Economic liberty and the official law books in colonial Massachusetts.

• Author: Smith, Charles Edward
• Position: Report

Hernando de Soto's The Mystery of Capital traces the essential developments of land registration and titling in 19th century U.S. history. But his chronology omits implementation of mid-17th century English legal reform initiatives in colonial Massachusetts concerning land registration, creditor-debtor law, and market regulations. Massachusetts's legislators were pursuing a reform agenda in an agrarian, semi-literate, and pre-contract society, conditions that are similar to many developing countries today. This article expands on de Soto's work by examining the vehicle that colonial Massachusetts utilized to communicate its ordinances and regulations: the official law books printed and distributed to colonists.

The Historical Mystery of Capital

In his celebrated work, The Mystery of Capital Hernando de Soto (2000) recounts his campaign to assist impoverished communities around the world to register and title their undocumented property holdings, and secure for themselves vast reservoirs of their own ready-made capital. To assist his endeavor de Soto surveyed experts in several disciplines to review the history of property titling and registration in Western industrialized countries, only to realize that in most aspects such a history is not only unwritten but seldom contemplated. How could there be such an omission in the historical record? Perhaps, he reasoned, these legal processes are so part of the daily routine of Western countries that they have not been attractive topics for study, or maybe their evolution has been so complex and occurred over such an extended period of time that their secrets are barely perceptible. Whatever the case, in the absence of an established and thorough history of property titling and registration de Soto realized that developing countries had no extant model to follow. So he undertook his own survey in order to "reopen the exploration of the source of capital and thus explain how to correct the economic failures of poor countries" (de Soto 2000: 1-10, 105-8).

In de Soto's model, based on secondary sources and interviews of experts in the fields of economics, history, and international development, the critical historical omission appeared to occur during the 19th century U.S. westward migration. As he explained in his chapter "The Missing Lessons of U.S. History":

I found many examples that reminded me of developing and former communist countries today: massive migrations, explosions of extralegal activity, political unrest, and general discontent with an antiquated legal system that refused to acknowledge that its doctrines and formulas had little relevance to the real world. I also found how U.S. law gradually integrated extralegal arrangements to bring about a peaceful order--... the law must be compatible with how people actually arrange their lives. The way law stays alive is by keeping in touch with social contracts pieced together among real people on the ground [de Soto 2000: 108]. De Soto (2000: 158-88) returns repeatedly to the idea of social contracts that, by his definition, are local agreements legitimizing informal property ownership not already certified by official state documentation. The identification of informal agreements certifying such ownership is vital to gaining official recognition of informal property holdings and transactions. At the same time, an equitable transmission of informal to formal ownership encourages informal property holders to accept official titling processes and leave the shadows of illegal regimes like black markets. But when de Soto (2000: 188-206) discusses the necessity of political implementation of any transformation of informal property arrangements to those officially recognized by the state, he acknowledges that many features of a modern state's machinery stand ready to frustrate an equitable and comprehensive settlement: political parties, state bureaucracies, and legal professions tend to uphold a status quo. But if social contracts that regulate informal property holding remain a patchwork of local agreements, known and followed only by the inhabitants of a neighborhood or precinct, access to national markets will remain largely out of reach and impoverished communities will remain plagued by a continuing legal quarantine and cycle of poverty. What is lacking in developing property registration and titling regimes that, if present, could facilitate equitable solutions to informal property holding and facilitate its official titling?

The answer provided by 17th century Massachusetts, both in its issuance of law books that contained regulations passed by its legislature and the English law reform ideals that served as a catalyst for these publications, is that the provision of legislative enactments to the public is key to an equitable and efficient administration of property registration, credit regimes, and market regulations. The Mystery of Capital gives short shrift to the American Colonies in favor of the development of U.S. property law in the 19th century. De Soto's treatment is thus consistent with the widely held judgment that the colonial period is the "dark ages of American law" (Friedman 1985: 33-104).

Yet, a crucial development in legal administration occurred during the first decades of settlement of the Massachusetts Bay Colony that reflected one of the leading demands made by English law reformers of the mid-17th century: the printing and distribution of official editions of legislative enactments. As a pamphleteer petitioned Parliament in 1641, "a book of husbandry [would] maintain double the number of people, and in more plenty and prosperity than now they enjoy." The mechanism of such a miraculous development was printing, because it could "spread knowledge" to the "common people" who, "knowing their own rights and liberties, will not be governed by way of oppression, and little by little all kingdoms" would become like utopia (Hartlib 1641: 9-14). Massachusetts printed its first official law book in 1648 (Dunn 1998).

This article is not a criticism of de Soto's choice of colonial Massachusetts to illustrate the primitive beginnings of property ownership in North America. The Mystery of Capital simply reflects existing scholarship. The legal history of the early national period has traditionally focused on the emergence of federal and state judiciaries, and their respective case law. In order for judges to render opinions a professional legal class must exist to argue cases and interpret the law. So, one primary quest of early American legal history has been to identify the emergence of a legal profession. Because English common law is accurately summarized as "judge-made law" via legal opinion, and based upon the English heritage of the majority of early settlers, English common law is an obvious source and explanation for early American law. But several innovations that the English legal profession and Parliament were, at best, slow to act upon were demands for the "Englishing" of common law from "Law-French" pleading in courts, which occurred in the early 1730s (Mathew 1938: 358-69), and the official distribution of statutory law as enacted by Parliament, which began with the publication of the Statutes of the Realm beginning in 1810 (Crossman 1994: 126-27). Essentially, English legal knowledge was monopolized by lawyers presenting arguments in a foreign language, and by Parliament's failure to issue officially and free of charge its own statutes that governed the nation.

Meanwhile, the hallmarks of early U.S national law are the public texts of the Declaration of Independence, the U.S. Constitution, and the Bill of Rights that contain the fundamental principles and laws that are the primary social contract between the people and their government. Once these documents were distributed a citizen could protest, "You cannot do this to me, I have rights of free speech and due process." Under these fundamental contracts lay state and federal statutory law, and the earliest predecessor of these statutes was the multi-volume set of public laws of the Massachusetts Colony. That publication detailed a property law regime including property registration, creditor-debtor transactions, and the colony's official regulations concerning markets themselves. Massachusetts's law books not only comprised a practical manual on how to protect one's property, they also allowed market activity to expand by making laws more transparent.

English Law Reform and Massachusetts Laws and Liberties

In the 1640s and 1650s pamphlets published in London regularly demanded that Parliament compile and distribute an official publication of existing statutory law. At the time the official collection of Parliamentary acts was kept in the Tower of London, and it was left to private printers to issue printed editions of English law. In 1647, a pamphlet entitled The Lawyers Bane urged members of Parliament to summarize and publish the mass of statutory law enacted over the centuries because men should "understand those laws and ordinances by which their rights, privileges, interests, and estates are secured." To achieve all official law book a convention should "consult and take into serious consideration the whole body of the present laws," with a goal of enacting "new, good, equal, just, and necessary laws, plain, easy, and free from all dilemmas and ambiguities." The remainder of the law "together with all old names and distinctions as of Common, Civil, and Statute Laws" should then be "repealed and taken away for ever" (Nicholson 1647: 1-7).

During this era English courtroom proceedings were conducted in an antiquated version of French utilized since William the Conqueror, and legal documents were penned in Latin and French. Richard Overton demanded that "all laws of the land locked up from common capacities in the Latin or French tongues" must be "translated into the English tongue." Also "all records, orders...