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Open Field or Enclosure? Peasants, Planters’ Agents and Lawyers in Jamaica, 1866–18751

  • Simon Stevenson (a1)


The fencing of boundaries so as to confine or exclude cattle was a major preoccupation in the most densely populated parishes of Jamaica in the mid nineteenth century. Part-time labourers (who constituted a new semi-peasantry) were being settled on the fringes of the old estates in increasing numbers, having been granted licenses or pretended leases for land on which they grew their crops. The same ‘attorneys’ who managed the older declining plantations where such squatting was arranged also tended to be introducing cattle in place of sugar and they wished to shift the costs of fencing onto their small ‘peasant’ occupiers. However, English law, which imposed an obligation to fence in cattle, initially assisted the peasantry. The attorneys therefore looked to New World models that would require those growing crops to fence out animals. This article examines actions in court and the agitation in more detail so as to suggest that fencing was a major source of inter-racial friction in the period before and after the Morant Bay rebellion, but with the outcome strongly favouring a late-century resurgence in the plantation economy.



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2. References to more detailed works on Jamaican political, economic and social history appear throughout the notes to this article but for the reader who wants a survey including the colonial context, an introductory comparative text is available in T. C. Holt, The Problem of Freedom: Race, Labour, and Politics in Jamaica and Britain, 1832–1938 (Baltimore, 1992). For those who also come to the subject of this article without any English economic history, introductions to the subject of enclosure may be found in two books published in 1977: J. A. Yelling, Common Field and Enclosure in England and W. E. Tate, The English Village Community and the Enclosure Movements.

3. See for example the recent special issue of The Jamaican Historical. Review on the Morant Bay rebellion, 19 (1996). The most recent treatment in monograph form has been that by Heuman, Gad J., “The Killing Time”: The Morant Bay Rebellion in Jamaica (London, 1994). The starting point must remain the Report of the Royal Commission and the accompanying Papers: Jamaica Disturbances: Papers laid before the Royal Commission of Inquiry by Governor Eyre [3682], [3683] in the British Parliamentary Papers 1866, xiv; and the Minutes of Evidence and Appendix to the Report of the Jamaica Royal Commission, 1866 [3683–1], in Parliamentary Papers, 1866, xxxi.

4. Chutkan, Noelle, ‘The Administration of Justice in Jamaica as a contributing factor in the Morant Bay rebellion of 1865’, Savacou, 11/12 (1975), reprinted in The Jamaican Historical Revieiu, 19 (1996) 9–16 (with notes at 63–64). In 1866 the Quaker commentators Thomas Harvey and William Brewin put reform of the legal system first, second and sixth among a list of ten recommendations for change: Jamaica in 1866: a Narrative of a Tour through the Whole Island (London, 1867), pp. 76–7.

5. Heuman, The Killing Time pp. 49 and 53.

6. Use of the term ‘attorneys’ does not imply that these plantation managers were themselves lawyers, even if they were very often J.P.s. The term ‘attorney’ was used because the managers so often stood in the place of the absentee owners who had either long since returned to England or had never set foot in the colony. The managers had, in other words, been granted a legal power of discretionary management: ‘a power of attorney’. From this had come the abbreviation: ‘attorneys’.

7. Particularly Mauritius, where cheaper Indian indentured labour was to be employed, as was also attempted with less success in Jamaica. See note 15 below.

8. By far the most statistically-detailed overview of Jamaican economic history remains that by Gisella Eisner, Jamaica 1830–1930: A Study in Economic Growth (Manchester, 1961). Among more recent writers, Veront Satchell bids most fair to continue this line of quantitative investigation in Jamaican history, particularly its local variations. See notes 17 and 18, below.

9. As Lord Burnham explains in a Preface to Cook's Jamaica: Lodestone of the Caribbean (Bristol, 1924), at p. 8, the historical parallels with England seem obvious even if one starts only with the English placenames superimposed on the Jamaican landscape from the 1660s. As regards the otherwise alien terminology, Burnham briefly explains that ‘The Great House is the manor-house of our own counties; the “pen” is the demesne land; the court-house is the town hall; … The peasants are the labouring poor and the allotment-holders of an English village.’ Higman, however, would no doubt elaborate to the effect that pens were not necessarily to be seen as demesne land, but were always commercial ventures specifically devoted to cattle breeding. The term ‘pen’ he traces back to the eighteenth century. Higman, Barry, ‘The Internal Economy of Jamaican Pens, 1760–1890’, in Social and Economic Studies 38, 1 (1989), 63–4.

10. Higman notes that there were usually more small fields in the pens than there were in the sugar plantations; ibid., 80. It should also be stressed that the enclosure with which we are concerned in this article is that of lands settled by the peasants – whether as freeholders, renters or squatters.

11. Not that the pen managers thought 1s. 6d. was little reward: more akin to ‘a day's wages’. See also note 39, below.

12. , Holt, The Problem of Freedom, pp. 156, 160 and 163.

13. Holt's symbiotic view is summarised as follows - but may be said to relate principally to the first wave in the development of peasant freeholds of under 50 acres, that is in the post-apprenticeship years 1838–45. Holt sees these peasants as having ‘sought out areas for settlement where they could combine market gardening with wage labour; and [such] … peasant proprietors moved quickly into the production of export as well as subsistence crops … [with] outlets into local and interregional trade.’ ibid., Holt's symbiotic view is summarised as follows - but may be said to relate principally to the first wave in the development of peasant freeholds of under 50 acres, that is in the post-apprenticeship years 1838–45. Holt sees these peasants as having ‘sought out areas for settlement where they could combine market gardening with wage labour; and [such] … peasant proprietors moved quickly into the production of export as well as subsistence crops … [with] outlets into local and interregional trade.’ ibid., p. 156.

14. See, generally, Williams, Glanville, Liability for Animals: An Account of the Development and Present Law in Great Britain, Northern Ireland and the Common-law Dominions (Cambridge, 1939), pp. 214231. Williams did not deal directly with the West Indian colonies because these were not seen as responsible, self-governing entities. Nonetheless, the comparative picture is clear. In 1861 Queensland became the first colonial government to break with the common-law tradition by introducing a statute to enforce a rule of fencing out. By that means the proprietor who had not adequately fenced his property could not claim against the cattle owner whose cattle strayed onto his arable land. Queensland was early. Most governments in the colonies of white emigration did not reverse the common-law tradition until the turn of the twentieth century. Of course, it is not just animals which the English common law disliked to see escape from one neighbouring close to another, but anything dangerous, involving a ‘non-natural’ user of land. On the contemporary case of Rylands v Fletcher (1868) seeSimpson, A. W. B., Leading Cases in the Common Law (Oxford, 1995), pp. 195226 which, however, Simpson sees as a judgment originally developed only for dealing with the threat of bursting reservoirs and escaping water. However, Kevin Casey notes American jurisdictions adopting Rylands v Fletcher to hold fencing of land unnatural: at least where it involved barbed wire and the likelihood of cowherds riding into it: Casey, K. R., ‘The Barbed Wire Invention: An External Factor Affecting American Legal Development’, Journal of the Patent, and Trademark Office Society, 72, 5 (1990), 417451, at 440 n. 122.

15. Holt, , The Problem of Freedom, pp. 276–8.

16. On imported, indentured labour, see Brereton, B. and Dookeran, W. (eds.), East Indians in the Caribbean: Colonialism and the Struggle for Identity (New York, 1982)Green, William, ‘The West Indies and Indentured Labour Migration - the Jamaican Experience’, in Saunders, Kay (ed.), Indentured Labour in the British Empire, 1834–1920 (London, 1993), pp. 141 andLai, Walton Look, Indentured Labour, Caribbean Sugar: Chinese and Indian Migrants to the British West Indies 1838–1918 (Baltimore and London, 1993), pp. 118.

17. Holt, , The Problem of Freedom, pp. 133–7.

18. Satchell, V., ‘“Squatters or Freeholders”? The Case of the Jamaican Peasants during the Mid-19th century’, Journal, of Caribbean History, 23, 2 (1989), 166–7.

19. ibid.., Satchell, V., ‘“Squatters or Freeholders”? The Case of the Jamaican Peasants during the Mid-19th century’, Journal, of Caribbean History, 23, 2 (1989), p. 172. For Satchell's later work, see his book From Plots to Plantations: Land Transactions in Jamaica 1866–1900 (Mona, 1990), pp. 70–81 in particular.

20. Satchell, , From Plots to Plantations, pp. 7374.

21. And this circumstance might be seen, as Holt has seen it (The Problem of Freedom, pp. 320–21), as exactly analagous to that in Ireland before land purchase schemes got under way. (Whether Ireland was the earliest model for an interventionist programme in respect of land is doubted in any case see Steele, E. D., ‘Ireland and the Empire in the 1860s: Imperial Precedents for Gladstone's First Irish Land Act’, The Historical Journal, 11, 1 (1968), 6483.) Generally, seePomfret, E., The Struggle for Land in Ireland, 1800–1923 (Princeton, 1930).

22. Harvey, and Brewin, , Jamaica in 1866, p. 18. ‘Chopping’ usually involved cutting off the tail with a machete.

23. An aerial photograph of the Plantain Garden Valley, showing Hordley in the north-eastern corner, appears as Figure 4.41 in Higman, B. W., Jamaica Surveyed: Plantation Maps and Plans of the Eighteenth and Nineteenth Centuries (Mona, 1988), p. 125. A picture of a not very preposessing ‘Hordley House’ c. 1960 appears in the same on p. 127. The Harrisons' view from its deck, south across the valley at the time of the rebellion, appears overpage as an engraving taken from The Illustrated London News: Figure 4.45.

24. Minutes of Evidence … to the Report of the Jamaica Royal Commission, QQ. 2,023–2,053, pp. 45–46. Harrison was later recalled and cross-examined about punishment administered with a supple-jack. (As regards the origin of the peasants who came to attack Hordley or followed after, Harrison mentions not Smoothland but Haining, again to the north of the estate in the mountains: Q.2,056, p. 46.)

25. Harvey, and Brewin, , Jamaica in 1866, p. 19.

26. Correspondence Relating to the Trespass Law of Jamaica, presented to the Legislative Council, 1869, p. 1; Royal Commonwealth Society Library, Cambridge University Library, Item L. 273.

27. ibid., p. 3.

28. Which state Harrison was thinking of is not clear but such laws were new. Illinois actually reverted to the ‘fencing in’ rule with its ‘herd law’ of 1867, the same year that Harrison was writing, and so put the burden of fencing costs back on the owner of livestock. K. R. Casey, ‘Barbed Wire’, 444.

29. Noelle Chutkan, ‘Administration of Justice’.

30. Correspondence Relating to the Trespass Law of Jamaica, p. 38.

31. ibid.

32. The view that the Jamaican peasant was peculiarly given to delight in litigation was often repeated. Amongst recent historians, Patrick Bryan has most recently repeated the accusation, citing J. H. Reid, writing in The Jamaica Advocate of 1891 Bryan, P., The Jamaican People 1880–1902 (London, 1991), pp. 2223 ‘It is the vindictive and punitive character of the law that recommends it to the admiration of the people.’ Even the Quaker commentators Harvey and Brewin mention this feature: ‘During our stay at Chapelton we spent a short time listening to a case in the magistrates court. A young black man brought a charge of abusive language and assault against a dozen or more men and women, his neighbours … He was a man of some education and conducted his case with great vehemence and no small ability, but bearing as a result a very damaging impression of his own character. The case placed in strong relief one of the characteristic foibles of the emancipated people - a proneness to petty quarrelling and a love of litigation.’ Harvey and Brewin, Jamaica in 1866, p. 30. (Whether such prosecutions for abusive language were just a matter of ‘petty quarrelling’ must be judged by reference to the culture, one which still believed in witchcraft and the power of the curse. Such private prosecutions for abusive language were a very numerous class of cases in the courts.) For all that, there were contemporary commentators who took the opposite view - while still maintaining necessary reference to the myth. Referring to the situation in the new District Courts in the Handbook of Jamaica in 1882, for example, Chief Justice Ker denied that the black man was especially active in the courts. ‘[T]hat they are specially litigious, litigious for example in the sense in which the Hindoos gain that reputation, does not appear to me to be borne out by the facts.’

33. Holt, The Problem of Freedom, p. 156.

34. ibid., pp. 153–159.

35. For census figures, see Higman, B. W. (ed.), The Jamaican Censuses of 1844 and 1861: a New Edition (Mona, 1980) Table 6; also cited by Holt, The Problem of Freedom, p. 162.

36. Correspondence, p. 31 (3rd August 1868).

37. ibid., p. 36 (31 August 1868). One of these disputes that clearly needs to be re-evaluated is the impact of the drought that had afflicted the island since 1864. As water holes dried up, and whether cattle escaped to the holes or were lured, drought put a premium on intrusive behaviour rather than mere laxity over escape. As Moses Bravo described the behaviour of a freehold neighbour on his line: ‘as soon as the [cattle] are in, he ties the fence, and has people come to Marlie and arranges the terms of a trespass or a pro rata fee per capita — His value for water is something fabulous. Port wine is cheaper’; idem., p. 38 (8 September 1868). Shortage of water promoted violence by at least one J.P. in Westmoreland. As Harvey and Brewin describe these events: ‘A leading proprietor and magistrate, named Tait, owned a spring of water near the boundary of his estate, to which a number of negroes who had been slaves on an adjoining estate claimed right of access, which he resisted. A plentiful crop of summonses for trespass and of litigation in the magistrates’ court ensued. In the course of the strife, he, with several of his friends, laid ambush one night near the spring and fired a gun at several men who came to get water. One of these men was so seriously wounded that his life was endangered, and, if living, he will be a cripple for life. Great excitement ensued, and such speeches were heard as ‘If we can't get justice it shall be shoot for shoot.’ The magistrate was tried for feloniously shooting, and, in the face of the plainest evidence of the fact of the shooting, he was acquitted.; and as appears from evidence before the Royal Commission, it was known perfectly well beforehand that he would be acquitted. He has lost neither official nor personal standing in the parish. The popular indignation was sought to be quieted by stationing a gun-boat at Savannah-la-Mar.'; Jamaica in 1866, p. 44.

38. Although there are at least two other Spring Gardens in Jamaica, one a free village established adjacent to Morant Bay (Watts, D., The West Indies: Patterns of Development, Culture and Environmental Change since 1492 (Cambridge, 1987), pp. 508–10) another slightly inland from Old Harbour, St Dorothy (e.g.Craton, Michael and Walvin, James, Jamaican Plantation: the History of Worthy Park 1670–1970 (London and New York, 1970), p. 246) we can deduce, both from the addresses of this letter and the author's reference to a neighbour in nearby Negrill, that William Nicoll resided on that Spring Garden estate that lay in Westmoreland, in the far west.

39. Correspondence, p. 41 (13th August 1868).

40. ibid.

41. Whitelocke, H. A., custos of Hanover to the Colonial Secretary (20th July 1868): Correspondence, p. 13.

42. Plato Elphick, J.P., of the Belvedere Estate, St. Thomas-in-the-East (22nd July 1868) ibid., p. 15.

43. D. Ewart, S.M. (21st July 1868) ibid., p. 16. In a similar letter from Fort St. George Pen, St. Mary (31st July 1868), James Prestwidge refers to the peasant habit of docking tails; ibid. p. 47.

44. Note 27, supra.

45. W. G. Astwood; Correspondence, p. 45. Astwood's evidence to the Royal Commission appears in its Minutes at pp. 258–64.

46. ibid.

47. See Mintz, S. and Hall, D. G., ‘The Origins of the Jamaican Internal Marketing System’, Yale University Publications in Anthropology, 57 (1960), 326.

48 For a map showing the principal markets of Jamaica in the mid-nineteenth century, see Watts The West Indies, p. 509.

49. As Ludlow, J. M. F. stated (A Quarter of a Century of Jamaica Legislation, 1866, p. 8), the property qualifications were such that (electing 47 members) the electorate itself numbered just 1,457 in 1864, this among a population of 436,000.

50. Ronald, Sires, ‘Governmental Crisis in Jamaica 1860–1866.’, The Jamaican Historical Review, 2, 3 (1953), 14.

51. For a short introduction to the ‘Town Party’ and their economic interests, see Holt, The Problem of Freedom., pp. 221–3, 445 n19 for a more extensive one, see Heuman, G. J., Between Black and White: Race Politics and the Free Coloureds in Jamaica 1792–1865 (Oxford, 1981)Hall, Douglas, Free Jamaica, 1838–1865: An Economic History (New Haven, 1959).

52. Robert Nunes (20th January 1868); Correspondence, p. 11. (Of course, ‘attorney’ is used in this passage in the sense of lawyer.)

53. William Teall (17th July 1868) ibid., p. 9.

54. Even if the peasants were not given notice to quit, they could still be told to relocate their provision grounds at short notice: Lopez, Amy, ‘Land and Labour to 1900’, The Jamaican Historical Review, 1, 3 (1948), 294–5.

55. Robert Nunes, in Correspondence, p. 11.

56. ibid..

57. The Problem of Freedom, pp. 276–7.

58. A relatively complete list of the disturbances throughout the island appears in Lorna Simmonds' article, ‘Civil Disturbances in Western Jamaica, 1838–1865’, The Jamaican Historical Review, 14 (1984), 15–17.

59. ibid.. A relatively complete list of the disturbances throughout the island appears in Lorna Simmonds' article, ‘Civil Disturbances in Western Jamaica, 1838–1865’, The Jamaican Historical Review, 14 (1984), 15–17.

59. ibid.

60. Holt, The Problem of Freedom, p. 277.

61. ibid.

62. ibid., p. 265.

63. ‘Jamaica, 1866’ [3995], p. 8, in Reports showing the Present State of Her Majesty's Colonial Possessions transmitted with the Blue Books for the year 1866: Part. I – West Indies, British Parliamentary Papers, 1867–8, xiviii. See also Harvey and Brewin, Jamaica in 1866, p. 19n: ‘On our return … to Spanish Town we found much alarm existing on account of land disputes at a place called Hartland, four or five miles from Spanish Town. Soon after emancipation a merchant named Hart bought an extensive tract of wild land, and commenced selling it out to the people. Some obtained titles, others paid in part and got receipts, others squatted, the whole population being now about 2000 in number. After apparently neglecting the property for many years, the son of the deceased vendor was proceeding vigorously to contest his claims, and had procured by some means the order for a large body of troops to attend and enforce his surveys.’

64. Whereas Gad Heuman stresses the prominence of the black lawyers Samuel Constantine Burke, D. P. Nathan, John Pillon and Foster Davis among opposition members of the old Assembly, Thomas Holt rather emphasises the racial and occupational diversity of the lawyers as a group associated with the ‘Coloured Party’, finding five whites in the group and five planters. However, this is not to say that there is a right and a wrong way to look at the composition of the ‘Town Party’, rather that (as with most political groups), there are rarely exact boundaries. Cf. G. J. Heuman, Between Black and White p. 63 and Holt, The Problem of Freedom, pp. 221–3. As for the question whether the ‘Town’ or ‘Coloured Party’ were seen as natural allies of the peasants, it is instructive to consider further the case of Robert Nunes, later custos of Trelawney. As a white, Nunes was well aware that he could not be regarded as at one with the peasant interest (as the coloured ex-magistrate George Gordon could pretend to be) and that, had the rebellion of October 1865 spread to Trelawney from the south coast, his life might well have been endangered. Certainly Nunes felt threatened by the discontent and impertinence of his servants at the time: Minutes of Evidence … of the Jamaica Royal Commission, Evidence of Robert Nunes (10th March 1866), QQ.40,108 - 40,141, p. 831. The real position of the ‘Town party’ was that it constituted the ‘shopocracy’ (‘A Week in Jamaica in the Year 1841’, Sharpe's London Magazine, 15 (1852), 246) for whom, although they welcomed the notion of a prosperous peasantry, there was nonetheless likely to be little but peasant hatred at a time of drought and consequent rural poverty. Certainly the merchants and professionals disliked the plantocratic interest represented by the ‘Country party’, hoped to displace the planters, and did so when they could - but this did not make the lawyers and merchants at one with the peasant interest. For example, Harvey and Brewin (Jamaica in 1866, p. 9) note one of the custodes as having recently bought three derelict sugar estates, probably for rack renting to peasants.

65. Harvey and Brewin, for example, write (Jamaica in 1866, p. 18) that: ‘An excellent law existed some years ago (Law 22 of 1852], which provided for the settlement of disputes arising out of the trespass of cattle, by arbitration. It was repealed for no apparent cause, except that it disposed of such questions equitably without the intervention of lawyers.’ (However, although one naturally hesitates to dismiss this appealing explanation, dependent upon the obvious venality of lawyers, Harvey and Brewin may not be wholly accurate as to the grounds of repeal. As Mr Bicknell explained (Correspondence, p. 7, 7th July 1868), the act on Dividing Fences operated through the appeal to local juries which was simply too cumbersome a procedure: ‘By this act [of 1852] the occupier of the land may call on his neighbour to join him in the expense of running a dividing fence, and on his neighbour failing to do so, may call in a jury, who, after a view, is to report upon the description of fence required, which the occupier may then erect. A second jury is then to be called upon, and a further report to be made, upon which the occupier may proceed against his neighbour for contribution.’)

66. Twenty years later, on the eve of further new laws favouring fencing (see notes 68 and 69) many attorneys were still keeping up their hopes, for the banana had only just begun to raise the prospect of making the estates profitable again. As Earle, Edward wrote in The Most, Effective and Practical Means of Ameliorating and Extending the Agricultural and Productive Capabilities of Jamaica (Kingston, 1887), p. 8: ‘Penkeepers cannot be congratulated, nor can it be said that they now do more than keep their heads above water. So long as the produce of the land keeps at unremunerative prices, stock will not, and cannot, command a market, let alone a good price.’

67. For a comprehensive list of the statutes affecting the Dominions, see Glanville Williams, Liability for Animals, pp. 227–31.

68. Public Record Office, London, C.O. 139/105, fol.331.

69. ibid. fol. 332.

70. As the criminal statistics show (annual Handbook of Jamaica), prosecution for ‘praedial larceny’ (peasant theft of crops from the plantations) reached its peak relative to population just in that period when the banana arrived to renew the prosperity of the Jamaican plantation, from the 1890s to the 1920s.

1 This article is one product of a large grant from the Australian Research Council 1995–7. The purpose of that grant was a comparative study of the apparent decline in interpersonal violence experienced in England and some of its ‘cultural colonies’ (Ireland, Jamaica and Queensland) from 1860–1920.

Open Field or Enclosure? Peasants, Planters’ Agents and Lawyers in Jamaica, 1866–18751

  • Simon Stevenson (a1)


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