's survey) and Philadelphia, by speculators. This enabled the U.S.
government, after it acquired this western land from the former colonies, to
sell it to finance itself beyond tariffs.
The thirst for land,
and not just land to live on, but land as 'property' that could be bought and
sold, is what drove the expansion of the country. It's what made
Robert Morris, the financier of the Revolution, rich. It's what drove
Washington, the surveyor to Lord Fairfax, to invest in land to the
west, and Thomas Jefferson's father, Peter, and the Marshall family and
other justices (Wilson) to invest in western (beyond the Appalachians)
land. The significance of Fletcher v. Peck is not just that that the
Supreme Court assumed power to overrule state legislative acts (repeal of a land
grant), but that the decision protected the (more or less) bona fide
purchasers' legal and economic interests in maintaining their property in
land. Fletcher made the title of a BFP as certain as it
could get against other claimants, and thus fueled the westward
expansion of the country through protected purchase of property from the
government and takers from the government, much as Marshall's other
nationalizing decisions paved the way for expansion of commerce (Gibbons) and
use of corporations (Dartmouth) as investment and finance vehicles.
Linklater, while
describing the history of measurement, limns the conflicting attitudes of
Jefferson, whose ideal was the yeoman farmer of the Anglo-Saxon period before
the Norman conquest, and Jefferson's hatred of the speculator, such as the
quintessential example, Robert Morris, who bought Continental paper at
twenty-percent of face value and redeemed it from the government for land at
face.
Of interest to me as
a constitutiona law teacher are the ideas and circumstances behind the doctrines
that find their way into the Constitution, and constitutional law, particularly
where a paradigm shift occurs relatively slowly over a period of time, such as
that described between the demise of the feudal land tenure system over to the
more modern capitalistic land system. Accompanied by considerable
dislocation, that was a constitutional change in any sense of the word, and
lays the foundation for where we stand today.
I was pleased to see
the idea of property (and measurement) explained and developed so well in
historical context. "Measuring America" has received excellent
reviews.
rs
sfls
