Material origins
Chapter 3
Material origins
Nation
3.1 Introduction: building a placeless nation
How did the conceptual origins of modern property law, the theoretical model of people and things, apply in the real world? The answer to this question lies principally in the enclosure of the English commons. The customs or laws of the commons were locally specific and responsive to geographic capacities and limits defined by forests, fens, marshes, wetlands and heaths. These specificities were regarded as irrelevant to the development of an abstract law of private property. The material origins of the modern laws of property were thus the physical processes of transforming very particular local geographic and ecological relations into uniformly productive fields and pastures across the nation through enclosure.
Enclosure is the name given to the process of enclosing and appropriating land – hitherto worked and enjoyed by a peasant community in common – usually with a hedge, fence or other physical boundary. Enclosed land is privately owned land; it excludes the interests and access of all but the owner, usually an individual. The land and its fruits are legally alienable, that is transferable and tradeable by the owner at their discretion. Privately owned land carries no obligation or responsibility to anyone for anything unless noted on the title. Enclosure is also the name given to a protracted but revolutionary period in English history in which a substantial portion of English lands were transferred from common, inalienable interests to private, alienable property. Enclosure occurred where an individual appropriated land held in common by the community, and/or where open fields held in common or in severalty for either cooperative or separate husbandry were parcelled out permanently (Langford 1989: 435). Although lands were being enclosed intermittently well before the eighteenth century, from 1750–1820, almost 21% of English lands were enclosed by acts of parliament. Enclosure was contested and resisted, locally as well as more broadly in ideological terms, because enclosure dispossessed entire communities or parishes, whose populations often became hire labour on the now privately owned land or else migrated to urban centres: ‘The stranglehold of enclosure, by which means the open fields and commons where smallholders grazed their animals were legally stolen in the interest of the large landowners’ (Reeves, cited in Barrell 1972: 190). As that quote indicates, enclosure can be critiqued in political terms which may or may not include ‘an idealisation of feudal and immediately post-feudal values: of an order based on settled and reciprocal social and economic relations of an avowedly total kind’ (Williams 1973: 35). Williams warns against such idealisation, noting that the social order of feudalism was ‘as brutal as anything later experienced’ and arguing, more significantly, that enclosure was part of a ‘concentration of landholding’ that developed over a longer period of time. His account of enclosure is one that describes this ‘revolution’ rather as an episode in a continuous history of ‘conquest and seizure’ of English lands, which, while an important, defining and ‘decisive’ episode, is nonetheless too easy to sentimentalise or approach uncritically and nostalgically.
In part, this tendency to look back at enclosure sentimentally is because enclosure was fundamentally a transition to a more complicated and detached relation between people and place. Many important and enduring questions about the relationship between humans and their environment date back to the process of enclosure. Margaret Davies asks of enclosure, for example: ‘[W]ere the enclosures an inevitable part of agricultural modernisation and rationalism? Did the rural population necessarily become proletarianised, that is less able to support themselves from the land and more reliant on employment in an increasingly capitalised economy?’ (2007: 68). English law, land use practice and culture changed irrevocably through the enclosure of the commons. So powerful was the enclosure of the commons in terms of nationhood that it was conflated with the construction of both nation and empire: ‘Nationalist propaganda in favour of enclosure equated the domestic privatisation and “improvement” of land with war and colonial conquest’ (Davies 2007: 69).
This pivotal event in the foundational history of contemporary property law consistently deployed the ideas of improvement and progress. The paradox of improvement discourse is that its logic marries people to place while its counteractive practice physically separates and severs this relationship. The rationale of enclosure (and colonisation) is that cultural progress can be measured only by the improvement of nature. The condition of any given society is apparently, therefore, known via its relationship to and precisely by its distance from nature. In improvement theory, there is necessarily an immediate proximity of nature and culture. Conversely, in practice, both enclosure and colonisation physically removed people from their indigenous places through eviction, transportation and dispossession. These events deplace and displace people. The irreconcilable logic and practice of improvement however, does not belong only to the annals of a supposedly defunct British Empire. It is found on the shelves of lawyers and economists, thus demonstrating the continuing relevance of the paradigm of nature/ culture and its manifestation in law: people/things.
3.2 Ordering place: enclosure
The story of enclosure is an ecological story. Enclosure changed the relationship between people and place. Yet it has most often been regarded and recorded not in terms of that relationship but according to the nature/culture paradigm as either (traditionally) a social history or (more recently) a natural history. This chapter weaves together these separated histories to reveal the fact of their separation as characteristic to the paradigmatic splitting of people and place in English modernity.
The land laws of the peasant economy, its ‘customs’, were locally developed and thus were relevant and responsive to various local geographic conditions. These laws were necessarily strictly enforced. This is because as well as providing rights of access, use and enjoyment of land, waterways and local resources, they also provided highly specific limits or conditions to those rights. In other words, the land laws of the peasant economy were clear and rational rules of resource management. The social and ecological viability of these land laws was indicated by their continued observation over centuries. Communities established near forests and woodlands, for example, enjoyed the right of estover, which permitted the gathering fallen timber for fuel, and the right of hay bote, which permitted the use of dry forest wood lying on the ground and ‘any dry wood they could knock down with hooks’ for repairing fences and ploughs (Hoskins and Stamp 1963: 47). The local law or custom of the land was therefore a system providing both entitlement to and management of the land’s resources. These laws can be traced back to at least the thirteenth century where local manorial court records indicate that these rights were well known and understood. Given these laws were developed in a cold and wet climate in which fuel and building resources were vital for life, it is not surprising that breaches of these laws were regarded as serious offences. Manorial court records dating back to the early seventeenth century in Gartmel (Lancashire) indicate the community’s dependence on and protection of the local resource of bracken, which was used for thatch, bedding and fuel (Hoskins and Stamp 1963: 47). Being a highly valued resource, the right to use it was accompanied by the rule to cut it in a certain way and at a certain time. Commoners were forbidden from cutting bracken before a certain date (which varied from year to year depending on seasonal conditions) and even then the taking of the resource was limited to a 3-day period. The first of these 3 days was marked by the creation of a special day on the local rural calendar, Bracken Day (Hoskins and Stamp 1963: 47). This custom or law that strictly governed the use of the resource indicated both the notion of a right or entitlement to the resource and the notion of dependence on the resource giving rise to a responsibility for sustainable usage.
Given the geographic diversity of England, it is unsurprising that the land laws that supported peasant economies were various rather than uniform. The examples given by historians indicate a substantial range of laws and customs governing land and resource use depending on the physical context of those laws. Even grazing rights, the most important rights held by commoners, were highly specific to local geographic conditions. Certain species of animal were permitted to graze on common pastures while others were not, or permitted to graze only until a certain age (Hoskins and Stamp 1963; Karsten 2002). The key point here is that there was no universal right of grazing that applied across the nation, rather there were locally developed and responsive rights and rules governing the grazing of particular numbers of particular animals of particular ages at particular times in particular places. The geographic specificity of the law evidenced the connection between communities and the ecological conditions of their existence. The law reflected a connection between people and place. This intimate people– place relation gave rise to viable community cultures and economies over very long periods of time. That laws were determined and defined by the place of their origin and operation demonstrated that the commoners were cognisant of the dependence of their economy on maintaining the conditions of local resources.
The cultural significance of the laws or customs of the commoners relating to land use and management is that they protected an economy which ‘made use of all the resources of the neighbourhood and was very largely self-sufficient. For the majority of English and Welsh people, money played only a marginal part in their economy until the early years of the nineteenth century’ (Hoskins and Stamp 1963: 44). The ecological significance of the laws or customs of the commoners relating to land use and management is that they protected an economy which was not only locally specific but which fundamentally ensured its viability over time. Many of these laws operated in the same places for several hundreds of years, which reveal both the success of the economies they served and the intelligence of the resource management they provided.
The death of the laws and customs of the commoners and the peasant economy was not brought about by any intrinsic failure or inevitable collapse. Contrary to the claims of the improvers (those who stood to benefit from enclosure), the laws and customs of the commoners were neither unproductive nor non-viable. Rather, their laws were extinguished either by the legal seizure of the lands to which the communities and their laws belonged or by declaring illegal the various land use practices involved. The extinguishment of these laws or customs was the principal objective and the consequence of enclosure and private property in land:
In the great attack on the commons which reached its climax in the late eighteenth century and the early nineteenth, it was frequently alleged that the commons were mismanaged and neglected and gave rise to every kind of evil from sheep-rot to dissolute vagrancy; but these criticisms, even if they were well founded at the time, do not provide a true picture of the way in which the commons were managed in earlier centuries when the manorial organization and machinery were still effective.
(Hoskins and Stamp 1963: 48)
Enclosure demonstrates the agency of law in transforming the paradigm of nature/culture from theory to practice through the introduction of private property relations. Locke’s concept of property in labour, consistent with his contemporary improvement theorists, argued that cultivation and husbandry would deliver man from sacrilegious idleness and restore him to the rightful and active domination of nature. But Locke’s ideas of property extended far beyond theoretical contemplation and debate. He linked improvement theory to the practices of enclosure and colonisation and, in so doing, endeavoured to legitimise the appropriation of common property and the exclusion of long-established communal rights:
Enclosure, labour and the subjection of the earth were all part of the same process. This provided the basis for his justification of property in the earth itself. To reiterate: ‘As much Land as a Man tills, plants, improves, cultivates and can use the Product of so much is his Property. He by his labour does, as it were, inclose it from the common’.
(Locke, cited in Brace 1998: 161–162)
By presenting private property as reasonable and natural under the arch-discourse of rationality and its appeal to the paradigm of nature/culture, Locke provided a new story of law. Lawyers, judges and scholars reiterated his justification of private property for years to come because it reformed myriad diverse and complex people–place relationships of feudalism into rational, simple and finite relationships in law. While legal categories were fixed and knowable, law’s authority, though historically abstract and sacred, could be vested in the inevitable rectitude of the Lockean method. This discourse was used to justify both the enclosure of the common property in England and the colonisation of property of foreign countries. The actual displacement and dispossession involved in this process effectively materialised the mythic division of the world into people and things. E.P. Thompson argued that the role of law was pivotal to the construction of that mythic world which not only reordered itself, but also its other: ‘It was law (or “superstructure”) which became the instrument of reorganising (or disorganising) alien agrarian modes of production and, on occasion, for revolutionising the material base’ (1991: 164).
The gradual and widespread splitting of open fields, woodland and marshes into enclosed, mapped and discrete parcels of cultivated and horticultured land profoundly changed the economy of English society and ecology. Enclosure changed a practice that was at once cultural and natural: land use. It transformed the land use practice of agricultural cultivation into one fitting firmly within the ontological category of culture.
3.2.1 Making culture
The change from open field agriculture to enclosure indicated radically changed farming practice, from subsistence to enterprise via science. Human relationships to place were increasingly articulated as unilateral consumer and producer relationships within the developing economy of capital. The contribution of the scientific revolution to that economy and to the enclosure movement cannot be understated. Jethro Tull (1674–1741) and Charles Townshend (1674–1738) for example are regarded as having reconceived farming as a science. Their aim, however, was not to change farming as a form of knowledge about ‘things’, but as an economic mechanism. Their work advocated the idea of ‘improvement’ in terms of the increased production of the quantity of the goods yielded by farming rather than as increased quality or diversity of those goods – ultimately profit.1 The word ‘improvement’, derived from the Old French word for ‘profit’, connected a particular form of land use to monetary gain (Williams 1976: 160–161). Tull ‘invented’ the mechanical, horse-drawn seed drill and Townshend ‘discovered’ the four-course rotation system of planting without fallowing. But neither ‘invention’ nor ‘discovery’ was valued as knowledge in itself, rather they were valued as utilities of economic development: ‘Tull serves to underline the important fact that the ongoing agricultural revolution was the necessary precursor and partner of the better known Industrial Revolution’ (Davies 2000: 636). Townshend’s discovery was more probably a refinement and popularisation of an agrarian practice that had gradually developed in England over several years (Tudge 2003: 68). Fallow lands, which were important in the existing two-course or three-course rotation systems, were replaced with pastures of grasses or fodder legumes or roots such as turnips (Mazoyer and Roudart 2006: 313). This meant that the land was productive every season ‘with almost no break’ so that the land reached the maximum possible productivity at the time. The result was the production of ‘at the very least twice as much as the older systems’ (Mazoyer and Roudart 2006: 314). The increased produce was surplus available for trade on relevant food markets and was possible only by making illegal the long-established usufructuary rights and practices of commoners, which supplemented their income and supported rural society. Charles Townshend was known as ‘Turnip’ Townshend because he introduced the turnip as cheap winter food for livestock: ‘The more livestock that can be maintained through the winter, the more there are to make use of next year’s pasture’ (Tudge 2003: 68). Townshend’s advocacy of the idea of improvement was very much related to economic gain. Indeed, it was the market economy that encouraged the beginnings of industrial scale agriculture.
1 The English word ‘improvement’ was derived from the Old French word for ‘profit’. In the English usage, improvement connected a particular form of land use with monetary gain (Williams 1976: 160–161).
Progress was conceived almost entirely in terms of a market economy:
Farmers began to concentrate on particular agricultural products rather than producing a wide range of commodities to satisfy the needs of the local community. They chose the crop or animal to which their land was most suited, taking account of climate, the soil, and location, and they produced that crop or animal for sale on the national market. Thus regions developed which were devoted to a single type of agriculture.
(Bellamy and Williamson 1987: 96)
Science and the new economy worked hand in glove. The economic function of science in changing agricultural practice is indicated by the class of farmers responsible for producing the burgeoning improvement and husbandry literature. Their literacy and independent wealth distinguished them as gentlemen and professionals: Charles ‘Turnip’ Townshend was also known as Lord Townshend.2 The Board of Agriculture formed in 1793 consisted of 31 founding members, 14 of whom were titled (Barrell 1972: 65). As John Barrell notes, the great proprietors were concerned mainly:
with the revenue they derived from their estates: with ways to increase rents and to save costs in more efficient management; and precisely how these aims were achieved were of secondary importance.
(1972: 66)
The members of the board who did not represent the peerage were agricultural experimentalists because they were ‘bigger tenant-farmers and the more substantial owner-occupiers’ (Barrell 1972: 66). The growing landholding of the rural professional class was related directly to the wealth of that middle class. The new bourgeoisie of the countryside ‘were responsible for virtually all the agricultural literature produced between about 1750 and 1820’ (Barrell 1972: 66). Land ownership became tied to land use: changes to one practice were changes to both:
Farming gradually became a capitalist industry based on a sophisticated market economy, but this development was only possible because of the evolution of the concept of absolute ownership, and the emergence of a few wealthy landowners and large farmers in place of the multiplicity of peasant proprietors.
(Bellamy and Williamson 1987: 95)
2 For an interesting discussion of class, farming, literature and agrarian capitalism see Thirsk, ‘Making a fresh start: sixteenth century agriculture and the classical inspiration’ in Leslie and Raylor (1992).
The agricultural revolution and its connection to the advancement of private property demonstrate that cultivation was the nexus of the modern discourses of individualism and economic efficiency: ‘If we ask, who the genius of the place may be, we find that he is its owner, its proprietor, its improver’ (Williams 1973: 123). The value and utility of nature as things, that were separate from culture, was then and remains the basis of both science and law. The institutionalisation of private property is the practical coincidence of these discourses. The alienation of humans from ‘everything else’ imagined in science and law was enacted by enclosure.
Culture was made by changing property law. Enclosing open fields that had been held in common for hundreds of years meant changing the laws of possession and ownership, especially the rights regarding fallow lands. Agricultural historians have called the common rights of grazing ‘the largest and most widespread’ of obstacles to the agricultural revolution (Mazoyer and Roudart 2006: 333):
Open field farming, while not such a rigid or inefficient system as has sometimes been suggested, was incompatible in most places with the long-term tendency to increase the size of farms or with the desire of individuals to specialise in the immediately profitable use of land.
(Briggs 2000: 35)
The cultivation of lands periodically left fallow meant prohibiting commoners’ rights to graze. As these rights had been exercised over open fields, the process of enclosing them required either the total acquiescence of the commoners or strategies to counter their resistance. The economic objectives of private property were simply incompatible with common property. Open field agriculture was an obstacle to agricultural productivity and profitability, they could not coexist. A legal solution was necessary.
The connection of custom and tradition to law in feudal society was similarly incommensurate with private property because the alienability of land, that the latter required, relied on the a-historicism of the science of farming and ‘improvement’ theory. The values and uses of land within the peasant and capital economies were very different and this difference fundamentally challenged the functionality of land law. Whereas property had been about obligation and reciprocity in feudal law, modern property law conceived of property in terms of rights and unilateral relations. The new, private form of property severed the connection of law to tradition and custom, because capital was created not by historically and geographically defined obligations and responsibilities but by the alienability and exclusivity of land and its resources. Private property law required the alienability of property in terms of relationships that were universal and dichotomous, rather than particular and pluralistic. It was necessary to abolish the collective obligations of the peasant economy protected by the laws of the commons to enable the freedom to exclude, cultivate and alienate land and its produce (Mazoyer and Roudart 2006: 333). Contemporary customs expressed specific people–place relations that revealed a diversity of long-established cultures. Modern English property law, however, prescribed generalised people–place relations in producing a universal culture – the English nation.
As with the ‘pioneers’ of new farming practice, the agents of property law reform represented and protected the interests of one class, the same class that claimed absolute and exclusive (private) property rights. This class personified culture. It was the class of landowners and the new order of professional farmers or ‘improvers’. Entrepreneurial ‘gentleman’ farmers, members of the parliament and judiciary belonged to the same class: the ruling class. This fact is overlooked in a recent account of enclosure by a landscape historian who presents legal and agricultural change as separable:
Considerable changes in the rural landscape of Britain were brought about either by changes in the legal framework of man’s relationship with the soil, or else with by changes in his agricultural practices, and quite frequently by changes in both.
(Reed 1990: 205)
Changing the landscape can only be read as ‘either’ or ‘both’ agricultural and legal when the framework of class that supports their activity is omitted. Parliamentarians, judges, lawyers and enclosure commissioners, who were often the ‘gentleman’ farmers and landowners, ensured the successful carriage of enclosure: ‘The enclosures did not stop at the boundaries of the estate. Many peasants were deprived of their lands in all sorts of ways: non-renewal of limited leases, seizing lands upon deaths and transfers, and abusive evictions’ (Mazoyer and Roudart 2006: 340). The attention of the law-making and landowning class to gleaning, for example, was an attempt to guarantee the exclusivity of property by reducing or ‘translating’ customary rights over common property into permitted usage of private property (Thompson 1991: 163). Gleaning by women and children of straw and grain from wheat and cornfields after harvest was common practice and was regarded as a legitimate custom until 1788 when the common law ruled that it was not a property right (Steel v Houghton (1788) 1 H.Bl 34). Customs in common were diminished and simplified into rights in common. Customs were newly categorised, for example as the right to pasture (common of pasture), right to cut peat or turf for fuel (common of turbary) and right to collect firewood and repair wood (common of estovers) (Halsbury’s Laws of England IV 1932, cited in Neeson 1993: 313: ‘In reality, on the ground, the range of common produce was magnificently broad, the uses to which it was put were minutely varied, and the defence of local practice was determined and often successful’ (Halsbury’s Laws of England IV 1932, cited in Neeson 1993: 313). But formally, at common law, common right was the right to share the produce of land, not the ownership of the soil. Peasants became trespassers on land they did not own but to which they felt they belonged. Alienation redefined law and property; it also redefined legitimate relationships to place.
The elimination of obligation and responsibility from law was an important aspect of the reconceptualisation of people–place relations in the capitalist economy. But as E.P. Thompson argues, enclosure was not only an important element in the transition from feudalism to capitalism in England; it was an essential element in the transition from community to nation and from nation to empire. Enclosure demonstrated changed values and uses of land, the accelerated pace of which corresponded with the universalising movement of the legal discourse of alienable and exclusive property. In the fifteenth and sixteenth centuries enclosure evidenced gradual and localised incidents of economic change, but by the eighteenth century enclosure was so widespread that it evidenced the basis of a national and imperial economic programme:
The concept of exclusive property in land, as a norm to which other practices must be adjusted, was now extending across the whole globe, like a coinage reducing all things to a common measure.
(Thompson 1991: 164)
The metaphoric description of property as a coin points to the way in which the rise of capital made law a function of its quantitative economy. Law no longer protected the diverse rights and obligations of various and specific interests in particular localised resources; instead, it protected the standardised rights and wealth of the private realm independent of location. Private property law homogenised the plurality of local cultures and various relations to place into a national market of land and labour. But as private property recast human subjectivity, it changed the scenery too. The law inscribed itself into land. If it can be said that enclosure made culture something transcending the physical, it might also be said that enclosure made nature. This means enclosure changed the non-human world of ‘everything else’ from diverse, particular networks of things and local ecologies, into the contained and framed setting of culture – the landscape. The following section explores the ways in which enclosure and the privatisation of property transformed English lands into the English landscape – how property law shaped and continues to shape the land.
3.2.2 Making nature
Scrutiny of historical change is the condition for comprehension of human landscape perception.
(Fitter 1995: 8)
The eighteenth-century vision of ‘Man’3 as homo faber extended beyond the realm of culture to nature, through the immense alteration of land use practices and fabrication of landscape. The seventeenth-century meaning of ‘landscape’ had been the visual perception and representation of country in painting. However, by the eighteenth century, this term had become a broader referent to the appearance of country. Importantly, the knowledge and appreciation of country became a mark of cultural distinction:
Between 1776 and 1800, it became increasingly fashionable for landed proprietors with no trading interests at all to display interest in agriculture as well as in hunting or painting: indeed, there grew up an ‘agricultural school’ of painting, and great landowners and statement, including Thomas Coke of Norfolk, first Earl of Leicester, the Duke of Bedford, and Lord Althorp, were happy to be portrayed in the centre of farmyard scenes.
(Briggs 2000: 33)
Culture was measured in the language of nature: ‘During the eighteenth century the contemplation of landscape – in nature, or as represented in literature and the visual arts – became an important interest of the cultivated’ (Barrell 1972: 3). Wealthy landholders brought home landscape paintings from their ‘grand tours’ of Europe, which they would then realise on their English properties through the hired skills of eminent landscape architects (Williams 1973: 122). Landscape was fashionable in two senses: it indicated a modal aesthetic of land and, in addition to the land market itself, became a commodity: ‘Landscape very quickly became the most popular genre of painting, and in the private collections of the very rich it was the newly acquired Claudes and Salvators that were most admired’ (Barrell 1972: 4). Indeed, the demand for landscape art ‘exceeded the sources of legitimate supply, and the trade in imitations, copies, and forgeries was considerable’ (Barrell 1972: 4). The representation of country as landscape was executed according to particular aesthetic values that consisted of distinctive:
principles of composition that had to be learned, and were indeed learned so thoroughly that in the later eighteenth century it became impossible for anyone with an aesthetic interest in landscape to look at the countryside without applying them.
(Barrell 1972: 6)
3 The male pronoun is used and capitalised here to underline the gendered paradigm of nature/ culture.