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Voluntaryism on the Western FrontierVoluntaryism on the Western Frontier
By Carl Watner
American politicians experienced the same problems in governing their western frontier during the late 18th and early 19th Centuries, as did the English in governing their distant north American colonies during the 16th and 17th Centuries. In both cases, it was difficult to exercise coercive political control because the great distances made troop movement and communications slow and difficult. The people on the American frontier usually lived in a de facto state of voluntaryism, even though the government in Washington, D.C. claimed a de jure political jurisdiction over the land on which they lived. One of the last areas to be conquered' by the United States was its far western frontier in California. Until this conquest was completely effected, most people there lived beyond the bounds of political laws, restrictions, and statutes. This article briefly describes how they behaved and what institutions they developed in the absence of coercive political ones.
In an article in THE JOURNAL OF LIBERTARIAN STUDIES, subtitled, "The Not So Wild West, " authors Terry Anderson and P.J. Hill note that "government as a legitimate agency of coercion was absent for a long enough period to provide insights into the operation and viability of property rights in the absence of a formal state."1 Their research indicates that during the period 1830 to 1900, property rights were protected and civil order generally prevailed on the Western frontier of America. Private agencies provided the necessary basis for an orderly society in which property was protected and conflicts were resolved. These agencies often did not qualify as government because they did not have a legal monopoly on keeping order.' They soon discovered that warfare' was a costly way of resolving disputes and lower cost methods of settlement (arbitration, courts, etc.) resulted."2
Although the wild West has been characterized by the absence of formal government and the presence of gunfights, horse thievery, and a general disrespect for property, scholars have questioned the accuracy of these perceptions. Violence was not rampant on the frontier. W. Eugene Hollon in his book, FRONTIER VIOLENCE: ANOTHER LOOK, concludes "that the Western frontier was a far more civilized, more peaceful, and safer place than American society is today." Frank Prassel, in his book subtitled "A Legacy of Law and Order, ' states that crime statistics do not indicate that the West was any more violent than parts of the country where political government exercised the full majesty of the law. Watson Parker in a chapter entitled, "Armed and Ready: Guns on the Western Frontier," concludes that the ordinary frontiersman did not hanker after violence; "the frontier American was the mildest of men, to be so well armed and to shoot so few people."3
By Carl Watner
American politicians experienced the same problems in governing their western frontier during the late 18th and early 19th Centuries, as did the English in governing their distant north American colonies during the 16th and 17th Centuries. In both cases, it was difficult to exercise coercive political control because the great distances made troop movement and communications slow and difficult. The people on the American frontier usually lived in a de facto state of voluntaryism, even though the government in Washington, D.C. claimed a de jure political jurisdiction over the land on which they lived. One of the last areas to be conquered' by the United States was its far western frontier in California. Until this conquest was completely effected, most people there lived beyond the bounds of political laws, restrictions, and statutes. This article briefly describes how they behaved and what institutions they developed in the absence of coercive political ones.
In an article in THE JOURNAL OF LIBERTARIAN STUDIES, subtitled, "The Not So Wild West, " authors Terry Anderson and P.J. Hill note that "government as a legitimate agency of coercion was absent for a long enough period to provide insights into the operation and viability of property rights in the absence of a formal state."1 Their research indicates that during the period 1830 to 1900, property rights were protected and civil order generally prevailed on the Western frontier of America. Private agencies provided the necessary basis for an orderly society in which property was protected and conflicts were resolved. These agencies often did not qualify as government because they did not have a legal monopoly on keeping order.' They soon discovered that warfare' was a costly way of resolving disputes and lower cost methods of settlement (arbitration, courts, etc.) resulted."2
Although the wild West has been characterized by the absence of formal government and the presence of gunfights, horse thievery, and a general disrespect for property, scholars have questioned the accuracy of these perceptions. Violence was not rampant on the frontier. W. Eugene Hollon in his book, FRONTIER VIOLENCE: ANOTHER LOOK, concludes "that the Western frontier was a far more civilized, more peaceful, and safer place than American society is today." Frank Prassel, in his book subtitled "A Legacy of Law and Order, ' states that crime statistics do not indicate that the West was any more violent than parts of the country where political government exercised the full majesty of the law. Watson Parker in a chapter entitled, "Armed and Ready: Guns on the Western Frontier," concludes that the ordinary frontiersman did not hanker after violence; "the frontier American was the mildest of men, to be so well armed and to shoot so few people."3
The Gold Rush and Property Rights in the West
Until 1866, seventeen years after the beginning of the California gold rush, there were no federal laws to govern the active mining frontier in the Far West. If ever there were a clearcut, real-life example of voluntaryism at work, it is this. The federal government took no initiative in the matter of mining law, and, regardless, was too weak to exert effective control. The miners worked at their own risk, for their own profit. The territory of California, which did not become a state until September 9, 1850, was held under the military authority of the United States. Technically, all gold and silver mined in the area ceded by Mexico was legally owned by the U.S. federal government, and in the absence of any federal legislation, the mining industry remained for a time subject to the pre-existing Mexican law. Soon, however, the U.S military governor abolished the Mexican laws and customs relating to mining. But as he did not have sufficient military force to prevent work at the diggings, he thought it best to leave mining open to all who tried. No attempt was made to tax or control the miners or their output, even though they were trespassing and robbing the federal treasury of its mineral wealth. Even if Congress had been strong enough to regulate and enforce mining regulations, it lacked the knowledge as to what laws to pass. When legislation was finally enacted, the customs, usages, and rules evolved by the miners themselves were adapted as the basis for federal mining law.
The discovery of gold at Sutter's mill near Sacramento, California nearly coincided with the end of the Mexican War in January, 1848. Although California became an American territory, there was little evidence of American statist control except for the presence of about 1000 American soldiers. When the discovery of gold was announced in San Francisco in mid-May 1848, the Sacramento region was invaded by nearly 10,000 people within the space of seven months. These people rushed to mine gold on property to which no one had exclusive rights. Although nearly every miner carried a gun, little violence was reported. In July, 1848, when the military governor, Colonel Mason, visited the mines, he reported that "crime of any kind was very infrequent, and that no thefts or robberies had been committed in the gold district...and it was a matter of surprise, that so peaceful and quiet a state of affairs should continue to exist."4
The real gold rush commenced in 1849. More than 20,000 people departed from the east coast in ships bound for California. By the end of the year, the population in California had reached about 107,000, mostly miners. As land became relatively scarce with this influx of emigrants, there was an incentive to assign exclusive rights to mine a given piece of land. This gave birth to the miner's meeting and the development of miner's law which was based on generally accepted mining customs and practices. When a meeting of miners was called in a specific area, one of the first articles of business was to specify the geographic limits over which their decisions would govern. In some cases, the mining district would be as large as 3 miles long and 2 miles wide. If a large group of miners were dissatisfied with the proposals regarding claim size, or jurisdiction, they would call for a separate meeting of those wishing a division of the territory. "The work of mining, and its environment and condition were so different in different places, that the laws and customs of the miners had to vary even in adjoining districts." This necessitated the right to secede and form districts as circumstances dictated.
By the end of 1849, some miners committed their agreements on property rights to writing. Typical agreements had a definite structure, which included 1) Definition of the geographic boundaries over which the agreement would be binding on all individuals. 2) Assignment to each miner of an exclusive claim. 3) Stipulations regarding the maximum size of each claim. 4) Enumeration of the conditions which must be met if exclusive rights to the claim boundaries were to be maintained. These might include staking the claim boundaries with wooden stakes, recording the claim at the miner's meeting, and working the claim a certain amount of time. 5) An indication of the maximum number of claims which any individual could hold, either by preemption or purchase, and what evidence was needed to substantiate a claim purchase. 6) Provision for some means of enforcement, such as calling upon a jury of five persons to settle disputes.
The purpose of the miner's meeting was to recognize and sanctify the right of the miner to locate a mining claim and to hold it against all comers. This was the traditional and customary right of the miner the world over to homestead the mining claim that he worked, provided it had not been claimed or worked by anyone else. Contemporary observers were startled that the miners could maintain the peace and avoid violent property disputes among such a large population. If ever there were an opportunity for "anarchy to run wild" it was in California at this time; but such was not the case. One contemporary observer noted, after visiting the camps:
Western Water Rights
Obviously, water was a necessity to the western settler. Miners often required water to work their claims. Western farmers needed large amounts for irrigation purposes. These demands led to the development of "Western water rights.'' Such rights were based on the homesteading principle: that the first user of a given flow of water became the owner of "right." Western water rights differed from "riparian " rights, which were recognized in the eastern United States. Under riparian law, the rights to flowing water belonged to those whose property bounded the running water. The use of riparian ownership rights in the West meant that water could not be diverted for mining or irrigation and created insuperable problems in a region where commerce depended on the availability of water.
The conflict between riparian doctrine and the needs of the Westerners gave way to the development of an "arid region" or appropriation doctrine. The underlying principle that evolved in Western water rights was that the first appropriator received an exclusive right to the water, and latter appropriators had their rights conditioned on the prior rights of those who had gone before. Thus, "first in time" gave "first in right." The law that evolved in the West reflected the greater scarcity of water. The appropriation or homesteading doctrine slowly evolved to permit the diversion of water from water-beds so that it could be used on non-riparian lands, forced the appropriator of water to forfeit his right if the water was not used, and allowed for the transfer, sale, and exchange of rights in water between individuals (something that was unheard of under the riparian system).
The appropriation doctrine, though novel in frontier America, was based on much of the world's traditional system of allocating property rights in water. These, in turn, were based on the protection of the eldest rights, which rested on the homesteading principle. In some places, the idea of appropriating water by the first user could be traced back to antiquity. Blackstone, at the time of the American revolution, claimed that "whoever possessed or made use of water first had a right to it." One of the most frequently cited authorities on water law, Samuel Wiel, contended that riparian doctrine was an innovation on the common law, introduced into England by way of the Code napoleon of 1804. Riparian doctrine was not embraced in English judicial decisions until 1833, and it was not until 1849, that the term riparian' was used by the English courts. Wiel also claimed that the idea of a common right to water flow (such as held by riparian owners) was simply socialism. "To carry out the idea of common right consistently, newcomers would have to be admitted to the use of the common supply, even though the supply is already in full use by others. The others would have to give up pro rata, and apportion some to the newcomers. ...It would be bare socialism if it were extensively done."6
The ownership of water in the West permitted the development of ditch, canal, and irrigation companies which charged for the delivery of water to specific points. This was impossible in other parts of the country, where only riparian rights were recognized. The existence of water rights aided the agricultural development of the dry regions from 1850 to 1900. By the turn of the century, however, statist regulations and court decisions disrupted the free market in water rights.
On the Overland Trail
Perhaps the best example of the ability of private property and ownership rights to sustain law and order is found in the experience of travellers on the Overland Trail westward beginning in the late 1840s. There was no political law west of Leavenworth, Kansas, but this does not imply that there was social disorder or disorganization. "Realizing that they were passing beyond the pale of law, and aware that the tedious journey and constant tensions of the trail brought out the worst in human character, the pioneers...created their own law-making and law-enforcing machinery before they started. "7 Large numbers of people travelling together formed voluntary contracts with one another in an effort to establish wholesome rules and regulations. This included organization of jury trials, regulation of gambling and intoxication, and penalties for failing to perform camp chores and guard duty.
The emigrants were property-minded, and respect for property rights was paramount. The pioneers seldom resorted to violence, even when food became so scarce that starvation was a distinct possibility. "It is no exaggeration to say that the emigrants who travelled America's overland trail gave little thought to solving their problems by violence or theft.'8 Violence and helping themselves to the property of others were not the norm of behavior. Instead, self-control and respect for property rights, even in strained circumstances, was the rule. There was little need for police on the frontier because respect for property was the taught, learned, and accepted custom of the people on the trail.
Indeed, the conception of ownership on the trial was so strong that a finder could lose title to things he had taken up and which were then found by the original owner. Furthermore, a good-faith purchaser for value, from a person in possession, could lose the property if it were claimed by a prior owner who had lost it, or from whom it had been stolen. No "finder-keepers " rule existed on the overland trail. People who lost property expected it to be returned. People who took up strays and lost property routinely announced their finds to strangers, in hopes that they might find the true owner. John Reid, a historian of the Overland Trail, states that "two facts stand out in all extant accounts of retrieving lost or stolen property on the overland trail. First, possession was not the test of title. When emigrants decided if an individual had a right to property they based their judgment on a legal abstraction they called "ownership," not the physical reality of possession. Second, when stolen goods were taken up, the person taking them acted as trustee for the "owner." The rule was universal. Emigrants suspecting that something offered for sale had been stolen would not buy it."9
Conclusion
As this review has shown, although the Western frontier was nearly stateless, it was not lawless nor without the benefits of civilization. When the federal government could not adequately provide coined money for the inhabitants of the Western frontier, businessmen in several Western territories began their own minting services. Private coinage, which has been frequently discussed in THE VOLUNTARYISM has a long and rich history and effectively competed with the federal mints. When the State is unable to provide a service that is demanded by consumers, market-place entrepeneurs will fill the breach (unless forcibly prevented from doing so by political restrictions).
Another service often poorly supplied by local governments on the Western frontier was adequate law enforcement. There are several hundred documented instances of vigilante movements in the United States during the 18th and 19th Centuries. Generally, these involved the leading citizens of the community, and other law-abiding, property-respecting individuals who were concerned with enforcing and reestablishing "law and order," which local and corrupt governments failed to provide. In most cases, this "taking of the law into their own hands" was supported by a great majority of the inhabitants. The best-known instances of vigilantism occurred in San Francisco in 1851 and 1856. As Roger McGrath has put it, the vigilante movements were usually well-regulated, "dealt quickly and effectively with criminal problems; they left the town(s) with more stable and orderly conditions; and when opposition developed they disbanded."10
The history of the American West shows that it is possible for people to live together in peace and harmony, even where a formal political state is not present. Under such circumstances, property rights evolve independently of state institutions, based on the principle of homesteading, or "first user, first owner." People did respect property even in the absence of government courts, legislatures, and police. As this short overview demonstrates, voluntaryism was successfully practiced on the Western frontier!
Footnotes
1 T. Anderson and P.J. Hill, "An American Experiment in Anarcho-Capitalism, " Vol. Ill THE JOURNAL OF LIBERTARIAN STUDIES (1979), pp. 9-29, at p. 9. Mention should also be made of the private production of gold coins on the western frontier. See "Hard Money' in the Voluntaryist Tradition," THE VOLUNTARYIST No. 23, January 1987.
2 Ibid., p. 10.
3 W. Eugene Hollon, FRONTIER VIOLENCE, New York: Oxford University Press, 1974, p.x. Frank Prassel, THE WESTERN PEACE OFFICER, Norman: University of Oklahoma Press, 1953, pp. 16-17. Watson Parker, "Armed and Ready: Guns on the Western Frontier, ' in Ronald Lora, ed., THE AMERICAN WEST, Toledo: The University of Toledo, 1980, p. 167. For a review of the literature extolling both the frontier as violent and not especially violent see the "Appendix" in Roger McGrath, GUNFIGHTERS, HIGHWAYMEN, AND VIGILANTES (Berkeley: University of California Press, 1984).
4 For this and subsequent quotes see, John Umbeck, "The California Gold Rush: A Study of Emerging Property Rights," Vol. XIV EXPLORATIONS IN ECONOMIC HISTORY (1977), pp. 197-226, at p. 214.
5 Bayard Taylor, ELDORADO OR, ADVENTURES IN THE PATH OF EMPIRE COMPRISING A VOYAGE TO CALIFORNIA..., New York: George Putnam, l85O,pp. 100-101.
6 Samuel Wiel, "Theories of Water Law," Vol. 27 HARVARD LAW REVIEW (1913-1914), pp. 530-544, at p. 540.
7 Anderson and Hill, op. cit., p. 21.
8 See John Phillip Reid, LAW FOR THE ELEPHANT: Property and Social Behavior on the Overland Trail, San Marino: The Huntington Library, 1980. This quote is cited by Anderson and Hill, op. cit., p. 23.
9 Reid, op. cit., 274.
10 McGrath, supra note 3, pp.255-256. Also see Alan Valentine, VIGILANTE JUSTICE, New York: Reynal and Company, 1956; and Mary Floyd Williams, HISTORY OF THE SAN FRANCISCO COMMITTEE OF VIGILANCE OF 1851,
Until 1866, seventeen years after the beginning of the California gold rush, there were no federal laws to govern the active mining frontier in the Far West. If ever there were a clearcut, real-life example of voluntaryism at work, it is this. The federal government took no initiative in the matter of mining law, and, regardless, was too weak to exert effective control. The miners worked at their own risk, for their own profit. The territory of California, which did not become a state until September 9, 1850, was held under the military authority of the United States. Technically, all gold and silver mined in the area ceded by Mexico was legally owned by the U.S. federal government, and in the absence of any federal legislation, the mining industry remained for a time subject to the pre-existing Mexican law. Soon, however, the U.S military governor abolished the Mexican laws and customs relating to mining. But as he did not have sufficient military force to prevent work at the diggings, he thought it best to leave mining open to all who tried. No attempt was made to tax or control the miners or their output, even though they were trespassing and robbing the federal treasury of its mineral wealth. Even if Congress had been strong enough to regulate and enforce mining regulations, it lacked the knowledge as to what laws to pass. When legislation was finally enacted, the customs, usages, and rules evolved by the miners themselves were adapted as the basis for federal mining law.
The discovery of gold at Sutter's mill near Sacramento, California nearly coincided with the end of the Mexican War in January, 1848. Although California became an American territory, there was little evidence of American statist control except for the presence of about 1000 American soldiers. When the discovery of gold was announced in San Francisco in mid-May 1848, the Sacramento region was invaded by nearly 10,000 people within the space of seven months. These people rushed to mine gold on property to which no one had exclusive rights. Although nearly every miner carried a gun, little violence was reported. In July, 1848, when the military governor, Colonel Mason, visited the mines, he reported that "crime of any kind was very infrequent, and that no thefts or robberies had been committed in the gold district...and it was a matter of surprise, that so peaceful and quiet a state of affairs should continue to exist."4
The real gold rush commenced in 1849. More than 20,000 people departed from the east coast in ships bound for California. By the end of the year, the population in California had reached about 107,000, mostly miners. As land became relatively scarce with this influx of emigrants, there was an incentive to assign exclusive rights to mine a given piece of land. This gave birth to the miner's meeting and the development of miner's law which was based on generally accepted mining customs and practices. When a meeting of miners was called in a specific area, one of the first articles of business was to specify the geographic limits over which their decisions would govern. In some cases, the mining district would be as large as 3 miles long and 2 miles wide. If a large group of miners were dissatisfied with the proposals regarding claim size, or jurisdiction, they would call for a separate meeting of those wishing a division of the territory. "The work of mining, and its environment and condition were so different in different places, that the laws and customs of the miners had to vary even in adjoining districts." This necessitated the right to secede and form districts as circumstances dictated.
By the end of 1849, some miners committed their agreements on property rights to writing. Typical agreements had a definite structure, which included 1) Definition of the geographic boundaries over which the agreement would be binding on all individuals. 2) Assignment to each miner of an exclusive claim. 3) Stipulations regarding the maximum size of each claim. 4) Enumeration of the conditions which must be met if exclusive rights to the claim boundaries were to be maintained. These might include staking the claim boundaries with wooden stakes, recording the claim at the miner's meeting, and working the claim a certain amount of time. 5) An indication of the maximum number of claims which any individual could hold, either by preemption or purchase, and what evidence was needed to substantiate a claim purchase. 6) Provision for some means of enforcement, such as calling upon a jury of five persons to settle disputes.
The purpose of the miner's meeting was to recognize and sanctify the right of the miner to locate a mining claim and to hold it against all comers. This was the traditional and customary right of the miner the world over to homestead the mining claim that he worked, provided it had not been claimed or worked by anyone else. Contemporary observers were startled that the miners could maintain the peace and avoid violent property disputes among such a large population. If ever there were an opportunity for "anarchy to run wild" it was in California at this time; but such was not the case. One contemporary observer noted, after visiting the camps:
The first consequence of the unprecedented rush of emigration from all parts of the world into the country almost unknown, and but half reclaimed from its original barbarism, was to render all law virtually null, and bring the established authorities to depend entirely on the humor
of the population for the observance of their orders. ...From the beginning, a state of things little short of anarchy might have been reasonably awaited.
Instead of this, a disposition to maintain order and secure the rights of all, was shown throughout the mining districts. In the absence of all law or available protection, the people met and adopted rules for their mutual security—rules adapted to their situation, where they neither had guards nor prisons, and where the slightest license given to crime or trespass of any kind must inevitably have led to terrible disorders. Small thefts were punished by banishment from the placers, while for those of large amount or for more serious crimes, there was the single alternative of hanging. These regulations, with slight change, had been continued up to the time of my visit to the country. In proportion as the emigration from our own States increased, and the digging community assumed a more orderly and intelligent aspect, their severity had been relaxed, though punishment was still strictly administered for all offences. ...
In all the large diggings, which had been worked for some time, there were established regulations, which were faithfully observed. ...When a new placer or gulch was discovered, the first thing done was to elect officers and extend the area of order. The result was that in a district five hundred miles long, and inhabited by 100,000 people, who had neither government, regular laws, rules, military protection, not even locks or bolts, and a great part of whom possessed wealth enough to tempt the vicious and depraved, there was as much security to life and property as in any part of the Union, and as small a proportion of crime. The capacity of a people for self-government was never so triumphantly illustrated. Never, perhaps, was there a community formed of more unpropitious elements; yet from all this seeming chaos grew a harmony beyond what the most sanguine apostle of Progress could have expected.
(emphasis added)5
of the population for the observance of their orders. ...From the beginning, a state of things little short of anarchy might have been reasonably awaited.
Instead of this, a disposition to maintain order and secure the rights of all, was shown throughout the mining districts. In the absence of all law or available protection, the people met and adopted rules for their mutual security—rules adapted to their situation, where they neither had guards nor prisons, and where the slightest license given to crime or trespass of any kind must inevitably have led to terrible disorders. Small thefts were punished by banishment from the placers, while for those of large amount or for more serious crimes, there was the single alternative of hanging. These regulations, with slight change, had been continued up to the time of my visit to the country. In proportion as the emigration from our own States increased, and the digging community assumed a more orderly and intelligent aspect, their severity had been relaxed, though punishment was still strictly administered for all offences. ...
In all the large diggings, which had been worked for some time, there were established regulations, which were faithfully observed. ...When a new placer or gulch was discovered, the first thing done was to elect officers and extend the area of order. The result was that in a district five hundred miles long, and inhabited by 100,000 people, who had neither government, regular laws, rules, military protection, not even locks or bolts, and a great part of whom possessed wealth enough to tempt the vicious and depraved, there was as much security to life and property as in any part of the Union, and as small a proportion of crime. The capacity of a people for self-government was never so triumphantly illustrated. Never, perhaps, was there a community formed of more unpropitious elements; yet from all this seeming chaos grew a harmony beyond what the most sanguine apostle of Progress could have expected.
(emphasis added)5
Western Water Rights
Obviously, water was a necessity to the western settler. Miners often required water to work their claims. Western farmers needed large amounts for irrigation purposes. These demands led to the development of "Western water rights.'' Such rights were based on the homesteading principle: that the first user of a given flow of water became the owner of "right." Western water rights differed from "riparian " rights, which were recognized in the eastern United States. Under riparian law, the rights to flowing water belonged to those whose property bounded the running water. The use of riparian ownership rights in the West meant that water could not be diverted for mining or irrigation and created insuperable problems in a region where commerce depended on the availability of water.
The conflict between riparian doctrine and the needs of the Westerners gave way to the development of an "arid region" or appropriation doctrine. The underlying principle that evolved in Western water rights was that the first appropriator received an exclusive right to the water, and latter appropriators had their rights conditioned on the prior rights of those who had gone before. Thus, "first in time" gave "first in right." The law that evolved in the West reflected the greater scarcity of water. The appropriation or homesteading doctrine slowly evolved to permit the diversion of water from water-beds so that it could be used on non-riparian lands, forced the appropriator of water to forfeit his right if the water was not used, and allowed for the transfer, sale, and exchange of rights in water between individuals (something that was unheard of under the riparian system).
The appropriation doctrine, though novel in frontier America, was based on much of the world's traditional system of allocating property rights in water. These, in turn, were based on the protection of the eldest rights, which rested on the homesteading principle. In some places, the idea of appropriating water by the first user could be traced back to antiquity. Blackstone, at the time of the American revolution, claimed that "whoever possessed or made use of water first had a right to it." One of the most frequently cited authorities on water law, Samuel Wiel, contended that riparian doctrine was an innovation on the common law, introduced into England by way of the Code napoleon of 1804. Riparian doctrine was not embraced in English judicial decisions until 1833, and it was not until 1849, that the term riparian' was used by the English courts. Wiel also claimed that the idea of a common right to water flow (such as held by riparian owners) was simply socialism. "To carry out the idea of common right consistently, newcomers would have to be admitted to the use of the common supply, even though the supply is already in full use by others. The others would have to give up pro rata, and apportion some to the newcomers. ...It would be bare socialism if it were extensively done."6
The ownership of water in the West permitted the development of ditch, canal, and irrigation companies which charged for the delivery of water to specific points. This was impossible in other parts of the country, where only riparian rights were recognized. The existence of water rights aided the agricultural development of the dry regions from 1850 to 1900. By the turn of the century, however, statist regulations and court decisions disrupted the free market in water rights.
On the Overland Trail
Perhaps the best example of the ability of private property and ownership rights to sustain law and order is found in the experience of travellers on the Overland Trail westward beginning in the late 1840s. There was no political law west of Leavenworth, Kansas, but this does not imply that there was social disorder or disorganization. "Realizing that they were passing beyond the pale of law, and aware that the tedious journey and constant tensions of the trail brought out the worst in human character, the pioneers...created their own law-making and law-enforcing machinery before they started. "7 Large numbers of people travelling together formed voluntary contracts with one another in an effort to establish wholesome rules and regulations. This included organization of jury trials, regulation of gambling and intoxication, and penalties for failing to perform camp chores and guard duty.
The emigrants were property-minded, and respect for property rights was paramount. The pioneers seldom resorted to violence, even when food became so scarce that starvation was a distinct possibility. "It is no exaggeration to say that the emigrants who travelled America's overland trail gave little thought to solving their problems by violence or theft.'8 Violence and helping themselves to the property of others were not the norm of behavior. Instead, self-control and respect for property rights, even in strained circumstances, was the rule. There was little need for police on the frontier because respect for property was the taught, learned, and accepted custom of the people on the trail.
Indeed, the conception of ownership on the trial was so strong that a finder could lose title to things he had taken up and which were then found by the original owner. Furthermore, a good-faith purchaser for value, from a person in possession, could lose the property if it were claimed by a prior owner who had lost it, or from whom it had been stolen. No "finder-keepers " rule existed on the overland trail. People who lost property expected it to be returned. People who took up strays and lost property routinely announced their finds to strangers, in hopes that they might find the true owner. John Reid, a historian of the Overland Trail, states that "two facts stand out in all extant accounts of retrieving lost or stolen property on the overland trail. First, possession was not the test of title. When emigrants decided if an individual had a right to property they based their judgment on a legal abstraction they called "ownership," not the physical reality of possession. Second, when stolen goods were taken up, the person taking them acted as trustee for the "owner." The rule was universal. Emigrants suspecting that something offered for sale had been stolen would not buy it."9
Conclusion
As this review has shown, although the Western frontier was nearly stateless, it was not lawless nor without the benefits of civilization. When the federal government could not adequately provide coined money for the inhabitants of the Western frontier, businessmen in several Western territories began their own minting services. Private coinage, which has been frequently discussed in THE VOLUNTARYISM has a long and rich history and effectively competed with the federal mints. When the State is unable to provide a service that is demanded by consumers, market-place entrepeneurs will fill the breach (unless forcibly prevented from doing so by political restrictions).
Another service often poorly supplied by local governments on the Western frontier was adequate law enforcement. There are several hundred documented instances of vigilante movements in the United States during the 18th and 19th Centuries. Generally, these involved the leading citizens of the community, and other law-abiding, property-respecting individuals who were concerned with enforcing and reestablishing "law and order," which local and corrupt governments failed to provide. In most cases, this "taking of the law into their own hands" was supported by a great majority of the inhabitants. The best-known instances of vigilantism occurred in San Francisco in 1851 and 1856. As Roger McGrath has put it, the vigilante movements were usually well-regulated, "dealt quickly and effectively with criminal problems; they left the town(s) with more stable and orderly conditions; and when opposition developed they disbanded."10
The history of the American West shows that it is possible for people to live together in peace and harmony, even where a formal political state is not present. Under such circumstances, property rights evolve independently of state institutions, based on the principle of homesteading, or "first user, first owner." People did respect property even in the absence of government courts, legislatures, and police. As this short overview demonstrates, voluntaryism was successfully practiced on the Western frontier!
Footnotes
1 T. Anderson and P.J. Hill, "An American Experiment in Anarcho-Capitalism, " Vol. Ill THE JOURNAL OF LIBERTARIAN STUDIES (1979), pp. 9-29, at p. 9. Mention should also be made of the private production of gold coins on the western frontier. See "Hard Money' in the Voluntaryist Tradition," THE VOLUNTARYIST No. 23, January 1987.
2 Ibid., p. 10.
3 W. Eugene Hollon, FRONTIER VIOLENCE, New York: Oxford University Press, 1974, p.x. Frank Prassel, THE WESTERN PEACE OFFICER, Norman: University of Oklahoma Press, 1953, pp. 16-17. Watson Parker, "Armed and Ready: Guns on the Western Frontier, ' in Ronald Lora, ed., THE AMERICAN WEST, Toledo: The University of Toledo, 1980, p. 167. For a review of the literature extolling both the frontier as violent and not especially violent see the "Appendix" in Roger McGrath, GUNFIGHTERS, HIGHWAYMEN, AND VIGILANTES (Berkeley: University of California Press, 1984).
4 For this and subsequent quotes see, John Umbeck, "The California Gold Rush: A Study of Emerging Property Rights," Vol. XIV EXPLORATIONS IN ECONOMIC HISTORY (1977), pp. 197-226, at p. 214.
5 Bayard Taylor, ELDORADO OR, ADVENTURES IN THE PATH OF EMPIRE COMPRISING A VOYAGE TO CALIFORNIA..., New York: George Putnam, l85O,pp. 100-101.
6 Samuel Wiel, "Theories of Water Law," Vol. 27 HARVARD LAW REVIEW (1913-1914), pp. 530-544, at p. 540.
7 Anderson and Hill, op. cit., p. 21.
8 See John Phillip Reid, LAW FOR THE ELEPHANT: Property and Social Behavior on the Overland Trail, San Marino: The Huntington Library, 1980. This quote is cited by Anderson and Hill, op. cit., p. 23.
9 Reid, op. cit., 274.
10 McGrath, supra note 3, pp.255-256. Also see Alan Valentine, VIGILANTE JUSTICE, New York: Reynal and Company, 1956; and Mary Floyd Williams, HISTORY OF THE SAN FRANCISCO COMMITTEE OF VIGILANCE OF 1851,
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