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Thesis

"Locke's Doctrine of Property and the Dispossession of the Passamaquoddy."

Mary L. Caldbick

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.

INTRODUCTION

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.

PART I: LOCKE’S DOCTRINE OF PROPERTY

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]

PART II: LOCKE’S INFLUENCES: GROTIUS AND PUFENDORF

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:

...[It is not] difficult to see why the idea of natural law, with its pre-Christian origins, with its obvious analogy to the laws of physical nature which were undergoing displacement from the cosmic scheme of Creation to the uniformities of specific equal phenomena, and with its appeal to the universal rational faculty in man, should be chosen as the new axis.[39]

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:

Contrary to the judgment of some, Locke was not a compartmentalized man of ideas who could file his philosophy and politics in separate pigeonholes. He was a philosophic partisan and a partisan philosopher, not a detached, disinterested, and transcendent truth-seeker.

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.

PART III: IMPLICATIONS OF LOCKE’S DOCTRINE OF PROPERTY FOR ABORIGINAL PEOPLES

One of the purposes of Locke’s chapter on property was undoubtedly to provide a justification for the appropriation of lands in North America already occupied by Aboriginal peoples. The well-known Locke scholar, James Tully, has recently turned his attention to the role played by Locke’s doctrine of property in the dispossession of Aboriginal peoples during the period of European colonial expansion in North America.[66] Tully argues that Locke purposely contructed his idea of property in contrast to Aboriginal forms of property, to negate the latter and to justify appropriation of Native lands in America by English settlers. This Locke was able to do by depicting America as a state of nature, and then contrasting it with Western `civilization’. By comparing the state of Aboriginal peoples to a state of nature, a pre-civil society, in which laws and government (as defined by Europeans), and property are effectively absent, Locke is able to argue that European appropriation of lands without the consent of Native peoples is justified.[67]

As has already been noted, Locke begins his chapter on property with the assertion that whether one appeals to Biblical teachings or to natural reason, it is clear that God has given the world to all men in common. This is an important element of Locke’s argument. Tully notes that Locke characteristically presents more than one line of argument, usually theistic and nontheistic, to defend his views from attack on either side. This, according to Tully, “offers the attractive promise of gaining the agreement of people with a plurality of philosophical starting points.”[68] Others have pointed out, however, that Locke had no choice but to base his arguments on ostensibly secular ideas such as natural law and reason because he was using the example of Aboriginal peoples, who obviously would not have had access to Scripture, to illustrate his argument.

Locke, who took the old Testament as history, interpreted Genesis I, 28 (which tells of God’s injunction to Adam to subdue the land and have dominion over the creatures) as giving Adam and his descendants land ownership in common. In the Second Treatise, Chapter V, Locke states that Reason as well as Revelation tells humanity this. This point is of course normatively important with respect to indigenous non-Christians peoples who lacked the Scriptures before the arrival of Anglo-Europeans.[69]

An important element in Locke’s characterization of America as a state of nature is his distinction between industrious and rational use of land as contrasted with the “waste” and lack of cultivation found among Aboriginal peoples. The effect of this distinction is to undercut what is, in actual fact, extremely rational and industrious land use by Native North Americans.

The planning, coordination, skills and activities involved in native hunting, gathering, trapping, fishing and non-sedentary agriculture which took thousands of years to develop and take a lifetime for each generation to acquire and pass on, are not counted as labour at all, except for the very last individual step (such as picking or killing) but are glossed as `unassisted nature’ and `spontaneous provisions’ when Locke makes his comparison.[70]

The idea that land not improved by human labour is `waste’, would, as Tully notes, have been sacreligious to Native peoples who saw nature as “alive and of infinite value independent of human labour.”[71] Moreover, it is arguable that in the long term, Western land use is actually less rational and certainly less ecologically sound than that of Native peoples. It is the `ethic of improvement’ which forms the basis for an exploitative view of nature, which in the present era has led to worldwide environmental degradation.

The distinction between the industrious, rational land use of Europeans and the wastefulness of Aboriginal peoples, not only serves to vindicate the appropriation of Native lands, it also underwrites the destruction of Native peoples themselves, should they resist encroachment by European settlers.[72] Those who did not follow the laws of nature in subduing and improving lands, as dictated by Genesis and the laws of reason, were declaring themselves to live by “another Rule than that of reason and common Equity.”[73] It was the responsibility, then, of Europeans as upholders of the law of nature, to punish the offenders.

Marilyn Holly argues, however, that Locke’s use of natural law in this case is “ill-suited to bear the normative weight he places on it.” She notes that in his Essay Concerning Human Understanding, Locke had argued that social and political phenomena could be classified as man-made ideas. He is thus effectively advocating the destruction of those who transgress what are not universal natural laws, but are, in fact precepts which are “speculative, probable, uncertain and corrigible.” She concludes that

Locke’s censure of Indians for `wasting’ land and his rather more than implied rationale in the Second Treatise for settler appropriation of allegedly wasted land really has no secure or certain basis in reason.[74]

The effect of Locke’s rationale was to place `right’ squarely on the side of settlers in defending the property they acquired by labour, while Native peoples defending their homelands, were relegated to the role of aggressors.[75]

A remarkable contemporary instance of the use of Locke’s theory

of property acquisition to justify the dispossession of Aboriginal peoples can be found in a recent article by Thomas Flanagan, published in the Canadian Journal of Political Science.[76] He defends the private appropriation of Native lands using Locke’s arguments about the increase in productivity which results from a private property regime. In addition, he points to the benefits of superior technology which are made available to Aboriginal peoples as a byproduct of European colonization. Flanagan concerns himself with defending Locke’s theory from attack on the basis that if it is extrapolated to include all societies, it would allow for the appropriation of territories in any society by any other group possessing superior technology or more efficient land use techniques. Flanagan’s response to this criticism is to argue that once original appropriation has taken place and land is brought under a private property regime, the market will provide for the efficient allocation of resources.

Flanagan goes further in his argument than simply examining the utilitarian considerations which he believes justify European appropriation of Aboriginal lands. He also delves into the moral questions surrounding the dispossession of Aboriginal peoples. In responding to the criticism that Locke’s doctrine serves merely to rationalize the asymmetrical acquisition of Native lands by Europeans, Flanagan argues that because Native peoples did not recognize each other’s territorial rights in any “lasting way,” Europeans were justified in appropriating Aboriginal lands.

By what moral principle can one claim today that the

Europeans could not appropriate lands in the same way

way as the Indians of the day were accustomed to do for

themselves? This not just to say that, since the Indians

treated each other badly, the Europeans were justified in

doing likewise. The point is rather the reappearance of

symmetry in the equal right of appropriation by Indians

and Europeans.

Despite the huge body of scholarship which has developed around the political theory of John Locke, it is only in the last decade that research has emerged examining the nexus between his theory of property and the Aboriginal peoples of North America.[77] Those who have recently shed light on the connection between Locke’s conception of property acquisition and the dispossession of Native peoples have demonstrated that his theory did, in fact, play a role in justifying the appropriation of lands occupied by various Native groups in the Thirteen Colonies. Locke’s theory of property was frankly quoted in discussions concerning the legitimacy of European territorial claims. [78] But the role of the Lockean conception of property in the Maine-Maritime region is somewhat more complex, owing to the fact that the struggle between French and English, and between English and American colonial regimes, influenced the way in which Native lands in the region were acquired by non-Native settlers.

CHAPTER TWO: THE FAMILY HUNTING TERRITORY DEBATE

The so-called `family hunting territory’ debate arose early this century, when anthropologists discovered what they believed was an Aboriginal form of property ownership. After more than two centuries of colonial presence in North America, the land-base of most Aboriginal groups had been drastically reduced. Without the means of gaining subsistence, Native peoples were left mostly destitute. No longer posing a threat to expanding North American empires, Native peoples became instead the subject of anthropological study. The mode of perception with respect to Native peoples had changed, but the underlying rationale - the affirmation of supposedly universal institutions such as property - remained the same.

The debate surrounding Aboriginal “property” ownership began in 1915 with the work of Frank Gouldsmith Speck, a pioneer ethnographer who was the first to describe what he termed the “family-owned hunting territory.” Following the tradition of his mentor, the German ethnologist Franz Boas, Speck adopted an orientation to ethnology which was a departure from the “armchair theorizing of nineteenth century Cultural Evolutionists.”[79] Speck’s approach to ethnology involved first-hand observation and description of Native cultures, often obtained from close contact with Native groups.[80] He described the family hunting system as a fundamental institution among all the Algonkian peoples, and indeed his studies included Algonkian groups ranging from Newfoundland to Northern Ontario.[81] The debate surrounding the discovery of family hunting territories reveals much about Western notions of property. More importantly, however, it reveals a great deal about the Aboriginal understanding of and relationship to the land.

At a very early stage in their studies of Aboriginal cultures, anthropologists noted that among most Native groups in North America, spirituality was animistic in nature. J.R. Miller explains the significance of such a spiritual belief system:

Animistic religions place humans in the physical environment without drawing any distinction or barrier between them and the physical world. Creation myths could vary from one nation to another, but the underlying understanding of what constituted being was the same for all Indians. All people, animals, fish, and physical aspects of nature were animate; all had souls or spirits.[82]

All spirits required respect, which was demonstrated in various ceremonies. This aspect of Native culture was also noted by Diamond Jenness, who argued that it was impossible to understand the culture of Northeastern Algonkians without some understanding of their interpretation of what they saw around them.

They lived much nearer to nature than most white men, and they looked with a different eye on the trees and the rocks, the water and the sky. One is almost tempted to say that they were less materialistic, more spiritually-minded, than Europeans, for the did not picture any great chasm separating mankind from the rest of creation, but interpreted everything around them in much the same terms as they interpreted their own selves.[83]

Frank Speck also saw this in Native culture. He characterized the Micmacs as “harmonic extensions of nature”, as conservationists, in tune with their surroundings.[84] Such an understanding of nature as “a continuum”, in which humans hold no special place, is incompatible with the idea of private ownership of property, as understood by Western societies.[85] Land was viewed as a gift from the Creator, which furnished the means of subsistence for his people. In many cases, Native peoples saw the earth as their “Mother”, and thus as regarded it as being sacred. The burning of tobacco and sweetgrass, were intended as a means of conveying thanks to the Creator for this gift. In an essay describing land ownership among the Iroquois and their allies, George Snyderman quotes the native leader Black Hawk:

My reason teaches me that land cannot be sold. The Great Spirit gave it to his children to live upon, and cultivate as far as necessary for their subsistence; and so long as they occupy and cultivate it, they have the right to the soil - but if they voluntarily leave it, then any other people have the right to settle upon it.[86]

Amongst many Native groups, there was an attitude of stewardship towards the land, “the belief that the land belonged not only to the present generation, but to all future generations.” Thus, no one generation would have the right to sell the land, thereby disinheriting those who would follow.

Snyderman’s essay supports this view asserting that, among the Iroquois and their allies at least, there was a communal view of land ownership. Specifically, there was the pervasive view among many Native groups that the land belonged to all those who inhabited it and no one individual could have, (or would have) made a personal claim to some part of it.[87] This view is further supported in an early essay by George Bird Grinnell, who speaks of the Aboriginal people of North America in general.

In the past the old people occupied this land, hunted over it, gathered fruits from it, or cultivated it; and as they passed away the same operations were performed by one generation after another; and after those now occupying it shall have passed from life, their children and their children’s children for all succeeding generations shall have in it the same rights that the people of the past have had and those of the present possess, but no others. This land cannot be sold by the individual or the tribe.[88]

When Native peoples did pass rights of occupancy to white people, what they were usually doing was lending them the use of the land. Leacock touches on this in the opening pages of her account of the Montagnais-Naskapi. She notes significantly that:

There is no material advantage to an individual hunter in claiming more territory than he can personally exploit. Nor is there any prestige attached to holding a sizeable territory, or emphasis on building up and preserving the paternal inheritance. Nor can land be bought or sold. In other words, land has no value as “real estate” apart from its products. What is involved is more properly a form of usufruct than “true” ownership.[89]

Her use of the term usufruct is significant. Usufruct, is defined, in Western legal tradition, as “the right of using and enjoying the property of another, usually for life, without right to change the character of the property.”[90]

In his article dealing with Maine-Maritime Native groups, Ray details the period between 1625 and 1675, when Native peoples signed deeds “conveying most of coastal Maine... from Kittery to Pemaquid to the English colonists.”[91] He argues that when deeds were signed by local tribes, there is evidence to suggest that they did not believe they would be giving up occupancy of the land forever. On the contrary, in fact, most Native groups tended to remain on the lands in question, and in some cases this fact was reflected in the deeds themselves.

The Maine Indian deeds of this period frequently contain rights these Indians reserved for themselves, while allowing the buyers to also enjoy the fruits of the land. The deeds with the rights reserved show that the Indians intended to live right where they had previously lived.[92]

Ray argues that most Native peoples could only have signed deeds of purchase, if they believed that they and their ancestors would continue to be able to use the land as before.

It seems clear that the Maine Indian deeds meant one thing to the Maine Indians and quite a different thing to the English/Massachusetts land buyers. It also seems clear that the land buyers knew that the Indians intended to continue to draw upon the bounty of the land they conveyed in these deeds and to continue their accustomed habitation locations.[93]

However, the fact that Native peoples in Maine reserved their right to use the lands even after sale, is interpreted by Emerson Baker to signify that they did, in fact, understand the concept of exclusive ownership. He argues, referring to the Kennebecs of seventeenth century Maine that:

Although it is possible that the Indians did not completely comprehend the English concept of exclusive ownership, these clauses in deeds guaranteeing continued native use of land argue otherwise. If the Indians did not understand the concept of exclusive ownership, why did they demand clauses stipulating the rights they would retain after sale? The Indians must have demanded these rights, for it is doubtful that the English grantees would have unilaterally surrendered them.[94]

But Ray’s opinion that Native peoples believed they were exchanging only usufruct rights, is supported by others, including William Cronon. In speaking of Aboriginal groups in colonial New England, he explains that when Native peoples exchanged rights to a particular piece of land, it was in fact “usufruct rights” which were being exchanged. Such rights lasted only as long as the land was in use and did not include many of the concepts which in the European mind are subsumed under the idea of property. Again, the notion of exclusive use comes into play, as Cronon explains, “...a user could not (and saw no need to) prevent other village members from trespassing or gathering nonagricultural food on such lands, and had no conception of deriving rent from them.”[95]

In reading the discussions regarding family hunting territories, one is struck by the ethnocentricism of various theories, by the total absence of any consideration of the views of Native peoples themselves regarding their relationship to the land. It is clear that Aboriginal land tenure cannot be understood in isolation from the culture of which it forms an integral part. Those involved in the hunting territory debate could only have concluded it represented an Aboriginal form of private property, by completely ignoring the Aboriginal interpretation and understanding of man and nature.

The family hunting ground system was thought to be an early form of Aboriginal property ownership because it represented a systematized distribution of specific areas of land occupied by a band or tribe. The territories were divided into “distinct and permanent tracts for more or less exclusive use by hunting groups of two to four related nuclear families.”[96] These tracts of land were supposed to have been owned “from time immemorial by the same families and handed down from generation to generation.”[97] Because the territories were controlled exclusively by a family or families, rather than a band or tribe, and because this control was passed from generation to generation, this system of land tenure was regarded as a form of private property.

The rationale for family hunting territories was based in part upon an ecological interpretation of Aboriginal subsistence patterns. The territories were thought to exi