John Locke on the Possession of Land: Native Title vs. the ‘Principle ’ of Vacuum domicilium

The early paragraphs of John Locke’s Second Treatise describe a poetic idyll of property acquisition widely supposed to have cast the template for imperial possessions in the New World. In the state of nature ‘nobody has originally a private dominion exclusive of the rest of mankind. ’ Yet by ‘the labour of his body and the work of his hands…whatsoever then he removes out the state that nature has provided…he has mixed his labour with, and joined to it something that is his own, and thereby makes it is property.…’ Few theorists of sovereignty and international law have read much farther in Locke’s brief treatise, thus saving themselves (and their assumptions) from the surprises lurking in the later chapters on conquest, usurpation and tyranny. There Locke sets forth a robust defence of native rights to lands and possessions that survive to succeeding generations. Thus ‘the inhabitants of any country who are descended and derive a title to their estates from those who are subdued and had a government forced upon them against their free consents retain a right to the possession of their ancestors…. Their persons are free by a native right, and their properties, be they more or less, are their own and at their own disposal, and not at his.’. Locke himself observed that doubtless this ‘will seem a strange doctrine, it being quite contrary to the practice of the world. ’ His doctrine of native right is equally strange to the practice of contemporary scholars who see in Lockean theory the ideological prototype of imperial colonialism in the ‘vacant lands ’ of North America. This paper views Locke’s complex thinking against the background of England’s early sixteenth-century experience of Amerindian agriculture, territorial jurisdiction, widely acknowledged native property rights and another strange principle, vacuum domicilium.