Private Property and the Birth of a Free Society

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property. . . .

—William Blackstone, Commentaries on the Laws of England

The first principle and cornerstone of a free, just, and prosperous society is the recognition, inviolability, and protection of private property. The institution of private property—i.e., the right of exclusive possession, use, and disposition—is synonymous with the rise of civilization itself. No society has long existed without it. Indeed, there can be no freedom, no justice, and no prosperity without it. The acceptance, celebration, and protection of private property as an unalienable right is a reliable barometer of how much freedom, justice, and prosperity there is or will be in any given society.

Broadly speaking, this essay examines what property is, where it comes from, how it is acquired, why it is necessary for human flourishing, and, most importantly, the role it plays in building a free, just, and prosperous society. More specifically, I examine these issues in an American context, particularly in the light of the American Founding and the early decades of the nineteenth century. My working thesis is that America’s Founding Fathers and their immediate progeny consciously designed and built a free society grounded in the right to private property, which in turn led to the development of two corollary principles: the sanctity of contracts and the freedom of commerce. (I shall deal with contracts and commerce in the weeks to come.) Property, contracts, and commerce are inextricably and hierarchically related to one another.

DEFINING PRIVATE PROPERTY

Let us begin by defining our terms. 

Samuel Johnson’s famous Dictionary of the English Language (1775) defined the word “property” as the “Right of possession” and as “Possession held in one’s own right.” Noah Webster’s no less famous American Dictionary of the English Language (1828) defined the word property as “The exclusive right of possessing, enjoying, and disposing of a thing; ownership,” and as “Possession held in one’s own right.”

Let’s breakdown these definitions to better understand their full meaning. The three key words in these definitions are “possession,” “right,” and “ownership.”

Johnson and Webster both used the word “possession” as both a noun (i.e., a thing) and as a verb (i.e., to possess or the act of possessing). The Englishman defined the noun “possession” as “That which justly belongs to one” and as “The thing possessed.” He defined the verb “to possess” as “To have as an owner; to be master of; to enjoy or occupy actually” and as “To seize; to obtain.” The American defined the noun “possession” as “The having, holding or detention of property in one's power or command; . . . either rightful or wrongful” and as “The thing possessed; land, estate or goods owned.” Webster also defined the verb “possess” as “To have the just and legal title, ownership or property of a thing; to own; to hold the title of, as the rightful proprietor, or to hold both the title and the thing” and as “To hold; to occupy without title or ownership.” In other words, there are things to be possessed.

There is an important distinction to be made between possession and ownership. Possession de facto refers to the physical control of things, but things can be possessed that are not owned de jure. One can take possession of a thing, for instance, by force or fraud. This is why the word “right” is a necessary condition for a proper definition of property. The word “right” is a moral-legal concept, and hence property as distinct from possession is a moral-legal concept.

Johnson defined the word “right” as a Just claim” and as “That which justly belongs to one.” Webster defined “right” as a “Just claim; legal title; ownership; the legal power of exclusive possession and enjoyment” and as “That which justly belongs to one.” The word “right” as it was understood in the eighteenth and nineteenth centuries was synonymous with or a part of justice. The English lexicographer defined the word “justice” as “The virtue by which we give to every man what is his due,” or as “Equity; agreeableness to right: as, he proved the justice of his claim.” Likewise, the American lexicographer defined justice as “The virtue which consists in giving to every one what is his due; . . . honesty; integrity in commerce or mutual intercourse,” or as “Equity; agreeableness to right; as, he proved the justice of his claim.”

Taken together, the concepts “possession,” “right,” and “just” give rise to the concept “ownership,” which Samuel Johnson defined as the “rightful possession” of property and Noah Webster defined as the “exclusive right of possession.” Ownership means the indefinite right of exclusion, which in turn means the exclusive right to keep and dispose of a good or service by right.

In sum, then, the idea of private property denotes a relationship between a person and a thing. Giles Jacob, author of one of the most influential law dictionaries of the eighteenth century, defined property as “the highest Right a Man hath or can have to any Thing.” Sir William Blackstone, possibly the greatest English jurist of the eighteenth century, defined property in his Commentaries on the Laws of England as “that 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 primary characteristics of private property are possession, ownership, use, and disposition. This “bundle” of rights or claims can be broken down further to include transformation, development, consumption, and transference. In turn, the transference of property can be horizontal (e.g., selling or giving it to others during one’s lifetime) and vertical (e.g., passing down one’s property to others after death).

Property rights are a license to acquire, use, and trade, and they put up moral-legal fences around that which is owned. More simply, the conventional law of property prescribes the means by which men acquire, keep, and transfer their property, but it does not and must not prescribe the ends to which men will use their property (assuming those ends do not include violating the rights to life, liberty and the property of others). The purpose of private property is to distinguish between mine from thine.

These definitions and characteristics raise the question: what makes the possession of property just? In other words, what gives rise to the justice of property? Why is the concept “private property” first and foremost a moral concept, even before it’s a legal concept?

THE ORIGIN OF PRIVATE PROPERTY

As a moral concept, private property arises out of the conditions and requirements of human life. Consider this simple fact: man must think, work, and produce to live and to live well in the short- mid- and long-term. The alternatives are to either die or to become a slave. If, for instance, Robinson Crusoe does not support his life by goal-directed work and production of some kind, he will die. The rightful or just possession of things, though, requires some kind of individual thought and action that gives value to the thing acquired and possessed—a value that it did not previously have. (“Things” do not have intrinsic value; they only have value to those who can and do value them.) This fact of existence gives rise to the claim that men should own what they acquire or produce. There can be no just moral claim to possess or own something that was produced or earned by the effort of someone else. That would be slavery.

The right to property emerges from the fact that each individual owns and controls his mind and his labor, and therefore must control and own that which he produces. Property is the thing that is produced by this process (i.e., the process of thinking, working, producing, and keeping), and it is from this process that the concept “ownership” comes into being. In sum, the right to property is the right to produce goods and services, and then keep them, use them, transfer them, and dispose or trade them to the exclusion of others. Private ownership of property is morally justified on the grounds that people deserve to own what they have discovered, created, or transformed.

The creation, possession, use, and disposition of property comes in a myriad of different forms, particularly as society becomes more complex. This fact gives rise to the need to develop laws that protect all forms of property. As a convention, the law of property establishes certain rules and procedures for the acquisition, maintenance, protection, and transfer of property, but once those conditions have been met, owners may use their property as they see fit. This is the private in private property. Private property means exclusive ownership.

Without the recognition and institution of private property, society will inevitably degenerate into what the seventeenth-century English philosopher Thomas Hobbes called a “state of nature,” where life is “solitary, poor, nasty, brutish and short.” Absent the recognition and enforcement of property rights, men and women have little incentive to improve the condition of their lives; indeed, their only real incentive is to take the possessions of others by force or fraud. Thus, the eighteenth-century French philosopher Jean-Jacques Rousseau got it exactly wrong in his Discourse on the Origin and Foundations of Inequality Among Men when he suggested that the “first person who, having fenced off a plot of ground, took it into his head to say this is mine” was the source of all evil in the modern world.

The freedom and ability to acquire and keep property is therefore a powerful incentive for individuals to work, and this is doubly true if they have the freedom and the ability to trade their property with others. A private property order also motivates people to be responsible for that which they own and to respect the property of others. As a result, men and women experience firsthand a core moral principle: That you reap what you sow. In a free society that protects private property, the industrious and frugal will benefit from their actions, and the lazy and profligate will suffer according to their actions. Hence, the free society grounded in private property is the model of a moral and just society.

THE FOUNDERS ON PRIVATE PROPERTY

The American Revolution was incited by colonial Americans for the right to own and keep property as an inalienable right—a right grounded not primarily in the English common law but ultimately in man’s nature. Parliament’s passage and enforcement of the Sugar, Stamp, Townshend, Tea, and Boston Port acts were direct attacks on the colonists’ rights to own property and to control its use and disposition.

The Americans fought for individual ownership of property as a fundamental, natural right that could not and should not be taken without their consent. The Declaration of Independence lists amongst its many grievances against George III and the British Parliament the following complaints that violate the colonists’ property rights:

• “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.”

• “For cutting off our Trade with all parts of the world.”

• “For imposing Taxes on us without our Consent.”

As I demonstrated in America’s Revolutionary Mind: A Moral History of the American Revolution and the Declaration that Defined It (2019) and, more recently, in “Constitutionalizing the Private Property Order,” America’s revolutionary Patriots and Founding Fathers viewed private property as a formal legal convention, but one grounded ultimately in human nature and natural right.

Unlike their more traditional English counterparts, American revolutionaries considered private property to be a natural right (by which they meant as a condition or function of human nature) that was more than just the inherited, traditional right of Englishmen, and they viewed it as much more than just an economic concept. The Founders’ viewed the right to and protection of property as an objective, absolute, timeless, and universal moral principle that is a necessary precondition for a flourishing and free society.

The Founding generation’s view of property was ably summed up by Justice William Paterson in the 1795 Supreme Court case, Vanhorne’s Lesseee vs. Dorrance:

It is evident; that the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society. No man would become a member of a community, in which he could not enjoy the fruits of his honest labour and industry. The preservation of property then is a primary object of the social compact.

But where exactly did the Founders’ think property comes from? What did they think was the deepest source of private property?

The Founders viewed the right to property as an existential consequence of the rights to life and liberty, and it was a cause of the right to the pursuit of happiness. The right to property is, in many ways, the architectonic right. It is the right to think, create, work, produce, and to keep the results of one’s thought, work, and production. In fact, “the right of property,” Virginia’s Arthur Lee declared in the name of all Americans, “is the guardian of every other right, and to deprive a people of this, is in fact to deprive them of their liberty.” Lee might just as well have said that without the right to property there can be no right to life or to the pursuit of happiness. Without the right to property, it is not possible for men to sustain their lives in any reasonable or meaningful way. In other words, the right to property is a right to take those actions necessary to sustain one’s life and to improve one’s condition.

The Founding generation understood the right to property was grounded in the right to liberty, which in turn was grounded in the right to life. John Adams saw the two-way connection between property and liberty: on the one hand, “property cannot be secure unless the man be at liberty to acquire, use, or part with it, at his discretion, and unless he have his personal liberty of life and limb, motion and rest, for that purpose,” and, on the other hand, “Property must be secured, or liberty cannot exist.” Liberty is the prerequisite and necessary condition for acquiring, keeping, and trading property, and the security of property is likewise necessary to exercise higher forms of liberty. Property and liberty are intertwined principles.

The primary right of acquiring, possessing, protecting, trading, or disposing of property was understood by the founding generation to be grounded morally in human nature—in the metaphysical rights that individuals have as self-owning and self-governing beings. Thomas Jefferson, for instance, believed that the source of man’s “right to property is founded in our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings.” Jefferson understood that the freedom to think and act is the “means” by which men satisfy their needs and that man’s right to keep the fruits of his labor is an extension of man’s requirements for living and living well.

Because no man is a slave by nature, then all men are by nature self-owning and what they mix their own self with becomes theirs as an extension of their self-ownership. The right to property is simply an extension of the means by which men protect their right to life when they live in the presence of other men. Justice therefore demands, according to Jefferson, that the right of all persons to acquire, use, and part with their property be recognized and protected in law. Jefferson summed up his understanding of property and the need to protect it this way:

To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, “the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.”

Property ownership is, therefore, an extension of the fundamental right of life and self-ownership, which means the freedom to think and act. The Founding generation also recognized the self-evident truth that individuals think and act in different and sometimes unequal ways, and that this fact must likewise be recognized as part of the right to unequal property holdings. As James Madison put it in the tenth essay of The Federalist: the rights of property originate in the “diversity in the faculties of men,” and it was the “protection of these faculties,” he continued, that “is the first object of government.” The legal protection of property rights by government is a recognition of man’s nature and the conditions of his survival and flourishing.

Shortly after the Bill of Rights was ratified in 1791, Madison extended and deepened his understanding of the role of property in a free society by clearly defining what property is and by demonstrating the positive and negative roles played by government in protecting and destroying property rights. In a remarkable essay titled “Property,” Madison defined property ownership as consisting of two elements: first, property is, he wrote, paraphrasing the English legal jurist, William Blackstone, “‘that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual’”; and second, property “embraces everything to which a man may attach a value and have a right, and which leaves to every one else the like advantage.”

By the former definition of property, Madison included “a man’s land, or merchandise, or money.” Madison’s latitudinarian definition of property was supported by most other members of the Founding generation. Noah Webster, for instance, viewed investments and money as forms of property that were to be protected from individual fraud or theft and from government expropriation. Money, wrote Noah Webster, is “a species of commercial property” in which individuals must have “complete ownership” as a moral right of nature that can be sold, loaned, purchased, exchanged, or invested “to any advantage” as so long as “the minds of the parties meet in the contracts.” He viewed any attempt to regulate the free flow of money as an infringement of individual rights. Webster believed that market forces and only market forces should determine value of money which, like any other commodity, is determined by the “quantity in circulation and the demand.” Freedom to invest and freedom to loan or borrow should be unrestricted by government and left to self-interest and the automatic and self-correcting mechanisms of the market.

By his latter definition of property, Madison included as property the ownership a man has “in his opinions and the free communication of them.” In this second category, Madison included the right a man has “in the free use of his faculties, and free choice of the objects on which to employ them,” such as, for instance, to his “religious opinions, and in the profession and practice dictated by them.” Madison’s deepest insight into the nature of property rights was his claim that “as a man is said to have a right to his property, he may be equally said to have a property in his rights.” To have a property right in one’s rights begins with the idea of self-ownership, which implies the right to self-governance.

By logical extension, self-governance and private property create a protected space for the individual in which he must be free from intrusive State power. Private property creates autonomous spheres of freedom, where individuals may act without permission or interference. Colloquially, it says that a man’s home is his castle, which must not be breached by government. The right to private property is an important bulwark against State power. Property rights set clearly defined limits to what men or governments may do. Tens of millions of privately owned homes provide, for instance, a safe space for men and women to exercise their freedom absent the prying eyes of the State. The private ownership of property keep men and women safe, and it also motivates them to improve the value of their property. Property neglected loses its value, and property improved increases in value. In other words, the protection of private property is not only a mechanism for individual self-improvement, but it is the means by which the overall wealth of a society increases.

THE ROLE OF GOVERNMENT IN PROTECTING MAN’S PROPERTY RIGHTS

The great question for Madison and the founding generation was to determine the precise role that government should play in protecting property rights, while at the same time recognizing that government is often the greatest threat to property rights. On the one hand, Madison understood that “Government is instituted to protect property of every sort,” which means that the purpose of a just government is to impartially secure “to every man whatever is his own.” On the other hand, he also knew that “Where an excess of power prevails, property of no sort is duly respected.” More specifically, an unjust government is, according to Madison, one where a man’s property “is violated by arbitrary seizures of one class of citizens for the service of the rest.”

Madison then went on to identify two broad categories in which governments have historically violated the rights of property. First, governments often violate property rights when and “where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties and free choice of their occupations which not only constitute their property in the general sense of the word, but are the means of acquiring property strictly so called.” Second, Madison also called out as unjust those instances when government arbitrarily takes the property of its citizens, such as “unequal taxes” that “oppress one species of property and reward another species; where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Madison opposed those forms of taxation that were designed to hurt one social order over another.

Madison concluded his essay on “Property” with a remarkable statement on the role of a just government in a free society:

If there be a government, then, which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly, even for public use, without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties—nay, more, which indirectly violates their property in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares—the inference will have been anticipated that such a government is not a pattern for the United States.

Madison, the man known as the Father of the Constitution, hoped that America’s state and federal constitutions would provide a beacon and a “pattern” for the rest of the world by showing an equal respect in their governments for the “rights of property and the property in rights.”

The pursuit of property and the moral right to it provided the Founders with the modus vivendi and the modus operandi of government. Property as a fundamental right is connected, as Thomas Jefferson wrote, to “the first principle of association,” which is to “‘guarantee to everyone of a free exercise of his industry, and the fruits acquired by it.’” The founding generation viewed the protection of private property as a necessary condition for civil society. There could be no association, which means there can be no community, without the recognition and protection of private property. Private property is the recognition of the law’s protection against the intrusions of arbitrary private or public force. John Adams’s understanding of what property is and why its protection is critical to creating and preserving a free society was typical of the founding generation: “The moment the idea is admitted into society, that property is not as sacred as the laws of God and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.”

American Revolutionaries viewed the protection of property as the primary function of government. According to Jefferson, “The true foundation of republican government is the equal right of every citizen in his person and property, and in their management.” The right to property must be recognized and protected by a government that clearly defines and sanctions the right to possess and use property. This function was typically done in eighteenth- and nineteenth-century America by establishing offices for the recording of deeds and the passing of laws that criminalize the stealing of property and tort laws that cover the damage to privately-owned property.

The role of a just government in a free society is to protect owners against the expropriation of, or damage to, their property (including transportable goods and money) by other individuals or by one’s own government. Property, wrote Tench Coxe of Philadelphia, is the “palladium of communities.” When individuals or governments expropriate (i.e., steal) private property without the owner’s consent, other rights are denied as well, including life, liberty, and the pursuit of happiness. The peace, civility, and prosperity of civil society is best protected when individuals have a right to keep and trade what is theirs with others.

CONSTITUTIONALIZING PROPERTY RIGHTS

In accord with their views on property rights and the role that governments should play in protecting them, America’s revolutionary constitution-makers wove the right to property into their new state constitutions to limit the power of government. The Virginia Bill of Rights (1776) claimed that property is an “inherent” right; the Pennsylvania Constitution (1776) declared that all men had the “inherent and inalienable” right of “acquiring, possessing, and protecting property”; and the Massachusetts Constitution (1780) declared the protection of private property to be a “natural, essential, and inalienable” right. After the first round of revolutionary constitution-making in the 1770s, the New Hampshire Constitution of 1784 likewise declared: “All men have certain natural, essential, and inherent rights; among which are—the enjoying and defending life and liberty—acquiring, possessing and protecting property—and in a word, of seeking and obtaining happiness.”

The right to property was also a central principle of the Northwest Ordinance of 1787, which declared:

No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.

The Constitutional Convention that met in Philadelphia during the summer of 1787 was convened, in large part, to secure private property as a fundamental right of American private and civic life. The Constitution’s framers understood the legal status of property ownership to be a barrier that protected individuals from unjust government coercion.

Most delegates favored the creation of a national government that would protect property rights, establish credit by paying the public debt, and promote commerce. South Carolina’s John Rutledge advised the convention’s delegates that “Property was certainly the principal object of Society,” by which he clearly meant that the protection of private property was the raison d’être for the coming-into-being of society and the creation of government. Likewise, Alexander Hamilton announced, “One great objt. of Govt. is personal protection and the security of Property.” James Madison also declared that “we ought . . . to provide every guard to liberty that its preservation cd. Require” and that “the primary objects of civil society are the security of property and public safety.”

The framers understood that liberty could never be secure if property were not secure. This is why Madison suggested adding to the Constitution a definitive statement on the absolute necessity of protecting private property: “That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.” Regrettably, Madison’s recommendation was not accepted by the convention.

How does the Constitution protect the right to private property?

The primary means by which the Constitution protects private property is indirectly by limiting the power of the national government to do so, primarily via the separation and division of powers. More directly, the Constitution prohibited Congress from enacting bills of attainder and ex post facto laws, giving preferential treatment to the port of any state, levying export duties, and imposing direct taxes unless apportioned among the states according to population (see Article I, section 9). The Constitution also vested Congress with the authority to establish “uniform Laws on the subject of bankruptcies throughout the United States,” to award copyrights and patents to authors and inventors “for limited Times,” and to “make Rules for the Government and Regulation of the land” (see Article I, section 8). The Constitution’s protection of copyrights and patents gave to creators and inventors time-limited grants of exclusive privilege to encourage literary and scientific works and technological discoveries.

The Constitution also placed specific restrictions on the power of the states to violate property rights and redistribute wealth. For instance, the Constitution forbade the states from taxing imports and exports, enacting bills of attainder, issuing bills of credit or making anything but gold or silver coin legal tender for the payment of debts, and, most importantly, forbidding the states from any law “impairing the obligation of contracts” (see Article I, section 10).

The Bill of Rights added further protections to private property. The most explicit protection of property rights is found in the Fifth Amendment, which contains two important guarantees for property rights. First, the amendment declares that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The “due process of law” and “just compensation” clauses put stringent limits on what government could do in taking or redistributing property by requiring government to follow established modes of procedure and to provide just compensation to property owners if necessity requires the government’s use of its eminent domain power.

POST-FOUNDING VIEWS ON PROPERTY RIGHTS

Up through the Civil War, America’s leading jurists shared and implemented the Founders’ understanding of property rights. According to James Sullivan, a distinguished Massachusetts jurist, a free and civil society is achieved when every individual “has a clear right to gain all the property which vigilance and industry . . . can bestow upon him.” In his highly regarded and influential Commentaries on American Law (1826-1830), James Kent, one of America’s leading nineteenth-century jurists, designated “the right to acquire and enjoy property” as one of the “absolute rights of individuals.” Just two years after Kent published the second volume of his Commentaries, that other great antebellum American jurist, Joseph Story, announced in Wilkinson v. Leland that “government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred.”

In the years after the Revolution, state governments one after another began the process of dismantling the old colonial (i.e., feudal) laws on primogeniture (i.e., the legal provision requiring the estate of deceased landowner to go the eldest son), entail (i.e., the legal provision preventing estates from being broken up), and quitrents (i.e., a yearly payment on land due to a king or a proprietor.) The old regime of static, feudal property holdings simply did not make sense anymore in the light of the newly emerging liberal view of human nature, society, and justice as well as the mass migration of pioneers moving westward through the Cumberland Gap and other passageways to the trans-Appalachian West.

In 1792, Dr. S. L. Mitchell declared to the Agricultural Society of New York that ending the laws of entail and primogeniture would restore “the natural right of every man to a certain part of the earth’s surface.” A decade later, Vermont’s Jeremiah Atwater declared that in America the “feudal distinctions between tenant and lord are . . . unknown.” In the decades after the Revolution, the great task confronted by America’s property-rights regime was to establish a legal system and body of law that could assess, record, and protect new property titles to hundreds of millions of acres of land. (The Louisiana Purchase of 1803 alone acquired 530,000,000 acres of land!)

As late as 1846, New York State was still dealing with the abolition of feudal land tenures along the banks of the Hudson River. In its constitutional convention of 1846, the convention’s delegates abolished permanently feudal land tenures (an inheritance from its colonial past) and established allodial ownership of property as an absolute right. Article I, sections 12 and 13 of New York’s third constitution states:

§ 12. All feudal tenures of every description, with all their incidents, are declared to be abolished, saving, however, all rents and services certain, which at any time heretofore have been lawfully created or reserved.

§ 13. All lands within this state are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates.

Ambrose L. Jordan, a delegate who supported constitutionalizing the natural rights understanding of property, announced to the convention that he spoke for the vast majority of New Yorkers in saying that feudal land tenures were “inconsistent with the spirit and genius of our institutions, that men should hold their farms on which they were to sweat and toil, subject to the superior domination of a lord, who for the mere pride of being their lord, and not for any pecuniary interest growing out of this relation, had determined to hold on to his dominion over this property.” Another convention delegate, Ira Harris from Albany County, expressed the dominant view of the time “involving a great principle of political economy,” a principle that “was founded in right itself, and worthy of a place in the constitution. . . . [T]here should be no more restrictions placed upon the alienation of real estate than upon personal estate. Property was improved by passing from hand to hand. . . .” The long tenure of feudal property in America was finally now over, and a new era of free-market property relations was about to begin.

CONCLUSION

In the end, the Founding generation and their nineteenth-century successors built the protection of private property into their state and national constitutions as a necessary function of human nature and hence as a moral right of nature. Only secondarily or as a utilitarian consideration did they see the protection of private property as a requirement for wealth creation and the development of a commercial, free-market society. It is important to note that the Revolutionaries’ understanding of, and dedication to, private property as a fundamental right was, however, incomplete (e.g., it never fully escaped the traditionalist understanding of property as subservient to the “common good”), imperfect (e.g., the treatment Loyalist property during and after the War of Independence), and sometimes utterly corrupted (e.g., the existence and perpetuation of slavery as a form of property), but at no time in human history has the idea of private property been given such a strong sanction as it was during the revolutionary-founding period.

**A reminder to readers: please know that I do not use footnotes or citations in my Substack essays. I do, however, attempt to identify the author of all quotations. All of the quotations and general references that I use are fully documented in my personal drafts, which will be made public on demand or when I publish these essays in book form.