Land and Freedom

Law, Property Rights and the British Diaspora

Andrew Buck, John McLaren, Nancy Wright, Andrew Buck, John McLaren, Nancy Wright

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000152234
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto sulla proprietà

Conflicts caused by competing concepts of property are the subject of this book that reshapes study of the relationship between law and society in Australasia and North America. Chapters analyse decisions made by governments and courts upon questions of policy and law in terms of their consequences for rights and models of personhood. Late twentieth-century decisions concerning native title in Canada and Australia demonstrate the relevance of historical case studies of communal and fee-simple land holding in colonial and post-colonial societies. An international team of contributors draw on their experience from a wide range of disciplinary backgrounds and jurisdictions.

Part One
Origins

Introduction

A.R. BUCK, JOHN McLAREN AND NANCY E. WRIGHT

The modem liberal idea of individual property rights is just that – modem. Preceding ideas associated with feudal property relations placed significant impediments on the treatment of property as a commodity. During the turmoil of the English civil war, however, an opportunity was created for discussion and debate about alternative concepts of property, political order and sovereignty. It is for this reason that the Putney Debates of 1647, when the rights of property and popular sovereignty were debated, loom so large in Anglo-American political and constitutional thought. During the 1640s and 1650s, in particular, popular debate, articulated in pamphlet literature and expressed through the activities of radical religious sects such as the Diggers, posed fundamental questions about the relationship between property, dominion and freedom. Radical discourse about property was to fade, although not to disappear, as apologists of the commodification and exploitation of property gained ascendancy during the Restoration and consolidated their position with the Glorious Revolution of 1688. In the seventeenth century, when John Locke articulated his theory of property in England, investors and colonists were raising questions that linger to the present day about the property rights of indigenous peoples in Virginia and other New World colonies. In order to understand the contours of contemporary debates over property and sovereignty it is necessary, therefore, to examine the origins of the modem liberal idea of property, together with its discontents.

In chapter one, Laura Brace studies how improvement discourse, during debates about enclosing the commons, informed attitudes towards property, ownership and society in early modern England. In improvement discourse, the commons were wastelands not employed to their full potential and, consequently, labour upon them, that neither effectively improved nor appropriated land, was wasted. Those advocating improvement promoted a particular mode of ownership and control based on the assumption that the land’s potential for investment and sustainable productivity would reestablish humankind’s original dominion over nature. According to writers such as Walter Blith and Richard Steele, improvement was a tremendous project requiring human labour to convert desert wastelands into cultivated and habitable fields. Only by labouring to improve the land, could humans become capable of appropriating nature as property, according to seventeenth-century writers promoting improvement. These ideas were later to inform the doctrine of terra nullius applied to the frontier lands of the British diaspora, as explained in later chapters.

Brace’s analysis of tracts and pamphlets reveals that improvement in seventeenth-century England was subjected to debate. Challenges to improvement and enclosure criticised the concept of ownership. The defence of the common lands involved a concept of stewardship: the land was only entrusted to humankind, who communally worked it as God’s stewards without individual rights of ownership. Whereas improvers argued individual labour justified appropriation of property, their opponents argued that the land’s benefits were a common resource intended to benefit all, especially the poor. Winstanley and John Moore questioned the rhetoric of improvement, particularly when applied to the poor who, in improvement tracts, are viewed as a resource to be owned and deployed on projects determined by others. These ideas, a subsequent chapter by Wright and Buck explains, would be applied not only to the unemployed and working class but also to the indigenous people of Australia in the nineteenth century. Brace’s chapter reveals one origin of the attitudes towards property, referred to throughout this volume.

1 Husbanding the Earth and Hedging out the Poor

LAURA BRACE

Introduction

This chapter explores the idea of improvement and how it affected attitudes towards property and ownership in the mid-seventeenth century. I want to present improvement as a contested concept, subject to debates and disputes which reveal a great deal about the development of the idea of private property. The discourse of improvement rested on a particular mode of ownership and control which regarded land as having the potential for investment, sustainable productivity and are-establishment of people’s original dominion over nature. To exploit this potential and to be improved, land required labour and careful husbandry.

The chapter reaches conclusions about the complexity and contestability of notions of property. It also explores some of the ways in which nature was converted into property and the labour of the poor into the property of others. Modem feminist literature describes a process of transition from pre-Enlightenment ideologies which treated nature as nurturer to Enlightenment ideologies which treated nature as a resource. This chapter seeks to complicate this picture by taking seriously contemporary challenges to improvement and enclosure, highlighting the contests and debates around treating nature as a resource, and the resistance of the poor to being transformed into a labour force.

Improvement and Ingenuity

Improvement helps to make the ‘vital connection’ between the context of ideology and the historical context of society, politics and economy (Wood, 1984, p. 11). This chapter draws on the works of improvers who were almost evangelical in their commitment to their projects; the pamphlets of ministers who recognised this reforming zeal and tried to harness it, and the writings of those who opposed improvement and enclosure. Husbandry literature was concerned with practical purposes, and written for a readership of landowners who were also employed in government, for example as Justices of the Peace. The writers followed a set of self-imposed rules – their books should be cheap, straightforwardly written, and any suggestions they made should be based on experiment (Worlidge, 1677, Preface, p. viii). They were engaged in a practical enterprise that reflected a changing ideology and which provides an opportunity to explore shifting notions of property and ownership. It was not a unitary doctrine, and the different strands and emphases within it reveal conflicting visions of the market, the public good and of God’s purposes for mankind. Improvement created a shared but contested public agenda.

For the improvers, the notion of improvement was fundamental to God’s intentions for the earth and for mankind. It was part of the story of the creation. God appeared throughout the literature as the great or mystical husbandman who created the pattern for all subsequent improvement of chaos. He made all creatures, plants, fruits, trees and herbs serviceable to mankind who was expressly created ‘to husbandize the fruits of the earth’ (Blith, 1649, p. 4). All other callings were supplementary. Husbandry had a special status because it was ordained by God, and because it worked directly and dynamically on the earth itself: ‘the Earth being the very wombe that bears all, and the Mother that must nourish and maintain all’ (Blith, 1649, p. 6). Those involved in husbandry and improvement felt themselves engaged in a tremendous project to convert the desolate wastes into fruitful fields, and the wilderness into comfortable habitations. Wild and vacant wastelands were regarded Tike a deformed Chaos’ which brought discredit to the commonwealth (Waste Land’s Improvement, 1653, p. 2). Improvement connected men to the earth, and at the same time provided them with a way out of a chaotic state of nature. Their creativity and productivity turned the genesis into acontinuing process of transformation. Through their language of the earth as a womb, and the importance of sowing the husbandman’s seed the writers reflected on the intimate connections between productivity, reproduction and virtue: ‘And he that can trust his Seed in the bosome of the Earth, can trust his Charity in the hands of God’ (Steele, 1668, p. 149).

Anne Runyan argues that it is possible to identify two competing paradigms of nature/woman as nurturer versus nature/woman as resource. She characterises the nature as nurturer paradigm as ‘pre-Enlightenment organicism’ which relied on a conception of matter as a passive female awaiting the generative qualities of the male, a cosmology which saw ‘... the male heavens raining down semen on the female earth to set the workings of nature in motion’ (1992, p. 125). She stresses the passivity of the earth within this conception which created the necessary conditions for anideology of nature as resource, sanctioning the exploitation and domination of both women and the natural world. The idea of improvement complicates what happened to the natural and how it came to be entangled with private property. It constructs an intermediate stage where the earth was revered as both a womb and a nurturing mother. It was not regarded as entirely passive: it could be entrusted with men’s most treasured possessions and invested with his generative capacities, but it also required his seed, not just raining down, but carefully cultivated. Improvement contained the possibility of treating the earth and the labour of the poor as a resource, but we need to recognise that in the 1650s it was only a possibility and not yet a new paradigm.

The relationship between the earth and the labour of the husbandman was mediated by the notion of the calling. Transformation of the fruits of the earth required the dedication and creativity of mankind through their calling. The husbandman’s calling was seen as a reflection of a spirit of innovation and enterprise, rather than of passive ownership. The calling became a part of his property because he had to labour on the land and cultivate his seed in order to release their full potential and true value. His calling was central to his self-definition: ‘A Husbandman is a man that works profit out of the Earth’ (Steele, 1668, p. 16). At first, this was possible without toil. In the garden of Eden, Adam laboured willingly because it was pleasant. Obedience guaranteed and confirmed his control over his natural environment. As a result of the Fall the calling had decayed, and part of the punishment was condemnation to unremitting toil. A good husbandman, however, could reverse this decay, and so mend the effects of the Fall. The ideals of husbandry, in particular penitent labour in a calling, sustained a particular vision of property and imbued it with the almostmystical power to reverse the Fall. The Christian husbandman restored Adam’s original relationship with nature. He ‘lives upon the precious fruits of the Earth, and sustains them all’ (Steele, 1668, p. 17). The husbandman’s calling thus brought spiritual rewards rather than drudgery: ‘the meanness and painfulness thereof, is fully compensated by the innocency, healthfulness and safety of it...’ (Steele, 1668, p. 198).

Their labour was regarded as innocent and healthy because of its close relationship to God and because it called for industry and ingenuity. Husbandmen required diligence and experience to ensure abundant fruitfulness and profit. Neglectwould lead trees to bear less fruit. Application and industry were the means of salvation: ‘Heaven is not gotten by sitting still, but by laboring and striving for it, in Gods way’ (Austen, 1657, p. 253). Improvement of the fruits of the earth by human ingenuity ‘is little lesse then an addition of a new world’(Blith, 1649, p. 6) gained above the natural fruitfulness of the earth. This sense of renewal was central to the improvement context, and so was the language of colonialism. Lands which appeared barren and fruitless could be transformed by husbandry. Their nature was not fixed by God. Men could, and should, act to alter them to their advantage: ‘God in his provident Creation, hath appointed helps to mans industry for their improvement’ (A. Moore, 1653, p. 16). Paradise could be regained on earth through the encouragement and dissemination of ingenuity and industry to perfect God’s natural gifts. All land was capable of such perfectibility and improvement. The discovery of new arts and methods created the greatest possible advantages. Nature had the potential to be improved by industry: ‘a deligent Operator may advance the vertue of our Earth’ (Worlidge, 1677, p. 241).

The language and the ideas evoke Locke’s emphasis on the industrious and the rational as the true beneficiaries of God’s endowment of the world. Divine grant ensured everyone had the ability to derive subsistence from the abundance of nature. Positive ownership had to involve more than mere occupation and immediate consumption. By labouring in the calling, attempting to recreate paradise and involving themselves in enriching the original creation, humans became uniquely capable of appropriation. This particular vision of appropriation relied on a conception of the earth as both nurturer and potential resource. Improvement and human labour were the mechanisms by which the husbandmen could ‘create the specifically human environment of their lives’ (Rapaczynski, 1987, p. 186). The concern for production and productivity became a self-sustaining process which created and recreated value as a result of human activity. The essential creativity of labour, and especially of improving labour, was rooted in the initiative which it both expressed and reinforced.

The improvers’ discourse was founded on the direct, non-mediated relation between the husbandman and the earth itself. They emphasised the importance of labour not for immediate returns, but for the cumulative transformation of nature, of society and of the commonwealth. For them, all men were primarily producers rather than consumers, and it was this productivity which forged a cumulative relationship with nature. The only limitations were imposed by the industriousness and ingenuity of the labourer. Locke’s spoilage limitation could be applied to labour as the real gift of Godto man. It should not be wasted on appropriation which did not create genuine improvement. Waste of labour and productivity was perceived as a national problem, and improvement as...