Zier on "Feminism, Insanity, and Property Rights in 1940s America"

Magdalene Zier (JD/PhD candidate, Stanford Law School) has posted "'Champion Man-Hater of All Time': Feminism, Insanity, and Property Rights in 1940s America," which is forthcoming in the Michigan Journal of Gender & Law. Here's the abstract:

Legions of law students in property or trust and estates courses have studied the will dispute, In re Strittmater’s Estate. The cases, casebooks, and treatises that cite Strittmater present the 1947 New Jersey supreme court decision as a model of the “insane delusion” doctrine. Readers learn that snubbed relatives successfully invalidated Louisa Strittmater’s will, which left her estate to the Equal Rights Amendment campaign, by convincing the court that her radical views on gender equality amounted to insanity and, thus, testamentary incapacity. By failing to provide any commentary or context on the overt sexism, these sources affirm the court’s portrait of Louisa Strittmater as an eccentric landlady and fanatical feminist.

This is troubling. Strittmater should be a well-known case, but not for the proposition that feminism is an insane delusion. Despite the decision’s popularity on law school syllabi, no scholar has interrogated the case’s broader historical background. Through original archival research, this Article centers Strittmater as a case study in how social views on gender, psychology, and the law shaped one another in the immediate aftermath of World War II, hampering women’s property rights and efforts to achieve constitutional equality. More than just a problematic precedent, the case exposes a world in which the “Champion Man-Hater of All Time”—newspapers’ epithet for Strittmater—was not only a humorous headline but also a credible threat to the postwar order that courts were helping to erect. The Article thus challenges the textbook understanding of “insane delusion” and shows that postwar culture was conducive to a strengthening of the longstanding suspicion that feminist critiques of gender inequality were, simply put, crazy. 

The full article is available here.

-- Karen Tani

Peck on the Failed Attempt to Tax West Virginia Coal

Alison Peck, West Virginia University College of Law, has posted Standard Oil, Consolidation Coal, and the Roots of the Resource Curse in West Virginia, which is forthcoming in the West Virginia Law Review:

Despite its natural resource wealth, West Virginia today ranks last among all states in its residents’ overall sense of well-being, a puzzle that economists call “the resource curse.” Much of West Virginia’s wealth, in the form of coal, oil, and gas, left the state in the late nineteenth and early twentieth centuries before the state could tax it. This discouraging story was not inevitable. In 1905, a Morgantown lawyer named George C. Baker led an effort to tax coal, oil, and gas leases as personal property that nearly succeeded. Baker and his allies, Governor William M.O. Dawson and Tax Commissioner Charles W. Dillon, won a high-profile court battle in 1905 against industries that had managed to defeat hot-button tax reform efforts in the legislature the year before. While powerful Standard Oil Company was resigned to comply as it focused on more threatening battles elsewhere, the coal industry resisted. Coal companies and their attorneys succeeded in diluting the new taxes nearly out of existence at the assessment stage under a theory that the West Virginia Supreme Court of Appeals would uphold in late 1906, changing course from its decision just a year earlier. Despite the efforts of Baker and his colleagues, the corporate reforms that prospered on the national level during the Progressive Era never took root in West Virginia. This history bears revisiting in the current debates over tax reform and the prospects for economic and social development of the state. 

--Dan Ernst

Berger on Race and Property

Bethany Berger, University of Connecticut School of Law, has posted Property to Race/Race to Property:

In the United States, property and race shape each other. This has been true since colonization and is equally true today.

First, property relationships shaped the distinct forms racism took for different racialized groups. Racism exists to explain and justify power and privilege of one group over another. But the goals of power and privilege vary across different groups, resulting in different stereotypes, legal and social barriers, and modes of control. This Article examines the racialization of African Americans, Indigenous peoples, ethnic Chinese, and racialized “off-White” ethnic groups to reveal the crucial role that a group’s relationship to valued resources plays in its distinct trajectory of racism.

Second, racial relationships shaped property law for everyone in the United States. The power to foreclose for debts, the power of local governments to zone, the public goods attached to residence, the scope of the welfare state’s “new property”—in these areas and many more, efforts to control, exclude, and take from racialized groups changed what property means today. This Article reveals the hidden histories of racially neutral rules and shows how they have undermined the security and equitable distribution of property for all.

Today, property law and rhetoric are often used to undermine measures that would increase the security, affordability, and autonomy that justify property in the first place. Revealing the racial roots of modern property rules, I hope, will create space for reform to achieve the liberatory and egalitarian norms that undergird our commitment to property.

–Dan Ernst

Fleming, "Ownership and Inheritance in Sanskrit Jurisprudence"

Oxford University Press has published Ownership and Inheritance in Sanskrit Jurisprudence (Feb. 2021), by Christopher T. Fleming (British Academy Postdoctoral Fellow, University of Oxford). A description from the press:

Ownership and Inheritance in Sanskrit Jurisprudence provides an account of various theories of ownership (svatva) and inheritance (dāya) in Sanskrit jurisprudential literature (Dharmaśāstra). It examines the evolution of different juridical models of inheritance--in which families held property in trusts or in tenancies-in-common--against the backdrop of related developments in the philosophical understanding of ownership in the Sanskrit text-traditions of hermeneutics (Mīmāṃsā) and logic (Nyāya) respectively.

Christopher T. Fleming reconstructs medieval Sanskrit theories of property and traces the emergence of various competing schools of Sanskrit jurisprudence during the early modern period (roughly fifteenth-nineteenth centuries) in Bihar, Bengal, and Varanasi. Fleming attends to the ways in which ideas from these schools of jurisprudence shaped the codification of Anglo-Hindu personal law by administrators of the British East India Company during the late eighteenth and early nineteenth centuries. While acknowledging the limitations of colonial conceptions of Dharmaśāstra as positive law, this study argues for far greater continuity between pre-colonial and colonial Sanskrit jurisprudence than accepted previously. It charts the transformation of the Hindu law of inheritance--through precedent and statute--over the late nineteenth, twentieth, and early twenty-first centuries.

More information is available here. And you can find an interview with the author here, at New Books Network.

-- Karen Tani

Park on Conquest and Slavery in the Property Course

K-Sue Park, Georgetown Law, has posted Conquest and Slavery as Foundational to Property Law:

This article demonstrates that the histories of conquest and slavement are foundational to U.S. property law. Over centuries, laws and legal institutions facilitated the production of the two commodities, or forms of property, upon which the colonial economy and the United States came to depend above all others: enclosures of Native nations’ land and enslaved people. By describing the role of property law in creating markets for lands and people, this article addresses the gap between the marginal place of these histories in the contemporary property law canon and the growing scholarly and popular recognition that conquest and enslavement were primary modes of property formation in American history.

First, this article describes how the field of property law has come to omit these histories from its common understanding of what is basic to its subject by examining property law casebooks published over 130 years. For most of their history, it shows, such casebooks affirmed the racial logic of conquest and slavery and contributed to these histories’ suppression in pedagogical materials. Early treatises avowed the foundational nature of conquest, but after the first property law casebook appeared, at the time of the close of the frontier, casebooks for more than half a century emphasized English inheritance, rather than acknowledging colonization’s formative impact on the property system. In the same period, the era of Jim Crow, casebooks continued to include many cases involving the illegal, obsolete form of property in enslaved people; when they ceased to do so, they replaced them with cases on racially restrictive covenants upholding segregation. After several decades, during which the histories of conquest and slavery were wholly erased, casebooks in the 1970s began to examine these histories through a critical lens for the first time. However, the project of understanding their consequences for the property system has remained only partial and highly inconsistent.

The central part of this article focuses on the acquisition of property, which, properly understood, comprises the histories of conquest, slavery, expropriation, and property creation in America. It examines the three main theories of acquisition—discovery, labor and possession-- beginning with the United States’ adoption of the Discovery Doctrine, the international law of conquest, as the legal basis of its sovereignty and property laws. In this context, it shows that the operative principle of the doctrine was not that of first-in-time, as commonly taught, but the agreement of European nations on a global racial hierarchy. Second, it turns to the labor theory, which was selectively applied according to the hierarchy of discovery, and firmly linked ideologies about non-whites and property value. It then reframes the labor theory’s central question—property creation—as a matter of legal and institutional innovation, rather than merely agricultural labor. It examines the correlation between historical production of property value in the colonies to show how the main elements of the Angloamerican land system developed through the dispossession of nonwhites-- the rectangular survey, the comprehensive title registry, headrights and the homesteading principle, laws that racialized the condition of enslavement to create property in human beings, and easy mortgage foreclosure, which facilitated the trade of human beings and land as chattel to increase colonists’ wealth. Third, it assesses how the state organized the tremendous force required to subvert others’ possession of their lands and selves, using the examples of the strategy of conquest by settlement and the freedom quests that gave rise to the fugitive slave controversy. Its analysis highlights the state’s delegation of violence and dispossession to private actors invested in the racial hierarchy of property through the use of incentives structured by law.

This article concludes by summarizing how the laws that governed conquest and slavery established property laws, practices, and institutions that laid the groundwork for transformations to interests in land after the abolition of slavery, which I will address in a future companion article. This article aims throughout to offer a framework for integrating the study of English doctrines regulating relations between neighbors-- the traditional focus of a property law course—into an exploration of the unique fruits of the colonial experiment -- the singular American land system that underpins its real estate market and its structural reliance on racial violence to produce value.

--Dan Ernst

GLHC: Ablavsky's "Federal Ground"

[I have the following announcement from my Georgetown Law colleagues K-Sue Park and Kevin Arlyck.   DRE]

The Georgetown Legal History Colloquium reconvenes next week with the first of a projected two online book talks.  On March 1, from 12:30-1:50pm EST.  Greg Ablavsky, Stanford Law, will discuss his new book Federal Ground: Governing Property and Violence in the First U.S. Territories (Oxford University Press).  Professors Paul Frymer, Princeton University, and Bethel Saler, Haverford College, will respond.  RSVP here.

Priest's "Credit Nation"

Claire Priest, Yale Law School, has published Credit Nation: Property Laws and Institutions in Early America (Princeton University Press):

Even before the United States became a country, laws prioritizing access to credit set colonial America apart from the rest of the world. Credit Nation examines how the drive to expand credit shaped property laws and legal institutions in the colonial and founding eras of the republic.

In this major new history of early America, Claire Priest describes how the British Parliament departed from the customary ways that English law protected land and inheritance, enacting laws for the colonies that privileged creditors by defining land and slaves as commodities available to satisfy debts. Colonial governments, in turn, created local legal institutions that enabled people to further leverage their assets to obtain credit. Priest shows how loans backed with slaves as property fueled slavery from the colonial era through the Civil War, and that increased access to credit was key to the explosive growth of capitalism in nineteenth-century America.

Credit Nation presents a new vision of American economic history, one where credit markets and liquidity were prioritized from the outset, where property rights and slaves became commodities for creditors’ claims, and where legal institutions played a critical role in the Stamp Act crisis and other political episodes of the founding period.

The YLS notice of the publication is here.

--Dan Ernst

Schorr on Nature as Norm in and Water Law in the British World

David Schorr, Tel Aviv University Buchmann Faculty of Law, has posted Nature Versus the Common Law: Nature as a Norm in the Water Law of the British World, which is forthcoming in Clio@Thémis 2021:

This article, written for a forthcoming issue of the journal Clio@Thémis on "Nature as a Norm", examines the water law of jurisdictions from across the "common law world" in the nineteenth and early twentieth centuries, a period in which increasingly intensive uses of water and watercourses around the world brought conflicts over water law into court with relative frequency. An issue that arose in a variety of contexts was the degree to which the rules of the common law of England with regard to water could or should be applied in territories characterized by environmental conditions that often differed radically from those found in England. A legal regime that seemed unremarkable in the home country often seemed a poor fit for the conditions of other, far-off lands, leading to friction between the law and the lived life of the colony and its natural environment.

The article explores some of the areas of water law in which courts around the common law world departed from the established rules of the common law in order to make the legal rules more appropriate, as they saw it, to the local environment. They did so consciously, explicitly granting nature normative force. It will also look at other courts and judges, ones that resisted this kind of normative claim, arguing that the law in new environments had to conform to the old common-law rules, regardless of what nature seemed to demand. Perhaps surprisingly, this discourse in far-flung jurisdictions about the potential legal force of local environmental conditions was at the same time a global one: Arguments were made not only about the differences between local and British nature, but also about the similarities between the natures of territories very distant and different from each other. Both types of environmental comparisons were seen to have normative significance.

--Dan Ernst

Weekend Roundup

• Emily Prifogle, Michigan Law and a Former LHB Associate Blogger hosts K-Sue Park for a discussion of how Professor Park uses history in her Property course at Georgetown Law (LPEblog).
  

• Shirley Abrahamson, who served on the Wisconsin Supreme Court for 43 years, has died.  Among her accomplishments is her SJD thesis, "Law and the Wisconsin Dairy Industry: Quality Control of Dairy Products, 1838-1929" (1962), written under the direction of James Willard Hurst. 

• Indiana University's Center for Law, Society & Culture has a speaker series on law and emotion in spring 2021. Nicole Wright's Feb.12 session will be on affective discourse in 18th-c. legal terminology. Register here.

• ICYMI: Jon Allsop on reviving the Federal Writers Project (CJR).  Bruce Carver Boynton, the plaintiff in Boynton v. Commonwealth of Virginia (US 1960), has died (Common Dreams). Clay S. Jenkinson on "Presidential Transitions and the Vagaries of America’s History" (Governing).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Cromwell Article Prize to Brady

We have word that the William Nelson Cromwell Article Prize, awarded by the trustees of the William Nelson Cromwell Foundation on the recommendation of the Advisory Committee on the Cromwell Prizes of the American Society for Legal History, has gone to Maureen E. Brady, Harvard Law School, for “The Forgotten History of Metes and Bounds,” Yale Law Journal 128 (2020): 872-1173.   From the recommendation of the ASLH committee:

…The subject of the article would not seem promising. … Though regarded by historians as a relic deserving only antiquarian interest, in Brady’s hands it commands our attention as a vital legal tool that enabled communities to use the law to impose order on an uncharted terrain through the creation of property rights.  It has long been a commonplace that recording boundaries and conferring title create rights in property, but Brady’s article gives new meaning to the practice.  Her mastery of seemingly arcane procedures and the legal rights they created reveals the many ways that the law of metes and bounds provided a supple and flexible means of securing the property rights that served the social and economic ordering necessary to foster communities bound together by law.  …

The ability to focus on apparently strange or insignificant aspects of a lost world and use them to cast light and provide surprising insights is the mark of a more mature scholar, but it is readily evident in this article.  Brady’s compelling argument is based on an exacting and concentrated study of the documents generated by the process of determining and enforcing metes and bounds.  Her analysis original and her noteworthy.  More than the other articles, it shows a real historical flair in terms of both the research and the presentation.  It does more than just marshal the past to make a point in the present—although, of course, that is what we expect of law review articles.  Rather, [it] is great history, excavating a past that that was lying in plain sight, but that no one had really bothered to explore.  She walks us through that world and its logic, which does not appear very logical to us today; by scrupulously reconstructing the way that these documents were created and used, she brings to life communal practices and legal activity in a world that we have lost.  Hence the humor, which she deploys masterfully.  Then she shows why that history is important today, recasting basic assumptions and opening up new ways of thinking about contemporary problems.

–Dan Ernst

Eves on Mort D’Ancestor and Collusive Conveyances

Collusive Litigation in the Early Years of the English Common Law: The Use of Mort D’Ancestor for Conveyancing Purposes c. 1198–1230 by William Eves, University of St. Andrews, currently is open access in the Journal of Legal History:

The extent to which real actions such as mort d’ancestor were used collusively for conveyancing purposes in the early years of the English common law is subject to debate. This article first discusses why parties to a transfer of land might engage in collusive litigation, before surveying the existing literature on the question of how collusive suits can be identified, and the suggestions which have been made as to the prevalence of collusive litigation in the late-twelfth and early-thirteenth centuries. It then discusses a method which may be used to provide a more precise answer to this question, and employs this method to uncover the extent to which mort d’ancestor could have been used collusively in the period c.1198–1230. It concludes with a suggestion that this method could be used in relation to other early common law actions to further our understanding of litigation and conveyancing in the period.

--Dan Ernst

Jarwala on Racially Restrictice Covenants and the Changed Conditions Doctrine

Alisha Jarwala, a 2020 graduate of the Harvard Law School, has posted The More Things Change: Hundley v. Gorewitz and 'Change of Neighborhood' in the NAACP’s Restrictive Covenant Cases, which is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review 55 (2020):

Racially restrictive covenants flourished throughout the United States in the early twentieth century. These private agreements prohibited the sale or rental of specific parcels of land to non-white individuals, with the goal of maintaining residential segregation. Today, the primary case associated with restrictive covenants is Shelley v. Kraemer, in which the Supreme Court used the state action doctrine to strike down restrictive covenants in 1948.

However, there was a road not taken. The NAACP challenged hundreds of restrictive covenants and lost the majority of these cases, with a notable exception in 1941: Hundley v. Gorewitz. In Hundley, a federal court struck down a racially restrictive covenant in Washington, D.C., under a different theory: the “change of neighborhood” doctrine. This doctrine allows a court in equity to declare a restrictive covenant unenforceable if there has been such a radical change in the neighborhood that the covenant’s original purpose has been defeated. NAACP lawyer Charles Hamilton Houston was able to persuade the D.C. Circuit that a racially restrictive covenant was unenforceable if a neighborhood was already becoming predominantly Black, and the Hundleys kept their home.

This Note seeks to provide a legal historical account of Hundley v. Gorewitz and the change of neighborhood doctrine in the fight against restrictive covenants. A close examination of this case and doctrine provides insights into the NAACP’s civil rights litigation strategy. First, Hundley demonstrates the NAACP’s desire to use litigation as a tool to educate the courts and the public about the social and economic impacts of restrictive covenants. In addition, the use of this doctrine highlights Houston’s legal pragmatism: Ideologically, the change of neighborhood doctrine was a compromise because it accepted the premise of segregated neighborhoods. In making this argument, Houston utilized the converging interests of white homeowners, who wanted to be able to sell their properties to Black buyers. Ultimately, Hundley and the change of neighborhood doctrine showcase Houston’s ingenuity, pragmatism, and forward thinking at a time when the NAACP faced long odds in the fight against housing segregation.

--Dan Ernst

Prifogle, "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971"

Emily Prifogle (University of Michigan Law) has posted "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971." Here's the abstract:

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force. 

The full article is available here. (h/t @WomenKnowLaw)

-- Karen Tani

Haksgaard on the Homestead Rights of Deserted Wives

Hannah Haksgaard, University of South Dakota Knudson School of Law, has posted The Homesteading Rights of Deserted Wives: A History, which is forthcoming in the Nebraska Law Review:

Mrs. Faro Caudill, Ironing (NYPL)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

–Dan Ernst

University of Michigan Race & Property speaker series

 [We share the following on a speaker series organized by Emily Prifogle at the University of Michigan this fall.]

Race & Property in Historical Perspective: 

A Series of Conversations about Research & Methods

K-Sue Park, Georgetown University

"Conquest and Slavery as Foundational to the Property Law Course"

Wednesday, September 23, 2020, 12-1pm.

Justin Simard, Michigan State University

"Citing Slavery"

Wednesday, October 14, 2020, 12-1pm

Taja-Nia Y. Henderson, Rutgers &

Jamila Jefferson-Jones, University of Missouri-Kansas City

"#LivingWhileBlack: Blackness As Nuisance"

Thursday, October 29, 2020, 12-1pm

For Zoom link or more information, e-mail: rickardj@umich.edu 

--Mitra Sharafi

Park on Conquest, Slavery and the Property Course

My Georgetown Law colleague K-Sue Park has posted Conquest and Slavery as Foundational to the Property Law Course:

This chapter addresses the foundational place of the histories of conquest and slavery to American property law and the property law course. It begins by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. It then shows how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history of resistance to Black landownership that its abolition fueled. This chapter suggests ways to correct for the tendency of traditional property law curricula to focus exclusively on English doctrines regulating relations between neighbors, rather than the unique fruits of the colonial experiment -- the land system that underpins its real estate market and its structural reliance on racial violence to produce value.

--Dan Ernst

Taiwan Legal History: A Symposium Issue

We note the publication of a special issue of Academia Sinica Law Journal (2019:1, in Chinese) entitled Law, History and Taiwan: The Development of Taiwan Legal History.  It commences with “The Emergence of Taiwanese Legal History and Its Becoming a Discipline,” by Tay-Sheng Wang, and continues with comments by Pengsheng Chiu, Hwei-Syin Chen, and Chueh-An Yen, with a reply by Tay-Sheng Wang.  The forum is followed by a series of articles:

Exploring Changes in Property Law in Taiwan: The Current Condition and Issues of Research on History of Property Law in Taiwan, by Wan-Yu Chen

Retrospect and Prospect of Taiwan Historical Research of Criminal Justice in the Recent Thirty Years, by Cheng-Yu Lin

A Review on Taiwan Legal Profession Studies (1992-2017), by Chun-Ying Wu

Bad (Wo-)man Theory of Traditional Chinese Law: From the Vantage Points of Adultery and Abduction Cases in Tan-Hsin Archives, by Yun-Ru Chen

Revisit Law and Development Orthodox through the Lens of Taiwan and China’s Development Paths, by Weitseng Chen

Hidden Hands: A Legal-historical Study of Youth Labor in Taiwan, by Yen-Chi Liu

The Development of LGBT Rights in Democratic Taiwan: An Analysis from the Perspective of Law and Social Movements, by Hsiao-Wei Kuan

--Dan Ernst

CFP: Imperial Artefacts

[We have the following announcement.  DRE]

Call for Papers: Imperial Artefacts. History, Law, and the Looting of Cultural Property

On 28 and 29 January 2021 the conference 'Imperial Artefacts: History, Law and the Looting of Cultural Property' takes place at Leiden University. Key note speakers during the conference are Prof. Dr. Jürgen Zimmerer (Chair for Global History at Hamburg University & Head of the Research Centre ”Hamburg’s (Post)Colonial Legacy”) and Dr. Matthias Goldmann (Junior Prof. for International Public Law and Financial Law at Frankfurt University). The organisers of the conference welcome paper proposals for 20 minute presentations. The deadline for submitting proposals is 31 August 2020.

Federal Grazing Policy, 1891-1950

Harold Ickes (center); Edward Taylor (left) LC

[Longtime LHB readers will recall that for the exam in my legal history course I write an essay about some regulatory regime I did not cover in class and ask students to compare it with the ones we did.  The topics of previous essays include motor carrier regulation, meat inspection, and the US Commerce Court.  This year’s essay, on federal grazing policy, follows.  Dan Ernst.]

The federal government once owned all the land in the continental United States, except for the original thirteen colonies and Texas. It disposed of most of the land in the East and Midwest through land sales, overseen by the General Land Office (GLO), an agency within the Department of the Interior.  After the passage of the Homestead Act of 1862, Americans could obtain title to 160 acres by paying a small fee, making some improvements, and residing on the “homestead” for five years.  By the 1890s, most fertile land was in private hands, but most of the land west of the 100th meridian, a line running from North Dakota through Texas, had too little rainfall for crops without irrigation and remained in the public domain.  The land was chiefly valuable for grazing, principally beef cattle, run by stockmen in specific ranges, and sheep, herded over great distances.  Aside from scattered homesteads (ultimately expanded to 640 acres for ranches), use of the public domain was unregulated, as the GLO’s mission was to distribute land and not to plan its wise use.  Range wars between large and small cattle operators and between cattle stockmen and sheep herders abounded.  The latter conflicts were particularly intense, because sheep left grass too short for cattle to graze upon, and cattle refused to graze where sheep were pasturing.  Cattlemen referred to sheep as “hoofed locusts,” yet, as Farrington Carpenter, a Colorado stockman who will play a large role in our story, once complained, “We had no way of keeping a sheep man off a cow range.”

Culter on the Single Tax and The Hebrew Bible

Joshua Cutler, University of Houston, C.T. Bauer College of Business, has posted A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible:

Henry George (NYPL)

Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.

–Dan Ernst