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Property, territory, and colonialism: an international legal history of enclosure

  • Henry Jones (a1)

Abstract

This paper is concerned with how law organises and controls space. It offers a new history of enclosure in the context of early English colonialism. By drawing this connection, the paper opens up new lines of enquiry into how law organises and produces space at both the domestic and international scale.

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Footnotes

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Versions of this article were presented at the Association of American Geographers Annual Meeting 2015; Law and the Resources of Critique, Kent 2015; the IGLP Workshop, Madrid 2016; Bristol Law School Law and Regulation Primary Unit 2016; and at Melbourne Law School Institute for International Law and the Humanities 2017. I would like to thank all participants on those occasions, as well as Jane Rooney, Aoife O'Donoghue and Sean Thomas for reading later drafts, and several anonymous reviewers along the way. All errors remain my own.

Footnotes

References

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1 Quinn, D et al. New American World: A Documentary History of North America to 1612 vol III (New York: Arno Press, 1979) pp 267268.

2 A first-hand account of the Newfoundland expedition is found in E Hayes ‘Sir Humphry Gilbert's voyage to Newfoundland’, originally published as part of R Hakluyt The Principal Navigations, Voyages and Discoveries of the English Nation (1589) and available online at www.gutenberg.org/ebooks/3338.

3 See for example Graham, N Lawscape (London: Routledge, 2010); Philippopoulos-Mihalopoulos, A Spatial Justice (London: Routledge, 2014); Keenan, S Subversive Property (London: Routledge, 2015) Barr, O Jurisprudence of Movement (London: Routledge, 2016) and the special issue 7(2) Law, Culture and the Humanities (2011). This work makes a distinctive legal theory contribution over and above the longer standing work of legal geography. For a recent statement of this field see Braverman, I et al. The Expanding Spaces of Law (Redwood CA: Stanford Law Books, 2014)

4 Koskenniemi's, M The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001) inaugurated the turn to history as method in international law, but see also Galindo, GRBMartti Koskenniemi and the historiographical turn in international law’ (2005) 16 European Journal of International Law 539; Anghie, A Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2008); Craven, M, Fitzmaurice, M, and Vogiatzi, M (eds) Time, History and International Law (Leiden: Martinus Nijhoff Publishers, 2007); Fassbender, B and Peters, A (eds) The Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012); and for a recent critical reflection on the turn to history see Orford, AInternational law and the limits of history’ in Werner, W, Galán, A and de Hoon, M (eds) The Law of International Lawyers: Reading Martti Koskenniemi (Cambridge: Cambridge University Press, 2017).

5 Wood, EM The Origin of Capitalism: A Longer View (London: Verso, 2002) is the leading account of the transition debate, offering both summaries of academic positions and a powerful and original argument.

6 Ibid, p 8.

7 Polanyi, K The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon, 2001) p 38.

8 Marx, K Capital Volume I (London: Penguin Classics, 1990) p 871.

9 Ibid, p 875.

10 Polanyi, above n 7, pp 40–41.

11 Wood, above n 5.

12 Ibid, particularly ch 5 ‘The agrarian origin of capitalism’.

13 Colonialism is a specific form of imperialism, which did more than simply extract wealth from conquered places, but restructured economies and joined them into a market with the imperial centre. It is the formal structures of political and legal rule which, after they are removed, differentiate colonialism from an ongoing imperialism. See further eg Loomba, A Colonialism/Postcolonialism (London: Routledge, 2005).

14 Ince, O UlasPrimitive accumulation, new enclosures, and global land grabs: a theoretical intervention’ (2014) 79 Rural Sociology 108. See also Ince, O Ulas Colonial Capitalism and the Dilemmas of Liberalism: Economy and Ideology in Imperial Britain (Oxford: Oxford University Press, 2018).

15 Ulas Ince (2014), above n 14 at 110–114.

16 Marx, above n 8.

17 Pottage, AThe measure of land’ (1994) 57 Modern Law Review 363.

18 Ibid, at 364–365.

19 Ibid, at 370.

20 Pike, DThe utopian dreams of Adelaide's founders’ as quoted in Carter, P The Road to Botany Bay (New York: Knopf, 1988) p 202.

21 Carter, P The Road to Botany Bay (New York: Knopf, 1988) p 202.

22 Ibid, pp 211–214.

23 Bhandar, BTitle by registration: instituting modern property law and creating racial value in the settler colony’ (2015) 42 Journal of Law and Society 257.

24 On the connection of law, property and race, see Bhandar, BProperty, law, and race: modes of abstraction’ (2014) 4 UC Irvine Law Review 203.

25 Bhandar, above n 23.

26 This is waste as a concept running throughout the enclosure movement, rather than just the specific category of waste in land law. For more on waste see Neocleous, MWar on waste: law, original accumulation, and the violence of capital’ (2012) 75 Science & Society 506; Bauman, Z Modernity and Ambivalence (Cambridge: Polity Press, 1991) ch 1.

27 For a survey of this history, with an American focus, see J Fraley ‘A new history of waste law: how a misunderstood doctrine shaped ideas about the transformation of law’ Washington & Lee Legal Studies Paper No 2015 (October 2015).

28 Pottage, above n 17. See also Baker, JH An Introduction to English Legal History (Oxford: Oxford University Press, 2007) ch 13 for discussion of feudal ownership, and for example the first part of Coke's Institutes, Coke, E Coke on Littleton (London: Saunders & Benning, 1830) which repeatedly stresses the use of land rather than ownership.

29 Key works include Anghie, A Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007); Craven, M The Decolonisation of International Law (Oxford: Oxford University Press, 2007); Orford, A International Authority and the Responsibility to Protect (Cambridge: Cambridge University Press, 2011); Pahuja, S Decolonising International Law (Cambridge: Cambridge University Press, 2011); see also Fassbender, B and Peters, A (eds) Oxford Handbook of the History of International Law (Oxford: Oxford University Press, 2012).

30 Koskenniemi, MExpanding histories of international law’ (2016) American Journal of Legal History 104.

31 Elden, S The Birth of Territory (Chicago: University of Chicago Press 2012) p 322.

32 Blomley, NThe territory of property law’ (2015) Progress in Human Geography 3.

33 See Davies, M Property (London: Routledge, 2007).

34 The de-thingification of property, and the bundle of rights concept of property, was a project of American legal realism, see Hohfeld, WNFundamental legal conceptions as applied in judicial reasoning’ (1917) 26 Yale Law Journal 710; Radin, MA restatement of Hohfeld’ (1938) 51 Harvard Law Review 1141; a good summary of and response to this tradition can be found in Smith, HEProperty as the law of things’ (2012) 125 Harvard Law Review 1691. For a history of this legal development as connected to capitalism's need of a more complex and abstract account of property, see Vandevelde, KJThe new property of the nineteenth century’ (1980) Buffalo Law Review 325.

35 Blackstone, W Commentaries on the Laws of England Book 2 (Liberty Fund 2011) p 2.

36 Blomley, above n 32, at 4.

37 Brighenti, AOn territory as relationship and law as territory’ (2006) 21 Canadian Journal of Law and Society 65 at 75.

38 Blomley, above n 32, at 3.

39 See Cohen, GA Self-Ownership, Freedom, Equality (Cambridge: Cambridge University Press, 1995).

40 Graham, above n 3.

41 J Bentham An Introduction to the Principles of Morals and Legislation as discussed in Macpherson, CBCapitalism and the changing concept of property’ in Kamenka, E and Neale, RS (eds) Feudalism, Capitalism and Beyond (Edward Arnold, 1975).

42 On the conflict between property law and environmentalism, particularly in the US context, see Freyfogle, E A Good that Transcends (Chicago: University of Chicago Press, 2017).

43 Essential histories on this period include Hill, C The English Revolution 1640 (London: Lawrence and Wishart, 1940); Braudel, F Civilisation and Capitalism vol 1 (London: Collins, 1981) and Thirsk, J (ed) The Agrarian History of England vol 3 (Cambridge: Cambridge University Press, 1967).

44 Thirsk, J Rural Economy of England (London: Bloomsbury, 2003) p 72.

45 Polanyi, above n 7, pp 39–41.

46 Marx, above n 8, p 896.

47 Seipp, DThe concept of property in the early common law’ (1994) Law and History Review 29.

48 Ibid, at 86.

49 In theory, because the practice leading up to the conceptual shifting of land into property is filled with examples which don't fit the theory.

50 Seipp, above n 47, at 87.

51 Ibid. See more generally MacFarlane, A The Origins of English Individualism: The Family, Property and Social Transition (Oxford: Blackwell, 1978).

52 Elden, above n 31.

53 Seipp, above n 47.

54 Ibid, at 80–81.

55 Ibid, at 84–85.

56 MacMillan, K Sovereignty and Possession in the English New World (Cambridge: Cambridge University Press, 2006).

57 Dee, J The Limits of the British Empire (New York: Praeger, Ken MacMillan ed, 2004).

58 This story of welsh discovery of North America still had vitality into the nineteenth century, inspiring Missouri explorer John Evans to look for welsh speaking Native Americans in his early voyages, which in turn informed the expeditions of Lewis and Clark.

59 Dee, above n 57, p 48.

60 Ibid, p 49.

61 Ibid.

62 MacMillan, above n 56, p 63.

63 See Oxford Dictionary of National Biography entry for Humphrey Gilbert.

64 These texts are a focus of Foucault's lectures collected together in Foucault, M Society Must be Defended (London: Penguin, 2004). For example, he reads English history from 1066 into the seventeenth century as coded by a race war between Saxons and Normans.

65 Carty, A Was Ireland Conquered? International Law and the Irish Question (London: Pluto Press, 1996).

66 Ibid, pp 32–35.

67 Jones, AR and Stallybrass, PDismantling Irena: the sexualizing of Ireland in early modern England’ in Parker, Andrew et al. (eds) Nationalisms and Sexualities (London: Routledge, 1992).

68 Spenser, EA view of the present state of Ireland’ in Morris, R (ed) The Works of Edmund Spenser (London: Macmillan, 1899) p 625.

69 Thomas Churchyard ‘The unquietness of Ireland’ as cited in Jones and Stallybrass, above n 67, p 161.

70 Ibid.

71 Ibid, p 164.

72 Wood, above n 5, p 154.

73 Ellis, S Ireland in the Age of the Tudors, 1447–1603 (London: Longman, 1998) as quoted in Jones and Stallybrass, above n 67, p 155.

74 Bendle, S (ed) Dictionary of Land Surveyors and Local Mapmakers of Great Britain and Ireland (London: British Library, 1997).

75 Pottage, above n 17, at 365–356. See also Linklater, A Measuring America (London: Walker Books, 2002) pp 1718.

76 Linklater, above n 75, particularly pp 23–25.

77 The classic account of Cromwell in Ireland is Pendergast, JP The Cromwellian Settlement of Ireland (London: PM Haverty, 1868), whose estimate is as high as 80%; a more recent account, Siochrú, M Ó God's Executioner: Oliver Cromwell and the Conquest of Ireland (London: Faber & Faber, 2008) estimates at between 30–40%. The Down Survey itself gave a figure of 25% (see http://downsurvey.tcd.ie/index.html). This figure is debated in recent revisionist histories such as Reilly, T Cromwell: An Honourable Enemy – The Untold Story of the Cromwellian Invasion of Ireland (W&N, 2000).

78 For example Wood gives him this title, Wood, above n 5, p 113.

79 For an account of Petty's life, see Linklater, A Owning the Earth (London: Bloomsbury, 2013) ch 4. For Petty's works, see Hutchinson, T (ed) The Collected Works of Sir William Petty (London: Routledge, 1997). The Down Survey can be viewed, with much commentary and interactivity, at the Trinity College Dublin Down Survey website: see http://downsurvey.tcd.ie/index.html.

80 For a brief account of the life of William Petty see his entry in the Oxford Dictionary of National Biography. For a more detailed account see Fitzmaurice, E The Life of Sir William Petty (London: J Murray, 1895).

81 Hutchinson, above n 79.

82 On Petty in Ireland see Harris, FIreland as a laboratory: the archive of Sir William Petty’ in Hunter, M (ed) Archives of the Scientific Revolution (Woodbridge: Boydall Press, 1998).

83 Wood cites the work of Petty and Locke as the most obvious place to see the connection between English colonialism and English capitalism: Wood, above n 5, p 162.

84 A digital version of the charter can be found at http://avalon.law.yale.edu/17th_century/nc01.asp (Yale Law Library).

85 MacMillan above n 56, p 97. The Prince-Bishops of Durham ruled the County Palatinate of Durham with local powers equivalent to that of the King, including taxation and separate courts. Durham did not send representatives to parliament until 1654, and retained its Palatinate status until the 1836 Durham (County Palatinate) Act.

86 Nelson, WE The Common Law in Colonial America vol 2 (Oxford: Oxford University Press, 2013) p 61.

87 Ibid, pp 62–63.

88 These letters are collected together in The Shaftesbury Papers: Collection of the South Carolina Historical Society (Columbia SC: University of South Carolina Press, 2000).

89 Letter from Lord Ashley to Sir Jo, Yeamans, 18 September 1671, in ibid, p 342.

90 Fundamental Constitutions of Carolina, Arts 112–113.

91 Nelson, above n 86, p 64.

92 Locke, J Two Treatises on Government (Cambridge: Cambridge University Press, Laslett, Peter ed, 1960).

93 See in particular: Tully, J An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993); Arneil, B John Locke and America (Oxford: Oxford University Press, 1996); Tuck, R The Rights of War and Peace (Oxford: Oxford University Press, 2001).

94 Locke, above n 92, p 301.

95 Kramer, M John Locke and the Origins of Private Property (Cambridge: Cambridge University Press, 1997) p 9.

96 Locke, above n 92, pp 296–297.

97 Ibid, p 294, referring to ‘wild Fruit, killed, caught, or tamed … beasts’.

98 Ibid, p 296. Locke finds European cultivation 1000 times more valuable than the wilds of America, at p 298; and at p 299 explains that Europe no has no natural and common land, due to industriousness and money, whereas American common land lays waste. At p 301 he explains that 100-thousand acres in inland America cannot be owned as there is no money to be drawn to it, and so it would return to nature.

99 Tully, above n 93, p 156.

100 For example, Macpherson, CB The Political Theory of Possessive Individualism (Clarendon Press, 1962) pp 221238.

101 Tully calls this a mistake: Tully, above n 93, pp 160–162, continuing his challenge to Macpherson and others.

102 Locke above n 92, p 301.

103 Ibid, p 289.

104 Wood, above n 5, p 113.

105 Ibid, p 113.

106 Elton, GR The Tudor Constitution: Documents and Commentary (Cambridge: Cambridge University Press, 1982) pp 378394.

107 Hoskins, WG The Making of the English Landscape (London: Hodder & Stoughton, 1988) p 145.

108 Graham, above n 3, at 63.

109 Hoskins, above n 107.

110 The publication emblematic of this change is W Blith The English Improver Improved (printed by John Wright 1653). For a good recent history of improvement see Slack, P The Invention of Improvement (Oxford: Oxford University Press, 2015).

111 Graham, above n 3, pp 58–59.

112 Ibid, p 60.

113 Thomas More Utopia (Stephen Duncombe ed, Minor Compositions 2012) pp 43–44.

114 Polanyi, above n 7, p 37.

115 Hill, C The World Turned Upside Down: Radical Ideas During the English Revolution (London: Penguin, 1991).

116 Pottage above n 17, at 376.

117 Seymour, WA A History of the Ordnance Survey (London: Dawson, 1980).

118 Bhandar, above n 24.

119 Ibid, at 218.

120 Dorsett, S and McVeigh, S Jurisdiction (London: Routledge, 2012).

121 Ibid, p 39.

122 Ibid, p 98.

123 A tentative spatial turn in international law is seen in research such as Bethlehem, DThe end of geography’ (2014) 25 European Journal of International Law 9; D'Arcus, BExtraordinary rendition, law and the spatial architecture of rights’ (2014) 13 ACME 79; Landauer, CRegionalism, geography, and the international legal imagination’ (2011) 11 Chicago Journal of International Law 557; Pearson, ZSpaces of international law’ (2008) 17 Griffith Law Review 489; Mahmud, TGeography and international law: towards a postcolonial mapping’ (2007) 5 Santa Clara Journal of International Law 525; Carmalt, JCRights and place: using geography in human rights work’ (2007) 29 Human Rights Quarterly 68. See also the debate in (2014) 25(1) European Journal of International Law 9. This can be situated as part of both a spatial turn in legal scholarship, and a growing interdisciplinary engagement between law and geography: see Philippopoulos-Mihalopoulos, above n 3, and Braverman, above n 3.

124 Bentham, J Theory of Legislation (London: Kegan Paul, 1931) p 113.

Versions of this article were presented at the Association of American Geographers Annual Meeting 2015; Law and the Resources of Critique, Kent 2015; the IGLP Workshop, Madrid 2016; Bristol Law School Law and Regulation Primary Unit 2016; and at Melbourne Law School Institute for International Law and the Humanities 2017. I would like to thank all participants on those occasions, as well as Jane Rooney, Aoife O'Donoghue and Sean Thomas for reading later drafts, and several anonymous reviewers along the way. All errors remain my own.

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Property, territory, and colonialism: an international legal history of enclosure

  • Henry Jones (a1)

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