Conceived in Liberty (10 page)

But after the late fourteenth century, the serfdom aspect of feudalism began a steady decline in England, as compulsory labor service imposed on the peasants began to be commuted permanently into money rents (“quit-rents,” which quit or freed one of the onerous obligations of feudal—including military—service). By the early seventeenth century, however, feudal military service had not been abolished, and the two other aspects of feudalism—primogeniture and entail—remained intact.

An important specific spur to imposing feudalism on the colonies of the New World was England’s experience in subjugating Ireland. In the process of conquering Ireland during the sixteenth century, the English concluded that the “wild Irish” were no better than “Savages” and “unreasonable beasts” and hence could be treated as such—a significant preview of English treatment of the American Indian. As a result, the English decided that, as in Ireland, a colony had to be “Planted” under direction of a central monopoly organization run along military lines; they also decided to favor imposing on a colony a system of feudal land tenure. It was no coincidence that the leaders in the early English colonizing projects in America had almost all been deeply connected with the planting of Englishmen (largely a supposed surplus of poor) and feudal landownership in Ireland. Indeed, many of the active incorporators of the Virginia Company had substantial interests in Irish plantations.
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As recently as 1603, in fact, a crushing defeat of the Irish had spurred renewed colonization in Ulster by the English government. The hapless Irish peasants were declared to have no rights in owning land; instead, their
lands were handed over by the Crown in large grants to privileged courtiers and monopoly companies, all enjoying feudal powers over the new domain.

The Irish were deliberately exterminated or driven off their land, and the vacant lands compulsorily planted with an alleged surplus of English poor, who were now little better than serfs. The treatment of the Irish and Ireland provided a directly illuminating model for the gentlemen colonizing in Virginia.

That the first English settlements in the New World were organized not directly by the Crown, but by private monopoly companies, meant that the proprietary company would be interested in subdividing its granted land as quickly as possible to the individual settlers, in order to reap a rapid gain for its shareholders. The situation was of course
not
that of the free market; if it were, the British government would: (a) have refrained from claiming sovereignty over the unused American domain, or especially (b) have granted ownership of the land titles to the actual settlers rather than to the company. The privileges to the chartered companies, however, did not prove disastrous in the long run: the companies were eager to induce settlers to come to their granted land and then dispose of the land to them at a profit. The cleansing acid of profit was to dissolve incipient feudalism and land monopoly. It is true that the fact of the land grant to the company engrossed the land for a time, and raised its price to the settlers, thus restricting settlement from what it would have been under freedom; but the quantitative effects were not very grave.
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If it be objected that the pioneer has not really created the land, it is also true that no producer “creates” matter. The builder of a factory has not in the ultimate sense “created” the matter in the factory; he has rather transformed by the use of his labor the previously nature-given matter. He has shifted this original matter into other forms more useful to himself and to his fellow men: this shifting is the meaning of “production,” And this is precisely what the pioneer has done in transforming the land.

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See the penetrating discussion in Howard Mumford Jones,
O Strange New World
(New York: Viking Press, 1964), pp. 162-79.

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Defenders of presettler land speculation have claimed that speculators (such as the first charter companies)
spurred
settlement in the hope of profit. This is true, but it does not offset the net restriction on settlement by virtue of the land grants and the consequent raising of the price of otherwise free land to the settlers. In a free market the same companies could simply have loaned settlement money to the colonists, and this productive credit could then have spurred settlement and earned them a profit without the arbitrary restrictions imposed by the land grants.

The Virginia colony did not enter existence as a new entity in a new world devoid of the shackles of tradition. The two key areas of policy—land and commerce—were already clearly established before the Virginia Company was planned and before the Virginia colony was established. In the period immediately preceding the formation of the Virginia Company and colony, a policy toward colonial land, commerce, government, natives and colonists became well established. A primary purpose for colonization was the belief that England was highly overpopulated and that colonies were a suitable outlet for the surplus poor of England. In 1603, the government issued an order for the forcible transportation of sturdy beggars, vagrants, and other troublesome persons to the English plantations across the sea in Ireland. During the preceding decade Ireland had suffered the ravages of the English army battling against a movement of national liberation seeking self-government, freedom of religion, and abandonment of the plantation of English colonists on Irish lands. The defeat of the Irish in 1603 by the studied English policy of destruction of crops, cattle, homes, and people, opened Ireland to renewed colonization by the English government. The Irish had no land rights; they were mere tenants at the will of their lords.

The system of plantations in Ireland provided the pattern for establishing plantations in America. Grants of land were made to courtiers, privileged companies, and purchasers of feudal domains with feudal powers. Like the American Indians, the Irish were subjected to raids whose purpose was to destroy their subsistence and shelter, and to drive them out of the proposed area of plantation. These new feudal domains were settled by the poor of England who were subjected to feudal disabilities. In consequence, these
poor not only did not own their lands; they barely owned themselves. The colonial government of Ireland remained the despotism that was established by the Tudors.

Since the English government was deeply engaged in the development of a program for Irish colonization when the Virginia Company was being organized, there were complaints that the proposals for American colonies would interfere with the plantation of Ulster: “It was absurd folly to run over the world in the search of colonies in Virginia or Guiana, whilst Ireland was lying desolate.” However, colonies in Virginia or Guiana would not only contribute to the decrease of the burden of overpopulation; they would also be a source of important tropical or semitropical products that were objectives of the privileged trading companies of London. The London financiers purchased from the government the right to retain general customs as well as tobacco duties, since tobacco was becoming a significant imported commodity. Spanish America, especially the lands and islands about the Caribbean, was the source of tobacco, and its use in England grew rapidly once trade was established with Spain in 1604. However, the use of tobacco was much disliked by James I, because it not only was a drain of money from England to Spain, but also was considered poisonous and a sign of intemperance and vice, by which Englishmen allowed themselves to be debased by the barbaric practices of the Indians. But the habit became wide-spread and an important source of tax revenue.

In 1604 the English government initiated new increases in the customs duties, making the farming of the duties
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even more profitable. At the same time, the increases in tariffs made smuggling such a profitable business that it became organized on a professional basis. The smuggling business was a well-organized system of purchase, transportation, delivery, and distribution in which the free trader was not only sailor and merchant, but also policeman, to protect his property from attacks by government officials. Tobacco became one of the most important of the basic items for smuggling. Besides increasing direct taxation, the government, in effect, encouraged smuggling through indirect taxes via sale of monopoly privileges.

James I’s first Parliament in 1604 established the tone for the future Parliaments of the seventeenth century: opposition to the government. The Parliament of 1604 strongly stated the grievances felt against the government, and among the fiscal reforms demanded by the House of Commons was the abolition of the foreign trading companies having monopolies. A committee, under the chairmanship of Sir Edwin Sandys, presented a bill “for all merchants to have free liberty of trade, into all countries, as is used in all other nations.” Sandys said: “All free subjects are born inheritable as to their land, as also to the free exercise of their industry, in those trades whereto they apply themselves and whereby they are to live.”

The Parliament of 1605 continued to state the grievances of the people against the monopolies of London financiers: after the closing of Parliament,
the government sought to quiet opposition by coopting provincial capitalists into the monopoly privileges. However, the desire for the advantages of freedom of trade outweighed the advantages of monopoly privileges, and the attempt to force the investors of the West Country ports, such as Plymouth and Bristol, into the London monopolies proved unsatisfactory. Thus the colonization activities of the West Country promoters had to be separated from those of the London colonial promoters. This resulted in the creation of two Virginia companies and charters (September 1605 and April 1606). In 1606 the Parliament declared void the charters of the monopoly companies trading with southern Europe, which action freed and opened that trade to all English merchants. In response the government refused to call Parliament for almost three years, hoping to raise money by prerogative power—by increasing the duties on imports and exports without Parliamentary consent and by the creation or extension of monopolies. The Parliament of 1610 protested the imposition of increased taxes and deprivation of civil liberties by the prerogative courts, and refused to vote any taxes.

The government continued to gain its income by prerogative power, granting increased privileges in 1612 to such companies as the Virginia Company and the East India Company. Despite the financial manipulations of the government, its debt more than doubled and it sought to gain taxes by controlling elections to the House of Commons. But a House opposed to the government was elected, and by a unanimous vote it criticized the imposition of taxes by the government. Sir Edwin Sandys said of the monopolies and taxes imposed by the government, that what in the past had been done only temporarily and in emergencies was now being claimed by right. The Parliament refused to pass any legislation or approve any taxation until the grievances of the people were redressed by the government. The government dissolved the Parliament, and over a dozen members were punished by the government by imprisonment or house arrest, including Sir Edwin Sandys.

Although the government continued to create and enlarge its inspections, regulations, controls, and monopolies, the rationalization of government power was further undermined in 1614 by common-law court decisions against monopolies. During the constitutional struggle of the seventeenth century, the common law was often used against the government’s positive laws. An important aspect of the struggle was the provision of Magna Carta guaranteeing complete freedom of trade as part of the protection of liberty and property. Any interference in economic activity by the government or by any group privileged by the government constituted restraint of trade contrary to the principles of common law. It became evident that there could not be any restraint of trade without government action, and the common-law courts refused to enforce the monopolies whenever the government did not interfere with the freedom of the courts.

Among the bills failing passage in 1614 was one for a navigation act. Following the peace of April 1609 between Spain and the Netherlands,
the Dutch were able to compete favorably with English shipowners in the fishing, coastal, and distant trades because of cheaper costs due to more efficient construction. The English government occasionally harassed Dutch shipping, at the insistence of English shippers, by intermittently enforcing old laws and collecting fines. Although in 1602 the English government had insisted to Denmark that “the law of Nations alloweth of fishing in the seas everywhere,” the increased competitive ability of the Dutch caused the English government to issue a contrasting proclamation in May 1609. This proclamation claimed that the English government had dominance and political authority over those high seas in which England possessed exclusive fishing rights; therefore, the Dutch should withdraw from these seas or pay taxes to the English government. To the Dutch the fishing industry was highly important, and thus the English sought to strike at the basis of Dutch prosperity.

After thirty years the fantasies of the magician Dr. John Dee had become the program of the English government, a program for which Englishmen would be forced to sacrifice their lives. In place of that spirit of freedom and mutual advantage of the Intercursus Magnus, which had guided English maritime policy for over one hundred years and would remain the letter of the law for another several decades, there was entering into the policy of the English government a spirit of increased restriction and belligerency. This spirit was reflected in the expansion of the mercantilist system during the seventeenth century, aimed especially at the Dutch. In opposition to the claims of exclusive control of the high seas by England in the North Sea and the North Atlantic and by Spain and Portugal in the East and West Indies, the Dutchman Hugo Grotius contended for the freedom of the seas in his work
Mare Liberum
(1609). That the seas were to be open to all and free from government control was an idea that Grotius, the founder of international law, derived from Spanish philosophical thought, especially from the work of Francisco Suárez. Suárez had established the basis for international law by deducing from the variety of peoples and states that the unity of the human race can only be represented by a general rational international law, and not by a general political organization or domination, whether over the lands or over the seas.