UC Berkeley

This dissertation analyzes the coalescence, rise, contestation, and fall of multiple jurisprudences of colonial property from the American plans to acquire Mexican Alta California in the 1840s to the adoption of the State’s revised constitution in 1879. It follows a cadre of lawyers as they seek to answer the apparently simple questions of who owned what, how much, and why? In this investigation it asks, how did these transformations of property law reflect and shape the larger development of American Empire? The arguments herein reflect and complicate classic theses on the liberalization of property and the demystification of law, and thereby the work makes significant contributions to the fields of American Legal History, Settler Colonial Studies, American Political Development, and the History of Capitalism.

The first half of the dissertation excavates the consolidation of “equitable property.” Chapter one, “Guides to the Promised Land, 1841-1851,” uses an archive of settler guidebooks, geographies, and travel accounts along with prominent reformist writings, like those of George Evans, to analyze the natural legal logic of property. This legality combined themes of anti-legalism, radical Lockeanism, and Christian theology. Across three great questions of American colonization policy – the origin of land titles, policy toward Native Peoples, and the Free versus Slave colonization debate – Pacific settlers employed legal naturalism to craft a radical and genocidal form of Free Labor “settlement.” Chapter two, “California Redeemed, 1851-1861,” analyzes the changing moral, social, and political meanings of equitable property. Through the personal and professional papers of elite lawyers, newspapers, and court decisions, the chapter argues that uncertain ownership precipitated a “property crisis,” which then became a general political and social crisis. The equitable legal concepts of “fraud” and “redemption” enabled elite land lawyers, the judiciary, and the emergent bourgeoisie of California to negotiate and quiet these deadly property conflicts. However, this equitable legality took on a life of its own and was soon turned against the elite lawyers and the ascendant doctrines of liberalism in property law.

The second half examines the partial disintegration of equity and the rise of anti-redistributive and “neutral” liberal law. In chapter three, “A Very Low Price, 1861-1871,” the work analyzes the material, legal, and ideological commodification of land and the articulation of a new model of American settler colonization of “cheap colonization.” This triple commodification, of land itself, of mortgage securities, and of wheat, marked a dramatic contrast with the moralistic and natural legality which preceded it. Land lawyers, especially those involved in global markets, increasingly understood land distribution as a matter of markets rather than justice. These two visions of law created a bloody conflict on Suscol Rancho and it became clear to lawyers that equitable property threatened society. To put it crudely, it was one thing to forcibly disposes Native Peoples and quite another to forcibly disposes white landlords. The final substantive chapter, “To Serve God or Mammon, 1871-1880,” narrates the rearguard actions of the equitable regime through Georgist thought, the Workingmen’s Party of California, and other countermovement to liberalism’s free market in land. While disunited, these radicals forced a Constitutional Convention in 1879 and the records of the convention form the archival backbone of this chapter. The records reveal a profusion of ideas on how law could constrain the problems of inequality in land ownership, but an overweening and racialist theory of property defused the anticapitalistic strain of equitable law. What seemed a last opportunity to reorganize American settler colonization became the last gasp of Jacksonian property. In the end, the new California Constitution retrenched the liberal order and marked the transformation of American colonial policy from old to new. Naturally, the conclusion sums up the work with a consideration of Frank Norris’s famous contemporary novel The Octopus (1901).