Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
Amendment V:
Free Market Economics,
Property Acquisition, &
Settlement of America
"That religion, or the duty we owe our Creator, and the manner of discharging it, being
under the direction of reason and conviction only, not of violence or compulsion, all
men are equally entitled to the full and free exercise of it, according to the dictates of
conscience; and therefore that no man or class of men ought on account of religion
to be invested with peculiar emoluments or privileges, nor subjected to any penalties or
disabilities, unless under color of religion the preservation of equal liberty, and the
existence of the State be manifestly endangered." 1

Amendment V (cont’d):

Free Market Economics, Property Acquisition, & Settlement of America:

We’ve already established that the lawful geographical jurisdiction of a jural society is whatever territory it is able to cover with enforcement against bloodshed. Likewise, the lawful geographical jurisdiction of a narrowly-defined ecclesiastical society is whatever territories are covered by the contract disputes adjudicated by the narrowly-defined ecclesiastical courts. The powers that a secular social compact has over its geographical jurisdiction are limited by the subject matter over which it has jurisdiction. The same is true for a religious social compact, but a religious social compact’s subject matter jurisdiction is limited by the consent of the parties to the compact. Broad-based consent is extremely unlikely in a secular social compact, so the subject matter of the latter is extremely limited, specifically to bloodshed ex delicto and ex contractu. This means that a lawful secular social compact cannot claim traditional eminent domain. Such a compact rightly claims a jural subject matter jurisdiction over its entire geographical jurisdiction. But dominion is never lawful for a secular social compact, because dominion exceeds its subject matter. Because the natural rights polity cannot allow lawful title to arise out of the sovereign’s dominion, we’re led inevitably to wonder where lawful title comes from.

The Foundation of Secondary Property:

In the ancient English system, all title derived from the monarch, who had dominion over the realm. If the lawful secular social compact doesn’t have dominion, then how can it be the source of title, and if it’s not the source of title, then who, or what, is?

As we’ve indicated elsewhere, the type of economic system that is the automatic outgrowth of the global covenant is a free market – not capitalism and not communism. 2 All land that is acquired lawfully is acquired through free market processes. So we inevitably conclude that lawful title to land derives primarily from free market processes, which are by definition devoid of bloodshed. — Everything that has economic value derives from the combination of land (to be understood generally, like the word, "terra", earth, which includes oceans and atmosphere as well as soil and minerals) and labor (meaning any expenditure of human mental and/or physical energy). In the hermeneutical prologue, we determined that one’s ownership of one’s body defines one’s primary property. Ownership of anything beyond one’s body is ownership of secondary property. Primary property does not have economic value, because living human beings are not bought and sold, except when they are victims of bloodshed. Even so, one’s labor has economic value because such labor can be bought and sold. In fact, all lawful economic value derives from the combination of labor and land. People own their labor by unalienable Right. Ownership of secondary property is also an unalienable Right, as an abstract principle, a universal capacity. 3 For this unalienable Right to own secondary property to be instantiated – to be actuated rather than to exist purely as a potential – is essentially the acquisition of a privilege. It is a privilege given by God. It’s essential for every such privilege, such ownership of secondary property, to be recognized and accepted by the society at large, for the sake of minimizing property disputes. So lawful acquisition of secondary property – including land (real property) – happens through free market processes. So under the original jurisdiction of a lawful secular social compact, such compact has no authority to allocate title to secondary property, including to land. At best, it can offer narrowly-defined ecclesiastical courts to adjudicate disputes regarding the conveyancing and acquisition of such secondary property.

Because land is the most fundamental of all secondary properties – because all products that are crucial to physical survival (food, clothing, shelter, etc.) derive ultimately from land – it’s far more important for us to understand how title to land is established than it is for us to understand how title to some other kind of secondary property is established.

According to common sense, every facet of the earth that is possessed by human beings falls somewhere on a continuum between land that has been claimed unlawfully and land that has been (i)claimed lawfully, (ii)possessed lawfully, and (iii)entitled lawfully. We can use the gradations on this continuum to show how lawful possession, lawful ownership, and lawful title develop in a free market, and how such things differ from unlawful possession, ownership, and title. We’ll now go through a short exercise to establish these concepts on rudimentary foundations.

In order to get to the core of the concept of ownership of secondary property, and thereby deliver ourselves from the feudal misconception, it’s essential for us to think in extremely rudimentary terms. Towards that end, suppose your friend invites you over to his house. You arrive at his house, and you’re standing in his living room. Who owns the two shoe-sized areas of carpet that you’re standing on, you or your friend? — The obvious answer is that your friend owns the house, so your friend owns those two shoe-shaped areas of carpet. If your friend has absolute ownership of those two areas of carpet, then we might conclude that you have no rights to be standing on those two areas of carpet. That would be an absurd conclusion, since your friend invited you to his house. Every human being has an interest in the territory that he/she is standing on, sitting on, lying on, etc. Even if someone else owns that property, we have an interest in it. The interest may be extremely temporary and extremely minute, but we nevertheless have an interest that deserves to be recognized. The interest entails that your friend will not suddenly pull the carpet out from under you under the pretense that he’s replacing it, because he will recognize that you have a safety-related interest in the stability of the property that you stand on.

Now suppose you come into possession of a key to your friend’s house. Your friend is unaware that you have the key. When your friend goes out of town, you go over to his house and use the key to get in. You stand around his living room proving to yourself that you can violate his absolute title with impunity. Then you go home, locking the door without doing any damage. — While you were standing around your friend’s house this time, you still had an interest in every portion of the floor that you stood on. But your interest this time is different, because this time, you were not invited. — Because all human beings have corporeal bodies that are weighed down on the earth, every human being has an interest in the point-of-contact at which the body is grounded. This point-of-contact is part of being alive on planet earth. This interest is deservedly understood by any rational legal system to be a partial ownership of that point-of-contact by whoever is making the point-of-contact. So if you’re walking through a primordial forest, which is owned by no one, it’s valid for you to claim at least temporary title to each point-of-contact where your body meets the earth. This includes the air that you breathe, the water you drink, the ground that you walk on, and the trees that you touch. When you inhale, the air becomes yours. When you exhale, it ceases to be yours. When you touch the ground or a tree, the point-of-contact is yours. When you lift your foot, or your hand, the point-of-contact ceases to be yours. So you have a temporary interest, which we can think of as a temporary ownership, temporary possession, and temporary title. Common sense, respect for the fact that every human being is created in the image of God, and the obligation to abide by the bloodshed mandate, combine to demand that we recognize and honor this primordial interest.

In both the case in which you were invited to your friend’s house, and the case in which you went without his invitation, you had this primordial interest in his carpet as you stood on it. So we have three different cases in which you have a primordial interest (a primordial temporary ownership / possession of your point-of contact): (i)in the unclaimed forest; (ii)in your friend’s living room at his invitation; and (iii)in your friend’s living room without his invitation. Even though primordial possession exists in each case, your overall interest is different in each case because of the differences in pre-existing title. (i)Because this forest is not claimed by anyone, your interest in your points-of-contact in the forest are defined purely in terms of your unalienable Right to live and breathe and have your being at those points-of-contact. Your interest is strictly primordial. (ii)When you were invited over to your friend’s house, as you were standing in his living room, you still had this primordial interest in your points-of-contact with his living room. But added to this interest was the implicit acknowledgement that your friend owned the house, and that you would respect his ownership by behaving in certain ways. You wouldn’t start a campfire on his living room floor, as though it were the floor of a primordial forest. You wouldn’t urinate in a corner as though it were a tree in the forest. You wouldn’t pick up items in his living room and put them into your pockets as though they were doodads you picked up off the forest floor. In short, your interest in this case is the combination of your primordial interest with the implicit acknowledgment of your friend’s title; implicit acknowledgment of his interest and ownership of his real property; and implicit acknowledgment of the fact that your primordial interest in his living room exists only because he allowed it by inviting you to his house, and because you consented to the invitation. (iii)When you went over to your friend’s house without his invitation, you still had your primordial interest in your points-of-contact as you stood in his living room. But your overall interest in his property, this time, was a combination of your primordial interest with an implicit repudiation of your friend’s title; an explicit violation of your friend’s interest in and ownership of his real property; and an implicit act of theft against your friend. You were imposing an interest on your friend’s property without your friend’s consent. You were thereby stealing an interest in his property. Your overall interest in this case is a combination of your primordial interest with the interest that you were stealing from your friend.

Now that we’ve established these rudimentary ideas about secondary property, we can use them as a foundation for discovering how free market processes are a more reliable source of title than an enfeoffment or patent from the sovereign. 4 Towards that end, we’ll look at how well Euro-Americans obeyed this property-interest model of secondary property in the process of settling the contiguous United States.

How Well America Has Honored Secondary Property Rights:

When land marked by the geographical jurisdiction of the contiguous united States was settled by non-Indians, during the 17th, 18th, and 19th centuries, there were vast areas of land that were much like the primordial forest mentioned above. It was land that wasn’t claimed by anyone. But there were also lands that were definitely claimed by native, American Indian people. But none of the land was feudal. Europeans brought their feudal preconceptions about land ownership to the Western Hemisphere, and often imposed these preconceptions without regard to the preexisting claims. They tended to ignore the land claims of indigenous people as though they were nothing more than territorial claims of wild animals. Therefore, much of the European settlement of the united States was founded on bloodshed. But on the other hand, some of it wasn’t.

At the beginning of these three centuries of European settlement, the supply of land was so great that American Indians did not typically feel compelled to claim it as secondary property. According to free market principles, when the supply of something is so huge that demand is easily satisfied, it makes little sense for people to claim this thing, whatever it may be. For example, for all of human history, humans have demanded air to breathe, but the supply has been so great, and the demand has been so easily satisfied (by breathing), that no sane person has claimed the atmosphere as secondary property. 5 Each of us has a primordial ownership of the air that we suck into our lungs, but we lose that primordial interest as we exhale. Extreme abundance of something for which there is a more-or-less constant demand causes that thing to have little or no economic value. Therefore, people don’t claim to own it. So when Europeans came to the geographical area that we now know as the contiguous United States, they sometimes found land that was primordial and unclaimed. When such Europeans laid claim to such land, and established possession by an undeniable presence on it, they thereby made major steps towards lawful title to it.

Since the indigenous tribes and nations were mostly hunter-gather cultures, they tended to use large amounts of land for sustenance. They used the land in much the same way that modern commercial fishermen have been using the ocean. Fishermen tend to go wherever they can find fish. Likewise, many indigenous tribes tended to move to wherever they could best find game. But their territories were typically limited by the presence of other tribes. The indigenous tribes tended to range over a certain area, and whenever one tribe encroached upon the hunting/gathering territory of another, there was a propensity to warfare. Likewise, whenever a certain group of fishermen are accustomed to fishing in a certain area, and another group moves into the same area, there has been a historical tendency towards disputes over fishing rights. Even though the fishing grounds may be in international waters – an international commons – those there first tend to resent the encroachment of newcomers whenever the supply of fish dwindles. The same basic situation existed in the Euro-American settlement process. Whenever supplies of game dwindled as a result of European encroachment, the indigenous tribes felt compelled to either go find primordial land elsewhere, or defend their native hunting rights. This situation existed between tribes before Europeans came here. But when Europeans came, the depletion of game tended to be so radical that indigenous tribes were far more threatened than they were by other tribes.

Before the Euro-American settlement, there was an indigenous interest in land that was similar to the interest that commercial fishermen have in fishing grounds. But in the same way that commercial fishermen generally lack absolute title to their fishing grounds, native tribes lacked absolute title to their hunting grounds. But in the same way that every human being has points-of-contact with the earth so that the human has a primordial interest in those points-of-contact, every tribe, as a social compact, had primordial interest in the land upon which the tribe was actually settled. Something akin to absolute title should have been attributed to land where indigenous people built shelters, slept, ate, lived from day-to-day, etc. That’s because the tribe’s interest in such land was crucial to life, as surely as a fisherman’s interest in his boat is crucial to his life while he’s out fishing.

There is a set of natural, concentric rings of interest that every social compact has. In the same way that every human being has a primordial interest in his/her points-of-contact with the earth, every social compact has a primordial interest in the land necessary (i)to survive as a social compact and (ii)to survive as the specific social compact defined by the terms of the compact. The survival of the social compact requires land necessary to procure sustenance (air, water, food, shelter, etc.) as well as those things generally understood to be the province of police powers (health, safety, welfare, education of children, morality, the traditions of the social compact’s religious beliefs, etc.). In a mature, God-centered social compact, all things will be understood to derive from, and to be submitted to, God, so that all functions of the social compact are theocentric. But it’s possible for a social compact to become prematurely ripe (to presume itself to be maturer than it is). For example, for any Christian social compact to claim that it can establish a theocentric society, a theocracy, without sufficiently defining and abiding by global laws against bloodshed, is for such social compact to be prematurely and presumptuously ripe. Such ripeness is the social compact’s zenith, which will mark the start of the social compact’s decline. Those things (terms) that are stripped away from the social compact during its decline are less essential to its survival. If the social compact survives its decline, at its nadir, those things that remain are the things that are most essential to its survival. The things that are providentially stripped away pertain to terms of the social compact that are not essential to its survival. The more essential terms are to a social compact’s survival, the more those terms define genuine property-interests of that social compact.

Example: In some respects, some indigenous tribes were more God-centered than many waves of feudal European immigrants. These indigenous social compacts existed in concentric gradations of land ownership. They had an interest akin to absolute title on land where their communities were actually settled. In the land around the community, where gathering of fruits, vegetables, water, etc., occurred, they had less of an interest, but nevertheless a certain interest. On lands still further away, where hunting was done, they had an interest that was even weaker. But all of these lands were considered in some respects sacred, as benevolent gifts from the Creator to this particular social compact. Because of the theocentric nature of this hunting and gathering, at the zenith of such social compacts, such surrounding lands were understood to be crucial to the survival of the social compact. But this understanding resulted from premature ripeness. At the nadir of such social compacts, other things were understood to be more crucial to the social compact’s survival. — When beliefs that violate eternal law become part of the terms of a social compact, God, through divine providence, sends correctives. In the case of "Christian" theocracies, failure to properly construe the bloodshed mandate led to abusive laws that led to the demise of such attempted theocracies. In the case of God-centered native tribes, erroneous beliefs about the importance of hunting-&-gathering to the God-centeredness of their social compact spelled the nadir or destruction of such social compacts. It’s God’s merciful way of correcting people, i.e., all humans because we all tend to be deaf, dumb, and blind to His eternal law. Valid title to land, in this sense that derives from eternal law, derives from conformity to His eternal law. But since we are deaf, dumb, and blind to much of His eternal law, we have no palatable choice but to do the best we can to conform ourselves and our social compacts to the best of what we know of natural law and divine law.

Because of technological superiority, the Euro-Americans tended to squeeze more sustenance out of smaller tracts of land than native cultures did. In other words, they needed less land per capita. Euro-American land usage therefore conformed more closely to eternal law with respect to production and technology, than did native cultures. But Euro-Americans also had customs and laws that made them prone to violating the unalienable Rights of non-Euro-Americans. For example, they tended to believe that Indians were "savages", and they tended to believe that Indian land claims were negligible. 6 On top of the tendency to treat native land claims as negligible, Euro-Americans also still had feudal ideas about land ownership. This meant that Euro-American government was the source of all lawful title, in the minds of most Euro-Americans. So the tendency was for Euro-Americans to steal native land, then record title with the government, which generally meant that the secular governments of the united States were acting as accessories to such theft, which meant that the secular governments were often accessories to bloodshed regarding native land claims. 7 So even though Euro-American culture may have been closer to eternal law with respect to technology, it was often further away from it with respect to bloodshed.

If we think of what we’ve considered thus far as being on the land-procurement continuum that we mentioned above, we can see (i)the possession and claim of previously unclaimed, primordial land, by Euro-Americans, as being lawful and in accordance with free market principles; (ii)the possession and claim of land by Euro-Americans that was previously claimed by natives as being lawful when the natives consented to the Euro-American claim and possession; (iii)the possession and claim of land by Euro-Americans that was previously possessed by natives as being unlawful when the natives did not consent to the property transfer. — Here are two examples of the lawful transfer of land from American Indians to Euro-Americans: (i)After the Pilgrims landed in what’s now Massachusetts, they made a treaty with the Wampanoag Indians in which the Wampanoags consented to allow the Euro-Americans to take possession of land. The treaty lasted for about forty years, which was a long, stable period of peace between the two camps. 8 The treaty was broken only when Euro-American westward expansion started having serious negative impact on traditional Wampanoag game procurement. 9 (ii)In the 17th century, the Dutch purchased what’s now called Manhattan Island from Native Americans. This purchase took place according to free market principles, and is therefore lawful. 10 Some people claim that the Indians were paid in worthless trinkets, and that therefore the purchase can’t possibly be lawful. If the equitable doctrine of unjust enrichment were valid, then this belief in the unlawfulness of this transaction would surely be true. But if the doctrine of unjust enrichment were valid, practically every free market transaction in history that resulted in one party benefiting more than the other, would be suspect on grounds of inequity. At the time, whatever the Indians received was probably a novelty to them. They may have valued the $24 in doodads as much as Euro-Americans have traditionally valued jewels. Besides that, they had plenty of land, whereas the Euro-Americans had little of the latter because European land was still largely trapped in feudal tenures.

If we think of the land-procurement continuum as stretching from totally unlawful possession at one extreme, to (a)lawful claim, (b)lawful possession, and (c)lawful title at the other extreme, we can summarize what we’ve said thus far by seeing these as points on the continuum:

(i)At the totally-unlawful extreme, it’s a historical fact that some Euro-Americans were guilty of murder as they massacred native people in their settlements for the sake of procuring uncontested title to land. The massacre of Black Kettle’s Southern Cheyenne settlement is a perfect example. These murderers were never arrested, tried, or convicted for their bloodshed. In fact, the general government that in essence claimed geographical jurisdiction never lifted a finger to prosecute these murderers. The general government thereby showed itself to be hugely unlawful by refusing to even attempt to fulfill its most fundamental calling, retribution against bloodshed. It displayed a gross misunderstanding of its subject matter jurisdiction over that land. This was the most evil of unlawful land procurement methods because it operated through mass murder, the worst of gross delicts – extreme bloodshed against primary property.



(ii)When southern tribes were rounded up like cattle and driven from their homes onto the "trail of tears", at the order of President Andrew Jackson, this was a case of mass theft (among other things). Huge tracts of land were stolen to resolve land disputes between native nations and southern States. The disputes started with the "doctrine of discovery", the Euro-American claim that native land claims were negligible. 11 Then it escalated into the Indian Removal Act of 1830, and culminated in the "trail of tears". 12 It was a gross delict on a massive scale, massive bloodshed against both primary and secondary property.

(iii)When most of about 900 treaties were broken by the governments of the united States, for the sake of divesting Indians of their clear and obvious natural claims and possession of land, massive fraud was perpetrated by Euro-Americans against these native nations. This is yet one more breed of unlawful land procurement that victimized Indians and allowed Euro-American perpetrators of bloodshed to go unpunished. It is yet more evidence that the united States is an unlawful nation, deserving of sackcloth and ashes.

(iv)As mentioned, when Europeans arrived, much of the land was primordial, unclaimed, sparsely used, and sparsely possessed. When Euro-Americans claimed and possessed such land, there’s little or no reason to believe that such claims and possession were unlawful. In some cases – perhaps many – Indians may have later discovered that what they believed was an inter-tribal commons, was being squatted on by non-Indians. This may have disturbed these Indians, especially when Euro-American settlements became so dense that game became scarce. But this kind of situation is more a clash of technologies and worldviews than of property rights. The problem with this type of Euro-American land procurement revolves around the establishment of lawful title, not around establishment of lawful claim and possession. We’ll address this issue shortly.

(v)In some cases, Indians simply gave lands to Euro-American settlers as gifts. This was the situation between the Pilgrims and the Wampanoags. 13 This land procurement by Euro-Americans certainly resulted in lawful claims and lawful possession of land, at least until the Euro-Americans took more land than they were given. But while they confined their claims and possession to lands given, their claims and possession were lawful, even if their land titles were dubious.

(vi)In cases in which Euro-Americans purchased land from American Indians, like when the Dutch purchased Manhattan Island, if the transaction was consummated without bloodshed, then there’s no reason to believe that the resulting claim and possession were unlawful. But again, lawful title is a different issue.

(vii)There were obviously many cases in which Euro-Americans procured lawful claim and possession of land. But there has never been a single case in which anyone – American Indian, Euro-American, African-American, Asian-American, or any other kind of American – has combined (a)lawful claim, (b)lawful possession, and (c)lawful title backed by a (d)lawful government. That’s because, if a government lacks a clear understanding of how its subject matter jurisdiction relates to its geographical jurisdiction, it will be prone to being unlawful in its use of police powers to enforce whatever title it may recognize. We’ll look at three cases of expansion of the geographical jurisdiction of the united States to see how this works (or doesn’t work): (a)the Louisiana Purchase; (b)the Texas Revolution; and (c)the Mexican-American War.

(a) Louisiana Purchase:

When the united States purchased the Louisiana Territory from France in 1803, 14 what did they purchase? — The Louisiana Purchase was little more than a treaty whereby France surrendered its claims to the Louisiana Territory, and recognized that the united States then had legitimate claims to it. Since the Louisiana Territory contained numerous American Indians who did not consent to any claims to sovereign ownership by France or the united States, neither France nor the united States had sovereign ownership of that territory. Instead, the ownership of land in the case of each nation was limited by two things: (1)the in personam, subject matter, and geographical jurisdictions of the social compacts that claimed the land, and (2)the ability or inability of the social compact’s jural and narrowly-defined ecclesiastical societies to enforce their positive law. Since the seller in this transaction was the government of France led by Napoleon, France’s new emperor, and since this seller made no apparent claims to recognizing the unalienable Rights of all human beings, we’ll ignore France’s jurisdiction, and focus on the jurisdiction of the united States. Since the united States, in their organic documents, claim to function with a recognition that all human beings have unalienable Rights, it’s reasonable for us to believe that the united States are at least attempting implicitly to abide by the global covenant. So if the united States claims that it has a sovereign ownership over the Louisiana Territory, does it have the sovereign right to make such a claim? In other words, does the claim to ownership by the united States supersede all other claims within the territory? In other words, is the "doctrine of discovery" lawful? 15 — No! Because the claim to a sovereign right to eminent domain is hugely inconsistent with the claim to recognition of unalienable Rights. Likewise, a claim that European "discovery" trumps Indian possession has no basis in the global covenant. A secular government’s claim to have a geographical jurisdiction over a certain land-mass has two legitimate meanings: (1)That government intends to exercise its jural authority over that territory, inhibiting bloodshed ex delicto wherever it may occur. (2)That government intends to offer it’s narrowly-defined ecclesiastical rules and courts to anyone within that land-mass who may wish to partake of them, for the sake of adjudicating bloodshed ex contractu. The legitimate geographical, in personam, and subject matter jurisdictions are limited to these two things. By purchasing the Louisiana Territory, the united States was legitimate and lawful in making these two claims. In doing so, it was also required to recognize the pre-existing social compacts – including those in French New Orleans and numerous Indian tribes – and to acknowledge, honor, and respect the jurisdictions of those social compacts. These two lawful things absolutely do not entail any sovereign’s feudal dominion over the land, or any claim to the "doctrine of discovery". 16

If the united States were understood to be a secular social compact, then it would have been understood that the united States were purchasing a secular social compact’s claim to a geographical jurisdiction over that territory. In other words, the secular government’s interest in that territory would have been strictly limited by the subject matter jurisdiction of the secular social compact. But of course that’s not how the purchase was understood. It was understood to be the purchase of something akin to a feudal dominion over that territory. The purchase made all the denizens of the territory the implicit tenants on the sovereign’s land. From the date of the purchase forward, all the Indians, French, and other non-citizens of the united States were allowed to exist in that territory only to the extent that the D.C. sovereign chose to tolerate them there. Since the French came from a feudal background similar to the English-speaking people, the D.C. sovereign might tolerate them there. But since the Indians – in the eyes of the D.C. sovereign – were "fierce nomadic savages" (to use the words of John Marshall in Johnson v. McIntosh), they might be disposed of with less sympathy. The attitude towards Indians, at this beginning of the manifest destiny agenda, was largely formed – throughout the de facto Protestant establishment – by modeling manifest destiny after the Israelite insurgency into the Biblical "promised land". If Euro-Americans had had the same mandate from God to take all the land from the Atlantic to the Pacific, that Moses and Joshua had to take Canaan, then perhaps manifest destiny’s attitude towards Indians would have been justified. But in fact, the Euro-Americans had no such mandate. To take that land through free market processes is one thing. To take it through massive bloodshed is entirely different. Perhaps if the native nations were as guilty of institutionalized bloodshed (like human sacrifice) as the Canaanite natives were, the Euro-Americans would have been justified in treating the Indians like death-deserving animals. But out of the several hundred tribes that were indigenous to what’s now the contiguous United States, cultural bloodguilt varied from little or none among some tribes to perhaps a lot among others. The Israelite insurgency into Canaan is therefore a poor model for manifest destiny. Instead, under a Biblically sound view of government, the Louisiana Purchase obligated the united States to protect the unalienable Rights of native people against bloodshed in the same way that the united States were already obligated to protect the unalienable Rights of united States citizens. Being denizens of the territory put the denizens under the in personam jurisdiction of the united States as surely as citizens were under the in personam jurisdiction (at least if we understand the united States to be a lawful secular social compact).

(b) Texas Revolution:

The Texas Revolution laid the foundations for another huge land procuration by the general government. But the revolution itself was very different from both the Louisiana Purchase and the Mexican-American War. It had more in common with the secession of the thirteen colonies from Great Britain than it did with either the Purchase or the War. But there were some significant differences between the secessions from Great Britain and the secession from Mexico. British citizens on land over which the British king presumed to claim dominion settled the thirteen colonies. In early Texas history, the Spanish monarch claimed dominion over the land that later became Texas. In 1822, Mexico gained independence from Spain, and the new Mexican dictator (Santa Ana) continued claiming dominion over what’s now the western united States, including Texas. But to most knowledgeable citizens of the united States, the Spanish and Mexican claims to all that land were both claims that lacked possession and title. — If Jack claims all the land on the dark side of the moon, his claim is not backed by possession, and his title is delusional. — That’s the way the knowledgeable American viewed the claims of Santa Ana. They were the claims of a megalomaniac. Into this situation American citizens moved. They moved to Texas, became Mexican citizens, and tried to live by Mexican laws. The laws of the Mexican tyrant became more odious than they could bear. So the Anglo-American-Mexican-Texans and many Hispanic-Mexican-Texans seceded from Mexico. Texas became a republic for about ten years, with a disputed border with Mexico. Santa Ana claimed his northern border was the Nueces River, and Texas claimed its southern border was the Rio Grande. — During this ten-year period, the Euro-Texans had essentially the same mixed (often bad) relations with Indians that the Euro-Americans had. The Euro-Texans tended to be the same perpetrators of bloodshed. — When the Texas Republic was annexed into the united States as a new State, the united States inherited the border dispute with Mexico. The Texas Republic claimed feudal dominion over its land, the same way the State of Texas, all the rest of the States, and the general government do to this day. 17

(c) Mexican-American War:

Shortly after Texas became a State, Mexico sent insurgents into the disputed territory and the Mexican-American War started. If the Texas Republic were a lawful social compact, and if the united States were lawful social compacts, then when Texas requested to join the united States, and when the united States consented, a border dispute with Mexico would have been a worthy thing to fight over – a "just war". But Texas, like the rest of the States, was a pseudo-religious social compact, while the general government was a quasi-secular social compact. So the resulting war was also a mixed bag. — Every social compact, regardless of whether it’s secular or religious, needs to have a clearly defined geographical jurisdiction, and clearly defined borders. Citizens of both kinds of compacts have obligations to abide by the terms of the compacts. Clearly defined borders are essential so that people who don’t have the same obligations and commitments can be screened. If they’re not screened, then they’re likely to become serious problems, like insurgents, law breakers. 18 So both Texas and the united States had lawful reasons for defending their territorial integrity. But on the other hand, both had warped, feudal conceptions of their geographical jurisdictions. So it was hazardous for either of them to claim more territory than they already had. But the united States took the border dispute as an opportunity to claim all the land west of the Mississippi. They claimed dominion over that land, not merely a jural society’s subject matter jurisdiction. From a moral perspective, it was probably better for that land to be under the dominion of the D.C. sovereign than it was for it to be under the dominion of a Mexican tyrant. But it was nevertheless an act of feudal greed that drove the united States to invade Mexico and force Santa Ana to relinquish the territory. — As far as the rights of Indians are concerned, it might have been better for the united States to leave the western lands claimed by Mexico. The Anglo-American westward expansion would have taken place anyway, at a grass-roots level, without the overarching dominion of the "federal" government. It’s hard to say whether such grass-roots settlers would have been more generous to Indians. Probably not!

In most of the Euro-American settlement process, settlers usually preceded the government in acquiring land, and the government intruded afterwards. This process by itself tended to be devastating bloodshed to Indians. After the Indian wars of the 19th century, the general government eventually took its role of protector of all people a little more seriously, and became a defender of Indians against grass-roots bigotry to some extent. But even to this day, the secular governments of the united States have ambiguous relationships with Native Americans, sometimes protector, and sometimes perpetrator. 19 — If the united States government had not forced Mexico to relinquish its claim on what’s now the western United States, the almost inevitable grass-roots, Euro-American westward expansion would probably have created the same results as the Anglo-American settlement of Mexico’s Texas. The Anglos would have eventually seceded and joined the united States, and abused native property rights in the process.


In each of these three cases – the procurement and settlement of (i)the Louisiana Territory, (ii)Texas, and (iii)the western United States – the States and the general government lacked a clear understanding of how their subject matter jurisdictions and their geographical jurisdictions related. That’s because they lacked clear understanding of distinctions between jural societies and narrowly-defined ecclesiastical societies, and between secular social compacts and religious social compacts. Their use of police powers to protect land titles tended to be unlawful because they often ignored the lawful possession and claims of Indians, Mexican-Americans, and others, in favor of mere titular claims of Euro-American insurgents. In essence, every such violation of preexisting lawful possession and claim was a taking without just compensation. It was often a gross delict perpetrated under color of law, but at bare minimum, it was a taking without just compensation. But we have few other options but to believe that in keeping with Deuteronomy 29:29 and Romans 8:28, the fact that Euro-Americans massively violated this property-interest model of secondary property is in many respects providential.

There is one more issue that we should address. Since the hermeneutical prologue concluded that the Bible prescribes that human law be based upon recognition of natural rights and social compacts, where such social compacts contain two subtending compacts, the jural compact and the narrowly-defined ecclesiastical compact, it’s clear and obvious that the Bible prescribes its own very specific type of social contract theory of government. The biblical prescription of human law has in common with other social contract theories the principles that governments are based on the consent of those party to the overarching contract / compact. This fact puts the biblical prescription of human law into competition with other social contract theories over what it means to consent, more specifically, over how contracts, including social compacts, should be enforced. There is obviously an intimate relationship between the degree of lawfulness of a social compact and the degree of lawfulness of a taking. 20


1Madison suggested modifying Mason’s initial draft of the Virginia Declaration of Rights at the Virginia Constitutional Convention in 1776. — "Madison wished to shift Mason’s language of ‘toleration’ to the language of rights. See S. Cobb, The Rise of Religious Liberty in America 492 (1902) (reprint 1970) (noting that Madison objected to the word ‘toleration’ as belonging to ‘a system where was an established Church, and where a certain liberty of worship was granted, not of right, but of grace’)." Quote is from Boerne v. Flores, Part II-C of Justice O’Connor’s dissent. She cites G. Hunt, "James Madison and Religious Liberty", 1 Annual Report of the American Historical Association 163, 166-167 (1901). — See "George Mason’s Master Draft of the Bill of Rights" at the Constitution Society, URL:​gmason/​amd_gmas.htm.

2┬áBut it’s probably reasonable to claim that a free market and free-market capitalism are the same thing. The problem is that capitalism can be distorted in numerous ways, and such distortions are not free markets. "Crony capitalism", "monopoly capitalism", "state capitalism", etc., are absolutely not free-market capitalism.

3One’s ownership of one’s labor is an unalienable Right, but the ability to do productive labor is a privilege that’s given by God. For example, infants are born with the unalienable ownership of their labor, but they are born with a lack of capacity to perform economically valuable labor. Such capacity is acquired by the grace of God, and through the efforts of the growing minor. — The same situation applies to the ownership of land. All humans are born with the unalienable Right to own land, because we are created in God’s image. But we are born with a lack of capacity to own land. The capacity, actual ownership of land, is acquired as a privilege given by God (by God’s grace, our subsequent human faith, and the labor that results from such faith).

4As indicated in "A Memorandum of Law and Fact about Contracts" (URL: ../../../../​Memos/​MemoOnContracts/​html/), this property-interest model of secondary property extends into being also a property-interest model of contracts.

5(at least not with respect to breathing)

6Johnson v. McIntosh (1823) is a case in point. There, Justice Marshall declared that all Indians were "fierce nomadic savages". Based on this slur, Marshall posited the "doctrine of discovery", which declared that whenever agents of a European nation discovered land, the land automatically became the property of such nation, and the claims of natives became negligible. See "1st Amendment (Legislative Response to Smith: AIRFAA)" / Johnson v McIntosh, URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#JohnsonVMcIntosh.

7Actually they were more than mere accessories, via the "doctrine of discovery". See "1st Amendment (Legislative Response to Smith: AIRFAA)" / Johnson v McIntosh, URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#JohnsonVMcIntosh.

8The Light and the Glory; p. 132.

9The Light and the Glory; pp. 223-234.

10"The Dutch made their famed purchase of Manhattan Island for 24 dollars in 1626, though they actually paid more than that in order to settle the claims of another Indian tribe to it." — Carson's Basic History of the United States, Vol. 1, p. 76.

11See "1st Amendment (Legislative Response to Smith: AIRFAA)" / Johnson v McIntosh, URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#JohnsonVMcIntosh and Johnson v. McIntosh (1823).

12Regarding the Indian Removal Act, see URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#IndianRemovalAct.

13The Light and the Glory; p. 132.

14The united States doubled its geographical size in 1803 by purchasing the Louisiana Territory for $15 million. — The National Experience, p. 172.

15Regarding the "doctrine of discovery", see URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#JohnsonVMcIntosh.

16This discussion ignores the question of whether the Louisiana Purchase was legitimate in terms of whether spending the $15 million was a lawful use of tax funds by a secular social compact. We think that the purchase was providential, like every instance in history in which government did something unlawful that did not result in rejection of the government by the governed.

17If this is not the case, then where do any of these entities get off claiming eminent domain?

18A social compact’s need to defend its territory is the same as a social compact’s need to enforce its positive law, except that the former exists on a more macroscopic level. Defense of the society itself is crucial to the continued existence of any particular social compact. If a social compact claims territory, but cannot defend such territory, then it is inherently at the mercy of an external society. American Indians were in this situation during the Euro-American westward expansion. Modern America appears to be in this situation with regard to illegal immigration through Mexico.

19See "Legal Status of American Indians", URL: ./0_8_4_2_Am_I_(Leg_Response--AIRFAA).htm​#StatusOfAmerInds.

20For more on the relationship of takings to consent, contract enforcement, and the whole idea of government being a social contract, see "A Memorandum of Law and Fact about Contracts", URL: ../../../../​Memos/​MemoOnContracts/​html/.