Blackstone and the Externalisation of Landscape

Abstract

The idea of absolutist ownership in land, introduced in William Blackstone’s influential work, Commentaries on the Laws of England, is the subject of this chapter. Blackstone’s reframing of intrinsic aspects of the landscape as external encumbrances burdening the individual landowner is discussed as the watershed moment that terminated property’s social function. Blackstone applied the generic feudal pyramid of tenures to England, without considering the lived-in experiences of local communities and their ancient way of life that varied and complicated feudal practices. The chapter examines the role of the new landowning class in Parliament, which passed the Enclosure Acts to enclose common land as private property, thereby using the law to dismantle common rights and functioning local communities, and legitimise exclusion as a feature of property.

While Locke’s labour theory of value provided the pretext for acquiring property by separating it from common land, Sir William Blackstone emphasised the exclusionary character of property, in which rights are consolidated in a single landowner, to the exclusion of all others.¹ This expression of the ideology of exclusion² has remained the defining feature of Blackstonian property for about 250 years, though it has since been modified.³ It is best captured in Blackstone’s oft-quoted passage in the ‘Commentaries on the Laws of England’⁴:

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or 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.⁵

Although it is questionable whether Blackstone himself believed in property as an absolute right to exclude,⁶ the Blackstonian conception is entrenched as the dominant Western property ideology, inclusive of civil law jurisdictions.⁷ What is relevant is that the right to exclude means that one has property; conversely, to the extent that one does not have exclusion rights, one does not have property.⁸ In this definition, property is so absolute as to permit no infringement, not even for the common good.⁹ According to Blackstone, absolute rights are those rights that every man is entitled to enjoy, not because of his membership in society, but by virtue of his individuality.¹⁰ Property was an absolute right vested in the individual by the immutable law of nature, independent of societal recognition.¹¹ Private property was a key development in mankind’s advancement, as individuals emerged from the global commons to establish themselves in permanent homes and grow crops. Occupancy or use rights thus ripened into permanent and exclusive dominion over the thing—private property.¹² It was only in very limited circumstances that society could constrain this right in order to promote other objectives.¹³ Blackstone underscores the primacy of the individual right of property by stating that:

So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men to do this without consent of the owner of the land.¹⁴

Blackstone therefore privileges ownership above other interests in land. In spite of the recognition of those interests, it is in very rare circumstances that private property can be imposed upon and Parliament will restrict property rights to promote the public good.¹⁵ In such a case, Parliament can ‘oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion of powers, which the legislature indulges with caution, and which nothing but the legislature can perform’.¹⁶ As an ardent supporter of Parliament,¹⁷ Blackstone was very concerned with the arbitrary and corrupt use of this Parliamentary power to deprive landowners of their land, and noted such decisions would not be binding.¹⁸

There were particular reasons for this stance. At the time of Blackstone’s writing, the legislature comprised landed members who had benefited from the agricultural revolution, and specifically enacted laws to deprive commoners of their land; it is unlikely that they would have tolerated any encroachment on their newly enclosed lands, and therefore, to oppose enclosure, especially after 1730, was illegal.¹⁹ The intersection of land ownership with law-making powers²⁰ in Blackstone’s day thus cannot be overlooked when considering his explication of the foundations of private property, and provides context for his defence of landowners.

Blackstone was determined to secure the common law’s position as the law of the English and contrasted what he deemed ‘foreign’ Norman law with the endogenous common law. To emphasise the ‘oppressiveness’ of Norman law, he focused on the body of law it had displaced, Saxon law and its perceived individual freedoms.²¹ Embedding this view involved recasting the lived-in values and experiences of commoners in the landscape as constraints upon the land, introduced through the Norman feudal system of tenure.²² By the eighteenth century, the various lay tenures could be reduced to two kinds: the free tenure in common (socage) and the base tenure by a copy of court roll.²³ Free socage lands were those held directly from the king, having supplanted a previously complex system of military tenures.²⁴ Blackstone discussed the etymology of ‘socage’, which he chose to derive from ‘soc’, a Saxon word signifying ‘liberty’ or ‘privilege’. He favoured this definition to that of the common lawyers, who generally derived it from the Latin soca meaning ‘plough’, thereby connecting the tenure with services of husbandry. Blackstone concluded that the socage tenures were the relics of Saxon liberty,²⁵ as there had been no pre-existing Saxon feudal law.²⁶

While free socage tenure was conditioned upon rendering services to the king, copyhold tenure was conditioned upon the will of the lord.²⁷ The copyholder in Blackstone’s day could however not be deprived of his tenure arbitrarily. Rather, his rights were ‘fixed and ascertained by the custom to be the same and no other, that has time out of mind been exercised and declared by his ancestors’.²⁸ The freehold remained solely in the lord, ‘who hath granted out the use and occupation, but not the corporal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will’.²⁹ This provided Blackstone the pretext for stripping away the social dimensions of landscape, by re-envisaging non-ownership interests as burdens on the land.

To emphasise the imposition of these ‘feudal incidents’, Blackstone describes a feudal pyramid of obligations that relies on problematic historic sources from English medieval property law, complicating the identification and classification of property as it relates to land. As Susan Reynolds notes, ‘tenure’ is an anachronistic and misleading term to apply to medieval English property, because it arose from doubtful translations and misunderstandings of medieval law that originated in the seventeenth century.³⁰ The ‘feudal tenure’ of Anglophone historians is a blend of scholars’ interpretation of Thomas Littleton’s fifteenth-century Tenures, with sixteenth-century French scholars’ version of late medieval academic law that they had derived from the Consuetudines Feudorum or Libri Feudorum, compiled in twelfth-century Italy.³¹

Blackstone elevated his theory to a doctrine of tenures, meaning that ‘all the land in the kingdom is supposed to be holden, mediately or immediately, of the king.’³² But the Normans were concerned with administration and revenue-raising, rather than immediately imposing a system of law—it would have been easier to add to the pre-existing obligations of property-holders than to diminish their traditional rights. Special emergencies may have required special demands that eventually mellowed into custom—in the aftermath of the conquest, military service was probably an immediate priority, followed by other ‘feudal incidents’. Land being subject to royal jurisdiction did not necessarily indicate subordination or less than normal free rights of property, and yet, tenure was generally applied to all forms of medieval English property, without a full analysis of its rights and obligations.³³

This conflation of property and jurisdiction as an essential characteristic of feudal law comes from historians rather than medieval law itself.³⁴ In fact, by the thirteenth century, the hierarchy of military service and ‘incidents’ appeared more as a social hierarchy of different kinds of property than the hierarchy of jurisdiction and government that developed elsewhere. As the legal profession developed in thirteenth-century England, streamlined terminology fused Latin and French concepts—anyone who held land, with all its attendant rights and obligations, was correspondingly called a tenant, absent any of the connotations of fewer rights and more obligations that are implied in the modern use of the word, and probably due to consensus among judges and advocates.³⁵ Courts began to ignore the lower layers of rights that they had once accepted, so that they increasingly favoured lords of manors at the expense of copyholders.³⁶ In the sixteenth century, as a result of their reading, English historians and antiquaries now began to employ a new vocabulary that had not been current in English common law but rather had passed into professional French law from academic French works.³⁷

English academics appeared to have treated French law works as merely recording the law as it developed, but the law of fiefs that originated in the Lombard Libri Feudorum was not analogous to English common law and the local variation in customary law.³⁸ England’s seemingly perfect feudal pyramid generated new layers of property rights, while in fact obscuring so many differences: the difference between customary law, professional law and academic law, as well as that between English common law and the professional law that developed across the channel.³⁹ Blackstone’s reliance on these texts and their interpretations, combined with the Commentaries’ accessible and elegant style, was responsible for this diffusion of the doctrine of tenure as the basis of English property law.⁴⁰

The reality of the pre-enclosure commons overturns Blackstone’s generic feudal pyramid. As Graham notes, the property relationship held especially by commoners pre-enclosure was closer to the original sense of the word property, referring to identification with and from place, rather than ownership over it.⁴¹ Place specificity generated a subjective relationship that bound commoners in a mutually dependent relationship with the land; as members of a peasant economy based on open-field agriculture, they shared a heritage and identity and so land was not alienable or exclusive because its value was not purely economic.⁴² That shared heritage reflected continuity with the past, and was derived from generations of occupancy, or the habitus of landscape, articulated and reinforced in the laws and rights of the commons.⁴³

The original land laws of peasant economy were diverse rather than uniform; customs were locally developed, and relevant because they were sensitive to varying local geographic conditions.⁴⁴ Providing highly specific limits or conditions to rights of access, use and enjoyment of land and other local resources had been an early form of natural resource management, observed over centuries.⁴⁵ The pre-enclosure local representative councils, and the corpus of customary law they established, shaped the land, thereby forming a ‘substantive landscape’ or polity, in the legal sense of ‘creating and defining rights and duties’.⁴⁶ Customary law was thus the formalisation and ritualisation of habits and practices, reinterpreted as required over time, and forming a bank of cultural memory and common identity.⁴⁷

In Blackstone’s time, the suppression of these customary rights of common people through the Enclosure Acts was not the result of an intrinsic failure of land management methods, or diminishing fertility of these lands, or even the collapse of these communities, but simply because the land could be acquired for ‘improvement,’⁴⁸ which enriched the landed class.⁴⁹ Enclosure occurred regardless of the location of these lands, and the law minimised the extent of common rights in order to limit compensation due to commoners.⁵⁰ Common rights have never recovered their depth and complexity since. Private property was thus not the inevitable outcome of a linear process in which a progressive society eventually replaced an inefficient common property model; it was a deliberate policy choice that ignored extant cultural perspectives on land and eliminated institutions for managing land efficiently as the basis of community life.

As David Tabachnick observes, ‘the enclosing of the commons in England was not merely a physical process of putting up fences but also a conceptual process that created a new legal, economic, and sociological reality’. Blackstone was the foremost contributor to this new legal reality. By importing French sources, rather than examining the lived in experiences of English commoners, who for centuries had interacted with Saxon then Norman systems, adapting to maintain their communities, Blackstone presented a model of property that was clear and simple, but ahistoric and aspatial. In order to do so, Blackstone developed a history of land law that freed the landowner from the ‘weight’ of myriad obligations that had characterised land during the feudal period. Now, ownership is absolutist, with the ability to exclude, making inhabitants foreigners in their own community, without representation and their way of life undesirable and even lawless.

Through this filter of hyper-individuality, ancient communal rights and practices that had arisen during the Anglo-Saxon and later Norman periods, enabling peasants and commoners to become self-sufficient and independent were now interpreted as dependence on the landowner’s goodwill.⁵¹ Protecting individual landowners’ rights as justification for enclosure destroyed community governance of land, and with it, alternative perspectives that had defined the landscape. Stressing legal personal ownership placed the focus on acquisition rather than community approval in the use and management of land.⁵² Property was no longer linked to landscape but required by definition to exclude the social elements of the landscape in the name of liberty. Though Saxon conceptualisations of land as earlier noted are cognate to the landscape, Blackstone interpreted Saxon liberty as an individual quality, not in terms of self-sufficiency for communities.

Blackstone’s focus on individual ownership inverted property, from its associations with mutuality to one that was freed from social obligations to land—Blackstone does not expect landowners to fulfil a duty prior to confirming their ‘sole and despotic dominion’.⁵³ He externalised the landscape by treating non-ownership interests as burdens, embellishments and even privileges awarded at the landowner’s discretion. Ownership was therefore hierarchised in a way it had never been before. Excluding these connections with the land erased its distinctiveness, since the location, features and limits of the land would no longer define relations with it. Where communal uses were allowed, this was a concession on the part of the private property owner, not a right exercised by communities based on their mutual relationship with the landscape.

Blackstone’s idealised tenurial system served to mask the complex cultural perspectives towards land following the conquest. For Blackstone, ownership, previously non-exclusionary and qualified by a range of interests, became absolute. This anti-social conceptualisation of land would have sounded the death knell for landscape, by eliminating communal land values from property. This has contributed to property’s current paradoxical character as an anti-social institution that nevertheless structures human relationships in society.⁵⁴ Although Blackstone associated property with things, the predominant character of ownership enabled the abstraction of the concept. Bentham, Blackstone’s former student and among his fiercest critics, eliminates land altogether in his positivisation of property theory. By the beginning of the twentieth century, the Blackstonian conception of property had been replaced by Wesley Newcomb Hohfeld’s dephysicalised property model, in which property was defined by abstract relations between people, rather than a tangible object.⁵⁵ Property law, therefore, continued to diverge from place-determined ideas about land in the development of the common law.