By the time my parents arrived in North America, all the land was taken. There wasn’t any left to claim. The continent, from one end to the other, belonged either to private owners, the government or to Indians on reservations. We walked onto a playing field owned by others, and, like most Americans, had to fight for a place of our own. I will spend the better part of my adult life paying a banker for the fantasy of calling a sliver of the earth mine. When that banker is in danger of default, he can count on the government to bail him out; if I default, I become homeless.
Things were different in 1638 when the founders of New Haven Colony. Theophilus Eaton, John Davenport and other planters migrated here from the Massachusetts Bay Colony, looking for a little room of their own. They found it, and, being enterprising and God-fearing Englishmen, they sought legal title to the land. I spent the other morning at the state library looking at copies of the deeds for the land on which New Haven now sits.
My research was no mere antiquarian lark. I am trying to figure out why a committee of five self-selected person claims title to the New Haven Green, including the right to tell the rest of us what we can and cannot do on it. The Committee of Proprietors of Common and Undivided Lands at New Haven claims to act as descendants of Eaton’s and Davenport’s. The title they assert is to the very land Eaton and Davenport acquired in 1638. The first deed for land in New Haven was signed by Theophilus Eaton, John Davenport and various other planters on November 24, 1638. The land was purchased from some tribal chiefs for "twelve coates of English Trucking cloath, twelve alcumy spoons, twelve hatchets, twelve hoes, two dozen of knives, twelve porengers & foure cases of French knives and sizers." This is the first purchase of land in what is now New Haven. (A porenger, by the way, is a small bowl or cup with a handle; we spell it porringer now.)
The second and final deed conveyed title to land in New Haven to Theophilus Eaton, John Davenport and other planters, "their heyres & assignes for ever." It was signed by two indians "Mantowese" and "Sawseunck" by means of hieroglyphic marks on December 11, 1638. In exchange for giving the land, they reserved the "right" to a small portion for themselves and their small tribe. The planters were gracious enough to give "eleven coates made of trucking cloth, and one coate ... of English cloth" for the land.
Land was cheap in those days. Manhattan purchased for wampum; New Haven for coats and utensils.
Of course, the trouble with these transactions is that the English were speaking in terms of title to land as developed by English common law. The native Americans had no such conception. Go ahead, a native American might have thought, give me some warm clothes and knives, and I will sign your paper: do you really think that a piece of paper can transform land given to all into yours alone? I suspect some Indians thought the Europeans fools, much as we would if a man were to give us a car in exchange for our promise that he would never die. Some promises are essentially meaningless.
Eaton and company laughed all the way to the bank, we know. They acquired many square miles of land with these deeds, and as the colony grew, they retained titled to the land, giving it to other settlers as they saw fit. Today the title to the 16-acre Green in New Haven’s center is still held by a group descending in bizarre lineage from Eaton and company.
The title conveying title to New Haven from the native Americans to Eaton and company gave it over to the colonists and their "heirs forever." In terms of English common law, that meant that title was in "fee simple absolute," in other words, the land was unencumbered, and no one had a right make a claim to any portion of the land covered by the original deeds other than those who bought it and their descendants. When a current owner died, his interest reverted to a survivor down through the ages. The owners get to decide what to do with the land, whether to sell it, or retain it for a use they see fit.
By the early 19th century, Eaton and company had a whole lot of descendants spread throughout the world. It was no longer practical for the descendants to meet periodically to vote on land management issues. So a committee of five Proprietors was created in 1805. That committee selects replacements for members who die or lose interest to this very day. Today’s Proprietors need not be descendants of Eaton and company. Indeed, I suspect most are not. But when they are elected in secret proceedings to their life-time appointments, they acquire the rights of heirs to manage title to the land forever. The General Assembly gave some form of endorsement to this peculiar hereditary interest in 1810.
Whether the Proprietors’s title to the Green squares with the state’s constitution enacted in 1818 barring the conveying of any hereditary interests is an open question. The state Supreme Court has never considered the issue, although clients of mine now occupying the town Green are seeking to get the issue before the state Supreme Court. Critics of these latter-day occupiers contend charge they should move on, let the issue rest; why some of them have nothing and our homeless. They are savages, some say. The same was said of the folks who occupied the land when Eaton and company purchased it.
Here’s a suggestion: Perhaps the folks occupying the Green can take up a clothing drive. Let them collect old coats and kitchen utensils. Make a big stack of these items on the Green and then offer the Proprietors the items in exchange for the land. Absurd, you say? No less so than claiming that title so acquired almost 400 years ago vests in a group now asserting ownership in what everyone regards as a public space. Or doacts of unjust enrichment and what amounts to thievery flow in one direction only?