The Not So Wild Wild West

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And use my code getdrop999 to get five dollars. 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 Jensen. 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 there 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 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 member 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 the 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 are scarce resources in the process that you're not sure you want to use up. So hiring like a full time enforcer, well, 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 that 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-sized, 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, the sheep producers had established, that was for workable sorts of ranches. We replaced that with this top-down sorts of rules. So 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. Bachelor in Paradise premieres Thursday 9, 8 central on ABC and stream on Hulu.