The Ethics of
Property Rights and Endangered Species:
A Historical Overview

Eugene C. Hargrove

Introduction

According to George Orwell's 1984, "Who controls the past controls the future; who controls the present controls the past."1 In that book, the slogan refers to the fictional efforts of a totalitarian state to rewrite history in order to provide its citizens with a past consistent with its vision for the future. The efforts of this state are so complete that they write and circulate not only an official past for law-abiding citizens, but also an alternative past for its dissidents. This approach is equally relevant to the current debate over private property rights and endangered species, for the slogan could easily be adopted both by the defenders of private lands and their opponents. Both sides present a false view of the past that they feel will help them secure victory over the other in the future. This situation, however, differs from the fictional situation in 1984 in one significant respect: both sides independently present and defend the same basic historical account. The defenders of private landowners present a golden age for property rights that has been lost. The defenders of endangered species accept the details of this golden age but present it as a period of landowner indifference, neglect, and abuse that has justly been brought to an end.

The defenders of property rights hold that landowners once had the right to do as they wished with their land independent of any external authority and that environmentalists have abruptly taken this right away in order frivolously to protect wild animals. The environmentalists in turn accept that they are taking traditional rights away from landowners, declare that this change represents a radical break with the past, and argue that it is necessary because of the excesses of the past, which brought about the decline in wildlife and the need for nontraditional regulation of landowners. Property-right advocates believe that an appeal to traditional rights and values will help them gain broad public support. They therefore insist that their position is the traditional one. In contrast, environmentalists downplay the traditional aspects of their position, referring only sparingly to the thoughts of such environmental precursors as Thoreau from the nineteenth century, because the traditional nature of their actual position conflicts with their anti-modern or postmodern image. If environmentalists admit that their position is really the more traditional one, then they have to give up the claim that they are radical environmentalists making a radical break with the past.

Although the co-conspiracy of the property-rights advocates and the environmentalists to reconstruct history is completely in line with the late modern or postmodern spirit of our times, which encourages the replacement of argument with storytelling, it is confusing to those traditionalists who would still like environmental policy to be decided by argument rather than dueling stories. In this paper, I examine two historical traditions, one related to property rights and the other to governmental regulation of wildlife, and argue that landowners never had the rights that property-rights advocates claim they had and that there has been continuous regulation of wildlife since the late Middle Ages, refuting the claim that the Endangered Species Act is a radical break with the past. I conclude with an examination of the ethical dimensions of the debate viewed from a more fully traditional perspective.

I claim only that I am providing here only "a more fully traditional perspective" because my accounts, like those of the property-rights advocates and the environmentalists, must also be an interpretation of history, in which so much information is available that selective presentation and emphasis can produce varying results. My account of the history of property rights is especially problematic because it is not always completely clear whether it is history or history of ideas. For example, in evaluating Genesis environmentally, one must consider not only what the authors of Genesis intended when they wrote that humans should go forth and subdue the Earth, but also what those passages meant to others as they were translated from Hebrew to Greek to Latin and finally to English and many other languages. The meaning and influence of these passages may very well be completely different than what the original authors intended. For example, J. Donald Hughes has argued that the passages did not become environmentally damaging until they were associated with Aristotle's views in the late Middle Ages.2 Likewise, with regard to property rights to land, should we focus on traditional land practice as it actually existed, to the degree that we can tell, or on how that practice was later remembered as a tradition, which may be at odds with what actually took place at various earlier times. Happily, this issue is less important with regard to wildlife regulation since the history has been completely forgotten and no official tradition exists to compete with factual reconstruction.

 

The Property-Rights Tradition

I first became aware of the property-rights tradition when, as an environmental activist in the early 1970s, I was trying to protect a cave in a state park in Missouri from water pollution. At that time, local farmers frequently said to me, "I worked that land. What right does anyone have to tell me what to do? No one has that right." The poor presentation of this "argument," if it is indeed an argument, rather than just a statement of purported fact, bears testimony to the belief of those reciting it that these words are indisputable. No coherent argument was provided because the truth of the words were considered to be self-evident. The speakers of these words are presenting an argument from authority in terms of a tradition which they are unable to articulate.

I found the origins of this tradition some years later working backwards from the Homestead Act to the writings of Thomas Jefferson to his sources in Locke's theory of property and Saxon common law.3 There are actually two land-use traditions which set the basis for our current land-use law and practice: a southern European tradition from the Greeks and Romans and a northern European tradition from the Germanic tribes entering Western Europe just before the establishment of the Roman Empire. It is sometimes difficult to distinguish these two traditions because the terminology of the two now overlaps and the two, for the most part, have been merged into a single practice. The key difference is that the Germanic tradition focuses entirely on use. Using land determines the right to occupy it. Furthermore, the ability to use the land determines the size of the land holding. It is from this emphasis on use that the contemporary farmer's conception of the role of work is derived--that working or using the land provides special rights. It is from this tradition that we get the saying, "Possession is nine-tenths of the law." The southern tradition is quite different. Occupation and use are completely irrelevant. The key to land holding is a legal title, a deed. No matter how many centuries a family might work a piece of property, if an error in the title is discovered, the ownership of the land is immediately forfeited. Such events occur even today in such states as New Mexico where previously unknown Spanish land grants are sometimes discovered and the state is required to pay compensation to descendants.

The tradition of land acquisition should be very familiar to Americans who know anything about the settlement of the American West. The early German settlers of Europe were freemen. When they moved into Europe, they settled on individual freehold farmsteads, where they grazed their herds and grew crops using slaves. When their sons were grown, they moved west and established freehold farmsteads of their own. Lands were cleared to make way for new farmsteads through periodic military action against the Celts and Romans. The occupation of the American West was a conscious reenactment of the Germanic occupation of Western Europe. Indeed the terminology is only slightly different: homestead was used instead of farmstead. Although homesteading was not an official policy of the government until the the enactment of the Homestead Act of 1862, the government's attempts to sell western lands were endlessly complicated by homesteading, requiring a series of pre-emption acts to reimburse illegal settlers or squatters for their improvements or to provide them with reduced purchase prices.

Jefferson did his best to prevent the selling of public lands and establish the Germanic land acquisition system both in Virginia and later at the federal level. In 1776, Jefferson wrote:

 

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? Has not every restitution of the antient Saxon laws had happy effects? Is it not now better that we return at once to the happy system of our ancestors, the wisest and most perfect ever yet divised by the wit of man, as it stood before the 8th century?

 

He went on to warn that "By selling the lands to [Americans], you will disgust them, and cause an avulsion of them from the common union. They will settle the lands in spite of every body."4 His assessment of the situation proved to be correct.

The path by which the idea that landowners hold their lands, as Jefferson put it above, "in absolute dominion," came to be a part of the American conception of landownership is a complex one. In fact, its appearance is North America at all is amazing, since the land practice that supported this view died out in most of Europe long before the notion of property ownership was established. The original conception was not a right to own land but rather to hold it and there was no specific tie to the land that was held, since the amount of land held was dependent not on a deed or title but, as noted above, the ability to use the land. The disconnection between the right to hold and any specific plot of land is especially clear in the matter of inheritance. Sons of the freeman did not inherit the land of their father but rather inherited the right to hold land, a right then exercised farther west in the area newly cleared of Celts and Romans. This conception of inheritance was a multiplication, since it increased the number of rights holders and the number of lands held. However, as the frontier moved further west, problems began to arise with regard to the lands to the east since there were no new lands there for sons to occupy. As the population increased, lands were at first divided among the sons, but when it was realized that this procedure of inheritance by division would eventually make land holdings too small to be viable agriculturally, forcing the families into poverty, feudal law was established, according to which the oldest son inherited everything.

As I have argued elsewhere,5 this conversion to feudal law had not yet taken place in England at the time of William the Conqueror, when feudal law was imposed after the Battle of Hastings by conquest and not as a result of social change, beginning a multi-century debate about whether Saxon or Norman law should be applied to land. Six centuries later, with the dispute still unresolved, British colonists found themselves in North America where they once again saw an opportunity to reestablish the early German freehold farmsteading practices. They were, however, as Jefferson put it, for a time duped by the British government:

 

A general principle indeed was introduced that 'all lands in England were held either mediately or immediately of the crown': but this was borrowed from those holdings which were truly feudal, and only applied to others for the purposes of illustration. Feudal holdings were therefore but exceptions out of the Saxon laws of possession, under which all lands were held in absolute right. These therefore still form the basis or groundwork of the Common law, to prevail wheresoever the exceptions have not taken place. America was not conquered by William the Norman, nor it's [sic] lands surrendered to him or any of his successors. Possessions there are undoubtedly of the Allodial nature. Our ancestors however, who migrated hither, were laborers, not lawyers. The fictitious principle that all lands belong originally to the king, they were early persuaded to believe real. . . .6

 

Jefferson then argues that feudal law should be thrown out so that "each individual of society may appropriate to himself such lands as he finds vacant, and occupancy will give him title."7 As Jefferson put it in his draft of the Virginia constitution, the lands would then be "holden in full and absolute dominion, of no superior whatever."8

Although the idea that someone might own land in absolute dominion, with no superior whatever, may seem inconsistent with the idea of government, there is a form of government that is consistent with it: the rural county court. There were four levels of government in early Anglo-Saxon society: the kingdom, the shire, the hundred, and the township. The most important of these is the shire (renamed county after the Norman invasion), which continued undisturbed throughout British history and was transported to North America in colonial times, and remains today the oldest continuous form of government in English-speaking countries.9 Before the county court was established, probably in the eighth century, early Germans settled disputes with a neighbor first by bringing forth witnesses and then, when necessary by individual combat.10 The creation of the county court made the resolution of disputes easier, but did not establish very much control over the landholder as far as his land was concerned, as should be clear from the current practice of rural county courts, which concern themselves mostly with the maintenance of county roads. Interference with the autonomy of landowners does not usually occur until the population in a county increases enough to require planning and zoning. It is only then that local government begins to tell landowners what and what not to do and n longer accords them special rights because they worked the land. This change is analogous to the shift to feudal conditions in the Middle Ages, in which corporations rather than the church and landholders exempt from taxation displace the small farmer.

Homesteading rights were also supported by Locke's theory of property, which bridges the gap between landholding and landowning. The idea of landownership was not established in England until 1660, when the Act of Indemnity and Oblivion abolished feudal dues.11 Thirty years later, John Locke developed a theory of property ownership that made it independent of government allocation. In his second treatise he writes:

 

Though the Earth, and all inferior Creatures be common to all Men, yet, every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left in, he hath mixed his Labour with, and joyned to it some thing that is his own, and thereby makes it his Property.12

 

Concerning land as property, he adds::

 

But the chief matter of Property being now not the Fruits of the Earth, and the Beasts that subsist on it, but the Earth it self as that which takes in and carries with it all the rest; I think it is plain, that Property in that too is acquired as the former. As much land as a Man Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property. He by his Labour does, as it were, inclose it from the Common. . . .13

 

Although Locke presents his views ahistorically, his theory is completely consistent with early Germanic land-use practice and with Saxon common law, strongly supporting the idea that a landowner is and should be largely independent of government regulation.

The origins of moral and political rights are somewhat obscure, making it difficult to determine their precise nature. Although the Greeks and Romans had a conception of duty, and spoke of what is right, they did not speak of rights in the modern sense, as a nearly absolute safeguard against government. It seems reasonably clear that rights arose in the late Middle Ages and the early modern period, when large countries were forming in Europe, out of privilege as a protection from government. A privilege was a permission that was bestowed from someone above, usually a king, which could be taken away. A right, in contrast, normally could not be taken away by government because it had not been given by government in the first place. To provide a higher status than privilege for rights, natural law was brought to bear, according to which it was part of nature as established by God. According to Locke, ownership of land is not bestowed by government, but rather by enclosure by labor, making landownership independent in some ways from government. Locke writes in the first treatise:

 

Property, whose Original is the Right a Man has to use any of the Inferior Creatures, for Subsistence and Comfort of his life, is for the benefit and sole Advantage of the Proprietor, so that he may even destroy the thing, that he has Property in by his use of it, where need requires; but Government being for the Preservation of every Man's Right and Property, by preserving him from the Violence or Injury of others, is for the good of the Governed.14

 

This passage is apparently intended to justify the eating of domestic animals; however, the right to destroy, when applied to land, can cover a wide variety of abuses. Nevertheless, the concluding lines of the passage provide a role for government to protect the rights of others, probably pointing toward the kind of limited regulation in matters related to land that has been carried out by the county court over the centuries. In more general terms, the government has the responsibility to protect the rights of its citizens, but not to restrict those rights.

 

The Wildlife Regulation Tradition

The history of wildlife regulation is focused primarily on hunting. According to Michael Bean, "there is an almost unbroken tradition, starting as early as the Roman Empire, in which wild animals . . . were regarded as occupying a nearly unique status. While in their natural state, wild animals were considered to be like the air and the oceans in that they were the property of no one. Yet unlike the air and the oceans, wild animals could become the property of anyone who captured or killed them."15 In feudal Europe, according to Sir William Blackstone, hunting became a right or privilege of the aristocratic elite as a byproduct of the disarmament of the citizens of the newly created European nation-states to prevent uprisings: weapons used for hunting could also be used in revolt against the government.16 After 1066 royal forests were established and with them an elaborate system of laws including special courts.17 There was also considerable regulation of commercial fishing. Franchises for fishing were so common that they became a hazard to navigation and were abolished in the Magna Carta.18 Regulation was originally undertaken by the king and then gradually taken over by the Parliament.19

Although the British found an abundance of wildlife when they arrived in North America, regulation was continued there as well. The American colonies exercised control over wildlife with great regularity as early as the 1600s, protecting such game animals as deer and encouraging the eradication of such predators as wolves.20 Most of these laws were retained by the states after the American Revolution. Although these laws were not consistently enforced until about 1850, when scarcity of many game animals first became apparent, they represent an important link in the continuous chain of governmental regulation.

In the nineteenth century, government regulation was tested in the courts and the right of the states to manage wildlife was reaffirmed and expanded. The key case was Martin v. Waddell in 1842, involving the ownership of oysters in the Raritan River in New Jersey, in which the Supreme Court declared that the states inherited the public trust responsibilities of the British crown and Parliament.21 A series of additional cases, noting "the history of governmental control over the taking of wildlife from Greek and Roman law through the civil law of the European continent and the common law of England," further established the rights of states to "control and regulate the common property in game . . . as a trust for the benefit of the people."22 At the end of the century, the federal government asserted its authority in wildlife with the Lacey Act of 1900, among other things, regulating the importation of wildlife into the United States, asserting control over interstate wildlife, particularly, migratory birds, and supporting state prohibitions of the interstate sale of game.

James Tober in Who Owns the Wildlife? recounts the struggles in the nineteenth century between several groups over wildlife: sportsmen, market hunters and game dealers, and landowners. In the early part of the century, there were very few sport hunters. Most hunting was by market hunters. Market hunting increased throughout the century, especially after refrigerated cars made movement of game over long distances possible. However, cold storage made it more difficult to control illegal hunting in one state and sale in another.23 For this reason and others, as the volume of commercial hunting increased, public opposition to it also increased. By the end of the century, market hunting was in decline and sport hunting, which had less impact on animal populations, was replacing it as the primary form of hunting.

The landowners did not do very well in this struggle. After the Norman Conquest, the king began granting nobles franchises of "park" and "chase." The former permitted the holders to pursue animals such as deer, fox, and martin over their own lands; the latter allowed them to pursue animals across the lands of others.24 Presumably the hunters had to pay for damages, but they did not have to ask for permission. In the early nineteenth century, everyone still had the right to hunt wherever they wished. The animals were either considered to be owned or controlled by the state, not by landowners, and the animals became the property of the hunters only when they were killed. Because the primary kind of hunting at that time was commercial or market hunting, permitting landowners to limit access to their property would have been the equivalent of giving them the right to control a free natural resource and would have been viewed as restraint of trade by private individuals. It was not until the 1870s, when market hunting was heavily under fire, that a right for landowners to prevent trespass was finally seriously considered.25 Consideration was given to making the landowners the owners of the wildlife on their property. However, there were serious problems. First, most property was not large enough to support viable populations. Thus, fencing in wildlife would likely starve them to death. Without fencing, ion the other hand, it would be a curious kind of ownership, one which started and stopped each time an animal wandered across a property line. Second, giving ownership to landowners would provide them with control over access to wildlife, providing windfall gains to landowners who charged admission to their property for hunting. This approach was distasteful to sport hunters. According to the American Sportsman in 1874:

 

Game is one of the many gifts of nature to mankind in general, therefore, any law which compels a man to buy his game either before or after he shoots it is an unjust one. . . . [T]he fact that the game was bought would spoil the pleasure of shooting even if the money were no object.26

 

Essentially, a thousand year plus hunting tradition, with continuous legal standing, could not be overthrown simply because landowners had become vocal about property damage suffered from hunting. Nevertheless, by 1900 most states did provide some limited protection through trespass laws. In practice, however, these laws usually meant that hunters must ask politely before hunting on someone's property. Landowners did not, moreover, gain control over the wildlife on their property, which continued to be controlled and in a sense owned by the state. Moreover, sport hunters in collaboration with the the scientific community and newly formed fish and game commissions in the second half of the nineteenth century began putting through legislation to protect wildlife so that "by 1900, most states had a constitutionally enforceable, though often unenforced, set of statutes that nominally protected many species of wildlife."27

 

The Ethics of the Landowner Rights with regard to Wildlife

As I indicated at the beginning of this paper, both the environmentalists and the advocates of landowner rights agree that landowners once had property rights that have been taken away by environmental legislation culminating with the Endangered Species Act. As I have shown here, there is no basis for this claim. The wildlife protection tradition, to which property-rights advocates object, is at least as old and probably older than the land-use tradition out of which landowner rights have developed. Further, while the landholding or landownership tradition is primarily a Germanic tradition, the wildlife protection tradition emerges out of both the Germanic and Graeco-Roman traditions. In both traditions, wildlife had a unique status which precluded private ownership except through capture or killing. Indeed, it is not an easy task to determine when property rights first emerged, since, as noted above, the landownership did not replace landholding until 1660 and the right to own land was not defended by Locke until 1690. Nevertheless, if one includes the Germanic freeman's right to hold land, an undefended traditional rights view can be traced back among Germanic tribes to Roman times. Yet, even these landholder rights had no impact on wildlife practice, which except for the trespass laws of the late nineteenth century, comes to us virtually unchanged. If there is a change, it is merely a slight enlargement of the grounds for protecting wildlife, from hunting to recreation to ecology and ecosystem health. While this change has increased the kinds of species protected, in practice, it is not significantly different than traditional concerns about the protection of habitat. That is, protection of habitat for game also in practice indirectly protected most of the species that are now protected by name.

Although there never was a golden age of landowner rights in which landowners or landholders could do as they wished with wildlife, terminology from the past suggests that there may have been such a time. In the Germanic tradition it is the idea, as Jefferson put it in his draft constitution of Virginia, that the land would be "holden in full and absolute dominion, of no superior whatever."28 The more recent natural rights tradition has likewise presented property rights as an absolute and universal creation of God, thereby overriding temporal, social jurisdiction. Historically, however, the Germanic rights tradition is obviously a social construction. Although the German freemen had considerable control over their own lands, it was not absolute. They had a right to hold on the basis of their political status and on the basis of their use. Failure to use the land nullified their right to hold. In addition, their holding of the land did not afford them control over wildlife any more than ownership of the land does today. Their right to dominion was limited, for example, as noted above, by the right to chase.

There is also a more fundamental problem which involves concerns about the nature of rights and their use. Rights are only one way to deal with ethical concerns. They were developed primarily as a defense against abuse by government. As such, they are not even necessary ethical, for one can assert one's rights and in so doing bring about consequences that are morally wrong. Ethics is concerned not only with the rights of the individual but with the good of others, both individually and collectively. When American landowners assert "No one has the right to tell me what to do on my land" they are asserting that their personal interests outweigh the good of the society that they live in: that they are not bound by social ethics or by law.

To be sure, government control of wildlife at the possible expense of landholders and landowners is merely a tradition based on a belief that wild animals exist for the benefit of all, not just specific landholders and landowners. Society could change its mind. Or it could perhaps be established that society is asking too much in particular cases. Nevertheless, landownership is also a conventional tradition with problems of its own. When Locke defended landownership, he argued that the enclosure of land and its removal from common ownership (similar to that of wildlife) was permissible because (1) the land had little value on its own (essentially the individual was enclosing his or her own labor, the primary resulting value) and (2) that there was plenty of land for others to enclose should they so desire (pointing to the vacant wastes of North American in particular). Today we know that Locke's claims are not true. Labor is a much smaller part of the value of land than Locke ever imagined. Also, there are no vast tracts for those who are without, signifying that landowners enjoy a privilege or benefit, land ownership, that cannot now be shared fairly by others.29 In return for this now inequitable benefit, it would seem reasonable that landowners continue to accept their traditional responsibilities to society for the wildlife that happen from time to time to pass by. This point is also clear in the concluding proviso of Locke's argument for the right to destroy property: "but Government being for the Preservation of every Man's Right and Property, by preserving him from Violence or Injury of others, is for the good of the Governed."30

The acquisition of property was a taking from the commons. However, it was not an absolute taking, despite the language often used, and the historically false belief that it was absolute is not the basis for compensation. Landholders and landowners were never allowed to have title to, to take, the wildlife on their lands. Further, without a franchise of park, they did not even have the right to hunt or kill that wildlife. Instead, they had a moral and legal responsibility not to interfere with that wildlife. In order for defenders of property rights to be able to say that the restrictions that landowners sometimes have to the use of their land because of the Endangered Species Act represents a taking, it would have to be the case historically that landowners at some time in the past had control or ownership of wildlife and that it has been taken away--which obviously is not the case.

Property-rights advocates often claim that wildlife and environmental law restricts freedom--presumably the right of landowners to do what they want to their land without anyone telling them what to do. While I agree that property rights are about freedom, it is not the freedom to do as one wishes to wildlife and the environment. Rather it is a freedom from the land, the freedom to leave it, to walk away, the freedom not to be a serf or a vassal bound to the land. This freedom is the ancient Germanic freedom, given to us through the efforts of Thomas Jefferson, to freely settle our affairs and move from one state to another without permission from a superior. It has nothing to do with a right to destroy wildlife without permission.

There has always been a close tie between rights and responsibilities. When landholders acquired the right to hold land, they also acquired the duty to protect whatever on the land had not been given to them. This same duty was passed on to landowners when landholding was replaced in the 1600s. The Endangered Species Act is a continuation of this duty. It is not a takings because it is not possible to take from someone that which they have never had--the control and ownership of wildlife and the environment. It is for this reason that the propery-rights advocates' demand for compensation is without merit.

 

1. Irving Howe, ed., Orwell's Nineteen Eighty-Four: Text, Sources, Criticism (New York and Burlingame: Harcourt, Brace & World, 1963), p. 109.

2. Aristotle, Politics 1256b20; J. Donald Hughes, "Eclogy in Ancient Greece," Inquiry 18 (1975): 124. See also Lloyd H. Steffen, "In Defense of Dominion," Environmentla Ethics14 (1992): 63­80.

3. This section of the paper is based on my earlier discussion in Eugene C. Hargrove, Foundations of Environmental Ethics (1989; reprint ed., Denton, Tex.: Environmental Ethics Books, 1996), chap. 2. My primary resource for Germanic land-use attitudes is Denman W. Ross, The Early History of Land-holding among the German (Boston: Soule and Burgbee, 1883). Ross's original sources include Julius Caesar and Tacitus For early British history, I relied on Walter Phelps Hall, Robert Greenhalgh Albion, and Jennie Barnes Pope, A History of England and the Empire-Commonwealth, 4th ed. (Boston: Ginn and Co., 1961).

4. Jefferson to Edmund Pendleton, 13 August 1776, in Papers of Thomas Jefferson, ed. Julian P. Boyd et al., 17 vols. (Princeton: N.J.: Princeton University Press, 1970), vol. 1, p. 492.

5. Hargrove, Foundations, chap. 2.

6. Thomas Jefferson, A Summary view of the Rights of British America, in The Portable Thomas Jefferson, ed. Merrill D. Peterson (New York: Viking Press, 1975), p. 18.

7. Ibid., p. 19.

8. Thomas Jefferson, "Draft Constitution of Virginia," in Portable Jefferson, p. 248.

9. Hall et al., History of England, pp. 28-29.

10. Ross, Land Holding among the Germans, pp. 21-22.

11. Hall et al., History of England, pp. 260-61.

12. John Locke, Two Treatises of Government, ed. Thomas I Cook (New York: Hafner Press, 1947), "Second Treatise," sec. 27.

13. Ibid., sec. 32.

14. Locke, Two Treatises, "First Treatise," sec. 26.

15. Michael J. Bean, The Evolution of National Wildlife Law, rev. ed. (New York: Praeger Publishers), p. 10.

16. Ibid.

17. Ibid., p. 11.

18. Ibid.

9. Ibid., p. 12.

20. James A. Tober, Who Owns the Wildlife? The Political Economy of Conservation in Nineteenth-Century America (Wesport, Conn. and London: Greenwood Press, 1981), p. 23.

21. Bean, Evolution of National Wildlife Law, p. 13.

22. Ibid., p. 16.

23. Tober, Who Owns the Wildlife? p. 199.

24. Bean, Evolution of National Wildlife Law, p. 11

25. See "Property Rights and Markets," in . Tober, Who Owns the Wildlife? pp. 119-38.

26. Quoted in Tober, Who Owns the Wildlife? p. 121.

27. Tober, Who Owns the Wildlife? p. 130

28. Thomas Jefferson, "Draft Constitution of Virginia," in Portable Jefferson, p. 248.

29. For a fuller discussion, see Hargrove, Foundations, pp. 68-73.

30. Locke, Two Treatises, "First Treatise," sec. 26