Property
While the English word property still retains the meaning of a quality or trait belonging to a thing from its Old French derivation, its now more dominant use to signify a thing “owned” or a “possession” appears to have been rare before the seventeenth century. During that century, when the English colonization project came into full bloom, the Anglo adaptation of this term made this second usage common. At the same time, the parameters of things that could be owned under English law expanded dramatically, and what it meant to “own” or “possess” them underwent a sea change in the colonies. More specifically, as the English entered into and became dominant in the Atlantic slave trade, the “things” that could be property within that legal tradition extended to include human beings, and where owning land had long primarily meant one had the rights to its use value, it increasingly meant the right to access monetary value through it, especially by pledging it as security for debts. These evolutions in the Anglo-American understanding of “property” occurred over and against the freedom and dignity of African and Indigenous people and relationships to lands as places and homes (see Goeman 2008). In other words, the production of these qualitatively new forms of “property” depended on dispossession, or extreme violence enacted on the basis of racial hierarchies (see Bhandar 2018; Nichols 2020). By normalizing this violence through the capture and subjugation of African people and the theft of Native Nations’ lands, colonists created a thoroughly racialized and sexually disciplined social order, within which property continues to circulate.
The material and conceptual limits of the term property are partly defined by law and change with the law. In the Anglo-American tradition, the law has largely, though not exclusively, constructed property rights as a “bundle”—a panoply of different entitlements or private interests in property, whose trade produces the market itself. Given these conditions, critical analyses of property, especially those that focus on private property and the state, should attend to history—and in particular, the ways that the legal construction of property transformed in the English colonies. Private property in the colonies developed in ways radically different from private property in England because of the dramatically different public law interventions and frameworks that shaped its development. This entry focuses on two of the most significant legal frameworks that shaped the character and dynamics of “property” in the colonies and later in the United States and thus the dominant paradigm for property around the globe. These frameworks are (1) the racial mandate of the Doctrine of Discovery, which authorized both conquest and enslavement as means of producing property, and (2) the system of incentives that promised settlers Native Nations’ land in return for their occupation, which deputized heteronormative nuclear families to perform the labor of conquest and thereby further the interests of the state.
The Doctrine of Discovery and its interpretation in the English colonies help explain how the development of “property” in the Americas produced a society riven by racial distinctions and driven by the willingness of self-interested heteronormative family units to engage in profitable forms of violence. The Doctrine of Discovery is a public international law doctrine of war that authorized and ordered conquest and enslavement on the basis of distinctions between tiers of humanity that were characterized as religious, cultural, civilizational, and racial. On the basis of different canon law justifications formulated during the Crusades, in 1452, Pope Nicholas V issued the papal bull Dum Diversas, which directed King Afonso V of Portugal to “capture, vanquish, and subdue the saracens, pagans, and other enemies of Christ”; to “put them into perpetual slavery”; and “to take all their possessions and property.” He followed with the bull Romanus Pontifex in 1455, which explicitly extended dominion over nonwestern peoples’ lands to the Catholic nations of Europe (Nicholas V 2017). Subsequent bulls developed the Doctrine of Discovery not only to authorize the seizure of people and land in Africa and the Americas but to rank the entitlement of European nations to do so, beginning with Portugal and Spain. Over the following centuries, the Dutch Republic, France, and England, under the auspices of self-issued charters and grants, further adapted the Doctrine of Discovery to enter into this European competition to conquer non-European nations’ lands.
The racial violence authorized by the Doctrine of Discovery produced the two forms of property that would encompass the vast majority of assets and wealth in the mainland English colonies by the time of the Revolutionary War: land and enslaved persons. The Virginia Company’s first charter from the Crown in 1606—which expressed the hope that the colonists would “in time bring the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government” (Avalon Project, n.d.)—“granted” the homelands of the Powhatan Confederacy, the Monacan, the Cherokee, the Wampanoag, and others to two groups of English investors. The first enslaved people brought to the colony of Virginia in 1619 were captured in Angola by the Portuguese, acting under the Doctrine of Discovery as well. In 1662, the colony passed a law establishing that enslaved status would follow “the condition of the mother” (Thorpe 1909), contravening the English common law rule that status should follow the condition of the father. This rule of partus sequitur ventrem spread across the colonies to tie bondage to birth and race (J. Morgan 2018); antimiscegenation laws aimed at preserving racial purity reinforced this division of status so that Black women’s reproductive as well as agricultural labor became key to the production of property under this legal regime (J. Morgan 2004). The racial violence deployed to dispossess Native Nations of land and Africans of their freedom produced a new kind of value in this property that was dependent on race—that is, land did not have monetary value on the colonial market unless white people occupied it at the time of its sale or projected in the future; human beings did not become property except because of being Black. The fact that these forms of property depended on the subordination of nonwhites for their creation and their value meant that their production deeply racialized colonial society and its political economy.
Further, European nations had wide discretion under the broad mandate of the Doctrine of Discovery to experiment with strategies for taking actual possession of Native Nations’ lands. In North America, English colonial companies and governments uniquely relied on nuclear families, a kinship formation that colonists imported from England, to settle lands in order to formalize their claims. More specifically, they incentivized settler families to occupy lands with the promise of granting them ownership of those lands. They deputized private individuals to perform racial violence, enforce racial distinctions, and maintain value in the “property” they thereby produced. The perception of abundant available lands, in an era when lands meant wealth and could promise subsistence for a family, lured floods of immigrants to the American frontier, where they engaged in direct combat with the inhabitants of the land, destroyed the environments upon which Native people depended for subsistence, purchased enslaved people in a bid to build their wealth, and reproduced their own forces. Nuclear families moved to the frontier to spread disease, chase away the game, and use force to defend the plots of land on which they built homesteads against the claims of Native Nations.
As a result, marriage was key to “the potential military strength of any American border settlement” and “the capacity of the frontier for war,” as frontier historian Frederic Paxson notes, because “in nearly every case the unit working on the frontier was a young married couple” (1924, 37). Again, colonial laws profoundly shaped the ways heteronormative families who were or would be racialized as white helped construct property, not only by promising them title to land in exchange for occupying it for a period of years through headright policies, land grants, and subsidies, but also by encouraging marriages in settlements. During the early years, few women traveled to North America from England, but colonists soon decided that “commercial profits and economic development required stabilized communities rather than rapid exploitation”; trading companies therefore began “to bring women to America to stimulate the formation of families” (Abramovitz 1988, 45). Trading companies aimed to induce farmers to invest in their homesteads rather than returning to Europe and offered incentives in the form of additional land or servants to men who brought wives or married. In 1619, for example, the Virginia House of Burgesses allotted husbands an equal land share for their wives; between 1620 and 1622, in an effort to “make the men there more settled and less moveable,” the Virginia Company of London sent 140 women to the colony to increase “the supply of free white women.” Pennsylvania and Massachusetts both offered land to women themselves, but Massachusetts prohibited unmarried adults from living outside family units or established households, and Maryland in 1634 threatened to repossess land from women who did not marry within seven years. Laws such as these made marriage the “lynchpin” of the colonial social order and the “centerpiece” of its economic system (Abramovitz 1988, 53; Kessler-Harris 1982, 4).
The importance of nuclear families in constituting the labor force of conquest cannot be overstated. Neither English troops nor the “tiny” US Army, before the Civil War, had the funds or personnel to carry out the direct seizure of Native Nations’ lands. The greater the numbers of colonists, the more politically and economically valuable land could be settled and held by their collective forces. Colonial governments and companies prioritized the recruitment of immigrants for this reason, making migration policy—governing incentives for white immigration, forced importation of Black people, and Native removal—a fundamental dimension of colonization. After immigrating, white women’s reproductive labor also played a key role in building colonists’ capacity for force: by 1700, “natural increase” had become “the key factor in white population growth” (Perkins 1980, 1–2); Benjamin Franklin cited early marriage and large families as the chief explanations for American growth and estimated that the typical number of children per family doubled that in England and in the rest of Europe. Colonial laws of marriage, inheritance, and paternity cultivated women’s dependence, and nuclear families in colonial communities were governed by a patriarch who controlled the reproductive and domestic labor of women and children. Women performed unpaid household work, such as tending livestock, household production for family consumption, and market sales, and legally had to surrender any income they earned to the male head of household; children’s labor was property that could be sold to others for a price.
The colonial political economy in the United States therefore drew upon a division of labor between the public and the private on both the state and familial levels: the private economy of the family powered the public agenda of conquest; laws that sought to harness the self-interest of white family units deputized them as an informal colonial militia. This role of the nuclear family in creating property both furthered state-engineered expansion and created peculiarly personal stakes in the project of empire. The land settler families conquered was a long series of homestead plats—the quintessential “property” of the American Dream—whose defense inevitably meant domestic defense to their armed owners. The racial construction of property historically invested whites and those who sought to attain whiteness in acts of racial violence that produced wealth—extracting lands and the reproductive and agricultural labor of enslaved people. It invested them in the project of maintaining the colonial racial social order as a part of the preservation of the property they helped create and, therefore, as Cheryl Harris (1993) has elaborated, in their own whiteness as a specific form of property itself. Thus, settler families acted in tandem with colonial governments and then the United States to produce a highly specific political economy founded on the private construction of “property” through racial violence, while their rapid accumulation of lands and enslaved people accelerated the expansion of those markets and general assault on Native and Black lives and lifeworlds at once.