Dispossession of the Passamaquoddy."
by
Excerpt from thesis:
“The central purpose of this work is to demonstrate the way in which these elements of the European intellectual tradition have determined the course of colonization in North America. The history of the Passamaquoddy, of southwestern New Brunswick and Eastern Maine, provides a practical example of way in which dispossession of Aboriginal peoples has proceeded since the time of first contact”.
Biography:
Mary L. Caldbick was born in Timmins, Ontario, Canada and
attended the University of Waterloo (Bachelor of Science 1987) and the University of New Brunswick (Bachelor of Arts, Poli. Sci. 1994, Master of Arts, Poli. Sci. 1997 and Bachelor of Laws, 1999). Called to the Bars of the Provinces of New Brunswick (2000) and Ontario (2001), practiced law in Ontario from Oct. 2000 to Sept. 2003. Currently employed as a Claims Analyst in Research with the Specific Claims Branch of Indian and Northern Affairs Canada.
A culture that discovers what is alien to itself simultaneously
manifests what is in itself.[1]
In attempting to write what he describes as an “archaeology of anthropology”, Bernard McGrane delineates the different stages through which European understanding of the non-European cultures has passed, from the sixteenth to the early nineteenth centuries. Prior to the development of anthropology as a distinct social science, non-European cultures were understood through different lenses, each of which gave its own specific meaning to those cultures. In the sixteenth century, it was Christianity which provided the mode of understanding of non-European cultures. During the Enlightenment, it was science and knowledge which provided the lens through which non-Western societies were examined. As McGrane notes:
In the Enlightenment it was ignorance that came between the European and the Other. Anthropology did not exist; there was rather the negativity of a psychology of error and an epistemology of all the forms and causes of untruth; and it was upon this horizon that the Other assumed his significance.[2]
Finally, in the nineteenth century, the era of Darwin and evolutionary theory, it was time which “came between” the European and the Other.
McGrane’s analysis of European conceptualizations of ‘alien’ cultures is significant for what it reveals about the Western intellectual tradition. McGrane asserts that from its earliest origins, anthropology has been a manifestation of “that egocentric tendency of our Western mind to identify itself as separate from what it perceives as external to itself.”[3] But McGrane’s characterization of anthropology can also be extended to the whole of the Western intellectual tradition. Calvin Martin has argued that the ethnocentric bias of “Indian-white history” has never fully been acknowledged by members of the discipline.[4] What has passed for Amerindian-white history in the past has, in his view, been simply a history of the interaction of whites with Native peoples, written with only a superficial understanding of Native “phenomenology, epistemology and ontology.”[5] As such it has only limited value.
Admittedly, there is nothing novel about decrying this
tendency among historians, many of whom would doubtless
protest that they are faithfully reproducing the literary
record of the Indian-white experience. Fair enough. But
we should quit deluding ourselves about the significance
and explanatory value of such history, for it is essentially
white history: white reality, white thoughtworld.[6]
Analyses such as these serve as caveats to those who are seeking a truthful account of Aboriginal history. Seen in these terms, McGrane’s typology of the Western intellectual tradition provides a useful guide to understanding the way in which Western cultures have dealt with Aboriginal peoples throughout the world, from the time of colonization to the present.
It is trite to say that European understanding of Native cultures has always been and still is, ethnocentric, without a deeper analysis of what that actually means in practical terms. Anthropological and historical records have served ideological purposes which extend far beyond their immediate, ostensibly educational and explanatory role. They have helped to shape Western perceptions of Aboriginal cultures and have played an important role in determining the manner in which those cultures are or have been treated by Western societies. In concrete terms, the less an indigenous society resembles Western culture politically, socially and economically, the easier it is for Western societies to deny the legitimacy of those indigenous societies. However, once similarities are found between Western and non-Western societies it becomes more difficult to deny the validity of those cultures.
Since the first encounters between European and Aboriginal cultures, the former has never strayed from its belief in its own superiority, in its belief that all other cultures are less highly evolved. This is a constant theme which runs throughout the history of Native-European relations in North America. It is a focus of this work, which examines in detail the way in which Europeans have understood the relationship between Native peoples and the lands they inhabit. In particular, this work analyzes the manner in which Western societies have attempted to undermine the legitimacy of Native land “ownership”, in order to justify appropriation of Native lands. The political theorist John Locke provided an effective tool for this process in his theory of property acquisition through labour. By contrasting his theory of property acquisition with the landholding patterns of North American Native peoples, Locke was able to provide a rationale for unfettered acquisition of Aboriginal lands by European settlers. So successful was Locke’s labour theory of property acquisition that it was taken up by the immigrant society’s institutions of law and government, with the result that his understanding of that fundamental institution of Western society has endured and still operates in the present.
In the late nineteenth and twentieth centuries, as McGrane has described, the discipline of anthropology began to provide a seemingly more objective analysis of Aboriginal societies. After nearly three centuries of unabated destruction of their cultures by European immigrants, Aboriginal peoples in North America were mostly destitute and landless. Ethnographers and ethnohistorians who were, in the main, sympathetic to the plight of Aboriginal peoples, began to uncover evidence that there was a ‘legitimate’ social order among those societies. A manifestation of this approach to understanding Aboriginal cultures was the family hunting territory debate, sparked by the work of Frank Gouldsmith Speck, an early pioneer ethnographer. Speck was regarded by his peers as a “friend” of Aboriginal peoples and his discovery of what was believed to be a form of private property amongst the Algonkians was no doubt, in his view, evidence of the legitimacy of their social order. Once again, however, the tendency of the European intellect to search for signs vindicating the institutions of its own societal order, is highlighted by the family hunting territory debate. Speck’s theory held sway until the mid-twentieth century, when Eleanor Leacock’s work among the Montagnais-Naskapi of Northern Labrador revealed that family hunting territories had not existed aboriginally, but were, in fact, an artifact of the European fur trade.
McGrane asserts that much insight can be gained by examining that which a particular culture perceives as alien to itself. This assertion finds support in Locke’s use of Native North Americans, and in the family hunting territory debate. The way in which Locke utilized America, as an empirical example of a pre-civil society, in effect mirrors the search by modern ethnographers for indications that private property existed amongst Aboriginal peoples. They represent examples of the continuing search by modern liberal societies for empirical evidence which will serve to validate the ideological tenets forming the basis of institutions such as property. When confronted with social orders in which these tenets do not dominate, the Western mind will leave no stone unturned in its search for signs of these ‘universal’ values.
The central purpose of this work is to demonstrate the way in which these elements of the European intellectual tradition have determined the course of colonization in North America. The history of the Passamaquoddy, of southwestern New Brunswick and Eastern Maine, provides a practical example of way in which dispossession of Aboriginal peoples has proceeded since the time of first contact. From the first encounters between European explorers and the Passamaquoddy, the cultural conflict between the two groups has been resolved in favour of colonizing governments, despite the fact that European settlements relied greatly on the beneficence of Native groups like the Passamaquoddy. A distorted and ethnocentric understanding of Aboriginal cultures has served to justify this process.
As important as it is to expose the underlying rationales which historically have been used to underwrite the dispossession of Native peoples, it is equally if not more important to educate members of modern polities about the legitimate claims of Aboriginal cultures to the lands they inhabit. Accordingly, this paper attempts to provide a countervailing analysis of the history of the Passamaquoddy people and their treatment by colonizing governments. Central to this analysis is the attachment of the Passamaquoddy to Kun-as-Kwam-Kuk, or what is today known as St. Andrews, New Brunswick. This important settlement has figured prominently in the history of the Passamaquoddy people but its importance to them, like other elements of Aboriginal culture, has been systematically ignored by successive governments. Through all the various phases of European colonization up to and including the present era, the relationship between the Passamquoddy and their ancestral lands has remained unchanged. It is a spiritual and physical attachment to place which endures.
CHAPTER ONE: LOCKE’S
DOCTRINE OF PROPERTY
INTRODUCTION
The relationship to the land found amongst Native people in North America was incompatible with European settlement. Native cultures did not perceive the lands they inhabited as property to be acquired, cultivated and “improved.” Rather, they viewed themselves as intimately connected to their surroundings, every element of which, was possessed of a soul no different from their own. A vindication of rights of Europeans to dispossess Aboriginal peoples was thus necessary for European expansion to proceed. In the initial stages of colonization, this justification was based primarily on religious teachings. In particular, the Biblical dictum that God had given the world to mankind to subdue, served to underwrite the rush by Christian nations to claim as much new territory as they could. When this scramble to acquire new lands led to conflicting claims between various nations, new, more refined political and legal doctrines were sought to legitimize European claims in the ‘New World.’
One of the most potent rationales for dispossession in the Enlightenment era lay, in part, in the writings of the seventeenth century philosopher, John Locke. Locke based his entire rationale for the existence of civil society on the right of individuals to privately appropriate land and resources. His writings are particularly relevant to the discussion of Aboriginal land tenure in North America because he expressly mentioned Native Americans as a putative example of the points he was making in his discussion of property.[7] In her extensive thesis on John Locke and colonialism, Barbara Arneil asserts that Locke’s understanding of the `New World’ derived from two principle sources: his collection of books containing accounts of contemporary travel; and his involvement in colonial administration, first as Secretary to the Lords Proprietors of Carolina and later as a Commissioner on the Board of Trade. His rationale for private appropriation of land and resources was actually adopted, implicitly and sometimes explicitly by European settlers.
John Locke’s Two Treatises of
Government, written over 300 years ago, are generally held to have been
written partly as a response to Sir Robert Filmer’s Patriarcha and partly as a justification for the overthrow of the
English monarch Charles II, in the latter part of the seventeenth century.[8] The influence of the Two Treatises however has been felt far
beyond the immediate historical context in which they were written. Most notably, Locke’s theories are generally
recognized as having been a major influence on the drafters of the United
States constitution. The idea of a
constitutional government delegated authority by its citizens, who possess the
right to life, liberty and property and to overthrow any government which
ceases to uphold these rights, is Locke’s best-known contribution to modern political thought. Theorists continue to employ the concepts developed by Locke and
many of his ideas continue to inform much of modern political and legal
thought. This is particularly true of
Locke’s justification of private property based on labour.
Yet the significance of Locke’s view of property for Aboriginal
peoples is routinely ignored by modern political analysts. It is important to understand that the
supposedly timeless and transcendental ideas which Locke expressed were in fact
the expression of a particular ideological viewpoint which was gaining ground
in Locke’s own time. His ideas were
written with particular political purposes in mind. Accordingly, the discussion
which follows in this chapter analyzes not only the Locke’s idea of property,
but also the context in which it was written and the effect it had on the
treatment of Native peoples by European colonizers. The chapter is divided into three parts: the first part lays out
Locke’s theory of property, contained in the sections leading up to, and
including Chapter V of the Second
Treatise. The second part of this chapter provides an analysis of the origins of Locke’s theory, and something
of the economic and political background
against which the Second
Treatise was written. In part
three, the significance of Locke’s theory vis-a-vis Aboriginal peoples is
discussed.
Locke begins his Second
Treatise with a refutation of the idea of a divine right of rulers, derived
from their special status as descendants of Adam. A restatement of the ideas expressed in the First Treatise, this argument is intended as a response to Filmer’s
work on that subject, Patriarcha.[9] Locke argues that since it
is impossible to prove that any ruler is a direct descendant of Adam, this
cannot be used as justification for supreme executive power.
...it is impossible that the Rulers now on Earth, should make any benefit, or derive any the least shadow of Authority from that, which is held to be the Fountain of all Power, Adam’s Private Dominion and Paternal Jurisdiction...[10]
He then sets himself
the task of deriving another, more rational justification for political power,
which he takes to mean the right of determining laws and penalties for breaches
of those laws, including the penalty of death.
He begins by describing the state of nature, a situation which exists
prior to civil society, where positive (human-made) laws are absent. In
this state of nature, each individual has perfect freedom, to “order their
Actions, and dispose of their Possessions, and Persons as they think fit.”[11] This freedom is subject only
to the restrictions imposed by the laws of nature. In this state of nature, Locke argues, men are basically governed
by the maxim: “do unto others as you would have them do unto you”; that is, if
you harm someone else, you may expect harm in return.[12] The laws which govern human
behaviour in the state of nature then, are the laws of nature, which are also
the laws of reason.
Notwithstanding this general rule of behaviour however, men also
have, in the state of nature, a duty to preserve themselves. This is true,
Locke argues, in paragraph six of his chapter, “Of the State of Nature”,
because men are the “workmanship” of god, and are therefore his property, “made
to last during his, not one anothers Pleasure.”[13] As the property of god, men
are obligated to preserve themselves. To accomplish this, men must have the power to punish those who
interfere with their person or property.[14] The only reason an
individual may lawfully do harm to another, is punishment for violations of the
law of nature, for “in transgressing the Law of Nature, the Offender declares
himself to live by another Rule, than that of reason and common Equity, which
is the measure God has set to the actions of Men for their mutual security...”[15] Those who do not adhere to
the law of nature then, are in Locke’s view, dangerous to mankind, and others
have a right to punish them, to the point of destroying them. An individual may thus become, as Locke
declares, the “Executioner of the Law
of Nature.”[16]
In defending this thesis, Locke argues that laws which are made by
national governments have no extraterritorial authority and so they cannot
govern those, such as Aboriginal people, who are not citizens of those
nations. This is the first use made by
Locke of the example of Aboriginal peoples.
He argues that the only law which can be said to command the obedience
of all mankind, is the law of nature.
Those who have the Supream Power of making Laws in England, France or Holland, are to an Indian, but like the rest of the World, Men without Authority: And therefore if by the Law of Nature, every Man hath not a Power to punish Offences against it, as he soberly judges the Case to require, I see not how the Magistrates of any Community, can punish an Alien of another Country, since in reference to him, they can have no more Power, than what every Man naturally may have over another.[17]
It is significant that
Locke uses the example of Aboriginal peoples in the context of a justification
for punishment of transgressors of the law of nature.
The problem which arises, however, if each individual
has the right to decide who has done him an injury, and to be both judge and
jury so to speak in his own case, is that they will almost certainly decide in
their own favour and may go too far in punishing those they believe to be
offenders. Locke agrees that the remedy
for these “inconveniences” of the state of nature is government, but he argues
that a monarch who can be both judge and jury in his
own cause is actually worse than the situation in the state of nature. In summing up his thesis regarding the state
of nature, Locke answers the objection which may be raised as to whether and where such a state of nature could be said to have
existed. He argues that contemporary
rulers of the nations are in a state of nature with one another, because the
only act which can negate such a state, is the mutual agreement to enter into
one political community. In addition,
Locke again expressly mentions the case of Native peoples in America as an
example of the state of nature:
The Promises and Bargains for Truck, etc. between the two Men in the Desert Island, mentioned by Garcilasso De la vega, in his History of Peru, or between a Swiss and an Indian, in the Woods of America, are binding to them, though they are perfectly in a State of Nature, in reference to one another.[18]
In Chapter Three, Locke makes the distinction between the state of
nature and the state of war. A state of nature exists
where men live together, according to reason, without
a common superior or authority to judge between them. A state of war arises at the moment when one person uses force or
aggression against another. Unlike
Hobbes’ state of nature, in which “every man is Enemy to every man”, Locke’s imagined
state of nature is less brutal.[19] It is only the use of force which places men in a state of war with
one another. To avoid this,
men enter into society with one another and agree to
be governed by a common authority.
Having thus dealt with one justification for political society, Locke next turns, in Chapter V of the Second Treatise, to a discussion of property, the preservation of which he regards as the most important reason men have for entering into a civil society. He begins his discussion with the statement that whether we appeal to natural reason, or to God’s directives as stated in Genesis, it is clear that the world was given to mankind in common for its preservation.[20] Given the fact of original communistic property ownership, Locke’s sets himself the task of trying to answer what he calls “the very great difficulty” of how any one person should ever come to have a property right in lands which were originally given by God to all men.[21] It is here that Locke presents his version of the labour theory of property. He argues that “every Man has Property in his own Person.”[22] If an individual appropriates something from Nature, he has mixed his labour with that thing, and has therefore removed it from the commons. It then becomes his own property. By attaching something which is one’s own property, that is, one’s labour, an individual is able to claim that item as his own. He “hath by his labour something annexed to it, that excludes the common right of other Men.”[23] Since man has a duty to preserve himself, his appropriation of items from the commons does not require the consent of others. If it did, Locke argues, one would starve for want of such consent.[24]
In paragraph thirty-two of the Second Treatise, Locke comes to the “chief matter of Property”, which is not the produce of the land, but rather the land itself. Here Locke argues that “as much Land as a Man Tills, Plants, Improves, Cultivates and can use the Product of, so much is his Property.” This private appropriation of land also does not require the consent of others Locke argues, because when God gave the world to all men, he also commanded them to subdue and improve it.[25] Thus men, in obeying god’s command and improving or cultivating the land, join their labour with it and are entitled to it as property.
There are limits set by nature, however, on the right of private appropriation of property. The first limitation is that of sufficiency; that is, the notion that there must be “enough and as good” left for
others. Secondly, Locke argues that
there is a spoilage limitation, in that no one can appropriate more than he is
capable of using before it spoils.
As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for Man to spoil or destroy.[26]
A third limitation is
that which is imposed by man’s own abilities.
He is only able to appropriate as much as he can procure by his own
labour; “the measure of Property, Nature has well set, by the Extent of Mens Labour,
and the Conveniency of Life..”.[27]
It is the introduction of money, however, which allows these limitations, imposed by nature, to be
overcome. Locke states explicitly that
the rule of property, whereby men may only appropriate as much as they can
use, would still govern property in contemporary
societies were it not for “the Invention of Money, and the tacit Agreement of
Men to put a value on it...”; money thereby “introduced (by Consent) larger
Possessions and a Right to them.[28] Thus, to use Locke’s
oft-quoted phrase, before men “agreed, that a little piece of yellow Metal,
which would keep without wasting or decay, should be worth a great piece of
Flesh, or a whole heap of Corn”, land and its products could not be
appropriated by one person in such large amounts that the rights of others
would be infringed.[29]
At this point in his discussion of property, Locke digresses to
present an argument for a labour theory of value. He begins by asserting that labour increases the common stock of
mankind. To illustrate this view he
uses the example of America. He argues
that a thousand acres of uncultivated and unimproved land in America would
support as many people as ten acres of cultivated land in Devon. In paragraph forty, Locke asserts that labour “puts the
difference of value on everything.” He argues that ninety-nine
percent of all the things that are really useful to the life of
man, are the products of labour. Locke
again uses the example of America to support his view, arguing that the poorest person in England is richer than any of the
inhabitants of America who, though they have plenty of lands and resources,
have not cultivated, tilled or otherwise “improved” them.[30] Although an acre of land in
England and an acre of land in America no doubt possess the same intrinsic
value, the benefit received from one is greater than the other. With land, as
with other items, “tis to [labour] we owe the greatest part of all its useful
products.”[31] Locke is preparing the way for
his explanation of the manner in which unequal
acquisition of property is justified. By arguing that labour increases the
common stock of mankind, he can present a partial justification for the unequal division of property, which occurs with
the introduction of money into societies.
In paragraph forty-five Locke discusses the emergence of
nations. In the beginning, he notes,
men simply made use of what “unassisted” Nature provided. But as people and stock increased and money
was introduced, lands became scarce and therefore more valuable. As a result, communities were formed and
their boundaries were established.
Within those communities laws of properties were also established to
regulate property. Nations, by their
tacit agreement to recognize each other’s boundaries, gave up their original rights to the commons. They have, in effect, settled a property amongst themselves. However, this is not true of
all the world. According to Locke:
...there are still great Tracts of Ground to be found, which (the Inhabitants thereof not having joyned with the rest of Mankind, in the consent of the Use of their common Money) lie waste, and are more than the People, who dwell on it, do, or can make use of, and so still lie in common.[32]
This is not the case
(lands still held in common), says Locke,
where men have consented to use money.
Locke talks here, as Aristotle did, of the difference between the value
of objects which inheres in their usefulness, and the value of things like money,
which are desired as commodities. Most
things which are useful in sustaining life are perishable. But things such as gold, silver and
diamonds, have value because of the “fancy and agreement” of men, not because
they are inherently useful.[33]
Until the introduction of money, the material and moral
limits of one’s property
could not be exceeded. If one had more
than one could use before it spoiled, one might trade it for other useful items
and this would not be considered a breach of the natural laws which bounded property,
since nothing had been left to spoil.
Men could also trade their surplus produce for non-perishable items,
such as shells or metal, etc. Again,
since nothing was allowed to spoil, the laws of nature were not violated; “the
exceeding of the bounds of [one’s] just Property not lying in the largenesse of
his Possessions, but the perishing of anything uselessly in it.”[34]
Since money does not spoil, it allows one to overcome the spoilage
limitation.
And thus came in the use of Money, some lasting thing that Men might keep without spoiling, and that by mutual consent Men would take in exchange for the truly useful, but perishable Supports of Life.[35]
By consenting to use
money, “Men have agreed to disproportionate and unequal Possession of the
Earth, they having by tacit and voluntary consent found out a way, how a man
may fairly possess more land than he himself can use the product of, by
receiving in exchange for the overplus, Gold and Silver.”[36]
In the Renaissance era, the discovery of the `New World’ and its
inhabitants had sparked new debates with respect to canon and Roman law.[37] In the initial stages of
`discovery’ of North America, the ecclesiastical authority of the Pope, based
on God’s grant of the world to all men, was used as a justification for
European nations to claim dominion over lands which were not under the control
of a Christian ruler.[38] As various European monarchs
began making overlapping claims to territories in North America, however, it became necessary to develop new political and legal
doctrines which would serve the rising nation states of Europe. In addition, the changes which were taking
place during the sixteenth and seventeenth centuries, especially the rise of
science and rationalism and the decline of ecclesiastical authority resulting
from the Protestant Reformation, required new ways of explaining the order of
human existence. The doctrine of
natural law fulfilled this need. As
Leonard Krieger notes:
Locke was one of those who found the concept of natural law useful in
deriving a political theory. In basing
his doctrine of property on natural law theory, he was following in the
tradition of two important political theorists who preceded him: the Dutch
jurist Hugo Grotius (1583-1645) and his student, the German philosopher Samuel
Pufendorf (1632-1694). All three of
these theorists were concerned with reviving the concept of natural law which
had existed since Roman times but had been largely superseded by theistic
doctrines, to provide a new, more rational justification for the modern
political and social order.
It is important to realize, however, that Locke, like Grotius and Pufendorf, developed his ideas
within the social and economic context of his day. More importantly, he
framed his theory of government with a
view to his own nation’s political and economic
interests. In the introduction to his
analysis of Locke’s Essay Concerning
Human Understanding, Neal Wood describes Locke in the following way:
Like the theories of
Grotius and Pufendorf, Locke’s doctrine of property was “tempered by the
exigencies of his own country’s colonial interests”, a fact which has
apparently either been overlooked or accorded little significance by modern
analysts of political theory.[40]
Natural law, especially as it applied to appropriation of new lands,
served to justify increasing territorial expansion by European
governments. Barbara Arneil uses the
telling example of Hugo Grotius’, Mare
Liberum (1609), which was written primarily as a justification for freedom
of the seas. In it Grotius develops a
theory of property which depends on the idea of enclosure. He argues that since the seas cannot be
enclosed, they are open to all and no national government can restrict the
access of another nation to any part of them.[41] Arneil notes that Grotius
originally developed this view of property to justify his nation’s claims
against the Spanish, with respect to trade in the East Indies. In 1611, however, when the English `joined the fray’ and began tapping into
trade in the East Indies, the Dutch were forced to defend their interests and
resorted to the same arguments the Spanish had used. Grotius, who was chosen to represent Dutch interests, was forced
to argue against the position he had previously advanced, in favour of an
unlimited right to freedom of the seas.[42]
Grotius’ subsequent work, entitled De Jure Belli ac Pacis, “On the Law of War and Peace (1620-25), was written primarily to provide
a justification for war as a legitimate
defense of self and property. To accomplish this
Grotius first had to define property.
Like Locke, he did this by theorizing a state of nature. It is with Grotius, that the comparison of America to a state of
nature originates.
Beginning with Grotius and followed shortly by John Locke, the state of nature as it has developed in political and Christian thought from Cicero to Aquinas is, with the seventeenth-century thinkers wholly grafted, without consideration for the implications, on to the European notion of America and its natives. Christianity and legal theory are fused and become, through natural law, the singular viewpoint for understanding the New World and its inhabitants.[43]
Roger Scruton describes
Grotius’ theory of natural law as being designed to suit the needs of the new
nation states of Europe. He believes
that the idea of natural law harmonized with existing principles of law, as
defined by ecclesiastical jurisdiction, but unlike religious law, it would
“command assent at all times and places, irrespective of whether there is some
power, secular or ecclesiastical, able to give support to its manifest moral
authority.”[44]
Samuel von Pufendorf also followed the natural law tradition which Grotius had developed.[45] Pufendorf was German born, but spent most of his career in Sweden as professor of law and later as court historian to the King of Sweden.[46] Those most familiar with Locke’s work, assert that it was Pufendorf’s De Jure Naturae et Gentium, which proved to be the greatest influence on Locke’s work.[47] This is a significant point, in view of the fact that Pufendorf’s theory of property and his view of the peoples of America, differed greatly from Locke’s. Unlike Grotius, Pufendorf was not concerned with providing a justification for colonial interests, an important point which can be attributed to the fact that the nation in which he was developing his ideas was not as aggressively expansionist in character.[48] This is reflected in Pufendorf’s formulation of natural law. Although he also begins by describing a state of nature he does not use the example of America. Pufendorf’s state of nature is something which existed only in the earliest stages of human development. In contrast to Locke, he does not see the peoples of America as constituting a contemporary example of the state of nature. According to Arneil, Pufendorf:
makes clear that he believes the inhabitants of the Americas are not atomized individuals within one great natural state, as Locke and Grotius seem to believe, but members of nations who must be treated with the same respect as those of European states.[49]
Like Grotius and Locke, Pufendorf
views natural law as a universal
concept which provides the basis for
all human social orders. But property is not
derived by Pufendorf in the same way as the other two theorists and it does not
play the same role. Pufendorf agrees that the world was given to all in common,
but he does not see this original grant as conferring a positive right
upon mankind; that is, the world is not owned by everyone, rather
the world “while owned by nobody, is open for use by everyone.”[50] This distinction is an
important one because, as Barbara Arneil
notes, it means that ownership is detached from appropriation.[51] Pufendorf concludes that
property ownership exists by convention, and is legitimate only so long as it
is agreed to.
The idea that ownership of property requires the consent of others is
the main point of attack for Locke in the works of Grotius and Pufendorf. He was greatly concerned to provide a theory
of property which did not rest on the idea of consent.
Locke was intent on basing his doctrine of the right to property on a notion of property-for-survival, a version of a labor theory of value. He eschewed the positions taken by both Grotius and Pufendorf - whose analyses of the origins of property he knew well - for they based the right of property on the concurrence of the rest of mankind. And throughout the Second Treatise he held fast to his refusal to rest the right of exclusive ownership on the consent of one’s fellows.[52]
It is interesting to
note that on the one hand, Locke makes a vigorous defense of property as a
“natural right” and not simply something which exists by convention. Yet, on the other hand, he admits that
money, the advent of which allows one to accumulate disproportionate amounts of
property, exists only by the agreement of men.[53] Apparent inconsistencies such as this one in Locke’s doctrine of
property become easier to understand when one examines his theory against the background of the economic interests of his nation.
Locke’s point of departure for his discussion of property is also to be found in God’s original grant
of the world to mankind. Like Grotius, Locke sees this as a conferring a
positive right of ownership to mankind; that is, everyone has a right to everything. The advantage of
this idea of positive ownership as it relates to the acquisition of colonial
territories, is aptly summed up by Arneil:
Nothing could reflect more clearly the aggressive colonialism of the Dutch and English than the assumption that we actually possess everything on earth and it is up to each individual person or nation to grab its claim before anyone else can.[54]
But it remained for
Locke to decide how this could legitimately be accomplished, without
constituting an infringement of the rights of others. Locke’s response to this problem
was the idea of labour.
An individual’s property in their own person mixed with some item of
nature through the labour which is expended on it, is sufficient to confer a
right of property in that item. Men
must preserve themselves; this is manifest not only in God’s directives as
stated in the Bible, but also in the nature of man’s physical existence. To subsist men must, according to Locke, be able to privately
appropriate items of nature.
Having thus justified private appropriation of lands originally given
to all, Locke must next provide a justification for unequal division of
property. He must conceive of a way in
which the natural limits to property of sufficiency, spoilage and labour, may
be overcome. Locke’s main concern was
to liberate the individual right to property from the difficulties inherent in
natural law. This he did by describing
the advent of a money economy. By consenting to use money, to attach value to
gold, silver or diamonds and to accept those things in return for commodities,
Locke argues that men tacitly agree to an unequal division of property. This is so for the simple reason that money
cannot spoil, and may thus be acquired in unlimited amounts.
The implications of Locke’s introduction of money into his theory,
what Herman Lebovics refers to as Locke’s “coin trick”[55], have been dealt with most effectively by C.B. Macpherson in his influential work: The Political Theory of
Possessive Individualism: Hobbes to Locke.
Macpherson was one of the first modern political theorists to note the
way in which Locke was able to justify unlimited private accumulation of
property.
The chapter on property, in which Locke shows how the natural right to property can be derived from the natural right to one’s life and labour, is usually read as if it were simply the supporting argument for the bare assertion offered at the beginning of the Treatise that every man had a natural right to property `within the bounds of the Law of Nature’. But in fact the chapter on property does something much more important: it removes `the bounds of the Law of Nature’ from the natural property right of the individual. Locke’s astonishing achievement was to base the property right on natural right and natural law, and then to remove all the natural law limits from the property right.[56]
Macpherson argued that
Locke was first and foremost an apologist for the rising bourgeoisie, a
mercantalist, concerned with justifying the accumulation of capital.
Yet many modern political analysts have disagreed vigorously with
this conception of Locke. They point
to references in the First
Treatise, in which Locke indicates that no one has a right “to retain
control over resources which are superfluous to his own needs” if those
resources could be used by someone else who is in extreme want.[57] Kristen Shrader-Frechette
argues, in explicit contrast to Macpherson’s thesis, that the limits which
Locke placed on property continue to apply even after the introduction of
money.[58] In presenting her case, however, she at times distinguishes between what may be deduced or
inferred from the text of the Two
Treatises, and what the historical Locke actually intended.[59] It is necessary for her to
make this distinction because it is quite clear that the historical Locke
certainly envisaged unequal division of property and capital, not only among
individuals, but among nations.[60]
One of the most influential defences of Locke against the charge of
being a spokesman for the rising bourgeoisie, is James Tully’s A Discourse on Property: John Locke and His
Adversaries.[61] Tully also points to Locke’s
references to the duty of charity, but goes further in arguing that Locke’s
philosophy is underwritten by religious doctrines in which the public good is
the primary consideration.[62] He locates Locke’s theory,
not in the social and economic context of his day, but rather in the natural
law discourse of the era which was influenced largely by religious teachings.
Like others who defend Locke against his capitalist leanings however,
Tully ignores the evidence of Locke’s own values and outlook, as he himself
expressed them. How, Wood asks, can
Tully’s Locke be reconciled with the Locke:
who justified slavery and invested in the slave trade, approved of indentured servants and the apprentice system, charged interest on loans to close friends and was always tightfisted and demanding in money transactions, recommended a most inhumane - even for his times - reform of the poor laws, and bequeathed only a minute proportion of a total cash legacy of over 12,000 pounds to charity?[63]
In addition, it is
quite clear that Locke saw nothing wrong with the social hierarchy of his
society, or with the effects of the enclosure movement, which eliminated the
means of subsistence of a large proportion of the population, leaving them to
either starve or lead a hand-to-mouth existence. Wood concludes that “on the basis of what we know of Locke and
his age, Tully’s argument that Locke was a social and political egalitarian
...simply transcends the bounds of common sense and empirical evidence.”[64]
Wood characterizes Locke not as a spokesman for mercantilist
interests, but rather as an advocate of agrarian capitalism. Wood draws attention to the fact that Locke basically distrusted men of commerce; such as, for example the founders of the Bank of England. In addition, Locke expressed a profound
interest in the science of husbandry.
This is reflected in Locke’s doctrine of property acquisition. He bases the right of property on the labour
which is mixed with nature, but he places emphasis on a particular type of
labour, the enclosure, tillage and cultivation of land. Locke expends a good deal of energy
defending this type of labour as contributing to the increase of the “common
stock of mankind.”
There is some empirical evidence which would support this characterization. One can look, for example, at the constitution which he and his mentor, the Earl of Shaftesbury drafted for the Carolinas, in 1669. In framing this constitution, Locke and Shaftesbury were able, in effect, to `start from scratch’, without being concerned with any pre-existing social structures.
The society they envisioned was to be a landed not a mercantile society. Commercial development, while it was to be encouraged, was to be strictly tied to the needs and interests of the landed proprietors.[65]
The conceptualization of Locke as a defender of property acquisition
by agrarian labour, is particularly relevant to the discussion of the
dispossession of Native peoples.
Locke’s view of property as being those lands which are cultivated,
tilled and otherwise `improved’ by human labour, was a powerful colonial
tool. The view of Native land use as
`wasteful’, which Locke expressed in the Second
Treatise, was extremely influential in colonial dealings with Aboriginal
peoples. It remains to be seen how this
influence was felt by groups such as the Passamaquoddy.