Making Private Property: Enclosure, Common Right and the Work of Hedges

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LAW 343 Dispossession Nicholas Blomley Enclosure

Notes

the important work that hedges did, physically, symbolically and legally, in the dispossession of the commoner.

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this very materiality made it vulnerable to ‘breaking’ and ‘leveling’.

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This is the missing quality that makes the normative shortcut possible

Land, as both a symbol of status and power, and vehicle for capital accumulation, played a crucial role in this social remaking.

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Increasingly disembedded from local social conditions, it begins to be possible to treat property as an abstract relation between an owner and a thing rather than a conditional tenure,

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Land ownership is thus figured as reducible to facts and figures, a conception that inevitably undermines the matrix of duties and responsibilities that had previously been seen to define the manorial community,

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Even when surveys were accomplished and maps produced, it 1s not necessarily the case that material rearrangements occurred.

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maps did not ‘enter into law’ as Harley describes it, for the simple reason that most enclosures were technically illegal.

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enclosure and the rollback of common right, as we shall see, also often generated fierce opposition from commoners.

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Customary forms of tenure, including common-right, were deemed an obstacle to the ingenious and active farmer. The freehold estate was to be preferred because it allowed the owner to make the most of what was now deemed his own

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Doth not every man covet to have his alone?’

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enclosure as the ‘most principal way of improvement’ as it ‘capacitates all sorts of Land whatever for some of the improvements mentioned in the subsequent Discourse’,

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Reminds me of the fight in Fossil Capital between water and steam: water was more productive overall but steam was easier for an individual to manage

the hedge also communicated property in culturally specific ways. An enclosure served communicative : ‘ functions, signaling the creation of a ‘close’, that is, a space of exclusive use and entitlement. Deep-seated customary principles sustained this association.

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given official ambivalence towards enclosure, the organised violences of the state could not always be relied upon to sustain property’s new regime, Thus other forms of corporeal violence had to be put to work.

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The hedge provides protection from the ‘champion’, or commoner, who now figures not as a holder of legitimate use-rights (to graze, glean, and so on), but as a predatory and threatening violator of the private property rights of the husbandman.

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hedging will create ‘a continuance of amitie amongst neighbours, when one lives free from offending another’

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But the language of T'usser and others speaks not of amity, but of enmity. Under the new regime, the ‘propriety’ of the rising middling ranks must be defended from the predations of the poor. Privatisation produces fear, even paranoia, rather than friendship and security:

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they could not make their Trenches so easily, if all were true within.

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commoner and the common were increasingly imagined as disorderly and irrational.

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Hedgebote, the right to gather from hedges, was one of many commons of estover.

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challenges the authorities faced in distinguishing between theft and hedgebote.

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be utterly undone and have small or no means to relieve themselves’

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new hedges must have made it increasingly difficult for tenants to drive their animals to commonable pastures.

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it was not the extent of enclosure that was significant as much as the contemporary perceptions of the process on the part of the poor:

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time and again, commoners turned their anger upon the hedge and the ditch.

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for every one organised protest there were a dozen cases of people ‘throwing a gate off its hinges [or] uprooting some quicksets’

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hile such uprisings were often characterised as riotous,!* Wrightson (1982) also argues for the ‘order in this disorder’ (175), noting that opponents of enclosure acted in defense of traditional rights, and often resorted to legalistic rituals (such as a pledge of loyalty to the crown)

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what in effect, whatever lawyers may say, has been their property, is being taken from them…To take into your hand what is other men’s land, that is the grievance.

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Under the tradition of ‘possessioning’, commoners sometimes claimed the right to tear down ‘encroachments’ on commons or wastes during parish perambulations, carrying mattocks and axes for that purpose. While the proper remedy for an encroachment was an action of disseisin, ‘the right of commoners to take direction action in support of right rested upon ancient law and precedents too strong to over-rule’

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making a breach in Box’s hedges (Manning, 1988: 89), meaning that, by their actions, they sought to end up in court, and thus have Box’s enclosure legally appraised. This, presumably, was easier than bringing an action against Box.

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Commoners appealed to local custom, understood not as a ‘vague body of tradition, but a rigorous, detailed, and precise corpus of local law’

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Yet things complicate property. Fences fall down, paper records rot, rivers and coastlines move. Thus, the hedge can be a defensive barrier or an encroachment.

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Harvey's (2003) argument for ‘accumulation by dispossession’ suggests the continued presence of ‘primitive accumulation’, premised on enclosure and privatisation.

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