Property and Progress: Antebellum Landscape Art and Property Law

Landscape art in the Antebellum Era (the period before the American Civil War, 1861-1865), often depicts the role of humans on the landscape. Humans appear as hunters, settlers, and travelers, and human structures appear as well, from rude paths, cabins, mills, bridges, and canals to railroads and telegraph wires. Those images parallel cases, treatises, orations, essays, and fictional literature that discuss property’s role in fostering economic and moral development. The images also parallel developments in property doctrine, particularly related to adverse possession, mistaken improvers, nuisance, and eminent domain. Some of the conflicts in property rights that gripped antebellum thought also appear in paintings, including ambivalence about progress, concern over development of land, and fear of the excesses of commerce. The concerns about wealth, as well as the concerns about the lack of control through law, appear at various points. Other paintings celebrate intellectual, moral, technological, and economic progress. The paintings thus remind us of how antebellum Americans understood property as they struggled with the changes in the role of property from protection of individual autonomy of the eighteenth century to the promotion of economic growth in the nineteenth century. Wild nature, uninhabited and uncorrupted by humans, may be the image that is most conjured by the phrase “American landscape art.” One might think of * Reef C. Ivey II Professor of Law, University of North Carolina. With apologies to those who, over the past 120 years, have used similar titles: Stephen Thernstrom, Poverty and Progress: Social Mobility in a Nineteenth Century City (1964), who in turn built on Henry George’s Progress and Poverty (1879). The first three words of my title are the same as William Hurrell Mallock’s Property and Progress: Or, A Brief Inquiry into Contemporary Social Agitation in England (1884), a sustained critique of Henry George. Thanks to Brian Landsberg, Miriam Cherry, Ruth Jones, and John Sims for their kind invitation to present this paper as part of the Distinguished Speakers Series at University of the Pacific, McGeorge School of Law; and to Martee Reeg for her kind invitation to speak at the Westervelt Warner Museum and her comments; and to Katherine Bettis, William S. Brewbaker, James W. Ely, Daniel M. Filler, Tony Freyer, Daniel Hamilton, Yury Kolesnikov, James Krier, Michael Mendle, John Nagle, Donna Nixon, and Meredith Render for their comments. I am also extraordinarily grateful for permission to reproduce images from the Brooklyn Museum, the Gulf States Paper Corporation, Indiana University-Bloomington Art Museum, the Metropolitan Museum of Art, the Meade Art Museum of Amherst College, and the National Gallery of Art. Contact the author at abrophy@email.unc.edu or 919.962.4128. 2009 / Antebellum Landscape Art and Property Law 604 John Locke’s phrase that “[t]hus in the beginning all the World was America.” Locke’s phrase calls to mind the state of nature. Indeed, some landscape painters of our early national period depicted scenes of nature. In Jasper Cropsey’s Autumn on the Hudson, America appears new and uninhabited, as it is in Thomas Cole’s 1826 Falls of Kaaterskill (image 1). Sometimes when people are shown on the landscape, as in Frederic Church’s Hooker and Company Journeying Through the Wilderness from Plymouth to Hartford, the landscape is, well, a wilderness. (Church’s Above the Clouds at Sunrise, image 2, has no humans present.) Such images and Locke’s phrase parallel Americans’ self-image in the 1830s that the world of the mind is new and untried. When Ralph Waldo Emerson told the Literary Societies in Dartmouth College in 1843, “[t]he perpetual admonition of nature to us is, ‘The world is new, untried. Do not believe the past. I give you the universe a virgin to-day,’” he expressed the grand optimism of antebellum Americans that they were different—and ought to celebrate that difference—from Europeans. Emerson sought to reclaim early Americans’ practical ability to have a direct relationship with God and nature. 1. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 301 (Peter Laslett ed., 1988) (1690). With all of the changes brewing in American society, it is easy to forget, however, that Locke appended to that saying, “and more so than that is now.” For even in Locke’s time—the middle of the seventeenth century—there was substantial development in the Americas. Id.; see also BARBARA ARNEIL, JOHN LOCKE AND AMERICA: THE DEFENSE OF ENGLISH COLONIZATION 1 (1996). Locke had already told how central property was to economic development, with an illustration from the experience of American Indians, whose standard of living was perceived to be inferior to that of common laborers in England. See generally, LOCKE, supra. [S]everal Nations of the Americans are of this, who are rich in Land, and poor in all the Comforts of Life; whom Nature having furnished as liberally as any other people, with the materials of Plenty, i.e. a fruitful Soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the Conveniences we enjoy: And a king of a large and fruitful Territory there feeds, lodges, and is clad worse than a day Labourer in England. Id. at 296-97. Commerce was central to property. Locke illustrated this by asking what would the value of property be if it is so far away from the stream of commerce that the produce could not make it to market? What would a Man value Ten Thousand, or an Hundred Thousand Acres of excellent Land, ready cultivated, and well stocked too with Cattle, in the middle of the inland Parts of America, where he had no hopes of Commerce with other Parts of the World, to draw Money to him by the Sale of the Product? It would not be worth the inclosing, and we should see him give up again to the wild Common of Nature, whatever was more than would supply the Conveniences of Life to be had there for him and his Family.