“The NOT So Wild, Wild West”

On this episode of Our American Stories, As part of our rule of law series, 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. Find his book here (https://www.amazon.com/Not-So-Wild-West-Economics/dp/0804748543)

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Episode Transcript

Speaker 1 (00:10):
And we're back with our American stories. And up next
another story from our Rule of Law series, where 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.

(00:32):
Hill is senior Fellow at the Property and Environment Research
Center in Bozeman, Montana, and it 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,

(00:53):
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,

(01:18):
my grandfather came up from Denver in eighteen ninety two
horseback worked on a ranch for a couple of years.
This is in southeastern Montana, part of the big open
heart to 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, obviously natural to call me PJ. Hill.

(01:43):
I had gone on to graduate work at the University
of Chicago with the thought that I would probably go
back to our cattle rush and run it. And that's
what I did. I got married in nineteen seventy, took
my wife back to our cattle ranch and operated it
for another forty years. And then I already became fascinated
by the history of the West and how to humans

(02:05):
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 wooly as we oftentimes think. It
was not a place of disorder, it was not a

(02:26):
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 almost no
presence of the federal government in any meaningful way throughout

(02:50):
the nineteenth 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, well, maybe we should get a law.
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

(03:15):
a culture of individual worth, and in fact, that's one
of the reasons why you end up with gunfights or
fistfights and bars was when people thought that they were
being disrespected. So the West was a place of mutual
respect and neutral rights. They came up with rules that
worked very well to solve a whole set of interesting

(03:39):
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 planes 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.

(04:01):
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
forty to fifty 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

(04:25):
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 off knives
pulling the wagons, the wagons themselves, how much food. They
set out the rules for travel. They appointed one person

(04:47):
as the wagon master, and that person had to be
obeyed in terms of the rate of speed. But they
rottated 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

(05:08):
murderer 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
trade member said, no, no, no, it's not the case.
We've got this written contract that specifies how we will
go about it. Then paneled a jury. They heard the evidence,
found the guy guilty, and they hung him. But the

(05:30):
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 talk about in our
book The Not So While Low in West of people
figuring out ways to cooperate, figuring out ways to come together.

(05:52):
Another reason they were traveling in the west was to
mind for gold. This is another situation where it could
be disastrous without rule of law. Well, how much can
you mind? 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, it's gonna be
lots of overlap. So let's set up some clear rules

(06:13):
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

(06:34):
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

(06:56):
time enforcer when enforcer kept saying, I think I'd rather
be mining gold. So there were no there were no sheriffs.
What would simply happen was when somebody thought that there
had been a violation, that would be a cry, or
rather the camp all of the miners would form a jury.
The person that was being charged was allowed to present

(07:16):
their case, the person that they claimed it 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 turning
out the camp. So this is one of the themes
throughout my book with Terry Anderson on the American West,

(07:39):
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
we're enforced would seem in a reasonable sort of a way.
What about property rights? How did they establish rights to

(08:00):
land in the West. The Homestead Act of eighteen sixty
two established rights to one hundred and sixty acres, but
that oftentimes it was difficult to find water. The one
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.

(08:22):
One hundred and sixty acres would not suffice, so they
expanded it to six hundred and forty acres in nineteen sixteen,
which still was entirely too small for a workable cattle ranch.
To give you a sense of that, my family cattle
ranch was twenty five thousand acres. That did not make
us cattle kings. We were not some of the largest

(08:43):
operators around. But you can imagine if it took twenty
five thousand acres to be a decent sized, just an
economic unit, then the Homestead Act, even when it got
up to six hundred and forty acres, was just unworkable.
So we imposed a top down system. Where there had
been a bottom up system of rights that the ranchers

(09:04):
had established, sheet producers had established that was for workable
sorts of branches, 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

(09:26):
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 very careful about imposing too many top down rules.
Look at the community, think about what sorts of things

(09:47):
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,

(10:08):
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. In A
great job on that piece by Madison and his special
thanks to P. J. Hill. His book The Not So
Wild Wild West Property Rights on the Frontier is available

(10:28):
at 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