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The Great Emancipators: How The Civil War Openly Became about Slavery

Our American Stories / Lee Habeeb
The Truth Network Radio
July 19, 2022 3:00 am

The Great Emancipators: How The Civil War Openly Became about Slavery

Our American Stories / Lee Habeeb

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July 19, 2022 3:00 am

On this episode of Our American Stories, Emma McCormick tells us how she was told she'd be working remotely in 2020, so she decided to live on a sailboat in Florida. Regular contributor Jon Elfner and Dr. Kate Masur, author of "Until Justice Be Done," tell the story behind Abraham Lincoln that begins with three runaway enslaved people. P.J. Hill, rancher and co-author of “The Not So Wild, Wild West: Property Rights on the Frontier,” explains the misunderstanding behind the American West.

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Time Codes:

00:00 - When Her Work Went Remote... So She Moved Onto a Sailboat

10:00 - The Great Emancipators: How The Civil War Openly Became about Slavery

35:00 - Why "The Wild, Wild West" Wasn't Actually So Wild

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This is Lee Habib and this is Our American Stories. And we tell stories about everything here on this show, from the arts to sports and from business to history and everything in between, including your stories.

Send them to The allure of the sea. It's hard not to deny it when it comes beckoning. If you've ever so much as looked at a boat, it's hard not to imagine what it'd be like to own one. One person who decided to make those dreams into reality is Emma McCormick, who did it on a whim, of course.

Well, my name is Emma and I'm a financial analyst at General Motors. Right now, I'm a sailor. I grew up in Idaho. I, like, never even noticed sailboats. Didn't know anything about it. And then after college, when I moved to Detroit, I was new to the city.

I didn't know anybody. And I was out for a run one day and I saw a poster that said, free, no experience necessary, learn to sail. It's like, that sounds perfect. It sounds like so much fun. And so I just showed up and it was at a yacht club that had a race series and they would take new people and just put you on a boat.

I did some training and learning with them over the winter and then sailed with them and every regatta I could. But in 2020, Emma was told she'd be working remotely and decided to make the most of it. If she could work remotely, she could live remotely too.

But what to live in was the question she had to answer. I thought about a sailboat for a fleeting second, but then I kind of doubted myself. I was like, I probably can't do that by myself. So then I thought about a van and then I was talking to a sailing friend and we were talking about the possibilities of doing that. But that was also pretty farfetched. But then I was like, well, you know, I could probably just do this by myself.

I don't know. It just seemed like more fun and sailing is a lot more fun than driving. And it all came together really at the last minute. I canceled my lease before I had even officially bought a boat. The second hardest part about owning a boat is finding one to buy. Obviously, the first hardest part is maintaining the boat.

All of them are going to have something wrong with them. I spent almost two full months searching, just looking into different types of boats. But I ended up finding this boat.

I found it was listed on Craigslist and the man who was selling it was 92. And he actually only bought the boat when he was 88. And with the boat bought, she did what so many other people from the Midwest do when spring rolls around.

She went to Florida. But what's her house like? So it's 25 feet long. It's about eight and a half feet wide. The headroom is actually about four feet, nine inches, which means I can't stand up in my boat. Technically four people could sleep on this boat.

We've actually slept five for a few nights in a row. I had actually never slept on a boat until I bought this. I have a little galley or kitchen with a two-burner alcohol stove. It's like your living room, your dining room, there's storage behind them. So yeah, I'm generally a pretty tidy person to begin with. I like things to be organized, which I think is good because living on a boat in such a small space where your living room, dining room, kitchen, bedroom, it's all the same.

If you leave something sitting out, the whole place looks like a mess. So I think you just need to be prepared to put a lot of work into it. I mean, there's definitely people who live on boats here who put zero work into it and their boats reflect that. But if you want to live somewhere nice, you got to maintain it.

I think just be prepared for work, be prepared for things to take longer than you expect and cost more than you expect. But to move down here definitely simplified things a lot down to like one pot and one pan and a handful of shirts. So what's living in a marina like and who are the kinds of people who spend time there? Unsurprisingly, they're a very eclectic group of people who certainly like to talk to Emma. The sailing community, the boating community, everyone is so kind and so excited and they, especially if you're younger. Being around the marina, like I can hardly go to the bathroom because there's bathrooms and showers and laundry and everything in the entrance lounge area to the marina. So I can hardly walk there without talking to somebody because there's always people out and about and there's always interesting people.

And it probably depends on where you are. Like I'm in the marina here, so maybe a little bit different clientele than people who just anchor in some random bayou. But I do love hearing people's stories and what brings them here.

Like one of my friends like broke up with his girlfriend and so he just like wanted to move to a new state, do something different. And it's like it's a fun life. There's several families with young kids and they have day jobs.

I think one family I'm thinking of, the wife's a doctor, the husband runs a sail rigging company and they've got their whole family lives on their catamaran. But have any of her friends from up north come to visit? Of course they have. That's funny, I told all my friends, hey I'm in Florida, I have a boat, it's warm and sunny, it's warm and sunny, come visit. And I wasn't sure how many people would actually jump on that and buy a plane ticket and come down.

But everyone I've told about it has. Like I have guests basically every weekend, which is a ton of fun. Most of them have never been on sailboats and so they love my boat until I show them a friend's boat that's bigger.

But they're, no, they're impressed. And just a delightful piece and a special thanks to Monty Montgomery for snagging it. And a special thanks to Emma McCormick for telling her story. She had some time to do remote work and she did what so many Americans do. She pursued her own version of the American dream and decided to live on a sailboat in a beautiful marina in a beautiful part of the country where it was nice and warm.

The story of Emma McCormick sailing away while doing her work here on Our American Stories. Folks, if you love the stories we tell about this great country and especially the stories of America's rich past, know that all of our stories about American history from war to politics to innovation, culture and faith are brought to us by the great folks at Hillsdale College, a place where students study all the things that are beautiful in life and all the things that are good in life. And if you can't get to Hillsdale, Hillsdale will come to you with their free and terrific online courses.

Go to to learn more. Geico asks, how would you love a chance to save some money on insurance? Of course you would. And when it comes to great rates on insurance, Geico can help. Like with insurance for your car, truck, motorcycle, boat and RV. Even help with homeowners or renters coverage. Plus add an easy to use mobile app, available 24-hour roadside assistance and more and Geico is an easy choice. Switch today and see all the ways you could save. It's easy.

Simply go to or contact your local agent today. And we're back with our American stories. Abraham Lincoln's nickname is the great emancipator, but our regular contributor, John Elfner, is about to tell us a story on how that's not quite the whole story.

Here's John. It was a beautiful spring evening in Norfolk, Virginia, the night of May 23rd, 1861. Abraham Lincoln had recently been inaugurated and by this night, 10 Southern states, including Virginia, had seceded from the Union.

The scope of the Civil War was still not well understood by most, but the Civil War had begun. Working along the banks of the James River were three men, Frank Baker, Shepherd Mallory and James Townsend. The men were finishing their assigned task of building a Confederate artillery battery just south of the James River in a location called Sewell's Point. The artillery position was designed to assault a Union fort just across the James River. The fort was called Fort Monroe. As evening approached, Baker, Mallory and Townsend decided to abandon the Confederate post and cross the James River to Fort Monroe. And when they traveled that short distance from Sewell's Point to the fort, they became fugitives. You see, according to the laws of Virginia, Frank Baker, Shepherd Mallory and James Townsend were slaves.

They had run away with the hopes of finding their freedom within Union lines. Any casual student of American history would likely expect the Union soldiers would take them in. After all, the soldiers commander-in-chief was Abraham Lincoln, who would eventually earn the nickname the Great Emancipator. But when the three arrived at Fort Monroe, the fort's commander, Major General Benjamin Butler, was faced with a dilemma. He knew that he shouldn't be returning the escapees based on Lincoln's public statements about the war. The general ethos at the beginning of the war was we're not here to get involved with slavery. We are here to try to persuade the Confederates to drop their arms and come back into the Union.

That's Dr. Kate Masur, professor of U.S. history at Northwestern University. She writes about the complexities of the abolition movement in her fantastic new book Until Justice Be Done, and her research revealed something surprising. U.S. military officers sometimes decided to cooperate with slave owners and return slaves. Everyone knew that the war was about slavery, so it's not that anyone was disguising that the conflict was about slavery. It's true, Lincoln was pretty clear about the role of slavery in the war in his first inaugural address just two months earlier. In that address, he said this. One section of our country believes slavery is right and ought to be extended, while the other believes it is wrong and ought not to be extended.

This is the only substantial dispute. Then why would the escapees not be welcomed into a Union fort during the Civil War? It's because moments later Lincoln added this. I have no purpose directly or indirectly to interfere with the institution of slavery in the states where it currently exists.

I believe I have no lawful right to do so, and I have no inclination to do so. First we have to remember that it was the Confederacy that declared itself out of the Union. The conflict begins with a series of southern states saying that they're no longer part of the United States, and then creating this thing called the Confederate States of America, which they say is a separate nation. But this was something Lincoln steadfastly denied throughout the war. The United States government's position was you cannot secede from the Union, and if force is necessary to show that you, the southern states, are still in the Union, we will use force to prove that the United States is still intact. Lincoln did not want to say that the government was going to attack slavery. This was because Lincoln had a military problem. There were four slave states which had not left the Union, and if those so-called border states were to join the Confederacy, it would be devastating for the Union. So any talk about the Confederacy is no longer in the Union. So any talk of abolition might have caused Lincoln grave problems in the war, and he was especially worried about the state of Kentucky. Lincoln expressed this concern in a private letter to his close friend, Senator O.H.

Browning. I think to lose Kentucky is nearly the same as to lose the whole game. Kentucky gone, we cannot hold Missouri, nor as I think Maryland.

All against us, and the job on our hands is too large for us. That's because the Confederate state of Virginia already borders Washington, D.C., and if Maryland secedes, the Capitol would be surrounded by Confederate states. We would as well consent to separation at once, including the surrender of this Capitol. This explains why Lincoln didn't make public statements attacking slavery early in the war. There's a possibility that when white Kentuckians see that a critical mass of them are going to say, hey, I want to join the Confederacy and continue to fight to preserve slavery.

So he does a lot of different things in the first year or so of the war to try to satisfy folks in those states. He says that he's not going to attack slavery. He says this is not a war about slavery.

But the Civil War ended slavery. So how could Lincoln be saying at the start of the war that he had no intention and no power to abolish slavery? It's important to understand that when Lincoln publicly stated that he had no right to get rid of slavery, he was correct. After all, how can he get rid of slavery when just moments earlier he had sworn an oath to uphold the Constitution? And like it or not, the Constitution protected slavery in the states where it currently existed.

There's absolutely no doubt that Lincoln loathed slavery. The question was, under the United States Constitution, what power does the president or the federal government have to abolish slavery? He believed that the federal government did not have the power to abolish slavery in the states where it already existed. And at the time of his inauguration, there hadn't been any violence between the Union and the seceded states. So as far as Lincoln was concerned, the Constitution was still in effect throughout the United States, and that included the states that had claimed to secede. They begin with the objective of simply persuading the Confederates to stop what the U.S. government thought was a ridiculous and also treasonous enterprise.

Preserving the Union, that was Lincoln's stated objective at the beginning of the war. And to help keep the focus on preserving the Union, Lincoln's military generals developed a surprising practice. Military officers frequently returned escaped slaves to their owners. U.S. military officers sometimes decided to cooperate with slave owners and return slaves. This really happened. And when enslavers came to U.S. officials and said, hey, this person escaped into your camp, I need them back, the officers would say, okay, let me go find them. And that's what happened.

It happened regularly. The United States has not recognized the Confederacy as a separate nation. There is this 1850 Fugitive Slave Act. Under federal law, when escaping slaves across jurisdictions, the slave owner supposedly has a right to come and get them back.

And so that's one of the types of claims that the slave owners would have made. And what did this mean for Baker, Mallory and Townsend, the three escapees who fled to Fort Monroe? The commander of the fort, General Butler, certainly knew Lincoln's position. And Butler also knew that if he didn't return the slaves, he'd be sending a message that the U.S. forces were attacking slavery. And that was a message Lincoln was working hard to avoid. So when Baker, Mallory and Townsend arrived at the fort, they were taken in. And consistent with the common practice of returning escapees, Butler may have considered returning them. But when he spoke to the three, he learned that he couldn't do that.

The reason? They'd been installing cannon aimed at Fort Monroe. There was a report written about the conversation, and it said this.

Butler knew he couldn't return the three men who would immediately be put back to work installing cannon aimed at Fort Monroe. But he needed to find a way around Lincoln's constitutional understanding of the state of the state. A decision needed to be made, and it needed to be made quickly, because Confederate Major John Baytop Cary was approaching the fort seeking the return of the escapees. And you've been listening to John Elfner tell the story of the Civil War, a different kind of story, a messy story, and a different kind of story. And you've been listening to John Elfner tell the story of the Civil War, a different kind of story, a messy story, and a difficult story. And one having a lot to do with what could Lincoln actually do at the time as opposed to what did Lincoln actually want to accomplish.

Lincoln didn't know what was going to happen. More of this remarkable story of the Civil War told by John Elfner here on Our American Stories. And we're back with Our American Stories and the story of how three slaves escaping to the Union's Fort Monroe provided the spark that led to Abraham Lincoln earning the nickname the Great Emancipator. Slaves were traditionally returned to southern slave owners because the Union held that the south was still part of the Union until this moment changed everything. Back to John Elfner with the rest of the story. Union General Benjamin Butler and Confederate Officer John Baytop Cary met outside Fort Monroe.

According to a report, their conversation went something like this. I am informed that three slaves belonging to Colonel Mallory have escaped within your lines. What do you mean to do with those escaped slaves?

I intend to hold them. Do you mean then to set aside your constitutional obligation to return them? I mean to take Virginia at her word. I'm under no constitutional obligations to a foreign country which Virginia now claims to be. But you say we cannot secede and so you cannot consistently detain the escapee. But you say you have seceded so you cannot consistently claim them. I shall hold these escapees as contraband of war since they are engaged in the construction of your battery and are claimed as your property.

And with that, Cary was sent away without the escapees he'd come to collect. And how was Butler able to justify keeping the escapees? He was relying on something called the International Laws of War.

Dr. Kate Mazur explains. There's a tradition in what are called the International Laws of War. And one of the mainstream ideas was belligerence or enemies in war can confiscate the property of their enemies. Normally we would generally respect the property rights, but in wartime, especially property that's going to be used in the war effort, the enemy is allowed to confiscate that property. And what are the enslaved legally considered in Virginia? Property. Benjamin Butler at Fort Monroe was thinking about the laws of war and thinking, yeah, if these enslaved people who their owners say their property, well then I can confiscate them as contraband of war. Under international law, property was more typically describing things like guns, horses, and military supplies. But what Butler had recognized was that the Confederate military had categorized slaves as property and therefore the Southerners themselves had opened up the enslaved to confiscation or what Butler had called contraband.

It's not peacetime, it's wartime and the commanders have choices about what they're going to do in the situation. Butler, with his word contraband, had created a constitutional loophole that permitted him to hold the escapees. And upon dismissing Kerry, he may have assumed that that was the end of it, but this encounter fundamentally changed the role of slavery in the Civil War. The day after Butler refused to return the escapees, eight more escaped slaves approached the entrance of the fort. The following day, 47 escapees arrived at Fort Monroe. Within two weeks, over 500 escaped slaves had sought asylum there and word that the Union Army was receiving fugitives and no longer returning them, it began to spread. Four long Union soldiers stationed outside the fort were encountering escapees who were asking, where could they find the Freedom Fort? Butler, by giving asylum to Baker, Mallory, and Townsend, had moved slavery into the political conversation in a way that required it to be addressed by Congress and the President. And it wasn't just Fort Monroe where the escapees began to run.

Then everywhere they go, enslaved people start to escape and come to Union lines. So the story about Fort Monroe is one really critical, very early version of that story, but it's really happening everywhere. And members of Lincoln's inner circle in the White House recognize just how important Fort Monroe was. Lincoln's personal secretaries, John Hay and John Nicolay, wrote about the events at Fort Monroe in their biography of Lincoln.

Here's what they said. Out of this incident, there seems to have grown one of the most sudden and important revolutions in popular thought which took place during the whole war. Baker, Mallory, and Townsend, along with General Butler, in a sense created the power that Lincoln needed by characterizing the escapees as contraband of war. And the growing number of fugitive slaves swelling the Union forts forced Congress to act. Congress in spring of 1862 passes legislation that says from now on there's going to be no returning runaway slaves from our kingdom.

After that point, it was policy of the United States government not to return people. Lincoln supported this legislation, first signing the bill Congress sent to him prohibiting the return of slaves and setting the stage for his later emancipation proclamation. But how did a president who said this on his first day of office? I have no purpose directly or indirectly to interfere with the institution of slavery in the states where it currently exists. End up issuing an emancipation proclamation two years later that said this.

All persons held as slaves within any state or designated part of a state the people of shall then be in rebellion against the United States shall be then thenceforward and forever free. It's because upon his inauguration the Civil War had not really begun. Sure, seven states had claimed to secede, but Lincoln's inauguration preceded any violence towards the federal government by the states that had seceded. But when the Confederacy fired on Fort Sumter a month after Lincoln's inauguration, that action fundamentally changed the relationship between the rebels and the federal government. And though Lincoln proceeded cautiously with his public statements about slavery in the early days of the war, as the years passed he acted more and more aggressively to get rid of slavery and he used a version of Butler's argument, military necessity, to justify the Emancipation Proclamation.

What happens at Fort Monroe is it just puts down a marker that things are going to be different and that this is not simply a contest between white northerners and white southerners over whether the states in the Confederacy are going to stay in the Union. It proved to everyone that black people were not going to sit around and wait to be emancipated. So how much credit does Lincoln deserve for the abolition of slavery? There's no doubt Lincoln did a lot to end slavery and the Emancipation Proclamation was a key example of that. Pushing for the 13th Amendment, which constitutionally abolished slavery, was a great example of that. But on how slavery really ended during the Civil War, it's actually a lot more complicated than just the president suddenly deciding in his wisdom to wave his wand and issue an Emancipation Proclamation.

And so we need to take into consideration, if we want to really understand the history, what enslaved people themselves were doing, how they made themselves a factor in the war, what Congress was doing, and what the U.S. Armed Forces were doing, and how all of these different parties kind of came together to destroy slavery during the course of the Civil War. Lincoln is without a doubt a masterful politician, so when considering his nickname, the Great Emancipator, there's no denying that Lincoln solved the riddle of how the federal government could order that slaves be permanently free. And in so doing, nearly four million slaves were freed over the course of the Civil War. But it took lesser known people like Frank Baker, Shepard Mallory, and James Townsend, who had the courage to escape.

It took the cleverness of General Benjamin Butler to find a way to refuse their return. It took the hundreds and later thousands of enslaved who escaped to Union lines to pressure Congress to prohibit Union commanders from returning escapees. And it took the lives of over 300,000 Union soldiers to carry out Lincoln's orders.

Yeah, Lincoln did a lot, but he had a lot of help along the way. And a special thanks to John Elfner for the storytelling on that piece. And he's a history teacher in Illinois and there are so many great history teachers in this country.

They may not have PhDs and they may not be writing fancy books, but we just got to sit in John Elfner's classroom and what a privilege that is. Special thanks also to Kate Mazur, her book, Until Justice Be Done, America's First Civil Rights Movement from the Revolution to Reconstruction. Go to your local bookstore or the usual suspects and buy a copy. And my goodness, what a story about three courageous slaves and a courageous general who found a way to do what was right, to do what was in the end, the beginning of the end of slavery.

The Great Emancipators, how the Civil War openly became about slavery. That story here on Our American Stories. And we're back with Our American Stories and up next, another story from our Rule of Law series. We examine what happens when there is rule of law and also when there's not. And remember that half the people of this world don't have rule of law. There are no property rights. There isn't an independent judiciary and contract law and the enforcement of contracts.

Well, good luck with that. PJ Hill is senior fellow at the Property and Environment Research Center in Bozeman, Montana, and was a long serving professor at Wheaton College. Today, he's going to share a bit about his background in the American West and some of its misconceptions.

Here's Madison. Bar fights, shootouts, bank robberies, and outlaws. These are things we might envision when we think of the Wild West, not to mention the many films that portray exactly that. But what if the West wasn't as wild as we thought? Co-author of The Not So Wild Wild West, PJ Hill is here to share that maybe the West had a rule of law, not one we're used to, but rule of law nonetheless. My grandfather came up from Denver in 1892, horseback, worked on a ranch for a couple of years.

This is in southeastern Montana, part of the big open, hardly anybody around. And then started his own ranch, the ranch that actually became the PJ Ranch, and that was named after him, Peter Johnson. And then of course, when I was born, it seemed natural to call me PJ Hill. I had gone on to graduate work at the University of Chicago with the thought that I would probably go back to our cattle ranch and run it.

And that's what I did. I got married in 1970, took my wife back to our cattle ranch, and operated it for another 40 years. And then I really became fascinated by the history of the West and how do humans solve the coordination cooperation problem, because that was my background. Once he dove into this question, that's when PJ realized the misunderstanding behind the American West. The West was not nearly as wild and woolly as we oftentimes think. It was not a place of disorder. It was not a place of rampant bank robberies, all of those sorts of things. They did figure out ways to cooperate and property rights worked fairly well. Then, why do we so often refer to the West as a place of anarchy and chaos? Several things influenced that. Part of it was, was almost no presence of the federal government in any meaningful way throughout the 19th century.

It was pretty much whatever rules they could come up with. Power was there for everybody, so an equal power structure would be something that would cause people to say, maybe we should get along. So the West became, if you will, a grand experiment. But it was a place of rule of law, people figuring out ways of cooperation, overcoming difficulties. There really was a culture of individual worth.

And in fact, that's one of the reasons why you end up with gunfights or fistfights in bars was when people thought that they were being disrespected. So the West was a place of mutual respect and mutual rights. They came up with rules that worked fairly well to solve a whole set of interesting and complex problems.

When were the times when their self-enforced rule of law had to come into play? First, they needed a way to transport goods in the West and traveling across the plains alone was a dangerous thing to do. So they formed groups called wagon trains.

It would seem like this would be a real recipe for disaster. You've got well-armed people crossing a lot of space, thinking a lot about how they want to get someplace to get wealthy. And so these wagon trains usually were 40 to 50 wagons in size.

And the question is, how are you going to organize it? Well, interestingly enough, they thought about that beforehand. They wrote a constitution or a contract that was unique for each wagon train. And they specified all sorts of things. They specified who the participants were, how much each participant was contributing to the wagon train in terms of livestock, oxen were oftentimes pulling the wagons, the wagons themselves, how much food. They set out the rules for travel. They appointed one person as the wagon master, and that person had to be obeyed in terms of the rate of speed.

But they rotated that. Every day, you got to move up one notch on the wagon train. So sooner or later, you got to the front and you didn't have to have everybody else's dust.

At the end of that day, then you went to the back. They had rules for solving disputes that were all written down. There was actually a murder along one of the wagon trains. A person captured for the murder said, well, there really isn't any law out here. We think we should wait till we can get everybody back east to have a trial. The wagon train members said, oh, no, no, that's not the case.

We've got this written contract that specifies how we will go about it. They impaneled a jury. They heard the evidence, found the guy guilty, and they hung him. But the wagon trains were very well organized, bottom up people deciding to come together to settle sorts of disputes to make their way west. And I see wagon trains as one of the many examples that we talked about in our book, The Not So Wild Wild West, of people figuring out ways to cooperate, figuring out ways to come together. Another reason they were traveling in the west was to mine for gold. This is another situation where it could be disastrous without rule of law. Well, how much can you mine?

Can you just move up and down the stream at will and pan anywhere you want to? They decided, no, that's going to create lots of conflict, going to be lots of overlap. So let's set up some clear rules about mining claims. The person that found the gold first usually didn't get to claim three miles of stream. He got a claim that was larger, oftentimes twice what the other people could get who came. But even that person's claim was limited. So there were rules about what was necessary to establish the claim.

There were rules about how large the claim could be. Now, once again, violence is expensive. Violence is difficult. Something that approaches the rule of law that creates order is a better sort of a system. So the mining camps did a pretty good job of it.

Again, though, there's scarce resources in the process that you're not sure you want to use up. So hiring like a full-time enforcer, the enforcer kept saying, I think I'd rather be mining gold. So there were no sheriffs. What would simply happen was when somebody thought that there'd been a violation, there would be a cry or run to the camp. All of the miners would form a jury. The person that was being charged was allowed to present their case. The person that they claimed was being violated could present their case. And then they made a decision. Now, once again, maintaining jails is pretty expensive.

So they didn't do that either. What they did was they just simply banished the person. If you were found guilty, you're thrown out of the camp. So this is one of the themes throughout my book with Terry Anderson on the American West, is that violence is a pretty expensive way to order your life. And if you can figure out ways to avoid violence, they try to do that. So there was all of these sorts of rules that came about that were enforced would seem in a reasonable sort of a way. What about property rights? How did they establish rights to land in the West?

The Homestead Act of 1862 established rights to 160 acres. But that oftentimes, it was difficult to find water that went with that. So that made the Homestead Act unworkable because of lack of access to water. But then it also was unworkable just in terms of size. In the West, 160 acres would not suffice. So they expanded it to 640 acres in 1916, which still was entirely too small for a workable cattle ranch. To give you a sense of that, my family cattle ranch was 25,000 acres. That did not make us cattle kings. We were not some of the largest operators around.

But you can imagine if it took 25,000 acres to be a decent size, just an economic unit, then the Homestead Act, even when it got up to 640 acres, was just unworkable. So we imposed a top-down system where there had been a bottom-up system of rights that the ranchers had established, sheep producers had established, that was for workable sorts of ranches. We replaced that with this top-down sorts of rules. So we developed we developed pretty good institutions from the bottom up. But I would also say that what happened in the West is evidence of the problem of power and when power can violate what we think of as standard rules of law. And one of the basic features of rule of law would be what I would call universal human dignity.

People are all of equal worth. As we think about lessons from the American West, one would be be very careful about imposing too many top-down rules. Look at the community.

Think about what sorts of things do they want? How do they go about solving conflict? And I think many community-based sorts of solutions that then may evolve to become law can be very useful. Whenever we start agglomerating power, then there is the effort to try to capture it.

Power can be used well, but there's a real danger in it being used badly. Keep in mind that we do want to recognize universal human dignity or moral standing before the law. And a great job on that piece by Madison and a special thanks to P.J.

Hill. His book, The Not-So-Wild Wild West, Property Rights on the Frontier, is available to Amazon and the usual suspects. That Western culture, the culture of individual worth, the mutual respect and mutual rights of Western culture, I think are still there. The story of The Not-So-Wild Wild West, our rule of law series here on Our American Stories.
Whisper: medium.en / 2023-02-17 02:08:11 / 2023-02-17 02:22:16 / 14

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