Private Property - The Cornerstone

Private Property

The Matter of History

The Cornerstone

By Stephen L. Wilmeth

            Alexis de Tocqueville, the French political writer in the 1830s, saw the American model in its purest form. He was not as much taken by the upper crust as he was the rough hewn frontiersman who didn’t have much, but could read his Bible and Constitution. His fiery display of passion for each simply amazed the Frenchman.

            It was a time in American history when a common theme was central to almost every decision made in courts of law. It was the most important factor that separated the pitiful stature of European subjects from their masters. It was what the American Revolution was largely fought for and it was the cornerstone from which all other freedoms emanated.

            Private property was the elixir of tyrannical dissolution. It was the great equalizer of the masses.

            Extending private property rights to the common man changed the world. It provided security never before seen, and it offered the key to sustaining independence. From England, William Pitt summarized it:

            The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

            Private Property Rights

             The conditions that triggered our Revolution were never before witnessed nor will they likely to be witnessed again.

            Although not yet fully free and independent, the Founders lived in a vacuum that was created by the distance from England and the abundance of land based opportunities. They were not fully bound by bureaucratic authority, but they were guided by their undeclared freedom through property ownership.

            There are suggestions they did not fully understand the importance of real property. An example is when Benjamin Franklin was in Ireland and asked to be shown how the rural citizenry lived. He was at first incredulous witnessing peasants coming out of their earthen burrows. Whereas Irish peasants had no property rights much less a voice in government, Americans benefited from the protection derived from property. A major manifestation was the freedom from want.

Although the initial interpretations of the Magna Carta were extended only to nobility, incremental changes eventually took root. Sir Edward Coke wrote in the first quarter of the 17^th Century that all men should have the right to own legally protected property. He was followed by the very influential John Locke who laid the modern groundwork for Enlightenment on a broader plain. Locke interpreted the Magna Carta and built a stronger rationale for the property rights for all men. He subscribed to less than more government, and all men should be granted freedom to enjoy life, liberty and estate. He had a profound impact on the Founders and his phraseology was borrowed in the words of Thomas Jefferson in our Declaration of Independence.

Next came one of the most important minds in the history of jurisprudence, Sir William Blackstone. Blackstone held that rights, and most specifically property rights, was an absolute right of free men. Its existence was to be treated inviolate and it carried with it the use and enjoyment without any control or diminution with the exception of basic laws of the land. His stance was one of honor and justice with expectation of its watchful protection.

Blackstone’s position was not simply philosophical. He knew the English system well enough to recognize the courts could not provide relief by precedent relating to the common citizen. Those actions did not involve property so the only recourse was to the King. If the King’s court agreed to hear the case, it was delegated to a Chancellor. There were never juries of peers and the outcome was based entirely on that official’s bias. There were no binding rights and the outcome was generational poverty and tyranny.

On the other hand, the American system was grounded in substantive titles of real property. Our first 80 years saw the American courts making sure no mere legislative enactment by Congress or governing bodies deprived the People of that most basic right. Ownership held sway. It equalized the masses, it expanded permanent wealth, and … it was the primary contributor to the equality of men.

Ranches and History

Range Magazine’s owner and editor, C.J. Hadley, and I recently had a discussion about our lives and the immensity of threats to our existence. It was dreary. Hadley acknowledged other people interpret it similarly. In the attempt to alter our story, she asked for something upbeat.

“Let’s describe the positive … the good ranch stories,” she instructed.

For so long, we have faced the wolves at our doorsteps with an attitude of permanent resentment. We have reason to be concerned. There are parts of the West that have suffered 70% cattle reductions since 1970. The lesson of those reductions will not be accepted if the premise is cattle never belonged there. On the contrary, we know that grasslands evolved under the hoofed herds of ungulates. We also know that the historical decline has been matched by the increases in the nation’s cowherd in areas that were not friendly to cattle. The forests, high humidity, parasite exposure, and summer heat of the east and southeast were not always natural confines, but free and independent men shaped cattle and managed the conditions. They made it work.

Those stewards were not faced with the relative deprivation of property rights as witnessed in the West where free use and enjoyment were systematically reduced or eliminated by regulatory absentee ownership. The ranching community now overwhelmingly points to the absence of legally protected property, but that is not just land. It implies property in a broader sense.

The matter of property must be understood. Property is defined as the sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of the right of any other individual in the universe. The cattle business has succeeded and grown in areas of difficult conditions because stewards were more exempt from strangling regulatory contravention witnessed in the West. Likewise, the West has declined in influence and productivity as the direct result.

An important point, though, does arise.

It is the matter at once intertwined, and yet separate and distinct from the debate over strict land ownership. It has to do with the summation of those matters of ranching units that, other than installation, stand distinct from land. Fence lines, pipelines, water storages, troughs, tanks and reservoirs, wells, levees, hay storages, feeders, protein storages, equipment barns, mechanical chutes, roads, homesteads, working corrals, gate locations, water gaps, traps, drift fences, and even garden spots are all generational investments. They didn’t just happen by chance nor were their designs and locations random. They were established through long term intimacy with the land. Collectively, these contributions have evolved into environmental systems. Our bankers view them as vital to our success. Our cattle cannot live without them, and, over time, all wildlife has become fully reliant on them.

They have value.

That value is represented in the appraisals done to secure mortgages and operating lines. When a ranching unit is transferred these features don’t go away. They remain with the land and their importance transcends the life of the steward.

That succession is exactly what James Madison described when he revealed his view of best history. The best history, he said, must be the fruit of contributions bequeathed by contemporary actors and witnesses, to successors who will make an unbiased use of them.

If we can’t own our land in the federally dominated West, we cannot also be deprived of the importance to the landscape these historical environmental systems have become. Without a doubt Madison would agree. He was so convinced of the importance of such property rights that he wrote:

Government is instituted to protect property of every sort … this being the end of government, that alone is a just government, which impartially secures, to every man, whatever is his own.

We have long witnessed the abuse of federal power. We have seen first hand how political majorities have oppressed rural communities. We cannot count on protection from any quarter that is grounded in conscience. The only safeguard for our now minority rights must come from the structure of the government itself.

All of the elements discussed in the series … generational knowledge, aggressive range management, range improvements, and private property have a tremendous value and, if allowed to freely occur, will result in the type of stewardship that benefits the resource, out local communities, and the nation. These ranches, these environmental systems, must be elevated into some degree of protection predicated on law and exempt from the regulatory assault of the land management agencies.

Only then will the departing words of Madison be equated to our mortal tenure under the Constitution … a consoling confidence that we shall at last find that our labors have not been in vain.

Stephen L. Wilmeth is a rancher from southern New Mexico. “Our stewardship, our cows, and our private property rights are fundamental to our existence. It is time we have legislated protection.”

Part I is here and Part II is here. 

I hope everyone will take the time to savor these three columns by Wilmeth.  Its one grand theme filled with nuggets of wisdom.  Your time will be well spent.