Land Sakes I

To properly understand the current issues facing the Forest Service one needs the context that comes with a knowledge of it’s history. I will attempt in the next few posts to outline those antecedents in terms of U.S. land policy, governmental and economic philosophy and cultural change. As you might imagine, this is a complex undertaking and I will only be able to skim those subjects sufficiently to develop my theses on how we got to the current state of affairs in the Service. I welcome comments, corrections and discussion if kept on a civil level.

For a hundred years, foresters-in-training across the United States have been regaled with the story of intemperate robber-barons of the 19th century destroying vast expanses of old-growth forest across the eastern United States. This led, so the story goes, to a fierce public backlash and the demand for action by the federal government to “do something.” On cue, two heroes step forth (in the form of Teddy Roosevelt and Gifford Pinchot) and rescue the threatened woodlands from the scalawags and put them (the woods) on the road to salvation through the application of enlightened science and hard-nosed regulation. Protection thus assured and the public protected our heroes, the Foresters, ride off into the woods on their white horses to continue their crusade to this very day.

A story to fit a Hollywood dream to be sure, but are there cracks in this ivory exterior? In a society oriented around and built upon the idea of rugged individualism and control over government excess, how is it that 230 years after its founding, the government is in the business of restricting access to and use of public land? If scientific management oriented to a flow of resources was the basis of scientific management of these “National Forests” in 1905, why the raucous debate about just that now, 100+ years later? Why, for that matter, is raw politics now substituted for science in the management of the forests? What has changed and are the forests the better or the worst for it?

Land Policy: First Settlement to the Founding

We have learned in previous posts that the Federal government owns 650 million acres of land. That is a staggeringly high percentage of government ownership of land and resources in a free society supposedly based on the beliefs of the founding fathers that the cornerstone of our freedom depends upon the widest possible distribution of land securely protected under a system of private ownership of property.

Why is it that, in a country that nearly from its very start valued private land above all other things, and distained governmental imposition into private areas, eventually got into the land ownership and production business? To answer that, requires some background in the American conception of land, its use and ownership and the antecedents of those ideas.

The founders as a group were very well-read men and well aware of English and European history, philosophy and economics and they picked and chose from this knowledge to form the concepts from which the new government arose.

They knew that in Plato’s conception, private property would be eliminated and all affairs would be run by elites. They were also well aware of their own antecedents in America and that those experiences were antithetical to Plato’s assertions. They knew, for instance, of the effects of communal ownership on the Plymouth Colony in 1620.

That colony was a business venture run by investors in London and was set up for a profit. The venture capitalists that loaned the money set such rules as would guarantee, to the extent possible, that the activities of the settlers in the New World would be oriented towards that profit. The fact that they would be beyond reach presented very real risk that, once removed from the investor’s immediate control, the settlers would become independent of and break away from their agreements. To avoid these risks the company insisted that “…all accumulated wealth was to be ‘common wealth’, or placed in a common pool, (so the investers could feel reassured) that the colonists would be working to benefit everyone, including themselves.”[1] For seven years, the settlers would work the land, sending 50% of their production home to England and dividing the rest equally among themselves. After 7 years, the debt would be paid off and the Pilgrims could continue the settlement as they saw fit.

In practice, however, production was abysmally low, so low in fact that starvation was a very real condition, and newcomers found those in the original complement with “…no bread at all, only fish or a piece of lobster and water.”[2] Older men complained of having to work the same as younger men; the younger that they worked much harder. Single men complained of working “…for other men’s wives and children, without any recompense.”[3] Men’s wives in their turn were “…commanded to do service for other men, dressing their meat, washing their clothes, etc., they deemed it a kind of slavery, neither could many husbands brook it.”[4] Other more or less egregious examples of problems presented themselves until, at last, as regarding the problems of attempting the “common course and condition” – or communal management of the land as agreed to in the articles of incorporation, Bradford reports, “…that the community was afflicted by an unwillingness to work, by confusion and discontent, by a loss of mutual respect, and by a prevailing sense of slavery and injustice.”[5]

The colony had been struck by the “free rider” problem. That is those who don’t contribute in equal measure are still able to receive in equal measure. In this case the lack of contribution could, and nearly did, result in the failure of the colony. Bradford then converted the land into private property, “…which brought ‘very good success’”[6]

The Framers of the Constitution understood property to be the foundational right that made all other liberties secure. They also saw private property as essential to the prosperity of the community.[7]

James Madison stated,"In civilized communities, property as well as personal rights is an essential object of the laws, which encourage industry by securing the enjoyment of its fruits."

Of the founding fathers, Jefferson is probably among the most quoted because of the large amount of his writings that still exist. In terms of land owned by the government, Jefferson wanted to get rid of all of it. He just wanted to give it away because he believed that a society of small farmers would be the most agreeable form of society for the new country. Hamilton, for his part, wanted to sell it all off to pay for the national debt remaining from the Revolutionary War.

Jefferson, a dedicated student of Anglo-Saxon history, advocated the ancient notion of land ownership practiced by the Anglo-Saxons before the Norman invasion of England:

“…Our Saxon ancestors held their lands, as they did their personal property, in absolute dominion, disencumbered with any superior, answering nearly to the nature of these possessions which the Feudalists term Allodial.”8]

In a letter to Edmund Pendleton in 1776 Jefferson spoke to his conception of the disposal or use of unclaimed American lands.

“The opinion that our lands were allodial[9] possessions is one which I have very long held, and had in my eye during a pretty considerable part of my law reading which I found always strengthened it”[10]

There was some question as to the efficacy of using the lands to bring a revenue stream to the public treasury or to manage them as tenure where tenants would have only the use of the land in exchange for services to the government. In the first instance he was distrustful of setting up a system whereby the government would be “…independent of its revenue” That is, could a government that didn’t have to depend on its governed citizens for the means by which to govern be trusted to maintain the protection of those same citizens as its main purpose. In the second instance, the system of tenures is, specifically, feudalism[11]. To that he said:

“Is not it's history well known, & the purposes for which it (i.e.Feudalism) was introduced, to wit, the establishment of a military system of defence?

Was it not afterwards made an engine of immense oppression? Is it wanting with us for the purpose of military defence? May not it's other legal effects (such as them at least as are valuable) be performed in other more simple ways? Has it not been the practice of all other nations to hold their lands as their personal estate in absolute dominion? Are we not the better for what we have hitherto abolished of the feudal system?”[12]

Jefferson also disagreed with Hamilton on the idea of the government selling the unclaimed lands to pay off Revolutionary war debts but, rather, advocated either to let the land be claimed by those who would use it (though he was clear that he thought they should appropriated in “small” quantities of 100 to 200 acres). He thought the country would eventually make more in economic activity than would ever be gained from outright sales that the country was in no position to monitor, saying “…They will settle the lands in spite of everybody.”[13] In this he failed as one of the first actions taken by the Congress under Washington’s administration was the passage of the “…Public Debt Act of August 4, 1790, which declared that the proceeds from the sale of public lands are ’hereby appropriated toward sinking and discharging the [national] debts’”[14]

What all of the founders did agree on was that they had land in gracious plenty and a largely subsistence economy combined with a small population. Despite the tendency of modern environmental thought to the contrary, the early land disposal methods were not short-sighted or foolish. Land and resources without the workforce to use it has little economic value. The problem for them was to increase the value of that land and, hence the national economy, by populating it with families that would use it to help the country to grow and prosper.

"Unhampered by the dying vestiges of a feudal order, America could create a mobile, industrial society without having to destroy and ancient anti-industrial heritage. America, however, had to overcome economic deficiencies, primarily insufficient population and capital.” [15]

This period of American history established that freedom is inextricably intertwined with private property, that land is the major property that can create wealth for the individual and that, in the interest of economic well-being of the country, all public land should be transferred to individuals as quickly as possible.

[1] Bethel, Tom, Http://www. Hoover.org,/publications/digest /3242801
[2] Ibid
[3] North, Gary, Puritan Economic Experiments, Institute for Christian Economics, Tyler, Texas
[4] Ibid
[5] Bethel, Tom, Http://www. Hoover.org,/publications/digest /3242801
[6] Ibid.
[7] James L. Huffman, J.D., Dean and Professor at Lewis & Clark Law School (I have lost the specific citation)
[8] John P. Foley, The Jefferson Cyclopedia-A Comprehensive Collection of the Views of Thomas Jefferson, The Funk and Wagnalls Company, 1900
[9] Allodial land was land which was so unquestionably held to belong to one particular family, free of any outside claims, that further justification for the family's exploitation of it (i.e. a written deed) or its devolving on the family's sons upon the death of the patriarch (i.e. a written will), were deemed unnecessary by the community who were familiar with the circumstances of the family's tenure. Further, the disposition of allodial land was strictly governed by the custom of partible inheritance, and alienation outside the paternal family was strongly discouraged by the common custom

[10] The Jefferson Cyclopedia, Edited by John P. Foley, The Funk and Wagnells Co., New York and London, 1900
[11] Feudalism was brought into England by William the Conquerer. When William asserted sovereignty over England in 1066, he confiscated the property of the recalcitrant English landowners. Over the next dozen years, he granted land to his lords and to the dispossessed Englishmen, or affirmed their existing land holdings, in exchange for fealty and promises of military and other services. At the time of the Domesday Book, all land in England was held by someone, and from that time there has been no allodial land in England. In order to legitimise the notion of the Crown's paramount lordship, a legal fiction - that all land titles were held by the King's subjects as a result of a royal grant - was adopted.
Under the system of feudalism, the lords who received land directly from the Crown were called tenants in chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn divided it among even lesser tenants. This process--that of granting subordinate tenancies--is known as subinfeudation. In this way, all individuals except the monarch were said to hold the land "of" someone else.Historically, it was usual for there to be reciprocal duties between lord and tenant. There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a lord. For instance, a military tenure might require the tenant to supply the lord with a number of armed knights.
[12]The Jefferson Cyclopedia, Edited by John P. Foley, The Funk and Wagnells Co., New York and London, 1900
[13] Ibid.
[14] Anderson, Gary M. and Dolores T. Martin, The Public Domain and Nineteenth Century Transfer Policy, Cato Journal, Vol. 6, No.3 (Winter 1987). Copyright Cato Institute, All Rights Reserved.
[15] Dubofsky, Melvyn, Daniel Webster and the Whig Theory of Economic Growth: 1828-1848, The New England Quarterly, Vol. 42, No. 4 (Dec., 1969), pp. 551-572 (article consists of 22 pages)