Customs in Common, page 21
Whatsoever, then, he removes out of the state that nature hath provided and left it in, he hath mixed his labour with. . . and thereby makes it his property.
“It hath by this labour something annexed to it that excludes the common right of other men”:
Thus the grass my horse has bit, the turfs my servant has cut, and the ore I have dug in any place where I have a right to them in common with others, become my property. . .
It is not clear that Locke has overcome all difficulties — why are the turfs to be his, and not his servant’s or, indeed, his horse’s? Legal decisions in the eighteenth century introduced arguments from “labour” in terms of the general reasons of “improvement”. More often they fell back in the question of custom or lex loci upon the legal fiction that customary usages must have been founded upon some original grant, from persons unknown, lost in the mists of antiquity. The law pretended that, somewhere in the year dot, the commons were granted by benevolent Saxon or Norman landowners, so that uses were less of right than by grace. The fiction was purely ideological: it guarded against the danger that use-rights might be seen as inherent in the users, in which case the successors of Levellers or Diggers might arise and plead their original title.
Locke’s property theory was written in terms which two scholars have sternly described as an English “vernacular”, as against the stricter European tradition of natural jurisprudence. He “did not follow Grotius’s and Pufendorf’s restriction of the use of the term ‘property’ to its modern meaning of exclusive and absolute right of dominion”.1 In the flexible traditions of the English common law the meanings of property remained various — an absolute right, a coincident use-right, a claim to preference, a man’s property in his own life or privileges. Undoubtedly C. B. Macpherson was right to show the increasingly absolute definition of property in the seventeenth century, and the triumph of the claim to the “virtually unlimited and saleable rights to things” in the eighteenth.2 This process was not, perhaps, as univocal as Professor Macpherson proposed, and was, indeed, two-sided. For the landowners, landed property was “increasingly becoming subsumed to contract, that is. . . taking on the qualities and functions of capital”, through the liquidity of mortgages and the complex forms of marriage settlements, trusts, entail etc. “Yet at the same time, in the name of absolute individual property, the common and use rights of the ‘lower orders’ were eroded.”3
Ibid., p. 35.
C. B. Macpherson, “Capitalism and the Changing Concept of Property”, in E. Kamenka and R. S. Neate (eds.), Feudalism, Capitalism and Beyond (1975).
See the overview by G. R. Rubin and David Sugarman (eds.), Law, Economy and Society (Abingdon, 1984), esp. pp. 23-42. Also P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford, 1979), pp. 85-90.
Sir William Blackstone had too precise a mind to linger long in speculations, although he endorsed, in passing, the Lockeian view that property in land allows an origin in which in prehistoric times the land “belonged generally to everybody, but particularly to nobody”. But his concern was to define the rights to property as he now found them to be justified at law. And he asserted the right of property (and, in the case of land, the control of physical space) to be exclusive and unqualified:
. . . that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.1
Blackstone, op. cit., ii, pp. 2, 8.
This bleak and absolutist definition he then (of course) did go on to qualify. His account of customary rights and copyhold is scrupulous, and on some matters (such as gleaning) he leaned to a liberal view. Yet these customs also were considered less as usages than as properties annexed to things. Through the ill-management of history these things were muddled up amongst each other on the land, and it was the business of law to sort each exclusive property out.
Political economy aided and abetted the law. For Adam Smith “property was either ‘perfect’ and absolute or it was meaningless”,2 and it was the function of government to protect property from the indignation of the poor. As he wrote in The Wealth of Nations (1776),
Hont and Ignatieff, op. cit., p. 25.
It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labour of many years, or perhaps of many successive generations, can sleep a single night in security.
Somehow the language summons to mind the substantial property, the settled estate, the freehold, while the secure sleep of commoners falls out of view. (After his change-of-heart, Arthur Young reported that poor commoners in a Cambridgeshire village regarded the approach of inclosure “with a sort of terror”.)3 It was Adam Smith’s achievement to shift “the terms of analysis from a language of rights to a language of markets”, in a “constitutive move in the making of classical political economy”.4
Annals of Agriculture, xlii (1804), p. 497, describing Morden Guildon, then under enclosure, where the cottagers had been in the habit of keeping cows, wintering them in the farmers’ yards at 6d. per week, in summer leading them on balks, etc.
Hont and Ignatieff, op. cit., pp. 24-6.
By the 1780s both law and political economy regarded coexistent properties in the same land with extreme impatience. We recall Lord Loughborough’s judgement that “the nature of property. . . imports exclusive enjoyment” (above p. 139). And this was seconded by the immoderate ideological zeal of the propagandists of enclosure. Monotonously, in pamphlet, in the Annals of Agriculture and in agricultural surveys, the same impatient tone comes through. Opponents of Lincolnshire fenland enclosure wish to “live at large, and prey, like pikes, upon one another”, or these commoners are “Buccaneers” who “sally out, and drive, or drown or steal, just as suits them”.1 “The appropriation of the forests”, Vancouver remarked in the General View of the Agriculture of Hampshire (1810),
W. Pennington, Reflections on the various Advantages resulting from the Draining, Inclosing and Allotting of Large Commons and Common Fields (1769), pp. 32, 37.
Would. . . be the means of producing a number of additional useful hands for agricultural employment, by gradually cutting up and annihilating that nest and conservatory of sloth, idleness and misery, which is uniformly to be witnessed in the vicinity of all commons, waste lands and forests. . .
And the surveyor expressed his earnest wish that “old as he now is, he yet may live to see the day when every species of intercommonable and forest right may be extinguished”. The vocabulary — “prey”, “buccaneers”, “cutting up and annihilating” — reveals a mind-set impervious to alternative definitions; and, as the high tide of enclosure coincided with the political polarisation of the 1790s, so arguments of property and improvement are joined to arguments of class discipline. Parliament and law imposed capitalist definitions to exclusive property in land.
If parliamentarians, landowners, judges and many enclosure commissioners did gross natural injustices in enclosures I do not mean that they were clearly aware of what they were doing. They observed the rules which they themselves had made. They were so profoundly imbued with preconceptions which translated the usages of the poor into the property-rights of the landowners that they really found it difficult to view the matter in any other way. (Although — it is important to note — there were always contrary voices, even among their own ranks.) What may give to this matter a greater significance is that this law and this mind-set were not confined in place or in time. 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.
The concept was carried across the Atlantic, to the Indian sub-continent, and into the South Pacific, by British colonists, administrators, and lawyers, who, while not unaware of the force of local customs and land systems, struggled to construe these within their own measure of property. It is an interesting inversion of the expected sequence of reciprocity between “social being” and “social consciousness” which, in the Marxist tradition, used to be rehearsed in terms of “basis and superstructure”. To be sure, capitalist notations of property rights arose out of the long material processes of agrarian change, as land use became loosed from subsistence imperatives and the land was laid open to the market. But now these concepts and this law (or lex loci of that part called England of a European island) were transported and imposed upon distant economies in various phases of evolution. Now 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.
A global ecological history might be written, one central episode of which turned upon the mis-match between English and alien notions of property in land and the imperialist essays in translation. Even within the main island of Britain, successive emigrations and clearances from the Scottish Highlands were testimony to the decisions of a law which afforded no shelter to a population evicted from lands which they had supposed to be communally owned, from time out of mind, by their clans. But the law could take no cognisance of such a communal personality. Nor could its categories match the communal usages of hunter-gatherer peoples. Locke had ruminated, in his chapter on property, on “the wild Indian. . . who knows no enclosure, and is still a tenant in common”. This Indian served as a paradigm for an original state before property became individuated and secure: “In the beginning all the world was America”. Locke decided that the American Indian was poor “for want of improving” the land by labour. Since labour (and improvement) constituted the right to property, this made it the more easy for Europeans to dispossess the Indians of their hunting grounds. The Puritan colonists were ready to moralise their appropriation of Indian lands by reference to God’s commands, in Genesis 1, 28, to “replenish the earth, and subdue it”.1
An excellent study which brings legal and ecological themes together is William Cronon, Changes in the Land: Indians, Colonists and the Ecology of New England (New York, 1983). I am at work on a study of these issues, in relation to the Mohegans of Connecticut, which I hope to conclude shortly.
Hunting, fishing, and even planting some unfenced patches of corn and squash clearly fell far short of “subduing” the earth. (In any case, the work was left to the women.) It could not be said to be “improvement” and therefore its claim to establish rights of property was slender. The same improving mind-set, whether in Old England or in New, found reprehensible the lack of useful productive labour, whether on the ill-governed forest or waste or in the Indians’ hunting grounds. In the English cottager and “the wild Indian” alike there was seen a degrading cultural submission to a picaresque, desultory or vagrant mode of livelihood. “Forests and great Commons”, John Bellers wrote, “make the Poor that are upon them too much like the Indians. . .”. Commons were “a hindrance to Industry, and. . . Nurseries of Idleness and Insolence”.2 Security of property is complete only when commons come to an end.
A. Ruth Fry, John Bellers, 1654-1725 (1935), p. 128.
The same notions of property-right accompanied the earliest British colonists in the South Pacific. In 1770 Cook claimed the east coast of New South Wales for the Crown, not because it was empty of aborigines but because “we never saw one inch of cultivated land in the whole country”. Title could therefore rest on “discovery”, or vacuum domicilium. Title could not be claimed so easily in New Zealand lands, in which both settlement and cultivation was so evident. The trouble was that property rights among the Maori were insufficiently individuated and absolute. James Busby, the British Resident, allowed in 1835 that —
As far as has been ascertained every acre of land in this country is appropriated among the different tribes; and every individual in the tribe has a distinct interest in the property; although his possession may not always be separately defined.1
Claudia Orange, The Treaty of Waitangi (Wellington, 1987), p. 38.
As in New England, setting land loose onto the market was complicated by communal claims upon property. In comparison with their American forerunners, the Maoris were fortunate in that by the time of colonisation the procedures under which the “Pakeha” settlers appropriated land were a little more scrupulous. The Maoris were also numerous and formidable at war. The Treaty of Waitangi (1840) was the most serious attempt made to match capitalist and communal notions of property in land, and the complexity of this task is witnessed by the fact that arguments as to the treaty’s interpretation occupy a central place in New Zealand’s political life to this day.
But while it was possible for the colonial power to draw up treaties with native nations or tribes (as was done also in many North American cases), it was a different matter when rights to property in land came to be cashed in law. How could land be loosed for the market when even a hupa, or sub-tribe, might share among hundreds of persons communal rights in land? A solution must either be political and sociological or it must be legal. As to the first, it was necessary to bring about —
The detribalization of the Natives — to destroy, if it were possible, the principle of communism which ran through the whole of their institutions. . . and which stood as a barrier in the way of all attempts to amalgamate the Native race into our own social and political system.2
Henry Sewell in New Zealand Parliamentary Debates, 9 (1870), p. 361: see Keith Sorrenson, “Maori and Pakeha”, in W. H. Oliver (ed.), The Oxford History of New Zealand (Oxford, 1981), p. 189.
As to the second, New Zealand law attempted to deal with it under the Native Land Act of 1865 whose aim was to assimilate native rights to land “as nearly as possible to the ownership of land according to British law”. Since British law could never recognise a communist legal personality, section 23 of the Act ordered that communal rights could not be vested in more than ten persons. A Maori witness testified: “When the Crown agent was ordered, the Court told us to go outside to arrange whose names should be in. We went outside — perhaps one hundred of us. We picked those who were to be in the grant.” This fraudulent device was then pleaded as “according to Maori custom”.1
See D. Williams, “The Recognition of ‘Native Custom’ in Tanganyika and New Zealand — Legal Pluralism or Monocultural Imposition?” in Sack and Minchin (eds.), Legal Pluralism (Canberra Law Workshop, VII, ANV, 1985), pp. 139-54: a lucid and helpful study.
The notion of absolute property in land which triumphed in England in the late eighteenth century had both a legal and a political aspect. Property in land required a landowner, improving the land required labour, and therefore subduing the earth required also subduing the labouring poor. As Lord Goderich, the Colonial Secretary, remarked in 1831 (with reference to Upper Canada):
Without some division of labour, without a class of persons willing to work for wages, how can society be prevented from falling into a state of almost primitive rudeness, and how are the comforts and refinements of civilized life to be procured?2
Cited by Bryan D. Palmer, in “Social Formation and Class Formation in North America, 1800-1900”, Proletarianization and Family History (1984).
Hence property-plus-improvement required the model of the local property-owner in whose nexus were combined economic, social, and perhaps judicial authority over his labourers, on the model of the English country gentleman (and perhaps JP).
The most ambitious projects to transpose both the law of property and the sociological model of a landowner into an alien context were the succession of land settlements imposed by British administrators upon India. The earliest of these — the Permanent Settlement of Bengal — offers a paradigm of the mind-set which has been my theme. Although the Settlement finally took form in the proclamation of Lord Cornwallis, the Governor General (22 March 1793), it had, as Ranajit Guha has shown, a long prehistory.3 Proposals of mercantilist, physiocrat and of Smithian political economists alike all agreed in the need to establish security of property, and all converged upon a solution which would vest these permanent property rights in the zemindars. Alexander Dow, the author of The History of Hindostan (1768) doubted the supposed zemindary title to property-rights. Land (in his view) was owned by the “Crown” or Moghul emperor, and while granted to the zemindars — who in effect were civil and administrative officers of the empire and collectors and guarantors of revenue — it could not be said to be owned, absolutely and exclusively, by them. In theory at least the grant could be revoked. Nevertheless Dow favoured the settlement of the land upon the zemindars, as an alternative to the corrupt and oppressive system of “farming” out the revenues (which many observers believed had contributed to the terrible famine of 1770). “An established idea of property is the source of all industry among individuals, and, of course, the foundation of public prosperity.”
In the next page or two I have drawn heavily upon Ranajit Guha, A Rule of Property for Bengal (Paris, 1963), and also R. B. Ramsbotham, Studies in the Land Revenue: History of Bengal 1769-87 (Oxford, 1926).
This argument derived title to land from the real or presumed grant from the Moghul power to the East India Company, along with the revenues attached to the land. Philip Francis — perhaps because he felt that this title was insecure — disputed the “erroneous opinion” that in the Moghul empire the governing power had been proprietor of the soil. He preferred to exalt zemindary proprietary rights, and cited as proof “the inheritable quality of the lands”. In this he mistook the heritable character of zemindary office — to manage the lands and collect their revenue — for the ownership of the lands. And if Francis had reflected there were plenty of examples of heritable rights and claims over land, which fell far short of absolute property, acknowledged in English law: the most common being copyhold.
One need not be a specialist in the complexities of South Asian agrarian systems to see that these disputants were trying to compress their features into a modernising — or “improving” — English mask. With the English landowner and JP in his mind, Francis wrote that “zemindars are or ought to be the instruments of government in almost every branch of the civil administration”. He even compared the zemindar to the Lord of the Manor. Once a Bengal gentry had been established, then the rest of the desired sociological model could hang from that — “those intermediate gradations of rank, authority and responsibility, by which all great civil societies are held together”, and formed into “successive ranks of subordination”.1 This also was a part of the accepted rhetoric of all British parties. Amongst these voices, only that of Warren Hastings and his close circle — the very people whom the improvers indicted as bandits and parasites enriching themselves by farming out the Company’s revenues — suggested settling the land upon the ryots, the actual cultivators. It is probable that Hastings was making a debating-point and was not serious.
